                         THE   A~RNEY           GJXBERAI.

                                   OF   TEXAS

G?IRALO     C.    MANN




      Mr. William J. Tucker
      Executive Secretary
      Game, Fish and Oyster Commission
      Austin, Texas
      Dear Sir:                 Opinion No. O-4497
                                Re: Wholesale dealers required to pro-
                                     cure wholesale fish and oyster
                                     dealer's License for each place of
                                     business.
                  Your request for an opinion is based upon a letter
          to Honorable Murrell L. Buckner, Chairman of the Game, Fish
          and Oyster Commission, from Mr. J. B. Arnold. The fact
          situation presented and question is:
                     "There are now operating In several of the
                 larger cities in Texas, fish companies whose head-
                 quarter offices are located out of the state.
                 The subject parties are all residents of states
                 other than Texas and they all obtain all of their
                 raw fish products in states other than Texas, and
                 in such other states process and pack them until
                 the final products is what is known as 'frozen
                 fish products'. These products are then thorough-
                 ly packed, after having been beheaded, cleaned,
                 skinned, and placed through a process of freezing.
                 This merchandise is then shipped in to Texas and
                 stored In freezing plants in several of the larger
                 cities.
                     'The merchandise Is stocked in Texas and sales
                 are made by local representatives who act in the
                 capacity of salesmen for the fish companies main-
                 talning offices In the State of Texas through which
                 orders and sales are taken and made. Sales are
                 made In some cases to retailers in broken packages.
                 Some of the concerns claim that they do not break
                 the packages and sell only to wholesalers. The
                 representatives of the fish companies take the orders
                 and if the purchaser has a credit rating that will
                 justify the seller to make the dellverg on open ac-
                 count, the merchandise fs delivered by the cold
                 storage companies as Indicated by copies of Invoices
                                                            .l .<




Mr.   kfilliam   J,.Tuck,er;page 2    04497



      attached. In some cases the delivery is made
      by the freezing plant on orders of the repre-
      sentative of the various companies and when
      the credit does not justify the delivery with-
      out the cash, the freezing plants have lnstruc-
      tions to make collection when delivery is made
      and credit the account of the corporation or
      individual who has aquatic products stored there
      and from which the delivery is made.
          "Mr. George D. Underwood, Merchandise Broker
      of Houston, Texas, represents one or more of the
      out of state fish companies, frequently mails out
      bulletins from his office quoting prices on fish
      f.o.b. warehouses in Texas. See attached copy on
      back of one of the bulletins. Mr. Underwood, per-
      sonally, as well as some of the representatives
      in the state, has recently procured a wholesale
      fish and oyster dealers's license. There are other
      brokers in the state who have not procured a whole-
      sale fish and oyster dealer's license.
          "The question has arisen as to whether or not
      fish companies such as the Atlantic Coast Flsh-
      cries Company, Fisheries Division, Boston, Mass.,
      and The Whiz Fish Products Company, Seattle, Wash-
      ington, and others, are due to procure their whole-
      sale fish and oyster dealers's licenses since they
      store their merchandise with cold storage plants
      and deliver to the various dealers throughout the
      State of Texas from the cold storage plants in
      Texas, on orders from representatives of their
      company.
          "From Information obtained, they are foreign
      corporations or individuals storing their aquatic
      products In cold storage plants in Texas and their
      business is handled by the local representatives,
      some of which have purchased the proper license to
      operate in Texas. Some of these representatives
      have one or more stocks stored in Texas and unless
      the question of inter-state shipment is envolved,
      I take the position that under our Game and Fish
      laws, the corporations or individuals storing the
      stock of aquatic products are due to procure a
      wholesale fish and oyster dealer's license for
      each place of business.
           . . . . . .I!
          fl
Mr. William J. Tucker, page 3          O-4497



        Article 934a, Vernon's Annotated Penal Code, as
amended, reads in part:
        "Sectional The following words, terms   and,
    phrases used, in this Act are hereby defined as
    follows:


           "(b) A 'Wholesale Fish Dealer' is any person
   engaged in the business of buying for the purpose
   of selling, canning, preserving or processing, or
   buying for the purpose of handling for shipments
   or sale, fish or oysters or shrimp or other com-
   mercial     edible aquatic products, to Retail Fish
   Dealers, and/or to Hotels, Restaurants or Cafes
   and to the Consumer.
           ,I
            . . . . .
       'Section 3. The licenses and the fees to be,
   paid~for the same are hereby provided for In this
   Act and are as follows:
        ". . . . .
        "2 . Wholesale Fish Dealers' License fee for
    each place of business, Two Hundred Dollars ($200).
        II
         . . . . .
       "11. Place of business, as used In this Act,
   shall include the place where orders for aquatic
   products are received, or where aquatic products
   are sold, and if sold from a vehicle, the vehicle ,
   on which, or from which such aquatic products are
   sold, shall constitute a place of business. The
   license shall at all times be publicly displayed
   by the dealer in his place of business so as to
   be easily seen by the public and the employees
   of the Game, Fish and Oyster Commission. And if
   any aquatic products are transported for the pur-
   pose of sale in any vehicle the license required
   of such dealer shall be displayed Inside of such
   vehicle. Provided that no person shall bring in-
   to this State any aquatlc products and in this
   State offer same for sale without procuring the
   license required for such a transaction by a deal-
   er in this State, and the fact that such aquatic
   products were caught in another State shall not
Mr. William J. Tucker, page 4         O-4497



    entitle the person claiming to have caught them
    to sell same In this State as a commerclel flsh-
    erman."

        We held in Opinion No. O-1596 thatthe intent of the
Legislature in the passage of A title 934a, supra, wag to
require wholesale fish dealers Fo pay a fee for each place
of business.
        We held In our Opinion No. O-3794 that the term
"places of business" as used in the statute is to be under-
stood and given its usual and ordinary significance.
        We believe that the case of Sonneborn Brothers vs.
Cureton;.Attorney General of the State of Texas, et al, 262
U. 5. 506, decided by the Supreme Court of the United States
and followed many tlmes in subsequent cases eliminates the
question of inter-state commerce from your Inquiry upon the
basis of the facts presented. The facts were: Sonneborn
Brothers was a firm of non-resident merchants selling petro-
leum products, with its principal place of business in New
York City. It had an office and warehouse in Dallas and a
warehouse in San Antonio.   Sales were made in a number of
ways, among those being by the sale of oil (1) shipped into
Texas and afterward sold from the storerooms in unbroken
original packages and (2) from sales in Texas from broke;
packages. Texas was asserting Its right to collect an occu-
pation tax levied on all wholesale dealers in oil based upon
a percentage of the gross amount of sales. The company made
no contention that it did not owe taxes mentloned In (2)
supra, but did deny liability for taxes assessed under (l),
supra.
        The opinion written by Mr. Chief Justice Taft holds;
       "The question we have to decide is whether
   oil transported by appellants from New York or
   elsewhere outslde of Texas to their warerooms or
   warehouse in Texas, there held for sales In Texas
   in original packages of transportation, and sub-
   sequently sold and delivered In Texas in such
   original packages, may be made the basis of an
   occupation tax upon appellants, when the state
   tax applies to all wholesale dealers in 011 en-
   gaged in making sales and delivery in Texas.
       I'Ourconclusion must depend on the answer to
   the question: Is this a,regulatlon of, or a bur-
   den upon, Inter-state commerce? We think it is
   neither. The oil had come to a state of rest In
Mr. William J. Tucker, page   5            O-4497



    the warehouse of the appellants and had be-
    come a part of their stock with which they pro-
    posed to do business as wholesale dealers in the
    State. The interstate transportation wes at an
    end, and whether in the origln~slpackages or not,
    a state tax upon the oil as property or upon its
    sale in the State, if the state law levied the
    same tax on all 011 or all sales of it, without
    regard to origin, would be neither a regulation
    nor a burden of the interstate commerce of which
    this 011 had been the subject."
        It Is our opinion, therefore, that the corporations
and individuals storing stocks of aquatic products in this
State and selling and delivering therefrom by duly authorized
agents are subject to and must procure a wholesale fish and
oyster dealer's license for each place of business.
                                   Yours very truly
                                  ATTORNEY GENERAL OF TEXAS

                                   By s/Lloyd Armstrong
                                        Lloyd Armstrong
                                              Assistant
LA:mp:wc

APPROVED APRIL 1, 1942
s/Grover Sellers
FIRST ASSISTANT
ATTORNEY GENERAL
Approved Opinion Committee By s/BWB Chairman
