_   *




             THE    Aaroruv~~         GENERAL
                         OFTEXAS




    Honorable Thos. A. Wheat
    County Attorney
    Liberty County
    Liberty, Texas
    Dear Sir:            Oplnlon No. 0-920
                         Re:  Is a merchant, selling drygoods
                              from a store on one side of the
                              street and furniture;various house-
                              hold appliances, and some dry goods
                              from a store on the other side of
                              the street because of lack of fac-
                              ilities to carry on'the business in
                              one store, but maintaining one set
                              of books and using the same name
                              for both stores, operating a two-
                              store chain so as to be,liable for
                              the lice&e fee thereon.'leviedby
                              Article LlllD, Penal Code?
              Inasmuch as the above question, submittedby your
    letter of June 2, 1939, turns largely upon a question of fact,
    we quote fully from your letter as follows:
              "The question has arisen in this County with
        regard to a particular instance as to whether or not
        a man who operates a store under one name on one
        side of the street in an oil field town, to-wit,
        Dalsetta, Liberty County, Texas, and in that store
        sells dry goods and he operates a second store on
        the other side of the street in which he sells fur-
        niture and various household appliances and some
        goods und,erthe same name that he operates the first
        store under and the reason why he doesn't have both
        stores under the same roof and In the same building
        because he cannot obtain space in the same bullding
        or an adjolnlng building to put the furnlture,and
        fixture store in, would be subject and required to
        pay a license fee for two stores instead of one store
        under Article 1lll.Dof the Penal Code, as passedby
        the Acts of 1935, 44th Legislature First Called~Sesslon,
        found at page 422 of Volume 2 of Vernon's Annotated
        Statutes.
Hon. Thos. A. Wheat, page 2          O-920


                              ****
          "It is my argument that where a man has to put
    his wares in one particular building because of ne-
    cessitous circumstances, which circumstances are be-
    yond his control and he would have them under the same
    roof and. in the same building, if posslblo, but he
    has to place therest of his wares as near to his main    .
    store as possible, and he has made them one establishment,
    and as a matter of fact they are treated.by him as
    one store and operated as one store and he keeps one
    set of books on both establishments that he comes
    within the purview of Article 1lllD and he is only
    maintaining one store."
                              ****

          We have carefully considered the citations to Words
and Phrases furnished in your letter, but we do not find that
the judicial definitions of the word "store" therein given,
are of assistance in arriving at a correct conclusion. This
Is because your question turns upon a statutory definition of
the term,"store" rather than upon the common acceptation of
the term, and the Supreme Court of Texas in Hurt, et al'vs.
Cooper, et'al, 110 S. W. (2d) 896, with referende to such
definition, said:
          "The statute having defined the word, we are not
    concerned with its usual meaning. Under that defini-
    tion a mercantile establishment at which goods, wares,
    or merchandise of any kind, except those exempted, are
    sold is a store and is taxable as such, and this even
    though it may also be a distributing point. Conversely,
    a mercantile establishment at which no sales are made
    is not a store, and therefore not taxable. The test
    is whether the sales of goods, wares, or merchandise
    are made at the place."
          Section 7, Article 1111D, Penal Code, d.efines "store"
as follows:
          "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 within this Act which are own-
    ed, operated, maintained, or controlled by the same
    person, agent, receiver, trustee, firm, corporation,
    copartnershlp or association, either domestic or
    foreign, in which goods, wares or merchandise of any
    kind are sold, at retail or wholesale."
          Applying the foregoing definition to the facts set
out in your letter, as we are constrained to do by the deci-
Hon. Thos. A. Wheat, page 3         0-920


sion of the Supreme Court in the case of Hurt vs:Cooper,
supra, it is our conclusion that the merchant in question was
owning, operating, maintaining or controlling a two-store
chain In Daisetta, Liberty County, Texas, so as to become
liable for the license fee fixed and provided by subdivision
2,'section 5, Article llllD, Penal Code. It will be noted
that the term "store: as used in this tax measure, is de-
fined by Section 7 thereof, hereinabove quoted, to include
"H   store or stores or u   mercantile establishment or
establishments," which are "owned, operated, maintained or
controlled by the same person" etc., and in or from which
"goods, wares or merchandise of ang kind are sold, at retail
or wholesale." We find that all of theconstituent elements
of a "store: as laid down by the statute, concur in the in-
stant case. We have two entirely separate places, buildings
or mercantile establishments on different sides of the street,
from whfch goods, wares or merchandise of some kind are sold,
at retail or wholesale, and which are admittedly under the
same ownership and operation.
          The fact that the exigencies of the situation, or
the lack of suitable or ample building facilities in the
business section of Daisetta made it necessary or expedient
for the merchant in questlon to conduct his business from
two separate store buildings rather than from one, is an ir-
relevent consideration entirely beyond the statute. To allow
the incidence of a tax to be avoided by such personal consld-
erations and mental reservations of a taxpayer, would amount
to the virtual abrogation of such tax measure, at the will of
such taxpayer.
          The further fact appearing in yourletter that the
merchant in question treated these two establishments or
places as one store, operating them under one name and keep-
ing one set of books, does not, to our mind, support his con-
tention that he is owning and operating only one store, but
rather strengthens our conclusion herein of his common own-
ership, operation, or control of two stores or mercantile es-
tablishments, as defined, so as to be liable to the license
fee levied by subdivision 2, of Article llllD, Penal Code.
          Thanking you for your brief and trusting the fore-
going satisfactorilg answers your inquiry, we are
Hon. Thos. A. Wheat, page 4           O-920


                                 Yours very truly
                            ATTORNEYGENEZUL OF TEXAS


                                 By s/Pat M. Neff, Jr.
                              (simmd) Pat M.Azt:;i;;;.

PMN:N

APPROVED JUNE 23, 1939
(Signed) Gerald C..Mann
ATTORNEY GENERAL OF TEXAS
Approved OplriionCommittee'Bg B. W. Chairman
