                         OF TEXAS




                                           April 4, 1939

Honorable George H. Sheppard         i$nion No: O-545
Comptrollerof Public Accounts          : *Trinity-Mix"is cement
Austin, Texas                             and subject to cement tax.
Dear Sir:
   ..
  :.
~hi~,ia inanswer.to your letter of March 24, 1939, which reads   as
follows':
     'The question has arisen in this departmentasto the taxa-
     bility of *TrinityMix? (a sort oflPrtar preparationput out
     by certain cement companies). The attached copy~of.a~letter.~.:
     written by the cement.companyto our Tax Supervisor~;'Mr."B.C.;:
     Bearden, explains fully the ingredients..of.,this~mortar.
                                                           ,~i;::y<,Y'
                                                                .~.
     "1 will thankyou ~toadvise this departmentwhether this pro-
     duct is tamable under.the_.s~tute..lenying.a.~tax.on
                                                      cement.",
                                                         _:.
The attached copy..of~the
                        letter to Mr. Beardenthat ;you~ refer"to .~.
which-is from the attorheys for the cement company concerned,reads,
in part as:follows:.                      :-
     "The producthereinabove referred to, manufacturedby Trinity
     Portland Cement Company, which is under diacussion,atthis
     time, is what is commonly termed orknow;&aardinary masonry
     mortar .andcontains some ingredientswhich are likewise con-
     tained in cement, nevertheless,thefinished.productsare entire-
     ly different. Cement, as the.writerunderstands~it,may icon-
     tain various forms of stone ~whichare.burnedunder high heat
     and treated in'various forms. After beinghurnedby~high heat
     and treated, the product comes out inwhat is commonly termed
     among cement people as a clinker form, that,is, in round
   j pellets. These clinkers are then ground very fine and-sifted
     through meshes-or--screensof a very fine sieve, that is, so
     fine that the sieve, as I understand it, will hold-water. Af-
     ter receiving this treatment, the fine powder.is treated.
     During this same treatment,orperhaps there-afterwards,this
     pulverized clinker is treated.with.gypaum,.thraughly mixing
     the two products and you-then inturn have%hat is'commonly
     known and understood among thencement industry as cement; and
     generally and fin fact commonly knovn~~as.P~~d..Cement, which
     has a well defined and well understood..meaningamong persons
     conversantwith the cement industry. This,finished product
Honorable George H. Sheppard,page 2      O-545


    which is termed and known as cement is used for many and sundry
    purposes, such as makingmortar, plaster, concrete and many
    times in its raw state by adding water to it and for numerous
    other similar purposes.
     "The product here under consideration,which is commonly
     known as Trinity Portland Cement Company's finished product
     of mortar, is manufactured,as the writer understands it, in
     the followingmanner. The clinkers above referred to, without
     being ground and without being treated with gypsum, are taken
     in their raw state as they come from the furnace, mixed with
     lime rock in its raw state, containingapproximately47 or
     48 per cent of lime after the same has been burned, treated
     and reduced to lime. This lime rock in itsraw state, without
     being treated in any particular,~isground and pulverizedwith
   .-the clinkers,both productqbeing mixed-and ,placedthrough a
     sieve and then you~have the finished~product.:~The,percentage
     of lime rock and clinkersused-in this finished product, vary,
     depending upon the strength ordurability or mortar desired.'
     This finished product Is museda.smortar,~as I..understand.
                                                              it,
     snd,,
         is.nothing;in.facthut a:.preparedmortar;".:
                                        ..~
                                         .i_.
                                            .,~.
ihe~statute:in'iqu~atioh..is'.pjlr;?graphi.
                                     (a)':;f:
                                            H&rii;;
                                                  B&c.~o;:j~ji,Acts
1931, Forty+secondLegislature,, p.~355;.::ch;'
                                            212,'j'how
                                                     codified.as
Section 4la of Article 7047 of VernonVAnnotated‘Revised Civil
Statutes of Texas, which.reads~~asfollows:
     *There is hereby imposed<a'tax of one and one-fourth<l:t)
     cents on the one hundred .(lOG)pounds, or fractionalpsrtthere-
     of, of cementonevery personsin~this~~State.m8nufacturing'or...
     producing in and/or importing cement into thisstate, and who'
     thereafter distributes-,sells or uses the same-in intrastate
     commerce. Said tax shall accrue on and is imposed on the first
     intrastatedistribution,salecr use; providad~however, no
     tax shall be paid except on one sale, distrihution'oruse.
     The person liable for said tax is hereby defined to be a 'dis-
     tributor.(*
As the word "cement" is not defined in the statute,'itmust be
given the meaning in which it is ordinarily used and.understood.
State v. Yturria 109 Tex. 220, 204 S.W. 315; and Bradford v. Hunt,
15 Fed. Supp. ~428.
Webster's New InternationalDictionary, Second Edition, defines
the word "cement" as follows:
     "A substancewhich is mixed with water and used in a soft or
     .pastystate to join stones.orbricks ,ina building, to cover
     floors, etc., and which afterwardsbecomes hard like stone;
     esp., such a substancemade with lime, or a calcined mixture
     of clay and limestone.*
   Honorable George H. Sheppard, page 3      O-545


   Very few courts have made an expression on the word "cement",and
   about the only definitionof the word as given by a court is in the
   case of Brunswicke-Balke-Collender Co. v. Seamless Rubber Company,
   2'7Fed. (2d) 925, as follows:
        "The term (cement',as commonly used, implies a substancedis-
        solved in a solvent, and when the solvent is evaporatedthe
        cement hardens, and binds the layers of material together."
   In 14 Corpus Juris Secundum 61, we find a definitionas follows:
         "In its ordinary commercialsense, the work has been defined
         as a substanceused in a soft or pasty state to join stones
         or bricks in a building,etc., which.afterward.becomes hard
         like stone.?
       .                                                   ..~
   These&e.definitidtisoL-th&word as.it~'&'ordina&.Iy~   used andi
   understood.
   It seems to be the contentionthat cement is usually made by a pro-
   cess that resultsin a product called Bortland.cementl, and that the
" 'Legislaturedid not intend for this tax toapply~to cementmade by
                         to:any other:kindzofcsment. .We. do .notagree
  ‘any other .process,,~or
   with that contention; We:believe-that.any...product
                                                     thatmeets.the
   definitiono,f*cement"as that,.wordisordinarily~used~and-under-
   stood is cement within the terms of the statute. The definitions
   of~cementare not concerned.with-theprocess by which ,it-.Tsmads,
   and in determiningwhether or-nota .productis'.cement,  we .shouldnot
   look to the method by whichit ismanufactured., We ~lookto see
   what the product does .and..-hicnr-it-'~~~;,.'::~-_,
                                                  .$.,I
   A good discussionof ce,ment .isfouud.inVolume~.6of The Encyclopedia
   Americana at page.189, as ,follows:,~
        *A cement is any,compo.u&which; under certainconditions, is
        Blastic~a.nd.underothersdevelops,tenacity,and.can be used
        for holding togethervarious’materials; hence glue, lime,
        asphaltum,mucilage and.solderarecements., By far the most
        importantclass of cements, structurallyand commerciallyare
        the hydraulic Cements,,compoundsof ,lime,silica and alumina
        that have the propertywhen mixed with.waterto a.paste of
        cohering or settingand.-finally'becomingstone hard, even un-
        der water. The hydraulic cements may be divided into.four
        classes based on differencesin the materialsused.
        "The four classes of hvdraulic buildi&material above men-
        tioned are: (1) Hydraulic lime ~made*froma limestone contain-
        ing a small proportionof clay (8 to.lO.~percent) by burn-
        ing ata low temperature,~and<slaking:,theburned~rockand
        water. (2) Hydraulic or.natural-rockcement made from;s lime-
        stone containinga. relatire,~y,high.,
                                           proportion::af
                                                        clay, by
Honorable George H. Sheppard, page 4       o-545


     burning at a low heat and grinding the product to powder. (3)
     Portland Cement made from an artificialmixture of carbonate
     lime (either chalk, limestone or marl), with a certain pro-
     portion of cla burning at a white heat and grinding the clink-
     er to powder. f4)
                    ' Pozzuolsna or sla cement made by mixing
     some kinds of finely-groundscoria 7volcanic ash) or blast-
     furnace slag with a small proportion of slaked lime. Of these
     the second and particularlythe third are of chief importance
     in this country, though the manufacture of slag cement is a
     promising industry."
This discussion shows that there are four classes of hydraulic
building cement, one of them being Portland cement. According to
this discussion the cement in question comes within the second class,
which is *hydraulicor natural-rockcement". We believe that all
.af these classes of hydraulic building cement, which includes Port-
 land cement, and the cement in question, as.well as other classes
of cement,~comewithin the definition of cement as that-term is
ordinarily used and under.stood.
The general question as to what kind and class of 'cementis subject
to this tax has been heretoforeconsidered by this departmentand
was answered in a.very able opinion dated.September11, 1931, by Mr.
Sidney Benbow;Assistant.underattorney'.General'Allred, which opinion
strongly supports.our view, and which~reads,in part, as follows:
     *From .an.observationof these.defixriticns-.it
                                                  canreadily-be
     seen that the term Jcement' has a very broad,andnot a well
     defined ,orfixed meaning but could,include any.substanc,eof',a
     cementititmsnsture~ .     _ _
     *It is a fundamentalrule of conatruction.thatIn.the..absence
     of anything in the context of a statute to the contrary, com-
     mon or popularwords are to be understood in a~popular sense.
     Sutherland Statutory Construction,Section 389, page 747;
     Gilmer v. Maples, 138 S.W. 1037. And a thing or subject which
     is not within the intent and sprit of the statute is not with-
     in the statute though within the letter. Sutherland'sStatu-
     tory Construction,Section 379, page 730; Hawaii v. Manckichi,
     190 U.S. 197; Pool v. Simmons, 134 Calif., 621. The words or
     clauses may be enlarged,or restricted to effectuatesthe inten-
     tion or to harmonize them with other express provisions.
     Where general language construed in a broad sense would lead
     to absurdity, it may be so restrained. Peop1e.v. Davenport,
     91 N.Y. 574; McKee v. United States, 164 U.S. 287; Sutherland's
     Stat.utoryConstruction,Section 376, page'721.
     "Bearing in mind the above rules of construction,it is the
     opinion of the writer that the Legislature intended to impose
     the tax upon any substance of a cementitiousnature, which,
     in my opinion, would be commonly understood to mean such
Honorable George H. Sheppard, page 5           o-545


        cement as is used in construction work, namely, the construc-
        tion of buildings, roads, sidewalks, and the.~like,and would
        not apply to such substance as dental cement, belting cement,
        and like substances as mentioned in your inquiry. It seems
        that this theory is supported by the act itself by imposing
        only a nominal tax upon the one hundred pounds of such cement
        which, I understand, is the standard unit for sale of cement
        used for ordinary construction work."
It is our condlusion that the word "cement" in the statute means
cement as that term is ordinarily used and ~understo,od,
                                                       and the best
definition we can find of this term in regard...to.
                                                 how.it is ordi-
narily used and understood is the definition quoted above from
Webster's Dictionary; and under that definition the product in
question is cement.
   ..
Our answer to your question is that it is our opinion that "Trinity-
MIX", as that product has been explained to us, is.cement, and,
therefore, is subject to the cement tax.-       ._
                                           Yours very truly
                                     ~ATTORWEYGRWEXALOF'D3XAS

                                      By    /s/Cecil.C. Rot&h
                                                     Assistant
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