Untitled Texas Attorney General Opinion ( 1939 )

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OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
May 13, 1939
Honorable Eugene Brady
Assistant County Attorney
Hunt county
Greenville, Texae
Daar Sir:
in your letter of May 8,
n 38, Artiola 7047, Revised
dnuon oraakeril,eto.-
oration engaged in the
aokarta,or toy pistols
oartridgea; within this ;/
undrea dollars, and
oltiea or towns in whloh such
have the power to levy a tax i
unt aa now provided by law in ;.~,-"
above tax, aLitI auoh psrsOn, fim or
elli.ugsuoh oaanon oraokere 6hal.lba
an additional tax lhnthe above amount
IIadditional liorn~a for rash sepaxato
; or plaoe in whioh suob oannon oraokslce
. By the taw *oumoa araoksr' is maant
any fire oraokar or other aorabusttbla, paokage more than
two inohes in length, and snorethan one inoh in olroum-
nbmnoe aonm~nly sold and exploded for purpoeaa or amumb-
ment. Hothbng herein shall be 80 oenstruo~ed (QOnatrUeb)
as to prohibit the sale of, or to plaae a tax on, the $a10
OS oartridges, oombuatiblo paokagas or axploaivas ao~a5only
used for firearms or .artillery,mining, axoavatlng earth
or stone, aolantli5.0 purposes or ror any gubllo or prlvatr
work,"
O-01
iloll. +Wne Brady. Cay 13. 1939, Page 2
It will be noted that the foregoing t&x measure doss not
levy an oooupation tax upon every person, rib-mor oorporatlon aell-
a woannon arackers, or toy pistols used for shooting or expl-
oartriages," but rather levies such tax upon every person, firm or
corporation engaged in the oooupatlon of "selling cannon oraokers,
or toy pistols used for shooting or exploding cartrldgea.w Thle,ie
slgnlrloant in view of the definition of the term *oaoupationw'given
by our courts. "Gcoupation" a8 the term is used in the statutes
relating to oocupational taxes, meana the business In whloh one
prinolpally engagea to make a living or obtain wealth. 27 Tex.,Jur.
p, 896 (Licenses Sec. 50); Shed v. ttate, 70 Crlm. Rep. 10, 155
e. a. S24; Love vs. Ftate, 91 Grim. Rep. 469, 20 3. K. 978; standford
v. State, 16 Tex. App. 331.
Toshed by the foregoing definition or the term RoccupetlonIR
as laid down by our courts, and similarly defined by the courts of
other juri~diatlons, can it reasonably be said that a general notion
operated and conducted, suoh as uoolworth*a,
store, as oorrmeonly
-es&S, orallt*a,eta., Is engaged in or devoted to the Cououpatfonv~
of selling *toy pistols ueed for shooting or exploding oartridgee,v
within the intendment of the above tax measure, because, perohanoe,
among the thousands oi articles dally offered ror aale, toy pistols
i find a @laoa. A fair and workable interpretation of this statute
prompts a negative answer. To hold othermlae would result in the
taxation of a xnereincident to an ocaupatlon rather than the oaoupa-
tlon.~itselt. Hurt vs. Cooper, 110 S. Ji. (26) 896.
This line of reasoning la not without support in the auth-
orities of other states. In the ease of Oarney, et al vs. Jiamilton
by the Supreme court or hlsslsalppi. reported ILI42 so. 578, the
oourt held that where colllplainantsold oooo 003.8 in aase'lote in
ooqneotion rfth his lrholesals.grocergbwiaeea, and pald'the privilege
tax required of a wholesale merchant to aarry on suoh wholesale
grocery buslnesa during the year, he wae not sub)eat to a privilege
tax imposed upon persone 8aintainlng a depot for the ,saleof 0000
oola and oolavine. The theory of this holding was that the whole-
sale groaer in question,,in-the oonduot of his busineea ae euoh,
bought and sold oooo oola as any other article or~merohan4lse, and
was not madntainlng a depot for the distribatlon or ahlpment of
oooo oola withinthe meaning of the tax statute on such bualnee&
In the ease of Carter v. State; 44 &la. 29, it was held
that one whose ahief business is that of a dry goods merchant and
who keeps a small stook of .tobaoeomhiah he sell8 In very small
E.on.Sugene Brady, by 13, 1939, Page 3
gmntlties for the accoxamdtitionof his dry goods auatomers
Is not a tobacco dealer and he is therefore not liable for selling
without a license.
In the light of the fors&oin.gauthorities, 4ereuasive as
they are, and under the,racognlzed rule that tax meakres are con-
strued striotfy in favor of the taxpayer, and that statutes gen-
arally should be so construed a8 to acoord them a reasonable rather
than an unreasonable operation and result, we are constrained to
hold that the Legislature of Texas dfd not intend by Section 30,
Artiole 7047, Revised Civil statutes, to lsry an onerous tax of
$500.00 annually upon notion or variety stores selling toy pistols
aa an incident to such business.
Tours vary truly