Untitled Texas Attorney General Opinion

Honorable H. D. Dodgen Opinion No. ~~-1.480 Executive Secretary Game & Fish Commission Re: Whether business firms which pur- Austin, Texas chase shrimp directly from shrimp boats and then sell the shrimp to wholesale dealers are required to have a wholesale fish dealer's license administeredby the Game Dear Mr. Dodgen: & Fish Commission. You have requested the opinion of this departmenton the above stated question, based upon the following statementof facts: I, . . . "It has been brought to our attention that some business firms are purchasing shrimp from commercial fishermen directly from the shrimp boats and selling shrimp exclusivelyto other wholesale dealers. It Is earnestly contended by the firms so described that absolutelyno shrimp,are sold by them other than to wholesale dealers. Also, in a supplementalletter of November 7, 1962, descrlb- in8 the activities of the firms In question, Mr. John E. 'Leonarz, Law Enforcement Coordinatorfor the Commission,further explained the business operation here questioned in the following language: II . . . "The financial arrangementsinvolved are simply that as the catch is weighed, the L'ishermanreceives a check from the firm in question, and the firm re- sells to the wholesaler. I! II . . . A search of applicable statutes which would authorize the Commission to license such a firm reveals that the activitiesof the firms in question must be such that they fall either within the de:Cln- Honorable H. D. Dcdgen,page2 (w-1480) ition of "WhoiesaleFish Dealer" or a "Shrimp House Operator.'! Section l(b) of Article 93&a, Vernonjs Penal Code, pro- vides: II . . . '!A'WholesaleFish Deaier' is any person engaged in the business of buying for the purpose of selling, canning, preserving or processing,or buying i'orthe purpose of handling for shipmentsor sale, fish or oysters or shrimp or other commercialedible aquatic products, to Retail Fish Dealers, and/or to Hotels, Restaurants,or Cafes and to the Consumer. (Emphasis added) I II . . . SectZon 3(g) of Article 4075b, Vernon!s Civil Statutes, provides: 1, . . . "A 'ShrimpHouse Operator' as used herein, means any person other than a lWh~iesaleFish Dealer' as that term is defined by Section .1.(b) ot'Chapter 29, Forty- third Legislatureof Texas, First Called Session, i933, who operates a shrimp house, piant, or other establish- ment for for the purpose of unloading and handling from T--- ommercial Gulf Shrimp Boats or CommercialBay- Bait Shrimp Boats, fresh shrimp caught ortaken from the coastal waters of this State, or from salt waters outside of this State and brought into this State without having been previously unloaded in some other State or foreign country. (Emphasisadded) If . . .II It is the opinion of this department that if the activities of the firms in question do not fall within the above statutory def- initions of a "W.loiesaleFish Dealer" or a "Shrimp House Operator," there are no other statutes under which the Commissionis authorized to license such a firm. As you pointed out in your letter, the San Antonio Court of Civil Appeals considereda prior wholesale fish dealers license Honorable H. D.Dodgen, page 3. (ww-1480) statute in the case of State v. San Patricia County Canning Company, 17 S.W.2d 160,,(1929). In that case the court said at page lb2: "The rule is thittthe courts may not extend or give special significanceor an unnecessary or peculiar or strained construction to such plain terms as those employed in order to subject a par-' titular commodity to a tax imposed by the govern- ment. The rule is, rather, that In the interpre- tation of statutes imposing taxes theirprovision will not be extended by implicationbeyond the plain import of the language used, nor will their operation be enlarged to apply to subjects not specifically included therein. . . *' In regard to ,theapplicationof the "WholesaleFish Dealer's License" to the present .situation.you state that the firms in questioff are engaged In "selling shrimp exclusivelyto otherswholesale dealers. This being the case, It is clear that such firms are not selling to "Retail Fish Dealers, and/or ,toHotels, Restaurantsor Cafes and to the Consumer" and are not, therefore,,Wholesale Fish Dealers as de- fined by Article 934a. It is the opinion of this office that the Game and Fish 'CommissYan1s :notauthorized to license the firms in question as "Whole.saleFimalers." Section 3(g) of Article 407513,Vernon's Civil Statutes, which is set out above, provides for a license for those .whooperate a shrimp house, plant or other establishment~forpay. . .' (Emphasis added) .Thewords "for pay" as used 2n ~thestatute are not words of art and must be Interpretedin their usual meaning. The word "pay"as here used is a noun and defined In Webster',sThird InternationalDictionary as "the act or fact of paying or being paid." This dictionary gives as synonyms the words "Wages, Salary, Remuneration." We are unable to find anyTexas cases defining or Interpreting the words "for pay" OCR'Spay." However, the U.S. Circuit Court of Ap- peals, Sixth Circuit cites ,the,Webstersdefinition with approval in Nierotko v. Social Security Board.,149 F.2d 273 (1945). At page 275 the Court said: 'Webster'sInternationalDictionary defines 'pay' as 'remuneration,wa@es, salary' and 'wages' are synonymouswith 'pay.' A search of Words and Phrases and American Jurisprudencereveals that all courts of other jurisdictionsin decisions reported in the above mentioned publicationshave followed this defin'itionwhen such Honorable H. D. Dodgen, page 4. (WW-148C)' an interpretationwas before theme. The previously quoted descriptionof ,financialarrangements" of the firms in question clearly indicate that these businesses buy the shrimp outright,,therebytaking title, and later sell them to wholesalers. The money earned; if'any.,by the firms at the end of an operating period is clearly profit and not wages, salary or pay. Therefore, this.offlceis of the opinion that the operations of the firms that you describe do not come within the definitionof a "Shrimp House Operator" as set forth in Section 3 (g) of Article 4275 (b) and the Game and Fish Commission is not,~authorizedto license them as such. SUMMARY A business firm which purchases%hrimp directly from shrimp boats and then sells the shrimp to wholesale dealers is not required to be licensed as a~"WholesaleFish Dealer" or a "Shrimp House Operator." There,are no statutes which authorize the licensing by the Game and Fish Commlssion of a business~firm so.described. Texas SVS:zt:mkh APPROVED': OPINION COMMITTEE W. V. Geppert, Chairman Iola Wilcox W. 0. Shultz L. P. Lollar REVIEWED FOR THE A!M'ORNEYGENERAL BY: Leonard Passmore