                                                                   ,.._,.
                                                                   ;          fbj



        OFFICE OF THE ATTORNEY        GENERAL   OF TEXAS
                             AUSTIN


                                            May 13, 1939


Honorable Eugene Brady
Assistant County Attorney
Hunt county
Greenville, Texae
Daar Sir:




                                           in your letter of May 8,
                                           n 38, Artiola 7047, Revised

                                              dnuon oraakeril,eto.-
                                        oration   engaged in the
                                        aokarta,or toy pistols
                                        oartridgea; within this     ;/
                                      undrea dollars, and
                                  oltiea or towns in whloh such
                                  have the power to levy a tax                  i
                                 unt aa now provided by law in              ;.~,-"
                       above tax, aLitI auoh psrsOn, fim or
                       elli.ugsuoh oaanon oraokere 6hal.lba
                       an additional tax lhnthe above amount
                    IIadditional liorn~a for rash sepaxato
                  ; or plaoe in whioh suob oannon oraokslce
                   . By the taw *oumoa araoksr' is maant
     any fire oraokar or other aorabusttbla, paokage more than
     two inohes in length, and snorethan one inoh in olroum-
     nbmnoe aonm~nly sold and exploded for purpoeaa or amumb-
     ment.   Hothbng herein shall be 80 oenstruo~ed (QOnatrUeb)
     as to prohibit the sale of, or to plaae a tax on, the $a10
     OS oartridges, oombuatiblo paokagas or axploaivas ao~a5only
     used for firearms or .artillery,mining, axoavatlng earth
     or stone, aolantli5.0  purposes or ror any gubllo or prlvatr
     work,"
             O-01




    iloll.   +Wne   Brady. Cay 13. 1939, Page 2


             It will be noted that the foregoing t&x measure doss not
    levy an oooupation tax upon every person, rib-mor oorporatlon aell-
    a   woannon arackers, or toy pistols used for shooting or expl-
    oartriages," but rather levies such tax upon every person, firm or
    corporation engaged in the oooupatlon of "selling cannon oraokers,
    or toy pistols used for shooting or exploding cartrldgea.w Thle,ie
    slgnlrloant in view of the definition of the term *oaoupationw'given
    by our courts. "Gcoupation" a8 the term is used in the statutes
    relating to oocupational taxes, meana the business In whloh one
    prinolpally engagea to make a living or obtain wealth. 27 Tex.,Jur.
    p, 896 (Licenses Sec. 50); Shed v. ttate, 70 Crlm. Rep. 10, 155
    e. a. S24; Love vs. Ftate, 91 Grim. Rep. 469, 20 3. K. 978; standford
    v. State, 16 Tex. App. 331.
             Toshed by the foregoing definition or the term RoccupetlonIR
    as laid down by our courts, and similarly defined by the courts of
    other juri~diatlons, can it reasonably be said that a general notion
                       operated and conducted, suoh as uoolworth*a,
    store, as oorrmeonly
    -es&S, orallt*a,eta., Is engaged in or devoted to the Cououpatfonv~
    of selling *toy pistols ueed for shooting or exploding oartridgee,v
    within the intendment of the above tax measure, because, perohanoe,
    among the thousands oi articles dally offered ror aale, toy pistols
i   find a @laoa. A fair and workable interpretation of this statute
    prompts a negative answer. To hold othermlae would result in the
    taxation of a xnereincident to an ocaupatlon rather than the oaoupa-
    tlon.~itselt. Hurt vs. Cooper, 110 S. Ji. (26) 896.
              This line of reasoning la not without support in the auth-
    orities of other states. In the ease of Oarney, et al vs. Jiamilton
    by the Supreme court or hlsslsalppi. reported ILI42 so. 578, the
    oourt held that where colllplainantsold oooo 003.8 in aase'lote in
    ooqneotion rfth his lrholesals.grocergbwiaeea,    and pald'the privilege
    tax required of a wholesale merchant to aarry on suoh wholesale
    grocery buslnesa during the year, he wae not sub)eat to a privilege
    tax imposed upon persone 8aintainlng a depot for the ,saleof 0000
    oola and oolavine. The theory of this holding was that the whole-
    sale groaer in question,,in-the oonduot of his busineea ae euoh,
    bought and sold oooo oola as any other article or~merohan4lse, and
    was not madntainlng a depot for the distribatlon or ahlpment of
    oooo oola withinthe meaning of the tax statute on such bualnee&
             In the ease of Carter v. State; 44 &la. 29, it was held
    that one whose ahief business is that of a dry goods merchant and
    who keeps a small stook of .tobaoeomhiah he sell8 In very small
E.on.Sugene Brady, by   13, 1939, Page 3


gmntlties for the accoxamdtitionof his dry goods auatomers
Is not a tobacco dealer and he is therefore not liable for selling
without a license.
         In the light of the fors&oin.gauthorities, 4ereuasive as
they are, and under the,racognlzed rule that tax meakres are con-
strued striotfy in favor of the taxpayer, and that statutes gen-
arally should be so construed a8 to acoord them a reasonable rather
than an unreasonable operation and result, we are constrained to
hold that the Legislature of Texas dfd not intend by Section 30,
Artiole 7047, Revised Civil statutes, to lsry an onerous tax of
$500.00 annually upon notion or variety stores selling toy pistols
aa an incident to such business.
                                      Tours vary truly
