OFFICE OF Y-HE AITORNEY GENERAL OF TEXAS 

AUSTIN 

Honorable George Ii. Shepp~d 

Comptroller of Publla Aacounte 

AH8CII:, reus 

m6r Sir; 

‘, not oerteln m6t 

~,olthintheM 

tar rwlda 68 

68king vhether or 

e “bu.lldLng materUle= 

Fe Tar fall. Your lotrge group of 1lnlber 

vhethep Or not the 

c lietsd, and eold 

vided that the terma 

"The lmber yarda are contending thet %he 

sale of the f'olloving mterial, when eald at Iumher yard@, vi11 not make them subjeat to the 

etorb tax. 
Honorable George H. Sheppard, page 2 

"1. COOLING SYSTEW : 

1-A. COOLING SYSTEM WITH FAN. Representative materials carried: 

(a) Grille, which replaces section of 

ceiling in building. A Grille 1s usually 

constructed of wooden slate-with outside 

wooden frame and sometimes metal is used. 

Grilles are constructed on job by carpenters, also carried In stock. 

(b) Pulpboard (such as Kasonlte) and 

Lumber for construction of airtight 

wind tunnel. One end of this tunnel 

1s connected with grille. The wind 

tunnel Is constructed on the job and 

1s located in the attic of the bullding. 

(c) A special suction type of electric 

fan designed for this particular use is 

built into the other end of the tunnel. 

(a) Louvres or Windows are used to permit air to pass out of building. Louvres are built into the gables of buildlngs. 

(e) Wire, Conduit (either paper or flexible) and Switch are built Into wall 

and celling for starting and stopping 

operation. 

All of the above materials are built into and become a part of the structure. 

1-E. OTilER COOLING SYSTEMS. Representative 

materials carried: 

Galvanized flat sheets, solder, lnsulation board, such as Masonite or Celotex, 

and asbestos paper for the construction 

of ducts which are built into walls and 

ceilings. Also grilles, pipe and pipe 
Honorable George H. Sheppard, page 3 

fittings. All of which materials can 

be used in construbtion of Other Cooling 

Systems. All of,the above materials are 

built into and become a part of the structure. 

"2. flEATING SYSTEMS: 

2-A. 

2-B. 

HEATING SYSTEM WITH GAS FLOOR FIJENACE. 

Representative materials carried: 

Metal grille replacing section of floor. 

Special type of gas burner connected beneath level: of floor. Saidburner is n& 

useful for any other purpose. Bolts ana 

screws for oonstructlon of system. Galvanized Iron izhiela constructed around 

Gas Burnex. Ducts, either metal or asbestos, constructed to lead from burner 

to flue or to ventilating pipe where no 

flue available. Thermostat, pipe and 

pipe fittings used therewith. The above 

materials are used in constructing on the 

Job as a part of the structure of a heating system with gas floor furnace. 

WALL HEATING SYSTEM WITH GAS BURNER. Representative materials carried: 

Unfinished Wood cuff or frame to be built 

In between studding or Into opening. Gas 

burner. Pipe ana pipe fittings. 811 of 

the foregoing materials to be built into 

&nd become a part of the structure. 

"3. EXHAUST FANS (Kitchen): 

3-A. FOR HOODS.. Representative materials carried: 

Wood framing with Galvanized flat sheets, 

shaped to desired form; also constructed and attached to flue or other ventilated pipe or duct opening. Special type of 
340 

Honorable George Ii. Sheppard, pge 4 

small electric exhaust fan Is built into hood to force fumes through flue or 

ventilated pipe or duct. 

3-B.FOR ROOMS. Representative materials 

oarried: 

Wood or metal frames to be built Into 

opening In outside wall. Metal for 

shields oonstructed'above opening to - 

protect from weather. Screen wire to 

cover opening. Special type of eleotrio exhaust fan built Into frame. 

"4. VENTILATORS: 

4-i. 

4-B. 

VENTiLATORS IN FOUNDATION AND BELOW FIRST 

FLOOR LINE. 

The purpose of this type of Ventilator 

Is to permit a clroulatlon oft air beneath 

the floor of the structure to prevent decay, deterioration ana rot of structural 

materials; including floors, beneath the 

first floor level, and furthermore to prevent destruction of such materials by 

termites. Sald Ventilators are now beIng required as part of house conetruotion by F.H.A. These Ventilators replace 

a section of the lower walls of the structure end are built Into the building. ReA 

presentatlve materials oarrled: Metal 

Lath, Hardware cloth, Poultry Wire, Heavy 

Woven Wire, Wooden strips ana metal, oement or wood grille, together with lumber 

used for building frame around opening. 

VENTILATORS IN STRUCTLiRE TO DISCHARGE 

FUkIES, ODOR AND SEWER GAS,, 

Building Codes In Cities require, and 

good building practices reoognlze, that 

each sewer connection In.a builalng shall 

be ventl%ated. Representative materials 

carried: Pipe of various kinds, pipe 
Honorable George H. Sheppard, Page 5~ 

fittings, Galvanized Iron flat sheets for 

construction of metal ducts, Wood and 

Metal Grilles, lead and oakum for connecting pipe, Lumber for framing Grille openlngs. These Ventilators are constructed 

in Walls, Floor6 and Celling6 and extend 

through roof. They,become a part of tk 

structure. 

4-C. VENTILAtiRS IN ROOF CONSTRUCTION. 

The purpose of these Ventilators Is to 

discharge hot air which develop6 in attic and roof of buildings. Many types of 

ventilators are used for this purpose depending upon character of hoof construetlon. 

(a) Louvres, which are used in gablee. 

This Ventilator 1s of wood slat oonstructlon with slats placed on steep pitch to 

prevent raln and snow from entering. Re'- 

presentatlve materials carried: Lumber 

Galvanized metal~and screen wire. uSUd1y - 

constructed on Job, butt small sizes also 

carried in stock. In all instaTiCe6 Louvres replace seotlons of walls and become 

a permanent part of the structure. 

(b) Grilles, @lch are used in Cornice. 

In cornice construction where. roof'projects 

beyond line of wall, ventilators in the 

form or grilles replace sectlons or cornice 

and are built Into and beoome a part of the 

structure. Rep.resdntatIve materials are 

the same a6 mentioned In the next precedIng paragraph in connection with Louvres. 

The grille ventilator In cornice serves the 

same purpose as the Louvre. 

(c) Metal Ventilators ror R00r Construction which will not permit hse of Louvrea 

or grilles. The purpose Is to dl6charge 

hot alr'from roof. Representative material 
342 

Honorable George H. Sheppard, Page 5 

carried: Galvanized metal, ecrewa and 

solder, This type of ventilator conatructed.on order for special type8 of roof: also common designs and.slzes carried In 

stock. Use of thI6 type of ventilator 

for certain type6 of.roor eliminates neoesslty of building penthouse on roof to 

obtain ventilation. In all Instances 

these ventilators replace section of roof 

and become part of structure. 

"5. ELZCTRICAL F'U(TURES: 

5-A. ELECTRIC WIRING~AND CONDUIT, This refers 

to the materials used In the oonstruotlon 

of the-building so a6 to provide for current from point where same connects with 

the structure to and Including the outlet 

In the structure. Representative material 

carried: Tube6 to Insulate through Jolsts; 

Wire, Knobs, Screws, Metal plpe for.condult. Lead covered cable for conduit end 

Flexible Cable for conduit; Base, Floor, 

Wall and Celling Metal Outlets, boxes or 

receptacles; panel boards and switches. 

All of the above materlals are built Into 

and become a part of the structure. 

5-R. ELECTRICAL LIGHTING FIXTURES forming an 

integral part of the structure and beoom-' 

lng a part of the building or structure. 

Such rixtures do no.t include Electric Flxtures which are made use of by plugging lnto outlet or receptaoie end do not Include 

light bulbs. These..flxtures are connected 

directly with the wiring system of the 

structure. RepreSentatiVe IIIaterids carried: Metal, Glass, Porcelain, Wire and 

Switches. Such Fixtures are carried in 

stock, but In all oases form a part of the 

construction and require labor for aasembly and for making a part of the structure. 

During recent years Electric Lighting Flxtures' are being built Into walls In order 

to obtain Indirect lighting and furthermore to create a type of construction where 

. 
F.. .._ 

343 . 

Ronorable George H. Sheppard, page 7 

fixture6 are lnvlalble. These Fixtures 

have no use except,ae Building Materials 

and they form an important part of the, 

structure. 

"6. GAS FIXTURES FORMING AN INTEGRAL PART OF THE 

STRUCTURE: 

6-A. GAS PIPING AND FITTINGS. 

Thls refers to the materials used In the 

construction of the bulldlng 60 a6 to provide flow of gas from point where same. 

connects with structure to and Including 

outlet or cock In the structure. These 

materials consist of pipe and pipe fittings. 

It 16 usual for said materials to be con-. 

atructed in walls and between ceilings and. 

floors of the structure. 

"7. PLUMBING. 

7-A. PIPE AED FITTINGS. .i 

These materials Include Sewer, Vent, Water 

and Gas pipe (Clay and Metal): together 

with fittings. All of these materials are 

built into and become a part of the building or structure. It 1~6 usual for said 

materials to be.constructed In walls and 

between ceilings and floors of the atruoture. 

7-B. PLUWSING FIXTURES. 

Bath Room Plumbing FiXfJUr66 built Into and i 7

becoming a part of the Building or Structure. Thesematerials Include Bath Tubs, - 

Shower Bathe, Lavatories and Commodes, all . I 

of which are directly connected with Sewerage System, Water System and Vents In a' 

permanent manner. .Bath Tubs are usually 

built Into walls and fl'oor of bath room 

with tile or other wall or floor flnishlng material resting on top edge of Bath 

Tub and against Side6 of Bath Tub. Shower 

Bath6 are usually built into structure by 
Honorable George B. Sheppard, page 8 

building three walls;. said walls flnlahed on interior with tile or other suitable 

material and with drain built into floor,. 

and with door, hinges and bolts. Lavatories are of two types, wall and floor. 

Wall lavatories are usually oonatructed 

by being permanently fastened to wall with 

tile or other finishing wall material 8xtendlng around edge of Lavatory.. Floor 

Lavatories are usually oonstruct.ed by being set on conorete part of floor with 

tile extending around edge of base. Commodes are usually oonstruoted by being 

bolted into floor with water tank bolted 

into walls. The above fixtures are’ oar- 

. rled in stook, but are of no praotloal 

use, exoept as building materials rorming 

a part of the struoture and as mentioned 

are all dlreotly conneoted and tied in 

with ‘papes and fittings to .the sewerage _ 

system, water system ma vents. The OOPstruotlon.of the above materials Into the 

building or struoture forms a substantial 

part of the labor necessary in the ereotion of the struoture. 

7-C. HOT WATER BEATING SYSTBL-. 

. . 

The ma&ials oonsist ore. steel reaervolr 

or oontalner permanently.oonnected with. 

the water system of the atruoture and 

forms an integral part of the oompleted 

Hot Waffir. Fystei for &e building or struoture anp,furthermore oonneoted with Gas 

Syste&and Vent i Other ldaterlals are 

pipe adQ~pip8 flttl.iigs., - . . 

7-D. KITCHEN SINKS. 

These materials oonslit of metal sinks 

which are permanently oonneoted and built 

into the btilldlng ‘or structure, being bolted into wall or into drain board oonatruotion. Also directly oonneoted ‘with sewerage ‘system, water system and vent, Other 

materials are pipe and pipe $lttings. 

- -^ 

- . 

. 

\ i- - 
Honorable George H. Sheppard, page 9 

7-E. 

-. 

SEPTIC TANKS. - , 

Septlo Tanks are used wher&~ other sewerage Woeal not available. Constructed 

by using oement and relnforolng ror oonorete type or by using clay tile materials. 

Said tanks are conneoted with building with 

sewes tile. The materials are carried in 

.stook. A substantial amount or labor is 

neoeasary in the oonstruotlon of the materlala into a septlo tank. - 

"8. CARPENTER'S TOOLS. 

These materials oonslst or certain tools 

used by the mechanic in the construction 

of the building or struoture and are absolutely essential to the use of the materlala.whIch go into and become a part of the 

building. Throughout the'hlstory of the 

Building Industry, hardware has been dlvlde$ into two classes, viz;" Builders Hardware and Shelf Hardware., Builders ha,rd- ' 

ware lnoludes Carpenters toUs and carried 

in Building Material &oaks. . 

"4. PAINT BRUSHES. 

These materials are essential to the use . 

of paint, one of the important building 

materials. Paint.brushes oonstltute a 

class of material whiah is consumed in the 

oonstruotlon of the .bullding or struoture 

where palnt'is used. Usually a number or : r 

paint brushes are oonsumed in the oompletlon of one struoture or building. Paint 

Brushes have been carried in stook and 

sol& almost exclusively by Building Material Dealers. 

"10. SAND PAPXR. 

This inaterlal is essential in the oonstruc- 

'tlon df a Building or structure, partloularly in the finishing of oertaln surraoes of lumber and is consumed in construotion. It is essential in completing the 
.- 

Honorable George H. Sheppard, page 10 

*- 

prooessing of lumber where a smooth surface is necessary and the oonsumpti,on is' 

very rapid. Sand Paper has been carried 

in stook and sold almost exolusively by 

Building Material Dealers throughout the 

life of the industry. 

"11. BARBED WIRE, WOVEN WIRE OF ALL KIND& STEEL 

FENCE POSTS AND METAL GATES. 

These mater;ials are all used in the building of Fenoe Struotures. Building material 

dealers have handled materials for building 

either wire or wooden fences throughout the 

history of the industry. 

Light Woven Wire is also used in'the oonstruotion of walls of poultry buildings 

and in stucco wall construction for a oertain type of building and as Ventilators 

in walls and cornices of buildings. 

Heavy Woven Wire is also used as reinforoIng id concrete oonstruotion and as Ventilation material in walls and tiorhioes of 

buildings. 4so used in stuooo and plaster wall oonstruotion. 

"12. METAL TANK MATERIALS. 

These materials consist of flat steel sheets, 

either galvanized or black; also oorrugated sheets., These materials as carried in 

stock are not formed~or shaped for tank 

.oonstruotion. 'Said materials are used in 

the building of stook tanks and out-side 

water supplyhstanks. . 

"13. WINDNILL PARTS 

Representative Materials carried: Steel 

angle and flat irons, bolts and nuts for 

use in oonstruotion of tower; also lumber 

for tower construction. Windmill gears, 

Windmill tails, steel fap seotions for Windi 
Honorable George H. SSheppard, page 11 

ml&l, pipe and fittings, sucker .rods, 

couplings, cylinder barrels, valves and 

washers. All of the above materials are 

used to oonstruot the completed struoture and to become part of water system. 

A great number of houses are not oonneoted to a municipal water system, and water 

for said houses is obtained from a water 

system in which the water is pumped by a 

windmill. 

"14. PUMP PARTS. 

Representative materials oonsist of pipe, 

pipe fittings, cylinder barrels, valves 

and washers used for constructing pump. 

"This department will appreciate your opinion 

as to whether a lumber yard selling the items of 

material listed above, brings suoh.lumber yard 

within the definition of a store under the Chain 

Spore Tax Amt." 

The Texas Chain Store Tax Law is dodified as Artiole 

lllld of Vernon's Annotated Penal Code. Said law prbvides that 

every person or firm operating a store shall pay a fee for the 

privilege of doing so, and a graduated soale of fees is presoribed, the amount of the fBe for each store depending on the tot@ 

number of stores operated by said person or firm. A store is defined in Section 7 of the law as follows: 

9eo. 7. The term 'store' as used in this Act 

shall be construed to mean and include any store or 

stores or any meroantile,~establishent or establishments not specifically exempted within this Act 

which are owned, operated, maintained, or controlled 

by the same person, agent, receiver, trustee, firm, 

corporation, copartnership or association, either 

domestic or foreg$n, in which goods, wares or merchandise of any kind are sold, at retail or wholesale." 

Several exemptions are set out in Section 5,of the law, one of 

them being as follower 

1, . . . Provided that the terms, 'store, 

stores, mercantile establishment or mercantile 

. 
Honorable George H. Sheppard, page 12 , ' 

establishments' wherever used in this aot shall not 

include: wholesale and/or retail lumber and building material businesses engaged-exclusively in the 

sale of lumber and building material; . . .n 

We think that by using the word uexclusively" in said 

exemption the Legislature intended that those nwholesale and/or 

retail lumber and building material businesses" that engage only 

in the selling of lumber and "building material" should come 

within the exemption. In construing one of the other exemptions 

in the Chain Store Tax Law the court in the case of Standard Oil 

Company of Texas u. State, 142 SW. (2d) 519, said: 

"We are of the opinion that when the legislature used the language in the exemption clause 'en: 

gaged exclusively in . . . selling . . . petroleum 

products' the word 'exoludivelyt was used synonymously with 'only' and 'purely.*" *. 

Therefore; if any of the materials listed in your letter are not 

"building material" in the sense that said term is used in the 

statute, and said material is sold in a lumber or building material business establishment, or in any other mercantile establishment or store, said establishment or store would be subject to 

the chain store tax. 

We will endeavor to decide in the case of eaoh of these 

materials whether or not it is a Zbuilding material." 

Before deoiding each question we will discuss generally 

the meaning of the term wbuilding material." There being no statutory definition of said term, we are relegated to the lexicographers, legal and otherwise. 

The word nbuilding2 in this statute is used as an adjective modifying the noun ?.uaterial;w but the adjeotive "build,- 

ing" cones from the noun wbuilding.n "The word '*builoing' is 

derived from the Anglo-Saxon lbold,t meaning a dwelling." Saulsberry v. North Amerioan Refractries Co., 278 Icy. 808, 129 S.W. ‘xx 

(26) 525; Neekamp v. Huntington Chamber of Commeroe, 99 W. Va. 388~, 

129 S. E. 314. Definitions of the word "building," both noun and ?~. 

,adjective, are of value to us in determining the meaning of the 

word in this case. 

p 

j! 'h.< 

.: 

n\ 
Honorable George H. Sheppard, page 13 

The word %aterial" in this statute is clearly a noun. 

Webster's Wew International Diotionayy, 2nd Ed., Unabridged, defined the word "building" as follows: 

"That whioh is built, specif.: As now generally used, a fabric or edifice, framed or constructed, designed to stand more or less. permanently, and 

covering a space of land, for use as a dwelling, 

storehouse, factory, shelter for beasts, or some 

other useful purpose. Buildin in this sense does 

not include a mere wall, d monument hoarding, or similar structure, though designAd for 

permanent use where it stand; nor a steamboat, 

ship, or other vessel of navigation." 

There are very few Texas oases defining the word *build1ng.v In the ease of Peterson v. Stolz, (Tex. Ct. 01~. App.) 269 

S.W. 113, the court held that a monument on a burial lot was not 

a building within the terms of the meohanicsl lien statute, and 

the oourt said: 

n . In interpreting the word tbuilding,* 

in relAt;on to meohanios' liens it has been held 

that a 'building' includes only'those structures 

whioh have capacity to contain and a?e designed 

for the habitation of a man or animals or the 

shelter of property. Railway Co. v. Vanderpool, 

11 Wis. 119, 78 Am. Deo. 691. . . .- 

In the case of Johnson v. State, 96'Tex. Cr. R. 2U.257 S;W. 

351, the court held that a cattle dipping vat was not a building. 

The noun %aterialn is defined in the case of Oliver 

v..State, 110 Tex. Cr. R. 263, 8 S. W. (2d) ,184, as follows: 

" . 'materials' include such artioles as 

enter inio and form a 

P 

art of the finished product; while 'equipment imports 'the most neoessary to enable the contractor to perform the 

agreed service, the tobls, implements, and appliances which might have been previously used or 

might be subsequently used by the contractor in 

carrying on other wdrk of like oharaoter.' . . .n 
Honorable.George H. Sheppard, pase 14 

We have not been able to find any Texas cases in which 

the court discusses the term "building material;" but, as pointed out above, there are Texas cases discussihg separately the 

word *building" and the word "material.V' However, there are oases 

in other jurisdictions in which the term."building material" is 

discussed. In the case of Ward v. Kadel, 38 Ark. 174, the court 

indicated that "building material*V was anything essential for 

building any kind of house. (See 12 Corpus Juris Secundum 389). 

In the case of Hundhausen v. Bond, 36 Wis. 29, the court held 

that excavated dirt that had been piled in the street was not 

nbuilding material" unless some person had 'placed it there for 

the "purpose of using it in his building." A'correct statement, 

according to our view, was made by the oourt in the case of 

Schaible v. Board of Adjustment, 15 N.J. Misc. 707, 194 AU. 

388, as follows: 

wBuilding materials normally consist not only 

of lumber, bricks, stone, and iron, but of paints, 

varnishes, and many other substanoes used in building construction. . . .* 

A similar statement was made in the case of Lawrence v. Comstock, 

124 Mioh. 120, 82 N. W. 808, as follows: 

* . In the first place, it is not improbable ihit the term was used to cover other material besides Mmber, such as lime, brick, sand, 

nails, lath, hair, and other supplies and, articles designed for building. . . on 

The foregoing,oases represent the majority thought on 

the question, that is, that nbuilding materials" are limited to 

those things that go into and become a part of a building. However, some oases adopt a broader meaning, as is illustrated by 

the oase of Wood Preserving Corporation v. State Tax Commission, 

235 Ala. 438, 179 So... 254, in whioh the court held that the Legislature of Alabama intended for the term "building material" in 

an'e~xeeption in a tax statute to include railroad oross tiers and 

%aterial of all kinds used in oonstruotion work." 

As we are convinced that the adjective ubuildingn in ' 

the term "building material *' has reference to the noun Rbuilding,N 

instead of the verb "build, n it is important that we determine 

what we are ubuildings". In the case of Trussell v. Gay, 13 Gray 

'(MassT) 311, the court said: 
Honorable George R. Sheppard, page 15 

“‘The word “bulldLn&’ cannot be held to lnalude every speclea of erection on land, suoh 88 

fenoee, gatea or other like struoturetv. Takan ln 

Its broadeet eenee, it can mean only an ereotlon 

intended for use and occupation aa a habitation 

or for some purpose of trade, manufacture, ornaDent, or uee, oonstltutlng a fabric or edifloe, 

such aa a home, a store, a churoh, a shed.‘” 

In the oaae of City of Conaord v. Morgan, 74 R. H. 32, 64 Atl. 

725, the court said: 

II 

. . . all permanent etruoturea Intended to 

shelter human belngc! or domeetlo animala, or to 

reaelve, retain, or oonflne the goods ln which a 

person Qeale, or to house the tool8 or machinery 

he wet! or the peraone he employee ln Ns bualness, are commonly called lbulldlnge.~ . . ,” 

A almllar deflnltl?n was approved ln the 

lantld Advertls 

9 

Servlac, 159 Ga. 217, 

Union v. Zfller, 51 &tee. 467, 118. SOIL 

Zurlah General Aooldent & Liability Into, 

(2d) 3094 

casea,~of Ran&Z1 v. AtI.25 8. E. 462, Tovn OS 

The determlnatlon OS the queatlon, vhat 1s a building, 

1s of no greater importance in ths preeent inquiry than the determln8tlon of what is “m8terla.lrn 

*msteria1,” 

The very e8cenoe of the word 

in the oonnectlon here wed, ia that It mean8 those 

simple things that enter into the aonatruatlon OS 8 bulldlng 

88 elements of etruaturei The term %8terial" doea not aonnote 

8 finlehed or fabricated thin& whether bulldlng OP other struature. It mean8 those thlnga of whiah the f8brlOated etruoture 

la composed, Thle dlstlnotlon IS vhat dlfferentlatee between 

the material and the building or strwture. Of ooursei the materials upon being fabricated do become a part of, and therefore 

constitute the struoture, but the fabrioated artlole, whether 

house or fixture therein le no longer %tateclaleY in the oomkonly aocepted meaning of that term. It la EL bulldlng or a aoo&lng 

system or a heating ayatem or a ventllatlng eyrtem, or a plumblng system, aa the individual fabrication may be. St ia noteworthy, too, that suoh fabrloated structure of such enuiWrated 

ayatema is not itself a building ln any just aense conoerning the 

preeent inquiry, but neverthelesa,lt la a fabricated atructuve. 
honorable Oeorge 8. imeppard, page 16 

machine, or utility, and has oeased to be %aterlal.' The l&entttg of the materials entering into the fabrlostloa haa been lo@&- 

consumed--it ie freqwntly aald in the use thereof. Thla, we 

think, Is the final teat of the intention of the statute, and 

affords the.anewer to your many queetiona. 

Many fabricated articles, however, by ookmon we are 

such ae ere not only oonvenlent but considered even to be ersetlalr to the modern oonoeptlon OS oolniortable hourlng. Thur, the 

modern howe la not ready.Sor aatual habitation until it has its 

heating’egstem, ita croollng qatem, lte eleotrlo eyrtea, It.8 sever 

eystem, lte cooking eyatem, and the like. Thle doer not man, 

hovever ., 

.that such convenienoea or even necerrltler are to beeone 

~&&u&l firturea to the reaIlty, for in many if not meet lnetanoea 

they are not such real fixturea --but Femain throughout aa personal property. Thus, the heatiing furnace, and the oooling apparatw, the electric Sixturee, and the lik;e, may be and apa tic+ 

quently utlllced without becoming attached to, the ~pealty In rueh 

vay as to become a seal fixture serving all the vhile the requirementa of the ovner or oocupant t Certainly, in’~euah oa~~a the 

fabricated syetq could not poarlbly be ooneldered bullding~material, for th6y have not entereq, into the etruoture OS the hotwe in 

any vay vhataoever. geither can it be argued vith a good reaeon 

that by beoomlng attaohed to the building In much vay as to beoome a ~Sixture to the real estate that they thereby have ,been 

geilvanlted Into building materials, for their eaae.ntlal nature 

ham not been changed, The prlnaipal atid only..:i!ubstentlal ohange 

that qan result from the&r att&ohment 80 a8 to become permanent 

real fixture8 Is one of oonvenlence oontrolled largely by. the 

vent and demands and the abilltlea Sl.nanolally OS the ovner. 

One aan hardly think of any fabricated ryetem, mechine, 

:. lnetrument, or utility for the home, that may not be permanently 

attauhed to the bulldlng so as to become a part of the realty, 

but this Uoee not change the essential nature of the things thus 

attached. 

From what we have eald, those thinga vhich are useful 

only In the fabrication ancl oonatruation OS a building are not 

themselves necessarily building materials. Thus, oarpenterta 

toole, such aa hammere, aawe,,planee, seendere, polishera, and the 

like, are in no sense building materials. They are Implementa 

and tools for build-, but they aurvlve their UEB, and unlike 

the building materials actually nought into the strucrture they 

do not~perieh with their use. Those materials, howevex?, thst are 
7.: - 

,. 3.5 

Ronorable George Ii. Sheppmd, page 17 

ooneumed ln their. use ln aonneotlon vlth the oonetruotlon OS the 

building are “bulldlng ~t%rl8la,” examples being sand-paper and 

paint brushes. Thle dletlnotlon la Illustrated py the oaee OS 

Troy Publio Works Co,’ P., City OS KonkezIe, 207'X. Y. 81, 100 X.B. 

700, it? vhiah the court said: 

“In vlev of vhat vbe *itten SOP #le. oourt ‘. 

g Sohaghticoke Povder Co. ‘I. Oroenvloh I J. By. 

183 H. Y. 306, 76 H. B. 153, 2 L. R. A. (X.8.) 

286: ‘1l.l b. St. Rep. 751, 5 Ann. Oaa... 443, there 

: #; 

remains very little to be said In the &see at bar. ‘.” ~,~ .‘.

In the Sohaghtlooke Caee..the plaeintlff Surnlehed ,’ ” 

dyne&t% and other explosivea to a oontractor for 

we ln the oonetruotlon OS a’ railroad,. and then 

filed ita l$sn for the unpaid prlos. The Question vae vhother these explosives vere materials 

withFn the purview OS the statute. Ue decided 

that they vere, beoauee they yere not only wed 

In the aonetIwtion OS the. work,. but vore liter-. .~ 

ally ‘used up’ ln Its perfomisncei The dyn.smLte 

and povder verb put into the vork end uere ooneumed In the operatlom s ~Thoy vere as mu&h a part OS .‘:’ 

thee materials the;t~‘vent jato the structure as the 

varboua oonetltuente thatloet,thelr separate 

identity lnbeoonlng part OS the plaster, cement; 

or concrete+. For ati purpoae.oS lllwtrating 

this idea ve ealdt ‘The argument that dynamite 

la not’ a material., but a’part. OS the oontraetor’s .’ ~’ ‘Y’~:’ 

plant vhlch, like .piokti end ehovele. or meohanioal : 

appLlanoe8, are used in the performmoe OS vork,, :,. .:::l: :+ 

but ee not ooqsldered ~mterlale Surnlshed vlth- .i~’ :~: :?j’:::, 

In the purvl%V .oS the statute, *Bbm to us a- 

. 

.: .,... “,:.:+ 

herently unsound; ‘A eteam shovel, an engine ~~),,~_.:!~,.~,;~.~,j,~., 

boiler, pioke; shov'eb, orOvbBpa~ and the Iike 

are tools ,&nd appllanoee vhloh, vhlls tieed ln :I:>. ~::::!~,‘!:::..1 

.the doing of the York,. eurvlve ite. perfqreienoe ,. : ;;~: .‘;~i:: 

and remain ‘the- property of their ovner,: Rot so, .: .f .~~’ ‘..~‘. 

hovever,. vlth materials that are used up in the ; ~~ 

performance OS the work, and are thereafter l.nvl-~~ ‘:. tic .J;: 

alble :exuept as ‘they survive .in tangible resulte.( -:~ ’ .,::. 

183 R.-Y. 312, 76 Ri.B; 155, 2 .L, R. A,. (R.9.):‘~;‘:‘.;‘:;,~.:.:‘., 

288, 111 Am St. Rep. ,751, 5 Ann. Cae. *43., The .’ .~ 

ateam shovel in the cae8 at bar did not go into 

the vork ae materlal~ It Van a maahine wed on ~‘. ;I ,.;.- 

the work,’ snot by the ovner but by his leeeee, and ‘;.‘:‘:’ 
Bonorable Qeorge Ii. Sheppard, page 1.8 

it VW returned to the ovner just an It vaa received, necessary wear and tear exoepted. It was 

not material; either aoaordlng to the deflnltlona 

of the lexicographers, or under the decieiona In 

other dates where they have lien etatutes eimllw 

to our own. . . .* 

The eeme reasoning was adhered tQ in the Texas case of 

Btone v. Morrieon end Pavers, $294 3. W. 641 (Reversed on other 

grounds 298 S. W. 538) in which the aourt saldr 

I( The vord *material* means (the eubetance’oi &h anfihlng ls’iparde.@ The piledriver van itot a eubetanoe OS vhlah the ooncrete 

piles were made, but vae an equipment to be used 

inthemaklng.. . ,” 

In the case of come OS the materials listed in your 

opinion Bald materl&le oan be used SOP several ptipoeee, that 

le, they oan be used as “building materials” and they can be 

used as some other Jclnd OS esate~le38. For example, light voven 

wire m,n be used as a “building materl.al’ by using it In the 

walls of atuooo buildinga, or 1% can be used ao Chat It vi11 

not be a “bullding material ” by oalng It ea a ohioken Senge. 

In the oaee of materials that OM be used as “bulldIng nK&eri.alL” 

and also'.% non-bullbiag materirle if #L lumber yard ogerata 

keege said material in etook lo. order to have a complete StoQk., 

of bullding material” and ln order to Sill “building rmste~lal 

purchaeer*r needs It should be atmeldered "btildlng mEter+al" 

~vlthln the meanihg of the Texas Obaln Store Tax Lav.~ IS a lum: 

her y-d operator has in etook rood-screwa that are appr~pr~rtb 

for faetenlng hlngee inside of a house, it would not affect.. the 

liability of the operator for ahsin store taxes IS a purohaear 

used eald wood-screwa for something other than a ‘bulldlng saterial, * for example, for faetening a “no-hunting” sign to 0 

tree. 

It la not strictly R question of whether or not a 

place ia a lumber yard, &a that term la oommonly understood, 

but It 1s a queetion of whether or not the plaoe is ‘engaged 

exoluslwly 3.~ the sa.le. of lumber and building material.‘, Hovever, we think it Is apparemt the Leglalature van thinking 

of a lumber yard when it pageed this exemption. The only dade 

we have found that deeidee whether or not a partioular place 

la 8 lumber yard or not within the common understanding of the 
Honorable Qeorge II. Sheppard, page 19 

~e”s”,~ tp case of PlanterQe Lumber Co. v. Yells, 147 Miaa. 279, 

. . The follovlng quotation ahove vhat waa eold in the 

lumbar yard involved in that oaee, to-wits 

WI 

. . k 75 per oent. In value of all material8 

bought and eold by defendant conalated of lumber, 

10 per cent. wooden ahtnglee, lath, aaah, door%, 

and windova and artlales of like kind, making a 

total of 85 per sent. In value of all materials 

handled aud aold by defendant aa aforesaid, conaiatlng of lumber, e&ah, doors, and rlndova and 

articlee of like kind, and the remaining 15 per 

cent. conaiatlng of other building materlale, such 

ae composition ahlnglea, roofing, cement, lime, 

and plaster, and vhat ia oomnonlg knovn aa builder’% hardvare, aonaietlng of aaah weights and 

oord, pulley%, gratea, nails, door and vindov 

hinges, and other building haxdvaxe similar In 

kind, and.other Item% of bui+3ing suppllerr and 

n&erial not inoluded In auoh artiolee aa lumber, roofing, tithinglee, lathe, aaeh, doora, and 

vindowa and aztlolee of like +nd, hereinafter 

called ‘other materiale,“~” 

Another important oonalderation beera very dlreotly upon the proper conatruotlon to give to thla statute. It 1% t&ie: 

We think it warn never intended br the Legislature to perPlit Lumber yarda dealing in building materiala In general liketiae to 

deal ln thoae articles involved In the present inquiry--to handle 

euoh e??tlole;r tax free; and at the. same time to make those bualneea concern8 taxable~ which happed to deal alone in such fabrioated utllltiee. Such a law, if It were Intended by the Legialature, might be invalid as a diaoriminetion vithout reaeonable 

factual basla for different legislative treatment; but thie quesWon need not be decided eince our aoncluelon doea not twn upon 

that oonaideratloni 

What we have raid here f$nde support in and la in hermany with our OpinLon Ho. 0-2080, dated Nay 2, 1940, addreared 

to Honorable George H. Shepwd, Comptroller and a prior opinion by tbla department, dated Jwwwy 3* 1936, llkevlae addreeaed 

to Honorable George II. Sheppard, Comptroller. 
e.. .-_ 

356 

Ronorable Qeorge B. Sheppard, page 20 

We will now annweIr your qwationa, keeping in mind 

that our anewera are limited to the facts stated by you. We 

will endeavor to answer e8oh queatlon by raying "pa' 0~ 'no" 

aa to whether the material deaorlbed in thb.queetlon.18 “bullding material,” within the ae8nlng 0r this rtatute, to-wit I 

1. Cooling Syetemar - 

1-A. Cooling Syetem with Best ‘Ilo.” 

1-B. Other Cooling iyrtemat “are.” 

2. Heating 3yatemar - 

2-A. ligtpg Byatem with Oaa Floor Furmae I 

. 

2-B. %iReatlng System with ?aa Burner: 

3. ?Zxhawt F&I (?LLtohen)8 - 

3-A. For Hoodat 

3-B. For Roomat 

4.. Ventilatorar - 

90.’ 

%O** 

4-h. Ventilatiore 

Bloor~l&~e: 

4-B.: ventilators 

Fumes, Odor 

4-O. Ventilators 

in Foundation 8nd Below First 

jYea,' 

and Sewer Qaet ~_’ 

in Roof Conatruotlon*’ “Yea.” : 

5. Eleotrloal Pixturear -~ 

.~, 

: 

‘. 5-A. Eleotrlo Wiring and Conduit t “Ys%aI:‘y’ ‘( ~‘~ ,. 

5-B. Eleotrioal Llghtlng Fixture%: ‘“Bo.~ 

6. Gae Fixtures Forming an Integral Part-of the 

Struoturet - 

6-A. Oaa Piping and Fittingat “Yee,’ - 

The roughing in. 
Bonorabl? George Ii, Sheppard, page 21 

7. Plumbing: - 

7-A. Pipea and FIttAngs: *Yea," - the 

roughing In. 

7-B. Plumbing Flxturea: “l0.’ 

7-c. Hot Yater Iieatlng Byetams “HO.’ 

7-D. lUtahen Slnkat 'Ho." 

8. 

9. 

10. 

il. 

7-B. Septia Tenkar “PO.* 

Carpenter~a Toola; "lea.! 

Paint Bruehee: "Yee." 

Sand Paperr “Yea.” 

Barbed Wire, Woven Wire of all kinbe, %teel 

fence poate and m&al gates: *HO," exaept 

that material deeoribed in thla question 

that la sometime% used fin the %on%truatlon 

of a building and la kept In %tOck in order 

to fill auah neede Is bt.aildlq material. 

la. 

13. 

14. 

Metal Tank IUaterlalar RHO." 

lilndmill Part%: "Ho." 

Pump partar Qo." 

Ue hope the foregoing opinion anawer8 your questions, 

and that It will be of value to you in adminlat%ring the T%xea 

@haIn Store Tax Law. 

~~... 

Your6 very truly