OFFICE OF THE ATTORNEY GENERAL OF TEXAS 

AUSTIN 

May 13, 1939 

,.. _,. 

; fbj 

Honorable Eugene Brady 

Assistant County Attorney 

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 ;. ~,-"

above tax, aLitI auoh psrsOn, fim or 

elli.ug suoh oaanon oraokere 6hal.l ba 

an additional tax lhn the above amount 

II additional 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 snore than one inoh in olroumnbmnoe aonm~nly sold and exploded for purpoeaa or amumbment. Hothbng herein shall be 80 oenstruo~ed (QOnatrUeb) 

as to prohibit the sale of, or to plaae a tax on, the $a10 

OS oartridges, oombuatiblo paokagas 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 measure doss not 

levy an oooupation tax upon every person, rib-m or oorporatlon aella woannon arackers, or toy pistols used for shooting or exploartriages," but rather levies such tax upon every person, firm or 

corporation engaged in the oooupatlon of "selling cannon 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 

relating to oocupational taxes, meana the business In whloh one 

prinolpally engagea to make a living or obtain wealth. 27 Tex.,Jur. 

p, 896 (Licenses Sec. 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 laid down by our courts, and similarly defined by the courts of 

other juri~diatlons, can it reasonably be said that a general notion 

store, as oorrmeonly operated and conducted, suoh as 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 intendment of 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 interpretation of this statute 

prompts a negative answer. To hold othermlae would result in the 

taxation of a xnere incident to an ocaupatlon rather than the oaoupatlon.~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 

oourt held that where colllplainant sold oooo 003.8 in aase'lote in 

ooqneotion rfth his lrholesals.grocerg bwiaeea, and pald'the privilege 

tax required of 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 ,sale of 0000 

oola and oolavine. The theory of this holding was that the wholesale groaer in question,,in-the oonduot 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 oola withinthe meaning of the tax statute on such bualnee& 

In the ease of Carter v. State; 44 &la. 29, it was held 

that one whose ahief business is that of a dry goods merchant and 

who keeps a small stook of .tobaoeo mhiah he sell8 In very small 
E.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,racognlzed rule that tax meakres are construed striotfy in favor of the taxpayer, and that statutes genarally should be so construed a8 to acoord them a reasonable rather 

than an unreasonable operation and result, we are constrained to 

hold that the Legislature of Texas dfd not intend by Section 30, 

Artiole 7047, Revised Civil statutes, to lsry an onerous tax of 

$500.00 annually upon notion or variety stores selling toy pistols 

aa an incident to such business. 

Tours vary truly