. .

THE A-IT~RNEY GENE-L OF TEXAS

Hon. Edgar-E. Payne CountyAttorney Hockleg County Levelland, Texas
Dear Sir: OpinFonNo. O-1423 Re: .Is

Roy Dunn, Justice PrecinctNo. 5, Hockley County, Texas, a public weigher?
Your request for an opinion on the followingquestion and statementof facts has been received:

"ISROY DUNN, OF JUSTICE PRECINCTNO. 5, HOCKLN COUNTY, TEXAS, A PUBLIC WEIGHER? "Statementof facts.
For the past severalyears, there has been elected a publicweigher for Justice Precinct No. 5, Hockleg County, Texas, under authority of Article 5683,Rev. Civ. Statutes 1925, and a public weigher was so elected for said Precinct on November 8, 1938, and he has compliedwith the requirements of Chapter 6 of the Rev. Civ. Statutes and has quallfted as said publicweigher,was sworn in Andy has received his certificate from the Commissioner of Markets and Warehouses as well as his Commission of office. "Prior to thts year (1939). the electedpublic weigher has weighed cotton at the Lubbock Compress Company at its office in Levelland, Texas, and a charge of 10 cents per bale of cotton has been made for his weight tickets. Whether or not the public weigher was paid a salary for hFs services,received the 10 cents charged for weighing, or worked under some othertrade or agreementwith the compress company, I do not know and I believe is Fmmaterial in arrlvlng at a correct answer to the question here involved. "Sometimeduring the past year the present. -

Ron. Edgar E. Payne,page 2 O-1423

electedpublic weigher was offered a salary to weigh cotton at the compress company's office and he refused their offer. "RoyDunn has never been elected to the office of public weigher of said PrecinctNo. 5. "RoyDunn presenteda bond to the commissioners'court of Hockleg County, Texas, and the court passed the following order: "'WHEREAS,Roy Dunn has presented to the bommlssioners' court a good and sufficientbond as publicweigher of cotton,wool, sugar,grain, hay and pecans in accordancewith law in the sum of Twenty-fiveHundred ($2500)Dollars, and 'WHEREAS,he desires to weigh for compensation for the public, and 'WHEREAS,'

he is a resldent citfzen of Prec. 'No.5, Hockley County, Texas,
"IT IS THWHPORE, ordered by this court that this bond.

be in all things approved and that the County Clerk of Hockleg Countynotify the Commissioner of Markets and Warehouses of Texas of the approval of saidbond.
ATTEST: (Signed ) C.D.Bass

County Clerk (Signedj J. A. Ellis County Judge' whfch said order, you will note, is not dated but was filed in the office of the County Clerk of Hockley County, Texas, on the 10th day of January A.D. 1939, and that portion of the order relative to notifying the CommissionerMarkets and Warehouses has been done by the said clerk. "RoyDunn was not appointed as public weigher by the Governor upon the recommendation of the senator and a majority of the representatives from this senatorialdistrict, in fact, has not been appointed. "The following state of facts also exist: 1. Lm, TEXAS IS THE ONLY CITYAND/OR TOWN LOCATED WITHIN SAID JUSTICE PRECINCT NO. 5;.

Hon, mgar E. Payne, page 

### 3 o-1423

2. LEVELLAND, TEXASHAS NEVER RECEIVED IN AhT ONE YEAR ONEHUNDRED THOUSAND BALES OF COTTON FOR SALE OR FOR SHIPMENT; Art. 5681; 

### 3. LEVELLAND, TEXASHAS NEVER RECElVEDAS MTJCH AS FIFTY THOUSANDBALES OF COTTON, TWENT?- FIVE THOUSAND TONS OF COTTONSEED,NOR THE AMOUNT LISTED OF ANY OTHER COMMODIT1NOR ANY COMMODITY IN LARGE QUANTITIES;Art. 

### 5681; "RoyDunn is not the owner of the Lubbock Compress Companybut has made some kind.of trade or agreement to weigh cotton at the compress for them. The companydoes not buy nor seI1 cotton but only compresses and stores it and apparently Roy Dunn has attempted to qualify under Article 5704 but therewould be no need for the owner to weigh cotton as therein provided, and the company is not in a placewhere no publicweigher has been appointed or elected. Art. 5704."
As pointed out in opinionNo. O-1188 of thisDepartment to the Honorable W. S. Bussey, Chief of the Weights and MeasuresDivision of theDepartment of Agriculture:

"Numerousopinions have been written by this department on questions relating to pu'blic weighers, first,who are appointed underArticles 

### 5681.

and 5692,Revised Civil Statutes, 1925; second, electedunder Article 

### 5683,Revised Civil Statutes, 1925; and who qualify y-&r AEti$i,e+2704, Revised Civil Statutes, D

on the vision Roy Dunn 

### is listed as a duly qualified publicweigher

FublicWeighers Ledger of the Weights and MeasuresDiof theDepartment of Agriculture as foliows: "RoyDunn. Levelland. PublicWeigher. Article 5704, Revised Civil Statutes, 1925. PrecinctNo. 

### 5- 10, 1941." Certificate expires January

Since Roy Dunn has qualified under Article 5704 of Revised Civil Statutes, 1925, your question is whether or not Article 5704 authorizesprivate weighers to qualify as public weighers and weigh for hirewhere there are regularly elected (Article 5683, R.C.S.. 1925) or a pointed public weighers (Articles 

### 5681and 5692, R.C.S., 1925 P.Hon. Edgar E. Payne, page 4 O-1423

Article 

### 5680 of the Revised Civil Statutes, 1925, defines "PublicWeigher" as follows:

"Anyperson engaged in the business of public weighing for hire, or any person, who shallweigh or measure any commodity,produce or article, and issue therefor a weight certificate or weight sheet,which shall be accepted as the accurate weight uponwhich the purchase or sale of such commodity,product or article is based, shall be known as a public weigher, and shall complywith the provisions of this chapter. The provisions of this article shall not apply to the owners, managers, agents or employees of any compress or any publicwarehouse in their operationas a warehouseman. This exemption shall not apply in any manner to any Texas port."

follows:

Article 5704,Revised Civil Statutes, 1925, reads as
"Nothing in this chapter shallprevent any person, firm or corporation fromweighing his own cotton,wool, sugar, hay, grain or pecans inperson. In places where there are no public weighers appointed or elected,any person who shallweigh cotton,wool, sugar, grain, hay or pecans fcr compensation shallbe requiredbeforeweighing such produce to enter into a bond for twenty-fivehundred dollars approved and payable as in case of publicweighers referred to in this chapter, and conditioned that he will faithfullyperform the duties of this office and turn over all propertyweighed by him on demand of the owner. This article shall not apply to merchant flouringmills."
Itwill be noted that the statutereads that I'in places where there are no public weighers appointed or elected, any person who shallweigh, etc." The language of the statute is not prohibitory. It does not state that in placeswhere there are public weighers appointed or elected,no person shall qualify as a weigher for compensation". The statute cannot be construedas a prohibition.

In the case of Paschal v. Inman, 157 S.W, 1158, the Supreme Court of Texas held in an injunction suit instituted by a duly elected and qualified public weigher of Justice Frecinct No. 4 of Wood County to restrain Inman from conducting the business of a private weigher in suchprecinct and for the recovery of damages:- .

Hon. Edgar E. Payne,page 

### 5 O-1423

"Thebusiness of privateweighing is a legltimat,e vocation and falls within those ordinary occupations of lifewhich the citizen is privileged to follow as an inalienableright, subject only to such restraintsand limitationsas may be imposed in a valid exercise of the police power of the State. Since the liberty of pursuit as to such a calling is not dependent upon legislative sanction, the author1t.y for its abridgmentmust rest in some positive and valid l.egalinhibition. l.* *.*"
"It is c early recognized in the present statutes tha

& the electionof a publicweighe;n in a justiceprecinct shall not operate as a denial to all persons of the right to therein pursue the business of private weighing." * * *'I The case of Martin v. Fog, 234 S,W. 

### 698,decided by the Amarillo Court of Civil Appeals, is amp1.elegal authority for answering your question in the affirmative, It holds that any person has the right to pursue the occupation of weigher for the public, and that the bond required of suchweigher is the,bona provided for inArticle 

### 7834,Complete Texas Statutes, 1920. (Article

### 7834being almost identicalwith Article 

### 5704, R.C.S., 1925).

The court reviewing the legislation on the subject said:
"Wenot only~do not find the 'positiveinhibition' against the pursuit of the business by others than those appointed or elected,but, as stated, the languageused in the act suggests the contrarypurpose.' and again --

"If it had been the intention of the Legislature to prohibit any persons except all officialweighers, elected or appointed under the terms of the law, from engaging in the business of weighing, it,,would have been easy to have expressed such intent.
On August 

### 6, 1926,George B. Terrell, Commissioner of Agriculture, directed the identicalquestion before us to Attorney General,Dan Moody. It read:

"UnderArticles 

### 5680and 

### 5704,R.C.S., 

### 1925,may anY citizen other than an officialweigher, elected or appointed. -

Hon. Edgar E. Payne, page 6 O-1423

under the terms of the law, ing for the public. engage in the business of weighI quote Article 

### 5704 (7834)(4216),etc."

Han, C In a conference opinion dated September 2, 

### 1.926, by .L.Stone, Assistant Attorney General, and countersigned by Attorney General, Moody, it was held:

"1* The business of privateweighing is a legitimatevocation and fallswithin those orj,fnary occupationswhich a citizen isprivileged to follow as an inalienableright, subject onl,y to the valid exercise of the police power of the State, 

### "2

. Since the right of a person to engage in the business of weighing for the public in not dependent upon legislative sanctionand the authority for its abridgmentmust rest in some positive and valid legal inhibition in the absence of such inhibition,a person is authorized to engage in the occupation of weighing for the public notwithstanding the fact that there is a duly appointed or elected and qualified public weigher in the same city, precinct, or county."
'On September 14, 1927, in the administration ofAttorney Generai, Claude Pollard, 1927, by the Honorable Joe S.in an opinion dated September 22, Brown, AssistantAttorney General,, it was held:
"As t.he

Court has held in effect,any private individual shall have the privilege of weighing for compensation by entering into a bond for $2,500000approved and payable, as in the case of public weigher and conditions that he vii1 faithfullyperform the duties of his office and turn over propertyweighed by him on demand of owner. The statute does not provide for any particular term of office. The time which a person shall exercise an occupation of weighing for the public it seems is leftwithin, the discretion of the person who qualifiesunder the statute.
"It is the opinion of thisDepartment that such weigher who qualifies under Article 

### 5704 would occupy said position so long as the public for whom he is weighing is protectedby a bond as requires by the statute.Hon. Edgar E. Payne, page 7 O-1423

In opinionNo. O-1188 of thisDepartment we have previously recognized the right of a private individual to qualify as a weigher for the public under Art. 5704, R.C.S., 1925. It is our opinion that any personmay qualify as a weigher for,

the public for hire underArticles 5680 and 5704, R.C.S., 1925, and weigh for the public for compensation irrespective of whether or not there are regularly elected or appointed public weighers in the same precinct. Since the indiviaual named in your~letterhas posted bona in the statutory amount and same has been approved by the Commissioners' Court in compliancewith Article 5704,R.C.S., 1925, and,certificate has been issued by the Division ofWeights and Measures of theDepartment ofAgricultureupon the authority of thencourt order, we hold that said individual is authorized to engage in the occupation of weighing for the public notwithstanding the fact that there is a duly appointed or elected and qualified public weigher in the same precinct.

We wish to thank you very much for the able brief which you submittedupon the subject,end call your attention to the fact that we are enclosing copies of opinionsdated~ August 6, 1926 and September 22, 1927 of former administrations of this department, the formerbeing conference opinion by Assistant Attorney General C.L. Stone to Hon. Geo. B. Terrell, Commissioner ofAgriculture and the latter belng opinion by Assistant Attorney General, Joe S. Brown;to Hon. Geo. B. Terrell, Commissioner of Agriculture,Austin, Texas.

Trusting thatwe have fully answered your inquiry, we are Yours very truly
ATTORNEY GENERAL OF TEXAS

DS:ob Encl. (opinionsdated

8-6-26 and 9-22-27)
APPROVED SEF 29, 1939 s/Gerald C. Mann A'ITORNEY

GENERAL OF TEXAS By s/Dick Stout Dick Stout Assistant

Approved Opinion CommitteeBy s/BWB Chairman