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 $hould a 

wholesale fish dealer's lioehse be 

required of the H.! E. Butt Grocery 

Company of Corpus .Chrlstl? 

Upon certain facts presented to you by your Director 

of Coastal Operations, relating to operations .of.the H. E. 

Butt ‘Grocery Company, we quote from your letter ,of February 

11, 1942, requesting the opinion of this department: 

"Mr. J. B. 'Arnold, director of coast&l op&- 

atians of,thls department, states: 

"The H. E. Butt Grocery Company of.Corpus 

Christ1 is the owner of several Pigglg-Wrgglg 

stores ~throughout the Southwest. The H;'.E. ~' 

',Butt Grocery Company makes shipmer&zs -(of aquatic 

product%) t6 the various Plggly-Wiggly stores 

over the Southwest, and. the sale (of aquatic products) ls'made from the Piggly-Wiggly stores to 

the consumer, and'lt is on that point that I 

think uncler the 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 (the H. E. Butt 

Grocery Company) is due to procure a licensers 

(a Wholesale Fish Dealer~'s License) 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.ips same to retail stores w.hich 

they own and operate for the ptipose'of ridall, 

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 stores which 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 said B. E. 

Butt Company'under this circumstance required 

to purchase a Wholesale Fish Dealer's License 

before’ engaging in such business? 

"If the said H. E. Butt'Compang through 

any of Its stores sells aquatic products to any. 

bait dealer or other person who resells said 

products would It be necessary to establish that 

the said H. E. Butt Company sold such products 

to dealers for the purpose of resale before the 

said H. E. Butt Company could be successfully 

prosecuted for conducting such business without 

a Wholesale Fish Dealer's License?" 

'It Is further stated in your letter that there exl&s evidence'that one or more Plggly-Wlggly.storeshas 

sold aquatic products to.one or more hotels, cafes, or 

restaurants and 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; 

under which 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 sale made by any of these stores is a sale 

by said company. 

As will be seen from the provisions of;the law hereinafter quoted, a person or corporation 1s not required to 

have a license both as a "Wholesale Fish Dealer" and "Retail 

Fish Dealer" at any one of Its places of buslness. ,, Inconsidering the company in question, the character of its operations at each business locationdetermines the kind of 

license at that location required under the Act. 

.Article 934a of Vernon's Penal Code of Texas, in 

point, provides: 

"Sec. 1. The following words, terms and 

phrases.used In this Act are hereby defined as 

follows: 

11 . . . . 
Honorable Murrell Buckner, page 3 : O-4414 

"(b) ,A 'Wholesale Fish Dealer' is any person engaged in the business 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 'Retail Fish 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 'Bait Dealer' is any person engaged in 

the business of selling either minnows, fish,. 

shrimp or other aquatic products, for fish.bait, 

11 

. . . . 

' shall Include the plural as 

as the.case demands, 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', 'Retail Fish Dealer' 'Bait 

Dealer',, . . ; the proper license prbvi&d for 

in this Act privileging them so to do shall 

first be,proctied by such person from the Game, 

Fish and Oyster Commission of Texas or from on6 

of it+ authorized agents. 

“S,c. 3. ~The licenses and the fees to be 

paid for the same are hereby prdrlded forin this 

Act and-are as follows: 

11 

. . . . 

"2 . Wholesale Fish Dealers' License, fee 

for each place of business, Two Hundred Dollars 

($200) . 

11 

. . . . 

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

Three Dollars ($3) for each place of business in 
Honorable 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 

Fifteen Dollars, ($15) for each place of business 

in-each City or town of more than forty thousand. 

(40,000) population. 

11 

. . . . 

"11~. Place of business, as used In this 

Act, shall include the place where orders .for 

aquatic products are received, or where aquatic 

products are sold, and If sold from a vehicle, 

the vehicle on which, or from which such aquatic 

products are sold, shall constitute ~a place 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 Ten Dollars ($lO:OO), nor more than 

Twd Hundred Dollars ($200.00), and his licerise 1. 

sh&ll be 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 Interpretation of statutes imposing taxes, 

prbvlsions will not be extended by $mplicatlon ~beyond the 

plaln~ import of the language used, nor will the~ir op.eratlons 

be enlarged to apply to subjects not specifically included 

therein. In doubtful cases, taxing statutes are construed 

most strongly against 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.11 sales are-made through the various PigglxWiggley stores, and for each store or "place of 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 Parte Mehlmen, 75 S. W. (26) 688, 

the Court of Criminal Appeals; upholding the constitutlonality of the Act in ~question and 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 one who confines-his busi- ._ 1 

ness to s811ing to the consumer is required to 

pay the tax provided for retell dealers, .~ . . ~. 

It is true that the wholesale dealer is .permitted to sell to the consumer. . . It is argued, 

however, thatthe wholesale dealer Is permitted 

to sell to.,hotels, restaurants and cafes, all 

of which are properly comprehended by 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 ,ln the definition of 'retail~dealer' that should be taken to prohibit 

one ~operating ,nnder a retail dealer's license 

fromselling to hotels, restaurants ana cafes; 

they being comprehended by the term 'consumer': 

as that term is ordinarily understood. 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, 'restaurants and cafes." 

It seems clear under the foregoing authority that. 

both Pholesal~e and retail dealers are permitted to sell ~tci 

'hotels, restaurants and cafes. In connection with your 

first two questions and under the facts stated, their answer 

lies wltbin the meaning of "Retail Fish Dealers" as used ., 

in Subsection (b) of Section 1, Article 93&a, Penal Code 

d,eflnlng a "Wholesale Fish Dealer". That phrase conclusively refersto and means retail dealers conducting their own 

place of business separate and apart in ownership Ifrom the 

place or places of business operated by the purchaser or. 

shlpper. For example, a retail dealer owning several stores 

doesnot become a wholesale dealer within the meaning of the 

Act although h8 spparently buys for the purpos,e of handling 

for shipments to ,his several stores for sale as a retail 

dealer. In this instance "shipments" for servicing th8 several retail pla,oes of 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 "Retail Fish Dealer." Under the facts 
Honorable Murrell Buckner, page 6 0-4~414 

stated such "shipments" apparently comprehended by your 

first twb uestions do not require the H. E.-Butt Company 

to have a %h 

Christ1 place 

olesale Fish Dealers'" license at its Corpus 

of business. 

Relative to your third question and under the facts, 

such sale is allegedly made to the "Bait Dealer," who Echased same for the purpose of resale.,.~It Is not alleged 

that the shrimp was e for the purpose of resale.. The 

point is that 'Bait Dealer" as that term Is defined, Is not 

comprehended by the term "consumer" 

of 'Retail Fish Dealer" 

within the deflnltioi%s 

or 'Wholesale Fish 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 sale made 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 "Bait Dealer" buying from any of %h8 

licensees d8fined by the Act. 

The statute defining the term "Wholesale Fish 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 

~th8 business" does not mean the performance of a single or ~- 

Isolated business transaction but strongly suggests and ctiries the idea of conducting, prosecutlng~and continuing 

business by performing progrtissively such acts within the 

statutory definltlon. A retail fish dealer being permItted 

to buy,for the purpose of selling fresh edible aquatic products to the consumer,includlng hotels, .restaurants and 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 together with 

the single transaction of a shipment or sale to a "Bait Dealer," 

or "Retail Fish Dealer" would be Insufficient to constitute 

one a "Wholesale Fish Dealer" under the Act. 

The foregoing construction of the statute is sustained 

by the following cases construing similar phrases~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 

occasional transportation of persons does not constitute 

"engaging In business" within the statute defining "auto 

transportation company" as one "engaged in the business of 

transporting persons, 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 ordinary meaning of the wora "wholesale" as dlstinguished from "retail". Admitting that both the wholesale 

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 

license does ,not permit one whose business-is solely that 

of selling by the wholesale or In large quantities to hotels, 

restaurants and cafes, thus handling same for shipments to 

such consumers, to defeat the purpose and intent ~of the'Act 

by extending his operations beyond those permitted under 

such.retall fish dealers' license. The facts are insufficient on this point, however, as constituting 

"Wholesale Fish Dealer" under the Act. 

Answering your questions In the order 

are presented, it is therefore the opinion of 

men% : 

the company a 

in which same 

this departQuestion Ro. 1. That H. E. Butt Grocery Company Is 

not required to purchase a Wholesale Fish Dealer's License 

where it purchases aquatic products from~flshermen or wholesale dealers and ships same to retail stores which It owns 

and operates for the purpose of retail sale under a Retail 

Fish Dealer's License. 

Question No. 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. 

Question No. 3. It would be necessary to establish 

not only that H. E. Butt Grocery Company, through any one 

or more of its stores, sold aquatic products to more than 

one "Retail Fish Dealer" for the purpose of resale but thtt 

such operations constitute being 'engaged ln the business 

of a "Wholesale Fish Dealer" before said company could be 

successfully prosecuted for conducting its business without 

a wholesale fish dealer's license. 
Honorable Murrell Buckner, 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/Grover Sellers 

FIRST ASSISTANT 

ATTORNEYG'ENERAL 

Approved Opinion Committee By s/BwB Chairman