. . 

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 application of 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-type package of flour 

with perforated top, weighing 14 ounces 

net, manufactured by Pillsbury Mills, Inc., 

and more fully described as 'a pasteboard 

cylinder with metal top and bottom. It IS 

designed to be used by pushing down a 

portion of the metal top and turning a 

revolving disk attached thereto so that 

the package provides for both reclosability and controlled dispensing.' The 

container is marked, 'You will want this 

package for the top of your stove and 

your regular size for your canister.'. . .' 

You have posed the following q,uestlons in your 

request: 

"1. Is the above described 

package In compliance with Article 1042b, 

Penal Code? 

"2 . If the answer to Question 1 
Honorable John C. White, page 2, (WW-313) 

is in the negative, then would the proposed rules and regulations, as set forth 

below, be in compliance with the provisions 

of Section 3 of Article 1042b, Vernon's 

Penal Code, and if so would the subject 

package fall within the provisions of 

these proposed rules and regulations?" 

We shall answer your questions in the order presented. 

Article -1042b, Vernon's Penal Code, reads, in part, 

as follows: 

'Section 1. The standard measures 

of wheat flour, whole wheat flour, graham 

flour, other cereal flour, and corn meal, 

except such cereals sold as grits, shall 

be packages containing net 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, association or 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 (including barrels, 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 

(meaning the person, firm, association, 

or corporation which processes the wheat 

or other cereal into flour, or which processes the corn into meal) and the name 

of the place where milled, printed or 

plainly marked 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 sold within the State of Texas unless it shall be so labeled. Provided, 

however, that reasonable rules and regulations for the efficient enforcement of this 
Honorable John C. White, page 3 (W-313) 

Act, not inconsistent herewith, and 

Including reasonable variations or 

tolerances, shall be made by the Commissioner of Agriculture. 

'Sec. 4. The provisions of 

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 for Wheat 

or corn by grist mills and other mills 

grinding for toll for producers; and 

that nothing herein contained shall be 

held to apply to any product such as 

prepared pancake flour, cake flour or 

other specialty, packed and distributed 

in identified original package, the net 

contents of which are five pounds or 

less. 

It might be well to further point out that the sample 

container which 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-flour and can be used for any baking. . . biscuits, 

cookies, cakes, etc." 

Section 1 of Article 1042b, Vernon's Penal Code, as set 

forth above, clearly prescribes the standard measures of wheat 

flour as packages containing net weights of two, five, ten, 

twenty-five, fifty, one hundred, one hundred fifty, and two 

hundred pounds. Section 2 of this same Article makes it unlawful to sell or offer for sale wheat flour except in packages of the standard weights set forth in Section 1. It 

further defines "packages" to include barrels, 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 prohibited by 

the provisions of Article 1042b, Vernon's Penal Code, unless 

It falls within one of the exceptions to the Act. 

An examination of the pertinent sections of the Act, as 

set forth above, indicates that the only exception under which 
L . 

Honorable John C. White, page 4 (W-313). 

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

I, 0 * Q and that nothing herein contained 

shall be held to apply to any product such as 

prepared pancake flour, cake flour or other 

specialty, packed and distributed in Identified 

original package, 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 peculiar mark or charaoterlstic, 

ing, 

a distinctive or distinguishsometimes a limiting or restrictive, quality o D 0 an object 

or class of objects marked by some special or peculiar characteristic 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 them with 

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 subsequently purchased for a limited use. Both possess exceptional 

qualities which 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 construction presented 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 general words follow a designation of partieular subjects or classes of persons the meaning of the 

general words will be restricted by the particular deslgnation In such statute. This is known as the rule of 

ejusdem generis, and is a rule of almost universal 

appllcation."" 

The Court in 

S.W. 2d 781 ( 

Casualty Co, 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 general words will 

be construed to mean things of the general characteristics possessed by the particular ones. 0 e .' 

Applying this rule to the product in question, it is OUT opinion 

that the subject package of all-purpose flour, whose physical 

characteristics in 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 subject package of flour and 

must, therefore, answer your first question in the negative. 

Section 3 of Artfcle 1042b, VernonOs Penal Code, as 

set forth above* provides that reasonable rules and regulations 

for the efficient enforcement of the Act, and not inconsfstent 

therewith, shall be promulgated by the Commissioner of Agriculture. Under this authority you have presented a proposed rule, 

the pertinent portions of which ppovfde: 

In 

P. 

"Rule No. The term 

Article 1042b, V.6.C., Acts, 

's ecfalty" 

12 

as used 

19 3, 48th Leg., 

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 corn meal Pany product 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 characteristic which 

dffferentiates it from other items consisting of the 

same OP simd.lar ingredients, (b) produced or packaged for limited or special purposes as distinguished 

from general purposes9 and (c) packaged in a dlstinctive and unusual manner clearly indicating the net 

weight and the special OP limited purposes for which 

it is marketed." 

The usual purpose of the statutes relating to wefghts 

and measures is to protect the public 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 statute which requfped corn 

meal to be packaged in a certain sized contafner, said the 
Honorable John 6. White, page 6 (W’W-313). 

object of the statute was the preventfon 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 Texas has also seen fit to enact snecffic 

legislation which requlrea the sale of certain comaon*flou~s 

and meals in standardized packages. Like the Tennessee statute, 

the Items Included are those specific commodities which the consumer public requires dally and which the average buyer 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 purchaser would 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 sold by the actual 

weight; (2) where the transaction involves 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 exceptional properties whfch alae dfstinguished from the common all-puppose flour and meal. As 

pointed out above in our answer to your first question, the 

particular properties and qualities of these special products 

have induced their purchase and, for this reason, the consumer 

will be relying upon these distingufahing properties when he 

purchases ft rather than upon 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 Penal Code, require that any rules promulgated under the authority of the Act be not inconsistent with 

the Act, we must therefore examine the proposed rules fn the 

light of the construction which we have placed on the statute 

above. 

The proposed rule would define "or other specialty" so 

as to include any retail item consisting wholly '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 characteristic whfch d%fferent:fates it from 

other Items consfstfng of the same or sfmflap materials, (b) produced or,packaged fop limited or optional purposes as dfstingufshed 

from general purposes, and (c) packaged in a dfstinctive and unusual manner clearly indicating the net weight and special ala 

limited purposes'for which ft 1s mapked. We fnteppret the rule 

to require the presence of all three of these requirements before 

an item may be properly classified as a "specialty", We further 

construe the phrase "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 characterfstic and packaged for a lfmfted or ape&al purpose 
Honorable 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 special OP limited purpose OP not. 

We do not believe that such a constructfon of the phrase "or other 

specialty" is In accordance with the intent of the Legfslature in 

providing the exception as to specialtfes and, therefore, we are 

of the opinion that the 

t 

reposed rule is not consistent with the 

provisions of Article 10 2b, Vernon's Penal Code. For this reason, 

we are of the opinion that the proposed rules and regulations are 

not in compliance with 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 compliance with the provisions of Artfcle 1042b, 

Vernon's Penal Code, it becomes unnecessary for us to answer the 

final portion of your second question. 

SUMMARY 

The subject package of wheat flour does 

not meet the requirements of Art%cle 10&2b, 

Vernon"s Penal Code, and the proposed rules 

and regulations whfch have been submitted are 

not in compliance with 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 

APPROVED FOR THE ATTORNEY GENERAL 

By: James N. Ludlum.