.     .




                THE   A-IT~RNEY         GENE-L
                           OF   TEXAS




    Hon. Edgar-E. Payne
    County Attorney
    Hockleg County
    Levelland, Texas
    Dear Sir:                OpinFon No. O-1423
                             Re: .IsRoy Dunn, Justice Precinct No.
                                  5, Hockley County, Texas, a pub-
                                  lic weigher?
            Your request for an opinion on the following question
    and statement of facts has been received:
              "IS ROY DUNN, OF JUSTICE PRECINCT NO. 5,
          HOCKLN COUNTY, TEXAS, A PUBLIC WEIGHER?
                             "Statement of facts.
              For the past several years, there has been
          elected a public weigher for Justice Precinct No.
          5, Hockleg County, Texas, under authority of
          Article 5683, Rev. Civ. Statutes 1925, and a
          public weigher was so elected for said Precinct
          on November 8, 1938, and he has complied with
          the requirements of Chapter 6 of the Rev. Civ.
          Statutes and has quallfted as said public weigh-
          er, was sworn in Andyhas received his certifi-
          cate from the Commissioner of Markets and Ware-
          houses as well as his Commission of office.
              "Prior to thts year (1939). the elected pub-
          lic weigher has weighed cotton at the Lubbock
          Compress Company at its office in Levelland,
          Texas, and a charge of 10 cents per bale of cot-
          ton has been made for his weight tickets. Wheth-
          er or not the public weigher was paid a salary
          for hFs services, received the 10 cents charged
          for weighing, or worked under some othertrade
          or agreement with the compress company, I do
          not know and I believe is Fmmaterial in arrlv-
          lng at a correct answer to the question here
          involved.
              "Sometime during the past year the present
                                                          .   -




Ron. Edgar E. Payne, page 2          O-1423


    elected public weigher was offered a salary to
    weigh cotton at the compress company's office
    and he refused their offer.

        "Roy Dunn has never been elected to the of-
    fice of public weigher of said Precinct No. 5.
         "Roy Dunn presented a bond to the commission-
    ers ' court of Hockleg County, Texas, and the court
    passed the following order:
       "'WHEREAS, Roy Dunn has presented to the
   bommlssioners' court a good and sufficient bond
   as public weigher of cotton, wool, sugar, grain,
   hay and pecans in accordance with law in the sum
   of Twenty-five Hundred ($2500) Dollars, and
       'WHEREAS, he desires to weigh for compensa-
   tion for the public, and
        'WHEREAS,'he is a resldent citfzen of Prec.
   'No. 5, Hockley County, Texas,
       "IT IS THWHPORE, ordered by this court
   that this bond.be in all things approved and
   that the County Clerk of Hockleg County notify
   the Commissioner of Markets and Warehouses of
   Texas of the approval of said bond.
   ATTEST:   (Signed ) C.D. Bass        J. A. Ellis
             County Clerk (Signedj      County Judge'

   whfch said order, you will note, is not dated
   but was filed in the office of the County Clerk
   of Hockley County, Texas, on the 10th day of
   January A.D. 1939, and that portion of the or-
   der relative to notifying the Commissioner Mar-
   kets and Warehouses has been done by the said
   clerk.
       "Roy Dunn was not appointed as public weigh-
   er by the Governor upon the recommendation of
   the senator and a majority of the representatives
   from this senatorial district, in fact, has not
   been appointed.
        "The following state of facts also exist:
   1.   Lm,        TEXAS IS THE ONLY CITY AND/OR
        TOWN LOCATED WITHIN SAID JUSTICE PRECINCT
        NO. 5;
   .




Hon,    mgar   E. Payne, page 3        o-1423


       2.   LEVELLAND, TEXAS HAS NEVER RECEIVED IN AhT
            ONE YEAR ONE HUNDRED THOUSAND BALES OF COT-
            TON FOR SALE OR FOR SHIPMENT; Art. 5681;

       3. LEVELLAND, TEXAS HAS NEVER RECElVED AS MTJCH
            AS FIFTY THOUSAND BALES OF COTTON, TWENT?-
            FIVE THOUSAND TONS OF COTTONSEED, NOR THE
            AMOUNT LISTED OF ANY OTHER COMMODIT1 NOR
            ANY COMMODITY IN LARGE QUANTITIES; Art. 5681;
           "Roy Dunn is not the owner of the Lubbock
       Compress Company but has made some kind.of trade
       or agreement to weigh cotton at the compress for
       them. The company does not buy nor seI1 cotton
       but only compresses and stores it and apparently
       Roy Dunn has attempted to qualify under Article
       5704 but there would be no need for the owner to
       weigh cotton as therein provided,and the company
       is not in a place where no public weigher has been
       appointed or elected. Art. 5704."
        As pointed out in opinion No. O-1188 of this Depart-
ment to the Honorable W. S. Bussey, Chief of the Weights and
Measures Division of the Department of Agriculture:
           "Numerous opinions have been written by this
       department on questions relating to pu'blic
       weighers, first, who are appointed under Arti-
       cles 5681.and 5692, Revised Civil Statutes,
       1925; second, elected under Article 5683, Re-
       vised Civil Statutes, 1925; and who qualify
       y-&r AEti$i,e+2704,Revised Civil Statutes,
           D
        Roy Dunn is listed as a duly qualified public weigher
on the Fublic Weighers Ledger of the Weights and Measures Di-
vision of the Department of Agriculture as foliows:
           "Roy Dunn.   Levelland.   Public Weigher.
       Article 5704, Revised Civil Statutes, 1925.
       Precinct No. 5- Certificate expires January
       10, 1941."
        Since Roy Dunn has qualified under Article 5704 of
Revised Civil Statutes, 1925, your question is whether or not
Article 5704 authorizes private weighers to qualify as public
weighers and weigh for hire where there are regularly elected
(Article 5683, R.C.S.. 1925) or a pointed public weighers (Art-
icles 5681 and 5692, R.C.S., 1925P .
Hon. Edgar E. Payne, page 4         O-1423


        Article 5680 of the Revised Civil Statutes, 1925, de-
fines "Public Weigher" as follows:
        "Any person engaged in the business of public
    weighing for hire, or any person, who shall weigh
    or measure any commodity, 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, product or article is based, shall be
    known as a public weigher, and shall comply with
    the provisions of this 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 ware-
    houseman. This exemption shall not apply in any
    manner to any Texas port."
        Article 5704, Revised Civil Statutes, 1925, reads as
follows:
        "Nothing in this chapter shall prevent any
    person, firm or corporation from weighing his
    own cotton, wool, sugar, hay, grain or pecans
    in person. In places where there are no public
    weighers appointed or elected, any person who
    shall weigh cotton, wool, sugar, grain, hay or
    pecans fcr compensation shall be required be-
    fore weighing such produce to enter into a bond
    for twenty-five hundred dollars approved and
    payable as in case of public weighers referred
    to in this chapter, and conditioned that he
    will faithfully perform the duties of this of-
    fice and turn over all property weighed by him
    on demand of the owner. This article shall not
    apply to merchant flouring mills."
        It will be noted that the statute reads that I'inplaces
where there are no public weighers appointed or elected, any
person who shall weigh, etc." The language of the statute is
not prohibitory. It does not state that in places where there
are public weighers appointed or elected, no person shall qual-
ify as a weigher for compensation". The statute cannot be con-
strued as a prohibition.
        In the case of Paschal v. Inman, 157 S.W, 1158, the
Supreme Court of Texas held in an injunction suit instituted
by a duly elected and qualified public weigher of Justice Fre-
cinct No. 4 of Wood County to restrain Inman from conducting
the business of a private weigher in such precinct and for the
recovery of damages:
-     .




    Hon. Edgar E. Payne, page 5          O-1423


              "The business of private weighing is a legl-
          timat,evocation and falls within those ordinary
          occupations of life which the citizen is privi-
          leged to follow as an inalienable right, subject
          only to such restraints and limitations as may
          be imposed in a valid exercise of the police
          power of the State. Since the liberty of pur-
          suit as to such a calling is not dependent upon
          legislative sanction, the author1t.yfor its
          abridgment must rest in some positive and valid
          l.egalinhibition. l. * *.*"
              "It is c early recognized in the present
          statutes tha& the election of a public weighe;n
          in a justice precinct shall not operate as a
          denial to all persons of the right to therein
          pursue the business of private weighing." * * *'I
            The case of Martin v. Fog, 234 S,W. 698, decided by
    the Amarillo Court of Civil Appeals, is amp1.elegal authority
    for answering your question in the affirmative, It holds that
    any person has the right to pursue the occupation of weigher
    for the public, and that the bond required of such weigher is
    the,bona provided for in Article 7834, Complete Texas Statutes,
    1920. (Article 7834 being almost identical with Article 5704,
    R.C.S., 1925).
             The court reviewing the legislation on the subject
    said:
              "We not only~do not find the 'positive inhi-
          bition' against the pursuit of the business by
          others than those appointed or elected, but, as
          stated, the language used in the act suggests
          the contrary purpose.'
    and again --
              "If it had been the intention of the Legislature
          to prohibit any persons except all official weighers,
          elected or appointed under the terms of the law,
          from engaging in the business of weighing, it,,would
          have been easy to have expressed such intent.
            On August 6, 1926, George B. Terrell, Commissioner of
    Agriculture, directed the identical question before us to
    Attorney General, Dan Moody. It read:
            "Under Articles 5680 and 5704, R.C.S., 1925, may anY
    citizen other than an official weigher, elected or appointed
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Hon. Edgar E. Payne, page 6         O-1423


under the terms of the law, engage in the business of weigh-
ing for the public. I quote Article 5704 (7834) (4216), etc."
         In a conference opinion dated September 2, 1.926,by
Han, C .L. Stone, Assistant Attorney General, and countersigned
by Attorney General, Moody, it was held:
        "1* The business of private weighing is a
    legitimate vocation and falls within those orj,f-
    nary occupations which a citizen is privileged
    to follow as an inalienable right, subject onl,y
    to the valid exercise of the police power of
    the State,
        "2. Since the right of a person to engage in
    the business of weighing for the public in not
    dependent upon legislative sanction and the au-
    thority for its abridgment must rest in some pos-
    itive and valid legal inhibition in the absence
    of such inhibition, a person is authorized to
    engage in the occupation of weighing for the
    public notwithstanding the fact that there is a
    duly appointed or elected and qualified public
    weigher in the same city, precinct, or county."
       'On September 14, 1927, in the administration of Attor-
ney Generai, Claude Pollard, in an opinion dated September 22,
1927, by the Honorable Joe S. Brown, Assistant Attorney Gen-
eral,,it was held:
       "As t.heCourt has held in effect, any pri-
   vate individual shall have the privilege of
   weighing for compensation by entering into a
   bond for $2,500000 approved and payable, as in
   the case of public weigher and conditions that
   he vii1 faithfully perform the duties of his
   office and turn over property weighed by him on
   demand of owner. The statute does not provide
   for any particular term of office. The time
   which a person shall exercise an occupation of
   weighing for the public it seems is left within,
   the discretion of the person who qualifies under
   the statute.
       "It is the opinion of this Department that
   such weigher who qualifies under Article 5704
   would occupy said position so long as the public
   for whom he is weighing is protected by a bond
   as requires by the statute.
Hon. Edgar E. Payne, page 7          O-1423


        In opinion No. O-1188 of this Department we have pre-
viously recognized the right of a private individual to
qualify as a weigher for the public under Art. 5704, R.C.S.,
1925.
        It is our opinion that any person may qualify as a
weigher for,the public for hire under Articles 5680 and 5704,
R.C.S., 1925, and weigh for the public for compensation ir-
respective of whether or not there are regularly elected or
appointed public weighers in the same precinct. Since the in-
diviaual named in your~letter has posted bona in the statu-
tory amount and same has been approved by the Commissioners'
Court in compliance with Article 5704, R.C.S., 1925, and,cer-
tificate has been issued by the Division of Weights and Mea-
sures of the Department of Agriculture upon the authority of
thencourt order, we hold that said individual is authorized to
engage in the occupation of weighing for the public notwith-
standing the fact that there is a duly appointed or elected
and qualified public weigher in the same precinct.
        We wish to thank you very much for the able brief
which you submitted upon the subject, end call your attention
to the fact that we are enclosing copies of opinions dated~
August 6, 1926 and September 22, 1927 of former administra-
tions of this department, the former being conference opinion
by Assistant Attorney General C.L. Stone to Hon. Geo. B.
Terrell, Commissioner of Agriculture and the latter belng
opinion by Assistant Attorney General, Joe S. Brown;to Hon.
Geo. B. Terrell, Commissioner of Agriculture, Austin, Texas.
         Trusting that we have fully answered   your inquiry,
we are
                                  Yours very truly
                                ATTORNEY GENERAL OF TEXAS

DS:ob                             By s/Dick Stout
Encl. (opinions dated                  Dick Stout
       8-6-26 and 9-22-27)             Assistant

APPROVED SEF 29, 1939
s/Gerald C. Mann
A'ITORNEYGENERAL OF TEXAS
Approved Opinion Committee By s/BWB Chairman
