Dept. of Agriculture              Opinion No. O-1645
Austin, Texas                     Re: What, if anything, is the cor-
                                      rect procedure for requiring a
Att'n:   E.B. Kuehne                  public warehouseman to post the
Asst. Director                        bond required by Article     5569
Market & Warehouse                    and procure the certificate?
Division                              What,~ if anything, may be done
                                       in the event he fails   to do so?
Gentlemen:
      We are in receipt   of your request   for an opinion   upon the
following  question:
     ‘We have received    from &mwell   E, Welch a letter    which reads
     as follows:
     "'In a suit pending in the Bowie County courts the point
     has been raised as to the liability of a public warehouse-
     man, operating as a public warehouseman for hire, on his
     failure to pose the statutory warehouseman's bond.
     'lt Art. 5568, R. C. 3., defines the public warehouseman
     as any person who received the articles     enumerated therein
     for storage for hire, and Art. 5569 provides that the owner,
     proprietor,   lessee or manager of any public warehouse shall
     secure from the County Clerk a certificate     to dobusiness
     as a public warehouseman and to post bond in the penal sum
     of #5,000.00,    payable to the state of Texas.    The statutes
     do not provide any penalty,     punishment nor liability   for
     the failure   of the Warehouseman to provide such bond and/or
     certificate   to transact  business as such.   What, if any-
     thing is the correct procedure for requiring one to post
     such bond and procure the certificate?      And what, if any-
     thing, may be done in the event he fails     to do so?'
     "For your convenience we are enclosing   copy of State Ware-
     house Laws, and would appreciate  an opinion from you as
     to what may be done in case a warehouseman fails and re-
     fuses to comply with warehouse laws. in regard~to filling  the
     required bond, and still operates a warehouse for the public.
      In the Uniform Warehouse Receipts Act (S.B. No. 215,
chapter 126, General Laws, 36th Legislature,  Regular Session,
Department of Agriculture,    page 2   (0-1645)


lYlY),~ Articles 5612-5665, Revised Civil Statutes,       1925,   a “wsre-
houseman” is defined as follows in Article 5664:
           “tWarehousemanl means a person lawfully       engaged in the
     business of storing -goods for prof itin
          Article 5661, Revised Civil      Statutes,   1925,   states
“who may become public varehouseman”:
            “Any person, firm, corporation,     partnership,   or asso-
     ciation    of persons, may become a public warehouseman under
     the provisions     of this chapter by filing    with the county
     clerk of the county in whiah he is located and proposes to
     do business,    a good and sufficient    bond in the sum of five
     thousand dollars conditioned      that he will conduct his busi-
     ness in accordance with the provisions        of this chapter.
     Upon the filing     and approval of such bond with the county
     clerk,   it shall be the duty of the county clerk to imme-
     diately certify     such fact to the Commissioner of Markets
     and Warehouses.      Any one injured by the violation     of the
     terms of the bond, and the provisions        of this chapter may
     recover damages to the extent of said bond.          Should said
     bond become impaired by recovery,       or otherwise,   said Com-
     missioner may require such public warehouseman to file an
     additional    bond, but in no event shall such additional       bond
     be for a greater amount than five thousand dollars.          The
     bond required hereunder shall be good for the term of one
     year from the date of filing       and the right to continue
     as a public warehouseman shall be conditioned         upon the re-
     newal of said bond from year to year, according to the
     terms of this chapter.       The form of the bond required here-
     under shall be prescribed      by said Commissioner, and the
     bond may be made by any surety company authorized to do
     business under the laws of this State; or by two solvent
     sureties to be approved by the county clerk of the county
     in which such public warehouseman may desire to do busi-
     ness .”
           Acts 1925, 39th Legislature,  Chapter 13, p. 35, 41-6,
abolish thg office   of Commissioner of Markets and Warehouses
and the Markets and Warehouse Department and the Weights and Mea-
sures Department and vest their duties and functions   in the Com-
missioner of ~bgriculture.  See Sec. 1 of Article  5611, Revised
Civil Statutes,   1925.
             Article   5568, Revised Civil Statutes,  1925, (Acts 1901,
 . 251 Acts First Called Session, 1913; p. 93r Acts Second
Ealled’Session       1919, p. 138) defines “public warehouseman” and
“warehouse”.      it is to be observed that these definitions    were
passed by the Legislature      subsequent to the Uniform Warehouse
Receipts ,Act . See H.B. No. 63, Chapter 54, General Laws, First
Department of , &griculture,     page .3   (O-1645)


and Second Called~Sessions,       36th Legislature,     1919.
           ‘Article   5568 r,eads as follows:
             ItAny person, firm, company~, or corporatiouwho   shall
      receive cotton, wheat, rye, oats, rice,      or any kind of
      produce, uares, merchandise,:,or :any person.al property in
      store for hire, ,shall be deemed and taken to be pubiic ware-
      housemen.
            “A warehouse, within the meaning of this law shall be
      a house, buiiding ) or room in which any of the above men-
      tioned ccmmoditie~s -Ire stored and are F?‘otected from damage
      thereto by action of the elements.”
            It.has been held that the. distinction     be-Lween public
and private, warehousemen who receive     any description   of personal
property in store for. hire his, ins effect,   abolished by the pro-
visions  of Article  5568 ‘supra , defining “public warehousemen”.
LONGWELL  l’R&3F%=i v. E&OTT, 267 S. W. 346.
               .A&icle 5569,: Revised Civil Statutes,         1925, provides
f,or t&.obtaining        of certificate     and bond by “the owner, proprie-
tor,  le.isee,    or manager’ of any ,pu>lic Xarshouse, whether an indi-
vidual     ,firm,, or corporation”.        1,t is to ,be noted that these acts
are to’be done;“before          .transacting aily ‘busi~ness in such public
warehousel’.,     Articl.e,55,69,    Revised Civil Statutes,     125,~ should be
compared tiith. krtfcle, 556i, Revised Civil Statutes)            1925.   The
former ,article      re’a,ds~,as follows:
            “The :owner, proprietor,    lessee or manager of any pub-
      iic Garehocse, whether an individual,       firm or corporation,
     ~before trans~acting any business in such public warehouse
      shall procure’from     the county clerk of the county in which
      the warehouse ,or warehouses are situated,       a certificate
      *q t e’       ra. at’
     yQder the la::s of the State of Texq         which certificate
      shall be issued by s&d clerk upon a’written         application,
      setting f,orth the loca~tion and name of such warehouse or
      warehouses, and the name of each person, individual            or a
      member of the firm, interested       as owner or principal      in the
      management of then same, or, ifs the Tarehouse is owned or
      .nanaged by a corporation,     the name of the president,       secre-
     .tary and treasurer of such corporation        shall be stated,
     which ,applicat.ion shall be rece,ived and filed by such
      clerk and preserved in his office,       and the said certifi-
      cate ‘shall, give,, authority to carry on and conduct the busi-
     ness of a public warenouee and shall be revokable only by
      the distri,ct  court of. the count,y ,in which the warehouse or
     warehouses are si.tuated, upon a proceeding before the
      court, by written petit.ion of any per,son, setting forth
Department of Agriculture,     page 4    (0-1645)


     the particular    violation    of the law, and upon- process;     pro-
     cedure~and proof, as in other civil        cases.     The D son
     mine     a certifi cate. as herelp~provided        for, sh%   fi’l”e
     with the county Clerk grantingsame,         a bond payable to the
     State of Texas, with gdod.and sufficient          surety, to be ap-
     proved by said clerk,       in the penal sum of five thousand
     dollars,  conditioned     for the faithful   performance of his
     duty as a public warehouseman, which bond shall be filed
     and preserved in the’ office      of such county clerk.”     (under-
     scoring ours)
            After a most careful search of the civil   and criminal
statutes of this state we advise that the statutory     law provides
no penalty either in the form of a fine or imprisonment for fail-
ure to file the bond called for in Articles     5461 and 5569, supra,
on the part of any person, firm, or corporation     engaged in the
business of a public warehouseman and of storing property for
hire.   The Legislature   intentionally or through oversight failed
to establish    a penalty for violating the bond requirements of
these statutes.
            Furthermore, there is no provision       of the Constitution
of Texas or statute directly      authorizing    an equity action by the
state to enforce Articles     5661 and 5569. Nor can we find consti-
tutional   or statutory  authority to the effect      that violation    of
the public warehouseman’s bond requirement constitutes          an injury
to the property or civil     rights of the public at large.        We are
therefore   unable to hold that the attorney general, the district
attorney and the county attorney may institute         and maintain
suits in the name of the state, without statutory          or constitu-
tional authority,    to protect purely private rights,       in which the
state,   as such, has no interest,    and which Involve no injury to
the property or civil    ri hts of the public in gener~a~~vP~RT
EMORYIi. HUGHES,Ho. 758$ Supreme Court of Texas;                   .     -
TimsoN, 37 s.w. 478.     There is no ‘basis in equity for an injunc-
tion suit by the state to restrain       a public warehouseman from
operating without having previously        posted a bona.
          In Ex Parte Emory H. Hughes, supra, the Supreme Court
commented upon the jurisdiction of a court of equity as follows:
            “Our courts of equity, as such, have no jurisdiction
     to entertain suits to enjoin the commission of acts merely
     because such acts constitute      crimes or penal offenses un-
     der penal laws.     This is because equity is not concerned
     with the enforcement of penal or criminal statutes.        When
     the State, through its proper officers,      Invokes the juris-
     diction of a court of equity to abate a nuisance,        it must
     be shown either that the action is directly       authorized by
     some constitutional     or statutory  law, or that such nni-
     sance is an injury to the property or civil       rights of the
”       .




    Department of Agriculture            9 page, 5   (O-1645)


            public     at, large,.   - that~~is,   ,to the public   generally,   ***II
               Failure to file the bond re uired of a public ware-
    houseman in compliance with Articles    L!661 and 5569, supra, does
    not constitute   a public nuisance.oran    injury to the entire pub-
    lic such as to give the state a justiciable      interest and support
    a state suit to enjointhe     operation of the public warehouseman
    without statutory authority.
               We do not question the power and authority of the Leg-
    islature  to authorize fan injunction    suit by the state against
    the public warehouseman who refuses to file a bond, and to re-
    strain him from operating,     but it has not done so and in, view of
    the authorities   above quoted it is not to be assumed, that the
    court would invade the legislative      prerogative and create a rem-
    edy by injunction   by judicial   construction.
                     24 TEX.JUR., pe 70:
                  ‘I*** The legislature,      however9 has the power to au-
            thorize the issuance of injunctions          to prevent injury to
            the public by violations      of law which are also crimes; and
            it has done so in many cases.          Thus it has provided that
            the writ may be granted to abate or prevent the keeping of
            disorderly   houses and gambling places,        the operation of
            unlicensed employment agencies and illegal           pipe lines,  the
            maintenance of offensive      dumping grounds, the formation
            of monopolies and combinations,         the waste of natural gas,
            the sale of defective     fertilizers,     the unlawful practice
            of medicine 9 the violation       of intoxicating    liquor laws,
            the unlawful use of motor vehicles,          and perhaps others.”
                     24 TEX.JUR., pe 218
                  While it is a genera3 rule that the state may sue for
            an injunction   to prevent criminal acts whenever its inter-
            ests or the interests     of those entitled  to its protection
            are injuriously   affected,    it seems that the state has no
            right to an injunction      to prevent commission of a misdem-
            or which is neither a nuisance nor a violation       of any prop-
            erty right 0 There are also various statutes which author-
            ize injunction   suits in the name of the state to prevent
            acts which are injurious      to the public, although they may
            not be positive   crimes.”
                It is our opinion that in the absence of a statutory
    penalty for violation    of the bond provisions   of titicles 5569
    and 5661, Revised Civil Statutes,    1925, and in the absence of
    constitutional   and statutory  authorization   of the remedy of in-
    junction the state is powerless at law or equity to proceed
Departmentof Agriculture,page 6    (0-1645)


against a~piib1l.c
                warehtiuseman whb falls landrefuses to comply
with the warehouse laws in regard to filing the required bond.
           Trustingwe have fully answered your inquiry,we are
                                Yours very truly
                                  ATTOBJEY~GI3NEWJ.a
                                                  OF TEXAS
                                sy /s/ Dick Stout
                                Dick Stout, ,Assistant
APPROVED NOV 29, 1939
is/ Gerald C. Mann
ATTORNEY GENERAL OF TEXAS
APPROVED:OPINION COMMITTEE
BY:      BWB,CHAIRMAN
DS:ob:vb
