 .   .




              HE      AYITORNEY             GJSNERAL

                            OFTEXAS




                            December 16, 1957

Honorable John C. White
Commissioner,
Texas Department of Agriculture
Capitol Station
Austin, Texas
                                      Opinion Wo. WW-313
                                      Re:   Does the subject package
                                            of wheat flour meet the
                                            requirements of Article
                                            10&2b, Vernon's Penal
                                            Code? And related ques-
Dear Mr. White:                             tions.
        You have requested an opinion of this office con-
cerning the application of Article 1042b, Vernon's Penal
Code, to the sale of a specific package of wheat flour. The
request describes the package as follows:
                 "A shaker-type package of flour
         with perforated top, weighing 14 ounces
         net, manufactured by Pillsbury Mills, Inc.,
         and more fully described as 'a pasteboard
         cylinder with metal top and bottom. It IS
         designed to be used by pushing down a
         portion of the metal top and turning a
         revolving disk attached thereto so that
         the package provides for both reclos-
         ability and controlled dispensing.' The
         container is marked, 'You will want this
         package for the top of your stove and
         your regular size for your canister.'. . .'
        You have posed the following q,uestlonsin your
request:
                 "1. Is the above described
         package In compliance with Article 1042b,
         Penal Code?
                   "2 .   If the answer to Question 1
Honorable John C. White, page 2, (WW-313)

        is in the negative, then would the pro-
        posed rules and regulations, as set forth
        below, be in compliance with the provisions
        of Section 3 of Article 1042b, Vernon's
        Penal Code, and if so would the subject
        package fall within the provisions of
        these proposed rules and regulations?"
       We shall answer your questions in the order presented.
        Article -1042b,Vernon's Penal Code, reads, in part,
as follows:
               'Section 1. The standard measures
       of wheat flour, whole wheat flour, graham
       flour, other cereal flour, and corn meal,
       except such cereals sold as grits, shall
       be packages containing net avoirdupois
       weights of two, five, ten, twenty-five,
       rift?, one hundred, one hundred fifty,
       and two hundred pounds.
               "Sec. 2. It shall be unlawful for
       any person, firm, association or corporation
       to pack for sale, sell or offer for sale in
       the State of Texas any wheat flour, whole
       wheat flour, graham flour, other cereal
       flour, or corn meal except in packages (in-
       cluding barrels, sacks, bags, cartons and
       other containers) of the above standard
       net weights.
                llSec.3. Each package oi?wheat
        flour, whole wheat flour, graham flour,
        other cereal flour and corn meal shall
        have the net weight, name of manmfacturer
        (meaning the person, firm, association,
        or corporation which processes the wheat
        or other cereal into flour, or which pro-
        cesses the corn into meal) and the name
        of the place where milled, printed or
        plainly marked on it in letters and figures
        clearly readable; and that it shall be un-
        lawf,ulfor any wheat flour, whole wheat flour,
        graham flour, other cereal flour, or corn
        meal, to be packed for sale, offered for
        sale or sold within the State of Texas un-
        less it shall be so labeled. Provided,
        however, that reasonable rules and regula-
        tions for the efficient enforcement of this
Honorable John C. White, page 3 (W-313)

       Act, not inconsistent herewith, and
       Including reasonable variations or
       tolerances, shall be made by the Com-
       missioner of Agriculture.
                'Sec. 4. The provisions of
       this Act shall not apply to the re-
       tailing of wheat flour, whole wheat
       flour, graham flour, other cereal
       flour or corn meal direct to the
       consumer from bulk stock, nor to
       sales of flour to bakeries for exclu-
       sive use in such bakeries, nor to the
       exchange of flour or meal for Wheat
       or corn by grist mills and other mills
       grinding for toll for producers; and
       that nothing herein contained shall be
       held to apply to any product such as
       prepared pancake flour, cake flour or
       other specialty, packed and distributed
       in identified original package, the net
       contents of which are five pounds or
       less.


        It might be well to further point out that the sample
container which you have supplied to this office is specifically
labeled so as to indicate that it contains an all-purpose flour.
In fact, a portion of the label states that "This is an all-
purpose-flour and can be used for any baking. . . biscuits,
cookies, cakes, etc."
        Section 1 of Article 1042b, Vernon's Penal Code, as set
forth above, clearly prescribes the standard measures of wheat
flour as packages containing net weights of two, five, ten,
twenty-five, fifty, one hundred, one hundred fifty, and two
hundred pounds. Section 2 of this same Article makes it un-
lawful to sell or offer for sale wheat flour except in pack-
ages of the standard weights set forth in Section 1. It
further defines "packages" to include barrels, sacks, bags,
cartons and other c'ontainers. Thus, it is apparent that the
subject package of flour clearly falls within the purview of
the statute and In as much as the container In questions con-
tains but fourteen ounces of flour, its sale is prohibited by
the provisions of Article 1042b, Vernon's Penal Code, unless
It falls within one of the exceptions to the Act.
        An examination of the pertinent sections of the Act, as
set forth above, indicates that the only exception under which
                                                               L     .




Honorable John C. White, page 4 (W-313).


the subject package could possibly fall is that    provision       con-
tained in Section 4, which provides:
             I,
              0 * Q and that nothing herein contained
        shall be held to apply to any product such as
        prepared pancake flour, cake flour or other
        specialty, packed and distributed in Identified
        original package, the net contents of which are
        five pounds or less."
          The term "specialty" is nowhere defined in Article
1042b, Vernon's Penal Code. However& Websterns NewnInternational
Dictionary, Second Edition, defines specialty" as an exceptional
or peculiar mark or charaoterlstic, a distinctive or distinguish-
ing, sometimes a limiting or restrictive, quality o D 0 an object
or class of objects marked by some special or peculiar character-
istic    o o -1’

          Thus, it appears it was the intent of the Legislature
to exclude from the restrictions of the Act such products as
have distinctive or restrictive qualities, which mark them with
some exceptional or peculiar characteristic. The two enumerated
products, to-wit, prepared pancake flour and cake flour both fall
within this commonly accepted definition for both contain ingredi-
ents or are so processed so as to be offered for sale, and sub-
sequently purchased for a limited use. Both possess exceptional
qualities which induce the purchaser to seek out that particular
product. However, here the container itself indicates an all-
purpose flour, and not a specialized type of flour, and the stat-
ute itself does not classify a container as a specialty.
          The rule which might best be used to resolve the problem
of construction presented In this case is that of ejusdem
In Stanford            142 Tex. 692, 181 S.W. 2d 263 (1944w
Supreme Court said:
              "'It is a prime rule of construction that where In
        a statute general words follow a designation of partieu-
        lar subjects or classes of persons the meaning of the
        general words will be restricted by the particular deslg-
        nation In such statute. This is known as the rule of
        ejusdem generis, and is a rule of almost universal
        appllcation.""
The Court in              Casualty Co, v. Stewart Abstract Coi.$17
S.W. 2d 781 (             App., 19291, held;
                                       .

Honorable John C. White, page 5 (WW-313).


          II
           e e . When general words of statute follow
     a particular enumeration, the general words will
     be construed to mean things of the general charac-
     teristics possessed by the particular ones. 0 e .'
Applying this rule to the product in question, it is OUT opinion
that the subject package of all-purpose flour, whose physical
characteristics in no way limit or restrict Its use, may not be
construed to be a "specialty" as that term is used In Article
10&2b, Vernon8s Penal Code. For this reason, we are of the
opinion that Sections 1 and 2 of Article 1042b, Vernonus Penal
Code, prohibit the sale of the subject package of flour and
must, therefore, answer your first question in the negative.
          Section 3 of Artfcle 1042b, VernonOs Penal Code, as
set forth above* provides that reasonable rules and regulations
for the efficient enforcement of the Act, and not inconsfstent
therewith, shall be promulgated by the Commissioner of Agricul-
ture. Under this authority you have presented a proposed rule,
the pertinent portions of which ppovfde:
          "Rule No.         The term 's ecfalty" as used
                                        3, 48th Leg.,
     In Article 1042b, V.6.C., Acts, 1912
     P. 694, ch. 385, as amended Acts 1953p 53rd Leg.,
     p. 831, ch. 334* sec. 1, exempting from standard
     weights there set for the sale of packaged flour
     and corn meal Pany product such as prepared pan-
     cake flour or other specfaltyg, is hereby l-uled
     to mean any retail sale Item consisting either
     wholly or predominantly of wheat flour, whole wheat
     f~lour,graham flour, other cereal floup OP corn
     meal9 packed and distributed In fdentffied orfgfnal
     package, the net contents of which are five pounds
     or less, provided that such item fs (a) produced 01"
     packaged with a distinguishing characteristic which
     dffferentiates it from other items consisting of the
     same OP simd.laringredients, (b) produced or pack-
     aged for limited or special purposes as distinguished
     from general purposes9 and (c) packaged in a dlstinc-
     tive and unusual manner clearly indicating the net
     weight and the special OP limited purposes for which
     it is marketed."
          The usual purpose of the statutes relating to wefghts
and measures is to protect the public from fraud and mfsrepre-
sentation and to enable it to obtain the quantft of plpoperty
bought and paid for. 56 Am. Jup. 1017, Section 1. The Supreme
Court of Tennessee3 in upholding a statute which requfped corn
meal to be packaged in a certain sized contafner, said the
Honorable John 6. White, page 6 (W’W-313).


object of the statute was the preventfon of fraud in the sale
of one of the most common articles of commerce and food, State
v. Cooperative Store Co., 123 Term. 39g9 131 S.W. 867 (lglr
The Leafslature of Texas has also seen fit to enact snecffic
legislation which requlrea the sale of certain comaon*flou~s
and meals in standardized packages. Like the Tennessee statute,
the Items Included are those specific commodities which the con-
sumer public requires dally and which the average buyer has come
to expect to be packed in certain standard sizes. In order not
to burden the free exchange of these common commodftfes in those
Instances in which the avel-agesmall lot purchaser would not be
involved, OP where he would not be mislead, the Legislature
provided four exceptions: (1) where the sale 1s to the consumer
from bulk stock and, therefore, presumably sold by the actual
weight; (2) where the transaction involves the mflllng of flour
or meal, and (3) where the sale is to a bakery for its exclusive
use; and (4) where the purchase involves a mixture OP type of
flour or meal which has exceptional properties whfch alaedfs-
tinguished from the common all-puppose flour and meal. As
pointed out above in our answer to your first question, the
particular properties and qualities of these special products
have induced their purchase and, for this reason, the consumer
will be relying upon these distingufahing properties when he
purchases ft rather than upon the size of the container, as fs
often the case in his pupchase of all-purpose flour or meal.
          In as much as the quoted portions of Section 3 of
Article 1042b, VernonPa Penal Code, require that any rules pro-
mulgated under the authority of the Act be not inconsistent with
the Act, we must therefore examine the proposed rules fn the
light of the construction which we have placed on the statute
above.
          The proposed rule would define "or other specialty" so
as to include any retail item consisting wholly 'okpredominantly
of wheat YXOUP~ whole wheat floup# graham floup and other cereal
flour or corn meal,,if such Item is (a) produced OP packaged
with a distinguishing characteristic whfch d%fferent:fatesit from
other Items consfstfng of the same or sfmflap materials, (b) pro-
duced or,packaged fop limited or optional purposes as dfstingufshed
from general purposes, and (c) packaged in a dfstinctive and unus-
ual manner clearly indicating the net weight and special ala
limited purposes'for which ft 1s mapked. We fnteppret the rule
to require the presence of all three of these requirements before
an item may be properly classified as a "specialty", We further
construe the phrase "or packaged" as it appears in requirements
(a) and (b) to be in the disjunctive and, therefore, subject to
being consttied so aa to allow an ftem packaged with a dlstingufsh-
ing characterfstic and packaged for a lfmfted or ape&al purpose
Honorable John C. White, page 7 (WW-313).


and packaged fn a distinctive and unusual manner to be a "specfalty"
within the meaning of the Act, regardless of whether the contents
of the package be produced for a special OP limited purpose OP not.
We do not believe that such a constructfon of the phrase "or other
specialty" is In accordance with the intent of the Legfslature in
providing the exception as to specialtfes and, therefore, we are
of the opinion that the reposed rule is not consistent with the
provisions of Article 10t 2b, Vernon's Penal Code. For this reason,
we are of the opinion that the proposed rules and regulations are
not in compliance with the provisions of Section 3 of Artfcle
1042b, Vernonts Penal Code, and we must answer the ffrst portion of
your second question in the negative.
          In as much as we are of the opinion that the proposed
rules are not in compliance with the provisions of Artfcle 1042b,
Vernon's Penal Code, it becomes unnecessary for us to answer the
final portion of your second question.
                                 SUMMARY
                   The subject package of wheat flour does
            not meet the requirements of Art%cle 10&2b,
            Vernon"s Penal Code, and the proposed rules
            and regulations whfch have been submitted are
            not in compliance with the provisions of Sec-
            tfon 3 of Article 1042b, Vernon's Penal Code.
                                  Yours very truly,
                                  WILL WILSON
                                  Attorney Qeneral of Texas

                                  By   ti$$zkT           k2wp.
                                       Way1 d C. Rivers, Jr.
                                       Assistant

WCR:pf
APPROVED:
OPINION COMMITTEE
Geo. P. Blackburn, Chafrman
John H. Minton, Jr.
B; H. Timmins, Jr.
Leonard Passmore
APPROVED FOR THE ATTORNEY GENERAL
By: James N. Ludlum.
