         THEATTORNEYGENERAL
                      OF TEXAS
                     AUS~N    m.TExas



                      September 19, 1960


Honorable John C. White                 Opinion Wo. WW-940
Commissioner of Agriculture
Department of Agriculture               Re:   Application of Article
Austin; Texas                                 5704, Vernon's Anno-
                                              tated Civil Statutes,
                                              with reference to the
                                              PublicsWeighers Laws in
                                              light of Article 5680
                                              and Article 5693,Ver-
                                              non's Annotated Civil
                                              Statutes.
Dear Commissioner White:
          You have requested an opinion of this office con-
cerning the following question:
          Is a manufacturer (owner) of a product (bulk cement),
who In the due course of its business, weighs such product In
person and issues a weight ticket or memorandum showing the
weight upon which the selling price of the product is based,
a public weigher as defined by Article 5680, V.A.C.S., when
read in conjunction with Article 5704 and Article 5693, V.A.C.S.?
          Article 5680 above referred to reads 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 certi-
     ficate or weight sheet, which shall be accepted
     as the accurate welght upon which the purchase
     or sale of such commodity, produce or article is
     based, shall be known as a public weigher, and
     shall comply with 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 any manner to any Texas port."
          As defined in this article, a public weigher is either
"any p,ersonengaged in the business of public weighing for hire
. . ..or   "any person who shall weigh 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 owner manufacturer 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 owner manufacturer issues a weight
ticket or memorandum showing the weight of the product, we
need only to determine whether the owner manufacturer other-
wise comes within the provisions of the second definition.
Thus, the problem resolves itself into three parts: First,
does "bulk cement" constitute "any commodity, produce or ar-
ticle"? Second, does the term 'person" as used in the statute
include corporations or firms, assuming the owner manufacturer
in your request is a corporation or firm? Third, are the ex-
emptive provisions 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 term has 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 owner manufacturer in question is an individual,
then he Is clearly a "person" as that term is used in Article
5680, and therefore a public weigher as therein defined, If,
however, the owner manufacturer is other than a natural per-
son& then the question arises as to the scope of the term "per-
son as used in the definition. Inasmuch as Article 23, V.A.C,S.,
states that the term "person" includes a corporation unless the
context indica,tesa different meaning, it i.snecessary to de-
termine whether the Legislature intended the term npersonfsas
used in Article 5680 to include corporations or firms in ad-
dition to natural persons.
          Article 5680 is derived from Se@t,ion1 of House
Bill 248, Acts of the 36th Leg., R.S., 1919, ch. 76, p0 122,
and the amendment thereto, in Senate Bill 180, Acts of the 37X-1
Leg., R,S., 1921, ch. 86, po 168, which reads in part as
follows:
         "All persons, firms, corporatfons, co-
    partnerships, or individuals, engaged 4n the
    business of public weighing ,forhire, or any
    person, firm, or corporation who shall weigh
\




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

         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, produce or article is 2ased,
         shall be known as a public weigher. a 0 .
         (Emphasis added.)
              It oan readily be seen that the principal difference
    between the original Act's definition and the definition in
    Article 5680 is the deletion of the underscored language from
    Article 5680. We feel that this modification in language
    should be considered and given effect in ascertaining the
    legislative intent. As stated in 39 Tex.Jur,, Statutes,
    B 128, page 241, "The omission of a significant word or pro-
    vision from an amendment or re-enactment Indicates a desire
    to change the effect or interpretation of the Act, or an in-
    tention to exclude the object theretofore accomplished by the
    words omitted." We are not able to say that by deleting the
    specific Inclusion of a corporation or firm within the defi-
    nition of a public weigher that the Legislature intended to
    continue to include a corporation or firm within the definition.
              Title 93, of which Chapter 6, Public Weighers, is a
    part, is titled "Markets and Warehouses", and consists of nine
    chapters. Disregarding Chapter 1, which pertains to the Com-
    missioner of Agriculture, only one other chapter, Chapter 5,
    Qinners and Cotton, contains a definition which makes no spe-
    cific reference to a corporation or firm. Article 567qa,
    Section 1, In defining a public cotton classerf does not refer
    to a corporation OP firm, but only to 'persons', although Ar-
    ticle 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 services must neces-
    sarily repose a great deal of trust and reliance on the in-
    tegrity and competenoy of the individual actually performing
    the service rendered. It is our opinion that the Legislature
    intended that such positions of trust should be entrusted to
    individuals, over whom control could better be maintained, than
    to a ffrm or corporate entity.
              The emergency clause of the original laws govern-
    ing public weighers, found in House Bill 2448,Acts of the
    36th Leg., R.S., 1919, ch. 26, g 20, page 127, contains the
    following language which lndioates the purpose of the Legis-
    lature in passing the public weighers laws:
              "The fact that there is now no adequate law
         governing public weighers in this State. and the
         Further i;actthat, a-great amount of fraud is
         known to exist in the weighing and measuring of
Honorable John C. White, page 4 (W-940)

     produce In this State, by parties who are under
     no bond and responsible to no authority that
     would prevent them from committing fraud, creates
     an imperative public necessity. ~ . ." (Emphasis
     added.)
          It is therefore our opinion that a corporation or
firm cannot ualify as a public weigher within the definition
of Article 5280.
          !fhisis not to say, however, that the individual(s)
who actually performs the duties of weighing for the corpora-
tion or firm does not qualify as a public weigher. Obviously,
the term 'person" includes individuals. In addition, Article
5693, which states that "no one shall be allowed to pursue the
business of weighing for the public or grant a certificate or
weight sheet upon which a purchase or sale is made unless he
comply with the provisions of this chapter o    " would clearly
bring such employee within the provisions and-requirements of
the public weigher chapter, thus maintaining the control and
supervision which the Legislature intended to impose for the
protection of the public on those who weigh items and issue
weight certificates upon which a sale or purchase is made,
          The opinion above reached tha,tthe owner manufacturer,
if a corporation or firm, does not qualify as a public weigher,
but that its employees or agents do, Is not pre-empted by Ar-
ticle 5704, V.A.C.S,, which reads in part 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 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 representative and
not exclusive. Giving Article 5704 the broadest and most liberal
interpretation possible, the items listed therein are representa-
tive of agricul,turalproducts, and clearly bulk cement could
never be classified as an agrieultural product. 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.ssuesa weight
    ticket   on which the sale or purchase price of such
    product is based is not a public weigher as de-
    fined by Article 5680, V.A,C,S., but the employee
    who actually performs the weighing must comply with
Honorable 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



                                          Robert Ii.Walls
                                          Assistant
RHW:bh
APPROVED:
OPINION COMMITTEE
W, V. Geppert, Chairman
John Reeves
Bill Allen
L. P. Lollar
Ben Harrison
REVIEWED FOR THE ATTORNEY GENERAL
BY:
         Leonard Passmore
