Untitled Texas Attorney General Opinion

Honorable A. E. Wood, Chairman Game, Fish & Oyster Commission Austin, Texas Dear Slr: Opinion No. O-1596 Re: Must a Wholesale Fish Dealer have a license for each receiving sta- tion under Article 934a, Penal Code, 1925 as amended. We are pleased to reply to the request made~bg you in your letter of October 18, 1939, wherein you sag: "Before any person in this State shall engage in the business of a '. . . Wholesale Fish Dealer' he shall first procure from the Game, Fish & Oyster Commission a license authorizing him to engage in this business. Under Section 3 of the amended Act it is provlded: ff t . . . 2. Wholesale Fish Dealer's License, fee for each place of business, Two Hundred Dollars ($200.00).' "The pertinent part of Paragraph 11 of Section 3 of the amended Act is as follows: "'11. Place of business, as used In this Act, shall Include the place where orders for aquatic products are recelved, or where aquatic products are sold. . . .' "We havesome fish dealers on the Texas Coast with headquarters in Corpus Christi. They are wholesale dealers within the purvue of the above Act. We likewise have Wholesale Fish Dealers wlth headquarters In Rockport and other places on the Texas Coast. Each dealer purchases a Whole- sale Fish Dealer's License and have it displayed in the'irplace of business at their headquarters. Each dealer has what he calls receiving stations up-.anddown,the coast. Some ~ofthese receiving stations are at Port Isabel, a distance of one Honorable A. E. Wood, page 2 o-1596 hundred and fifty miles from Corpus Christi. At these receiving stations they do not have license displayed. In fact they have no Wholesale Fish Dealer's License for this place of business. They ship fish from saidreceiving stations to points over the State. The fish are not always transport- ed from the receiving station to the headquarters place of business for shipment but are shipped di- rect from the receiving station to the retail deal- er In different sections of the State. The orders are first received at their headquarters and re- layed or transmitted from headquarters to the re- ceiving station and shipped from the receiving station, as above outlined. Some of these dealers purchase fish from independent flshermen and the fish thus purchased are delivered to the so-called receiving stations. "We would like for you to advise us if the re- ceiving station is a place of business as defined in Paragraph 11 of Section 3 'of the above Act. Is it a place where orders for aquatic products are received?" Under the facts given us in your letter, it is our opinion that the receiving station is a place of business as defined in Paragraph 11 of Section 3 of the above Act, which is Paragraph 11 of Section ,3,Article 934a of Vernon's Penal Code, 1925, as amended 1934. In arriving at this conclusion, It was necessary for us to give particular attention to the history of these sta- tutes. On October 16, 1933, House Bill No. 81 (Generaland Special Laws of Texas, Forty-third Legislature, First Called Session, 1933, page 85) was approved and became effective ninety days after adjournment. This Bill provided, In part, on page 86: “Sec. 3. The licensesand the fees to be paid for the same, are hereby provided for in this Act and are as follows: "1 . Commercial Fisherman License, fee Three Dollars ($3.00). "2 . Wholesale Fish Dealer License, fee Two Hundred Dollars ($200.00). "3. (a) Retail Fish Dealer License, fee Three Dollars ($3.00) in any city or town of less than five thousand (5,000) population. ‘ , Honorable A. E. Wood, page 3 o -1596 "(b) .,Retail Fish Dealer License, fee Ten Dollars ($lO..OO)in any city or town of not less than five thousand(5,OOO) and not more than Porty~thousand (40,000) populatfon. "(c) Retail Fish Dealer License',fee Twenty Dollars ($20.00)in.an city or town of more than forty thousand (40,0007 population. 91 Bait Dealer License!,fee Two Dollars ($2.o&;” . . . . II In each of:the above quoted subsections of Section 3, provision was ms@e only for the payment of a certain feelfor a particular lloense. No provision was made for the payment of a fee for each place of business. For instance, subsection 2 of Section 3, provided, "Wholesale Fish Dealer License fee Two Hundred Dollars ($200.00)". and did nbt wovide. ?&Ale- sale Fish Dealer.License fee for.each nlace‘of business, Two. Hundred Dollars. ($200~. .. .ooj". Thus, under this statute of 1933, it would seem that a wholesaler would have been required-to pay only one fee, regardless of the number of places'of busl- ness which he might have, and this was indicated bg.the court in the case of Ex parte Mehlman (Ct. Crim. App. 1934), 75 S.Y. (26) 689. In this case the court said, on page 692: "It Is shown Fn the statement of facts be- fore us that in the city of Dallas there are sys- tems of chain stores. For example, the owner of one system operates a number of places of business in the city. He pays one annual tax for a license: to retail fish, and carries on the business In each of his several stores. The facts further show that relator owns one place of business. URon this sltu- ation the'contention Is predicated that the act is discriminatory:~ Relator is not inhibited by the act from onerating as manv stores in'the cltr of Dallas as he desires under a single retail fish-dealer's license. As far as the law Is Concerned, every re- tail dealer within a given city is accorded equal pri- vileges. It is true that the owners of a system of chain stores in a city might do a greater volume of. business than the owner of a single store. However, ':thismight obtain as between two proprietors each owning a single store." (Italics ours) We would call particular attention to the fact that this case was decided on June 13, 1934. After this case was Honorable A. E. Wood , page 4 o-1596 handed down, and on September 26, 1934, House Bill No. 31 (General and Special~Laws of Texas, Forty-third Legislature, Third Called Session, 1934, page 83, which is Article 934a, Vernon's Penal Code of Texas, 1925, as amended 1934), was approved, and under the emergency clause, became effective as of this date. This bill, which was passed subsequent to the decision of the Texas Court of Criminal Appeals In the case of Ex parte Mehlman, provides, in part: "Section 1. That Section 3 of House Bill No. 81, Chapter 29, Acts First Called Session, Forty- third Legislature, be and the same is hereby amend- ed so as to hereafter read as follows: "'Section 3. The licenses and the fees to be paid for the same are hereby provided for in this Act and are as follows: '1 '1 Commercial Flsherman's License, fee Three Dollars ($3.00). 11‘2 Wholesale Fish Dealer's License, fee for each place of business Two Hundred Dol- lars ($200.00). (Italics &rs) ‘1t3. (a) Retail Fish Dealers' License, fee Three Dollars ($3.00) for each place of business in each city or town of less than seven thousand five hundred (7,500) popula-' tion. v'(b) Retail Fish Dealers' License, fee Ten Dollars ($10.00) for each place of bus- iness in each city or town of not less than seven thousand five hundred (7,500) and not more than forty thousand (40,000) population. . . . . . .t11 AS pointed out, House Bill No. 81, supra, did not pro- vide that a fee should be paid for each place of bus~lness,and under the above-mentioned bill it was possible for a chain of stores, within a city, to pay only one fee regardless of the number of stores operated. This, likewise, would have been true under the above mentioned bill, In regard to its operation as to wholesalers, because Section 2 of House Bill No. 81 pro- "Wholesale Fish Dealer License, fee Two Hundred Dollars and did not include the provision, "for each place . , . Honorable A. E. Wood, page 5 o-1596 The Legislature, approximately three months after the decision in Ex parte Mehlman, amended House Bill No; 81 SO as to make the pertinent subdivisions Include the phrase, 'for each place of business" (House Bill No. 31, General and Special Lawsof Texas, Forty-third Legislature,~Third Called Session, 1934. Article 934a, Vernon's Penal code;l925, as amended 1934L The legislative intent was to require a license to be obtained and a fee paid for each place of business, and this leglslatlve intent is indicated in the emergency clause (Sec- tion 3 of House Bill No. 31, General and Special Laws of: Texas, Forty-third Legislature, Third Called Session, 1934, at page 84), which provides: "The factthat the present law does not re- quire a separate fish dealer's license for each place of business operated by a fish dealer, and the further fact that chain stores under the ex- isting law may operate any number of stores throughout Texas.by paging one (1) wholesale fish dealer's license, and the fact that such a con- ditionworks to the benefit of the chain store, and the further fact that the failure of such original Act-to provide for the posting of such license in each place of business, rehclemithe enforcement of the Act difficult, create an em- ergency and an Imperative public necessity au- thorizlng the suspension of the Constitutional Rule requiring bills to be read on three several days in each House, and said Rule is hereby sus- pended, and this Act shall take effect and be fn force from and after its passage, and It is so enacted." It is true that, in the case of Ex parte Mehlman, the court was concerned only with retail chain stores; however, the Legislature, in its amendment, aid not limit its action to re- tail stores, but in subsection 2 of Section 3 of House Bill No. 81, supra, provided that wholesalers must pay a fee 'for - each nlace of business." It was, then, the manifest intention of the Legiala- ture to require Wholesale Fish Dealers to pay a fee for each place of business. Since this was the clear intent of the Legislature, we must "construe the statute so as to give effect to the purpose ,of the Legislature' (39 Texas Jurisprudence, p. 169, sec. 90); and since this legislative intent is ascer- tained, it "must be given effect if it is legal1 possible to do so(' (39 Texas Jurisprudence, p. 171,~sec. 907 . With these last rules of statutory construction In . . Honorable A. E. Wood, page 6 o-1596 mind, we turn to the definition of "place of business" as set out in subsection 11 of Section 3 of House Bill No. 31, supra, which provides in part: "Place of business as used in this Act, shall lncluae the place where orders for aquatic products are received, or where aquatic products are sold, and if sold from a vehicle, the vehicle on which, or from which such aquatic products are sold, shall constitute a place of business. ." (Italics ours) By this definition, a 'place of business" Is not lim- ited to a place "where orders for aquatic products are re- ceived or where aquatic products are sold. The word "include" in its usual and ordlnarg meaning is a word of enlargement and not a word of llmltatlon. This construction is substan- tiated by the late case of Peerless Carbon Black Co. vs. Shep- pard, et al (Ct. Civ. App. 19381, 113 S.W. (:a) 996. In that case a statute imposed an occupation tax on every person in this state manufacturing or producing carbon black and pro- vided "(f) The term 'carbon black' as herein used includes all black pigment produced in whole or In part from natural gas, casinghead gas, or residue gas by the impinging of a flame upon a channel disk or plate,.and.the tax herein imposed shall reach all products produced in such mannner." (Italics ours) The appellant company manufactured carbon black by a fourth method, not speclfically provided for by paragrapkhi;) of the statute, supra, and paid the tax under protest. brought suit to recover such taxes, contending that they were exempt because the statute did not speclfically mention their method of manufacturing carbon black. In holding for the appellee the court said, on page 997: "'The word "includes" is not, ordinarily, a word of limitation, but rather of enlargement.' Fraser vs. Bentel, 1.61Cal. 390, 219 P. 509, 511, -Ann. Cas. 1913B, 1062. . . . In 31 C. J. 395, 1 3C, it is said that while the word 'including' is susceptible of d.ifferentshades of meaning, 'it IS generally employed as a term of enlarge- ment and not a term of limitation, or enumeration.' The cases cited from numerous jurisdictions sus- tain this text. , . .' Since we follow the case of Peerless Carbon Black Co. , .’ . Honorable A. E. Wood, page 7 O-1596 vs. Sheppard, supra, a "place of business" as defined in sub- section 11 of Section 3 of House BLll No. 31, supra, is not limited to a place -"whereorders for aquatlce products are received or where aquatic products are sold", but includes any place which Is a "place of business". The case of Stephenson vs. Prlmrose (Alabama 18381, 8 Porter 155, 33 Am. Dec. 381, holds on page.287: "Theterm 'business', in common parlance, means that employment which occupies the time, attention, and labor. . . . . And a place of business must be understood to be a place actually occupied, either continually or at regular periods, by a person or his clerks, or those ln his employment. . . . ." In the case of Terry Dairy Co. vs. parker (Sup. Ct. Ark. 1920); 223 S. W. 6, the facts were: The Dairy Company had its domicile andKprlncipa1 of- fice and place of business in Little Rock, Arkansas! They also had a frame building at Razen, Fn Prairie County, on which was painted "TerryDaIry No. 3". "It was apoellant's recelvlng station." (Italics ours) It was the dutgofthe attendant at the “receiving station" to receive the milk sent in to the statton by the farmers. He was not paid to sollcFt anything, "He was to weigh up the farmers' milk, put Ft in cans, and ship It to appellant at Little Rock. . . .'I. It was the duty of the attendant at the receiving station to operate a cooling unit at the station; and to receive milk brought ,to the station, but he had nothing to do with firing the price; the farmers would write to the appellant at Little Rock asklng what they were going to pay. In holding that this receiving station was a "place of business", and there- fore that servl.ceon the agent was valid service on the ap- pellant, the aourt said: "The Pacts of the present case show that the appellant was maintalnlng at the town of Rasen a place where it was conducting a well- defined lines .oP Its business. The appellant, as Ft.9name Implies, Is engaged in a business In which a supply of milk is Indispensable. For its convenience it had a building on the railroad equipped with machinarg, which it des- ignated as its plant No. 3. This building hacl in it a desk which the agent in charge used. in making daily reports of the business. The agent was employed on a salary. The building was Honorable A. E. Wood, page 8 O-1596 equipped with the necessary machinery for cool- ing the mtlk, and the business of the company was that of obtaining Prom the farmers in that locality a supply of milk to be shipped to Its principal place of business at Little Rock. The bullding was duly equipped and appointed, and the agent was supplied with the necessary material for successfully conducting that part of appellant's business. After ascertaining that the manifest intention of the Legislature was to require wholesale fish dealers to pay a fee for each place of business, and, since the word "Include", under the authorities, is not a word of limitation or enumera- tion but rather one of enlargement, under the usual and ordl- nary meaning of the phrase "place OP buslness" (and in line with the cases of Stephenson vs. Primrose, supra, and Terry Dairy Company vs. Parker, supra), we are of the opinion that the receiving stations of the Wholesale Fish Deal~ers,which you describe In your letter of October 18, 1939, are places of'buslness wlthln the purview of the House Bill No. 31; Gen- eral and Special Laws of Texas, Forty-third Legislature, ThlM Called Session 1934; Vernon's Penal Code, 1925, Article 934a, as amended 1934.. Yours very truly ATTORNEYGENERAL OF TEXAS By s/Walter R. Koch Walter R. Koch Assistant By s/Harry Shuford Harry Shuford RS :GO:wc APPROVED NOV 17, 1939 s/Gerald C. Mann A!iTORN?XYGENERAL OF TEXAS Approved Opinion Committee By s/BWB Chairman