THE A~RNEY GJXBERAI. 

OF TEXAS 

G?IRALO C. MANN 

Mr. William J. Tucker 

Executive Secretary 

Game, Fish and Oyster Commission 

Austin, Texas 

Dear Sir: Opinion No. O-4497 

Re: Wholesale dealers required to procure wholesale fish and oyster 

dealer's License for each place of 

business. 

Your request for an opinion is based upon a letter 

to Honorable Murrell L. Buckner, Chairman of the Game, Fish 

and Oyster Commission, from Mr. J. B. Arnold. The fact 

situation presented and question is: 

"There are now operating In several of the 

larger cities in Texas, fish companies whose headquarter offices are located out of the state. 

The subject parties are all residents of states 

other than Texas and they all obtain all of their 

raw fish products in states other than Texas, and 

in such other states process and pack them until 

the final products is what is known as 'frozen 

fish products'. These products are then thoroughly packed, after having been beheaded, cleaned, 

skinned, and placed through a process of freezing. 

This merchandise is then shipped in to Texas and 

stored In freezing plants in several of the larger 

cities. 

'The merchandise Is stocked in Texas and sales 

are made by local representatives who act in the 

capacity of salesmen for the fish companies maintalning offices In the State of Texas through which 

orders and sales are taken and made. Sales are 

made In some cases to retailers in broken packages. 

Some of the concerns claim that they do not break 

the packages and sell only to wholesalers. The 

representatives of the fish companies take the orders 

and if the purchaser has a credit rating that will 

justify the seller to make the dellverg on open account, the merchandise fs delivered by the cold 

storage companies as Indicated by copies of Invoices 
. l .< 

Mr. kfilliam J,. Tuck,er; page 2 04497 

attached. In some cases the delivery is made 

by the freezing plant on orders of the representative of the various companies and when 

the credit does not justify the delivery without the cash, the freezing plants have lnstructions to make collection when delivery is made 

and credit the account of the corporation or 

individual who has aquatic products stored there 

and from which the delivery is made. 

"Mr. George D. Underwood, Merchandise Broker 

of Houston, Texas, represents one or more of the 

out of state fish companies, frequently mails out 

bulletins from his office quoting prices on fish 

f.o.b. warehouses in Texas. See attached copy on 

back of one of the bulletins. Mr. Underwood, personally, as well as some of the representatives 

in the state, has recently procured a wholesale 

fish and oyster dealers's license. There are other 

brokers in the state who have not procured a wholesale fish and oyster dealer's license. 

"The question has arisen as to whether or not 

fish companies such as the Atlantic Coast Flshcries Company, Fisheries Division, Boston, Mass., 

and The Whiz Fish Products Company, Seattle, Washington, and others, are due to procure their wholesale fish and oyster dealers's licenses since they 

store their merchandise with cold storage plants 

and deliver to the various dealers throughout the 

State of Texas from the cold storage plants in 

Texas, on orders from representatives of their 

company. 

"From Information obtained, they are foreign 

corporations or individuals storing their aquatic 

products In cold storage plants in Texas and their 

business is handled by the local representatives, 

some of which have purchased the proper license to 

operate in Texas. Some of these representatives 

have one or more stocks stored in Texas and unless 

the question of inter-state shipment is envolved, 

I take the position that under our Game and Fish 

laws, the corporations or individuals storing the 

stock of aquatic products are due to procure a 

wholesale fish and oyster dealer's license for 

each place of business. 

fl I! 

. . . . . . 
Mr. William J. Tucker, page 3 O-4497 

Article 934a, Vernon's Annotated Penal Code, as 

amended, reads in part: 

"Sectional The following words, terms and, 

phrases used, in this Act are hereby defined as 

follows: 

"(b) A 'Wholesale Fish Dealer' is any person 

engaged in the business of buying for the purpose 

of selling, canning, preserving or processing, or 

buying for the purpose of handling for shipments 

or sale, fish or oysters or shrimp or other commercial edible aquatic products, to Retail Fish 

Dealers, and/or to Hotels, Restaurants or Cafes 

and to the Consumer. 

,I 

. . . . . 

'Section 3. The licenses and the fees to be, 

paid~ for the same are hereby provided for In this 

Act and are as follows: 

" . . . . . 

"2 . Wholesale Fish Dealers' License fee for 

each place of business, Two Hundred Dollars ($200). 

II . . . . . 

"11. Place of business, as used In this Act, 

shall include the place where orders for aquatic 

products are received, or where aquatic products 

are sold, and if sold from a vehicle, the vehicle , 

on which, or from which such aquatic products are 

sold, shall constitute a place of business. The 

license shall at all times be publicly displayed 

by the dealer in his place of business so as to 

be easily seen by the public and the employees 

of the Game, Fish and Oyster Commission. And if 

any aquatic products are transported for the purpose of sale in any vehicle the license required 

of such dealer shall be displayed Inside of such 

vehicle. Provided that no person shall bring into this State any aquatlc products and in this 

State offer same for sale without procuring the 

license required for such a transaction by a dealer in this State, and the fact that such aquatic 

products were caught in another State shall not 
Mr. William J. Tucker, page 4 O-4497 

entitle the person claiming to have caught them 

to sell same In this State as a commerclel flsherman. " 

We held in Opinion No. O-1596 thatthe intent of the 

Legislature in the passage of A title 934a, supra, wag to 

require wholesale fish dealers F o 

of business. 

pay a fee for each place 

We held In our Opinion No. O-3794 that the term 

"places of business" as used in the statute is to be understood and given its usual and ordinary significance. 

We believe that the case of Sonneborn Brothers vs. 

Cureton;.Attorney General of the State of Texas, et al, 262 

U. 5. 506, decided by the Supreme Court of the United States 

and followed many tlmes in subsequent cases eliminates the 

question of inter-state commerce from your Inquiry upon the 

basis of the facts presented. The facts were: Sonneborn 

Brothers was a firm of non-resident merchants selling petroleum products, with its principal place of business in New 

York City. It had an office and warehouse in Dallas and a 

warehouse in San Antonio. Sales were made in a number of 

ways, among those being by the sale of oil (1) shipped into 

Texas and afterward sold from the storerooms in unbroken 

original packages and (2) from sales in Texas from broke; 

packages. Texas was asserting Its right to collect an occupation tax levied on all wholesale dealers in oil based upon 

a percentage of the gross amount of sales. The company made 

no contention that it did not owe taxes mentloned In (2) 

supra, but did deny liability for taxes assessed under (l), 

supra. 

The opinion written by Mr. Chief Justice Taft holds; 

"The question we have to decide is whether 

oil transported by appellants from New York or 

elsewhere outslde of Texas to their warerooms or 

warehouse in Texas, there held for sales In Texas 

in original packages of transportation, and subsequently sold and delivered In Texas in such 

original packages, may be made the basis of an 

occupation tax upon appellants, when the state 

tax applies to all wholesale dealers in 011 engaged in making sales and delivery in Texas. 

I'Our conclusion must depend on the answer to 

the question: Is this a,regulatlon of, or a burden upon, Inter-state commerce? We think it is 

neither. The oil had come to a state of rest In 
Mr. William J. Tucker, page 5 O-4497 

the warehouse of the appellants and had become a part of their stock with which they proposed to do business as wholesale dealers in the 

State. The interstate transportation wes at an 

end, and whether in the origln~sl packages or not, 

a state tax upon the oil as property or upon its 

sale in the State, if the state law levied the 

same tax on all 011 or all sales of it, without 

regard to origin, would be neither a regulation 

nor a burden of the interstate commerce of which 

this 011 had been the subject." 

It Is our opinion, therefore, that the corporations 

and individuals storing stocks of aquatic products in this 

State and selling and delivering therefrom by duly authorized 

agents are subject to and must procure a wholesale fish and 

oyster dealer's license for each place of business. 

Yours very truly 

ATTORNEY GENERAL OF TEXAS 

By s/Lloyd Armstrong 

Lloyd Armstrong 

Assistant 

LA:mp:wc 

APPROVED APRIL 1, 1942 

s/Grover Sellers 

FIRST ASSISTANT 

ATTORNEY GENERAL 

Approved Opinion Committee By s/BWB Chairman