                       August%       1969

Honorable Robert Buntyn                     Opinion No. M-445
County Attorney
Castro County                               Re:   Whether a custom
Dlmmltt, Texas                       .            cattle   feeding lot is
                                                  obligated    to furnfsh
                                                  County Tax Assessor
                                                  with the names of those
                                                  owning cattle    with said
                                                  lot on January 1st and
                                                  the number of such'
                                                  cattle, upon demand of
Dear Mr. Buntyn:                                  such Assessor.      RQ 485
        In your recent request for opinion,          you raised a question
concerning the interpretation   to be placed         upon certain pro-
visions  contained In Article  7243 Vernon's         Civil Statutes,
which statute reads as follows:
               "Any person, co-partnership,        association
       or corporation     doing business in this State as
       a warehouseman or operating or controlling            a
       warehouse or place of storage,         shall,   upon
       demand of the tax assessor of the county fn
       which said busfness ls operated or In which
       property 9s so stored, on January 1st of each
       year, furnish to the said tax assessor,           a
       list of the property so stored In such ware-
       house or place of storage,        together with a
       list of the owners of such property and their
       residence.     The term 'place of storage'         as
       used herein shall also Include all cold
       storage or refrigeration       plants wherein goods
       of any nature are stored.        Any person or agent
       or representative      of such copartnershlp,
       association,     or corporation    who shall fall to
       furnlsh such list and information as set forth
       above upon demand by the tax assessor of the
       county fn which such property is located,
       shall be subgect to all the penalties           now
       exlstlng    against any person for makfng a false
       rendition    of property for the purpose of
        taxation."    Acts 3rd C.S. 1923, p. 165.

                            -2206-
                                                                .    .




Hon. Robert Buntyn, page 2         (M-445

       The facts   giving   rise    to your request   for   such opinion
are as follows:

              “In January of 1969 the Hon. Kent
       Birdwell,  Tax-Assessor   Collector of Castro
       County, made demand on Dimmltt Feed Yards,
       Inc., a custom cattle    feeding lot situated
       In Castro County, for a list containing
       the names of the owners and the number of
       cattle each owner had located In the Dlmmitt
       Feed Yards, Inc. 103 in Castro County as of
       January lst,  1969.    Dimmitt Feed Yards, Inc.,
       after some discussion,    agreed to furnish the
       names of the owners having cattle placed
       with them on that date but would not furnish
       Mr. Blrdwell  with  a list containing   the
       number of cattle   placed there with them by
       each owner on January lst, 1969.”
         Specifically,     you have asked whether Dimntitt Feed Yards,
Inc.   is obligated      to furnish a list to the Tax-Assessor    Col-
lector of Castro County, containing          the name of the owners and
the number of cattle       each owner has placed in such commercial
feeding yard as of January 1st of such year upon demand by the
Tax-Assessor Collector.          You further asked whether or not the
penal provisions       of Article   7243 would apply In. the event the -
commercial feed lot In question failed to comply with the Tax-
Assessor Collector’s       demand,
        In our consideration    of this question we are assuming
that Dimmitt Feed Yards, Inc. is a commercial feed lot having
as its primary function the “finishing     out” of cattle   for
market.    We assume that the cattle under the control     of this
feed lot were placed there by their owners for the primary
purpose of having their weight substantially      Increased and not
merely for safekeeping.      Although your request did not state    .
such, we understand the customary practice      In feed lot operat-
ions Is that the owner of the cattle compensates the feed lot
for the weight added to cattle as opposed to compensating the
feed lot for the period of time that the cattle are In the
possession   of the feed lot.
        Whet.her Article 7243 Is applicable   to Dlmmitt Feed
Yards, Inc., thereby making such lot obligated     to furnish the
list to which you refer,   necessarily  involves a resolution  of
the question of whether a commercial feed lot is a “place of
storage” as that phrase Is used in said statute.



                             - 2207 -
.       .




    Hon. Robert Buntyn, page 3         (M-445)

            Article   10, Vernon's Civil Statutes,     provides that In
    construing   statutes the ordinary meaning of the words thereof
    shall be applied.      Concerning the construction     of statutes,
    the following    rules are found in Railroad Commission v. T. &
    N.O. R.R. Co., 42 S.W.2d 1091 (Tex.Clv.App.        1931 error ref.1:
                    'In construing a statute,     the one and
            paramount rule Is to ascertain       the intention
            of the Legislature,      which must govern In
            every Instance.      [Citations  omitted1    The
            Intention of the Legislature      must be gathered
            from the language of the statute construed as
            a whole, giving the words used their common
            and ordinarily    accepted meaning; and, If the
            words employed are free from ambiguity and
            doubt, and express plainly,      clearly,   and
            distinctly   the Intent, according      to the natural
            Import of the language used then no occasion
            arises to look elsewhere.       ~Cltatlons omitted]
            It may also be here noted that the statute
            under construction     Is not only remedial In-its
            nature, but penal as well, and must be con-
            strued with at least a reasonable degree of
            strictness   with respect to Including anything
            beyond the immediate scope and object of the
            statute,   even though within the spirit,       and
            nothing can be added to the act by Inference
            or lntendment."      [Citations  omitted.1
             In Webster's New InternatIonal        Dictionary,      Second
    Edition,    the word "storage"   Is defined as being the "act of
    storing,    or state of being stored;    specifically,       the safekeep-
    ing of goods In a warehouse or other depository."               Such work
    defines the word "store"      as "that which is stored for future
    use" and "that which Is accumulated,        or Fassed together:        a
    source From which supplies may be drawn;            "continued keep-
    ing";     a place of deposit for goods especlallF           for large
    quantities;    a storehouse;   warehouse; magazine.          Black's Law
    Dictionary     Fourth Edition,   defines  'storage"      as the "safekeep-
    ing of goo& in a warehouse or other depository."                Therein the
    verb 'store"    1s deflned as follows:      "to keep merchandise for
    safe custody, to be delivered       In the same condition        as when
    received,    where the safekeeping    Is the principal       object of
    deposit,    and not the consumption or sale.         (citations    omitted.)
             In common parlance; live animals are not deemed as
    'stored.     State v. Frost, 17 Atl.2d 444 (1941).  But see
    Hubbard & M. Commission v. Cochran, 264 MO. 581, 175 S.W. 599
    (1911), 132 A.L.R. 532.

                                  -2208-
                                                              ,    .




Hon. Robert Buntyn, page 4 (M-445)

        In Tres Rites     Ranch Co. v. Abbott,    105 P.2d 1070
(N.M.Sup. ,>                                     the following  comments
concerning     the word "storage":

               "It Is entirely Illogical    to contend that
        cattle can usually be stored like ordinary
        commodities.   Storage connotes a certain degree
        of permanency and lmmoblllty,     but grazing, or
        similar terms that are in use to denote to the
        manner of harboring cattle,     connote transclence."


               "While there may be some small amount of
        diminution when goods are stored,  It seems
        wholly improbable that It may Include a material
        Increase in the quantity of goods stored."
        The reasoning employed in the above case was adopted           in
the Texas case of State v. Harper, 188 S.W.2d 400, 403
(Tex.Clv.App.   1945, error ref, and cert. den. 327 U.S. 805).
         Applying the foregoing     definitions     and rules of statutory
construction    to the phrase 'place of storage",        as such phrase
Is used in Article     7243, it Is the opinion of this office         that
a custom cattle feeding lot Is not a "place of storage".
Therefore,    the owner of such lot Is not obligated         to furnish a
county tax assessor the names of those owning cattle with such
lot on January 1st of such year and the number of such cattle
upon demand by such tax assessor.          To hold a custom feeding
lot to be a 'place of storage" would be to violate            the rule an-
nounced In Railroad Commission v. T & N.O.R.R. Co., supra, to
the effect    that statutes    that are not only remedial In nature,
but penal as well, must be construed with at least a reasonable
degree of strictness     with respect to including anything beyond
the Immediate scope and object of the statute,           even though
within the spirit.      Cattle are placed in such lots to be
"finished    out" and not for safekeeping.         The primary purpose of
delivering    cattle to such lots is to have the cattle's          weight
 Increased and not for the cattle       to be returned in the same
condition    as when received.     The court's     comments in Tres Rltos
Ranch Co., supra, very definitely         lndlcate   that a custom cattle
 feeding lot should not be considered         a "place of storage."




                               -   2209   -
   .




Hon. Robert Buntyn, Page 5     (M-445



               A custom cattle  feeding lot is not a
       "place of storage" as such phrase Is Intended
       In Article    7243, Vernon's Civil Statutes,
       Therefore,   Dlmmitt Feed Yards, Inc. is not
       obligated   to furnish the county tax assessor
       a list of the names of those owning cattle
       located within said lot on January 1st of
       each year and the number of such cattle,
       upon demand by such assessor,

                                        Verfitruly   youra,




Prepared by Louis G. Neumann
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
George Kelton, Vice-Chairman
John Reeves
Ed Esquivel
Jerry Roberts
Alfred Walker
W. V. Geppert
Staff Legal Assistant
Hawthorne Phllllps
Executive Assistant




                         -2210-
