Honorable A. E. Wood, Chairman
Game, Fish & Oyster Commission
Austin, Texas
Dear Slr:            Opinion No. O-1596
                     Re: Must a Wholesale Fish Dealer have
                          a license for each receiving sta-
                          tion under Article 934a, Penal
                          Code, 1925 as amended.
        We are pleased to reply to the request made~bg you
in your letter of October 18, 1939, wherein you sag:
        "Before any person in this State shall engage
    in the business of a '. . . Wholesale Fish Dealer'
    he shall first procure from the Game, Fish & Oyster
    Commission a license authorizing him to engage in
    this business. Under Section 3 of the amended Act
    it is provlded:
        ff t .
           . . 2. Wholesale Fish Dealer's
      License, fee for each place of business,
      Two Hundred Dollars ($200.00).'
        "The pertinent part of Paragraph 11 of Section
    3 of the amended Act is as follows:
       "'11. Place of business, as used
      In this Act, shall Include the place
      where orders for aquatic products are
      recelved, or where aquatic products
      are sold. . . .'
       "We havesome fish dealers on the Texas Coast
   with headquarters in Corpus Christi. They are
   wholesale dealers within the purvue of the above
   Act. We likewise have Wholesale Fish Dealers
   wlth headquarters In Rockport and other places on
   the Texas Coast. Each dealer purchases a Whole-
   sale Fish Dealer's License and have it displayed
   in the'irplace of business at their headquarters.
   Each dealer has what he calls receiving stations
   up-.anddown,the coast. Some ~ofthese receiving
   stations are at Port Isabel, a distance of one
Honorable A. E. Wood, page 2        o-1596


   hundred and fifty miles from Corpus Christi. At
   these receiving stations they do not have license
   displayed. In fact they have no Wholesale Fish
   Dealer's License for this place of business. They
   ship fish from saidreceiving stations to points
   over the State. The fish are not always transport-
   ed from the receiving station to the headquarters
   place of business for shipment but are shipped di-
   rect from the receiving station to the retail deal-
   er In different sections of the State. The orders
   are first received at their headquarters and re-
   layed or transmitted from headquarters to the re-
   ceiving station and shipped from the receiving
   station, as above outlined. Some of these dealers
   purchase fish from independent flshermen and the
   fish thus purchased are delivered to the so-called
   receiving stations.
        "We would like for you to advise us if the re-
    ceiving station is a place of business as defined
    in Paragraph 11 of Section 3 'of the above Act. Is
    it a place where orders for aquatic products are
    received?"
        Under the facts given us in your letter, it is our
opinion that the receiving station is a place of business as
defined in Paragraph 11 of Section 3 of the above Act, which
is Paragraph 11 of Section ,3,Article 934a of Vernon's Penal
Code, 1925, as amended 1934.
        In arriving at this conclusion, It was necessary for
us to give particular attention to the history of these sta-
tutes. On October 16, 1933, House Bill No. 81 (Generaland
Special Laws of Texas, Forty-third Legislature, First Called
Session, 1933, page 85) was approved and became effective
ninety days after adjournment. This Bill provided, In part,
on page 86:
        “Sec. 3. The licensesand the fees to be
    paid for the same, are hereby provided for in
    this Act and are as follows:
        "1 . Commercial Fisherman License, fee Three
    Dollars ($3.00).
        "2 . Wholesale Fish Dealer License, fee Two
    Hundred Dollars ($200.00).
        "3. (a) Retail Fish Dealer License, fee
    Three Dollars ($3.00) in any city or town of less
    than five thousand (5,000) population.
‘   ,




    Honorable A. E. Wood,        page 3         o -1596



               "(b) .,Retail Fish Dealer License, fee Ten
           Dollars ($lO..OO)in any city or town of not less
           than five thousand(5,OOO) and not more than
           Porty~thousand (40,000) populatfon.
               "(c) Retail Fish Dealer License',fee Twenty
           Dollars ($20.00)in.an city or town of more than
           forty thousand (40,0007 population.
                91     Bait Dealer License!,fee Two Dollars
            ($2.o&;”
                . . . . II
            In each of:the above quoted subsections of Section 3,
    provision was ms@e only for the payment of a certain feelfor
    a particular lloense. No provision was made for the payment
    of a fee for each place of business. For instance, subsection
    2 of Section 3, provided, "Wholesale Fish Dealer License fee
    Two Hundred Dollars ($200.00)". and did nbt wovide.  ?&Ale-
    sale Fish Dealer.License fee for.each nlace‘of business, Two.
    Hundred Dollars. ($200~.
                     ..   .ooj". Thus, under this statute of 1933,
    it would seem that a wholesaler would have been required-to
    pay only one fee, regardless of the number of places'of busl-
    ness which he might have, and this was indicated bg.the court
    in the case of Ex parte Mehlman (Ct. Crim. App. 1934), 75 S.Y.
    (26) 689. In this case the court said, on page 692:

                "It Is shown Fn the statement of facts be-
            fore us that in the city of Dallas there are sys-
            tems of chain stores. For example, the owner of
            one system operates a number of places of business
            in the city. He pays one annual tax for a license:
            to retail fish, and carries on the business In each
            of his several stores. The facts further show that
            relator owns one place of business. URon this sltu-
            ation the'contention Is predicated that the act is
            discriminatory:~ Relator is not inhibited by the act
            from onerating as manv stores in'the cltr of Dallas
            as he desires under a single retail fish-dealer's
            license. As far as the law Is Concerned, every re-
            tail dealer within a given city is accorded equal pri-
            vileges. It is true that the owners of a system of
            chain stores in a city might do a greater volume of.
            business than the owner of a single store. However,
           ':thismight obtain as between two proprietors each
            owning a single store." (Italics ours)
                We would call particular attention to the fact that
        this case was decided on June 13, 1934. After this case was
Honorable A. E. Wood , page 4         o-1596


handed down, and on September 26, 1934, House Bill No. 31
(General and Special~Laws of Texas, Forty-third Legislature,
Third Called Session, 1934, page 83, which is Article 934a,
Vernon's Penal Code of Texas, 1925, as amended 1934), was
approved, and under the emergency clause, became effective as
of this date. This bill, which was passed subsequent to the
decision of the Texas Court of Criminal Appeals In the case
of Ex parte Mehlman, provides, in part:
        "Section 1. That Section 3 of House Bill No.
    81, Chapter 29, Acts First Called Session, Forty-
    third Legislature, be and the same is hereby amend-
    ed so as to hereafter read as follows:
        "'Section 3. The licenses and the fees
       to be paid for the same are hereby provided
       for in this Act and are as follows:
        '1
         '1   Commercial Flsherman's License, fee
       Three Dollars ($3.00).
        11‘2  Wholesale Fish Dealer's License, fee
       for each place of business Two Hundred Dol-
       lars ($200.00). (Italics &rs)
        ‘1t3. (a) Retail Fish Dealers' License,
       fee Three Dollars ($3.00) for each place of
       business in each city or town of less than
       seven thousand five hundred (7,500) popula-'
       tion.
        v'(b) Retail Fish Dealers' License, fee
       Ten Dollars ($10.00) for each place of bus-
       iness in each city or town of not less than
       seven thousand five hundred (7,500) and not
       more than forty thousand (40,000) population.
               . . . . . .t11
        AS pointed out, House Bill No. 81, supra, did not pro-
vide that a fee should be paid for each place of bus~lness,and
under the above-mentioned bill it was possible for a chain of
stores, within a city, to pay only one fee regardless of the
number of stores operated. This, likewise, would have been
true under the above mentioned bill, In regard to its operation
as to wholesalers, because Section 2 of House Bill No. 81 pro-
       "Wholesale Fish Dealer License, fee Two Hundred Dollars
            and did not include the provision, "for each place
            .
,   .




    Honorable A. E. Wood, page 5         o-1596


            The Legislature, approximately three months after the
    decision in Ex parte Mehlman, amended House Bill No; 81 SO as
    to make the pertinent subdivisions Include the phrase, 'for
    each place of business" (House Bill No. 31, General and Special
    Lawsof Texas, Forty-third Legislature,~Third Called Session,
    1934. Article 934a, Vernon's Penal code;l925, as amended
    1934L The legislative intent was to require a license to be
    obtained and a fee paid for each place of business, and this
    leglslatlve intent is indicated in the emergency clause (Sec-
    tion 3 of House Bill No. 31, General and Special Laws of:
    Texas, Forty-third Legislature, Third Called Session, 1934,
    at page 84), which provides:
            "The factthat the present law does not re-
        quire a separate fish dealer's license for each
        place of business operated by a fish dealer, and
        the further fact that chain stores under the ex-
        isting law may operate any number of stores
        throughout Texas.by paging one (1) wholesale fish
        dealer's license, and the fact that such a con-
        ditionworks to the benefit of the chain store,
        and the further fact that the failure of such
        original Act-to provide for the posting of such
        license in each place of business, rehclemithe
        enforcement of the Act difficult, create an em-
        ergency and an Imperative public necessity au-
        thorizlng the suspension of the Constitutional
        Rule requiring bills to be read on three several
        days in each House, and said Rule is hereby sus-
        pended, and this Act shall take effect and be
        fn force from and after its passage, and It is
        so enacted."
            It is true that, in the case of Ex parte Mehlman, the
    court was concerned only with retail chain stores; however, the
    Legislature, in its amendment, aid not limit its action to re-
    tail stores, but in subsection 2 of Section 3 of House Bill
    No. 81, supra, provided that wholesalers must pay a fee 'for
                                                             -
    each nlace of business."
            It was, then, the manifest intention of the Legiala-
    ture to require Wholesale Fish Dealers to pay a fee for each
    place of business. Since this was the clear intent of the
    Legislature, we must "construe the statute so as to give effect
    to the purpose ,of the Legislature' (39 Texas Jurisprudence,
    p. 169, sec. 90); and since this legislative intent is ascer-
    tained, it "must be given effect if it is legal1 possible to
    do so(' (39 Texas Jurisprudence, p. 171,~sec. 907 .
           With these last rules of statutory construction In
                                                                .   .




Honorable A. E. Wood, page 6        o-1596


mind, we turn to the definition of "place of business" as set
out in subsection 11 of Section 3 of House Bill No. 31, supra,
which provides in part:
        "Place of business as used in this Act,
    shall lncluae the place where orders for aquatic
    products are received, or where aquatic products
    are sold, and if sold from a vehicle, the vehicle
    on which, or from which such aquatic products
    are sold, shall constitute a place of business. ."
    (Italics ours)
        By this definition, a 'place of business" Is not lim-
ited to a place "where orders for aquatic products are re-
ceived or where aquatic products are sold.   The word "include"
in its usual and ordlnarg meaning is a word of enlargement
and not a word of llmltatlon.   This construction is substan-
tiated by the late case of Peerless Carbon Black Co. vs. Shep-
pard, et al (Ct. Civ. App. 19381, 113 S.W. (:a) 996. In that
case a statute imposed an occupation tax on every person in
this state manufacturing or producing carbon black and pro-
vided "(f) The term 'carbon black' as herein used includes
all black pigment produced in whole or In part from natural
gas, casinghead gas, or residue gas by the impinging of a
flame upon a channel disk or plate,.and.the tax herein imposed
shall reach all products produced in such mannner." (Italics
ours)
        The appellant company manufactured carbon black by a
fourth method, not speclfically provided for by paragrapkhi;)
of the statute, supra, and paid the tax under protest.
brought suit to recover such taxes, contending that they were
exempt because the statute did not speclfically mention their
method of manufacturing carbon black.
        In holding for the appellee the court said, on page
997:
         "'The word "includes" is not, ordinarily, a
    word of limitation, but rather of enlargement.'
    Fraser vs. Bentel, 1.61Cal. 390, 219 P. 509, 511,
   -Ann. Cas. 1913B, 1062. . . . In 31 C. J. 395,
    1 3C, it is said that while the word 'including'
    is susceptible of d.ifferentshades of meaning,
     'it IS generally employed as a term of enlarge-
    ment and not a term of limitation, or enumeration.'
    The cases cited from numerous jurisdictions sus-
    tain this text. , . .'
       Since we follow the case of Peerless Carbon Black Co.
,   .’   .




         Honorable A. E. Wood, page 7         O-1596


         vs. Sheppard, supra, a "place of business" as   defined in sub-
         section 11 of Section 3 of House BLll No. 31,   supra, is not
         limited to a place -"whereorders for aquatlce   products are
         received or where aquatic products are sold",   but includes
         any place which Is a "place of business".
                 The case of Stephenson vs. Prlmrose (Alabama 18381,
         8 Porter 155, 33 Am. Dec. 381, holds on page.287:
                 "Theterm   'business', in common parlance,
             means that employment which occupies the time,
             attention, and labor. . . . . And a place of
             business must be understood to be a place
             actually occupied, either continually or at
             regular periods, by a person or his clerks, or
             those ln his employment. . . . ."
                 In the case of Terry Dairy Co. vs. parker (Sup. Ct.
         Ark. 1920); 223 S. W. 6, the facts were:
                 The Dairy Company had its domicile andKprlncipa1 of-
         fice and place of business in Little Rock, Arkansas! They
         also had a frame building at Razen, Fn Prairie County, on
         which was painted "TerryDaIry No. 3". "It was apoellant's
         recelvlng station." (Italics ours) It was the dutgofthe
         attendant at the “receiving  station" to receive the milk sent
         in to the statton by the farmers. He was not paid to sollcFt
         anything, "He was to weigh up the farmers' milk, put Ft in
         cans, and ship It to appellant at Little Rock. . . .'I. It
         was the duty of the attendant at the receiving station to
         operate a cooling unit at the station; and to receive milk
         brought ,to the station, but he had nothing to do with firing
         the price; the farmers would write to the appellant at Little
         Rock asklng what they were going to pay. In holding that
         this receiving station was a "place of business", and there-
         fore that servl.ceon the agent was valid service on the ap-
         pellant, the aourt said:
                 "The Pacts of the present case show that
             the appellant was maintalnlng at the town of
             Rasen a place where it was conducting a well-
             defined lines .oP Its business. The appellant,
             as Ft.9name Implies, Is engaged in a business
             In which a supply of milk is Indispensable.
             For its convenience it had a building on the
             railroad equipped with machinarg, which it des-
             ignated as its plant No. 3. This building hacl
             in it a desk which the agent in charge used. in
             making daily reports of the business. The agent
             was employed on a salary. The building was
Honorable A. E. Wood, page 8         O-1596


    equipped with the necessary machinery for cool-
    ing the mtlk, and the business of the company
    was that of obtaining Prom the farmers in that
    locality a supply of milk to be shipped to Its
    principal place of business at Little Rock.
    The bullding was duly equipped and appointed,
    and the agent was supplied with the necessary
    material for successfully conducting that part
    of appellant's business.
        After ascertaining that the manifest intention of the
Legislature was to require wholesale fish dealers to pay a fee
for each place of business, and, since the word "Include",
under the authorities, is not a word of limitation or enumera-
tion but rather one of enlargement, under the usual and ordl-
nary meaning of the phrase "place OP buslness" (and in line
with the cases of Stephenson vs. Primrose, supra, and Terry
Dairy Company vs. Parker, supra), we are of the opinion that
the receiving stations of the Wholesale Fish Deal~ers,which
you describe In your letter of October 18, 1939, are places
of'buslness wlthln the purview of the House Bill No. 31; Gen-
eral and Special Laws of Texas, Forty-third Legislature, ThlM
Called Session 1934; Vernon's Penal Code, 1925, Article 934a,
as amended 1934..
                                Yours very truly
                               ATTORNEYGENERAL OF TEXAS

                                By s/Walter R. Koch
                                     Walter R. Koch
                                          Assistant
                                By s/Harry Shuford
                                     Harry Shuford
RS :GO:wc

APPROVED NOV 17, 1939
s/Gerald C. Mann
A!iTORN?XYGENERAL OF TEXAS

Approved Opinion Committee By s/BWB Chairman
