Case Information
*1 OFFICE OF THE AlTORNEY GENERAL OF TEXAS AUSTIN
Hon. Gilbert Smith
aounty Attorzmy
Joasr Oounty
Amon, lk+x%r
Daar Sir a
Raoeipt LRJ okmwl
oeat data requeeting t
touahing the above mat
letter read@ 1
tual baokground to your a in th6 oaiie of COLLIM Artiol. 7047, provide@: 0 VENDBS OF PATWT HEDZE\ZS. celling patent or are, end no trave2- til said tar la M) ply to aowm3raiel rm, or eelsomen mkiag eal.sr or eolloi&g trade for merchanta engaged in the ralo of drugs or medioiner by wholrrale.* Under the Collinst aam, as ml1 a9 aaa8 of *2 Boa. Gilbert Smith, paga 2
llIEW Y. STATE, 103 S.W., 859, there would seen to be no doubt of the application of this statute to such sit- uation insofar aa the contraot between the traveling vea- dor and his company, and the method oi sales by the ped- dler, is aonoerned.
Presumably, you are oonoermd about the qu%s- tion of whether the fact that thr traveling person sells not only patant medicima, but also soaps fly sprays, extracta, pann, utensil8, eta., rauld rdsre the appli- oation of ths statute.
Our research reveals no ease in Texas directly resolrlng this Question. The ease oi SFZD Y'. STATTE, 155 s.3. 524, howemar, involved taats d6soribed as follows in the oourtta statement oi the sass at pp. 524, 625;
*Appeliant wad ooaricted 0r orrena 0r
being a traveling person pursuing the ocoupation of selling patent and other mediainee.
'The erldenoe unquestionably shows ap- pellant had Q two-hors% haok on uhioh was painted Watkins' Rtmsdlest; that ho travereed Coryell
County, eelllag thesa remedies end Watklnst spices, eta.; that thi6 was his regular oaoupatioa. Ap- pellant htili testltled and statedt *My mm is A. T. Shed. I am the defendant in this 0888. I understand what I am being triad for. I am prin- alpally engaged In selllug spiaes, ila- extraeta, rorings, noape, perfumes and other toilet artioies. I sm imthe employment.of f. R. Uatkin8 Xedioal I Company, Xinona, MIM., u. 9. A. * * k
*$2ross-sxamfaatioa of the witnses A. T. She& *I sell mediolnes, but I sell only conditionally. I rpead more time talking up soaps, Spice8, eto.1 but at the same time I talk up the medlolnes too aad oiter them for sale in the way I havci told you.” , In ariitiag the Judgmsat OS oontiotion, the aourt took no cognizanoe the hota as shown pertaining to the sale of produots other than patent laedlclnes, and said tit page 526 opiniaar
*In so far as appellant ia concerned he *3 Xon. allbert Gaaith, page S
had eskablished and was aaxrying on a osrtafn liao of bueinesr wholly within the state, and 8uoh a oleae of business and ououpation oan ba rogulatsd by the &Ate, ior the.@eat wslght of authoritp sqports the right to tax paddlars ehere the law does not diaorlainate bet-en produots of residents and non-resideate & * * l *rl,opellant was bolng prosecuted rar pm- suing a given ocaup6tion - that 0r peddling pabat and other nd.i.ciae#. And eaoh sale would haye a tendenoy to prom that he WMI so engaged, and the court did not err 1z.1 permit- etidenoe to be adduced oi Individual aale8.R ting
There ts the came impll~&~o~ in the case of ~.W&W~,Y. STX-%, 152 3.q. 168, fro;n w:;ieh we quote Ps
titer the sr~lraticm tLs lioezxs: zh: t*eklmony would e&or that in trarel- ing he only Bold pepparu, apices, OoepB, and flavcrlnize, at the same time advertising the reme&iea, but wourd not 6011 the SW rrom the aegoa . Without BOER erldeaoe thet he sold these remedies ehlle aatiag a8 a traveling sale-, judmnt oannotae suatalned. It is evident that after the ezpiratioa of his license he oon- in the Vattins timed to drive about the oouatry wagon, but there is no e~idenae ho zaade a aisle aay oharacter oi medloine, aad under these oiromoteacer the rerdlot of the jury WOS unauthorized. * * * * ir atirely sand, The propoeition in uxr opin-
ion that a person who is a traveling Vendor of patent med i aims is liable for the oaoupetlon tax Lsgooed by As- tiole 904'1, Subditiuion 2, supra, notwithstanding he my also 5011 other ?roducta la aonnoet:.m therewith. &oh ic ooneoaant with the statute itreX, and with t&e aams olted.
ncoordlngly, you are reapeottully adrlsad that in our opinion the individual deearibsd in ywr inquiry, Is mbjeot to the ooaupatZon tax Imposed by Subdirlslon Iz of Article 7047, supra.
Hon. Gilbert Smith, pa@ 4
Trusting that vm have satiefaatorily ~swer- ed your Inquiry, we remain
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