August 27, 1952

Hon. Geo.W. Cox, M.D. State Health Officer State Dept. of Health Austin, Texas OpinionNo. V-1512

Re: Necessity that bedding manufactured in Texas for sale outside the State complywith 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 throughwholesale and retail commercial channels is required to have affixed an adhesive stamp (tax stamp) under the provisionsof the Texas Bedding Act.

"Webelieve that thewording of the Act requires that any personwho manufactures,who renovates, or who sells or leases any bedding coveredby the provisions of this Act shouldhave 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 possessionwith intent to sell **Or** lease in the State of Texas, any bedding coveredby the provisions of this Act, unless there be affixed to the tag required by thisAct by the personmanufacturing, renovating, selling or leasing the same, an adhesive stamE preparedand issuedby this Department.. -.

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

The language of Section 7 of Article 4476a clearlyprovides that beddingmanufactured in Texas is required to have a stamp affixed regardless of where the bedding is to be sold. Therefore,we agreewith you that beddingmanufactured 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:

"TheCongress shallhave Power To lay and collectTaxes, Duties, Imposts and Excises, to pay the Debts and provide for the
common Defence and generalWelfare of the United States;but all Duties, Imposts and Excises shallbe uniform throughout the United States;

"Toregulate Commercewith foreign Nations, and among the several States, and with the IndianTribes;"

Should it be consideredthat the regulations and fee charges incident to the regulation operates on manufacturingalone, it has been held that manufacturing Is not a part of interstate commerce and consequently the prohibition of the Commerce Clausewould not be applicable. In American ManufacturingCo. v. St. Louis, 250 U.S. 459 (1919) the city of-St. Louis levied against manufacturersa tax'imposedas a condition of a grant of
a license to carry on a manufacturingbusiness in that city, the amount of which was to be ascertainedby the amount of sales of manufacturedgoodswhether soldwithin
orwithout the State. In upholding this stated:

"In our opinion, the operation feet of the taxing ordinance are to a legitimateburden on the business tax the Court

and efimpose Of

_ . carrying on the manufacturing Of goods In that city; it producesno direct burden on commerce in the goods manufactured,whether domestic or interstate,and only the same kind of incidentaland indirect effect as that which results from the payment OfHon.

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 constitutionalsystem, there necessarilyremains to States, until Congress acts, a wide range for permissible exercise of power appropriate to their territorial jurisdiction,even though interstate
commercemay 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 Pennsylvaniav. Eisenberg Farm Products, 306 U.S. 346 (1937)the court had before it a statutewhich regulated the sale of milk and required a license of all persons in Pennsylvaniawho were sellingmilk. The Court held that since Congresshad not legislatedon this subjectmatter and since only a small portion of the milk produced in the statewas shipped outside~thestate, the actwas 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 invalidas placing a burden on interstate
commerce though practicallyaIl:.bfth8,,Coba~coi,gr6wni:Yn the state of Georgiawas shipped outside the state.

In H. P.Hood & Sons v.,BuMond, 336 U.S. 525 (19@), the Courtwas consideringa casewhere a distributor of milk in Massachusetts sought a license for a receiving station in New York enablinghim to compete with purchasers of milk in the area inNew York State where the receiving stationwas 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)

"Ourdecision in a milk litigation : most relevant to the present controversy dealswith 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 conditionsand limitationson the local sale of milk imported fromVermont 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 curtailingmovement of milk into or out of the State. But in the earlier case, it contended that the same result could be accomplishedby controllingdelivery,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 supportedby health or safety considerations but solely by protection of local economic interests, such as supply for local consumptionand limitation of competition. This Court unanimouslyrejected the State's contention in the Seelig case and held that the Commerce Clause, even in the absence of congressionalaction, prohibits such regulations for such ends.
"(1,2)The opinionwas 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 Corporationv. Baldwin, 293 U.S. 163, 55 S.Ct. 7, 79 L.Ed. 259; Borden's Farm Products Co. v. Baldwin, 293 U.S. 194, concurrenceat 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 inhabitantsagainstperils to health or safety, fraudulent traders and highwayhazards evenby use of measureswhich iear adverselyupon interstatecommerce.Hon. Geo. W. Cox, page 5 (V-1512)

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

In view of the above authoritieswe believe that this small fee,which Is incldental~to the exercise of the State'spolice power to protect publichealth 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 outsideTexas have an adhesive stamp affixed.

Yours very truly,

APPROVED:

J. C. Davis, Jr. County AffairsDivision PRICEDANIEL Attorney General

E. Jacobson Reviewing Assistant

Charles D. Mathews First Assistant

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