### THEA-~-~-Y 

### GENERAI.
OP TEXAS

Honorable Nurrell Buckner, Chairman Game, Fish & Oyster Commission Austin, Texas

Dear Sir: Opinion No. O-4414 Re: Under the facts presented $houlda wholesale fish dealer's lioehse be required of the H.!E. Butt Grocery Company of Corpus .Chrlstl?
Upon certain factspresented to you by yourDirector of Coastal Operations,relating to operations .of.the H. E. Butt ‘Grocery Company,we quote from your letter ,ofFebruary 11, 1942, requesting the opinion of this department:

"Mr.J. B. 'Arnold, director of coast&l op&- atians of,thls department, states:
"TheH. E. Butt Grocery Company of.Corpus Christ1 is the owner of several Pigglg-Wrgglg stores ~throughoutthe Southwest. The H;'.E. ~' ',Butt Grocery Companymakes shipmer&zs -(of aquatic product%) t6 the various Plggly-Wiggly stores over the Southwest, and.the sale (ofaquatic products) ls'made from the Piggly-Wiggly stores to the consumer, and'lt is on that point that I think unclerthe law, since he buys for the purpose of shipments and sale and the shlpment is ,,. made from the H. E. Butt Grocery Company;of Corpus Chrlsti by truck, that he (theH. E. Butt Grocery Company) is due to procure a licensers (aWholesale Fish Dealer~'sLicense) for the H. E. Butt Grocery store.'

"If the said R. E. Butt Company purctiases squatlc,products from fish~ermen or wholesale dealers and sh.ipssame to retail storesw.hich they own and operate for the ptipose'ofridall, sale is the H. E. Butt Company required to purchase a Wholesale Fish Dealer's License before~ conducting such business?.,.*

Honorable MurrelY Buckner, page-? .I : ,O-4414

"If the 

### said R-E. ButtCompany ships aquatic products to storeswhich they own and:: operate and such stores' sell such aquaticpro-' " ducts only to hotels, cafes or restaurants or to consumers of such products Is the saidB. E. Butt Company'under this circumstancerequired to purchase a Wholesale Fish Dealer's License before’ engaging in suchbusiness?
"If the saidH. E. Butt'Compang through any of Itsstores sells aquatic products to any. bait dealer or other personwho resells said productswould It be necessary to establish that the saidH. E. Butt Company sold such products to dealers for the purpose of resale before the saidH. E. Butt Company could be successfully prosecuted for conducting such businesswithout a Wholesale Fish Dealer's License?"

'It Is further stated in your letter that there exl&s evidence'thatone or more Plggly-Wlggly.storeshas sold aquatic products to.one or more hotels, cafes, or restaurantsand to at least one bait dealer and thatshrimp sold to the said bait dealer was purchased forpurpos,es of resale.

We'have been Informed that the name Piggly-Wiggly; underwhich the'H. E. Butt Company,a private corporation, operates its stores, is a.copyrlghted 'name which.that company has obtalne&the right to use. Such stores are not separate entitles,'butall belong to and are operated by that company. A salemade by any of these stores is a sale by said company.

As will be seen from the provisions of;the law hereinafterquoted, a person or corporation 1s not required to have a license both as a "WholesaleFish Dealer" and "Retail FishDealer" at any one of Its places of buslness. ,,Inconsideringthe company in question, the character of its operations at each business locationdetermines the kind of license at that location required under the Act.

.Article934a of Vernon's Penal Code of Texas, in point,provides:

"Sec. 1. The followingwords, terms and phrases.used In this Act are hereby defined as follows: 11

. . . .Honorable Murrell Buckner, page 

### 3 : 

### O-4414

"(b),A 'WholesaleFishDealer' is any person engaged in thebusiness of buying for the purpose of selling, canning, preserving or processing, or buying for the purpose of handling for shipments or sale, fish or oysters or shrimp or other commercial edible aquatic products, to, Retail Fish Dealers, and/or to Hotels, Restaurants or Cafes and to the Consumer, "(c)A 'RetailFish Dealer' is any person engaged in the business of buying for the ptipose of selling either fresh or frozen edible aquatic products to the consumer. "(cl) A 'BaitDealer' is any person engaged in the business of selling eitherminnows, fish,. shrimp or other aquatic products, for fish.bait,

11

. . . . ' shall Include the plural as as the.casedemands, and shall include lndlvi~uals,partnerships,assoclatlons, and corporations.

11

. . . . "Sec. 2. Before any person In this State shall' engage In the business of a ; ~."Wbble; sale Fish Dealer', 'RetailFish Dealer' 'Bait Dealer',,

. . ; the proper license prbvi&d for in this Act privileging them so to do shall first be,proctiedby such person from the Game, Fish and Oyster Commission of Texas or from on6 of it+ authorized agents. 

### “S,c.3. ~Thelicenses and the fees to be paid for the same are hereby prdrlded forin this Act and-are as follows:

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. . . . "2

. Wholesale Fish Dealers' License, fee for each place of business, Two Hundred Dollars ($200)

. 11

. . . . 

### "3. (a)'Retall Fish Dealers' License; fee ThreeDollars 

### ($3)for each place of business inHonorable Murrell Buckner, page 4 O-4414

each city or town of less than seven thousand, five hundred (7,500)population. "(b) Retail Fish Dealers' License Dollars ($10) for each place of busineis fee Ten &each city or town of.not less than seven thousand, five hundred (7; thousand (40,000 00) and not more than forty population.
"(c) Retail Fish Deislers' License, fee FifteenDollars,($15) for each place of business in-each City or town of more than forty thousand. (40,000)population.

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. . . . "11~.Place of business, as used In this Act, shall include the placewhere orders .for aquatic products are received, orwhere aquatic products are sold, and If sold from a vehicle, the vehicle on which, or from which such aquatic products are sold, shall constitute~aplace of business

. . . "Sec. 6. Any person falling to compljr with or violating any provision of this Act shall .be deemed guilty of a misdemeanor and upon convlc- +lon shall be punished by a fine in a sum not less~ than TenDollars ($lO:OO),nor more than Twd HundredDollars ($200.00),and his licerise 1. sh&llbe automatically cancelled and he shall not be entitled to receive another such license or permit for one year from the date of.,such '.“ conviction.!

In the Interpretationof statutes imposing taxes, prbvlsionswill not be extendedby $mplicatlon~beyondthe plaln~import of the language used, nor will the~irop.eratlons be enlarged to apply to subjects not specifically included therein. In doubtful cases, taxing statutes are construed most stronglyagainst the State and in favor of the.citizen. State v. San Patricia Canning Co., 17 S. W. (2d) 160; 25 R. c. L. pp. 1092, 1093.

From~the facts heretofore stated and, as furnished us by the Executive Secretary of the Game, Fish and Oyster Commission,a.11sales are-made through the various PigglxWiggley stores, and for each store or "placeof business as that term is defined in,Artlcle 934a; the HI.E. Butt Company has obtained a retail fish aealers'.license.Honorable Murrell Buckner, page 5 O-4414

'In the case.of Ex ParteMehlmen, 75 S. W. (26) 688, the Court of CriminalAppeals; upholding the constitutlonality of the Act in~questionand c~onstrulng the word "consumer" stated, and we quote from the opinion on page 690 as follows:

"It Is clear from a reading of the aeflnition of dealers that onewho confines-hisbusi- ._ 1 ness to s811ing to the consumer is required to pay the tax provided for retell dealers, .~. .~. It is true that thewholesale dealer is .permitted to sell to the consumer.
. . It is argued, however, thatthewholesale dealer Is permitted to sell to.,hotels, restaurants and cafes, all of which are properly comprehendedby th8 term ~'con$xmerQs employed In the definition of 'retall.dealer',and that therefore the dealer who desires to sell to hotels, etc., Is unable to determine the sort of license he must secure. We perceive nothing ,lnthe definition of 'retail~dealer'that shouldbe taken to prohibit one ~operating,nndera retaildealer's license fromselling to hotels, restaurants ana cafes; they being comprehended by the term 'consumer': as that term is ordinarilyunderstood. We, therefore, express the.oplnlon that one aesiring to ~a'811

to th8 consumer alone is apprised .~.: ' by the act that he 1s required to procure a retail d.ealer's

license, and that thereunder .he may gel1 to hotels,'restaurantsand cafes."

It seems clear under the foregoingauthority that. both Pholesal~e

and retail dealers are permitted to sell~tci 'hotels,

restaurants and cafes. In connectionwith your first two questions and under the facts stated, their answer lieswltbin the meaning of "RetailFishDealers" as used ., in Subsection (b) of Section 1, Article 93&a, Penal Code d,eflnlng

a "WholesaleFish Dealer". That phrase conclusively refersto and means retail dealers conducting their own place of business separateand apart in ownershipIfromthe place or places of business operatedby the purchaser or. shlpper. For example, a retail dealer owning several stores doesnot become a wholesale dealerwithin the meaning of the Act although h8 spparently buys for the purpos,e of handling for shipmentsto ,hisseveral stores for sale as a retail dealer. In this instance "shipments"for servicing th8 severalretail pla,oesof business are necessarily incident to th8 servicing of his own retail stores. Under the Ex parte Mehlmen case cited, hotels, restaurants and cafes are comprehended by the term "consumer",hence such sales are within the definition of "RetailFish Dealer." Under the factsHonorable Murrell Buckner, page 6 0-4~414

stated such "shipments"apparently comprehendedby your first twb uestions do not require the H. E.-Butt Company to have a %h Christ1 placeolesale Fish Dealers'" license at its Corpus

of business.
Relative to your third question and under the facts, such sale is allegedlymade to the "BaitDealer," who Echased same for the purpose of resale.,.~ItIsnot alleged that the shrimpwas e for the purpose of resale.. The point is that 'BaitDealer" as that term Is defined, Isnot comprehendedby the term "consumer" of 'RetailFish Dealer" within the deflnltioi%s or 'WholesaleFish Dealer." A~"Bait Dealer" is one engaged in the business of selllrig shrimp-

or tither aquatic products, for fish bait. We may assume that any salemade to a licensed bait dealer is for purpose of resale. The mere fact, how~ever, that a bait dealer Is rep-- quired to obtain a license and is defined as a licensee engaged in the business of resale does not alone furnish evidence as to the character of the seller,whether wholesale br retail fish dealer. There is no prohibltion In the Act against a licensed "BaitDealer" buyingfrom any of%h8 licenseesd8fined by the Act.

The statutedefining the term "WholesaleFish Dealer", requires a license as such of a corpordion not only !'Bngaged in the business" of buying for the purposes of selling, canning, preserving or processing, of handling for "shipments but also~buying for the purpose or sales". The::term'lengaged In ~th8business" does not mean the performance of a single or ~- Isolatedbusiness transactionbut strongly suggests and ctiries the idea of conducting,prosecutlng~andcontinuing businessby performing progrtissively such acts within the statutorydefinltlon. A retail fish dealer being permItted to buy,for the purpose of selling fresh edible aquatic products to the consumer,includlnghotels,.restaurantsand cafes, and a Bait Dealer permitted to buy for the purpose of resale for fish halt, the company's handling of edible aquatic products, including shrimp, for such shipments togetherwith the single transaction of a shipment or sale to a "BaitDealer," or "RetailFish Dealer" would be Insufficient to constitute one a "WholesaleFish Dealer" under the Act.

The foregoing construction of the statute is sustained by the following cases construing similarphrases~contalned in the Federal Tariff Act of 1909, par. 38, 36 Statutes 112; Lewell
r v. Pittsburg B. & L. E. R. Co., C. C.A. Pa., 222 F. 177, 1 5; Berliner Handels-Gesellschaft v:U; S. Ct. Cl., 30 Fed. Supp. 490, 496, citing U. S. V. Emery, Bird, Thayei. Realty Co., 237 U:S. Reports, 14, Perm. Ed., p. 624. p. 28;‘Words and Phrases,,Vol. It was further held in Strlckler'v.Honorable Murrell Buckner, page 

### 7 O-4414

Schaaf, 91 P; (2d) 1007, 199 Wash. 372, that an isolated or occasionaltransportationof persons does not constitute "engaging In business"within the statutedefining "auto transportationcompany" as one "engaged in the business of transportingpersons, and, or, property for compensation."

We do not, in this opinion go Into the question of the proper license to be required of a'dealer engaged in the business of buying for the purpose of selling or handling shipments& to hotels, restaurants or cafes within the popular and ordinarymeaning of the wora "wholesale"as dlstinguished from "retail". Admitting that both thewholesale dealer and the retail dealer are permitted to buy for the purpose of selling edible aquatic products to tiotels,restaurants or cafes, it 1s apparent that a retail dealer's licensedoes ,notpermit one whose business-is solely that of sellingby the wholesale or In large quantities to hotels, restaurantsand cafes, thus handling same for shipments to such consumers, to defeat the purpose and intent~ofthe'Act by extendinghis operationsbeyond those permittedunder such.retallfish dealers' license. The facts are insufficient on this point, however, as constituting "WholesaleFish Dealer" under the Act.

Answeringyour questions In the order are presented, it is therefore the opinion of men%: the companya

inwhich same this departQuestionRo. 1. That H. E. Butt Grocery Company Is not required to purchase a Wholesale Fish Dealer's License where it purchasesaquatic products from~flshermenor wholesale dealers and ships same to retail storeswhich It owns and operates for the purpose of retail sale under a Retail Fish Dealer's License.

QuestionNo. 2. H. E. Butt Grocery Company is not required to purchase a Wholesale Fish Dealer's License where It ships aquatic products to Its various retail stores for sale as a Retail Fish Dealer under the facts submitted.

QuestionNo. 3. It would be necessary to establish not only thatH. E. Butt Grocery Company, through any one or more of its stores, sold aquatic products to more than one "RetailFish Dealer" for the purpose of resale but thtt such operationsconstitutebeing 'engagedln the business of a "WholesaleFish Dealer" before said company could be successfullyprosecuted for conducting its businesswithout a wholesale fish dealer's license.Honorable MurrellBuckner, page 8 

### O-4414

Yours very truly

ATTORNEY GENERAL OF TEXAS

By q&m. J. R. King Wml.J. R: King Assistant

wJRK:LM:wc

APPROVED MAY 9, 1942 s/GroverSellers FIRST ASSISTANT ATTORNEYG'ENERAL Approved Opinion CommitteeBy s/BwB Chairman