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.lldLngmaterUle= 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 makethem subjeat to the etorb tax.Honorable George H. Sheppard,page 2

"1.COOLING SYSTEW : 1-A. COOLING SYSTEM WITH FAN. Representativematerials carried: (a)Grille, which replaces section of ceiling in building. A Grille 1s usually constructedof wooden slate-with outside wooden frame and sometimesmetal is used. Grilles are constructedon job by carpenters, also carried In stock. (b)Pulpboard (suchas Kasonlte) and Lumber for construction of airtight wind tunnel. One end of this tunnel 1s connectedwith grille. The wind tunnel Is constructedon the job and 1s located in the attic of the bullding. (c)A special suction type of electric fan designed for thisparticular 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 (eitherpaper or flexible) and Switch are built Intowall 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 asbestospaper for the construction of ducts which are built into walls and ceilings. Also grilles, pipe and pipeHonorable George H. Sheppard,page 3

fittings. All of which materials can be used in construbtionof Other Cooling Systems. All of,the above materials are built into and become a part of the structure. "2.flEATINGSYSTEMS: 2-A.

2-B. HEATING SYSTEM WITH GAS FLOOR FIJENACE. Representativematerials carried: Metal grille replacing section of floor. Special type of gasburner connectedbeneath level:

of floor. Saidburner is n& useful for any otherpurpose. Bolts ana screws for oonstructlon of system. Galvanized Iron izhiela constructedaround Gas Burnex. Ducts, eithermetal or asbestos, constructed to lead fromburner to flue or to ventilatingpipe where no flue available. Thermostat,pipe and pipe fittings used therewith. The above materials are used in constructingon the Job as a part of the structure of a heating systemwith gas floor furnace.
WALL HEATING SYSTEMWITH GAS BURNER. Representativematerials carried: UnfinishedWood cuff or frame to be built In between studding or Into opening. Gas burner. Pipe ana pipe fittings. 811 of the foregoingmaterials tobe built into &nd become a part of the structure. "3.EXHAUST FANS (Kitchen): 3-A. FOR HOODS..Representativematerials carried: Wood framing with Galvanized flat sheets, shaped todesired 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 ventilatedpipe or duct. 3-B.FOR ROOMS. Representativematerials 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 conetruotionby F.H.A. These Ventilators replace a section of the lower walls of the structure end are built Into the building. ReA presentatlvematerials oarrled: Metal Lath, Hardware cloth, Poultry Wire, Heavy Woven Wire, Wooden strips ana metal, oement or wood grille, togetherwith lumber used forbuilding frame around opening.
VENTILATORS IN STRUCTLiRE TO DISCHARGE FUkIES,

ODORAND SEWER GAS,, Building Codes In Cities require, and good building practices reoognlze, that each sewer connection In.a builalng shall be ventl%ated. Representativematerials carried: Pipe of various kinds, pipeHonorable 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 Ventilatorsare 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** thispurpose depending upon character of hoof construetlon. (a)Louvres, which are used in gablee. This Ventilator 1s of wood slat oonstructlon with slatsplaced on steeppitch to prevent raln and snow from entering. Re'- presentatlve materials carried: Lumber Galvanized metal~and screenwire. **uSUd1y -**  constructed on Job,buttsmall sizes also carried in stock. In all instaTiCe6Louvres replace seotlons of walls and become a permanent part of the structure. (b) Grilles, @lch are used in Cornice. In cornice constructionwhere. roof'projects beyond line of wall, ventilators in the form or grilles replace sectlonsor cornice and are built Into and beoome a part of the structure. Rep.resdntatIve materials are the same a6 mentioned In thenext precedIng paragraph in connectionwith 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. Representativematerial

## 342

HonorableGeorge H. Sheppard, Page 5

carried: Galvanizedmetal, ecrewaand 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 eliminatesneoesslty of building penthouse on roof to obtain ventilation. In all Instances these ventilatorsreplace sectionof 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 frompoint where same connectswith the structure to and Including the outlet In the structure. Representativematerial 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 abovematerlals are built Into and become a part of the **structure.** 5-R. ELECTRICAL LIGHTING FIXTURES forming an integralpart of the structure and beoom-' lng a part of the building or structure. Such rixtures do no.tinclude Electric Flx**tures** 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 systemof the structure. RepreSentatiVe IIIateridscarried: 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 constructionwhere

.F.. .._ 

## 343

.

Ronorable George H. Sheppard,page 7

fixture6 are lnvlalble. These Fixtures have no use except,aeBuilding Materials and they form an importantpart 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 frompoint where same. connectswith structure to and Including outlet or cock In the structure. These materials consist of pipe and pipe fittings. It 16 usual for saidmaterials tobe con-. atructed in walls and between ceilingsand. floors of the structure. "7.PLUMBING. 7-A. PIPE AED FITTINGS. .i
These materials Include Sewer, Vent, Water and Gas pipe (Clayand Metal): together with fittings. All of these materials are built into and become a part of thebuilding 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 i71 becoming a part of the Building or Structure. Thesematerials Include Bath Tubs, - Shower Bathe, Lavatories and Commodes, all
. I of which are directly connectedwith Sewerage System, **Water** System and Vents In a' permanent manner. .BathTubs are usually built Into walls and fl'oorof 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 structurebyHonorableGeorge B. Sheppard, page 8

building three walls;.said walls flnlahed on interiorwith 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 towall with tile or other finishingwall 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 floorwith water tank bolted into walls. The above fixtures are’oar-

. rled in stook, but are of no praotloal use,exoept as buildingmaterials rorming a part of the struotureand as mentioned are all dlreotly conneoted and tied in with ‘papesand fittings to .thesewerage
_ system, water system ma vents. The OOPstruotlon.of the abovematerials 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 oonsistore. steel reaervolr or oontalner permanently.oonnectedwith. 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 Venti Other ldaterlals are pipe adQ~pip8 flttl.iigs., - . . 7-D. KITCHEN SINKS. These materials oonslitof metal sinks which are permanently oonneoted and built into the btilldlng ‘orstructure, being bolted into wall or into drain board oonatruotion. Also directly oonneoted ‘withsewerage ‘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 tilematerials. Said tanks are conneotedwith buildingwith 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. Thesematerials oonslst 

### or certain tools used by the mechanic in the construction of the building or struoture and are absolutely essential to the use of thematerlala.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 BuildingMaterial &oaks.

. "4. PAINT BRUSHES. These materials are essential to the use . of paint, one of the importantbuilding materials. Paint.brushes oonstltute a class of material whiah is consumed in the oonstruotlon of the .bulldingor 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 exclusivelyby BuildingMaterial Dealers. "10. SAND PAPXR. This inaterlalis essential in the oonstruc- 'tlondf a Building or structure,partloularly in the finishing of oertaln surraoes of lumber and is consumed in construotion. It is essential in completing the.-

HonorableGeorge 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 BuildingMaterial Dealers throughout the life of the industry. "11. BARBEDWIRE, WOVENWIRE OF ALL KIND& STEEL FENCE POSTSAND METAL GATES. These mater;ials

are all used in the building of Fenoe Struotures. Buildingmaterial dealers have handledmaterials for building eitherwire 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 stuccowall 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 asVentilation 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., Thesematerials 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

RepresentativeMaterials 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 seotionsforWindiHonorable George H. SSheppard, page 11

ml&l, pipe and fittings, sucker .rods, couplings, cylinderbarrels, valves and washers. All of the above materials are used to oonstruot the completed struoture and to become part of water system. A greatnumber of houses are not oonneoted to a municipalwater system, and water for said houses is obtained from awater system in which thewater is pumped by a windmill. "14. PUMP PARTS.

Representativematerials oonsist of pipe, pipe fittings, cylinderbarrels,valves and washers used for constructingpump. "This departmentwill appreciateyour opinion as to whether a lumber yard selling the items of material listed above, brings suoh.lumberyard within the definition of a store under the Chain Spore Tax Amt." The Texas Chain Store Tax Law is dodified as Artiole lllld ofVernon's Annotated Penal Code. Said law prbvides that everyperson 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 operatedby saidperson or firm. A store is defined in Section 7 of the law as follows:

9eo. 7. The term 'store'as used in thisAct shall be construed to mean and include any store or stores or anymeroantile,~establishentor establishmentsnot specifically exemptedwithin this Act which are owned, operated,maintained, or controlled by the same person, agent, receiver, trustee, firm, corporation, copartnershipor association, either domestic or foreg$n, in which goods,wares or merchandise of any kind are sold, at retail orwholesale." 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 establishmentor mercantile

.Honorable George H. Sheppard,page 12 , '

establishments'wherever used in this aot shall not include: wholesale and/or retail lumber and building material businessesengaged-exclusivelyin the sale of lumber and buildingmaterial;

. . .n We think that by using the word uexclusively" in said exemption the Legislature intended that those nwholesaleand/or retail lumber and buildingmaterial businesses" that engageonly in the selling of lumber and "buildingmaterial" should come within the exemption. In construingone 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' theword 'exoludivelytwas used synonymously with 'only'and 'purely.*" *. Therefore; if any of the materials listed in your letter are not "buildingmaterial" in the sense that said term is used in the statute,and saidmaterial is sold in a lumber or buildingmaterial business establishment,or in any othermercantile establishment or store, said establishmentor storewould 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 Zbuildingmaterial."

Before deoiding each questionwe will discuss generally themeaning of the term wbuildingmaterial." 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 adjectivemodifying 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,tmeaning a dwelling." Saulsberry v. North AmerioanRefractries Co., 278 Icy.808, 129 S.W. ‘xx (26) 525;Neekamp v. Huntington Chamber of Commeroe, 99W. Va. 388~, 129 S. E. 314. Definitions of the word "building,"both noun and ?~. ,adjective,are of value to us in determining themeaning 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'sWew InternationalDiotionayy, 2nd Ed.,Unabridged, defined theword "building"as follows:

"Thatwhioh is built, specif.: As now generally used, a fabric or edifice, framed or constructed, designed to standmore 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 Petersonv. Stolz, (Tex.Ct. 01~. App.) 269 S.W. 113, the courtheld that a monument on a burial lotwas not a buildingwithin the terms of themeohanicsl lien statute, and the oourt said:

n

. In interpretingthe word tbuilding,* in relAt;on to meohanios' liens it has been held that a 'building'includesonly'those structures whioh have capacity to containand 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 dippingvat 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 Part of the finishedproduct; while 'equipment imports 'themost neoessary to enable the contractorto perform the agreed service,the tobls, implements, and applianceswhich might have been previously used or might be subsequentlyused by the contractor in carrying on otherwdrk of like oharaoter.'

. . .nHonorable.GeorgeH. Sheppard, pase 14

We have not been able to find any Texas cases in which the court discusses the term "buildingmaterial;" but, as pointed out above, there are Texas cases discussihg separatelythe word *building"and the word "material.V'However, there are oases in other jurisdictionsinwhich the term."buildingmaterial" is discussed. In the case of Ward v. Kadel, 38 Ark. 174, the court indicated that "buildingmaterial*V was anything essential for building any kind of house. (See12 Corpus Juris Secundum 389). In the case of Hundhausen v. Bond, 36 Wis. 29, the courtheld that excavateddirt that had been piled in thestreet was not nbuildingmaterial" unless some person had 'placedit 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, 194AU. 388, as follows:

wBuildingmaterials normally consistnot only of lumber,bricks, stone,and iron, but of paints, varnishes, and many other substanoes used in building construction.

. . .*
A similar statementwas made in the case of Lawrence v. Comstock, 124Mioh. 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 suppliesand,articles designed for building.

. . on The foregoing,oasesrepresent the majority thought on the question, that is, that nbuildingmaterials" are limited to those things that go into and become a part of a building. However, some oases adopt a broadermeaning, as is illustratedby the oase ofWood Preserving Corporationv. State Tax Commission, 235Ala. 438, 179 So...254, inwhioh the court held that the Legislature of Alabama intended for theterm "buildingmaterial" in an'e~xeeption

in a tax statute to include railroad oross tiers and %aterial of all kinds used in oonstruotionwork."

As we are convinced that the adjective ubuildingn in ' theterm "buildingmaterial*' has reference to the noun Rbuilding,N insteadof the verb "build, n it is important thatwe 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 humanbelngc! 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 OSthe 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 OS8 bulldlng 88 elements of etruaturei The term %8terial" doea not aonnote 8 finlehed or fabricated thin& whether bulldlng OPother struature. It mean8those 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 maybe. 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, andhas 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 manyqueetiona.

Manyfabricated articles, however, by ookmonwe are such ae ere not only oonvenlent but considered even to be ersetlalr to the modern oonoeptlon OSoolniortable 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&lfirturea to the reaIlty, for in manyif 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, maybe 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 OSthe hotwe in any vay vhataoever. geither can it be argued vith a good reaeon that by beoomlngattaohed to the building In muchvay as to beoome a~Sixture to the real estate that they thereby have ,been geilvanlted Into building materials, for their eaae.ntlal nature hamnot 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 OSthe ovner.

Oneaan hardly think of any fabricated ryetem, mechine, :.lnetrument, or utility for the home, that maynot 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. Fromwhat we have eald, those thinga vhich are useful only In the fabrication ancl oonatruation OSa building are not themselvesnecessarily 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 are7.: - ,. 3.5

Ronorable George Ii. Sheppmd, page 

### 17

ooneumedln their. 

### use ln aonneotlon vlth the oonetruotlon OSthe 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 OSKonkezIe, 

### 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 OSa’railroad,. and then filed ita l$sn for the unpaid prlos. The Question vae vhother these explosives vere materials withFn the purview OSthe statute. Ue decided that they vere, beoauee they yere not only wed In the aonetIwtion OSthe. 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~Thoyvere as mu&ha part OS

.‘:’ theematerials the;t~‘vent jato the structure as the varboua oonetltuente thatloet,thelr separate identity lnbeoonlng part OSthe plaster, cement; or concrete+. For ati purpoae.oS lllwtrating this idea ve ealdt ‘The argument that dynamite la not’ a material., but a’part. OSthe 

### oontraetor’s
.’
~’ ‘Y’~:’ plant vhlch, like .piokti end ehovele. or meohanioal : appLlanoe8, are used in the performmoe OSvork,,:,..:::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 ,&ndappllanoee 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 OSthe work, and are thereafter l.nvl-~~‘:.tic .J;: alble :exuept as ‘they survive .in tangible resulte.( -:~ ’ .,::. 

### 183R.-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, $2943. 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 OSvhlah the ooncrete piles were made, but vae an equipment to be used inthemaklng..

. ,” In the case of come OSthe materials listed in your opinion Bald materl&le oan be used SOPseveral 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,nbe 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. 

### orderto have a complete StoQk., of bullding material” and ln 

### orderto 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, 

### forfaetening a “no-hunting” sign to 0 tree. It la not strictly R question of whether or not a place ia a lumber yard, &athat term la oommonlyunderstood, 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 wehave found that deeidee whether or not a partioular place la 8 lumber yard or not within the commonunderstanding of theHonorable Qeorge II. Sheppard, page 19

~e”s”,~ tp case of PlanterQe LumberCo. 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 

### iaoomnonlg 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: Wethink 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. sametime to makethose 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

Whatwehave raid here f$nde support in and la in hermanywith 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

Wewill nowannweIryour 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 OaaFloor 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. 

### EleotrloalPixturear -~

.~,

:

‘

. 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,WovenWire 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 TankIUaterlalar RHO." lilndmill Part%: "Ho." Pumppartar 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