TEIEA?~TORNE-W GENERAL
OF TEXAS
GERALD C. MANN AUSTIN ai. TEXAS
-ON
A-XTORNEY Dn.!zNERAr.
.,~
January lOth, 1939
Mr. W.S. Bussey -.
Chief Weights & Measures Division
Denartment bf Aarlculture
Austin, Texas -
Dear Sir:. Oplnlon No. O-73
Re: Definition of Public Weigher
We acknowledge receipt of yours of the 6th Instant
which quotes that part of article 5680, R.C.S. 1925, defining
"a public weigher" and asking the following question:
"Will you please advise this Department
whether the above definition includes th6 welgh-
lng of cattle and other livestock In Texas?"
Article 5680 above referred to reads as follows:
"Any person engaged in the business of pub-
lic weighing for hlre, or any person, who shall
welgh.or measure any commodity, produce or article,
and issue therefor a weight certlflcat6 or weight
sheet, which shall be accepted as the accurate
weight upon which the~purchase or sale of such
commodity; produce or article 1s based, shall be
known as a public weigher; and shall comply with
the provisions of this chapter. The provlslons
of this article shall not apply to the owners,
managers, agents or employees of any compress or
any public warehouse In their operation as a ware-
houseman. This exemption shall not apply in.an
manner to any Texas port." (Acts 1919, p. 168.y
It follows that 'a public welgher" 1s first elther-
* * * "any person en$jagsdin the business of
public weighing for hlre
or second -
.
* * * "any person who shall weigh or measure
any commodity, produce or article and Issue there-
for a weight certificate or weight sheet, which
Mr. W.S. Busey, January lOth, 1939, page 2 o-73
+A
shall be accepted as the accurate weight upon which
the purchase or sale of such commodity, produce or
article is based * + + * * * * + + * * etc."
The statute gives two (2) definitions therefore of ai"
"public weigher". The question to be decided is whether or
riot either of said definitions Include "the welghlng of cattle
and other livestock In Texas".
WLth respect to the first deflnltlon, it Is too ob-
vious to require an explanation or authorities that "ang per-
son engaged In the business of public weighing for hire' of
"cattle and.other livestock in Texas" Is 'a public weigher"-
within the purview of the defining article, and as a result,
subject to all provisions of the Texas public weigher laws:-
The language of the definition Is plain, unambiguous and ex-
plicit. It Is not subject to a contrary construction. The
determining words are the phrase "for hire". If the weigher
of "cattle and other livestock" exacts a charge, fee or toll
for the service of welghlng, then he is a "public" weigher
ana subject to the regulatory terms of the public weigher laws.
But let us suppose a person weighing cattle and llve-
stock In the course of a business, occupation or trade does not
enact any fee or charge for the specific act of weighing. In
other words, the weighing of livestock is only a phase of the
transaction of sale, and also a gratuity. The first deflnl-
tlon would not apply because the weighing process was not "for
hire'. The question confronting us Is whether or 'nota person
engaged in such a wel?hlng transaction would be covered by the
s-60onddefinition of 'a public weigher". As heretofore indi-
cated, said definition Is as follows:
* * l "any person who shall weigh or measure
any commodity, produce or article and Issue there-
for a weight certificate or weight sheet, which
shall be accepted as the accurate weight upon which
the purchase or sale of such commodity, produce
or article Is based * * * * * * * * l * etc."
To bring the weigher of "cattle and other livestock"
within the~.wokdingof the above definition of "a public weigh-
er" we mu&t ascertain whether or not "cattle and other live-
sito:k"constitute "any commodity, produce or article" and also
whether or not "a weight certificate or weight sheet, etc."
Is issued by the weigher. The latter Is a question of fact.
We are-interested in the construction of the words "any com-
modity, produce or article".
In this opinion we do not find It necessary to go be-
Mr. W.S. Bussey, January lOth, 1939, page 3 o-73
yond a consideration of the word "commodity" In order to hold
that "cattle and other livestock" are such commodities as
would bring a weigher of same within the purview of article
5680, provided he issued a weight certificate or weight ticket
accepted as the accurate rate upon which the purchase or sa1.e
of such "commodity" ls based.
*
'-,Inthe United States~vs. Slscho, 262 Fed., 1001 at
page 1005, the Court, per District Judge Cushman, adopts the
standard dictionary definition of commodity:
" fc0m0aitgt is deflnea as an article of
trade;'a movable article of value; something
that Is bought and sold".
.a
~Bouvler's Law Dictionary, Rawle~'sThird'Revision, de-
fines %omoaitgff as "a broader term than merchandise and may
mean almost any-.descriptlonof articles called-movables or per-
sonal estate" and cites Shuttleworth v. State, 35 Ala. 415
and State v. Henke, 19 Mo. 25. .
Courtland Bank v. Apthorp, 12 Mass. p. pa 252-256, con-
tains a broad definition of "commodities", but 'the vulgar sig-
nlficatlon"'of the Word. to use the Court's language. i.e. ROOaS
and wares, are comprehensive enough to Include iiv&tock in-
OUT opinion. The definition 1s as follows:
Commodltles "embrace everything which may be
subject to taxation and sometimes mean the prlvll-
ege of using particular branches of business or
employment, as the business of an auctioneer, of
an attorney, of a tavern people, or a retailer of
spirituous liquor, etc. In this sense It signifies
conveniences, privileges, profit and gains, as well
as goods and wares, which are only Its vulgar slgnlfl-
cation."
A-mare Is a,commodltg. Barnett v. Powell 16 Kg. (Litt.
Sel. Cas.) pip. 409410, In which It was held a statute for-
bidding any person to buy, sell, or receive of, to or from any
slave, "any commodity whatsoever" without leave of'hls master,
means any movable article or piece of personalty, and.embraced
a mare.
~The Court In the case of Bess v. Bander (New York) 29
How. Prac. p-p. 489-492, says of f’OO~Oaitgl’:
"The word Includes all the movables which are
the objects of commerce."
Mr. W.S. Bussey, January lOth, 1939, page 4 o-73
We note dictum in the case to the effect that, al-
though commodities include-
* * * "everythlngmovable that Is bought and
sold, unless, perhaps, animals may be excepted".
We are not influenced by said dictum in view of definitions
and authoritles~in the law books. The New York Court would
have Included "animals" with the scope of the'word "commodl-
ties", If it had been faced with a necessity of making a
decision.
We hold that the term "any commodity" as used in
article 5680 includes "cattle and other livestock".
'The statute also mentlones "produce". Although un-
necsssary, In view-'ofour c0nstructFon of the~word "commodity"
we have one observatldn to make In this connection. The word
is used In statutes and decisions lnterchangea~blywith the
words "agricultural products". By statutory definition In
many Instances, livestock IS included within a-list of
"agricultural products". We give one example as follows:
Article 5738 of.the Revised Civil Statutes
of 1925,~as amended, chapter 8, under "market-
ing assoclatlons" - "(a) The term lagrlcultural
proaucts' shall-lndlude horticultural, vitlcul-
turaI, forestry, dairy, livestock, poultry, bee
,- and any farm and ranch products: * * * * *.* *"
If livestock constitute "agricultural products" then
It Is "produce" within the terms of the statute.
Concerning the word "article" asusea Ln Article 5680,
we'llmltours0lves to the remark-that It Is often used
synonymously with the'wora '~00~0aitg".
We feel constralned to give the broad&t construction
to a statute designedto protect the public from false, fraudu-
lent welghing and as a result vitally affecting the public wel-
fare. Article 5680, as part of the Texas Public Weighers' Law,
has this object. In so doing we are following the cardinal
rule of statutory law, which stipulates that~the intent of the
Legislature be kept In mind In matters of statutory construc-
tion. Undoubtedly, in drafting Article 5680, the Legislature
Intended to Include livestock among those commbdities and pro-
ducts subject to the public weighers' law for protection of
the public.
It IS therefore our duly consldered opinion that, first
Mr. W.S. Bussey, January lOth, 1939, page 5 o-73
s..s.O..any person engaged in the public weighing of llve-
stock for hire (ours) is a public weigher, and second ...*..
any person who shall weigh any cattle or livestock and issue
a weight certificate or weight sheet upon which reliance Is
to be placed for accurate weight, is also 'a public weigher".
Trusting that we have fully answered your inquiry,
we are
Yours very truly,
ATTORNEY GENERAL OF TEXAS
By s/DFck Stout
Assistant
DS:OB:wc
APPROVED:
s/Gerald C. Mann
ATTORWEYGEWERAL OF TEXAS