### THEATTORNEY GENERAL OF 7lITExAs

Honorable J. N. Nutt Opinion No. C-222 Commissionerof Insurance 1110 San Jaclnto Re: Whether out-of-state Austin, Texas manufacturers,distrlbutors and jobbers are required to obtain Iitenses pursuant to Section 5 of Article 1725, Vernon's Penal Code, and Dear Mr. Nutt: related questions.

You have requestedan opinion of this office covering several questionspertaining to administering and enforcingthe provisions contained In Senate Bill No. 143, Acts 55th Legislature, Regular Session, Chapter 498, page 446, codifiedas Article 1725, Vernon's Penal Code. You point out that the responsibility of administering

and enforcing this Act is placed upon the State Fire Marshal, and that the Commissionerof Insurance is designated as State Fire Marshal by Article 1.09 of the Texas Insurance Code.

An examinationof this Act indicates it has as Its general purpose the regulationof fireworkswithin this State. It is quite comprehensive and you have asked several questions concerningvarious provisionsthat might tend to burden lnterstate commerce. As a prerequisiteto answeringyour questions, therefore,an evaluationof the power of this State to adopt such an act is outlined.

The storing,handling,and use of inflammableand explosive substances, being attendedwith danger,may be regulated under the police power. Thus the explosionof fireworks may be prohibited;and a law prohibiting,except in certain cases, the sale, offering,or exposing for sale and use, of fireworks must be interpretedin the light of its general purpose, which is the protection of the health,

35 C.J.S. 248. safety, and general welfare of the public. Congresshas recognizedthat the regulationof fireworks is of individualconcern to each State. It has acted to strengthenand preserveunto the several states the right to regulate fireworksby providing as follows:

-1070-. 1

Hon. J. N. Nutt, page 2 (C-222)

"Whoever,otherwisethan in the course of continuousinterstatetransportation through any state, transportsfireworks into any state, or delivers them for transportation into any state, or attempts so to do, knowing that such fireworksare to be dellvered,possessed, stored, transhlpped,

distributed,sold, or otherwise dealt with in a manner or for a use prohibited by the laws of such state specifically prohibiting

or regulating the use of fireworks, shall be fined not more than $l,OOO.OOor imprisonednot more than one year, or both. "This section shall not apply to a common or contract carrier or to International or domesticwater carriers engaged in interstate commerce or to the transportation of fireworks into a state for the use of Federal Agencies in the carrying out or the furtheranceof their operation.
"In the enforcementof this section,the definitionsof fireworks contained In the laws of thfi respective states shall be applied,

. . . Title 

### 18, Sec. 

### 836, U.S.C.A. This enactmentof Congress is ample evidence that the right to regulate fireworks clearly remains in the several states. It follows that this State is authorizedto provide for reasonable regulationsof fireworks.

The questionsyou have asked concerningArticle 1725 are based upon an assumptionthat at the time.agreements for the sale and purchase of the fireworkswere entered into it was the intentionof the parties that the fireworks in questionwould be held for resale or for further distributionand ultimate retail consumptionor use in the State of Texas. This assumption is the basis for consideration of your first series of questions,which are here set out:

"1. (a) Are out-of-state manufacturers, distributors,

and jobbers required to obtain licensespursuant to Section 

### 5 of the Act?

(b) Does the term tout-of-state"aS used in Section 

### 5 of the Act includemanufacturers, distributors,

and jobberswho are located or domiciled in foreign countries?

-1071-Hon. J. N. Nutt, page 3 (C- 222)

“2. Does the purchase by a distributor, jobber or retailer of permissiblefireworks from an unlicensed out-of-state manufacturer or importer for resale in Texas violate the provisionsof Section 5I or Section 5J of the Act if the actual contract of purchasewas consummatedoutside of Texas and delivery Is made through a distributor, jobber or retailer outside the State?
"3. Identical question as No. 2 above except that delivery is made to the distributor, jobber or retailer In Texas. "4. Identicalquestionpresented in No. 2 above except that the contract Is consummated in Texas.
"5. Identicalquestionpresented in No. 2 above except that the sale is consummatedin Texas and delivery Is made to thendIstrIbutor, jobber or retailer in this State. The provisions of Section 5 which provide the basis for the above questionsare as follows:

"A. A license fee of $500.00per year, due and payable on or before February 1st of each and every year beginningFebruary 1, 1958, to the State Fire Marshal subject to the provisions of Section 12 of this Act, will be charged for the permit to manufacture,possess and sell fireworks. The manufacturer may manufacture,possess and sell items other than those enumerated in Section 2, but for sale and delivery only to states where other types of fireworks are legal but may not be sold or used in the State of Texas. "The same license fee will apply to and shall be paid by any and all out-of-state manufacturersofferinggoods for sale in the State of Texas, as a conditionto their sale in Texas.
"B. A similar license fee of $750.00 annually,due and payable on February 1st of

-1072-Hon. J. N. Nutt, page 4 (C- 222)

each and every year, as provided in Section 5A above, will be charged all distributors who possess and sell the fireworks enumerated in Section 2.
"The license fee provided herein shall be due and payable by all out-of-statedistributors offering goods for sale within the State of Texas.
"C. A license fee, due and provided in Section 5A above, of iayable as 500.00 per year, will be charged all jobberswho possess and sell the fireworks enumeratedin Section 2. ?rhe license fee provided herein shall apply to and be payable by out-of-statejobbers as a condition for sellingwithin the State of Texas. 1,

. . . "I. No person, firm, corporationor association shall deliver fireworks for resale to any individual,firm, corporationor association

unless consigneeproduces a license or evidence that consigneeholds such a license.
"J. No distributor,jobber or retailer shall purchase fireworks from a factory, distributor, jobber,manufactureror salesmanwithout first requiringproof that the license required of each herein has been obtained. No license provided for hereinabove shall be transferable nor shall a jobber or salesmanbe permitted to operateunder a license granted a distributor." Concerningthe above provisionsas they pertain to the questionsyou have asked, you state In your letter as follows: "The Departmenthas not adopted any formal departmentalconstructionconcerningthe above questions. It has, however,been the position of the Departmentthat any attempt to strictly enforce the license requirementsinsofar as out-of-state

manufacturers,

distributorsor

-1073-Hon. J. N. Nutt, page 5 (C -222)

jobbers are concernedwould result in placing a burden upon or an Interference with interstate commerce In violationof the Federal Constitutionif the transactionsInvolved were essentiallyinterstatein character. It has further been the position of this office that any out-of-state manufacturer,

distributor or jobber who actively solicitsbusiness or offers to sell fireworksthrough Its sales representatives

in Texas or is otherwise engaged in local activitieswhich would constitutethe transactionof business in Texas should be required to obtain the proper license.

. . .'
In examiningyour questionsand the provisionsof the Act concerned,the views of your Departmentare of great assistance In guiding this office toward an answer to your questions. As has been emphasized, "the practice and interpretive regulationsby officers , administrative

agencies, departmental

heads and others officiallychargedwith the duty of administering and enforcinga statutewill carry great weight in determiningthe operationof a statute. Vol. 2, SutherlandStatutoryConstruction, p. 514.
It Is of value to recall that the general purpose of this Act is the protectionof the health, safety, and general welfare of the public. Obviously,the Act is primarily soncernedonly with persons and propertywithin this State, as every state possesses exclusive jurisdiction and sovereignty over persons and property within its territory. Conversely, the jurisdiction

of a state Is restrictedto its own territorial limifrs and does not extend beyond its boundaries." 81 C.J.S. &I.
As a further aid to arrivfng at answers to your questions, it is helpful to examine the authorityof the officer chargedwith the responsibilfty of administering

and enforcing the Act. Article 5.44 of the Texas InsuranceCode sets out the authority of the State Fire Marshal in detail. Essentiallyit is that of fire preventionand investigation. Among the definitionsset out in Section 1 of the Act in question is the following:

"StateFire Marshal--Thechief law enforcementofficer of the State of Texas charged wit! the responsibility of fire prevention.

-1074-Hon. J. N. Nutt, page 6 (C-222)

Turning now to your questions l(a), It is primarily governedby the provisions of Section 5, A, B and C quoted above. The languageused therein is clear and does not warmrant an extended discussion. A license is required of manufacturers,distributorsand jobbers in this State. Then, additionally,the same license is required of out-of-state manufacturers,

distributors

and jobbers offering goods for sale in the State of Texas, as a conditionto their sale In Texas. Question l(a) is answered in the affirmative. Outof-statemanufacturers, distributors

and jobbers,who offer fireworks for sale In the State of Texas are required to obtain the appropriatelicense as a conditionto sell such fireworks ‘inthe State of Texas.

Question l(b) is answeredby anotherprovision contained in the Act. The Legislaturewas obviouslyaware that many fireworksreaching this State would come from foreign sources of supply, and provided In the Act for requiring a license of the importer,as follows:

"E. An annual license fee, due and payable as provided in Section 5A above, of $100.00 shall be due and payable by each importerwho possesses and sells the fireworks enumerated in Section 2 above to any persons, firms, corpora; tion or associationwithin the State of Texas. By applying the license requirementat the source of importation, the Act precludes the suggestionthat the term 'out-of-state"as used therein,was intended to includemanufacturers, distributors, and jobberswho are located or domiciled in foreign countries.

Question l(b) Is answered in the negative.
Your remaining questions 2 through 5 are each based upon a certain state of facts. The facts are varied in each instance to provide the basis for the question. As the facts posed in each question are presumably founded on experiences your office has faced in admlnistering and enforcing the provisions of this Act, your Department's position is a guiding factor in arriving at a construction of the Act.
It should be noted here that paragraph "I" of Section 5 does not appear to except any person, firm, corporationor associationfrom its coverage. It requires every person, firm, corporationor associationto ascertain that the consigneeof fireworkshas the license requiredunder this Act, before delivery

-1075-Hon. J. N. Nutt, page 7 (C-222)

Is made. Paragraph "J" requires the opposite,that is, it requires that the distributor,jobber,manufactureror salesman selling the fireworkshave the license requiredby the Act. It is important to note, however, that the Act does not require ally manufacturers,

distributors,

and jobbers to become licensed-- only those located here in Texas or who offer fireworks for sale in Texas.

QuestionNo. 2 is answered as follows: The purchase by a distributor,jobber or retailer of permissiblefireworks from an unlicensed out-of-state manufactureror importer for resale in Texas does not violate the provisionsof Section 51 and J, If the contract of purchase was consummatedoutside of Texas and delivery Is made through a distributor,jobber or retailer outside the State.

QuestionNo. 3 is considered in accordancewigethe position of your Department , and answered as follows: purchase by a distributor, jobber or retailer of permissible fireworks from an unlicensed out-of-state manufactureror importer for resale in Texas does violate the provisionsof Sections 5I and J if the actual contract of purchase was entered into outside of Texas and delivery is made to the distributor, jobber or retailer in Texas by the manufacturer-orimporter.

As a supplementto the answers given to Questions 2 and 3, it may be noted that the failure of such out-of-state person, firm, corporationor association selling such fireworks outside of this State to a distributor,jobber or retailer from this State to require proof that the consigneeholds the license requfred by this Act, might be a violat,ion. However, the Federal Act quoted above would have to be resorted to in order to effectuate any punishment that might be due for such violation.

QuestionsNos. 4 and 5 are answered together,and again due considerationIs given to the position your Department has taken In administering and enforcingthe provisions concerned. Both questionsare answered in the affirmative; such a purchase is in violationof the provisions stated as the consummationof the contractwithin this State would require acts which would constituteor be equivalentto offering goods for sale in this State so as to bring the parties within the purview of the license requirements.

You next ask the advice of this office in a second series of questions concerningthe provisions for public display of fireworks. Sections 9 and 10 are pertinentportions of the Act relating to these questionsand you state there is

-1076-Hon. J. N. Nutt, page 8 (C-222)

no establisheddepartmentalconstruction on the points raised.
"1

. Is a person required to hold a distributorslicense before making any public display of fireworks in Texas. It is assumed that the person making the public display of fireworkswill be in possessionof Class A and/or Class B fireworks for such purpose.' Section 1 of the Act defines Class A fireworksas: "Those fireworksdefined in Section 10 of this Act and not otherwise;" and Class B fireworksas : "Shall Include all types of dangerous fireworks excepting fireworksdesigntted as ICC Class C Common Fireworks and Class A Fireworks.

Section 2 of the Act provides: "It shall be unlawful for any individual,firm, partnership,corporationor associationto possess for sale within the state, sell or offer for sale, at retail, or use, within the State of Texas, any fireworks other than the permissible fireworksherein enumerated." The permissiblefireworks enumeratedin this section are limited to ICC Class C Common Fireworks only, and thus, at this point, Class A and Class B fireworksare not permissiblefireworks. There follows later in the act, however, Section 9, the pertinentportion of which Is as follows:

"Sec. 9. Be it further enacted, that no person, firm, corporationor association without securinga permit from the State Fire Marshal, shall manufacture, possess or sell any dangerous fireworks for any use or purpose, including agricultural

purposes or wild life control. Before any dangerous fireworksmay be manufactured,possessed, sold or used, a permit therefor specifyingthe uses to be made thereof mu@ be secured from the State Fire Marshal.

. . . As the provisions of Section 9 are specialprovisions coming later than the generalprovisionsof Section 2, they must be regarded as an exception. The rule for statutory constructionin this situationis stated in 39 Tex.Jur., Statutes, Sec. 114, as follows:

"In case of conflictbetween a general provision and a specialprovision dealing with the seme subject,the former is controlledor limited by the latter; and this iS so whether

-1077-I. -

Hon. J. N. Nutt, page 9 (C-.222)

the provisions in question are contained in the same act or in different enactments. In other words, when a statutemakes a general provision apparentlyfor all cases and a specialprovision for a particular case or class, the former yields and the latter prevails in so far as the particular case or class is concerned. In such circumstances, the specialprovision or statute Is regarded as though It were an exceptionor proviso, removing somethingfrom the operationof the general law." Section 10 grantingpermits and or a general license for the purpose of P rovldes a comprehensive method for public display of dangerous fireworks. As you pointed out in your letter, the last sentenceof this Sectionprompts the above question, this sentencebeing:

'For purposes of license the sale and/or possessionof Class A and Class B fireworks only, as describedhef;ein, shall require a Distributor's

permit.
A careful examinationof the entire Act reveals that the words 'license'and "permit"are used frequently in the major portions of the Act. It is, however, Important to note that this use is confined so that the terms are not used interchangeably so as to refer to the same authority. These two terms are so carefullyused throughoutthe Act that to say that "license"should have been used In the place of 'permit" in the last sentence of Section 10 quoted above is to impute a mistake in terminology which the Act as a whole consistently

refutes. It is the opinion of this office that a person is not required to hold a Distributorlslicense before making any public display of dangerous fireworks in Texas, but a permit issued by the State Fire Marshal as authorizedin Section 9 is required of such person and the display license as provided in Section 5H is also required.

"2. If you have answeredQuestionNo. 1 above in the affirmative,then please advise If the applicant for a permit to publicly display fireworks should be required to furnish proof that such license had been obtained before the applicationfor a permit is approve+ and the permit issued by the proper authority.
In view of the answer given to No. 1, this question is not answered.

-1078-Hon. J. N. Nutt, page 10 (C-222)

“3. Is a person who makes a public display of Dangerous7 fireworksrequiredby the Act to puraase or zcquire such fireworksonly from a duly licensedmanufacturer,distributor,jobber, retailer or Importer?" Reference is made to the prior answers given herein for the basis for the answer to this question. Again it is p~ointed

out that the purpose of this act is the protectionof the health, safety, and general welfare of the public. It is not the purpose of this Act to prohibit citizens of this State from purchasing such fireworks from manufacturers, distributors, jobbers,retailers and importersof other states,but it is to provide for a maximum amount of protectionif such fireworks are manufactured,

possessed

, sold or used within this State. QuestionNo. 3 is answeredby stating that if such fireworks for public display are purchased or acquiredwithin the State of Texas, the same are required to be purchased or acquired through a manufacturer, distributor, jobber, retailer, or importerwho holds a permit issued by the State Fire Marshal pursuant to the provisionsof Section 9 of the Act.

“4. If your answer to QuestionNo. 3 is in the affirmative,then please advise if a person who makes a public display of fireworks is prohibitedby the Act from purchasingor acquiring such fireworks from an unlicensed manufacturer,distributor,jobber, retailer or Importer outside of the State of Texas, either by delivery in or out of the State; and if the Act so provides, If such provision is valid under the Federal Constitution."
In view of the answers given hereinabove,it is the opinion of this office that the Act does not prohibit a penson who makes a public display of dangerous fireworks from purchasing or acquiring such fireworks from an unlicensedmanufacturer,distributor, jobber, retailer or importer outside of the State. It Is, however, our opinion that delivery of such fireworkswithin this State would necessitatethat the persons so deliveringand receiving such fireworkshave the proper permits Issued by the State Fire Marshal as authorized in Section 9 of the Act.
SUMMARY Article 1725, Vernon's Penal Code, requires all out-of-state

manufacturers,

distributors

-1079-Hon. J. N. Nutt, page 11 (C-222)

and jobbers,who offer fireworks for sale in Texas to obtain a license as a conditionto the sale thereof. The term "out-of-state" as used does not includemanufacturers, distributors, and jobbers located or domiciled in foreign countries. Purchasesof permissibleBCC Class C Common Fireworks7 fireworks consummaed outside this State, with irelivery made outside this State do not violate this Act; but,f if the contract for purchase is entered outside this State and the manufactureror Importermakes deliverywithin this State, such purchase does violate this Act. All purchasesmade, however, within this State are subject to this Act so as torequire the parties to such sale to have the appropriate license. A.person Is not required tohold a distributor's license in order to make a public display of dangerousmass A and Class B Fireworks7 fireworksrn Texas, buta permit as issuer by the State Fire Marshal pursuant to Section 9 Is required. Dangerous fireworks for public dlsplay,ifpurchased or acquired within the,State.of Texas must be purchased or acquired through a manufacturer, distributor,jobber, retailer or importer holdlng~apermit issued by the State Fire Marshal pursuant to Section'g. The Actdoes not prohibit purchase or acquisitionof dangerous fireworks for public display from an unlicensedmanufacturer,distributor,jobber, retailer or importer outside of Texas, but delive'ry

of such fireworkswithin this State would require the proper permits pursuant to Section 9 by the party deliveringand receiving such fireworks. Very truly yours, WAGGONER CARR Attorney General

LCM:mkh

-1080-.

Hon.' J. N. Nutt, page 12 (C-222)

APPROVED: OPINION COMMITTEE
W. V. Geppert, Chairman John Reeves~ Joe Trimble ;. .;. ;hu;tz

. . APPROVEDFOR THE ATTORNEY Gm BY: Howard W. Mays

-1081-