         OFFICE   OF Y-HE AITORNEY      GENERAL    OF TEXAS

                               AUSTIN




 Honorable George Ii. Shepp~d
 Comptroller of Publla Aacounte
 AH8CII:, reus
 m6r Sir;




                                                  68king vhether or
‘,not oerteln m6t                                e “bu.lldLng materUle=
~,olthintheM                                     Fe Tar fall. Your lot-
  tar rwlda 68
                                         rge group of 1lnlber
                                         vhethep Or not the
                                        c lietsd, and eold




                      vided   that   the terma




           "The lmber yarda are contending  thet %he
      sale of the f'olloving mterial, when eald at Ium-
      her yard@, vi11 not make them subjeat to the
      etorb tax.
Honorable George H. Sheppard, page   2




     "1. COOLING SYSTEW :
         1-A. COOLING SYSTEM WITH FAN.   Representa-
              tive materials carried:
              (a) Grille, which replaces section of
              ceiling in building. A Grille 1s usually
              constructed of wooden slate-with outside
              wooden frame and sometimes metal is used.
              Grilles are constructed on job by car-
              penters, also carried In stock.
              (b) Pulpboard (such as Kasonlte) and
              Lumber for construction of airtight
              wind tunnel. One end of this tunnel
              1s connected with grille. The wind
              tunnel Is constructed on the job and
              1s located in the attic of the bulld-
              ing.
              (c) A special suction type of electric
              fan designed for this particular use is
              built into the other end of the tunnel.
              (a) Louvres or Windows are used to per-
              mit air to pass out of building. Lou-
              vres are built into the gables of build-
              lngs.
              (e) Wire, Conduit (either paper or flex-
              ible) and Switch are built Into wall
              and celling for starting and stopping
              operation.
              All of the above materials are built in-
              to and become a part of the structure.
         1-E. OTilERCOOLING SYSTEMS. Representative
              materials carried:
              Galvanized flat sheets, solder, lnsula-
              tion board, such as Masonite or Celotex,
              and asbestos paper for the construction
              of ducts which are built into walls and
              ceilings. Also grilles,  pipe and pipe
Honorable George H. Sheppard, page 3


              fittings. All of which materials can
              be used in construbtion of Other Cooling
              Systems. All of,the above materials are
              built into and become a part of the struc-
              ture.

     "2. flEATINGSYSTEMS:
         2-A. HEATING SYSTEM WITH GAS FLOOR FIJENACE.
              Representative materials carried:
             Metal grille replacing section of floor.
             Special type of gas burner connected be-
             neath level:of floor. Saidburner is n&
             useful for any other purpose. Bolts ana
             screws for oonstructlon of system. Gal-
             vanized Iron izhiela constructed around
             Gas Burnex. Ducts, either metal or as-
             bestos, constructed to lead from burner
             to flue or to ventilating pipe where no
             flue available. Thermostat, pipe and
             pipe fittings used therewith. The above
             materials are used in constructing on the
             Job as a part of the structure of a heat-
             ing system with gas floor furnace.
         2-B. WALL HEATING SYSTEM WITH GAS BURNER.   Re-
              presentative materials carried:
              Unfinished Wood cuff or frame to be built
              In between studding or Into opening. Gas
              burner. Pipe ana pipe fittings. 811 of
              the foregoing materials to be built into
              &nd become a part of the structure.
     "3. EXHAUST FANS (Kitchen):
         3-A. FOR HOODS.. Representative materials car-
              ried:
              Wood framing with Galvanized flat sheets,
              shaped to desired form; also construct-
              ed and attached to flue or other ventilat-
              ed pipe or duct opening. Special type of
                                                            340

Honorable George Ii.Sheppard, pge   4


              small electric exhaust fan Is built in-
              to hood to force fumes through flue or
              ventilated pipe or duct.

          3-B.FOR ROOMS.   Representative materials
              oarried:
              Wood or metal frames to be built Into
              opening In outside wall. Metal for
              shields oonstructed'above opening to      -
              protect from weather. Screen wire to
              cover opening. Special type of eleo-
              trio exhaust fan built Into frame.
     "4. VENTILATORS:

         4-i. VENTiLATORS IN FOUNDATION AND BELOW FIRST
              FLOOR LINE.
              The purpose of this type of Ventilator
              Is to permit a clroulatlon oftair beneath
              the floor of the structure to prevent de-
              cay, deterioration ana rot of structural
              materials; including floors, beneath the
              first floor level, and furthermore to pre-
              vent destruction of such materials by
              termites. Sald Ventilators are now be-
              Ing required as part of house conetruo-
              tion by F.H.A. These Ventilators replace
              a section of the lower walls of the struc-
              ture end are built Into the building. ReA
              presentatlve materials oarrled: Metal
              Lath, Hardware cloth, Poultry Wire, Heavy
              Woven Wire, Wooden strips ana metal, oe-
              ment or wood grille, together with lumber
              used for building frame around opening.
         4-B. VENTILATORS IN STRUCTLiRETO DISCHARGE
              FUkIES,ODOR AND SEWER GAS,,
              Building Codes In Cities require, and
              good building practices reoognlze, that
              each sewer connection In.a builalng shall
              be ventl%ated. Representative materials
              carried: Pipe of various kinds, pipe
Honorable George H. Sheppard, Page 5~


             fittings, Galvanized Iron flat sheets for
             construction of metal ducts, Wood and
             Metal Grilles, lead and oakum for connec-
             ting pipe, Lumber for framing Grille open-
             lngs. These Ventilators are constructed
             in Walls, Floor6 and Celling6 and extend
             through roof. They,become a part of tk
             structure.
        4-C. VENTILAtiRS IN ROOF CONSTRUCTION.
              The purpose of these Ventilators Is to
              discharge hot air which develop6 in at-
              tic and roof of buildings. Many types of
              ventilators are used for this purpose de-
              pending upon character of hoof construe-
              tlon.
              (a) Louvres, which are used in gablee.
              This Ventilator 1s of wood slat oonstruc-
              tlon with slats placed on steep pitch to
              prevent raln and snow from entering. Re'-
              presentatlve materials carried: Lumber
              Galvanized metal~and screen wire. uSUd1y      -
              constructed on Job, butt small sizes also
              carried in stock. In all instaTiCe6Louv-
              res replace seotlons of walls and become
              a permanent part of the structure.
              (b) Grilles, @lch are used in Cornice.
              In cornice construction where.roof'projects
              beyond line of wall, ventilators in the
              form or grilles replace sectlons or cornice
              and are built Into and beoome a part of the
              structure. Rep.resdntatIvematerials are
              the same a6 mentioned In the next preced-
              Ing paragraph in connection with Louvres.
              The grille ventilator In cornice serves the
              same purpose as the Louvre.
              (c) Metal Ventilators ror R00r Construc-
              tion which will not permit hse of Louvrea
              or grilles. The purpose Is to dl6charge
              hot alr'from roof. Representative material
                                                            342



Honorable George H. Sheppard, Page 5


              carried: Galvanized metal, ecrewa and
              solder, This type of ventilator conatruct-
              ed.on order for special type8 of roof: al-
              so common designs and.slzes carried In
              stock. Use of thI6 type of ventilator
              for certain type6 of.roor eliminates neo-
              esslty of building penthouse on roof to
              obtain ventilation. In all Instances
              these ventilators replace section of roof
              and become part of structure.
      "5. ELZCTRICAL F'U(TURES:
         5-A. ELECTRIC WIRING~AND CONDUIT, This refers
              to the materials used In the oonstruotlon
              of the-building so a6 to provide for cur-
              rent from point where same connects with
              the structure to and Including the outlet
              In the structure. Representative material
              carried: Tube6 to Insulate through Jolsts;
              Wire, Knobs, Screws, Metal plpe for.con-
              dult. Lead covered cable for conduit end
              Flexible Cable for conduit; Base, Floor,
              Wall and Celling Metal Outlets,   boxes or
              receptacles; panel boards and switches.
              All of the above materlals are built Into
              and become a part of the structure.
         5-R. ELECTRICAL LIGHTING FIXTURES forming an
              integral part of the structure and beoom-'
              lng a part of the building or structure.
              Such rixtures do no.tinclude Electric Flx-
              tures which are made use of by plugging ln-
              to outlet or receptaoie end do not Include
              light bulbs. These..flxturesare connected
              directly with the wiring system of the
              structure. RepreSentatiVe IIIateridscar-
              ried: Metal, Glass, Porcelain, Wire and
              Switches. Such Fixtures are carried in
              stock, but In all oases form a part of the
              construction and require labor for aasem-
              bly and for making a part of the structure.
              During recent years Electric Lighting Flx-
              tures'are being built Into walls In order
              to obtain Indirect lighting and further-
              more to create a type of construction where



  .
                                                             F..   .._




                                                                             343   .




Ronorable George H. Sheppard, page 7


             fixture6 are lnvlalble. These Fixtures
             have no use except,ae Building Materials
             and they form an important part of the,
             structure.
     "6. GAS FIXTURES   FORMING AN INTEGRAL PART OF THE
         STRUCTURE:
         6-A. GAS PIPING AND FITTINGS.
              Thls refers to the materials used In the
              construction of the bulldlng 60 a6 to pro-
              vide flow of gas from point where same.
              connects with structure to and Including
              outlet or cock In the structure. These
              materials consist of pipe and pipe fittings.
              It 16 usual for said materials to be con-.
              atructed in walls and between ceilings and.
              floors of the structure.
     "7. PLUMBING.
         7-A. PIPE AED FITTINGS.                                                   .i

              These materials Include Sewer, Vent, Water
              and Gas pipe (Clay and Metal): together
              with fittings. All of these materials are
              built into and become a part of the build-
              ing or structure. It 1~6usual for said
              materials to be.constructed In walls and
              between ceilings and floors of the atruo-
              ture.
         7-B. PLUWSING FIXTURES.
              Bath Room Plumbing FiXfJUr66 built Into and                              i7
              becoming a part of the Building or Struc-
              ture. Thesematerials Include Bath Tubs,                    -
              Shower Bathe, Lavatories and Commodes, all                     .     I
              of which are directly connected with Sewer-
              age System, Water System and Vents In a'
              permanent manner. .Bath Tubs are usually
              built Into walls and fl'oorof bath room
              with tile or other wall or floor flnish-
              lng material resting on top edge of Bath
              Tub and against Side6 of Bath Tub. Shower
              Bath6 are usually built into structure by
                                                                         -       -^
                                                                        -             .




Honorable George B. Sheppard, page 8


                building three walls;.said walls flnlah-
                ed on interior with tile or other suitable
                material and with drain built into floor,.
                and with door, hinges and bolts. Lava-
                tories are of two types, wall and floor.
                Wall lavatories are usually oonatructed
                by being permanently fastened to wall with
                tile or other finishing wall material 8x-
                tendlng around edge of Lavatory.. Floor
                Lavatories are usually oonstruct.edby be-
                ing set on conorete part of floor with
                tile extending around edge of base. Com-
                modes are usually oonstruoted by being
                bolted into floor with water tank bolted
                into walls. The above fixtures are’oar-
              . rled in stook, but are of no praotloal
                use,exoept as building materials rorming
                a part of the struoture and as mentioned
                are all dlreotly conneoted and tied in
                with ‘papes and fittings to .the sewerage _
                system, water system ma vents. The OOP-
                struotlon.of the above materials Into the
                 building or struoture forms a substantial
                part of the labor necessary in the ereo-
                 tion of the struoture.
       7-C.     HOT WATER BEATING SYSTBL-.
                         . .
                The ma&ials   oonsist ore.
                                         steel reaervolr
                or oontalner permanently.oonnected with.
                the water system of the atruoture and
                forms an integral part of the oompleted
                Hot Waffir.
                          Fystei for &e building or struo-
                ture anp,furthermore oonneoted with Gas
                 Syste&and Vent i Other ldaterlalsare
                pipe adQ~pip8 flttl.iigs.,-   ..

       7-D.     KITCHEN SINKS.
                These materials oonslit of metal sinks
                which are permanently oonneoted and built
                into the btilldlng‘or structure, being bolt-
                ed into wall or into drain board oonatruo-
                tion. Also directly oonneoted ‘with sewer-
                age ‘system,water system and vent, Other
                materials are pipe and pipe $lttings.



                                                                             .
                                                               \   i-            -
Honorable George H. Sheppard, page 9
                                      -.
         7-E. SEPTIC TANKS.   ,   -
             Septlo Tanks are used wher&~other sewer-
             age Woeal    not available. Constructed
             by using oement and relnforolng ror oon-
             orete type or by using clay tile materials.
             Said tanks are conneoted with building with
             sewes tile. The materials are carried in
             .stook. A substantial amount or labor is
             neoeasary in the oonstruotlon of the mater-
             lala into a septlo tank.      -

         "8. CARPENTER'S TOOLS.
              These materials oonslst or certain tools
              used by the mechanic in the construction
              of the building or struoture and are ab-
              solutely essential to the use of the mater-
              lala.whIch go into and become a part of the
              building. Throughout the'hlstory of the
              Building Industry, hardware has been dlvld-
              e$ into two classes, viz;" Builders Hard-
              ware and Shelf Hardware., Builders ha,rd-'
              ware lnoludes Carpenters toUs and carried
              in Building Material &oaks.        .

         "4. PAINT BRUSHES.
              These materials are essential to the use       .
              of paint, one of the important building
              materials. Paint.brushes oonstltute a
              class of material whiah is consumed in the
              oonstruotlon of the .bullding or struoture
              where palnt'is used. Usually a number or :         r
              paint brushes are oonsumed in the oomple-
              tlon of one struoture or building. Paint
              Brushes have been carried in stook and
              sol& almost exclusively by Building Mater-
              ial Dealers.
        "10. SAND PAPXR.
             This inaterlalis essential in the oonstruc-
             'tlon df a Building or structure, partl-
             oularly in the finishing of oertaln sur-
              raoes of lumber and is consumed in construo-
              tion. It is essential in completing the
                               .-



     Honorable George H. Sheppard, page 10


                 prooessing of lumber where a smooth sur-
                 face is necessary and the oonsumpti,onis'
                 very rapid. Sand Paper has been carried
                 in stook and sold almost exolusively by
                 Building Material Dealers throughout the
                 life of the industry.
         "11. BARBED WIRE, WOVENWIRE OF ALL KIND&   STEEL
              FENCE POSTS AND METAL GATES.
                 These mater;ialsare all used in the build-
                 ing of Fenoe Struotures. Building material
                 dealers have handled materials for building
                 either wire or wooden fences throughout the
                 history of the industry.
                 Light Woven Wire is also used in'the oon-
                 struotion of walls of poultry buildings
                 and in stucco wall construction for a oer-
                 tain type of building and as Ventilators
                 in walls and cornices of buildings.
                 Heavy Woven Wire is also used as reinforo-
                 Ing id concrete oonstruotion and as Venti-
                 lation material in walls and tiorhioesof
                 buildings. 4so used in stuooo and plas-
                 ter wall oonstruotion.
         "12. METAL TANK MATERIALS.
                  These materials consist of flat steel sheets,
                 either galvanized or black; also oorrugat-
                 ed sheets., These materials as carried in
                 stock are not formed~or shaped for tank
                .oonstruotion. 'Said materials are used in
                 the building of stook tanks and out-side
                 water supplyhstanks.     .
         "13. WINDNILL PARTS
                 Representative Materials carried: Steel
                 angle and flat irons, bolts and nuts for
                 use in oonstruotion of tower; also lumber
                 for tower construction. Windmill gears,
                 Windmill tails, steel fap seotions for Wind-



                                                i




*-
Honorable George H. SSheppard,page 11


           ml&l, pipe and fittings, sucker .rods,
           couplings, cylinder barrels, valves and
           washers. All of the above materials are
           used to oonstruot the completed struo-
           ture and to become part of water system.
           A great number of houses are not oonneot-
           ed to a municipal water system, and water
           for said houses is obtained from a water
           system in which the water is pumped by a
           windmill.
    "14. PUMP PARTS.
            Representative materials oonsist of pipe,
            pipe fittings, cylinder barrels, valves
            and washers used for constructing pump.
        "This department will appreciate your opinion
   as to whether a lumber yard selling the items of
   material listed above, brings suoh.lumber yard
   within the definition of a store under the Chain
   Spore Tax Amt."
         The Texas Chain Store Tax Law is dodified as Artiole
lllld of Vernon's Annotated Penal Code. Said law prbvides that
every person or firm operating a store shall pay a fee for the
privilege of doing so, and a graduated soale of fees is presorib-
ed, the amount of the fBe for each store depending on the tot@
number of stores operated by said person or firm. A store is de-
fined in Section 7 of the law as follows:
        9eo. 7. The term 'store' as used in this Act
   shall be construed to mean and include any store or
   stores or any meroantile,~establishent or estab-
   lishments not specifically exempted within this Act
   which are owned, operated, maintained, or controlled
   by the same person, agent, receiver, trustee, firm,
   corporation, copartnership or association, either
   domestic or foreg$n, in which goods, wares or mer-
   chandise of any kind are sold, at retail or whole-
   sale."
Several exemptions are set out in Section 5,of the law, one of
them being as follower
         1,. . . Provided that the terms, 'store,
    stores, mercantile establishment or mercantile
                        .
Honorable George H. Sheppard, page 12    ,    '


      establishments' wherever used in this aot shall not
      include: wholesale and/or retail lumber and build-
      ing material businesses engaged-exclusively in the
      sale of lumber and building material; . . .n
           We think that by using the word uexclusively" in said
exemption the Legislature intended that those nwholesale and/or
retail lumber and building material businesses" that engage only
in the selling of lumber and "building material" should come
within the exemption. In construing one of the other exemptions
in the Chain Store Tax Law the court in the case of Standard Oil
Company of Texas u. State, 142 SW. (2d) 519, said:
           "We are of the opinion that when the legisla-
      ture used the language in the exemption clause 'en:
      gaged exclusively in . . . selling . . . petroleum
      products' the word 'exoludivelyt was used synony-
      mously with 'only' and 'purely.*"      *.
Therefore; if any of the materials listed in your letter are not
"building material" in the sense that said term is used in the
statute, and said material is sold in a lumber or building mater-
ial business establishment, or in any other mercantile establish-
ment or store, said establishment or store would be subject to
the chain store tax.
           We will endeavor to decide in the case of eaoh of these
materials whether or not it is a Zbuilding material."
           Before deoiding each question we will discuss generally
the meaning of the term wbuilding material." There being no stat-
utory definition of said term, we are relegated to the lexico-
graphers, legal and otherwise.
           The word nbuilding2 in this statute is used as an ad-
jective modifying the noun ?.uaterial;wbut the adjeotive "build,-
ing" cones from the noun wbuilding.n "The word '*builoing' is
derived from the Anglo-Saxon lbold,t meaning a dwelling." Sauls-
berry v. North Amerioan Refractries Co., 278 Icy.808, 129 S.W. ‘xx
(26) 525; Neekamp v. Huntington Chamber of Commeroe, 99 W. Va. 388~,
129 S. E. 314. Definitions of the word "building," both noun and ?~.
,adjective,are of value to us in determining the meaning of the     p
word in this case.
                                                                   j! 'h.<




                                                                 .:
                                                                 n\
Honorable George H. Sheppard, page 13


           The word %aterial" in this statute is clearly a noun.
           Webster's Wew International Diotionayy, 2nd Ed., Un-
abridged, defined the word "building" as follows:
           "That whioh is built, specif.: As now gener-
      ally used, a fabric or edifice, framed or construct-
      ed, designed to stand more or less.permanently, and
      covering a space of land, for use as a dwelling,
      storehouse, factory, shelter for beasts, or some
      other useful purpose. Buildin in this sense does
      not include a mere wall,
                             d        monument hoard-
      ing, or similar structure, though designAd for
      permanent use where it stand; nor a steamboat,
      ship, or other vessel of navigation."
           There are very few Texas oases defining the word *build-
1ng.v In the ease of Peterson v. Stolz, (Tex. Ct. 01~. App.) 269
S.W. 113, the court held that a monument on a burial lot was not
a building within the terms of the meohanicsl lien statute, and
the oourt said:
          n    . In interpreting the word tbuilding,*
     in relAt;on to meohanios' liens it has been held
     that a 'building' includes only'those structures
     whioh have capacity to contain and a?e designed
     for the habitation of a man or animals or the
     shelter of property. Railway Co. v. Vanderpool,
     11 Wis. 119, 78 Am. Deo. 691. . . .-
In the case of Johnson v. State, 96'Tex. Cr. R. 2U.257   S;W.
351, the court held that a cattle dipping vat was not a building.
      The noun %aterialn is defined in the case of Oliver
v..State, 110 Tex. Cr. R. 263, 8 S. W. (2d) ,184, as follows:
           "    . 'materials' include such artioles as
      enter inio and form a art of the finished pro-
      duct; while 'equipmentP imports 'the most neoes-
      sary to enable the contractor to perform the
      agreed service, the tobls, implements, and appli-
      ances which might have been previously used or
      might be subsequently used by the contractor in
      carrying on other wdrk of like oharaoter.' . . .n
Honorable.George H. Sheppard, pase 14

           We have not been able to find any Texas cases in which
the court discusses the term "building material;" but, as point-
ed out above, there are Texas cases discussihg separately the
word *building" and the word "material.V' However, there are oases
in other jurisdictions in which the term."building material" is
discussed. In the case of Ward v. Kadel, 38 Ark. 174, the court
indicated that "building material*Vwas anything essential for
building any kind of house. (See 12 Corpus Juris Secundum 389).
In the case of Hundhausen v. Bond, 36 Wis. 29, the court held
that excavated dirt that had been piled in the street was not
nbuilding material" unless some person had 'placed it there for
the "purpose of using it in his building." A'correct statement,
according to our view, was made by the oourt in the case of
Schaible v. Board of Adjustment, 15 N.J. Misc. 707, 194 AU.
388, as follows:
           wBuilding materials normally consist not only
      of lumber, bricks, stone, and iron, but of paints,
      varnishes, and many other substanoes used in build-
      ing construction. . . .*
A similar statement was made in the case of Lawrence v. Comstock,
124 Mioh. 120, 82 N. W. 808, as follows:
           *    . In the first place, it is not impro-
      bable ihit the term was used to cover other mater-
      ial besides Mmber, such as lime, brick, sand,
      nails, lath, hair, and other supplies and,arti-
      cles designed for building. . . on
           The foregoing,oases represent the majority thought on
the question, that is, that nbuilding materials" are limited to
those things that go into and become a part of a building. How-
ever, some oases adopt a broader meaning, as is illustrated by
the oase of Wood Preserving Corporation v. State Tax Commission,
235 Ala. 438, 179 So...254, in whioh the court held that the Leg-
islature of Alabama intended for the term "building material" in
an'e~xeeptionin a tax statute to include railroad oross tiersand
%aterial of all kinds used in oonstruotion work."
            As we are convinced that the adjective   ubuildingn in '
the term "building material*'has reference to the    noun Rbuilding,N
instead of the verb "build,n it is important that    we determine
what we are ubuildings". In the case of Trussell     v. Gay, 13 Gray
'(MassT) 311, the court said:
Honorable   George R. Sheppard,    page 15


           “‘The word “bulldLn&’ cannot be held to ln-
     alude every speclea of erection   on land, suoh 88
     fenoee, gatea or other like struoturetv.   Takan ln
     Its broadeet eenee, it can mean only an ereotlon
     intended for use and occupation aa a habitation
     or for some purpose of trade, manufacture, orna-
     Dent, or uee, oonstltutlng  a fabric or edifloe,
     such aa a home, a store, a churoh, a shed.‘”

In the oaae of City of Conaord v. Morgan, 74 R. H. 32, 64 Atl.
725, the court said:
           II. . . all permanent etruoturea Intended to
     shelter human belngc! or domeetlo animala, or to
     reaelve,   retain, or oonflne the goods ln which a
     person Qeale, or to house the tool8 or machinery
     he wet! or the peraone he employee ln Ns bual-
     ness, are commonly called    lbulldlnge.~ . . ,”
A almllardeflnltl?n   was approved ln the casea,~of Ran&Z1 v. At-
lantld Advertls     Servlac, 159 Ga. 217, I.25 8. E. 462, Tovn OS
Union v. Zfller, 9 51 &tee. 467, 118. SOIL
Zurlah General Aooldent & Liability   Into,
(2d) 3094
            The determlnatlon     OS the queatlon, vhat 1s a building,
1s of no greater importance in ths preeent inquiry than the de-
termln8tlon of what is “m8terla.lrn         The very e8cenoe of the word
*msteria1,” in the oonnectlon here wed, ia that            It   mean8 those
simple things that enter into the aonatruatlon OS 8 bulldlng
88 elements of etruaturei        The term %8terial"     doea not aonnote
8 finlehed   or fabricated    thin& whether bulldlng OP other strua-
ture.    It mean8 those thlnga of whiah the f8brlOated etruoture
la composed,    Thle dlstlnotlon     IS vhat dlfferentlatee       between
the material and the building or strwture.            Of ooursei the mat-
erials upon being fabricated       do become a part of, and therefore
constitute   the struoture,    but the fabrioated     artlole,    whether
house or fixture    therein le no longer %tateclaleY in the oomkon-
ly aocepted meaning of that term.         It la ELbulldlng      or a aoo&lng
system or a heating ayatem or a ventllatlng          eyrtem, or a plumb-
lng system, aa the individual       fabrication   may be.      St ia note-
worthy, too, that suoh fabrloated        structure of such enuiWrated
ayatema is not itself      a building ln any just aense conoerning the
preeent inquiry,    but neverthelesa,lt      la a fabricated     atructuve.
 honorable    Oeorge 8. imeppard,       page 16


 machine, or utility,   and has oeased to be %aterlal.'    The l&en-
 tttg of the materials entering into the fabrlostloa    haa been lo@&-
 consumed--it  ie freqwntly   aald in the use thereof.   Thla, we
 think, Is the final teat of the intention   of the statute,   and
 affords the.anewer to your many queetiona.
              Many fabricated        articles,     however, by ookmon we are
 such ae ere not only oonvenlent but considered even to be erse-
 tlalr to the modern oonoeptlon OS oolniortable hourlng.                      Thur, the
 modern howe la not ready.Sor aatual habitation                     until it has its
 heating’egstem,      ita    croollng qatem, lte eleotrlo             eyrtea, It.8 sever
 eystem, lte cooking eyatem, and the like.                  Thle doer not man,
 hovever ., .that such convenienoea or even necerrltler                   are to beeone
 ~&&u&l firturea      to the reaIlty, for in many if not meet lnetanoea
 they are not such real fixturea --but Femain throughout aa per-
 sonal property.        Thus, the heatiing furnace, and the oooling ap-
 paratw,     the electric      Sixturee,     and the lik;e, may be and apa tic+
 quently utlllced       without becoming attached to, the ~pealty In rueh
 vay as to become a seal fixture              serving all the vhile the require-
 menta of the ovner or oocupant t Certainly,                  in’~euah oa~~a the
 fabricated     syetq     could not poarlbly be ooneldered bullding~mater-
 ial, for th6y have not entereq, into the etruoture OS the hotwe in
 any vay vhataoever.          geither can it be argued vith a good reaeon
 that by beoomlng attaohed to the building In much vay as to be-
 oome a ~Sixture to the real estate that they thereby have ,been
 geilvanlted Into building materials,              for their eaae.ntlal nature
 ham not been changed,           The prlnaipal       atid only..:i!ubstentlal   ohange
 that qan result from the&r att&ohment 80 a8 to become permanent
 real fixture8     Is one of oonvenlence oontrolled                largely by. the
 vent and demands and the abilltlea               Sl.nanolally OS the ovner.
              One aan hardly think of any fabricated   ryetem, mechine,
:. lnetrument, or utility   for the home, that may not be permanently
   attauhed to the bulldlng    so as to become a part of the realty,
   but this Uoee not change the essential    nature of the things thus
   attached.
            From what we have eald, those thinga vhich are useful
 only In the fabrication  ancl oonatruation   OS a building are not
 themselves necessarily  building materials.     Thus, oarpenterta
 toole,  such aa hammere, aawe,,planee,    seendere, polishera,  and the
 like, are in no sense building materials.      They are Implementa
 and tools for build-,    but they aurvlve their UEB, and unlike
 the building materials actually   nought into the strucrture they
 do not~perieh with their use.    Those materials,    howevex?, thst are
                                                                               7.:
                                                                               ,. -
                                                                                      3.5



Ronorable George Ii. Sheppmd,         page   17


ooneumed ln their. use ln aonneotlon vlth the oonetruotlon   OS the
building  are “bulldlng ~t%rl8la,”   examples being sand-paper and
paint brushes.   Thle dletlnotlon  la Illustrated  py the oaee OS
Troy Publio Works Co,’ P., City OS KonkezIe, 207'X.Y. 81, 100 X.B.
700, it? vhiah the court said:

           “In vlev    of vhat vbe *itten      SOP #le. oourt                   ‘.
     g   Sohaghticoke    Povder Co. ‘I. Oroenvloh I J. By.                  : #;
            183 H. Y. 306, 76 H. B. 153, 2 L. R. A. (X.8.)
     286:‘1l.l b. St. Rep. 751, 5 Ann. Oaa... 443, there
     remains very little      to be said In the &see at bar. ‘.” ~,~               .‘.
     In the Sohaghtlooke Caee..the plaeintlff        Surnlehed           ,’ ”
     dyne&t% and other explosivea         to a oontractor     for
     we ln the oonetruotlon        OS a’railroad,.   and then
     filed ita l$sn for the unpaid prlos.           The Ques-
     tion vae vhother these explosives         vere materials
     withFn the purview OS the statute.           Ue decided
     that they vere, beoauee they yere not only wed
      In the aonetIwtion      OS the. work,. but vore liter-.                   .~
     ally ‘used up’ ln Its perfomisncei           The dyn.smLte
     and povder verb put into the vork end uere ooneum-
      ed In the operatlom s ~Thoy vere as mu&h a part OS                          .‘:’
      thee materials the;t~‘vent jato the structure as the
      varboua oonetltuente     thatloet,thelr      separate
      identity   lnbeoonlng    part OS the plaster,      cement;
      or concrete+.    For ati purpoae.oS lllwtrating
      this idea ve ealdt      ‘The argument that dynamite
      la not’ a material., but a’part. OS the oontraetor’s                .’ ~’   ‘Y’~:’
      plant vhlch, like .piokti end ehovele. or meohanioal                      :
      appLlanoe8, are used in the performmoe          OS vork,, :,. .:::l: :+
      but ee not ooqsldered ~mterlale         Surnlshed vlth-        .i~’:~: . :?j’:::,
      In the purvl%V .oS the statute, *Bbm to us a-                .:.,...“,:.:+
      herently unsound; ‘A eteam shovel, an engine ~~),,~_.:!~,.~,;~.~,j,~.,
      boiler,   pioke; shov'eb, orOvbBpa~ and the Iike
      are tools ,&nd appllanoee vhloh, vhlls tieed ln             :I:>.  ~::::!~,‘!:::..1
     .the doing of the York,. eurvlve ite. perfqreienoe ,. : ;;~:.‘;~i::
      and remain ‘the- property of their ovner,: Rot so, .: .f .~~’               ‘..~‘.
      hovever,. vlth materials     that are used up in the            ;      ~~
      performance OS the work, and are thereafter           l.nvl-~~ ‘:. tic.J;:
       alble :exuept as ‘they survive .in tangible resulte.(            -:~’ .,::.
       183 R.-Y. 312, 76 Ri.B; 155, 2 .L, R. A,. (R.9.):‘~;‘:‘.;‘:;,~.:.:‘.,
       288, 111 Am St. Rep. ,751, 5 Ann. Cae. *43.,The                      .’.~
       ateam shovel in the cae8 at bar did not go into
       the vork ae materlal~      It Van a maahine wed on ~‘. ;I,.;.-
       the work,’ snot by the ovner but by his leeeee,         and          ‘;.‘:‘:’
Bonorable   Qeorge Ii. Sheppard,   page 1.8


     it VW returned to the ovner just an It vaa re-
     ceived, necessary wear and tear exoepted.      It was
     not material;   either aoaordlng to the deflnltlona
     of the lexicographers,   or under the decieiona In
     other dates where they have lien etatutes eimllw
     to our own. . . .*
          The eeme reasoning was adhered tQ in the Texas case of
Btone v. Morrieon end Pavers, $294 3. W. 641 (Reversed on other
grounds 298 S. W. 538) in which the aourt saldr
           I(      The vord *material* means (the eub-
     etance’oi  &h    anfihlng ls’iparde.@ The pile-
     driver van itot a eubetanoe OS vhlah the ooncrete
     piles were made, but vae an equipment to be used
     inthemaklng..     . ,”
             In the case of come OS the materials listed in your
opinion Bald materl&le oan be used SOP several ptipoeee,      that
le, they oan be used as “building materials” and they can be
used as some other Jclnd OS esate~le38.    For example, light voven
wire m,n be used as a “building materl.al’ by using it In the
walls of atuooo buildinga,     or 1% can be used ao Chat It vi11
not be a “bullding material ” by oalng It ea a ohioken Senge.
In the oaee of materials     that OM be used as “bulldIng nK&eri.alL”
and also'.% non-bullbiag    materirle  if #Llumber yard ogerata
keege said material in etook lo. order to have a complete StoQk.,
of bullding material” and ln order to Sill “building rmste~lal
purchaeer*r needs It should be atmeldered "btildlng     mEter+al"
~vlthln the meanihg of the Texas Obaln Store Tax Lav.~ IS a lum:
her y-d operator has in etook rood-screwa      that are appr~pr~rtb
 for faetenlng hlngee inside of a house, it would not affect.. the
 liability   of the operator for ahsin store taxes IS a purohaear
used eald wood-screwa for something other than a ‘bulldlng      sat-
 erial, * for example, for faetening a “no-hunting” sign to 0
 tree.
           It la not strictly    R question of whether or not a
place ia a lumber yard, &a that term la oommonly understood,
but It 1s a queetion of whether or not the plaoe is ‘engaged
exoluslwly   3.~ the sa.le. of lumber and building material.‘,     Hov-
ever, we think it Is apparemt           the Leglalature   van thinking
of a lumber yard when it pageed this exemption.         The only dade
we have found that deeidee whether or not a partioular        place
la 8 lumber yard or not within the common understanding of the
Honorable Qeorge II. Sheppard,     page 19


~e”s”,~       tp
            case of PlanterQe Lumber Co. v. Yells,  147 Miaa. 279,
          .  The follovlng
                   .        quotation ahove vhat waa eold in the
lumbar yard involved in that oaee, to-wits
             WI. . k 75 per oent. In value of all material8
      bought and eold by defendant conalated of lumber,
      10 per cent. wooden ahtnglee, lath, aaah, door%,
      and windova and artlales       of like kind, making a
      total of 85 per sent. In value of all materials
      handled aud aold by defendant aa aforesaid,         con-
      aiatlng of lumber, e&ah, doors, and rlndova and
      articlee   of like kind, and the remaining 15 per
      cent. conaiatlng     of other building materlale,      such
      ae composition     ahlnglea, roofing,    cement, lime,
      and plaster,    and vhat ia oomnonlg knovn aa build-
      er’% hardvare, aonaietlng        of aaah weights and
      oord, pulley%, gratea, nails,        door and vindov
      hinges, and other building haxdvaxe similar In
      kind, and.other Item% of bui+3ing suppllerr and
      n&erial    not inoluded In auoh artiolee       aa lum-
      ber, roofing,    tithinglee, lathe, aaeh, doora, and
      vindowa and aztlolee        of like +nd,   hereinafter
      called ‘other materiale,“~”
            Another important oonalderation     beera very dlreotly    up-
on the proper conatruotlon     to give to thla statute.     It 1% t&ie:
We think it warnnever intended br the Legislature        to perPlit Lum-
ber yarda dealing in building materiala In general liketiae         to
deal ln thoae articles    involved In the present inquiry--to      handle
euoh e??tlole;r tax free; and at the. same time to make those bual-
neea concern8 taxable~ which happed to deal alone in such fabri-
oated utllltiee.    Such a law, if It were Intended by the Legia-
lature, might be invalid as a diaoriminetion       vithout reaeonable
factual basla for different     legislative  treatment; but thie ques-
Won need not be decided eince our aoncluelon doea not twn upon
that oonaideratloni
           What we have raid here f$nde support in and la in her-
many with our OpinLon Ho. 0-2080,  dated Nay 2, 1940, addreared
to Honorable George H. Shepwd,    Comptroller  and a prior opin-
ion by tbla department, dated Jwwwy 3* 1936, llkevlae     addreeaed
to Honorable George II. Sheppard, Comptroller.
                                                                                                 e...-_
                                                                                                          356

Ronorable Qeorge B. Sheppard,                          page 20


           We will now annweIr your qwationa,   keeping in mind
that our anewera are limited   to the facts stated by you.     We
will endeavor to answer e8oh queatlon by raying "pa'       0~ 'no"
aa to whether the material deaorlbed in thb.queetlon.18      “bulld-
ing material,”  within the ae8nlng 0r this rtatute,    to-wit I
            1.    Cooling     Syetemar -
                  1-A.    Cooling        Syetem with Best          ‘Ilo.”
                  1-B.    Other Cooling            iyrtemat      “are.”
            2.    Heating 3yatemar          -
                  2-A.    ligtpg         Byatem with Oaa Floor            Furmae I
                               .
                  2-B.    %iReatlng              System with ?aa Burner:


            3.    ?Zxhawt F&I        (?LLtohen)8 -
                  3-A.    For Hoodat            90.’


                  3-B.    For Roomat            %O**


            4..   Ventilatorar       -
                  4-h.    Ventilatiore          in Foundation      8nd Below First
                          Bloor~l&~e:            jYea,'
                  4-B.:   ventilators
                          Fumes, Odor and Sewer Qaet                                             ~_’
                  4-O.    Ventilators           in Roof Conatruotlon*’             “Yea.”          :
            5.    EleotrloalPixturear                  -~
  .~,



                  5-A.    Eleotrlo        Wiring        and Conduit t     “Ys%aI:‘y’        ‘(   ~‘~,.
        :

 ‘.




                  5-B.    Eleotrioal        Llghtlng        Fixture%:       ‘“Bo.~
            6.    Gae Fixtures Forming an Integral                  Part-of        the
                  Struoturet  -
                  6-A.      Oaa Piping and Fittingat               “Yee,’      -
                            The roughing in.
Bonorabl?    George Ii, Sheppard, page 21


     7. Plumbing: -
            7-A.   Pipea and FIttAngs:               *Yea,"    - the
                   roughing In.
            7-B.   Plumbing Flxturea:               “l0.’


            7-c. Hot Yater Iieatlng Byetams                   “HO.’


            7-D.   lUtahen    Slnkat        'Ho."
            7-B. Septia Tenkar            “PO.*


     8. Carpenter~a Toola;             "lea.!

     9. Paint Bruehee:           "Yee."
    10.     Sand Paperr      “Yea.”
    il.     Barbed Wire, Woven Wire of all kinbe, %teel
            fence poate and m&al gates:      *HO," exaept
            that material deeoribed in thla question
            that la sometime% used fin the %on%truatlon
            of a building and la kept In %tOck in order
            to fill  auah neede Is bt.aildlq material.
    la.     Metal Tank IUaterlalar           RHO."

    13. lilndmill     Part%:        "Ho."
    14. Pump partar          Qo."

          Ue hope the foregoing opinion anawer8your questions,
and that It will be of value to you in adminlat%ring the T%xea
@haIn Store Tax Law.
                       ~~...
                                       Your6 very truly
