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THE Aaroruv~~ GENERAL
OFTEXAS
Honorable Thos. A. Wheat
County Attorney
Liberty County
Liberty, Texas
Dear Sir: Oplnlon No. 0-920
Re: Is a merchant, selling drygoods
from a store on one side of the
street and furniture;various house-
hold appliances, and some dry goods
from a store on the other side of
the street because of lack of fac-
ilities to carry on'the business in
one store, but maintaining one set
of books and using the same name
for both stores, operating a two-
store chain so as to be,liable for
the lice&e fee thereon.'leviedby
Article LlllD, Penal Code?
Inasmuch as the above question, submittedby your
letter of June 2, 1939, turns largely upon a question of fact,
we quote fully from your letter as follows:
"The question has arisen in this County with
regard to a particular instance as to whether or not
a man who operates a store under one name on one
side of the street in an oil field town, to-wit,
Dalsetta, Liberty County, Texas, and in that store
sells dry goods and he operates a second store on
the other side of the street in which he sells fur-
niture and various household appliances and some
goods und,erthe same name that he operates the first
store under and the reason why he doesn't have both
stores under the same roof and In the same building
because he cannot obtain space in the same bullding
or an adjolnlng building to put the furnlture,and
fixture store in, would be subject and required to
pay a license fee for two stores instead of one store
under Article 1lll.Dof the Penal Code, as passedby
the Acts of 1935, 44th Legislature First Called~Sesslon,
found at page 422 of Volume 2 of Vernon's Annotated
Statutes.
Hon. Thos. A. Wheat, page 2 O-920
****
"It is my argument that where a man has to put
his wares in one particular building because of ne-
cessitous circumstances, which circumstances are be-
yond his control and he would have them under the same
roof and. in the same building, if posslblo, but he
has to place therest of his wares as near to his main .
store as possible, and he has made them one establishment,
and as a matter of fact they are treated.by him as
one store and operated as one store and he keeps one
set of books on both establishments that he comes
within the purview of Article 1lllD and he is only
maintaining one store."
****
We have carefully considered the citations to Words
and Phrases furnished in your letter, but we do not find that
the judicial definitions of the word "store" therein given,
are of assistance in arriving at a correct conclusion. This
Is because your question turns upon a statutory definition of
the term,"store" rather than upon the common acceptation of
the term, and the Supreme Court of Texas in Hurt, et al'vs.
Cooper, et'al, 110 S. W. (2d) 896, with referende to such
definition, said:
"The statute having defined the word, we are not
concerned with its usual meaning. Under that defini-
tion a mercantile establishment at which goods, wares,
or merchandise of any kind, except those exempted, are
sold is a store and is taxable as such, and this even
though it may also be a distributing point. Conversely,
a mercantile establishment at which no sales are made
is not a store, and therefore not taxable. The test
is whether the sales of goods, wares, or merchandise
are made at the place."
Section 7, Article 1111D, Penal Code, d.efines "store"
as follows:
"The term 'store' as used in this Act shall be
construed to mean and include any store or stores or
any mercantile establishment or establishments not.
specifically exempted within this Act which are own-
ed, operated, maintained, or controlled by the same
person, agent, receiver, trustee, firm, corporation,
copartnershlp or association, either domestic or
foreign, in which goods, wares or merchandise of any
kind are sold, at retail or wholesale."
Applying the foregoing definition to the facts set
out in your letter, as we are constrained to do by the deci-
Hon. Thos. A. Wheat, page 3 0-920
sion of the Supreme Court in the case of Hurt vs:Cooper,
supra, it is our conclusion that the merchant in question was
owning, operating, maintaining or controlling a two-store
chain In Daisetta, Liberty County, Texas, so as to become
liable for the license fee fixed and provided by subdivision
2,'section 5, Article llllD, Penal Code. It will be noted
that the term "store: as used in this tax measure, is de-
fined by Section 7 thereof, hereinabove quoted, to include
"H store or stores or u mercantile establishment or
establishments," which are "owned, operated, maintained or
controlled by the same person" etc., and in or from which
"goods, wares or merchandise of ang kind are sold, at retail
or wholesale." We find that all of theconstituent elements
of a "store: as laid down by the statute, concur in the in-
stant case. We have two entirely separate places, buildings
or mercantile establishments on different sides of the street,
from whfch goods, wares or merchandise of some kind are sold,
at retail or wholesale, and which are admittedly under the
same ownership and operation.
The fact that the exigencies of the situation, or
the lack of suitable or ample building facilities in the
business section of Daisetta made it necessary or expedient
for the merchant in questlon to conduct his business from
two separate store buildings rather than from one, is an ir-
relevent consideration entirely beyond the statute. To allow
the incidence of a tax to be avoided by such personal consld-
erations and mental reservations of a taxpayer, would amount
to the virtual abrogation of such tax measure, at the will of
such taxpayer.
The further fact appearing in yourletter that the
merchant in question treated these two establishments or
places as one store, operating them under one name and keep-
ing one set of books, does not, to our mind, support his con-
tention that he is owning and operating only one store, but
rather strengthens our conclusion herein of his common own-
ership, operation, or control of two stores or mercantile es-
tablishments, as defined, so as to be liable to the license
fee levied by subdivision 2, of Article llllD, Penal Code.
Thanking you for your brief and trusting the fore-
going satisfactorilg answers your inquiry, we are
Hon. Thos. A. Wheat, page 4 O-920
Yours very truly
ATTORNEYGENEZUL OF TEXAS
By s/Pat M. Neff, Jr.
(simmd) Pat M.Azt:;i;;;.
PMN:N
APPROVED JUNE 23, 1939
(Signed) Gerald C..Mann
ATTORNEY GENERAL OF TEXAS
Approved OplriionCommittee'Bg B. W. Chairman