_ *



### THE 

## Aaroruv~~ GENERAL
OFTEXAS

Honorable Thos. A. Wheat CountyAttorney Liberty County Liberty, Texas
Dear Sir: OplnlonNo. 

### 0-920 Re: Is a merchant, sellingdrygoods from a store on one side of the street and furniture;various household appliances, and some dry goods from a store on the other side of the street because of lack of facilities to carry on'the business in one store, but maintaining one set of books and using the same name for both stores, operatinga twostore chain so as to be,liable for the lice&e fee thereon.'levied by Article LlllD, Penal Code?
Inasmuch as the above question, submittedby your letter of June 2, 

### 1939,turns largely upon a question of fact, we quote fully from your letter as follows:

"Thequestion has arisen in this Countywith regard to a particular instance as to whether or not a man who operates a store under one name on one side of the street in an oil field town, to-wit, Dalsetta, Liberty County, Texas, and in that store sells dry goods and he operates a second store on the other side of the street inwhich he sells furniture and various household appliances and some goods und,erthe same name that he operates the first store under and the reason why he doesn't have both storesunder the same roof and In the samebuilding because he cannot obtain space in the samebullding or an adjolnlng building to put the furnlture,and fixture store in, would be subject and required to pay a license fee for two stores instead of one store under Article 1lll.Dof the Penal Code, as passedby the Acts of 

### 1935, 44th Legislature First Called~Sesslon, found at page 422 ofVolume 2 ofVernon's Annotated Statutes.Hon. Thos. A. Wheat, page 2 O-920

**** "It ismy argument thatwhere a man has to put hiswares in one particularbuilding because of necessitous circumstances,which circumstances are beyond his controland he would have them under the same roof and.in the same building, if posslblo,but he has toplace therest of his wares as near to hismain

. store as possible,and he has made them one establishment, and as a matter of fact they are treated. by him as one store and operatedas one store and he keeps one set of books on both establishmentsthat he comes within the purview of Article 1lllD and he is only maintaining one store." ****

We have carefully considered the citations to Words and Phrases furnished in your letter, but we do not find that the judicialdefinitions of the word "store"therein given, are of assistance in arriving at a correct conclusion. This Is because your question the term,"store" turns upon a statutorydefinition of

rather than upon the common acceptation of the term, and the Supreme Court of Texas inHurt, et al'vs. Cooper, et'al, 110 S. W. (2d)

### 896,with referende to such definition, said:

"The statutehavingdefined the word, we are not concernedwith itsusual meaning. Under that definition a mercantile establishmentat which goods, wares, or merchandise of any kind, except those exempted,are sold is a store and is taxable as such, and this even though itmay also be a distributing point. Conversely, a mercantile establishmentat which no sales are made is not a store, and thereforenot taxable. The test iswhether the sales of goods, wares, or merchandise are made at the place." Section 7, Article 1111D, Penal Code, d.efines"store" as follows:

"Theterm 'store'as used in this Act shall be construed to mean and includeany store or stores or any mercantile establishmentor establishmentsnot. specifically exemptedwithin this Act which are owned, operated,maintained, or controlledby the same person, agent, receiver, trustee, firm, corporation, copartnershlp or association, either domestic or foreign, inwhich goods,wares or merchandise of any kind are sold, at retail or wholesale." Applying the foregoingdefinition to the facts set out in your letter, as we are constrained to do by the deci-Hon. Thos.A. Wheat, page 

### 3 0-920

sion of the Supreme Court in the case of Hurt vs:Cooper, supra, it is our conclusion that the merchant in questionwas owning, operating,maintaining or controllinga two-store chain In Daisetta, Liberty County, Texas, so as to become liable for the license fee fixed and providedby subdivision 2,'section 

### 5, Article llllD, Penal Code. It will be noted that the term "store:as used in this taxmeasure, is defined by Section 7 thereof, hereinabovequoted, to include "H store or stores oru mercantile establishmentor establishments,"which are "owned,operated,maintained or controlledby the same person" etc., and in or fromwhich "goods,wares or merchandise of ang kind are sold, at retail or wholesale." We find that all of theconstituent elements of a "store:as laid down by the statute, concur in the instant case. We have two entirely separateplaces,buildings or mercantile establishmentson different sides of the street, fromwhfch goods, wares or merchandise of somekind are sold, at retail or wholesale, and which are admittedlyunder the same ownershipand operation.

The fact that the exigencies of the situation,or the lack of suitable or ample building facilities in the business section ofDaisetta made it necessary or expedient for the merchant in questlon to conduct his business from two separate store buildings rather than from one, is an irrelevent consideration entirelybeyond the statute. To allow the incidenceof a tax to be avoided by suchpersonal conslderationsand mental reservations of a taxpayer,would amount to the virtual abrogation of such taxmeasure, at the will of such taxpayer.

The further fact appearing in yourletter that the merchant in question treated these two establishmentsor places as one store, operating them under one name and keeping one set of books, does not, to our mind, supporthis contention that he is owning and operating only one store,but rather strengthensour conclusion herein of his common ownership, operation, or control of two stores or mercantile establishments,as defined, so as to be liable to the license fee levied by subdivision 2, of Article llllD, Penal Code.

Thanking you for your brief and trusting the foregoing satisfactorilganswers your inquiry,we areHon. Thos. A. Wheat, page 4 O-920

Yours very truly
ATTORNEYGENEZUL OF TEXAS

By s/Pat M. Neff, Jr. 

### (simmd) Pat M.Azt:;i;;;.

PMN:N

APPROVED JUNE 23, 1939 (Signed)Gerald C..Mann ATTORNEYGENERAL OF TEXAS Approved Oplriion

Committee'BgB. W. Chairman