Hon. George H. .Sheppard Opinion No. O-2176
Comptroller of .Public Accounts Ret Article 7047, suly ‘
Austin, Texas 2 Revised Civil
SCatutes.
Dear Mr. Shepparar
We beg to acknowledge receipt of your letter. Of
April 4, 1940,‘requesting an opinion from this department
as follows, to-wit8
“This Department has been asked ,for an
opinion as to whether or not a person sollcit-
lng orders and delivering patent medicine from
house to house in his home town or city ana
not outside the town or city limits of such
city would come within the definition of an8
be subject to the tax as a traveling vendor un-
der Article 7047, Subdivision 2, Revised Civil
Statutes.
“The question presented appears to be a
question of whether such person would be con-
sidered as a traveling person when he confines
his solicitations and deliveries to the limits
of his home town.
*Will you kindly advise me whether suah
person would be subject to the tax.”
Subdivision 2 of Article 7047$ Vernon’s Civil
Stiatutes, cited by you, reads as follows8
llKcom every traveling person selling patent
or other medicines, fifty dollars, and no travel-
ing person shall so sell until said tax is so.
paid. This tax shall not apply to commercial
travelers, drummers, or salesmen making sales or
soliciting trade for merchants engaged in the sale
of drugs or medi~cines by wholesaleoN
Your inquiry involves construction of this statute,
and the construction of the statute involves in turn the mean-
ing of the term “traveling person” selling paterit or other
medicine s .
.. -
Hon. George H. Sheppard - page 2
The construction involves further the nature of
the thing taxecl.
The term wtravellng person” is not one of fixed
meaning. ~There is latitude for construction. The sense In
which It Is used by the Legislature determines Its meaning
in any ‘statute., In asaertaining that sense the entire con-
text of the statute, the end sought to be attained/and the
associated words in the Act, will be looked to.
~From a consideration of the ~statute It is obvious
the purpose of the Legislature was to tax those merchants,
vendors, physicians and peddlers who carry on their business
from, place to ,place other than in or’ at its established
place or ,headquarters. Such manner of business is the oppo-
site of having,a definite, fixed place of business. It
therefore follows that the extent, the distance or the fre-
quency of the traveling has nothing to do with the~question.
.These are mere differences of degree and not of kind. Thus,
a merchant or vendor’of patent~medlclnes, or a clock ped-
dler’.carrles onhls business by going from place to place
other than an established place of business; he Is a trav-
eling merchant, vendor or peddler,, as the case may be, wheth-
er his trips take him beyond the limits of his own town
city, precinct nor county or not. (Andrews vs. White, 33 Me.
3881.~
We ,eocordingly ad,vise you that a person soliciting
~oraers and delivering patent medicine from house to house in
his home town or city, and not outside the ,town or city lim-
its, would come within the statutes and be subject to the tax.
We think this is true whether the vendor Is selling
his own medicines or those of another on consignment.
We have not found another statute identical with
our own and the decisions construing different statutes are
of littie value, except by way of analogy.
The case of L. B. Price Co. vs. City of Atlanta,
31 6.E. 619 distinguishes between “traveling salesmene and
‘lcanvassers.n The one makes sales, whereas the other soli-
tits orders and sends them to the house which makes the sales.
Martin vs. Town of Rosedale, 29 N.R. 41d, defines
the term *ItravelIng peddler”; showing that he Is in legal ef-
feet a salesman on his own and not a mer(r agent or canvasser.
P,egues,’ Tax Collector, vs. Ray,, 23, so. 904, cleclaresr
Hon. George H. Sheppard - page 3
“A traveling vendor then is one who carries
about with him the articles of merchandise which
he sells; that is to say, the identical merchan-
dlze he sells he has with him and delivers at
the time of sale. His vocation is quite dlffer-
ent from that of the drummer, who carries only
samples of his wares as sxhiblts, and takes or-
ders for the future delivery of merchandise of
their kind and quality, or of similar kind and
quality.”
These definitions and distinctiOns, however, are
of little value In the present inquiry, since, as we have
shown, our statutes contemplate a tax upon the traveling
vendor, whether engaged in selling his own medicines, or
those of another, upon an agency or consignment, where such
sale Is one of retail. This is made clear by the provision
of subdivision 2 that “this tax shall not apply to commer-
cial travelers, drummers, or salesmen maklng sales or soli-
citing trade for merchants engaged in the sale of drugs or
medicines by wholesa1e.n The exemption of such sales or
solicitations s exclusive as to exemptions,
since it is t e of statutory construction
that exemptions are strictly construed and may not be en-
larged by construction. The effeot of exemption sales and
solicitations by wholesale is to leave within the statute
of taxes solicitations and sales at retail by merchants en-
gaged in the sale of drugs or medicine. Their business
must be carrier on at their established stores or places of
buslne ss.
Trusting this will have answered your questions
satisfactorily, we are
Very truly yours
ATTORNEY GENERALOF TEXAS
By /s/ Ocie Speer
Ocie Speer, Assistant
APPROVED APR 16, 1940
/s/ Gerald C. Mann
ATTORNEY GENERAL OF TEXAG
~APPROVED:
OPINIONCOMMIITEE
BY: BWB, CHAIRMAN
OS-E&wb