August 27, 1952 

Hon. Geo. W. Cox, M.D. 

State Health Officer 

State Dept. of Health 

Austin, Texas 

Opinion No. V-1512 

Re: Necessity that bedding 

manufactured in Texas 

for sale outside the 

State comply with the 

bedding stamp requirements of the Texas 

Dear Dr. Cox: Bedding Act. 

Your request for an Opinion of this office 

reads In part as follows: 

IWe should like to know if bedding 

manufactured In Texas and sold outside 

the State of Texas through wholesale and 

retail commercial channels is required to 

have affixed an adhesive stamp (tax stamp) 

under the provisions of the Texas Bedding 

Act. 

"We believe that the wording of the 

Act requires that any person who manufactures, who renovates, or who sells or 

leases any bedding covered by the provisions of this Act should have an adhesive 

stamp (tax stamp) affixed regardless of 

the ultimate destination of the article." 

Section 7 of Article 4476a, V.C.S. (Bedding 

Act), provides in part: 

'Sec. 7. (a). No person shall manufacture, renovate, sell or lease or have 

in his possession with intent to sell Or 

lease in the State of Texas, any bedding 

covered by the provisions of this Act, unless there be affixed to the tag required 

by this Act by the person manufacturing, 

renovating, selling or leasing the same, 

an adhesive stamE prepared and issued by 

this Department. 
. -. 

Hon. Geo. W. Cox, page 2 (V-1512) 

The language of Section 7 of Article 4476a 

clearly provides that bedding manufactured in Texas is 

required to have a stamp affixed regardless of where 

the bedding is to be sold. Therefore, we agree with 

you that bedding manufactured in Texas and sold outside 

Texas is required to have an adhesive stamp (tax stamp) 

affixed, if the statute does not violate the commerce 

clause of the United States Constitution (Art. 1 Sec.' 

8 cl. 3). Section 8 of Article I of the Federal Constitution provides in part: 

"The Congress shall have Power To lay 

and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the 

common Defence and general Welfare of the 

United States; but all Duties, Imposts and 

Excises shall be uniform throughout the 

United States; 

"To regulate Commerce with foreign 

Nations, and among the several States, and 

with the Indian Tribes;" 

Should it be considered that the regulations 

and fee charges incident to the regulation operates on 

manufacturing alone, it has been held that manufacturing Is not a part of interstate commerce and consequently the prohibition of the Commerce Clause would not be 

applicable. In American Manufacturing Co. v. St. Louis, 

250 U.S. 459 (1919) the city of-St. Louis levied against 

manufacturers a tax'imposed as a condition of a grant of 

a license to carry on a manufacturing business in that 

city, the amount of which was to be ascertained by the 

amount of sales of manufactured goods whether sold within 

or without the State. In upholding this 

stated: 

"In our opinion, the operation 

feet of the taxing ordinance are to 

a legitimate burden on the business 

tax the Court 

and efimpose 

Of _ . carrying on the manufacturing Of goods In 

that city; it produces no direct burden on 

commerce in the goods manufactured, whether 

domestic or interstate, and only the same 

kind of incidental and indirect effect as 

that which results from the payment Of 
Hon. 

U.S. 

Geo. W. Cox, page 3 (V-1512) 

property taxes or any other and general contributions to the cost of government. It therefore does not amount to a regulation of interstate commerce. D D .It 

See also Utah Power & Light Co. v. Pfast, 286 

165 (1932). 

Considering next the effect of the regulation __ . should it be one on the selling of bedding; it has been 

held that under the federal constitutional system, there 

necessarily remains to States, until Congress acts, a 

wide range for permissible exercise of power appropriate 

to their territorial jurisdiction, even though interstate 

commerce may be affected thereb 

Alexandria, 341 U.S. 622 (195l.y' Breard v* City Of 

We have been unable to find any Federal Statute 

regulating the manufacturing, renovating, selling or leasing of bedding. 

In Milk Control Board of Pennsylvania v. 

Eisenberg Farm Products, 306 U.S. 346 (1937) the court 

had before it a statute which regulated the sale of 

milk and required a license of all persons in Pennsylvania who were selling milk. The Court held that since 

Congress had not legislated on this subject matter and 

since only a small portion of the milk produced in the 

state was shipped outside ~the state, the act was not a 

burden on interstate commerce. Also in Townsend v. 

Yeomans, 301 U.S. 441 (1937) a Georgia statute fixing 

maximum charges for handling and selling leaf tobacco 

was held not invalid as placing a burden on interstate 

commerce though practically aIl:.bf th8,,Coba~coi,gr6wni:Yn 

the state of Georgia was shipped outside the state. 

In H. P. Hood & Sons v.,BuMond, 336 U.S. 525 

(19@), the Court was considering a case where a distributor of milk in Massachusetts sought a license for a 

receiving station in New York enabling him to compete 

with purchasers of milk in the area in New York State 

where the receiving station was to be located. In upholding the right of the New York State Commissioner of 

Agriculture and Markets to deny a license on the basis 

that the area did not have an'adequate supply to allow 

another receiving station, the Court stated: 
Hon. Geo. W. Cox, page 4 (V-1512) 

"Our decision in a milk litigation : 

most relevant to the present controversy 

deals with the converse of the present 

situation. Baldwin v. G.A.F. Seelig, Inc., 

294 U.S. 511, 55 S.Ct. 497, 79 L. Ed. 1032, 

101 L. R. A. 55. In that case, New York 

placed conditions and limitations on the 

local sale of milk imported from Vermont 

designed in practical effect to exclude it, 

while here its order proposes to limit the 

local facilities for purchase of additional 

milk so as to withhold milk from export. 

The State agreed then, as now, that the Commerce Clause prohibits it from directly 

curtailing movement of milk into or out of 

the State. But in the earlier case, it 

contended that the same result could be accomplished by controlling delivery, bottling 

and sale after arrival, while here it says 

it can do so by curtailing facilities for 

its purchase and receipt before it is shipped out. In neither case is the measure 

supported by health or safety considerations but solely by protection of local 

economic interests, such as supply for local 

consumption and limitation of competition. 

This Court unanimously rejected the State's 

contention in the Seelig case and held that 

the Commerce Clause, even in the absence of 

congressional action, prohibits such regulations for such ends. 

"(1,2) The opinion was by Mr. Justice 

Cardozo, experienced in the milk problems 

of New York and favorably disposed toward 

the efforts of the State to control the 

industry. Hegeman Farms Corporation v. 

Baldwin, 293 U.S. 163, 55 S.Ct. 7, 79 L.Ed. 

259; Borden's Farm Products Co. v. Baldwin, 

293 U.S. 194, concurrence at page 213, 55 

S.Ct. 187, at page 193 79 L.Ed. 281; Mayflower Farms v. Ten Eyck, 297 U.S. 266, 

dissent at page 274, 56 S.Ct. 457, at page 

459, 80 L.Ed. 675. It recognized, as do 

we, broad power in the State to protect 

its inhabitants against perils to health or 

safety, fraudulent traders and highway hazards even by use of measures which iear 

adversely upon interstate commerce. 
Hon. Geo. W. Cox, page 5 (V-1512) 

Also see Parker v. Brown, 317,~U.S. 341 (1943). 

In view of the above authorities we believe 

that this small fee, which Is incldental~to the exercise 

of the State's police power to protect public health in 

the sale of bedding Is not a burden on interstate commerce. 

SUMMARY 

Section 7 of Article 4476a, V.C.S. requires that bedding manufactured in Texas 

and sold outside Texas have an adhesive 

stamp affixed. 

Yours very truly, 

APPROVED: 

J. C. Davis, Jr. 

County Affairs Division 

PRICE DANIEL 

Attorney General 

E. Jacobson 

Reviewing Assistant 

Charles D. Mathews 

First Assistant 

BA:am