        THEA~ORNEY                 GENERAL
                     OFTEXAS




Honorable George H. Sheppard
Comptroller of Public Accounts
Austin, Texas
Dear Sir:                        Opinion No. O-2776
                                 Re: Are nurseries which main-
                                      tain places of business
                                      for the sale of trees,
                                      plants, etc. from which
                                      places of business such
                                      commodities are sold sub-
                                      ject to the payment of the
                                      Texas chain store tax?
        We are in receipt of your letter of October 21, 1940,
In which you request the opinion of this department as to whe-
the or not a nursery which maintains a place of business for
the sale of trees , plants, etc. and from which place of busI-
ness such commodities are in fact sold is subject to the chain
store tax. As we understand the facts submitted, the estab-
lishment in question is a building in which a numberof trees,
plants and shrubs, etc. are kept and exhibited for sale to the
public although some of such commodities are also sold from the
fields where raised. The Legislature of Texas has defined the
term "store" in the Texas Store Tax Act (Act, lllld of Vernon's
Annotated Penal Code) as follows:
        'Sec. 7. The term 'store' as used In this
    Act shall be construed to mean and Include any
    store or stores or any mercantile establishment
    or establishments not specifically exempted wlth-
    in this Act which are owned, operated, maintained,
    or controlled by the same person, agent, receiver,
    trustee, firm, corporation, copartnership or as-
    sociation, either domestic or foreign, In which
    goods, wares or merchandise of any kind are sold,
    at retail or wholesale,"
        In commenting on said definltion of the term "store"
the Commission of Appeals of Texas in the case of Hurt v. Cooper,
110 S.W. (2) 896, stated as follows:
        " The statute having defined the word, we
    are not concerned with its usual meaning. under
Hon. George H. Sheppard, page 2        o -2776


   that definition a mercantile establishment at
   which goods, wares, or merchandise of any kKd,
   except those exempted, are soid is a store and
   is taxable as such, ana this even though it ma
   also be a distributing point." (Emphasis ours7
        We are unable to find any case either In this State
or in any state in the United States in which the court has
passed on the question of whether or not a nursery establish-
ment is subject to the payment of a chain store tax as being
a store or mercantile establishment. However, the Supreme
Court of Illinois in the case of Swain Nelson and Sons Company
v, Department of Finance, 6 N.E. (2) 632, in construing the'tax
of that state levied on the retail sales of tangible personal
property stated as follows:
        "A portion of appellant's business embraces
    sales of trees and shrubs to customers, with
    delivery either at appellant's premises or at
    such places as may be designated by the purchaser,
    Tax liability on such sales is admitted and Is not
    here involved."
        The Commission of Appeals of Texas in the case of Con-
tinental Paper Bag Company v. Bosworth, 276 S.W. 170 stated as
follows:
        "In American usage, the word 'store,' when
    employed to designate a place of business, is
    a broad one. It signifies not merely a ware-
    house, storehouse or storeroom, but may include
    in its meaning a business establishment where
    personaltg is kept and sold, and incidentally
    gotten in salable condition."
        The term "mercantile establishment" is defined in 21
C, J, 904 as follows:
        "A place where the buying and selling of
    articles of merchandise as an employment is
    conducted,
        It IS the opinion of this department that a place of
business established for the sale of trees, plants, etc. from
which place of business such commocli.ties
                                         are sold Is a "store"
as that term is defined in the Texas Chain Store Act, supra,
and such-place of business is subject to the payment of’the
chain store tax.
       We call your attention to the fact that the Attorneys
Hon. George PI,Sheppard, page 3          o-2776


General of two other states have ruled on this same question
that you present here. The Attorney General of Indiana in
an opinion to the state tax commissioner dated December 18,
1931, ruled as follows:
        "Nurseries: Selling trees, plants and vines.--
    If such nurseries maintain a place for the sale
    and are engaged in the business of selling trees,
    plants and vines which have been severed from the
    place where grown, it is my opinion that such nur-
    series come within the definition of a mercantile
    establishment and are engaged in the sale of goods,
    wares and merchandise and are liable for the pay-
    ment of such license fees."
        The Attorney General of Colorado ruled as follows:
        "Nurseries--Selling trees, plants and vFnes.--
    If such nurseries maintain a place for the sale
    of and are engaged in the business of selling trees,
    plants and vines, which have been severed from the
    place where grown, it is this department's opinion
    that such nursery could come within the definition
    of a mercantile establishment engaged in the sale of
    goods, wares and merchandise, and therefore liable
    for a store license."
        We believe that the Attorney Generals of Colorado and
Indiana have correctly construed chain store tax legislation
similar to our law in applying the same to the type of nursery
discussed therein, It is our opinion that such a place of bus-
iness as in the facts submitted is subject to the payment of
the Texas chain store tax,
                                  Yours very truly
                             ATTORNEY GENERAL OF TEXAS


                                  By s/Billy Goldberg
                                       Billy Goldberg
                                     -Assistant
BG :rw:wc
APPROVH) NOV 4, 1940
s/Gerald C, Mann
ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee By s/BWB Chairman
