THEATTORNEYGENERAL
OF TEXAS
AUS~N m.TExas
September 19, 1960
Honorable John C. White Opinion Wo. WW-940
Commissioner of Agriculture
Department of Agriculture Re: Application of Article
Austin; Texas 5704, Vernon's Anno-
tated Civil Statutes,
with reference to the
PublicsWeighers Laws in
light of Article 5680
and Article 5693,Ver-
non's Annotated Civil
Statutes.
Dear Commissioner White:
You have requested an opinion of this office con-
cerning the following question:
Is a manufacturer (owner) of a product (bulk cement),
who In the due course of its business, weighs such product In
person and issues a weight ticket or memorandum showing the
weight upon which the selling price of the product is based,
a public weigher as defined by Article 5680, V.A.C.S., when
read in conjunction with Article 5704 and Article 5693, V.A.C.S.?
Article 5680 above referred to reads as follows:
"Any person engaged In the business of
public weighing for hire, or any person, who
shall weigh or measure any commodity, produce
or article, and Issue therefor a weight certi-
ficate or weight sheet, which shall be accepted
as the accurate welght upon which the purchase
or sale of such commodity, produce or article is
based, shall be known as a public weigher, and
shall comply with the provisions of thjs chapter.
The provisions of this article shall-not apply
to the owners, managers, agents or employees of
any compress or any public warehouse in their
operation as a warehouseman. This exemption
shall not apply in any manner to any Texas port."
As defined in this article, a public weigher is either
"any p,ersonengaged in the business of public weighing for hire
. . ..or "any person who shall weigh or measure any commodity,
Honorable John C. White, page 2 (WW-940)
produce or article, and Issue therefor a weight certificate
or weight sheet, which shall be accepted as the accurate
weight upon which the purchase or sale of such commodity,
produce or article is based. . . *lr
The first definition does not apply in this case
since the owner manufacturer in your request is not exacting
a fee for the service of weighing, but does the weighing for
the purpose of determining the purchase price of his product.
Since you state that the owner manufacturer issues a weight
ticket or memorandum showing the weight of the product, we
need only to determine whether the owner manufacturer other-
wise comes within the provisions of the second definition.
Thus, the problem resolves itself into three parts: First,
does "bulk cement" constitute "any commodity, produce or ar-
ticle"? Second, does the term 'person" as used in the statute
include corporations or firms, assuming the owner manufacturer
in your request is a corporation or firm? Third, are the ex-
emptive provisions of Article 5704, V.A.C.S., applicable in
this case?
We are of the opinion that bulk cement falls within
the scope of the term "commodity" as used in Article 5680.
This term has been defined in Attorney General's Opinion O-73
(19391, and among the various definitions cited therein is the
following taken from United States v. Sischo, 262 Fed. 1001,
1005 (1919): "'Commodity' is defined as an article of trade;
a movable article of value; something that is bought and sold."
If the owner manufacturer in question is an individual,
then he Is clearly a "person" as that term is used in Article
5680, and therefore a public weigher as therein defined, If,
however, the owner manufacturer is other than a natural per-
son& then the question arises as to the scope of the term "per-
son as used in the definition. Inasmuch as Article 23, V.A.C,S.,
states that the term "person" includes a corporation unless the
context indica,tesa different meaning, it i.snecessary to de-
termine whether the Legislature intended the term npersonfsas
used in Article 5680 to include corporations or firms in ad-
dition to natural persons.
Article 5680 is derived from Se@t,ion1 of House
Bill 248, Acts of the 36th Leg., R.S., 1919, ch. 76, p0 122,
and the amendment thereto, in Senate Bill 180, Acts of the 37X-1
Leg., R,S., 1921, ch. 86, po 168, which reads in part as
follows:
"All persons, firms, corporatfons, co-
partnerships, or individuals, engaged 4n the
business of public weighing ,forhire, or any
person, firm, or corporation who shall weigh
\
Honorable John C. White, page 3 (WW-940)
or measure any commodity, produce or article,
and Issue therefor a weight certificate or
weight sheet, which shall be accepted as the
accurate weight upon which the purchase or sale
of such commodity, produce or article is 2ased,
shall be known as a public weigher. a 0 .
(Emphasis added.)
It oan readily be seen that the principal difference
between the original Act's definition and the definition in
Article 5680 is the deletion of the underscored language from
Article 5680. We feel that this modification in language
should be considered and given effect in ascertaining the
legislative intent. As stated in 39 Tex.Jur,, Statutes,
B 128, page 241, "The omission of a significant word or pro-
vision from an amendment or re-enactment Indicates a desire
to change the effect or interpretation of the Act, or an in-
tention to exclude the object theretofore accomplished by the
words omitted." We are not able to say that by deleting the
specific Inclusion of a corporation or firm within the defi-
nition of a public weigher that the Legislature intended to
continue to include a corporation or firm within the definition.
Title 93, of which Chapter 6, Public Weighers, is a
part, is titled "Markets and Warehouses", and consists of nine
chapters. Disregarding Chapter 1, which pertains to the Com-
missioner of Agriculture, only one other chapter, Chapter 5,
Qinners and Cotton, contains a definition which makes no spe-
cific reference to a corporation or firm. Article 567qa,
Section 1, In defining a public cotton classerf does not refer
to a corporation OP firm, but only to 'persons', although Ar-
ticle 5666 in the same chapter, in defining "g,fnners",includes
corporations. Both a cotton classer and public weigher are of
such a nature that one utilizing their services must neces-
sarily repose a great deal of trust and reliance on the in-
tegrity and competenoy of the individual actually performing
the service rendered. It is our opinion that the Legislature
intended that such positions of trust should be entrusted to
individuals, over whom control could better be maintained, than
to a ffrm or corporate entity.
The emergency clause of the original laws govern-
ing public weighers, found in House Bill 2448,Acts of the
36th Leg., R.S., 1919, ch. 26, g 20, page 127, contains the
following language which lndioates the purpose of the Legis-
lature in passing the public weighers laws:
"The fact that there is now no adequate law
governing public weighers in this State. and the
Further i;actthat, a-great amount of fraud is
known to exist in the weighing and measuring of
Honorable John C. White, page 4 (W-940)
produce In this State, by parties who are under
no bond and responsible to no authority that
would prevent them from committing fraud, creates
an imperative public necessity. ~ . ." (Emphasis
added.)
It is therefore our opinion that a corporation or
firm cannot ualify as a public weigher within the definition
of Article 5280.
!fhisis not to say, however, that the individual(s)
who actually performs the duties of weighing for the corpora-
tion or firm does not qualify as a public weigher. Obviously,
the term 'person" includes individuals. In addition, Article
5693, which states that "no one shall be allowed to pursue the
business of weighing for the public or grant a certificate or
weight sheet upon which a purchase or sale is made unless he
comply with the provisions of this chapter o " would clearly
bring such employee within the provisions and-requirements of
the public weigher chapter, thus maintaining the control and
supervision which the Legislature intended to impose for the
protection of the public on those who weigh items and issue
weight certificates upon which a sale or purchase is made,
The opinion above reached tha,tthe owner manufacturer,
if a corporation or firm, does not qualify as a public weigher,
but that its employees or agents do, Is not pre-empted by Ar-
ticle 5704, V.A.C.S,, which reads in part as follows:
"Nothing in this chapter shall prevent any
person, firm or corporation from weighing his own
cotton, wool, sugar, hay, grain or pecans in person."
In order for the benefit of this provision to fall
to the owner manufacturer of bulk cement, it would be necessary
to construe the items listed therein as being representative and
not exclusive. Giving Article 5704 the broadest and most liberal
interpretation possible, the items listed therein are representa-
tive of agricul,turalproducts, and clearly bulk cement could
never be classified as an agrieultural product. Therefore, the
provisions of Article 5704 do not apply to the owner manufacturer
of bulk cement.
A manufacturer (owner), other than a natural
person, who weighs bulk cement and j.ssuesa weight
ticket on which the sale or purchase price of such
product is based is not a public weigher as de-
fined by Article 5680, V.A,C,S., but the employee
who actually performs the weighing must comply with
Honorable John C. White, page 5 (w-940)
the provisions of the public weigher laws, and
the provisions of Article 5704,V.A.C.S., are
not applicable to a manufacturer (owner) of bulk
cement.
Yours very truly,
WILL WILSON
Attorney General of Texas
Robert Ii.Walls
Assistant
RHW:bh
APPROVED:
OPINION COMMITTEE
W, V. Geppert, Chairman
John Reeves
Bill Allen
L. P. Lollar
Ben Harrison
REVIEWED FOR THE ATTORNEY GENERAL
BY:
Leonard Passmore