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 ‘ 

We beg to acknowledge receipt of your letter. Of 

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 home town or city ana 

not outside the town or city limits of such 

city would come within 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 home town. 

*Will you kindly advise me whether suah 

person would be subject to the tax.” 

Subdivision 2 of Article 7047$ Vernon’s Civil 

Stiatutes, cited by you, reads as follows8 

llKcom every 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 by wholesaleoN 

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 . 
. . - 

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. 

~From a 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 do with the~question. 

.These are mere differences of degree and not of kind. Thus, 

a merchant 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 may be, whether his trips take him beyond the limits of his own town 

city, precinct nor county or not. 

3881.~ 

(Andrews vs. White, 33 Me. 

We ,eocordingly ad,vise you that a person 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 come within the statutes and be subject to the tax. 

We think this is true whether the vendor Is selling 

his own medicines or those of another on consignment. 

We have not found another statute identical with 

our own and the decisions construing different statutes are 

of littie value, except by way of analogy. 

The case of L. B. Price Co. vs. City of Atlanta, 

31 6.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. Town of 

the term *ItravelIng peddler”; 

Rosedale, 29 N.R. 41d, defines 

showing that he Is in legal effeet a salesman on his own and not a mer(r agent or canvasser. 

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

“A traveling vendor then is one who carries 

about with him the articles of merchandise which 

he sells; that is to say, the identical merchandlze he sells he has with him and delivers at 

the time of sale. His vocation is quite dlfferent from that of the drummer, who carries only 

samples of his wares as sxhiblts, and takes orders for the future delivery of merchandise of 

their kind and quality, or of similar kind and 

quality.” 

These definitions and distinctiOns, however, are 

of little value In the present inquiry, since, as we have 

shown, our statutes contemplate a tax upon the traveling 

vendor, whether engaged in selling his own medicines, or 

those of another, upon an agency or consignment, where such 

sale Is one of retail. This is made clear by the provision 

of subdivision 2 that “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 by wholesa1e.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 and may not be enlarged by construction. The effeot of exemption sales and 

solicitations by wholesale is to leave within the statute 

of taxes solicitations and sales at retail by merchants engaged in the sale of drugs or medicine. Their business 

must be carrier on at their established stores or places of 

buslne ss. 

Trusting this will have answered your questions 

satisfactorily, we are 

Very truly yours 

ATTORNEY GENERAL OF TEXAS 

By /s/ Ocie Speer 

Ocie Speer, Assistant 

APPROVED APR 16, 1940 

/s/ Gerald C. Mann 

ATTORNEY GENERAL OF TEXAG 

~APPROVED: OPINION COMMIITEE 

BY: BWB, CHAIRMAN 

OS-E&wb