. .

HE AYITORNEY GJSNERAL

OFTEXAS

December 16, 

### 1957

Honorable John C. White Commissioner, Texas Department of Agriculture Capitol **Station** Austin, Texas Opinion Wo. 

### WW-313

Re: Does the subject package of wheat flour meet the requirements of Article 10&2b,Vernon's Penal Code? And related quesDear Mr. White: tions.

You have requested an opinion of this office concerning the applicationof Article 1042b,Vernon's Penal Code, to the sale of a specific package of wheat flour. The request describes the package as follows:

"A shaker-typepackageof flour with perforated top,weighing 14 ounces net, manufacturedby PillsburyMills, Inc., and more fully described as 'apasteboard cylinderwith metal top and bottom. It IS designed to be used by pushingdown a portion of the metal top and turning a revolving disk attached thereto so that the packageprovides for both reclosability and controlleddispensing.' The container is marked, 'Youwill want this package for the top of your stove and your regular size for your canister.'.

. .'

You have posed the followingq,uestlons in your request:
"1. Is the above described

package In compliancewith Article 1042b, PenalCode?

"2. If the answer to Question 1Honorable John C. White, page 2, 

### (WW-313)

is in the negative, thenwould the proposed rules and regulations, as set forth below, be in compliancewith the provisions of Section 

### 3 of Article 1042b,Vernon's PenalCode, and if sowould the subject package fallwithin the provisionsof these proposedrules and regulations?"

We shall answer your questions in the order presented.
Article -1042b,

Vernon's PenalCode, reads, in part, as follows:
'Section 1. The standardmeasures

of wheat flour,whole wheat flour, graham flour, other cereal flour, and corn meal, except such cereals sold as grits, shall be packages containingnet avoirdupois weights of two, five, ten, twenty-five, rift?, one hundred, one hundred fifty, and two hundred pounds.

"Sec. 2. It shall be unlawful for any person, firm, associationor corporation to pack for sale, sell or offer for sale in the State of Texas any wheat flour,whole wheat flour, graham flour, other cereal flour, or corn meal except in packages (includingbarrels, sacks, bags, cartons and other containers)of the above standard net weights.

llSec. 

### 3. Each package oi? wheat flour,whole wheat flour, graham flour, other cereal flour and corn meal shall have the net weight, name of manmfacturer (meaningthe person, firm, association,
or corporationwhich processes the wheat or other cereal into flour, or which processes the corn into meal) and the name of the placewhere milled, printed or plainlymarked on it in letters and figures clearly readable; and that it shall be unlawf,ul

for any wheat flour,whole wheat flour, graham flour, other cereal flour, or corn meal, to be packed for sale, offered for sale or soldwithin the State of Texas unless it shall be so labeled. Provided, however, that reasonablerules and regulations for the efficient enforcementof thisHonorable John C. White, page 

### 3 (W-313)

Act, not inconsistentherewith, and Includingreasonablevariations or tolerances, shall be made by the Commissioner of Agriculture.

'Sec. 

### 4. The provisionsof this Act shall not apply to the retailing of wheat flour,whole wheat flour, graham flour, other cereal flour or corn meal direct to the
consumer from bulk stock, nor to sales of flour to bakeries for exclusive use in such bakeries, nor to the exchange of flour or meal forWheat
or corn by grist mills and other mills grinding for toll for producers;and that nothing herein contained shallbe held to apply to any product such as preparedpancake flour, cake flour or other specialty,packed and distributed in identifiedoriginal package, the net contents of which are five pounds or less.

It might be well to further point out that the sample containerwhich you have supplied to this office is specifically labeled so as to indicate that it contains an all-purpose flour. In fact, a portion of the label states that "This is an allpurpose-flourand can be used for any baking.

. .biscuits, cookies, cakes, etc."

Section 1 of Article 1042b,Vernon's PenalCode, as set forth above, clearly prescribes the standardmeasures of wheat flour as packages containingnet weights of two, five, ten, twenty-five, fifty, one hundred, one hundred fifty, and two hundred pounds. Section 2 of this sameArticle makes it unlawful to sell or offer for salewheat flour except in packages of the standardweights set forth in Section 1. It further defines "packages"to includebarrels, sacks, bags, cartons and other c'ontainers.Thus, it is apparent that the subject package of flour clearly falls within the purview of the statute and In as much as the container In questions contains but fourteen ounces of flour, its sale is prohibitedby the provisionsof Article 1042b,Vernon's PenalCode, unless It fallswithin one of the exceptions to theAct.

An examinationof the pertinent sections of the Act, as set forth above, indicates that the only exceptionunderwhichL

.

Honorable John C. White, page 4 

### (W-313).

the subjectpackage could possibly fall is that provision contained in Section 4, which provides:

I, 0 * Q and that nothing herein contained shallbe held to apply to any product such as prepared pancake flour, cake flour or other specialty,packed and distributed in Identified originalpackage, the net contents of which are five pounds or less."

The term "specialty"is nowhere defined in Article 1042b,Vernon's Penal Code. However&Websterns NewnInternational Dictionary, Second Edition, defines specialty" as an exceptional
or peculiarmark or charaoterlstic, ing, a distinctive or distinguishsometimesa limiting or restrictive, quality o D 0 an object
or class of objectsmarked by some special or peculiar **character istic**  **o o**  **-1 ’** 

Thus, it appears it was the intent of the Legislature to exclude from the restrictions of the Act such products as have distinctive or restrictive qualities,which mark themwith
some exceptional or peculiar characteristic. The two enumerated products, to-wit,prepared pancake flour and cake flour both fall within this commonly accepted definition for both contain ingredients or are so processed so as to be offered for sale, and subsequentlypurchased for a limiteduse. Both possess exceptional qualitieswhich induce the purchaser to seek out that particular product. However, here the container itself indicates an allpurpose flour, and not a specialized type of flour, and the statute itself does not classify a container as a specialty.

The rule which might best be used to resolve the problem of constructionpresented In this case is that of ejusdem In Stanford 142 Tex. 

### 692, 181 S.W. 2d 263 (194 Supreme C 

### 4w

ourt said:

"'It is a prime rule of construction that where In a **statute** generalwords follow a designation of partieular subjects or classes of persons the meaning of the general words will be restrictedby the particular deslgnation In such statute. This is known as the rule of ejusdem generis, and is a rule of almostuniversal appllcation.""
The Court in S.W. 2d 

### 781 ( CasualtyCo, v. Stewart Abstract Coi.$17 App., 19291, held;.

Honorable John C. White, page 5 (WW-313).

II
e e

. When general words of statute follow
a particular enumeration, the generalwords will be construed to mean things of the general characteristicspossessedby the particular ones. 0 e .' Applying this rule to the product in question, it is OUT opinion that the subjectpackage of all-purpose flour, whose physical characteristicsin no way limit or restrict Its use, may not be construed to be a "specialty"as that term is used In Article 10&2b,Vernon8s Penal Code. For this reason,we are of the opinion that Sections 1 and 2 of Article 1042b,Vernonus Penal Code, prohibit the sale of the subjectpackage of flour and must, therefore,answeryour first question in the negative.

Section 

### 3 of Artfcle 1042b,VernonOs PenalCode, as set forth above*provides that reasonable rules and regulations for the efficient enforcementof the Act, and not inconsfstent therewith, shallbe promulgatedby the Commissioner of Agriculture. Under this authorityyou have presented a proposed rule, the pertinentportions of which ppovfde:

In P. "RuleNo. The term Article 1042b,V.6.C., Acts, 's ecfalty" 12 as used 19 

### 3, 48thLeg., 694, ch. 

### 385,as amended Acts 1953p 53rd Leg., p. 

### 831, ch. 

### 334* sec. 1, exempting from standard weights there set for the sale of packaged flour and cornmeal Panyproduct such as prepared pancake flour or other specfaltyg,is hereby l-uled to mean any retail sale **Item** consisting either wholly or predominantly of wheat flour, whole wheat f~lour,

graham flour, other cereal floup OP corn meal9 packed and distributed In fdentffied orfgfnal package, the net contents of which are five pounds
or less,provided that such item fs (a)produced 01" packaged with a distinguishing characteristicwhich dffferentiates it from other items consisting of the
same OP simd.lar

ingredients, (b)produced or packaged for limited or specialpurposes as distinguished from generalpurposes9 and (c)packaged in a dlstinctive and unusual manner clearly indicating the net weight and the special OP limitedpurposes for which it is marketed."

The usual purpose of the statutes relating to wefghts and measures is to protect thepublic from fraud and mfsrepresentation and to enable it to obtain the quantft bought and paid for. 

### 56 Am. Jup. 1017, Section 1.of plpoperty The Supreme Court of Tennessee3 in upholding a statutewhich requfped corn meal to be packaged in a certain sized contafner, said theHonorable John 6. White, page 6 

### (W’W-313).

object of the statutewas thepreventfon of fraud in the sale of one of the most common articles of commerce and food, State
v. Cooperative Store Co., 123 Term. 39g9 131 S.W. 867 (lglr The Leafslature of Texashas also seen fit to enact snecffic legislationwhich requlrea the sale of certain comaon*flou~s and meals in standardizedpackages. Like the Tennessee statute, the Items Included are those specific commoditieswhich the **con** sumer public requiresdally and which the averagebuyer has come to expect to be packed in certain standard sizes. In order not to burden the free exchange of these common commodftfes in those Instances in which the avel-age small lot purchaserwould not be involved, OP where he would not be mislead, the Legislature provided four exceptions: (1)where the sale 1s to the consumer from bulk stock and, therefore,presumably soldby the actual weight; (2)where the transactioninvolves the mflllng of flour
or meal, and 

### (3)where the sale is to a bakery for its exclusive use; and (4)where the purchase involves a mixture OP type of flour or meal which has exceptionalpropertieswhfch alaedfstinguished from the common all-puppose flour and meal. As pointed out above in our answer to your first question, the particularproperties and qualities of these specialproducts have induced theirpurchase and, for this reason, the consumer will be relyingupon these distingufahingpropertieswhen he purchases ft rather thanupon the size of the container,as fs often the case in his pupchase of all-purpose flour or meal.

In as much as the quoted portions of Section 3 of Article 1042b,VernonPa PenalCode, require that any rules promulgated under the authority of the Act be not inconsistentwith the Act,we must therefore examine theproposed rules fn the light of the constructionwhich we have placed on the statute above.

The proposed rule would define "or other specialty" so as to include any retail item consistingwholly 'ok predominantly of wheat YXOUP~ whole wheat floup# graham floup and other cereal flour or corn meal,,if such Item is (a)produced OP packaged with a distinguishing characteristicwhfch d%fferent:fates it from other Items consfstfngof the same or sfmflapmaterials, (b)produced or,packaged fop limited or optionalpurposes as dfstingufshed from general purposes, and (c)packaged in a dfstinctive and unusual manner clearly indicating the net weight and special ala limited purposes'forwhich ft 1s mapked. We fnteppret the rule to require thepresence of all three of these requirementsbefore
an item may be properly classified as a "specialty", We further construe thephrase "or packaged" as it appears **in** requirements (a) and (b) to be in the disjunctive and, therefore, subject to being consttied so aa to allow an ftem packaged with a dlstingufshing characterfsticandpackaged for a lfmfted or ape&al purposeHonorable John C. White, page 

### 7 (WW-313).

and packaged **fn** a distinctive and unusual manner to be a "specfalty" within the meaning of the Act, regardless of whether the contents of the package be produced for a specialOP limitedpurpose OP not. We do not believe that such a constructfonof thephrase "or other specialty" is In accordancewith the intent of the Legfslature in providing the exception as to specialtfesand, therefore,we are of the opinion that the treposed rule is not consistentwith the provisions of Article 10 2b,Vernon's PenalCode. For this reason, we are of the opinion that the proposed rules and regulations are not in compliancewith the provisions of Section 

### 3 of Artfcle 1042b,Vernonts Penal Code, and we must answer the ffrst portion of your second question in the negative.

In as much as we are of the opinion that the proposed rules are not in compliancewith the provisions of Artfcle 1042b, Vernon's PenalCode, it becomes unnecessary for us to answer the final portion of your secondquestion.

SUMMARY

The subjectpackage of wheat flour does not meet the requirements of Art%cle 10&2b, Vernon"s PenalCode, and theproposed rules and regulationswhfch have been submittedare not in compliancewith the provisions of Sectfon 

### 3 of Article 1042b,Vernon's Penal Code.

Yours very truly,

WILL WILSON Attorney Qeneral of Texas

By ti$$zkT k2wp. Way1 d C. Rivers, Jr. Assistant
WCR:pf

APPROVED:

OPINION COMMITTEE

Geo. P. Blackburn, Chafrman
John H. Minton, Jr. B; H. Timmins, Jr. Leonard Passmore APPROVEDFOR THE ATTORNEY GENERAL By: James N. Ludlum.