OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN

May 13, 1939 

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Honorable Eugene Brady Assistant CountyAttorney Hunt county Greenville,Texae
Daar Sir:

in your letter of May 8, n 38, Artiola 7047,Revised

dnuon oraakeril,

eto.- oration engaged in the aokarta,

or toy pistols oartridgea;within this undrea dollars, and ;/ oltiea or towns in whloh such have the power to levy a tax i unt aa now provided by law in ;.~,-"'i above tax, aLitIauoh psrsOn, fim or elli.ug

suoh oaanon oraokere 6hal.l ba an additional tax lhn the above amount IIadditional liorn~a for rash sepaxato ; or plaoe in whioh suob oannon oraokslce

. By the taw *oumoa araoksr' is maant any fire oraokar or other aorabusttbla, paokage more than two inohes in length, and snorethan one inoh in olroumnbmnoe aonm~nly sold and exploded for purpoeaa or amumbment. Hothbng herein shallbe 80 oenstruo~ed (QOnatrUeb) as to prohibit the sale of, or to plaae a tax on, the $a10 OS oartridges,oombuatiblopaokagas or axploaivas ao~a5only used for firearms or .artillery, mining, axoavatlng earth or stone, aolantli5.0 purposes or ror any gubllo or prlvatr work,"O-01

iloll. +Wne Brady. Cay 13. 1939, Page 2

It will be noted that the foregoing t&x measuredoss not levy an oooupation tax upon every person, 

### rib-m or oorporatlonaella woannonarackers, or toy pistols used for shootingor exploartriages,"but rather levies such tax upon every person, firm or corporationengaged in the oooupatlon of "sellingcannon oraokers, or toy pistols used for shooting or exploding cartrldgea.w Thle,ie slgnlrloant in view of the definition of the term *oaoupationw'given by our courts. "Gcoupation"a8 the term is used in 

### the statutes relatingto oocupational taxes,meana the businessIn whloh one prinolpallyengagea to make a living or obtainwealth. 27 Tex.,Jur. p, 896 (LicensesSec. 50); Shed v. ttate, 70 Crlm. Rep. 10, 155 e. a. S24; Love vs. Ftate, 91 Grim.Rep. 469, 20 3. K. 978; standford v. State, 16 Tex. App. 331.

Toshed by the foregoing definition or the term RoccupetlonIR as laiddown by our courts, and similarlydefined by the courts of other juri~diatlons,can it reasonablybe said that a generalnotion store, as oorrmeonly operated **and** conducted, suohas uoolworth*a, **-es&S,** orallt*a,

eta., Is engaged in or devoted to the Cououpatfonv~ of selling *toy pistols ueed for shooting or exploding oartridgee,v within the intendmentof the above tax measure, because,perohanoe, among the thousands oi articles dally offered ror aale, toy pistols i find a @laoa. A fair and workable interpretationof this statute promptsa negative answer. To hold othermlaewould result in the taxation

### of a xnere incidentto an ocaupatlon 

### ratherthantheoaoupatlon.~itselt.Hurt vs. Cooper, 110 S. Ji.(26)896.

This line of reasoning la not without support in the authorities of other states. In the ease of Oarney, et al vs. Jiamilton **by** the Supreme court or hlsslsalppi. reported ILI 42 so. 578, the oourtheld thatwhere colllplainant sold oooo 003.8 in aase'lote in ooqneotionrfth his lrholesals.grocerg bwiaeea, and pald'theprivilege tax requiredof a wholesale merchant to aarry on suoh wholesale grocery buslnesa during the year, he wae not sub)eat to a privilege tax imposed upon persone 8aintainlng a depot for the ,saleof 0000 oola **and** oolavine. The theory of this holdingwas that thewholesale groaer in question,,in-theoonduot of his busineea ae euoh, bought and sold oooo oola as any other article or~merohan4lse,and was not madntainlng a depot for the distribatlon or ahlpment of oooo oolawithinthe meaning of the tax statute on such bualnee&

In the ease of Carter v. State; 44 &la. 29, itwas held that onewhose ahief business is that of a dry goods merchantand who keeps a small stook of .tobaoeo mhiah he sell8 In very smallE.on.Sugene Brady, by 13, 1939, Page 3

gmntlties for the accoxamdtition of his dry goods auatomers Is not a tobacco dealer and he is therefore not liable for selling without a license.

In the light of the fors&oin.g authorities,4ereuasive as they are, and under the,racognlzedrule that tax meakres are construed striotfy in favor of the taxpayer, and that statutes genarally should be so construeda8 to acoord them a reasonable rather than an unreasonable operation and result,we are constrained to hold that the Legislatureof Texas dfd not intendby Section 30, Artiole 7047, Revised Civil statutes, to lsry an onerous tax of $500.00annually upon notion or variety stores selling toy pistols aa an incident to suchbusiness.
Tours vary truly