Untitled Texas Attorney General Opinion ( 1942 )

THEA-~-~-Y GENERAI.
OP TEXAS
Honorable Nurrell Buckner, Chairman
Game, Fish & Oyster Commission
Austin, Texas
Dear Sir: Opinion No. O-4414
Re: Under the facts presented $hould a
wholesale fish dealer's lioehse be
required of the H.!E. Butt Grocery
Company of Corpus .Chrlstl?
Upon certain facts presented to you by your Director
of Coastal Operations, relating to operations .of.theH. E.
Butt ‘Grocery Company, we quote from your letter ,of February
11, 1942, requesting the opinion of this department:
"Mr. J. B. 'Arnold,director of coast&l op&-
atians of,thls department, states:
"The H. E. Butt Grocery Company of.Corpus
Christ1 is the owner of several Pigglg-Wrgglg
stores ~throughoutthe Southwest. The H;'.E. ~'
',ButtGrocery Company makes shipmer&zs-(ofaquatic
product%) t6 the various Plggly-Wiggly stores
over the Southwest, and.the sale (of aquatic pro-
ducts) ls'made from the Piggly-Wiggly stores to
the consumer, and'lt is on that point that I
think unclerthe law, since he buys for the pur-
pose of shipments and sale and the shlpment is ,,.
made from the H. E. Butt Grocery Company;of
Corpus Chrlsti by truck, that he (the H. E. Butt
Grocery Company) is due to procure a licensers
(a Wholesale Fish Dealer~'sLicense) for the H.
E. Butt Grocery store.'
"If the said R. E. Butt Company purctiases
squatlc,products from fish~ermenor wholesale
dealers and sh.ipssame to retail stores w.hich
they own and operate for the ptipose'of ridall,
sale is the H. E. Butt Company required to pur-
chase a Wholesale Fish Dealer's License before~
conducting such business?
.,.*
Honorable MurrelY Buckner, page-? .I : ,O-4414
"If the said R-E. ButtCompany ships
aquatic products to stores which they own and::
operate and such stores'sell such aquaticpro-' "
ducts only to hotels, cafes or restaurants or
to consumers of such products Is the said B. E.
Butt Company'under this circumstance required
to purchase a Wholesale Fish Dealer's License
before’ engaging in such business?
"If the said H. E. Butt'Compang through
any of Its stores sells aquatic products to any.
bait dealer or other person who resells said
products would It be necessary to establish that
the said H. E. Butt Company sold such products
to dealers for the purpose of resale before the
said H. E. Butt Company could be successfully
prosecuted for conducting such business without
a Wholesale Fish Dealer's License?"
'It Is further stated in your letter that there ex-
l&s evidence'that one or more Plggly-Wlggly.storeshas
sold aquatic products to.one or more hotels, cafes, or
restaurants and to at least one bait dealer and thatshrimp
sold to the said bait dealer was purchased forpurpos,es of
resale.
We' have been Informed that the name Piggly-Wiggly;
under which the'H. E. Butt Company, a private corporation,
operates its stores, is a.copyrlghted 'namewhich.that com-
pany has obtalne&the right to use. Such stores are not
separate entitles,'butall belong to and are operated by
that company. A sale made by any of these stores is a sale
by said company.
As will be seen from the provisions of;the law here-
inafter quoted, a person or corporation 1s not required to
have a license both as a "Wholesale Fish Dealer" and "Retail
Fish Dealer" at any one of Its places of buslness. ,,Incon-
sidering the company in question, the character of its oper-
ations at each business locationdetermines the kind of
license at that location required under the Act.
.Article 934a of Vernon's Penal Code of Texas, in
point, provides:
"Sec. 1. The following words, terms and
phrases.used In this Act are hereby defined as
follows:
11
. . . .
Honorable Murrell Buckner, page 3 : O-4414
"(b) ,A 'Wholesale Fish Dealer' is any per-
son engaged in the business of buying for the
purpose of selling, canning, preserving or pro-
cessing, or buying for the purpose of handling
for shipments or sale, fish or oysters or shrimp
or other commercial edible aquatic products, to,
Retail Fish Dealers, and/or to Hotels, Restau-
rants or Cafes and to the Consumer,
"(c) A 'Retail Fish Dealer' is any person
engaged in the business of buying for the pti-
pose of selling either fresh or frozen edible
aquatic products to the consumer.
"(cl)A 'Bait Dealer' is any person engaged in
the business of selling either minnows, fish,.
shrimp or other aquatic products, for fish.bait,
11
. . . .
' shall Include the plural as
as the.case demands, and
shall include lndlvi~uals, partnerships, assocla-
tlons, and corporations.
11
. . . .
"Sec. 2. Before any person In this State
shall'engage In the business of a ; ~."Wbble;
sale Fish Dealer', 'Retail Fish Dealer' 'Bait
Dealer',, . . ; the proper license prbvi&d for
in this Act privileging them so to do shall
first be,proctied by such person from the Game,
Fish and Oyster Commission of Texas or from on6
of it+ authorized agents.
“S,c. 3. ~The licenses and the fees to be
paid for the same are hereby prdrlded forin this
Act and-are as follows:
11
. . . .
"2. Wholesale Fish Dealers' License, fee
for each place of business, Two Hundred Dollars
($200) .
11
. . . .
"3. (a)' Retall Fish Dealers' License; fee
Three Dollars ($3) for each place of business in
Honorable Murrell Buckner, page 4 O-4414
each city or town of less than seven thousand,
five hundred (7,500) population.
"(b) Retail Fish Dealers' License fee Ten
Dollars ($10) for each place of busineis &each
city or town of.not less than seven thousand,
five hundred (7; 00) and not more than forty
thousand (40,000 population.
"(c) Retail Fish Deislers'License, fee
Fifteen Dollars, ($15) for each place of business
in-each City or town of more than forty thousand.
(40,000) population.
11
. . . .
"11~. Place of business, as used In this
Act, shall include the place where orders .for
aquatic products are received, or where aquatic
products are sold, and If sold from a vehicle,
the vehicle on which, or from which such aquatic
products are sold, shall constitute ~a place of
business . . .
"Sec. 6. Any person falling to compljrwith
or violating any provision of this Act shall .be
deemed guilty of a misdemeanor and upon convlc-
+lon shall be punished by a fine in a sum not
less~than Ten Dollars ($lO:OO), nor more than
Twd Hundred Dollars ($200.00), and his licerise 1.
sh&ll be automatically cancelled and he shall
not be entitled to receive another such license
or permit for one year from the date of.,such '.“
conviction.!
In the Interpretation of statutes imposing taxes,
prbvlsions will not be extended by $mplicatlon ~beyond the
plaln~import of the language used, nor will the~irop.eratlons
be enlarged to apply to subjects not specifically included
therein. In doubtful cases, taxing statutes are construed
most strongly against the State and in favor of the.citizen.
State v. San Patricia Canning Co., 17 S. W. (2d) 160; 25 Rawle
c. L. pp. 1092, 1093.
From~the facts heretofore stated and, as furnish-
ed us by the Executive Secretary of the Game, Fish and Oyster
Commission, a.11 sales are-made through the various Pigglx-
Wiggley stores, and for each store or "place of business as
that term is defined in,Artlcle 934a; the HI.E. Butt Company
has obtained a retail fish aealers'.license.
Honorable Murrell Buckner, page 5 O-4414
'In the case.of Ex Parte Mehlmen, 75 S. W. (26) 688,
the Court of Criminal Appeals; upholding the constitutlon-
ality of the Act in ~questionand c~onstrulngthe word "con-
sumer" stated, and we quote from the opinion on page 690 as
follows:
"It Is clear from a reading of the aeflni-
tion of dealers that one who confines-his busi- ._1
ness to s811ing to the consumer is required to
pay the tax provided for retell dealers, .~. . ~.
It is true that the wholesale dealer is .permit-
ted to sell to the consumer. . . It is argued,
however, thatthe wholesale dealer Is permitted
to sell to.,hotels,restaurants and cafes, all
of which are properly comprehended by th8 term
~'con$xmerQs employed In the definition of
'retall.dealer', and that therefore the dealer
who desires to sell to hotels, etc., Is unable
to determine the sort of license he must secure.
We perceive nothing ,lnthe definition of 're-
tail~dealer' that should be taken to prohibit
one ~operating,nndera retail dealer's license
fromselling to hotels, restaurants ana cafes;
they being comprehended by the term 'consumer':
as that term is ordinarily understood. We,
therefore, express the.oplnlon that one aesir-
ing to ~a'811 to th8 consumer alone is apprised .~.: '
by the act that he 1s required to procure a re-
tail d.ealer'slicense, and that thereunder .he
may gel1 to hotels, 'restaurants and cafes."
It seems clear under the foregoing authority that.
both Pholesal~eand retail dealers are permitted to sell ~tci
'hotels,restaurants and cafes. In connection with your
first two questions and under the facts stated, their answer
lies wltbin the meaning of "Retail Fish Dealers" as used .,
in Subsection (b) of Section 1, Article 93&a, Penal Code
d,eflnlnga "Wholesale Fish Dealer". That phrase conclusive-
ly refersto and means retail dealers conducting their own
place of business separate and apart in ownership Ifrom the
place or places of business operated by the purchaser or.
shlpper. For example, a retail dealer owning several stores
doesnot become a wholesale dealer within the meaning of the
Act although h8 spparently buys for the purpos,eof handling
for shipments to ,his several stores for sale as a retail
dealer. In this instance "shipments" for servicing th8 sev-
eral retail pla,oesof business are necessarily incident to
th8 servicing of his own retail stores. Under the Ex parte
Mehlmen case cited, hotels, restaurants and cafes are com-
prehended by the term "consumer", hence such sales are with-
in the definition of "Retail Fish Dealer." Under the facts
Honorable Murrell Buckner, page 6 0-4~414
stated such "shipments" apparently comprehended by your
first twb uestions do not require the H. E.-Butt Company
to have a %h olesale Fish Dealers'" license at its Corpus
Christ1 place of business.
Relative to your third question and under the facts,
such sale is allegedly made to the "Bait Dealer," who E-
chased same for the purpose of resale.,.~ItIs not alleged
that the shrimp was e for the purpose of resale.. The
point is that 'Bait Dealer" as that term Is defined, Is not
comprehended by the term "consumer" within the deflnltioi%s
of 'Retail Fish Dealer" or 'Wholesale Fish Dealer." A~ "Bait
Dealer" is one engaged in the business of selllrigshrimp-or
titheraquatic products, for fish bait. We may assume that
any sale made to a licensed bait dealer is for purpose of
resale. The mere fact, how~ever,that a bait dealer Is rep--
quired to obtain a license and is defined as a licensee en-
gaged in the business of resale does not alone furnish evi-
dence as to the character of the seller, whether wholesale
br retail fish dealer. There is no prohibltion In the Act
against a licensed "Bait Dealer" buying from any of %h8
licensees d8fined by the Act.
The statute defining the term "Wholesale Fish Dealer",
requires a license as such of a corpordion not only !'Bngaged
in the business" of buying for the purposesof selling, canning,
preserving or processing, but also~buying for the purpose
of handling for "shipments or sales". The::term'lengagedIn
~th8 business" does not mean the performance of a single or ~-
Isolated business transaction but strongly suggests and cti-
ries the idea of conducting, prosecutlng~and continuing
business by performing progrtissivelysuch acts within the
statutory definltlon. A retail fish dealer being permItted
to buy,for the purpose of selling fresh edible aquatic pro-
ducts to the consumer,includlng hotels, .restaurantsand cafes,
and a Bait Dealer permitted to buy for the purpose of resale
for fish halt, the company's handling of edible aquatic pro-
ducts, including shrimp, for such shipments together with
the single transaction of a shipment or sale to a "Bait Dealer,"
or "Retail Fish Dealer" would be Insufficient to constitute
one a "Wholesale Fish Dealer" under the Act.
The foregoing construction of the statute is sustained
by the following cases construing similar phrases~contalned
in the Federal Tariff Act of 1909, par. 38, 36 Statutes 112;
Lewell v. Pittsburg B. & L. E. R. Co., C. C.A. Pa., 222 F.
177, 1r5; Berliner Handels-Gesellschaft v:U; S. Ct. Cl.,
30 Fed. Supp. 490, 496, citing U. S. V. Emery, Bird, Thayei.
Realty Co., 237 U:S. Reports, p. 28;‘Words and Phrases,,Vol.
14, Perm. Ed., p. 624. It was further held in Strlckler'v.
Honorable Murrell Buckner, page 7 O-4414
Schaaf, 91 P; (2d) 1007, 199 Wash. 372, that an isolated or
occasional transportation of persons does not constitute
"engaging In business" within the statute defining "auto
transportation company" as one "engaged in the business of
transporting persons, and, or, property for compensation."
We do not, in this opinion go Into the question of
the proper license to be required of a'dealer engaged in
the business of buying for the purpose of selling or handling
shipments & to hotels, restaurants or cafes within the
popular and ordinary meaning of the wora "wholesale" as dls-
tinguished from "retail". Admitting that both the wholesale
dealer and the retail dealer are permitted to buy for the
purpose of selling edible aquatic products to tiotels,res-
taurants or cafes, it 1s apparent that a retail dealer's
license does ,not permit one whose business-is solely that
of selling by the wholesale or In large quantities to hotels,
restaurants and cafes, thus handling same for shipments to
such consumers, to defeat the purpose and intent ~ofthe'Act
by extending his operations beyond those permitted under
such.retall fish dealers' license. The facts are insuffi-
cient on this point, however, as constituting the company a
"Wholesale Fish Dealer" under the Act.
Answering your questions In the order in which same
are presented, it is therefore the opinion of this depart-
men% :
Question Ro. 1. That H. E. Butt Grocery Company Is
not required to purchase a Wholesale Fish Dealer's License
where it purchases aquatic products from~flshermen or whole-
sale dealers and ships same to retail stores which It owns
and operates for the purpose of retail sale under a Retail
Fish Dealer's License.
Question No. 2. H. E. Butt Grocery Company is not
required to purchase a Wholesale Fish Dealer's License where
It ships aquatic products to Its various retail stores for
sale as a Retail Fish Dealer under the facts submitted.
Question No. 3. It would be necessary to establish
not only that H. E. Butt Grocery Company, through any one
or more of its stores, sold aquatic products to more than
one "Retail Fish Dealer" for the purpose of resale but thtt
such operations constitute being 'engaged ln the business
of a "Wholesale Fish Dealer" before said company could be
successfully prosecuted for conducting its business without
a wholesale fish dealer's license.
Honorable Murrell Buckner, page 8 O-4414
Yours very truly
ATTORNEY GENERAL OF TEXAS
By q&m. J. R. King
Wml.J. R: King
Assistant
wJRK:LM:wc
APPROVED MAY 9, 1942
s/Grover Sellers
FIRST ASSISTANT
ATTORNEYG'ENERAL
Approved Opinion Committee By s/BwB Chairman