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