OFFICE OF Y-HE AITORNEY GENERAL OF TEXAS
AUSTIN
Honorable George Ii. Shepp~d
Comptroller of Publla Aacounte
AH8CII:, reus
m6r Sir;
68king vhether or
‘,not oerteln m6t e “bu.lldLng materUle=
~,olthintheM Fe Tar fall. Your lot-
tar rwlda 68
rge group of 1lnlber
vhethep Or not the
c lietsd, and eold
vided that the terma
"The lmber yarda are contending thet %he
sale of the f'olloving mterial, when eald at Ium-
her yard@, vi11 not make them subjeat to the
etorb tax.
Honorable George H. Sheppard, page 2
"1. COOLING SYSTEW :
1-A. COOLING SYSTEM WITH FAN. Representa-
tive materials carried:
(a) Grille, which replaces section of
ceiling in building. A Grille 1s usually
constructed of wooden slate-with outside
wooden frame and sometimes metal is used.
Grilles are constructed on job by car-
penters, also carried In stock.
(b) Pulpboard (such as Kasonlte) and
Lumber for construction of airtight
wind tunnel. One end of this tunnel
1s connected with grille. The wind
tunnel Is constructed on the job and
1s located in the attic of the bulld-
ing.
(c) A special suction type of electric
fan designed for this particular use is
built into the other end of the tunnel.
(a) Louvres or Windows are used to per-
mit air to pass out of building. Lou-
vres are built into the gables of build-
lngs.
(e) Wire, Conduit (either paper or flex-
ible) and Switch are built Into wall
and celling for starting and stopping
operation.
All of the above materials are built in-
to and become a part of the structure.
1-E. OTilERCOOLING SYSTEMS. Representative
materials carried:
Galvanized flat sheets, solder, lnsula-
tion board, such as Masonite or Celotex,
and asbestos paper for the construction
of ducts which are built into walls and
ceilings. Also grilles, pipe and pipe
Honorable George H. Sheppard, page 3
fittings. All of which materials can
be used in construbtion of Other Cooling
Systems. All of,the above materials are
built into and become a part of the struc-
ture.
"2. flEATINGSYSTEMS:
2-A. HEATING SYSTEM WITH GAS FLOOR FIJENACE.
Representative materials carried:
Metal grille replacing section of floor.
Special type of gas burner connected be-
neath level:of floor. Saidburner is n&
useful for any other purpose. Bolts ana
screws for oonstructlon of system. Gal-
vanized Iron izhiela constructed around
Gas Burnex. Ducts, either metal or as-
bestos, constructed to lead from burner
to flue or to ventilating pipe where no
flue available. Thermostat, pipe and
pipe fittings used therewith. The above
materials are used in constructing on the
Job as a part of the structure of a heat-
ing system with gas floor furnace.
2-B. WALL HEATING SYSTEM WITH GAS BURNER. Re-
presentative materials carried:
Unfinished Wood cuff or frame to be built
In between studding or Into opening. Gas
burner. Pipe ana pipe fittings. 811 of
the foregoing materials to be built into
&nd become a part of the structure.
"3. EXHAUST FANS (Kitchen):
3-A. FOR HOODS.. Representative materials car-
ried:
Wood framing with Galvanized flat sheets,
shaped to desired form; also construct-
ed and attached to flue or other ventilat-
ed pipe or duct opening. Special type of
340
Honorable George Ii.Sheppard, pge 4
small electric exhaust fan Is built in-
to hood to force fumes through flue or
ventilated pipe or duct.
3-B.FOR ROOMS. Representative materials
oarried:
Wood or metal frames to be built Into
opening In outside wall. Metal for
shields oonstructed'above opening to -
protect from weather. Screen wire to
cover opening. Special type of eleo-
trio exhaust fan built Into frame.
"4. VENTILATORS:
4-i. VENTiLATORS IN FOUNDATION AND BELOW FIRST
FLOOR LINE.
The purpose of this type of Ventilator
Is to permit a clroulatlon oftair beneath
the floor of the structure to prevent de-
cay, deterioration ana rot of structural
materials; including floors, beneath the
first floor level, and furthermore to pre-
vent destruction of such materials by
termites. Sald Ventilators are now be-
Ing required as part of house conetruo-
tion by F.H.A. These Ventilators replace
a section of the lower walls of the struc-
ture end are built Into the building. ReA
presentatlve materials oarrled: Metal
Lath, Hardware cloth, Poultry Wire, Heavy
Woven Wire, Wooden strips ana metal, oe-
ment or wood grille, together with lumber
used for building frame around opening.
4-B. VENTILATORS IN STRUCTLiRETO DISCHARGE
FUkIES,ODOR AND SEWER GAS,,
Building Codes In Cities require, and
good building practices reoognlze, that
each sewer connection In.a builalng shall
be ventl%ated. Representative materials
carried: Pipe of various kinds, pipe
Honorable George H. Sheppard, Page 5~
fittings, Galvanized Iron flat sheets for
construction of metal ducts, Wood and
Metal Grilles, lead and oakum for connec-
ting pipe, Lumber for framing Grille open-
lngs. These Ventilators are constructed
in Walls, Floor6 and Celling6 and extend
through roof. They,become a part of tk
structure.
4-C. VENTILAtiRS IN ROOF CONSTRUCTION.
The purpose of these Ventilators Is to
discharge hot air which develop6 in at-
tic and roof of buildings. Many types of
ventilators are used for this purpose de-
pending upon character of hoof construe-
tlon.
(a) Louvres, which are used in gablee.
This Ventilator 1s of wood slat oonstruc-
tlon with slats placed on steep pitch to
prevent raln and snow from entering. Re'-
presentatlve materials carried: Lumber
Galvanized metal~and screen wire. uSUd1y -
constructed on Job, butt small sizes also
carried in stock. In all instaTiCe6Louv-
res replace seotlons of walls and become
a permanent part of the structure.
(b) Grilles, @lch are used in Cornice.
In cornice construction where.roof'projects
beyond line of wall, ventilators in the
form or grilles replace sectlons or cornice
and are built Into and beoome a part of the
structure. Rep.resdntatIvematerials are
the same a6 mentioned In the next preced-
Ing paragraph in connection with Louvres.
The grille ventilator In cornice serves the
same purpose as the Louvre.
(c) Metal Ventilators ror R00r Construc-
tion which will not permit hse of Louvrea
or grilles. The purpose Is to dl6charge
hot alr'from roof. Representative material
342
Honorable George H. Sheppard, Page 5
carried: Galvanized metal, ecrewa and
solder, This type of ventilator conatruct-
ed.on order for special type8 of roof: al-
so common designs and.slzes carried In
stock. Use of thI6 type of ventilator
for certain type6 of.roor eliminates neo-
esslty of building penthouse on roof to
obtain ventilation. In all Instances
these ventilators replace section of roof
and become part of structure.
"5. ELZCTRICAL F'U(TURES:
5-A. ELECTRIC WIRING~AND CONDUIT, This refers
to the materials used In the oonstruotlon
of the-building so a6 to provide for cur-
rent from point where same connects with
the structure to and Including the outlet
In the structure. Representative material
carried: Tube6 to Insulate through Jolsts;
Wire, Knobs, Screws, Metal plpe for.con-
dult. Lead covered cable for conduit end
Flexible Cable for conduit; Base, Floor,
Wall and Celling Metal Outlets, boxes or
receptacles; panel boards and switches.
All of the above materlals are built Into
and become a part of the structure.
5-R. ELECTRICAL LIGHTING FIXTURES forming an
integral part of the structure and beoom-'
lng a part of the building or structure.
Such rixtures do no.tinclude Electric Flx-
tures which are made use of by plugging ln-
to outlet or receptaoie end do not Include
light bulbs. These..flxturesare connected
directly with the wiring system of the
structure. RepreSentatiVe IIIateridscar-
ried: Metal, Glass, Porcelain, Wire and
Switches. Such Fixtures are carried in
stock, but In all oases form a part of the
construction and require labor for aasem-
bly and for making a part of the structure.
During recent years Electric Lighting Flx-
tures'are being built Into walls In order
to obtain Indirect lighting and further-
more to create a type of construction where
.
F.. .._
343 .
Ronorable George H. Sheppard, page 7
fixture6 are lnvlalble. These Fixtures
have no use except,ae Building Materials
and they form an important part of the,
structure.
"6. GAS FIXTURES FORMING AN INTEGRAL PART OF THE
STRUCTURE:
6-A. GAS PIPING AND FITTINGS.
Thls refers to the materials used In the
construction of the bulldlng 60 a6 to pro-
vide flow of gas from point where same.
connects with structure to and Including
outlet or cock In the structure. These
materials consist of pipe and pipe fittings.
It 16 usual for said materials to be con-.
atructed in walls and between ceilings and.
floors of the structure.
"7. PLUMBING.
7-A. PIPE AED FITTINGS. .i
These materials Include Sewer, Vent, Water
and Gas pipe (Clay and Metal): together
with fittings. All of these materials are
built into and become a part of the build-
ing or structure. It 1~6usual for said
materials to be.constructed In walls and
between ceilings and floors of the atruo-
ture.
7-B. PLUWSING FIXTURES.
Bath Room Plumbing FiXfJUr66 built Into and i7
becoming a part of the Building or Struc-
ture. Thesematerials Include Bath Tubs, -
Shower Bathe, Lavatories and Commodes, all . I
of which are directly connected with Sewer-
age System, Water System and Vents In a'
permanent manner. .Bath Tubs are usually
built Into walls and fl'oorof bath room
with tile or other wall or floor flnish-
lng material resting on top edge of Bath
Tub and against Side6 of Bath Tub. Shower
Bath6 are usually built into structure by
- -^
- .
Honorable George B. Sheppard, page 8
building three walls;.said walls flnlah-
ed on interior with tile or other suitable
material and with drain built into floor,.
and with door, hinges and bolts. Lava-
tories are of two types, wall and floor.
Wall lavatories are usually oonatructed
by being permanently fastened to wall with
tile or other finishing wall material 8x-
tendlng around edge of Lavatory.. Floor
Lavatories are usually oonstruct.edby be-
ing set on conorete part of floor with
tile extending around edge of base. Com-
modes are usually oonstruoted by being
bolted into floor with water tank bolted
into walls. The above fixtures are’oar-
. rled in stook, but are of no praotloal
use,exoept as building materials rorming
a part of the struoture and as mentioned
are all dlreotly conneoted and tied in
with ‘papes and fittings to .the sewerage _
system, water system ma vents. The OOP-
struotlon.of the above materials Into the
building or struoture forms a substantial
part of the labor necessary in the ereo-
tion of the struoture.
7-C. HOT WATER BEATING SYSTBL-.
. .
The ma&ials oonsist ore.
steel reaervolr
or oontalner permanently.oonnected with.
the water system of the atruoture and
forms an integral part of the oompleted
Hot Waffir.
Fystei for &e building or struo-
ture anp,furthermore oonneoted with Gas
Syste&and Vent i Other ldaterlalsare
pipe adQ~pip8 flttl.iigs.,- ..
7-D. KITCHEN SINKS.
These materials oonslit of metal sinks
which are permanently oonneoted and built
into the btilldlng‘or structure, being bolt-
ed into wall or into drain board oonatruo-
tion. Also directly oonneoted ‘with sewer-
age ‘system,water system and vent, Other
materials are pipe and pipe $lttings.
.
\ i- -
Honorable George H. Sheppard, page 9
-.
7-E. SEPTIC TANKS. , -
Septlo Tanks are used wher&~other sewer-
age Woeal not available. Constructed
by using oement and relnforolng ror oon-
orete type or by using clay tile materials.
Said tanks are conneoted with building with
sewes tile. The materials are carried in
.stook. A substantial amount or labor is
neoeasary in the oonstruotlon of the mater-
lala into a septlo tank. -
"8. CARPENTER'S TOOLS.
These materials oonslst or certain tools
used by the mechanic in the construction
of the building or struoture and are ab-
solutely essential to the use of the mater-
lala.whIch go into and become a part of the
building. Throughout the'hlstory of the
Building Industry, hardware has been dlvld-
e$ into two classes, viz;" Builders Hard-
ware and Shelf Hardware., Builders ha,rd-'
ware lnoludes Carpenters toUs and carried
in Building Material &oaks. .
"4. PAINT BRUSHES.
These materials are essential to the use .
of paint, one of the important building
materials. Paint.brushes oonstltute a
class of material whiah is consumed in the
oonstruotlon of the .bullding or struoture
where palnt'is used. Usually a number or : r
paint brushes are oonsumed in the oomple-
tlon of one struoture or building. Paint
Brushes have been carried in stook and
sol& almost exclusively by Building Mater-
ial Dealers.
"10. SAND PAPXR.
This inaterlalis essential in the oonstruc-
'tlon df a Building or structure, partl-
oularly in the finishing of oertaln sur-
raoes of lumber and is consumed in construo-
tion. It is essential in completing the
.-
Honorable George H. Sheppard, page 10
prooessing of lumber where a smooth sur-
face is necessary and the oonsumpti,onis'
very rapid. Sand Paper has been carried
in stook and sold almost exolusively by
Building Material Dealers throughout the
life of the industry.
"11. BARBED WIRE, WOVENWIRE OF ALL KIND& STEEL
FENCE POSTS AND METAL GATES.
These mater;ialsare all used in the build-
ing of Fenoe Struotures. Building material
dealers have handled materials for building
either wire or wooden fences throughout the
history of the industry.
Light Woven Wire is also used in'the oon-
struotion of walls of poultry buildings
and in stucco wall construction for a oer-
tain type of building and as Ventilators
in walls and cornices of buildings.
Heavy Woven Wire is also used as reinforo-
Ing id concrete oonstruotion and as Venti-
lation material in walls and tiorhioesof
buildings. 4so used in stuooo and plas-
ter wall oonstruotion.
"12. METAL TANK MATERIALS.
These materials consist of flat steel sheets,
either galvanized or black; also oorrugat-
ed sheets., These materials as carried in
stock are not formed~or shaped for tank
.oonstruotion. 'Said materials are used in
the building of stook tanks and out-side
water supplyhstanks. .
"13. WINDNILL PARTS
Representative Materials carried: Steel
angle and flat irons, bolts and nuts for
use in oonstruotion of tower; also lumber
for tower construction. Windmill gears,
Windmill tails, steel fap seotions for Wind-
i
*-
Honorable George H. SSheppard,page 11
ml&l, pipe and fittings, sucker .rods,
couplings, cylinder barrels, valves and
washers. All of the above materials are
used to oonstruot the completed struo-
ture and to become part of water system.
A great number of houses are not oonneot-
ed to a municipal water system, and water
for said houses is obtained from a water
system in which the water is pumped by a
windmill.
"14. PUMP PARTS.
Representative materials oonsist of pipe,
pipe fittings, cylinder barrels, valves
and washers used for constructing pump.
"This department will appreciate your opinion
as to whether a lumber yard selling the items of
material listed above, brings suoh.lumber yard
within the definition of a store under the Chain
Spore Tax Amt."
The Texas Chain Store Tax Law is dodified as Artiole
lllld of Vernon's Annotated Penal Code. Said law prbvides that
every person or firm operating a store shall pay a fee for the
privilege of doing so, and a graduated soale of fees is presorib-
ed, the amount of the fBe for each store depending on the tot@
number of stores operated by said person or firm. A store is de-
fined in Section 7 of the law as follows:
9eo. 7. The term 'store' as used in this Act
shall be construed to mean and include any store or
stores or any meroantile,~establishent or estab-
lishments not specifically exempted within this Act
which are owned, operated, maintained, or controlled
by the same person, agent, receiver, trustee, firm,
corporation, copartnership or association, either
domestic or foreg$n, in which goods, wares or mer-
chandise of any kind are sold, at retail or whole-
sale."
Several exemptions are set out in Section 5,of the law, one of
them being as follower
1,. . . Provided that the terms, 'store,
stores, mercantile establishment or mercantile
.
Honorable George H. Sheppard, page 12 , '
establishments' wherever used in this aot shall not
include: wholesale and/or retail lumber and build-
ing material businesses engaged-exclusively in the
sale of lumber and building material; . . .n
We think that by using the word uexclusively" in said
exemption the Legislature intended that those nwholesale and/or
retail lumber and building material businesses" that engage only
in the selling of lumber and "building material" should come
within the exemption. In construing one of the other exemptions
in the Chain Store Tax Law the court in the case of Standard Oil
Company of Texas u. State, 142 SW. (2d) 519, said:
"We are of the opinion that when the legisla-
ture used the language in the exemption clause 'en:
gaged exclusively in . . . selling . . . petroleum
products' the word 'exoludivelyt was used synony-
mously with 'only' and 'purely.*" *.
Therefore; if any of the materials listed in your letter are not
"building material" in the sense that said term is used in the
statute, and said material is sold in a lumber or building mater-
ial business establishment, or in any other mercantile establish-
ment or store, said establishment or store would be subject to
the chain store tax.
We will endeavor to decide in the case of eaoh of these
materials whether or not it is a Zbuilding material."
Before deoiding each question we will discuss generally
the meaning of the term wbuilding material." There being no stat-
utory definition of said term, we are relegated to the lexico-
graphers, legal and otherwise.
The word nbuilding2 in this statute is used as an ad-
jective modifying the noun ?.uaterial;wbut the adjeotive "build,-
ing" cones from the noun wbuilding.n "The word '*builoing' is
derived from the Anglo-Saxon lbold,t meaning a dwelling." Sauls-
berry v. North Amerioan Refractries Co., 278 Icy.808, 129 S.W. ‘xx
(26) 525; Neekamp v. Huntington Chamber of Commeroe, 99 W. Va. 388~,
129 S. E. 314. Definitions of the word "building," both noun and ?~.
,adjective,are of value to us in determining the meaning of the p
word in this case.
j! 'h.<
.:
n\
Honorable George H. Sheppard, page 13
The word %aterial" in this statute is clearly a noun.
Webster's Wew International Diotionayy, 2nd Ed., Un-
abridged, defined the word "building" as follows:
"That whioh is built, specif.: As now gener-
ally used, a fabric or edifice, framed or construct-
ed, designed to stand more or less.permanently, and
covering a space of land, for use as a dwelling,
storehouse, factory, shelter for beasts, or some
other useful purpose. Buildin in this sense does
not include a mere wall,
d monument hoard-
ing, or similar structure, though designAd for
permanent use where it stand; nor a steamboat,
ship, or other vessel of navigation."
There are very few Texas oases defining the word *build-
1ng.v In the ease of Peterson v. Stolz, (Tex. Ct. 01~. App.) 269
S.W. 113, the court held that a monument on a burial lot was not
a building within the terms of the meohanicsl lien statute, and
the oourt said:
n . In interpreting the word tbuilding,*
in relAt;on to meohanios' liens it has been held
that a 'building' includes only'those structures
whioh have capacity to contain and a?e designed
for the habitation of a man or animals or the
shelter of property. Railway Co. v. Vanderpool,
11 Wis. 119, 78 Am. Deo. 691. . . .-
In the case of Johnson v. State, 96'Tex. Cr. R. 2U.257 S;W.
351, the court held that a cattle dipping vat was not a building.
The noun %aterialn is defined in the case of Oliver
v..State, 110 Tex. Cr. R. 263, 8 S. W. (2d) ,184, as follows:
" . 'materials' include such artioles as
enter inio and form a art of the finished pro-
duct; while 'equipmentP imports 'the most neoes-
sary to enable the contractor to perform the
agreed service, the tobls, implements, and appli-
ances which might have been previously used or
might be subsequently used by the contractor in
carrying on other wdrk of like oharaoter.' . . .n
Honorable.George H. Sheppard, pase 14
We have not been able to find any Texas cases in which
the court discusses the term "building material;" but, as point-
ed out above, there are Texas cases discussihg separately the
word *building" and the word "material.V' However, there are oases
in other jurisdictions in which the term."building material" is
discussed. In the case of Ward v. Kadel, 38 Ark. 174, the court
indicated that "building material*Vwas anything essential for
building any kind of house. (See 12 Corpus Juris Secundum 389).
In the case of Hundhausen v. Bond, 36 Wis. 29, the court held
that excavated dirt that had been piled in the street was not
nbuilding material" unless some person had 'placed it there for
the "purpose of using it in his building." A'correct statement,
according to our view, was made by the oourt in the case of
Schaible v. Board of Adjustment, 15 N.J. Misc. 707, 194 AU.
388, as follows:
wBuilding materials normally consist not only
of lumber, bricks, stone, and iron, but of paints,
varnishes, and many other substanoes used in build-
ing construction. . . .*
A similar statement was made in the case of Lawrence v. Comstock,
124 Mioh. 120, 82 N. W. 808, as follows:
* . In the first place, it is not impro-
bable ihit the term was used to cover other mater-
ial besides Mmber, such as lime, brick, sand,
nails, lath, hair, and other supplies and,arti-
cles designed for building. . . on
The foregoing,oases represent the majority thought on
the question, that is, that nbuilding materials" are limited to
those things that go into and become a part of a building. How-
ever, some oases adopt a broader meaning, as is illustrated by
the oase of Wood Preserving Corporation v. State Tax Commission,
235 Ala. 438, 179 So...254, in whioh the court held that the Leg-
islature of Alabama intended for the term "building material" in
an'e~xeeptionin a tax statute to include railroad oross tiersand
%aterial of all kinds used in oonstruotion work."
As we are convinced that the adjective ubuildingn in '
the term "building material*'has reference to the noun Rbuilding,N
instead of the verb "build,n it is important that we determine
what we are ubuildings". In the case of Trussell v. Gay, 13 Gray
'(MassT) 311, the court said:
Honorable George R. Sheppard, page 15
“‘The word “bulldLn&’ cannot be held to ln-
alude every speclea of erection on land, suoh 88
fenoee, gatea or other like struoturetv. Takan ln
Its broadeet eenee, it can mean only an ereotlon
intended for use and occupation aa a habitation
or for some purpose of trade, manufacture, orna-
Dent, or uee, oonstltutlng a fabric or edifloe,
such aa a home, a store, a churoh, a shed.‘”
In the oaae of City of Conaord v. Morgan, 74 R. H. 32, 64 Atl.
725, the court said:
II. . . all permanent etruoturea Intended to
shelter human belngc! or domeetlo animala, or to
reaelve, retain, or oonflne the goods ln which a
person Qeale, or to house the tool8 or machinery
he wet! or the peraone he employee ln Ns bual-
ness, are commonly called lbulldlnge.~ . . ,”
A almllardeflnltl?n was approved ln the casea,~of Ran&Z1 v. At-
lantld Advertls Servlac, 159 Ga. 217, I.25 8. E. 462, Tovn OS
Union v. Zfller, 9 51 &tee. 467, 118. SOIL
Zurlah General Aooldent & Liability Into,
(2d) 3094
The determlnatlon OS the queatlon, vhat 1s a building,
1s of no greater importance in ths preeent inquiry than the de-
termln8tlon of what is “m8terla.lrn The very e8cenoe of the word
*msteria1,” in the oonnectlon here wed, ia that It mean8 those
simple things that enter into the aonatruatlon OS 8 bulldlng
88 elements of etruaturei The term %8terial" doea not aonnote
8 finlehed or fabricated thin& whether bulldlng OP other strua-
ture. It mean8 those thlnga of whiah the f8brlOated etruoture
la composed, Thle dlstlnotlon IS vhat dlfferentlatee between
the material and the building or strwture. Of ooursei the mat-
erials upon being fabricated do become a part of, and therefore
constitute the struoture, but the fabrioated artlole, whether
house or fixture therein le no longer %tateclaleY in the oomkon-
ly aocepted meaning of that term. It la ELbulldlng or a aoo&lng
system or a heating ayatem or a ventllatlng eyrtem, or a plumb-
lng system, aa the individual fabrication may be. St ia note-
worthy, too, that suoh fabrloated structure of such enuiWrated
ayatema is not itself a building ln any just aense conoerning the
preeent inquiry, but neverthelesa,lt la a fabricated atructuve.
honorable Oeorge 8. imeppard, page 16
machine, or utility, and has oeased to be %aterlal.' The l&en-
tttg of the materials entering into the fabrlostloa haa been lo@&-
consumed--it ie freqwntly aald in the use thereof. Thla, we
think, Is the final teat of the intention of the statute, and
affords the.anewer to your many queetiona.
Many fabricated articles, however, by ookmon we are
such ae ere not only oonvenlent but considered even to be erse-
tlalr to the modern oonoeptlon OS oolniortable hourlng. Thur, the
modern howe la not ready.Sor aatual habitation until it has its
heating’egstem, ita croollng qatem, lte eleotrlo eyrtea, It.8 sever
eystem, lte cooking eyatem, and the like. Thle doer not man,
hovever ., .that such convenienoea or even necerrltler are to beeone
~&&u&l firturea to the reaIlty, for in many if not meet lnetanoea
they are not such real fixturea --but Femain throughout aa per-
sonal property. Thus, the heatiing furnace, and the oooling ap-
paratw, the electric Sixturee, and the lik;e, may be and apa tic+
quently utlllced without becoming attached to, the ~pealty In rueh
vay as to become a seal fixture serving all the vhile the require-
menta of the ovner or oocupant t Certainly, in’~euah oa~~a the
fabricated syetq could not poarlbly be ooneldered bullding~mater-
ial, for th6y have not entereq, into the etruoture OS the hotwe in
any vay vhataoever. geither can it be argued vith a good reaeon
that by beoomlng attaohed to the building In much vay as to be-
oome a ~Sixture to the real estate that they thereby have ,been
geilvanlted Into building materials, for their eaae.ntlal nature
ham not been changed, The prlnaipal atid only..:i!ubstentlal ohange
that qan result from the&r att&ohment 80 a8 to become permanent
real fixture8 Is one of oonvenlence oontrolled largely by. the
vent and demands and the abilltlea Sl.nanolally OS the ovner.
One aan hardly think of any fabricated ryetem, mechine,
:. lnetrument, or utility for the home, that may not be permanently
attauhed to the bulldlng so as to become a part of the realty,
but this Uoee not change the essential nature of the things thus
attached.
From what we have eald, those thinga vhich are useful
only In the fabrication ancl oonatruation OS a building are not
themselves necessarily building materials. Thus, oarpenterta
toole, such aa hammere, aawe,,planee, seendere, polishera, and the
like, are in no sense building materials. They are Implementa
and tools for build-, but they aurvlve their UEB, and unlike
the building materials actually nought into the strucrture they
do not~perieh with their use. Those materials, howevex?, thst are
7.:
,. -
3.5
Ronorable George Ii. Sheppmd, page 17
ooneumed ln their. use ln aonneotlon vlth the oonetruotlon OS the
building are “bulldlng ~t%rl8la,” examples being sand-paper and
paint brushes. Thle dletlnotlon la Illustrated py the oaee OS
Troy Publio Works Co,’ P., City OS KonkezIe, 207'X.Y. 81, 100 X.B.
700, it? vhiah the court said:
“In vlev of vhat vbe *itten SOP #le. oourt ‘.
g Sohaghticoke Povder Co. ‘I. Oroenvloh I J. By. : #;
183 H. Y. 306, 76 H. B. 153, 2 L. R. A. (X.8.)
286:‘1l.l b. St. Rep. 751, 5 Ann. Oaa... 443, there
remains very little to be said In the &see at bar. ‘.” ~,~ .‘.
In the Sohaghtlooke Caee..the plaeintlff Surnlehed ,’ ”
dyne&t% and other explosivea to a oontractor for
we ln the oonetruotlon OS a’railroad,. and then
filed ita l$sn for the unpaid prlos. The Ques-
tion vae vhother these explosives vere materials
withFn the purview OS the statute. Ue decided
that they vere, beoauee they yere not only wed
In the aonetIwtion OS the. work,. but vore liter-. .~
ally ‘used up’ ln Its perfomisncei The dyn.smLte
and povder verb put into the vork end uere ooneum-
ed In the operatlom s ~Thoy vere as mu&h a part OS .‘:’
thee materials the;t~‘vent jato the structure as the
varboua oonetltuente thatloet,thelr separate
identity lnbeoonlng part OS the plaster, cement;
or concrete+. For ati purpoae.oS lllwtrating
this idea ve ealdt ‘The argument that dynamite
la not’ a material., but a’part. OS the oontraetor’s .’ ~’ ‘Y’~:’
plant vhlch, like .piokti end ehovele. or meohanioal :
appLlanoe8, are used in the performmoe OS vork,, :,. .:::l: :+
but ee not ooqsldered ~mterlale Surnlshed vlth- .i~’:~: . :?j’:::,
In the purvl%V .oS the statute, *Bbm to us a- .:.,...“,:.:+
herently unsound; ‘A eteam shovel, an engine ~~),,~_.:!~,.~,;~.~,j,~.,
boiler, pioke; shov'eb, orOvbBpa~ and the Iike
are tools ,&nd appllanoee vhloh, vhlls tieed ln :I:>. ~::::!~,‘!:::..1
.the doing of the York,. eurvlve ite. perfqreienoe ,. : ;;~:.‘;~i::
and remain ‘the- property of their ovner,: Rot so, .: .f .~~’ ‘..~‘.
hovever,. vlth materials that are used up in the ; ~~
performance OS the work, and are thereafter l.nvl-~~ ‘:. tic.J;:
alble :exuept as ‘they survive .in tangible resulte.( -:~’ .,::.
183 R.-Y. 312, 76 Ri.B; 155, 2 .L, R. A,. (R.9.):‘~;‘:‘.;‘:;,~.:.:‘.,
288, 111 Am St. Rep. ,751, 5 Ann. Cae. *43.,The .’.~
ateam shovel in the cae8 at bar did not go into
the vork ae materlal~ It Van a maahine wed on ~‘. ;I,.;.-
the work,’ snot by the ovner but by his leeeee, and ‘;.‘:‘:’
Bonorable Qeorge Ii. Sheppard, page 1.8
it VW returned to the ovner just an It vaa re-
ceived, necessary wear and tear exoepted. It was
not material; either aoaordlng to the deflnltlona
of the lexicographers, or under the decieiona In
other dates where they have lien etatutes eimllw
to our own. . . .*
The eeme reasoning was adhered tQ in the Texas case of
Btone v. Morrieon end Pavers, $294 3. W. 641 (Reversed on other
grounds 298 S. W. 538) in which the aourt saldr
I( The vord *material* means (the eub-
etance’oi &h anfihlng ls’iparde.@ The pile-
driver van itot a eubetanoe OS vhlah the ooncrete
piles were made, but vae an equipment to be used
inthemaklng.. . ,”
In the case of come OS the materials listed in your
opinion Bald materl&le oan be used SOP several ptipoeee, that
le, they oan be used as “building materials” and they can be
used as some other Jclnd OS esate~le38. For example, light voven
wire m,n be used as a “building materl.al’ by using it In the
walls of atuooo buildinga, or 1% can be used ao Chat It vi11
not be a “bullding material ” by oalng It ea a ohioken Senge.
In the oaee of materials that OM be used as “bulldIng nK&eri.alL”
and also'.% non-bullbiag materirle if #Llumber yard ogerata
keege said material in etook lo. order to have a complete StoQk.,
of bullding material” and ln order to Sill “building rmste~lal
purchaeer*r needs It should be atmeldered "btildlng mEter+al"
~vlthln the meanihg of the Texas Obaln Store Tax Lav.~ IS a lum:
her y-d operator has in etook rood-screwa that are appr~pr~rtb
for faetenlng hlngee inside of a house, it would not affect.. the
liability of the operator for ahsin store taxes IS a purohaear
used eald wood-screwa for something other than a ‘bulldlng sat-
erial, * for example, for faetening a “no-hunting” sign to 0
tree.
It la not strictly R question of whether or not a
place ia a lumber yard, &a that term la oommonly understood,
but It 1s a queetion of whether or not the plaoe is ‘engaged
exoluslwly 3.~ the sa.le. of lumber and building material.‘, Hov-
ever, we think it Is apparemt the Leglalature van thinking
of a lumber yard when it pageed this exemption. The only dade
we have found that deeidee whether or not a partioular place
la 8 lumber yard or not within the common understanding of the
Honorable Qeorge II. Sheppard, page 19
~e”s”,~ tp
case of PlanterQe Lumber Co. v. Yells, 147 Miaa. 279,
. The follovlng
. quotation ahove vhat waa eold in the
lumbar yard involved in that oaee, to-wits
WI. . k 75 per oent. In value of all material8
bought and eold by defendant conalated of lumber,
10 per cent. wooden ahtnglee, lath, aaah, door%,
and windova and artlales of like kind, making a
total of 85 per sent. In value of all materials
handled aud aold by defendant aa aforesaid, con-
aiatlng of lumber, e&ah, doors, and rlndova and
articlee of like kind, and the remaining 15 per
cent. conaiatlng of other building materlale, such
ae composition ahlnglea, roofing, cement, lime,
and plaster, and vhat ia oomnonlg knovn aa build-
er’% hardvare, aonaietlng of aaah weights and
oord, pulley%, gratea, nails, door and vindov
hinges, and other building haxdvaxe similar In
kind, and.other Item% of bui+3ing suppllerr and
n&erial not inoluded In auoh artiolee aa lum-
ber, roofing, tithinglee, lathe, aaeh, doora, and
vindowa and aztlolee of like +nd, hereinafter
called ‘other materiale,“~”
Another important oonalderation beera very dlreotly up-
on the proper conatruotlon to give to thla statute. It 1% t&ie:
We think it warnnever intended br the Legislature to perPlit Lum-
ber yarda dealing in building materiala In general liketiae to
deal ln thoae articles involved In the present inquiry--to handle
euoh e??tlole;r tax free; and at the. same time to make those bual-
neea concern8 taxable~ which happed to deal alone in such fabri-
oated utllltiee. Such a law, if It were Intended by the Legia-
lature, might be invalid as a diaoriminetion vithout reaeonable
factual basla for different legislative treatment; but thie ques-
Won need not be decided eince our aoncluelon doea not twn upon
that oonaideratloni
What we have raid here f$nde support in and la in her-
many with our OpinLon Ho. 0-2080, dated Nay 2, 1940, addreared
to Honorable George H. Shepwd, Comptroller and a prior opin-
ion by tbla department, dated Jwwwy 3* 1936, llkevlae addreeaed
to Honorable George II. Sheppard, Comptroller.
e...-_
356
Ronorable Qeorge B. Sheppard, page 20
We will now annweIr your qwationa, keeping in mind
that our anewera are limited to the facts stated by you. We
will endeavor to answer e8oh queatlon by raying "pa' 0~ 'no"
aa to whether the material deaorlbed in thb.queetlon.18 “bulld-
ing material,” within the ae8nlng 0r this rtatute, to-wit I
1. Cooling Syetemar -
1-A. Cooling Syetem with Best ‘Ilo.”
1-B. Other Cooling iyrtemat “are.”
2. Heating 3yatemar -
2-A. ligtpg Byatem with Oaa Floor Furmae I
.
2-B. %iReatlng System with ?aa Burner:
3. ?Zxhawt F&I (?LLtohen)8 -
3-A. For Hoodat 90.’
3-B. For Roomat %O**
4.. Ventilatorar -
4-h. Ventilatiore in Foundation 8nd Below First
Bloor~l&~e: jYea,'
4-B.: ventilators
Fumes, Odor and Sewer Qaet ~_’
4-O. Ventilators in Roof Conatruotlon*’ “Yea.” :
5. EleotrloalPixturear -~
.~,
5-A. Eleotrlo Wiring and Conduit t “Ys%aI:‘y’ ‘( ~‘~,.
:
‘.
5-B. Eleotrioal Llghtlng Fixture%: ‘“Bo.~
6. Gae Fixtures Forming an Integral Part-of the
Struoturet -
6-A. Oaa Piping and Fittingat “Yee,’ -
The roughing in.
Bonorabl? George Ii, Sheppard, page 21
7. Plumbing: -
7-A. Pipea and FIttAngs: *Yea," - the
roughing In.
7-B. Plumbing Flxturea: “l0.’
7-c. Hot Yater Iieatlng Byetams “HO.’
7-D. lUtahen Slnkat 'Ho."
7-B. Septia Tenkar “PO.*
8. Carpenter~a Toola; "lea.!
9. Paint Bruehee: "Yee."
10. Sand Paperr “Yea.”
il. Barbed Wire, Woven Wire of all kinbe, %teel
fence poate and m&al gates: *HO," exaept
that material deeoribed in thla question
that la sometime% used fin the %on%truatlon
of a building and la kept In %tOck in order
to fill auah neede Is bt.aildlq material.
la. Metal Tank IUaterlalar RHO."
13. lilndmill Part%: "Ho."
14. Pump partar Qo."
Ue hope the foregoing opinion anawer8your questions,
and that It will be of value to you in adminlat%ring the T%xea
@haIn Store Tax Law.
~~...
Your6 very truly