NO. 3084
A &asoline pump, which is a mechan-
iS2 Or machine adaD%-d to measure and de-
liver liquid by v0itm. graduated in
unites of measure other than the standard
units of liquid measure provided for In
Article 5732, Revised Civil Statutes,
.1925, i.e.. the standard gallon an& its
parts derived by continual division by
the number two, is in violation of the.
civil and criminal weights and measures
laws of Texss andmay note be legally
used in commercial transactions in this
State.
OFFICE OF ATTORNEYGXK2RAh
September 26, 1939
Honorable W. S. Bossey
Chief of Vielghts h 'dleasures Division
Department of Agriculture
Austin, Texas
Dear Sir: Opinion No. Oil025
Re: Can a gasoline pump which Is
a mechanism or machine adapt-
ed to measure and deliver
liquid by volume, and which
is graduated in units ot
measure other than those
specified in Article 5732,
Revised Civil Statutes, 1925,
be le lLy used in convaer-
clal &" ramactions in this
State?
We are in reoeipt or your request for an opinion
of this department on the following question:
T/e understand Worn Article 5732
that liquid capacity measures used in
this State must be of one oi the capa-
cities specified therein and we re-
spectfully request your opinion as to
whether or 'not a gasoline pump which
is a mechanism or machine adapted to
measure and deliver liquid byvolrrme
and which is graduated in units of
measure other than those specified in
Article 5732, namely; l/lOth gallon,
can be legally used in commercial
transactions in this State."
Honorable W. 6. Bussey,September 26, 1939, Page 2
A comprehensive appraisal of the statutory law
of Teraq~on weights and measures his necessary in order to
answer your inquiry.
Article 5705 through Article 5735, with amend-
ments, Vernon’s Annotated Civil Statutes, and Article 1035
to Article 1048, of the Revised Criminal Statutes of 1925,
comprise the bulk of the law of this State in respect to
this subject.
Article 5712 of the Revised Civil Statutes of
1925 provides:
Y’he standard weights and measures
received from the United States under a
resolution or Congress, approved June
14, 1936, and such new weights and meas-
urea as shall bye received from the United
States as standard weights and measures
in addition thereto, or in reneml there-
of ,. and such as shall be procured by the
State ~ln conformity therewith and certi-
fled by the Bureau of Standards, shall
be the State’s standards by which all
state and municipal standards or weights
and measures shall be tried, authenticat-
ed, proved and sealed.”
The first sentence of Article 5730, Revised Civil
Statutes of 1925, reads as follows:
“The standaid of weights end meaad
ures adopted and used by the Government
.oi the United States is hereby declared
the legal standard or weights and meas-
ures or this State; . . . ”
The above Articles clearly indicate that the
standard weights and’measures, of the United States are
adopted by the State or Texas.
It is so well recognized as not to require proof
that the wine gallon of 231 oubic inches is the standard of
liquid measurement adopted by the Federal Government. The
standards of the customary weights and measures furnished
to the States un&er authority of the joint resolution of
Congress of June 14, 1836, comprised:
33 avoirdupois weights,‘irom 50 pounds
to 0.0001 ounce
27 tror weluhts. frcm 1 hound to 0.0001
obce - .
.A yard measure with matrix
5 liauid caoaaitv measures, rmm 1 aal-
lon to l/2 pint lUnderscoring ours.)
A halt.abushel dry ca-pacity measure
At this time Texas was not a state, and did not
receive gratis a set of the above standards of the custom-
ary weights and measures from the Federal Government. How-
ever, the first Legislature of the State oi.Texas enacted
in 1846 a law authorizing the Governor to procure and heve
oopied for the benefit of the several counties of Texas a
full set of weights end measures in conformity to the stand-
ards now used ‘and adopted by the Government of .the United
Honorable W. S. Bussey;September 26, 1939, Page 3
States, and this Act provided for the distribution of copies
of said set of standards.
Section .l of the Act of 1646 rsads as follows:
“BE IT ENACTEDBY THE LEGISLAlVRE
-OF T.HiZSTATE OF TEXAS, that the Governor
be, and he 1s hereby authorized to pro-
OUI-8, at the expense of the State, a set
of. weights and measures, in conformity
with the standard adopted and now used
by the Government of the United States,
and to place the sams under such care
and at such suitable and cmvanient
place as will, in his opinion, most ei-
fectually accomplish~ the object herein-
after axpressed.”
Seotion 4 of the same Act provides:
“RR IT FCRTRERERACTED. that the
standard of weights and measures adopt-
ed and now used by the Government of
the United States be and the same is
hereby declared the only legal stand-
ard of weights and measures for this
State.”
From the beginning of the history of this State,
the only legal standaX& of weights and measures have been
the standards of weights and measures of the Qnited States
Government. In respect to measures of liquid capacity, the
law has provi~ded that liquid ‘~measures shall be in terms of
the United States gallon, 231 cubic inches,~ and its austom-
ary subdivisions, i.e., half gallon, quart, pint, half
pint, gill, and fluid ounce.
Article 5724, Revised Civil Statutes, 1925, re-
quires that persons, iinns, corporations and associations
of persons using or selling instruments and mechanical de-
vices for weighfng or measuring have the same approved and
sealed by sealers or weightsand measures. The ‘langusge or
said Article is as follows:
Vvery person, firm or corporation,
or association of persons, using or keep-
ing for use, or having or offering for
sale, waights, scales, beams or measures
of any kind, instruments or mechanical
devices for weighing or .measuri.ng. and
stools , appliances- and accessories con-
nected with any or all of stpDh instru-.
ments or measurements. within this State,
shall cause the ssme to be sealed and
marked by the sealer of weights end
measures as to their correctness, and
no instrument shall be sold for the pur-
pose of weighing or measuring unless it
shall bear the seal of the inspector of
weights and measures as to its correct-
ness. (Id.)”
Before the sealer, deputy sealer or inspector of
weights and xeasures can approve and seal an instrument of
mechanical device for weighing or measuring, it is hiss duty
Honorable W. S. Bussey,September, 26, 1939, Page 4
to see that said instrunent or mechanism confol?as with the
standards~of weights and measures of the State of Texas. It
will be noted that.the above quoted Article provides that:
,". . . no instrument shall be sold
for the purpose of weighing or measuring
unless it shall bear the seal of the in-
spector of weights and measures as to
its correctness."
Article 5727. Revised Civil Statutes, further de-
fines the duties of a sealer, deputy sealer, or inspector
of Weights and measures in respect to weights and measures
and weighing or measuring instruments, as follows:
"'Xhenever a sealer, deputy sealer,
or inspector of weights sad measures
compares welghta and measures, or weigh-
ing or measuring instruments and rinds
that they correspond, or causes them to
correspond to the standards, he shall
seal or mark under his name such weight
or measure or weighing or measuring in-
strument with an appropriate device
showing that the weight or measure, or
weighing or measuring instrument is cor-
rect, and the date of the inspention,
which device shall be placed so as to be
easily seen. He shall condemn and seize
and may destroy Incorrect weights and
measures and We.ighiDg and metISUring in-
strunenta, which in his beat judgment
are not susceptible of repair. but any
weights and measures, or weighing or
measuring instruments.wbioh shall be
found to be incorrect, but which, in
his best judgment are susceptible of
repair, he shall cause to be marked
with a tab or other suitable device
with the words 'Out or Order' . . . "
In establishing the.legal standards or WehghtE
and measures for the State of Texas, the Legislature in
the Acts or 1919,~page 232,, enacted Article 5730 (length
and surface); Article 5731 (avoirdupois and~troy weights);
Article 5732 (liquids); and Article 5733 (solids).
In this opinion we are interested in the atand-
ards for liquids of theState or Texas.
Article 5732, Revised Civil Statutes, 1925, pro-
vides:
"The units or standards of meas-
ure or capacity for liquids rrom which
all other measures shall be derived
and ascertained, shall be the standard
gallon and its prta designated in this
chapter. The barrel shall constitute
thirty-one and one-half gallons and
two barrels shall make a hogshead. All
other measures or capacity~for liquid
shall be derived from the liquid gallon
by continued division by the number two,
so as
>
pints, half pints and gills." (Under-
scoring ours. )
Konorable M. S. Bussey, Septeiuber~26, 1939, Page 5
Construing Articles 5712, 5724, 5727, 5730, and
5732 together. we readilr ascertain that the State or Texas
hasado$ed as its standards of weights and measures the
standard weights and measures of the United States Covern-
ment . In respect to liquid measures the standards are the
gallon, hair gallon, quart, pint, hali pint, gill, and the
fluid ounce. Under the civil statutes all instruments or
mechanical devices for measuring liquids to'be used in com-
mercial transactions in the State of.Texas must confom
with these standards before their legality is established.
As a matter of public policy, the protection of the public
demands the conformity of all instruments or mechanical
devices for measuring to check with the recognized and-law-
ful standards. The State and municipal inspector, before
approving and sealing commercial instruments or mechanical.
devices ior measuring liquids, must compare them with the
standards, and unless they are in conformity the official
seal or approval is not placed thereon. The law of the
State of Texas does not recognize any auch~instrument or
mechanical device for measuring'liquida which c'annot be
tested by comparison with the standard measure of this
State.
In Article 1037a, of the Revised Criminal Stat-
utes of 1925, it is pmvided that:
"The term 'false weight or measure,
or weighing and measuring devices,' shall
be construed to mean any weight or meas-
ure which does not conform to the United
States standards of weight or measure s
any weighing or measuring device which
does not give correct results or is ma-
nipulated to give inoorrect results in
terms of United.Statei standards of
weight and measure.” (Underscoring ours.)
According to the above definition, a measuring-
device which does not oonrorm to the standards of measure
is a "false weight on measure".
Article 1037 of the Revised Criminal 8tatutes
makes it a misdemeanor for a person to "offer or expose
ior sale, sell, use~or retain in his poaaeaaion any false
. . . measuring devices, in the buying or selling or any
'.conmodity or thing, etc.," and makes such offense punish-
able. by fine. It reads as hollows:
"Art. 1037. False weights and meas-
ures. - Anypersonwho,byhimeelforby
his servant or a~gent of another person,
shall offsr or expose for sal'e, sell,
use or retain in his possession any
false weights or measures, or weighing
or measuring devices, in the buyinp. or
selling of any commoditv or thine. or rn
calculating or measurins service, or in
the determination of weight or measure
when a charge is made for such determi-
nation, or&o shall dispose of any
condemned scales. weiuhts, measures or
weighing or measuring-devices contrary
to law: or who shall sell or offer or
expose-for sale less than the quantity
he represents of any commodity. thing
or service, or shall take or attempt
Honorable w. S. Bussey, September 26, 1939, Page 6
to take more than the quantity he rep-
resents of any commodity, thing or aer-.
vice, when, as the buyer or weigher of
any commodity, he furnishes the weight,
'measure, or Weighing or measuring de-
vice by means or which the amount of
any cosumdity, thing, or service is de-
termined; or who shall sell or offer
ior sale, or use or have In his possea-
alon for the purpose of selling or us-
ing, any device or instrument to be
used to or calculated to ralaify any
weight or masure; shall be guilty or
a misdemeamr, and shall be published
by a fine or not less than $20.00 or
more than $100.00 upon the first oon-
vlction in any court of competent jur-
isdiction; and upon a second or subse-
quent conviction in any court or com-
petent jurisdiction he shall be pun-
ished by a fine of not less than $sO.OO
nor more than $200r00.w (Underscoring
ours. )
It is also unlawful for a sealer or inspector 0r
weights and measures to approve any weight, measure, bsl-
anoe, or apparatus before testing and making the same con-
ion with the standards of the State. You are referred to
Article 1041 of the Revised Criminal Statutes or 1925, which
provides:
"Any sealer, deputy sealer, in-
spector or local sealer appointed un-
der the prwisions oi~law, or QiECharg-
ing the duties Of a sealer of~weights
and measures lnthla.State, who~ahall..
seal any weight, measure, balance or
apparatus. before testing and making
the. same condom with the standards of
the State or who shall condemn any
wei ht, measure, .balance or apparatus
wit %out first testing the same, shall
be fined not less than twentpfive nor
more than two hundred dollars, and
shall be lau.uediately suspended rmm'or-
fice."
Article 5732, supra, plainly and unambiguously
provides that the standards of measuraa of capaoitia for
liquids in the State of Texas are the gallon and subdivi-
sions thereof derived by continual division by the number
tvm: Half kallOn, qUaI%, pint, half pint, gill, and the
ounce. It enacts in the law of Texas the binary submultl-
ple system of liquid measurement.
If a liquid measure designated l/lOth or a gallon
appeared on the market to be used. in colmaercial transao-
tions, it would plainly conflict with the Mational and State
standards of liquid measurements. Under' Article 1037a. Re-
vised Criminal Statutes, it would be a 'false weight or
measure * ; and under Article 1042 or the Revised Criminal
Statutes any aealer.or inspector who approved this measure
would be subject to ,a fine and suspension from office, since
said measure does not conform to any standards or liquid
measurements of the State.~ The set of standards ot liquid
measurements of the State doestnot include a l/lOth or a
an7 1-n a*.anaaT-rl. ~Cnnaa”,Iant.l D. It. wn,r,rl hn 3nmn..l%.~ - +-
Honorable W. S. Bussey, September 26, 1939, Page 7
compare such a measure with a State standard. The use or
such a measure In c-rce and trade would break down the
State's standards or weights and measures. Its lllegallty
is unquestionable in view of the provisions of the above
quoted statntea.
The same reasoning would apply to any commercial
instrument or measting device dispensing liquids to the
public in l/lOth Or a gallon denominations.
A gasoline pump Is a mechanically operated liquid
measuring device. A mechanically operated liquid'measurlng
device has been further deaignated~ as a mechanism or machine
ada ted for measuring and delivering liquids by volume. See
Nat Ponsl Bureau of Standards Handbook H-22, 1937, page 39. .,
There are two types or gasoline pumps on the mar-
ket today - non-cbmputing and computing.
It is clear that a non-computing pump whose scale
or dial is graduated in decimal units or measurement, and
by means of which the operator or vendor makes sales in the
amount of l/lOth of a gallon, or more, to the public, vould
be a direct violation ot the standards of measure in this
State, and a violation of the above quoted Texas law. As
we have attempted to show, a sale of l/lOth of a gallon of
any liquid by measuring device in commercial transactions
affecting the unsuspecting and inexperienced public is il-
legal in Texas, since it plainly conflicts with the atand-
ards of measures of this State. Article 5732, supra, pro-
vides that the break-down or a gallon shall be into binary
submultiple divisions. Liquid measures and liquid measur-
ing devices based on the binary submultiple system can be
checked for coniormity.with the State and National stand-
ards of,meaaurea. Since the policy behind all weights and
measures.legislation is the achievement of- uniformity in
weights snd measures and the protection of the public irum
false and fraudulent weights and measures, the Weight% and
measures statutes of this State prohibit the use or selling
of any instrument or devioe for weights or measuring which
does not conionn to the standards.
Non-computing gasoline pumps dispensing liquid
gasoline in decimal aubdiviaions of a gallon are'clearly
illegal in this State, and have been barred by the Weights
and maasures Division or the.Department of Agriculture un-
der authority or the above quoted statutes.
The other type of gasoline pump is the mechanical-
ly computing instrument. The customer may purchase the de-
aired gasoline by stating the amount he desires in terms of
gallons or binary submultiple divisions thereof, or by ask-
ing ror a certain sup of money's worth of gasoline. Such
gasoline pumps have a money value graduation scale, and al-
so a.quantity graduation scale. If the scale or dialdesig-
nating quantity is calibrated ln'decimal subdivisions of a
gallon, thele is no way ior the inqectors or sealers of
weights ati measures to compare the amount sold and pur-
chased with the legal standards of the State or Texas. The
quantity designations Of the pump ars Mt in legal teIW,
since decimal graduation cannot possibly be made to compare
with the standard set of weights and measures of the State
of Texas. Where a vendor of gasoline sells his commodity
by tenths of a gallon, he is absolutely infringing the law
or weights and measures and jeopar$izing the enforcement or
Eonorable W. S. Bussey, September 28, 1939, Page 8
this law and the upholding of the standards of the State.
It follows that Article 5732, supra, and all related Artl-
cles above quoted authorize only a graduated scale in
units of measure for liquids based on binary submultiples
of a gallon. The fact that the scale must be graduated on
the binary submultiple system does not mean that other
amounts of gasoline based purely on a pre-determined price
scale may not be dispensed from said gasoline pumps. bhile
the quantity designation of the scales and dials is requir-
ea to be in legal terms, ire., gallon and binary submJlti-
plas thereof, still the price scale on the:pumptmight indi-
;,";; that sn indeterminate amount of gasoline is being
. It is only where the customer.elects to purchase by
quantity that he is entitled nnder the law to the rotec-
tion of the standards of measures of this State. !h e prln-
clple or the computing pump is not herein involved.
In this respect the statutes or the State of Ohio,
and the regulations or that Statepertaining to gasoline
pumps, are illuminating.
Section 5412 of the Ohio Weights and ldeasures Law
provides:
"The unit of standard measure of oa-
pacity for liquids, from which all other
measures of liquids shall be derived and
ascertained, shall be the standard gallon,
and its parts. furnished this State by the
Government of' the United States."
The parts furnished the State of Ohio by theUnited
States, and referred lx in this Section are, of course, the
standard gallOn. half gallon, quart,~pint, hali pint, gill
and ounce.
Section 4 of the Regulations-or Liquid Measuring
Eevic es, such as gasoline pumps of the State of Ohio, reads
as follows:
"Liquid measuring devices shall
have the fOllOV&ng discharge capaoi-
ties per stroke or per cyole or the
primary indicating elements, and these
only:
"One gallon; a multiple or the
gaUOn; two and.one-half gallons; or
a binary submultiple of the gallon,
that Is, the quantity obtained by di-
9iding the gallOn by'the nomber two
or a power or the number two: Pmvid-
ed, however, that a devlbe may be con-
stntcted- to deliver other.amounts than
the above, corresponding to predeter-
mined money values at a definite price
per gallon, but in such oases either
the device shall be so constructed
that the price.per gallon at which it
is set at any time will be clearly in-
dicated to the customer by automatic
means or this price shall be shown by
means of a sign aonsplcuously display-
ed on the device."
Honorable W. S. Bussey, September 26, 1939, Tage 9
In the State or Ohio, scales on gasoline -pomps,
whether computing or non-computing, in terms Of decimal sub-
divisions of a ge.llon,are pmhiblted. The scales nust be
graduated in binary submultiple divisions. although. as may
be ascertained from reading Section 4 Of theDegulations,
a customer may designate the amount of gasoline he wants by
price, ln which case it is possible that ha' obtain an amunt
of @SOline not in conformity to the standard but correspond-
ing to a pre-determined money value at a definite price per
gallon. The customer, however, in this instance does not
purchase by measure but by price designation. The law does
not forbid such a purchase, but simply requires that when a
purchaser bdys gasoline by quantity or by measure, such
sales and purchases shall be nade by measuraments corres-
ponding to the standards of the State.
The Distriot of Columbia prohibits decimal subdi-'
visions of a gallon on the scales or dials or its gasoline
Pomp=. Section 18 of 41 Stat. Ch. lI8, p. 1217, provides:
"That the standard liquid gallon
shall contain 231 cubic inches; half
gallon 115.5 cubic inches; the quart,
57.75 cubic inches; the pint, 28.875
cubic inches; the half pint, 14.437
cubic inches; the gill, 7.218 cubic
in&es; the fluid ounce, 1.8 cubic
inches; and no liquid measure ot other
than the foregoing capacities, except
multiples of the gallon, shall be deemed
legal liquid measure in the District or
Columbia."
Xe heartily agree with the following statement or
the matter made,by George E. Doberts, Superintendent, Keights,
Pleasures; and~lLarlcets, District of ColumSia in a letter
dated August 3, 1939, to Hr. W. S. Dussey, thief or :elghts
Tyleasures Division, Department of Agriculture, Austin,
:
"As a matter of tact, there is
no such thing known in Weights and
measures anywhere, or in any arith-
metic published or used in any school
or college, or any other place, as a
tenth.of gallon maasure.~ pumps grad;
uated in tenths of gallons appear to
have been devised by manufacturers
with a view to having gasoline 8016
according to money Value rather than
according to measure. SO tar a8 I
have heard, no weights and measures
inspector anywhere uses liquid test
measures of tenth gallon capacities,
or multiples thereof. According to
standard measures, no proper test can
be made of pumps graduated in tenths
or gallons to determine their correct-
ness."
In conclusion, it is the law of Texas that all
measures ma measurl devices for liquids used in commar-
cial transactions con2 arm to the standards or Measure ot
+.FtoSat e . Such measures and measuring devices as do not
and cannot be made to confona, are illegal, can-
not be Approved by sealers, and violate the civil and criml-
Honorable W. S. Bussey, September 28, 1939, Page 10
nal laws. The standards of liquid measurements are the
gallon, hair gallon, quart, pint, half pint. and giII,
accoidfng to Article 5732. Mechanisms or machines adapted
to measure and deliver liquids by volume are not excepted
from conforming to the standards. They are subject to b+-
lng compared with the standards. Since the State's set br
standards for maasurlng liquids does not include a l/lOth
or a g-On standard, it is impossible for.any device which
purports to sell liquids in less thsn one gallon denomina-
tions like l/lOth of a gallon to coniorm to-the State's
standalds. Such an instrument with decimal graduations on
its scale or dial is illegal, ii used in cormnercial trans-
actions in9olvlng the public. Since the standard unlts or
measure are the gallon and binary submultiple subdivisions
thereof, sales of liquids must be made through mechanical
measuring devices which dispense the liquids in allotments
based on the statutes. To pennit sales b$ the l/lOth gal-
lon in such devices would undermine and break down the en-
tire system of measures of this State which are designed
to protect the public from all rraudulent mmsurements. It
is a matter of public policy, as well as Texas law.
We have given careful consideration to the provi-
sions of Article 5736, Revised Civil Statutes, 1925, which
reads as follows:
"AJl contracts hereafter to be exe-
cuted and made within this State for any
wrk to be Qne, or for anything to be
sold, delivered, done or agreed for, by
weight or measure, shall be construed to
be made according to the standard weight
and measure ascertained as hereinbefore
provided, unless there is an express con-
tract to the contrary. I maki d-
lustment~~ of weinhts or m&es%%
Y--~-~ the
laws or this State, the Standard given in
this chapter shall be taken as the guide
for makin such adjustment." (Underscor-
ing ours. 7
.An express bontract is not inwlvea in the ques-
tion before us. Article 5736 above qt.oted does not allow
the sale or use of false welghlng and measuring devices in
the State or Texas in ccmercial trsnsactlons. It deals
with wcommodltlec~, not "devices",'and'doesnot authorize
a sealer of weights and measuras to violate Artiole 1041 or
the Penal Code and place his seal or approvel upon a "false
aevlce~ which does not conions to the State a& national
standards.
In conclusion it can be pointed out that ,the
courts' universally sustain the constltutlonality of legis-
lation adopting and oanpel.Iing the use of a uniform system
0r weights ana measures. They hold that it is in the na-
ture or a police regulation, and the enactment or such laws
a valid exercise of the police power. As with-Solomon, to
the courts adivers weights, and divers measures", to quote
Book of Proverbs, Chapter 20 "are &like abomination to the
Lord.". The language of.the 'f'exas stat&as is plain and un-
embigUOUS. Full erieat must be given to it iOr the reason
that the weights and meisures laws of Texas were passed for
the purpose of protecting the trusting, uncritical, and un-
suspecting public.
Honorable W. S. Bussey, September 26, 1939. Page ll
It is our opinion that a gasoline pump, which is
a mechanism or machine adapted to measure and deliver li-
quid by volume, gradUatea in units of maagure other than
the standard units or liquid measure provided ior in Arti-
cle 5732, Revised Civil Statutes, 1925. i.e., the standard
ged.lOn and its parts derived by COntinuaI dl9islon by tbs
number tvn), is in violation of the civil and criminal
weights and measures laws or Texas snd may not be legally
used in conaerclal transactions in this State.
Yours very truly
AT'DJRNEYGD~~ CFTKKAS
By DICK STCCT (Sgd.)
Dfp&3cm~
DS:FG
This opinion has been considered in conference,
approved, and ordered recorded.
GZIRALD
c. 3dlwN Lsga.)
Gerald C. Msnn
Attorney General of Texas