         THEATTORNEY                 GENERAL
                     OF    7lITExAs




Honorable J. N. Nutt             Opinion No. C-222
Commissionerof Insurance
1110 San Jaclnto                 Re: Whether out-of-state
Austin, Texas                        manufacturers,distrlb-
                                     utors and jobbers are
                                     required to obtain Ii-
                                     tenses pursuant to Section
                                     5 of Article 1725, Ver-
                                     non's Penal Code, and
Dear Mr. Nutt:                       related questions.
          You have requested an opinion of this office covering
several questions pertaining to administeringand enforcing the
provisions contained In Senate Bill No. 143, Acts 55th Legislature,
Regular Session, Chapter 498, page 446, codified as Article 1725,
Vernon's Penal Code. You point out that the responsibilityof
administeringand enforcing this Act is placed upon the State
Fire Marshal, and that the Commissionerof Insurance is designated
as State Fire Marshal by Article 1.09 of the Texas Insurance Code.
          An examinationof this Act indicates it has as Its
general purpose the regulation of fireworks within this State.
It is quite comprehensiveand you have asked several questions
concerning various provisions that might tend to burden lnter-
state commerce. As a prerequisiteto answering your questions,
therefore, an evaluation of the power of this State to adopt
such an act is outlined.
          The storing, handling, and use of inflammableand
explosive substances,being attended with danger, may be reg-
ulated under the police power. Thus the explosion of fireworks
may be prohibited; and a law prohibiting,except in certain cases,
the sale, offering, or exposing for sale and use, of fireworks
must be interpretedin the light of its general purpose, which is
the protection of the health, safety, and general welfare of the
public. 35 C.J.S. 248.
          Congress has recognized that the regulation of fire-
works is of individual concern to each State. It has acted to
strengthenand preserve unto the several states the right to
regulate fireworks by providing as follows:


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                                                             .      1




Hon. J. N. Nutt, page 2 (C-222)


           "Whoever,otherwise than in the course
     of continuous interstate transportationthrough
     any state, transports fireworks into any state,
     or delivers them for transportationinto any
     state, or attempts so to do, knowing that such
     fireworks are to be dellvered,possessed, stored,
     transhlpped,distributed, sold, or otherwise
     dealt with in a manner or for a use prohibited
     by the laws of such state specificallyprohibiting
     or regulating the use of fireworks, shall be fined
     not more than $l,OOO.OO or imprisonednot more
     than one year, or both.
          "This section shall not apply to a common
     or contract carrier or to Internationalor
     domestic water carriers engaged in interstate
     commerce or to the transportationof fireworks
     into a state for the use of Federal Agencies
     in the carrying out or the furtheranceof their
     operation.
         "In the enforcement of this section, the
    definitions of fireworks contained In the laws
    of thfirespective states shall be applied,
    . . . Title 18, Sec. 836,U.S.C.A.
This enactment of Congress is ample evidence that the right
to regulate fireworks clearly remains in the several states.
It follows that this State is authorized to provide for reason-
able regulations of fireworks.
          The questions you have asked concerningArticle 1725
are based upon an assumption that at the time.agreementsfor
the sale and purchase of the fireworks were entered into it was
the intention of the parties that the fireworks in question would
be held for resale or for further distributionand ultimate retail
consumptionor use in the State of Texas. This assumption is the
basis for considerationof your first series of questions,which
are here set out:
          "1. (a) Are out-of-statemanufacturers,
     distributors,and jobbers required to obtain
     licenses pursuant to Section 5 of the Act?
              (b) Does the term tout-of-state"aS
    used in Section 5 of the Act include manufacturers,
    distributors,and jobbers who are located or
    domiciled in foreign countries?


                           -1071-
Hon. J. N. Nutt, page 3 (C- 222)


          “2. Does the purchase by a distributor,
     jobber or retailer of permissible fireworks
     from an unlicensed out-of-statemanufacturer
     or importer for resale in Texas violate the
     provisions of Section 5I or Section 5J of the
     Act if the actual contract of purchase was
     consummatedoutside of Texas and delivery
     Is made through a distributor, jobber or
     retailer outside the State?
          "3. Identical question as No. 2 above
     except that delivery is made to the distributor,
     jobber or retailer In Texas.
          "4. Identical question presented in No. 2
     above except that the contract Is consummated
     in Texas.
         "5. Identical question presented in No. 2
    above except that the sale is consummatedin
    Texas and delivery Is made to thendIstrIbutor,
    jobber or retailer in this State.
          The provisions of Section 5 which provide the basis
for the above questions are as follows:
          "A. A license fee of $500.00 per year,
     due and payable on or before February 1st of
     each and every year beginning February 1, 1958,
     to the State Fire Marshal subject to the pro-
     visions of Section 12 of this Act, will be
     charged for the permit to manufacture,possess
     and sell fireworks. The manufacturermay manu-
     facture, possess and sell items other than those
     enumerated in Section 2, but for sale and delivery
     only to states where other types of fireworks
     are legal but may not be sold or used in the
     State of Texas.
         "The same license fee will apply to and
    shall be paid by any and all out-of-state
    manufacturersoffering goods for sale in the
    State of Texas, as a condition to their sale
    in Texas.
          "B. A similar license fee of $750.00
     annually, due and payable on February 1st of


                           -1072-
Hon. J. N. Nutt, page 4 (C- 222)


    each and every year, as provided in Section
    5A above, will be charged all distributors
    who possess and sell the fireworks enumerated
    in Section 2.
         "The license fee provided herein shall
    be due and payable by all out-of-statedis-
    tributors offering goods for sale within the
    State of Texas.
         "C. A license fee, due and ayable as
    provided in Section 5A above, of i500.00 per
    year, will be charged all jobbers who possess
    and sell the fireworks enumerated in Section 2.
         ?rhe license fee provided herein shall
    apply to and be payable by out-of-statejobbers
    as a condition for selling within the State of
    Texas.
         1,
          . . .
          "I. No person, firm, corporation or
     association shall deliver fireworks for re-
     sale to any individual,firm, corporationor
     associationunless consignee produces a li-
     cense or evidence that consignee holds such
     a license.
         "J. No distributor,jobber or retailer
    shall purchase fireworks from a factory, distrib-
    utor, jobber, manufacturer or salesman without
    first requiring proof that the license required
    of each herein has been obtained. No license
    provided for hereinabove shall be transferable
    nor shall a jobber or salesman be permitted to
    operate under a license granted a distributor."
         Concerning the above provisions as they pertain to
the questions you have asked, you state In your letter as
follows:
          "The Department has not adopted any formal
     departmental constructionconcerning the above
     questions. It has, however, been the position
     of the Department that any attempt to strictly
     enforce the license requirementsinsofar as
     out-of-statemanufacturers,distributorsor


                            -1073-
Hon. J. N. Nutt, page 5 (C -222)


    jobbers are concernedwould result in placing
    a burden upon or an Interferencewith inter-
    state commerce In violation of the Federal
    Constitutionif the transactionsInvolved
    were essentially interstatein character. It
    has further been the position of this office
    that any out-of-statemanufacturer,distributor
    or jobber who actively solicits business or
    offers to sell fireworks through Its sales
    representativesin Texas or is otherwise
    engaged in local activities which would
    constitute the transactionof business in
    Texas should be required to obtain the proper
    license. . . .'
          In examining your questions and the provisions of
the Act concerned, the views of your Department are of great
assistance In guiding this office toward an answer to your
questions. As has been emphasized, "the practice and inter-
pretive regulationsby officers, administrativeagencies,
departmentalheads and others officially charged with the
duty of administeringand enforcing a statute will carry
great weight in determining the operation of a statute.
Vol. 2, Sutherland Statutory Construction,p. 514.
          It Is of value to recall that the general purpose
of this Act is the protection of the health, safety, and
general welfare of the public. Obviously, the Act is primarily
soncerned only with persons and property within this State, as
 every state possesses exclusive jurisdictionand sovereignty
over persons and property within its territory. Conversely,
the jurisdictionof a state Is restricted to its own territorial
limifrsand does not extend beyond its boundaries." 81 C.J.S.
&I.
          As a further aid to arrivfng at answers to your
questions, it is helpful to examine the authority of the
officer charged with the responsibilftyof administeringand
enforcing the Act. Article 5.44 of the Texas Insurance Code
sets out the authority of the State Fire Marshal in detail.
Essentially it is that of fire prevention and investigation.
Among the definitions set out in Section 1 of the Act in
question is the following:
         "State Fire Marshal--The chief law
    enforcement officer of the State of Texas
    charged wit! the responsibilityof fire
    prevention.


                           -1074-
Hon. J. N. Nutt, page 6 (C-222)


          Turning now to your questions l(a), It is primarily
governed by the provisions of Section 5, A, B and C quoted
above. The language used therein is clear and does not warm-
rant an extended discussion. A license is required of manu-
facturers, distributorsand jobbers in this State. Then,
additionally,the same license is required of out-of-state
manufacturers,distributorsand jobbers offering goods for
sale in the State of Texas, as a condition to their sale In
Texas.
          Question l(a) is answered in the affirmative. Out-
of-state manufacturers,distributorsand jobbers, who offer
fireworks for sale In the State of Texas are required to obtain
the appropriate license as a condition to sell such fireworks
‘inthe State of Texas.
          Question l(b) is answered by another provision
contained in the Act. The Legislaturewas obviously aware
that many fireworks reaching this State would come from foreign
sources of supply, and provided In the Act for requiring a
license of the importer, as follows:
          "E. An annual license fee, due and payable
     as provided in Section 5A above, of $100.00
     shall be due and payable by each importer who
     possesses and sells the fireworks enumerated in
     Section 2 above to any persons, firms, corpora;
     tion or associationwithin the State of Texas.
By applying the license requirementat the source of importation,
the Act precludes the suggestionthat the term 'out-of-state"as
used therein, was intended to include manufacturers,distributors,
and jobbers who are located or domiciled in foreign countries.
          Question l(b) Is answered in the negative.
          Your remaining questions 2 through 5 are each based
upon a certain state of facts. The facts are varied in each
instance to provide the basis for the question. As the facts
posed in each question are presumably founded on experiences
your office has faced in admlnisteringand enforcing the pro-
visions of this Act, your Department'sposition is a guiding
factor in arriving at a constructionof the Act.
          It should be noted here that paragraph "I" of Section
5 does not appear to except any person, firm, corporationor
associationfrom its coverage. It requires every person, firm,
corporationor associationto ascertain that the consignee of
fireworks has the license required under this Act, before delivery

                            -1075-
Hon. J. N. Nutt, page 7 (C-222)


Is made. Paragraph "J" requires the opposite, that is, it requires
that the distributor,jobber, manufactureror salesman selling
the fireworks have the license required by the Act. It is im-
portant to note, however, that the Act does not require ally
manufacturers,distributors,and jobbers to become licensed--
only those located here in Texas or who offer fireworks for
sale in Texas.
          Question No. 2 is answered as follows: The purchase
by a distributor,jobber or retailer of permissible fireworks
from an unlicensed out-of-statemanufacturer or importer for
resale in Texas does not violate the provisions of Section 51
and J, If the contract of purchase was consummatedoutside of
Texas and delivery Is made through a distributor,jobber or
retailer outside the State.
          Question No. 3 is considered in accordance wigethe
position of your Department, and answered as follows:
purchase by a distributor, jobber or retailer of permissible
fireworks from an unlicensed out-of-statemanufacturer or
importer for resale in Texas does violate the provisions of
Sections 5I and J if the actual contract of purchase was entered
into outside of Texas and delivery is made to the distributor,
jobber or retailer in Texas by the manufacturer-orimporter.
          As a supplementto the answers given to Questions
2 and 3, it may be noted that the failure of such out-of-state
person, firm, corporation or association selling such fireworks
outside of this State to a distributor,jobber or retailer from
this State to require proof that the consignee holds the license
requfred by this Act, might be a violat,ion.However, the Federal
Act quoted above would have to be resorted to in order to effec-
tuate any punishment that might be due for such violation.
          Questions Nos. 4 and 5 are answered together, and
again due considerationIs given to the position your Depart-
ment has taken In administeringand enforcing the provisions
concerned. Both questions are answered in the affirmative;
such a purchase is in violation of the provisions stated as
the consummationof the contract within this State would re-
quire acts which would constitute or be equivalent to offering
goods for sale in this State so as to bring the parties within
the purview of the license requirements.
          You next ask the advice of this office in a second
series of questions concerning the provisions for public dis-
play of fireworks. Sections 9 and 10 are pertinent portions
of the Act relating to these questions and you state there is


                            -1076-
Hon. J. N. Nutt, page 8 (C-222)


no establisheddepartmentalconstructionon the points raised.
         "1. Is a person required to hold a
    distributorslicense before making any public
    display of fireworks in Texas. It is assumed
    that the person making the public display of
    fireworks will be in possession of Class A
    and/or Class B fireworks for such purpose.'
          Section 1 of the Act defines Class A fireworks as:
"Those fireworks defined in Section 10 of this Act and not
otherwise;" and Class B fireworks as : "Shall Include all
types of dangerous fireworks excepting fireworks designtted
as ICC Class C Common Fireworks and Class A Fireworks.
          Section 2 of the Act provides: "It shall be un-
lawful for any individual,firm, partnership,corporationor
associationto possess for sale within the state, sell or
offer for sale, at retail, or use, within the State of Texas,
any fireworks other than the permissible fireworks herein
enumerated." The permissible fireworks enumerated in this
section are limited to ICC Class C Common Fireworks only, and
thus, at this point, Class A and Class B fireworks are not
permissible fireworks. There follows later in the act, how-
ever, Section 9, the pertinent portion of which Is as follows:
         "Sec. 9. Be it further enacted, that no
    person, firm, corporationor associationwithout
    securing a permit from the State Fire Marshal,
    shall manufacture,possess or sell any dangerous
    fireworks for any use or purpose, including
    agriculturalpurposes or wild life control.
    Before any dangerous fireworks may be manu-
    factured, possessed, sold or used, a permit
    therefor specifyingthe uses to be made there-
    of mu@ be secured from the State Fire Marshal.
    . . .
          As the provisions of Section 9 are special pro-
visions coming later than the general provisions of Section
2, they must be regarded as an exception. The rule for statu-
tory constructionin this situation is stated in 39 Tex.Jur.,
Statutes, Sec. 114, as follows:
         "In case of conflict between a general
    provision and a special provision dealing with
    the seme subject, the former is controlled or
    limited by the latter; and this iS so whether


                            -1077-
I.   -




         Hon. J. N. Nutt, page 9 (C-.222)


              the provisions in question are contained in the
              same act or in different enactments. In other
              words, when a statute makes a general provision
              apparently for all cases and a special provision
              for a particular case or class, the former yields
              and the latter prevails in so far as the particular
              case or class is concerned. In such circumstances,
              the special provision or statute Is regarded as
              though It were an exception or proviso, removing
              something from the operation of the general law."
                   Section 10 rovldes a comprehensivemethod for
         granting permits andPor a general license for the purpose of
         public display of dangerous fireworks. As you pointed out in
         your letter, the last sentence of this Section prompts the above
         question, this sentence being:
                   'For purposes of license the sale and/or
              possession of Class A and Class B fireworks
              only, as described hef;ein,shall require a
              Distributor'spermit.
                   A careful examinationof the entire Act reveals
         that the words 'license'and "permit" are used frequently
         in the major portions of the Act. It is, however, Important
         to note that this use is confined so that the terms are not
         used interchangeablyso as to refer to the same authority.
         These two terms are so carefully used throughout the Act that
         to say that "license" should have been used In the place of
         'permit" in the last sentence of Section 10 quoted above is
         to impute a mistake in terminologywhich the Act as a whole
         consistentlyrefutes. It is the opinion of this office that
         a person is not required to hold a Distributorlslicense before
         making any public display of dangerous fireworks in Texas, but
         a permit issued by the State Fire Marshal as authorized in Sec-
         tion 9 is required of such person and the display license as
         provided in Section 5H is also required.
                   "2. If you have answered Question No. 1
              above in the affirmative,then please advise
              If the applicant for a permit to publicly
              display fireworks should be required to fur-
              nish proof that such license had been obtained
              before the applicationfor a permit is approve+
              and the permit issued by the proper authority.
                   In view of the answer given to No. 1, this question
         is not answered.


                                    -1078-
Hon. J. N. Nutt, page 10 (C-222)


         “3. Is a person who makes a public display
    of Dangerous7 fireworks required by the Act to
    puraase or zcquire such fireworks only from a
    duly licensed manufacturer,distributor,jobber,
    retailer or Importer?"
          Reference is made to the prior answers given herein
for the basis for the answer to this question. Again it is
p~ointedout that the purpose of this act is the protection of
the health, safety, and general welfare of the public. It is
not the purpose of this Act to prohibit citizens of this State
from purchasing such fireworks from manufacturers,distributors,
jobbers, retailers and importers of other states, but it is to
provide for a maximum amount of protectionif such fireworks
are manufactured,possessed, sold or used within this State.
          Question No. 3 is answered by stating that if such
fireworks for public display are purchased or acquired within
the State of Texas, the same are required to be purchased or
acquired through a manufacturer,distributor, jobber, retailer,
or importer who holds a permit issued by the State Fire Marshal
pursuant to the provisions of Section 9 of the Act.
         “4.  If your answer to Question No. 3 is
    in the affirmative,then please advise if a
    person who makes a public display of fireworks
    is prohibited by the Act from purchasing or
    acquiring such fireworks from an unlicensed
    manufacturer,distributor,jobber, retailer or
    Importer outside of the State of Texas, either
    by delivery in or out of the State; and if the
    Act so provides, If such provision is valid
    under the Federal Constitution."
          In view of the answers given hereinabove, it is
the opinion of this office that the Act does not prohibit a
penson who makes a public display of dangerous fireworks from
purchasing or acquiring such fireworks from an unlicensed manu-
facturer, distributor, jobber, retailer or importer outside of
the State. It Is, however, our opinion that delivery of such
fireworks within this State would necessitate that the persons
so delivering and receiving such fireworks have the proper
permits Issued by the State Fire Marshal as authorized in
Section 9 of the Act.
                     SUMMARY
          Article 1725, Vernon's Penal Code, requires
     all out-of-statemanufacturers,distributors


                           -1079-
Hon. J. N. Nutt, page 11 (C-222)


    and jobbers, who offer fireworks for sale in
    Texas to obtain a license as a condition to the
    sale thereof. The term "out-of-state"as used
    does not include manufacturers,distributors,
    and jobbers located or domiciled in foreign
    countries. Purchases of permissible BCC Class
    C Common Fireworks7 fireworks consummaed outside
    this State, with ireliverymade outside this State
    do not violate this Act; but,fif the contract for
    purchase is entered outside this State and the
    manufacturer or Importer makes delivery within
    this State, such purchase does violate this Act.
    All purchases made, however, within this State
    are subject to this Act so as torequire the
    parties to such sale to have the appropriate
    license.
         A.person Is not required tohold a dis-
    tributor's license in order to make a public
    display of dangerous mass A and Class B
    Fireworks7 fireworks rn Texas, buta permit
    as issuer by the State Fire Marshal pursuant
    to Section 9 Is required. Dangerous fire-
    works for public dlsplay,ifpurchased or ac-
    quired within the,State.ofTexas must be
    purchased or acquired through a manufacturer,
    distributor,jobber, retailer or importer
    holdlng~a permit issued by the State Fire
    Marshal pursuant to Section'g. The Actdoes
    not prohibit purchase or acquisition of dan-
    gerous fireworks for public display from an
    unlicensed manufacturer,distributor,jobber,
    retailer or importer outside of Texas, but
    delive'ryof such fireworks within this State
    would require the proper permits pursuant to
    Section 9 by the party delivering and receiving
    such fireworks.
                             Very truly yours,
                             WAGGONER CARR
                             Attorney General




LCM:mkh

                           -1080-
                                       .




Hon.'J. N. Nutt, page 12 (C-222)


APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
John Reeves~
Joe Trimble
;. .;.;hu;tz
 . .
APPROVEDFOR THE ATTORNEY Gm
BY: Howard W. Mays




                              -1081-
