## THEATTORNEYGENERAL OF TEXAS
AUS~N m.TExas

September 19, 1960

Honorable John C. White Commissionerof Agriculture Department of Agriculture Austin; Texas

Dear CommissionerWhite: Opinion Wo. WW-940
Re: Application of Article 5704,Vernon's Annotated Civil Statutes, with reference to the Publics Weighers Laws in light of Article 

## 5680 and Article 

## 5693,Vernon's Annotated Civil Statutes.

You have requested an opinion of this office concerning the following question:

Is a manufacturer (owner)of a product (bulkcement), who In the due course of its business,weighs suchproduct In person and issues a weight ticket or memorandum showing the weight upon which the sellingprice of the product is based, a public weigher as definedby Article 5680, V.A.C.S.,when read in conjunctionwith Article 5704 and Article 5693,V.A.C.S.?

Article 5680 above referred to reads as follows: "Anyperson engaged In the business of public weighing for hire, or any person,who shallweigh or measure any commodity,produce
or article, and Issue therefor a weight certificate or weight sheet,which shallbe accepted as the accuratewelght upon which the purchase or sale of such commodity,produce or article is based, shall be known as a public weigher,and shall complywith the provisions of thjs chapter. The provisions of this article shall-not apply to the owners,managers, agents or employees of any compress or any public warehouse in their operation as a warehouseman. This exemption shall not apply in anymanner to any Texas port."
As defined in this article, a public weigher is either "anyp,ersonengaged in the business of public weighing for hire

. . ..or "anyperson who shallweigh or measure any commodity,Honorable John C. White, page 2 (WW-940)

produce or article, and Issue therefor a weight certificate or weight sheet,which shall be accepted as the accurate weight upon which the purchase or sale of such commodity, produce or article is based.

. . *lr

The first definition does not apply in this case since the ownermanufacturer in your request is not exacting a fee for the service of weighing, but does the weighing for the purpose of determining the purchase price of his product. Since you state that the ownermanufacturer issues a weight ticket or memorandum showing the weight of the product, we need only to determinewhether the ownermanufacturer otherwise comes within the provisions of the second definition. Thus, the problem resolves itself into threeparts: "bulkcement" constitute First, does "anycommodity,produce or article"? Second, does the term 'person"as used in the statute include corporationsor firms, assuming the owner manufacturer in your request is a corporation or firm? Third, are the exemptiveprovisions of Article 5704,V.A.C.S., applicable in this case?

We are of the opinion that bulk cement falls within the scope of the term "commodity"as used in Article 5680. This termhas been defined in Attorney General's Opinion O-73 (19391,and among the various definitions cited therein is the following taken from United States v. Sischo, 262 Fed. 1001, 1005 (1919): "'Commodity'is defined as an article of trade; a movable article of value; something that is bought and sold."

If the ownermanufacturer in question is an individual, then he Is clearlya "person"as that term is used in Article 5680, and thereforea publicweigher as therein defined, If, however, the ownermanufacturer is other than a natural person& then the question arises as to the scope of the term "person as used in the definition. Inasmuch as Article 23,V.A.C,S., states that the term "person"includes a corporationunless the context indica,tes a differentmeaning, it i.s necessary to determinewhether the Legislatureintended the term npersonfs as used in Article 5680 to include corporationsor firms in addition to naturalpersons.

Article Bill 248, Acts of and the amendment Leg., R,S., 1921, follows: 5680 is derived from Se@t,ion1 of House the 36th Leg., R.S., 1919, ch. 76, p0 122, thereto, in Senate Bill 180, Acts of the 37X-1 ch. 86, po 168,which reads in part as

"All persons, firms, corporatfons,copartnerships, or individuals,engaged 4n the business of public weighing ,for hire, or any person, firm, or corporationwho shall weigh\

Honorable John C. White, page 3 (WW-940)

or measure any commodity,produce or article, and Issue therefor a weight certificateor weight sheet,which shallbe accepted as the accurateweight upon which the purchase or sale of such commodity,produce or article is 2ased, shall be known as a public weigher. a 0

. (Emphasisadded.)
It oan readilybe seen that the principal difference between the originalAct's definitionand the definition in Article 5680 is the deletion of the underscored language from Article 5680. We feel that thismodification in language should be considered and given effect in ascertaining the legislative intent. B 128,page 241, "The As stated in 39 Tex.Jur,, Statutes, omission of a significantword or provision from an amendment or re-enactment Indicatesa desire to change the effect or interpretationof the Act, or an intention to exclude the object theretoforeaccomplishedby the words omitted." We are not able to say that by deleting the specific Inclusionof a corporationor firm within the definition of a public weigher that the Legislature intended to continue to include a corporationor firm within the definition.

Title 93, of which Chapter 6, Public Weighers, is a part, is titled "Marketsand Warehouses", and consists of nine chapters. Disregarding Chapter 1, which pertains to the Commissioner of Agriculture,only one other chapter, Chapter 5, Qinners and Cotton, contains a definitionwhich makes no specific reference to a corporationor firm. Article 567qa, Section 1, In defining a public cotton classerf does not refer to a corporation OP firm, but only to 'persons',althoughArticle 5666 in the same chapter, in defining "g,fnners", includes corporations. Both a cotton classer and public weigher are of such a nature that one utilizing their servicesmust necessarily repose a great deal of trust and reliance on the integrity and competenoy of the individualactuallyperforming the service rendered. It is our opinion that the Legislature intended that such positions of trust shouldbe entrusted to individuals,over whom control could better be maintained, than to a ffrm or corporate entity.

The emergency clause of the original laws governing public weighers, found in House Bill 2448, Acts of the 36th Leg., R.S., 1919, ch. 26, g 20, page 127, contains the following languagewhich lndioates the purpose of the Legislature in passing the publicweighers laws:

"The fact that there is now no adequate law governingpublic weighers in this State. and the Further i;actthat, a-great amount of fraud is known to exist in the weighing andmeasuring ofHonorable John C. White, page 4 (W-940)
produce In this State, by partieswho are under no bond and responsible to no authority that would prevent them from committing fraud, creates an imperativepublic necessity. ~ . ." added.) (Emphasis

It is therefore our opinion that a corporation or firm cannot 2ualify as a public weigher within the definition of Article 5 80.

!fhisis not to say,however, that the individual(s) who actuallyperforms the duties of weighing for the corporation or firm does not qualify as a public weigher. the term 'person"includes individuals. Obviously, 5693, In addition,Article which states that "noone shall be allowed to pursue the business of weighing for the public or grant a certificateor weight sheetupon which a purchase or sale is made unless he complywith the provisions of this chapter o "would clearly bring such employeewithin the provisionsand-requirementsof the public weigher chapter, thusmaintaining the control and supervisionwhich the Legislature intended to impose for the protection of the public on thosewho weigh items and issue weight certificatesupon which a sale or purchase ismade,

The opinion above reached tha,tthe owner manufacturer, if a corporationor firm, does not qualify as a public weigher, but that its employees or agents do, Is not pre-empted by Article 5704,V.A.C.S,,which reads in part as follows:

"Nothingin this chapter shall prevent any person, firm or corporation from weighinghis own cotton,wool, sugar,hay, grain or pecans in person."
In order for the benefit of this provision to fall to the owner manufacturer of bulk cement, it would be necessary to construe the items listed therein as being representativeand not exclusive. Giving Article 5704 the broadest and most liberal interpretationpossible, the items listed therein are representative of agricul,tural products, and clearlybulk cement could never be classifiedas an agrieulturalproduct. Therefore, the provisions of Article 5704 do not apply to the owner manufacturer of bulk cement.

A manufacturer (owner),other than a natural person,who weighs bulk cement and j.ssues a weight ticket on which the sale or purchase price of such product is based is not a public weigher as defined by Article 5680,V.A,C,S., but the employee who actuallyperforms the weighing must complywithHonorable John C. White, page 5 (w-940)

the provisions of the public weigher laws, and the provisions of Article 

## 5704, V.A.C.S., are not applicable to a manufacturer (owner)of bulk cement.
Yours very truly,
WILL WILSON Attorney General of Texas

RHW:bh
APPROVED:
OPINION COMMITTEE W, V. Geppert, Chairman John Reeves Bill Allen L. P. Lollar Ben Harrison Robert Ii. Walls Assistant

REVIEWED FOR THE ATTORNEY GENERAL BY: Leonard Passmore