Honorable William J. Tucker

Executive Secretary Game, Fish & Oyster CommFsslon Austin, Texas
Dear Sir: OpinionNO. 0-4861 Re: Under the facts submitted, should the Simms Food Market be required to procure a wholesale fish dealer's license?
You have requested the opinion of this department on the above statedquestion, based upon a statement of facts which we have taken the liberty of summarizingas follows:

Mr. Walter Sitmnsoperates In the City of Austin a business house known as Simms Food Market, at which he makes salesat retail of aquatic products, and which Is coveredby a retail fish dealer's license. He also owns and operates several trucks, from which sales of fish are made at wholesale. The drivers of the trucks, operating from the trucks, takewholesale orders for aquatic products, and make deliveries from the trucks in fulfillment of such orders. Each such truck is covered by a wholesale truck dealer's fish llcerise.

The questionwhether Mr. Slmms Is also liable for the payment of a wholesale fish dealer's license on his place of business inAustin arises from the followingadditional facts:

A. The reta store inAustln,fs also headquarters for thewholesale trucks. The fishwith which the wholesale trucks are suppliedare bought by and shipped to the Slmms Food Market, and there parcelled out to thewholesale trucks, as the trade of eachmay require.

B. Sometimes a wholesale truck driver will take a wholesale order for aquatic products, and then, instead of filling the orderby a delivery from the wholesale truck, will ship the order tomthe customer from the SimmsFood Market inAustin by express or common carrier truck line.

The f'ollowlng

provisions of Article 93&,Revlsed Penal Code of 1925, are applicable to the problem presented:

"Section1. The followingwords, terms and- --

Honorable William J. Tucker, page 2 o-4861

phrases used in this Act are hereby defined as follows: 11

. . . . . "(b) A 'WholesaleFish 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 shipment or sale, fish oroysters or shrimp or other commercial edibleaquatic products, to retail fish dealers, and/or to hotels, restaurants or cafes and to the consumer. "(c) A 'RetailFish Dealer' Is any person engaged Inthe business of buying for the purpose of selling either fresh or frozen edibleaquatic products to the consumer. It

. . . . . 3ection 3. The licenses and the fees to be paid for the same are herebyprovided for in this Act and are as follows: I,

. . . . . 11' a. Wholesale Fish Dealers License, fee. for each place 'ofbusiness,Two HundredDollars ($200 .oo)

. "2a. Wholesale TruckDealers Fish License, fee for each truck, OneHundredDollars ($100.00). II

. . . . . "11. Plaoe of business,as used In this Act, shall Include the place where orders for aquatic products are received, orwhere aquatic products are sold,and if sold from a vehicle, the vehicles onwhich, or fromwhich, such aquatic products are sold, shall constitutea place of buslness. . . . (Asamended, Acts 1934, 43rd Leg., 3rd C. S., p. 83, Ch, 40, Sec. 1; Acts 1935, 44th Leg., p. 808, Ch. 345, Sec. l)."
As polnted out by you, nowhere in the law is the phrase "WholesaleTruckDealer" defined.

A careful reading of the above provisionrelatingHonorable William J. Tucker,page 3, o-4861

to 'placeof business" convincesua that where aquatic products are sold only &om trucks, it is not Intended to levy a license fee upon thewarehouse or other placewhere the fish are received and distributed to the trucks,'lnaddition to the license fee levied upon each truck. Thus, under the facts stated in “A” above, atandlng alone, the Slmms Food Market is not required tD purchesb a WholesaleFPah Dea'ler's License, In addition to the truck dealer's licenses.

But the facts utlder"B"above present a different sltuatlon.Under those facts, the aquat~ic products are not sold on or from the trucks -- the only use made of the trucks being to permit the salesmen to call upon customersand take orders. The sales are in factmade from the business house inAustin --wholesale shipmentsbeing made from Itdirect to the customers by common carriers. To permYt such a business to be conductedby onewho possesses only a Wholesa~le TruckDealer's Fish Llcenae, forwhi'chhe has paid $100.00, would be an unjust dlscrimlnatlonagalnat onewho .hadpald $200.00 for a Wholesale Fish Dealer'.s Lfcenae, for itwould permit the purchaser of the $100.00 lrcense to do evergthlng which the purchaser of the $200.00 license FapermItted to do, and more besides.

Article 7, Penal Code of 1925, provides: "ThisCode and every other law upon the aubject of crimewhich may be enacted s'hall be construed, according to the plain Import of the I;anguage inwhich It iswritten,without regard to the distinction usuallymade between the construction of penal laws and laws upon oth%r subjects;and no person shallbe punished for an offensewhich is not made penal by the plain import of thewords of a law."
"Asregards the construction of e statute, it lapresumed that the Legislature Intended that it shouldbe given a justand reasonable interpretation." 39 T. J. 2117(citingLeaey v. State Banking Board, 118 Tex. 91, 11 S. W. (28) 496.)
"It Fa not presumed that the Leglalature intended to do or re uire an absurd or unfair thing." 39 T. J. 24, (citingDavis v. Payne (Clv. 8 App. 179 S.W. 60; City of Tyler v. Texas Emplayers' Ins.Assn. (Corn. App.) 288 S. W. 409, rehearing denied 294 9. W..'l95,and Oden v. Vatea, 119 Tex. 76, 24 5. W,.(28) 381.)Honorable Wllllam~J. Tucker, page 4 o-4861

It is therefore our opinion that, under the facts stated In 'B",above, the Slmms Food Market is required to purchase a Wholesale Fish Dealer's License.
Yours very truly
ATTORNEYGENERAL OF TEXAS

By s/W. R. Allen W. R. Allen Assistant WRA:db:wc

APPROVED OCT 29, 1942 s/Gerald C. Mann ATTORNEY GENERAL OF TEXAS Approved Opinion CommitteeBy s/BWB Chairman