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                                 July 31, 1957

     Hon. Robert S. Calvert        Opinion No. WW-212
     Comptroller of Public Accounts
     Capitol Station               Re: Whether or not a parti-
     Austin, Texas                     cuiar manner of issuing
                                       cigarette permits for
                                       cigarette vending machines
                                       would be permissible under
                                       the provisions of the
     Dear Mr. Calvert:                 Cigarette Tax Law
             Your opinion request dated July 17, 1957, is as
     follows:
                 "Quoted below is an outline of the
            procedure t.hatcertain cigarette vending
            machine operators would like to follow in
            regard to their cigarette permits:
                  " 'Duri,ngthe past several years we
             have noted an increasing number of cigarette
             machines staying in our shot not selling
             e~l.garettesand have givei.some thought
             about decreasing the cost of the permits
             for these machines.
                  MLWe desire to use a plan whereby the
             cigarette dealers permit will be identified
             by a machine cabinet lumber which we will
             place on a metal tag znd attach to each
             machine on location sel~lingcigarettes. We
             feel that the :nspection of a machine can be
             made more readily Ln that the corresponding
             machine number will be placed on the outside
             of a machine cabinet in plain view rather
             than using t~heunit number which often is
             not in view until the cabinet door has been
             opened. We feel that by using this plan
             we will not have to handle the permits
             nearly as much as before, thereby reducing
             the chances of losing or misplacing.
Hon. Robert S. Calvert   Page 2   (WW-212)


            "'We plan to replace the old permits
       coming due each month with permits carrying
       our new machine cabinet numbers. For until
       the machine is placed on location at which
       time we will request a permit with a new
       machine cabinet number.

             "'Rather than requesting duplicate
        permits for all of our cigarette machines
        with the new cabinet numbers at one time,
        we plan to renew the old permits coming
        due each month with permits carrying the
        new cabinet numbers for only machines on
        location selling cigarettes. Thus after
        one year we will have all machines on
        location numbered with a cabinet number
        and a corresponding cigarette dealers per-
        mlt attached. Our machines not on location
        and not selling cigarettes will not have a
        cabinet number or a cigarette dealers permit
        until such time as they be placed on location
        to sell cigarettes. When we take a machine
        to a location to sell cigarettes we will
        place a cabinet number and a corresponding
        permit on the machine. By not having to
        purchase permits for the machines not on
        location, we expect to save a considerable
        sum of money.'"
        If we understand y~ourrequest correctly, you want
us to advise you upon the question which we state as fol-
lows:
             May a Retail Dealer of cigarettes sell-
        ing and distributing by vending machines
        transfer a Retail Dealers Permit which has
        been issued for the operation for a particu-
        lar vending machine to another machine without
        taking out a new permit.
        We are concerned here only with Retail Dealers, Re-
tail Dealers Permits and vending machines.
        Sue-Sec. d of Section 1 of Art. 7047~ -1 Vernon's
Civil Statute defines a place of business as follows:
             "'Place of Business' Is construed to
        mean and include any place where cigarettes
        are sold or where cigarettes are stored or
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     Hon. Robert S. Calvert   Page 3 (W-212)


            kept for the,purpose of sale or con-
            sumption; or If sold from any vehicle,
            train, or cigarette vending machine,
            the vehicle, train or cigarette vendin
            machine on which or from which suc
                                            -T-+
            cigarettes are sold shall constitute a
            place of business." (Rnphasis added)
             Sub-sec. o of Section 1 of Art. 7047c-1 V.C.S.,
     defines a Retail Dealer as follows:
                  "'Retail Dealer' shall mean and in-
             clude every person other than a distributor
             or wholesale deal~erwho shall sell, dis-
             tribute, or offer for sale or distribution
             or possess for the purpose of sale or dis-
             tribution, cigarettes irrespective of
             quantity or amount or the number of sales
             or distributions; and it shall also mean
             and include every person other than a dis-
             tributor or wholesale dealer who distributes
             or disposes of cigarettes in unbroken indi-
             vidual packages or in quantities of ten (10)
             or more as gifts or prizes or in any other
             manner of distribution or disposal where no
             sale is involved."
             It is, therefore, quite apparent that a cigarette
     vending machine is within the statutory definition a "place
     of business" and that each separate machine is a separate
     place of business.
             Sec. 4 of Article 7047@-1,   v.c.s,,   provides in part   .
     as follows:
                  "Every retail dealer in this State
             now engaged or who desfres to bec'omeen-
             gaged, in the sale or use of cigarettes
             upon which a tax is required to be paid,
             shall, within thirty (30) days from the
             date this law becomes effective, file with
             the Comptroller an application for a
             cigarette permit as a retail dealer, said
             application to be accompanied by a fee of
             Five ($5.00) Dollars.
             Each vending machine must have a serial number as
     provided in Section 4 as follows:
Hon. Robert S. ,Calvert Page 4   (WW-212)


             "If the application Is for a permit
        to sell cigarettes from or by means of a
        cigarette vending machine, train, automo-
        bile or other vehicle, the serial number
        of said vending machine, the make, motor
        number and State highway license number
        of said automobile or other vehicle and
        the name of the railway company and number
        of said train shall be shown on the appli-
        cations." (Emphasis added)
        The manufacturer's serial number on vending machines
is the only means of identification of the particular vend-
ing machine and we think by referring to the serial number
in the statute evidences a legislative intent that no
transfer of a permit is permissible from one vending
machine to another bearing a different serial number.
Clearly, the manufacturers serial number may not be changed,
and by the same reasoning the permit granted for the oper-
tion of a particular vending machine may not be transferred
to'another bearing a different serial number.
        No where in the statute is there definite authori-
zation for the transfer or assignment of permits once is-
sued by the Comptroller; nor is there justification for
concluding that it is reasonably inferred. On the other
hand there is a definite prohibition against assignments,
for the statute specifically says in Section 4,,thatupon
the receipt of the application for the permit . . . the
comptroller shall issue to every distributor, wholesale
dealer or retail dealer for the place of business desig-
nated, a non-assignable consecutively numbered permit,
designating the kind of permit and authorizing the sale
of cigarettes in this State." Each permit is issued for
a period of 12 months and must be renewed every 12 months.
        Suppose a Retail Dealer .operated4 drug stores
each with a Retail Dealer's Permit to sell and distribute
cigarettes. Each one would be a separate place of business
and would require separate permits. The statute would not
authorize the transfer of the permit of one store to
another. The same would apply to four vending machine's,
if owned and operated by the same Retail Dealer, for each
vending machine is as distinctively a separate place of
business as each store would be.
        You are, therefore, advised that the answer to the
question which we have stated Is in the negative. OnOe a
permit is issued for a particular vending machine which
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     Hon. Robert S. Calvert   Page 5    (NW-212)


     is serially numbered it may not be changed by transfer
     or assignment to another machine even though all of the
     machines are owned and operated by the same Retail Dealer.
                               SUMMARY
              The permit Issued by the Comptroller for
              the sale and distribution of cigarettes by
              a Retail Dealer making sale and distribution
              by vending machines may not be transferred
              from one vending machine to another. Each
              vending machine must bear the manufacturer's
              serial number and is under the statute a
              separate place of business and a permit
              granted for the operation of a particular
              vending machine bearing a definite serial
              number may not be transferred to another
              machine with a different serial number.
                                       Yours very truly
                                       WILL WILSON
                                       Attorney General




     LPL;fb
     APPROVED:
     OPINION COMMITTEE:
     H. Grady Chandler, Chairman

     W. V. Geppert
     Wallace Finfrock
     B. H. Timmins, Jr.
     REVIEWED FOR THE ATTORNEY GENERAL
     BY:   George P. Blackburn
