Untitled Texas Attorney General Opinion ( 1939 )

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I
36.
OFFICE OF THE A’ITORNEY GENERAL OF TEXAS
AUSTIN
Oame, Fish and Oyster Comulsaion
AU3tin, Texas
Attention: I&-.H. D.
Dear Sirr
Your reqG3st for an
are herein stated has been re
who delivers edible
ale 0wa miteids
and 'oysterdealer8
e sold prior to en-
:
3f
cane, Fish and Oyster Corn., Attention: I&, H. D, DOB&en,
Fag6 2
You inform us that you refer to the v~ious Ii-
cenaes required by Article 934a of the Pcncl Code.
i&lcle 934a of the Fenal Code reads in part as
fOllOVjs
:
"SBC. 1. The following: lords, term and
phrases used in this Aot~are hereby defined ES
follovl3
;
"(31 A *Comsrcial Fishsrmn~ is nny per-
son who takes fish or oystsrs or shri~g or other edible
aquatic products from the waters of this State,
for pay, or for the puspose of s&e, bsrter or
exchange.
n(b) A Wholesale Fish Dealer' is any par-
son ehga&ed in the business of buying far the
purpose of selling, canning, preserving or pro-
cessing, or buying for ths purpose of handling
for shlpnents.OT sale, fish or oysters ox shrimp
or other comerciaP edible aquatic products, to
Retail I$sh Dealers, and/or to Eotels, Restau-
rants or Cafes and to the Consmer.~
"(Cl k 'Retail Fish Dealer' Is any person
engaged in the busiqess of buying for the pur-
pose of oelllnC either fresh or frozen edible
aquatic producltsto the consumer,
"(dl A *Bait Dealer' is any person engaged
in the business of selling either 13In.ho~.,
fish,
skim or other aquatic products, for fish bait.
"(01 A *Fish GuiUe' is any person who
operates a boat for pay dr anything of value, in
aocompanyingor transportingany person engngo6
in fishing In the waters of thin State.
"(fl *T;erson'shall include the plural as
well cs the singular, a5 the case demands, and
shall include ihdiolduals,partnerships,assooia-
tions ana corporations.
"(El 'Population'is determined es ~3hovM
by the last or any subsequent Federal Census.
%iaense required
"Sec. 2. Before any person in this State
shall engage In the business of a fComercial
3 f.;
Gazne,Plsh and Oyster Corn...Attention: %, H. D. Dodgsn,
Page 3
Ffshsrnanl, Wholesale Fish Doalert, 'Rota11
Dealer', 'Bait Dealer', 'Fish Guides; or use
or operate a shrimp trawl, net or seine, oys-
ter dredCs, boat or skiff, for the purpose of
catching or taking my sdible aquatic life
fros the waters of this State for pay, bartar,
sale or exchange, ths proper license provided
for in this riotprivilegingthen so to do shall
first be procured by such person fron the Gazae,
Fish and Oyster Commission of Tows or fron otie
of its authorized agents.
"Liaense fees
wsea. 3. The llcennes and the foes to be
paid for the sme are hereby provided for in
this Xot and are as follower
Comeroial Fishermen's License, fee
Threea``llars ($3).
"2. Xholesale Fish Dealem' LLcense, fee
for each place of business, Two Euudrsd Dollar6
($200) l
"2-a. ViholesalsTruok Dealers' Fish License,
fee for eaoh truck, One Hundred Dollars ($100).
"3. (a) Retail Fish Dealers' License, fee
Three Dollars ($3) for each place of business in
eaoh city or town of less than seven thousand,
five hundred (7,500) population.
"(b) Retail Fish Dealers* Llcenae, fee Ten
Dollars ($10) for each plaoe of business in each
city or town of not less than sevsn thousand,
five hundyed (7,500) and not wore than forty
thousaud (40,000)population.
*(o) Rotail Fish Dealers' License fee Fif-
teen Dollars ($15) for each plaoe of business in
saoh city or town of more than forty thousad
(40,000) population.
l'(d) Retail Oyster Dealers' License, psr-
nittlng the sale of oysters only, fee Five Dol-
lars (95) for eaoh place of business in eaoh Oity
Gme, Fish and Oyster Corm., Attention; Xv, H. 1).Wdgen,
j-cl@Q
or tom of zxorethen seven thousand, five hund-
red (7,500) population. G-E sule of any fresh
or frozen edible aquilticprouucts, other than
oysters, by a ret&l fish dealer posscasinC the
license nmod intbisoubsectfon, shall comtl-
tuts a violntiou of this Act.
"(8) iielxilDczlernl Truck License, por-
mitting tho sale of edible aquatfo products from
a zotor vehicle to Consmers only, fse T::ehty-
five Dollare ($25) for each truck; provided the
omer of any retail fish dealers' llcenso issued
since ~epteiaberI.,1934, for a pluaa of business
in a city or tom of more then five thousand
(5,000) po?ulat:on,shall be entitled ,to a rabate
on the sane vthensaid owner of such license shall
furnish tho Game, Fish and Oyster Commission a
claim sworn to for said mount. i?hensuch claim
is Sound to be correct and Is approved by the
Executive Secretary of said Comission, sane
shall ,bepaid out of any moneys available in the
State Areasury upon warrant issued by the State
Comptroller.
"4, Bait Dealers' License, fae TvfoDollars
($2) for each place of business.
"5. (a) shrimp Trawl.Liocnse,for eaah
boat operating or toM.ng a travelnot more than
ten (10) feet in width et the mouth, and not
more than twenty (20) feet in length, See !kro
Dollars ($2).
Shrimp Trawl License for each boat
opera:& or to;iiing n trawl nod thantan (10)
feet Mde'at'its mouth or more than twenty (20)
feet in lerqth, fee Fifteen'Dollars($15);
Which said license shall permit the use of a
'try net* as auxiliary to said travel.
eo. seine or hTetLicense, to be of mtcti,
for and to be firmly attached to each one hun-
dred (100) feet or fraction thereof, fee On0 Dol-
lar ($1) for eaoh dne hundred (100) feet of the
length thereof.
Vrovided, no license shell be issued for
any seine or net 1onCcr than eighteen hundred
Gc.me,5Fish
and Oyster Comm., Attention; :J.r.
8. D. Dodgen,
Pam
(1600) feat, and also provided that after the
passage of this Act no license shall be issued
for any seine or net, the meshes of which are
less than one end one-half (l&) inches from
knot to knot.
“7. Fish Boat License, for boats equipped
with a motor of any kind 6r with soils, See
Three Dollars ($3).
"0. Skiff License, for boat propelled by
oars or poles, to be of metal and flrnly attach-
ed to skiff, fee One Dollar ($1).
*‘9. Oyster Dredge License, fee Fifteen
Dollars ($15).
“10. Fish Guide License, fee ~wtoDollars ($2).
"IS. Flace of business,as used in this &A,
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 fromwhioh such aquatio prOdUOts are
sold, shall constitutea place of business. The
license shall at all times be publicly displayed
by the dealer in his place of business so as to
be easily seen by the public and the employees of
the Game, Fish and Oyster Commission. And if any
aquatlo products are transportedfor the purpose
of sale In any vehicle the license required of
such dealer shall be displsyed inside of such ve-
hicle. Provided that no person shall bring into
this State any aquatic products and in this State
offer same for sala without procuring the license
required for such a transaction by a dealer in
this State, and the fact that suoh aquatic products
were caught in another State shall not entitle the
erson Claiming to have caught them to seU. same
fn this State as a commeroialflsherman.n
Article 934a, Fenal Code, supra, among other things,
Providesthat no person shall engage in the business Of Ye-
tail dealer In either fresh or frozen edible aquatio products
withoutprocuring a license fronthe Game, Fish and Oyster
~Orsaission;nnd that the licensee shall pay an annual tRX of
Three ~ollays in any oity or town of less than 5,000 population,
Ten Dollars in any city or town of not less than 5,000 and not
Game, Fish and Oyster Comm., Attention2 Mr. H. D. Dodgen,
page 6
more than 40,000 population,and Twenty Dollars in any city
cr town of more than 40,000 population; and the failure to
Pay the tax and procure the required license shall consti-
tute a misdemeanor for which the person offending may be
PunishedbY a fine of not less than Ten nor more than Two
HundredDollars. Also the Act provides that no person shall
engage in the business of wholesale dealer of fish, oysters,
shrimp, or other commercialedible aquatic products without
paying an annual tax of Two Hundred Dollars and procuring a
licensefrom the Game, Fish and Oyster Commission;and that
failure to pay the tax and procure the license shall oonsti-
tute a misdemeanor punishable as in the case of a retail
dealer. The pertinent definitions set forth in the Aot are
as follows:
*A *WholesaleFish Dealer' is any person
engaged in the business of buying for the pur-
pose 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 commercialedible aquatic products, to
Retail Fish Dealers, and/or to Rotels, Restau-
rants or Cafes and to the Consumer.
*'A'RetailFish Dealer' is any person
engaged in the business of buying for the pur-
pose of selling either fresh or frozen edible
aquatio products to the consumer."
It is clear from a reading of the definitionsof
dealersthat one who confines his business to selling to
the consumer is required to pay the tax providedfor retail
dealers,and that the amount of such tax is determined by
the population of the city or town in whioh the ocoupation
is pursued. It is true that the wholesale dealer is permitted
to sell to the consumer. However, when he has paid the tax
requiredof wholesale dealers he is authorized to extend his
operations. For examPle, in addition to selling the consumer,
he may buy for the purpose of canning and may buy for the
Purposeof selling to retail dealers. For the privilege of
extendinghis operations beyond those of a retail dealer, he
PaYs a higher tax. (Ei parte Xehlman 75 S. W. (26) 689;
Greinervs. State, 75 S. W. (2d) 1llOl.
Article 7055 and 7058, Vernon’s Civil Statutes
reads as ~O~OWS~
&,me, Fish and Oyster Comm., Attention: Ids.H. D. Dodgen,
Page 7
"Art. 7055. Any person, rim, corporation,
or associationof persons, who shall be the le-
gal owners or holders.of any unexpired ocoupa-
tion license issued in accordancewith the laws
of this State, may transfer the same on the books
of the officer by whom the same was issued.
"Art. 7056. The assignee or purchaser of
such unexpired occupation license shall be au-
tEorized to pursue such occupation under such
unexpired license for and during the unexpired
term thereof, provided that such assignee or pur-
chaser shall, before following such oocupation,
oomply in all other respects with the.require-
ments of the law provided for in the original
applicationsfor such licenses. Nothing in this
law shall be so construedas to authorize two or
more persons, firms, corporationsor associations
of persons to follow the same occupationunder
one license at the same time. bhenever any per-
don, firm, corporation or assooiationor persons
following an ocoupation shall be closed out by
legal process, the occupation license shall be
deemed an asset of said person, firm, corpora-
tion or association of persons, and sold as
other property belonging to said person, firm,
oorporation,or association;and the purchaser
thereof shall have the right to pursue the oo-
oupation named in said license, or transfer it
to any other person; provided, suoh occupation
license shall under no cfrcumstanoesbe trans-
ferred more than one time."
Ordinarily a license is a mere personal privilege
which may not be assigned. But by express'provisions of the
above quoted statute an unexpired occupationtax license is
transferrableone time. A failure to comply with a provi-
sion of statute directing'thetransfer of a license to be
reoordedon the books of the officer who issues it does not
void the transfer as between the parties, such a provision
being not for their benefit but for that of the state. The
assigneeof a license aaquires the same right that his as-
signorhad to pursue the occupation during the unexpired
Portion of the term; but an attempt to make a second trans-
fer in oontraventionof an express provision of the law will
Game, Fish and Oyster Comm., Attention:I?. H. D. Dodgen,
me 8
be nugatory. See Tex. Jur. Vol. 27, p. 905.
The oase of Asher v. Texas, 128 U. 2. 129, holds
that a state law exacting a license tax to enable a person
rithin the state, to solicit orders and make sales there
for a person who is residing within another state, is repug-
nant to that clause of the Constitutionof t.heUnited States
vblch gives Congress the power to regulate commerce among
the several states, and is void.
The case of %mert v. Kissouri, 156 U. 3. 296 holds
that a statute of the state, by which peddlers of goods, go-
ing from place to place within the state to sell them, are
required, under a penalty, to take out and pay for license,
and which makes no discriminationbetween residents or pro-
ducts of the state and those of another state, is not, as to
peddlersof goods previously sent to them by manufacturersin
other states, repugnant to the grant by the Constitutionto
Congress of the power to regulate oommerce among the several
states. Also see the oases of Rx parte Overstreet,46 2. I?.
225; Crenshaw v. Arkansas, 227 U. 2. 389; Faces v. State of
Louisiana,232 U. S. 334; G.E. & C. Railway Company, 2 Tex. 217.
In view of the foregoing authoritiesyou are re-
speotfullyadvised that it is the opinion of this department
that any person, firm or corporationengaged in the business
of solicitingand/or accepting orders for edible aquatic pro-
ducts when such produots are’to be shipped or delivered from
another state to the purohaser in this state is not required
tohave a fish dealer’s license. Rut if a person, firm or
corporationengaged in the business of a *wholesale fish deal-
er* or “retail fish dealer”, as these terms are defined by
the statute, has an agent or representativestationed at a
place, other than the main place of business of such person,
rim, or oorporation,and who solicits and/or aooepts orders.
for aquatic products to be sold and/or delivered by his
rrincipalto the purchaserwithin this state, such an agent
or representativewould not be required t.ohave a fish deal-
er’s license, but his principalmust have an additional li-
cense for the “place of business” of &he agent, as required
by Subsection11, Section 3, of krticle 934a. Eov:ever,if
anfgentof the dealer has no established “place of business”
x?lersorders for aquatic psoducts are received, but travels
from city to city solicitingorders for aquatic products to
be delivered by his principal, neither he nor his principal
FcuLd be req,ulredto have a dealer’s license by reason of such
ammy.
we, Fish and Oyster Co&m., Attention:I.:r.
H. D. Dodgen,
Page Q
In reply to your seoond question, you are advised
that if edible aquatic products are rmrely delivered by motor
vehicle frosioutside the State of Texas and no sale is made
witkin the state, such person would not be required to have
5 lioense.
Your third quest~ionis answered in the nsgative.
In reply to your fourth question, you are further
advised that such license may be transferredone time, when
the business to which it was issued changes ownership,and
that auoh licenses are transferrablato a new business lo-
cation under the sme ownership any t&m, -Tided the stat-
ute is complied with regarding fees Fertaining thereto in
towns or olties of different populations.
Trusting that the foregoing answers your inquiries,
we reniain
Yours very truly
ATTOITNEYCEXEEXALOF T3XAC
&.+&&j-&s-
Ardell williams
jLTT~.-``~;~OV 24, 1939 Assistant
Aw:J?‘t b. ~
*``cIprLfci;.ixiiA>
0%’TEXikS