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: OpinionNo. O-4497 Re: Wholesale dealers required to procurewholesale 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 situationpresented and question is:

"Thereare now operating In several of the larger cities in Texas, fish companieswhose headquarter offices are located out of the state. The subjectparties 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 statesprocess and pack them until the final products iswhat isknown 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 freezingplants in several of the larger cities.
'Themerchandise Is stocked in Texas and sales are made by local representativeswho act in the capacity of salesmen for the fish companiesmaintalning offices In the State of Texas throughwhich ordersand 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 thatwill justifythe seller to make the dellverg on open account, themerchandise fs delivered by the cold storage companiesas Indicatedby copies of Invoices. l.<

Mr. kfilliam J,.

Tuck,er;

page 2 04497

attached. In some cases the delivery is made by the freezingplant on orders of the representative of the various companiesand when the credit does not justify the deliverywithout the cash, the freezing plants have lnstructions to make collectionwhen delivery ismade and credit the account of the corporation or individualwho has aquatic products stored there and fromwhich the delivery ismade.
"Mr.GeorgeD. Underwood, MerchandiseBroker of Houston, Texas, represents one or more of the out of state fish companies, frequentlymails 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 oysterdealers's license. There are other brokers in the statewho have not procured a wholesale fish and oysterdealer's license.
"Thequestion has arisen as to whether or not fish companies such as the Atlantic Coast Flshcries Company,FisheriesDivision, Boston, Mass., and The Whiz Fish Products Company, Seattle,Washington, and others, are due to procure theirwholesale fish and oyster dealers's licenses since they store their merchandisewith cold storageplants and deliver to the various dealers throughout the State of Texas from the cold storageplants in Texas, on orders from representatives of their company.
"From Informationobtained, they are foreign corporations or individuals storing their aquatic products In cold storage plants in Texas and their business is handledby 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 aquaticproducts are due to procure a wholesale fish and oysterdealer's license for eachplace of business. fl I!

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

Article 934a,Vernon's Annotated Penal Code, as amended, reads inpart:

"Sectional The followingwords, terms and, phrasesused,in this Act are herebydefined as follows:

"(b) A 'WholesaleFish 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 toHotels, Restaurants or Cafes and to the Consumer. ,I

. . . . . 'Section 3. The licenses and the fees to be, paid~for the same are herebyprovided for In this Act and are as follows:

"

. . . . . "2

. Wholesale Fish Dealers' License fee for eachplace of business, Two Hundred Dollars ($200). II

. . . . . "11. Place of business,as used In thisAct, shall include the placewhere orders for aquatic products are received, orwhere aquatic products are sold, and if sold from a vehicle, the vehicle , onwhich, or from which such aquatic products are sold, shall constitutea place of business. The license shall at all times be publiclydisplayed by the dealer in his place of business so as to be easily seenby 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 suchdealer shallbe displayed Inside of such vehicle. Provided that no person shallbring into this State any aquatlc products and in this State offer same for salewithout procuring the licenserequired for such a transactionby a dealer in this State, and the fact that such aquatic productswere caught in another State shall notMr. 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 OpinionNo. O-1596 thatthe intent of the Legislature in the passage of A title 934a, supra,wag to requirewholesale fish dealers Fo of business. pay a fee for each place

We held In our OpinionNo. O-3794 that the term "placesof business"as used in the statute is to be understoodand given its usual and ordinary significance.

We believe that the case of Sonneborn Brothers vs. Cureton;.AttorneyGeneral of the State of Texas, et al, 262 U. 5. 506, decided by the Supreme Court of the United States and followedmany tlmes in subsequent cases eliminates the question of inter-statecommerce from your Inquiryupon the basis of the facts presented. The factswere: Sonneborn Brotherswas a firm of non-residentmerchants sellingpetroleum products,with its principalplace of business inNew York City. It had an office and warehouse inDallas and a warehouse in San Antonio. Saleswere made in a number of ways, among those being by the sale of oil (1) shipped into Texas and afterward sold from the storerooms inunbroken original packages and (2) from sales in Texas from broke; packages. Texaswas 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 itdid not owe taxesmentloned In (2) supra,but did deny liability for taxes assessed under (l), supra. The opinionwritten by Mr. Chief Justice Taft holds;

"Thequestionwe have to decide iswhether oil transportedby appellants from New York or elsewhereoutslde of Texas to theirwarerooms or warehouse in Texas, there held for sales In Texas in originalpackages of transportation,and subsequently sold and delivered In Texas in such originalpackages, may be made the basis of an occupation tax upon appellants,when the state tax applies to all wholesale dealers in 011 engaged inmaking sales and delivery inTexas.
I'Our conclusionmust depend on the answer to the question: Is this a,regulatlon of, or a burden upon, Inter-statecommerce? We think it is neither. The oil had come to a state of rest InMr. William J. Tucker, page 5 O-4497

thewarehouse of the appellants and had become a part of their stockwith which they proposed to do business as wholesale dealers in the State. The interstatetransportationwes 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 interstatecommerce 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 sellingand delivering therefromby 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
ATTORNEYGENERAL OF TEXAS

By s/LloydArmstrong Lloyd Armstrong Assistant LA:mp:wc

APPROVED APRIL 1, 1942 s/Grover Sellers FIRST ASSISTANT ATTORNEY GENERAL Approved Opinion CommitteeBy s/BWB Chairman