I. ,~ . 3
i , i ; , ;
THE ATTORNEY GENERAL

OF TIWAS

October 23, 1957

HonorableRobert S. Calvert Comptroller

of Public Accounts Capitol Station Austin 11, Texas OpinionNO. ww-286

Dear Mr. Calvert: Re: Whether or not transportation agencies should be required to have a cigarettepermit in order to dispose of damaged or salvage cigarettesthat they may acquire from time to time due to refusal to accept the cigarettesby the conslgnee.
You ask the opinion of this office.uponthe question presented in your letter of September 19, 1957, the pertinent part of which is as follows:

"At various times during the past common carriers that transporttax-free cigarettes have had delivery refused on these cigarettes by the consigneedue to damage, etc. We have been requiringthe transportation agency to take out a cigarettepermit in order to dispose of these cigarettes. The type of permit required from the transportation agency depended on the manner in wh-lch

they intend to dispose of the clgarettes, either retail or wholesale.

"At the present time the Panhandleand Santa Fe Railway Companyhave a case of damaged, unstamped,cigarettesin the unclaimed freight warehouse at Amarillo. They are aware of the fact that these cigaretteshave to be stamped with tax revenue stampsbut contend that they should not be required to have a cigarette permit in order to dispose of the cigarettes.HonorableRobert S. Calvert,Page 2 (W'W-286)

"I nil1 appreciateit if you will advise me as to whether or not In your opinion transportation agencies should be required to have a cigarette permit in order to dispose of damaged or salvage cigarettesthat they may acquire from time to time due to refusal to accept the cigarettes

by the consignee." Section 4 of Article 7047c-1;Vernon's Civil Statutes, Is In part as follows:

"Everydistributor, wholesale dealer and retail dealer in this State now engaged or who desires to become engaged, in the sale or use of clgarettes upon which a tax is required to be paid, shall, tithln thirty (30) days from the date this law becomes effectlve,file

with the Comptroller an applicationfor a cigarettepermit as a distributor,

wholesaledealer or retail dealer, as the case may be, said applicationto be accompanied by a fee of Twenty-five ($25.00) Dollars if for a distrlbutorls

permlt, or a fee of Fifteen ($15.00)

Dollars if for a wholesale dealer'spermit, or a fee of Five ($5.00)Dollars if for a retail dealer's permit."
It thus appears that if the common carrier,under the circumstances

stated in your letter, Is a distributor,wholesale or retail dealer, tithln the meaning of the taxing statute, a permlt Is required.

retail The Statute defines distributor, wholesaledealer and dealer in the language following:

"'Distributor'

shallmean and Include every person in this State who manufactures or produces cigarettesor who ships, transports, or Imports into this State or in any manner acquires or possesses cigarettesand makes a 'first sale' of the same in this State; the said term shall also include everyperson in this State who in any manner acquires or possessesunstamped cigarettesfor the purpose of making a 'first sale' of the same withinHonorableRobert S. Calver, Page 3 (~286)

this State.

"'Wholesale

Dealer' shall mean and lnelude every 'person'other than a distributor or a salesman in the employ of a manufacturer and handling only the products of his employer who engages In the business or sellingor dlstrlbutingcigarettesin this State for the purpose of resale.

"'RetailDealer' shallmean and include every person other than a distributor or wholesale dealerwho shall sell, distribute, or offer for sale or distribution or possess for the purpose of sale or distribution, cigarettesirrespective of quantityor smount or the number of sales or distributions;

. . .'
We believe that the Intent of the Legislature, as evidencedby the languageof the statutedefiningdistributor and retail dealer, cannot reasonably be construedas Importing an exceptionto the operationof the statute for the benefit of a common carrier. If such common carrier,after having acquiredpossessionof cigarettes, makes a "first sale" of the commodity in this State, or distributes or offers for sale or distribution, then the common carrierhas subjected himself to the regulationsImposed by the statute. We are of the opinion that transportatlon~ agenciesmust have a cigarettepermit In order to dispose of damaged or salvage cigarettesthat they may acquire from time to time due to refusal to accept the cigarettesby the consignee.
SUMMARY

A common carrierwho acquires ownershipof unstamped cigarettesIn its usual end customary operationsof transporting for hire is not excepted from the o$eration of Article 70 7c-1, Tex. Civ. Stat. (Vernon,1948), and is required to secure aHonorableRobert S. Calve&, page 4 W-286)

petit In order to sell such cigarettes.

Very truly yours, WILL WIISON Atto-ey General oi Texas 

# By&A!w,

33. Ii. Tirmnins,.Jr. Assistant BHT:WSIIl
'APPROVED: OPINION COMMITTEE Gee. P. Blackburn,Qlairman' Milton Richardson Wayland C. Rlvers, Jr.