                   August   27,   1952


Hon. Geo. W. Cox, M.D.       Opinion No. V-1512
State Health Officer
State Dept. of Health        Re: Necessity that bedding
Austin, Texas                    manufactured in Texas
                                 for sale outside the
                                 State comply with the
                                 bedding stamp require-
                                 ments of the Texas
Dear Dr. Cox:                    Bedding Act.
          Your request for an Opinion of this office
reads In part as follows:
          IWe should like to know if bedding
     manufactured In Texas and sold outside
     the State of Texas through wholesale and
     retail commercial channels is required to
     have affixed an adhesive stamp (tax stamp)
     under the provisions of the Texas Bedding
     Act.
          "We believe that the wording of the
     Act requires that any person who manufac-
     tures, who renovates, or who sells or
     leases any bedding covered by the provi-
     sions of this Act should have an adhesive
     stamp (tax stamp) affixed regardless of
     the ultimate destination of the article."
          Section 7 of Article 4476a, V.C.S. (Bedding
Act), provides in part:
          'Sec. 7. (a). No person shall manu-
     facture, renovate, sell or lease or have
     in his possession with intent to sell Or
     lease in the State of Texas, any bedding
     covered by the provisions of this Act, un-
     less there be affixed to the tag required
     by this Act by the person manufacturing,
     renovating, selling or leasing the same,
     an adhesive stamE prepared and issued by
     this Department.
                                                            .   -.



Hon. Geo. W. Cox, page 2 (V-1512)


          The language of Section 7 of Article 4476a
clearly provides that bedding manufactured in Texas is
required to have a stamp affixed regardless of where
the bedding is to be sold. Therefore, we agree with
you that bedding manufactured in Texas and sold outside
Texas is required to have an adhesive stamp (tax stamp)
affixed, if the statute does not violate the commerce
clause of the United States Constitution (Art. 1 Sec.'
8 cl. 3). Section 8 of Article I of the Federal Consti-
tution provides in part:
          "The Congress shall have Power To lay
     and collect Taxes, Duties, Imposts and Ex-
     cises, to pay the Debts and provide for the
     common Defence and general Welfare of the
     United States; but all Duties, Imposts and
     Excises shall be uniform throughout the
     United States;


          "To regulate Commerce with foreign
     Nations, and among the several States, and
     with the Indian Tribes;"
          Should it be considered that the regulations
and fee charges incident to the regulation operates on
manufacturing alone, it has been held that manufactur-
ing Is not a part of interstate commerce and consequent-
ly the prohibition of the Commerce Clause would not be
applicable. In American Manufacturing Co. v. St. Louis,
250 U.S. 459 (1919) the city of-St. Louis levied against
manufacturers a tax'imposed as a condition of a grant of
a license to carry on a manufacturing business in that
city, the amount of which was to be ascertained by the
amount of sales of manufactured goods whether sold within
or without the State. In upholding this tax the Court
stated:
          "In our opinion, the operation and ef-
     feet of the taxing ordinance are to impose
     a legitimate burden on the business Of
                                         _ .
     carrying on the manufacturing Of goods In
     that city; it produces no direct burden on
     commerce in the goods manufactured, whether
     domestic or interstate, and only the same
     kind of incidental and indirect effect as
     that which results from the payment Of
Hon. Geo. W. Cox, page 3 (V-1512)


     property taxes or any other and general contri-
     butions to the cost of government. It there-
     fore does not amount to a regulation of inter-
     state commerce. D D .It
          See also Utah Power & Light Co. v. Pfast, 286
U.S. 165 (1932).

    __ . Considering next the effect of the regulation
should it be one on the selling of bedding; it has been
held that under the federal constitutional system, there
necessarily remains to States, until Congress acts, a
wide range for permissible exercise of power appropriate
to their territorial jurisdiction, even though interstate
commerce may be affected thereb
Alexandria, 341 U.S. 622 (195l.y' Breard v* City Of
          We have been unable to find any Federal Statute
regulating the manufacturing, renovating, selling or leas-
ing of bedding.
          In Milk Control Board of Pennsylvania v.
Eisenberg Farm Products, 306 U.S. 346 (1937) the court
had before it a statute which regulated the sale of
milk and required a license of all persons in Pennsyl-
vania who were selling milk. The Court held that since
Congress had not legislated on this subject matter and
since only a small portion of the milk produced in the
state was shipped outside ~the state, the act was not a
burden on interstate commerce. Also in Townsend v.
Yeomans, 301 U.S. 441 (1937) a Georgia statute fixing
maximum charges for handling and selling leaf tobacco
was held not invalid as placing a burden on interstate
commerce though practically aIl:.bfth8,,Coba~coi,gr6wni:Yn
the state of Georgia was shipped outside the state.
          In H. P. Hood & Sons v.,BuMond, 336 U.S. 525
(19@), the Court was considering a case where a distri-
butor of milk in Massachusetts sought a license for a
receiving station in New York enabling him to compete
with purchasers of milk in the area in New York State
where the receiving station was to be located. In up-
holding the right of the New York State Commissioner of
Agriculture and Markets to deny a license on the basis
that the area did not have an'adequate supply to allow
another receiving station, the Court stated:
Hon. Geo. W. Cox, page 4 (V-1512)


          "Our decision in a milk litigation :
     most relevant to the present controversy
     deals with the converse of the present
     situation. Baldwin v. G.A.F. Seelig, Inc.,
     294 U.S. 511, 55 S.Ct. 497, 79 L. Ed. 1032,
     101 L. R. A. 55.  In that case, New York
     placed conditions and limitations on the
     local sale of milk imported from Vermont
     designed in practical effect to exclude it,
     while here its order proposes to limit the
     local facilities for purchase of additional
     milk so as to withhold milk from export.
     The State agreed then, as now, that the Com-
     merce Clause prohibits it from directly
     curtailing movement of milk into or out of
     the State. But in the earlier case, it
     contended that the same result could be ac-
     complished by controlling delivery, bottling
     and sale after arrival, while here it says
     it can do so by curtailing facilities for
     its purchase and receipt before it is ship-
     ped out. In neither case is the measure
     supported by health or safety considera-
     tions but solely by protection of local
     economic interests, such as supply for local
     consumption and limitation of competition.
     This Court unanimously rejected the State's
     contention in the Seelig case and held that
     the Commerce Clause, even in the absence of
     congressional action, prohibits such regu-
     lations for such ends.
          "(1,2) The opinion was by Mr. Justice
     Cardozo, experienced in the milk problems
     of New York and favorably disposed toward
     the efforts of the State to control the
     industry. Hegeman Farms Corporation v.
     Baldwin, 293 U.S. 163, 55 S.Ct. 7, 79 L.Ed.
     259; Borden's Farm Products Co. v. Baldwin,
     293 U.S. 194, concurrence at page 213, 55
     S.Ct. 187, at page 193 79 L.Ed. 281; May-
     flower Farms v. Ten Eyck, 297 U.S. 266,
     dissent at page 274, 56 S.Ct. 457, at page
     459, 80 L.Ed. 675. It recognized, as do
     we, broad power in the State to protect
     its inhabitants against perils to health or
     safety, fraudulent traders and highway haz-
     ards even by use of measures which iear
     adversely upon interstate commerce.
Hon. Geo. W. Cox, page 5 (V-1512)


            Also see Parker v. Brown, 317,~U.S.341 (1943).
          In view of the above authorities we believe
that this small fee, which Is incldental~to the exercise
of the State's police power to protect public health in
the sale of bedding Is not a burden on interstate com-
merce.
                        SUMMARY
          Section 7 of Article 4476a, V.C.S. re-
     quires that bedding manufactured in Texas
     and sold outside Texas have an adhesive
     stamp affixed.
                                  Yours very truly,

APPROVED:                          PRICE DANIEL
                                  Attorney General
J. C. Davis, Jr.
County Affairs Division
E. Jacobson
Reviewing Assistant
Charles D. Mathews
First Assistant
BA:am
