Hon. George H..Sheppard

Comptroller of.Public Accounts Austin, Texas Dear Mr. Shepparar Opinion No. O-2176 Ret Article 7047, 2 Revised Civil SCatutes. suly ‘

Of Webeg to acknowledge receipt of your letter. April 4, 1940,‘requesting an opinion from this department as follows, to-wit8

“This Department has been asked ,for an opinion as to whether or not a person sollcitlng orders and delivering patent medicine from house to house in his hometown or city ana not outside the town or city limits of such city would comewithin the definition of an8 be subject to the tax as a traveling vendor under Article 7047, Subdivision 2, Revised Civil Statutes. “The question presented appears to be a question of whether such person would be considered as a traveling person when he confines his solicitations and deliveries to the limits of his hometown. *Will you kindly advise mewhether suah person would be subject to the tax.” Subdivision 2 of Article 7047$ Vernon’s Civil Stiatutes, cited by you, reads as follows8

llKcomevery traveling person selling patent or other medicines, fifty dollars, and no traveling person shall so sell until said tax is so. paid. This tax shall not apply to commercial travelers, drummers, or salesmen making sales or soliciting trade for merchants engaged in the sale of drugs or medi~cines bywholesaleoN Your inquiry involves construction of this statute, and the construction of the statute involves in turn the meaning of the term “traveling person” selling paterit or other medicine s

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Hon. George H. Sheppard - page 2

The construction involves further the nature of the thing taxecl.

The term wtravellng person” is not one of fixed meaning. ~There is latitude for construction. The sense In which It Is used by the Legislature determines Its meaning in any ‘statute., In asaertaining that sense the entire context of the statute, the end sought to be attained/and the associated words in the Act, will be looked to.

~Froma consideration of the ~statute It is obvious the purpose of the Legislature was to tax those merchants, vendors, physicians and peddlers who carry on their business from,place to ,place other than in or’at its established place or ,headquarters. Such manner of business is the opposite of having,a definite, fixed place of business. It therefore follows that the extent, the distance or the frequency of the traveling has nothing to dowith the~question. .These are mere differences of degree and not of kind. Thus, amerchant or vendor’of patent~medlclnes, or a clock peddler’.carrles onhls business by going from place to place other than an established place of business; he Is a traveling merchant, vendor or peddler,, as the case maybe, whether his trips take him beyond the limits of his owntown city, precinct norcounty or not. 3881.~ (Andrews vs. White, 33Me.

We,eocordingly ad,vise you that aperson soliciting ~oraers and delivering patent medicine from house to house in his home town or city, and not outside the ,town or city limits, would comewithin the statutes and be subject to the tax.

Wethink this is true whether the vendor Is selling his ownmedicines or those of another on consignment.

Wehave not found another statute identical with our own and the decisions construing different statutes are of littie value, except byway of analogy.

The case of L. B. Price Co. vs. City of Atlanta, 316.E. 619 distinguishes between “traveling salesmene and

‘lcanvassers.n The one makes sales, whereas the other solitits orders and sends them to the house which makes the sales.

Martin vs. Townof the term *ItravelIng peddler”; Rosedale, 29N.R. 41d, defines showing that he Is in legal effeet a salesman onhis ownand not a mer(r agent or canvasser.

P,egues,’ Tax Collector, vs. Ray,, 23,so. 904, cleclaresrHon. George H. Sheppard - page 3

“A traveling vendor then is onewhocarries about with himthe articles of merchandise which he sells; that is to say, the identical merchandlze he sells he has with himanddelivers at the time of sale. His vocation is quite dlfferent from that of the drummer,whocarries only samples of his wares as sxhiblts, andtakes orders for the future delivery of merchandise of their kind andquality, or of similar kind and quality.” These definitions anddistinctiOns, however, are of little value In the present inquiry, since, as wehave shown, our statutes contemplate atax upon the traveling vendor, whether engaged in selling his ownmedicines, or those of another, upon anagency or consignment, where such sale Is one of retail. This is madeclear by the provision of subdivision 2that “this tax shall not apply to commercial travelers, drummers, or salesmen maklng sales or soliciting trade for merchants engaged in the sale of drugs or medicines bywholesa1e.n The exemption of such sales or solicitations since it is t s exclusive as to exemptions, e of statutory construction that exemptions are strictly construed andmaynot be enlarged by construction. Theeffeot of exemption sales and solicitations bywholesale is to leave within the statute of taxes solicitations and sales at retail bymerchants engaged in the sale of drugs or medicine. Their business must be carrier on at their established stores or places of buslness. Trusting this will have answered your questions satisfactorily, weare Very truly yours ATTORNEY

GENERAL

OFTEXAS By/s/ Ocie Speer Ocie Speer, Assistant APPROVED

APR16, 1940 /s/ Gerald C. Mann ATTORNEY

GENERAL

OFTEXAG ~APPROVED:

OPINIONCOMMIITEE BY: BWB,CHAIRMAN OS-E&wb