Case Information
*1 OF TEXAS
April 4, 1939 Honorable George H. Sheppard i$nion No: O-545 Comptroller of Public Accounts : *Trinity-Mix" is cement Austin, Texas and subject to cement tax. Dear Sir: . . :.
~hi~,ia inanswer.to your letter of March 24, 1939, which reads as follows':
'The question has arisen in this department asto the taxa- bility of *Trinity Mix? (a sort oflPrtar preparation put out by certain cement companies). The attached copy~of.a~letter.~.: written by the cement.companyto our Tax Supervisor~;'Mr."B.C.;: Bearden, explains fully the ingredients..of.,this~mortar. ,~i;::y<,Y' .~. "1 will thankyou ~to advise this department whether this pro- duct is tamable under.the_.s~tute..lenying.a.~tax.on cement.", _:.
The attached copy..of~the letter to Mr. Beardenthat ;you~ refer"to .~. which-is from the attorheys for the cement company concerned, reads, in part as: follows:. : -
"The producthereinabove referred to, manufactured by Trinity Portland Cement Company, which is under diacussion,at this time, is what is commonly termed orknow;&aardinary masonry mortar .and contains some ingredients which are likewise con- tained in cement, nevertheless,the finished.products are entire- ly different. Cement, as the.writer understands~it, may icon- tain various forms of stone ~which are.burned under high heat and treated in'various forms. After beinghurnedby~high heat and treated, the product comes out inwhat is commonly termed among cement people as a clinker form, that,is, in round j pellets. These clinkers are then ground very fine and-sifted
through meshes-or--screens of a very fine sieve, that is, so fine that the sieve, as I understand it, will hold-water. Af- ter receiving this treatment, the fine powder.is treated.
During this same treatment ,or perhaps there-afterwards, this pulverized clinker is treated.with.gypaum,. thraughly mixing the two products and you-then inturn have%hat is'commonly known and understood among then cement industry as cement; and generally and fin fact commonly knovn~~as.P~~d..Cement, which has a well defined and well understood..meaning among persons conversant with the cement industry. This, finished product *2 O-545 which is termed and known as cement is used for many and sundry purposes, such as making mortar, plaster, concrete and many times in its raw state by adding water to it and for numerous other similar purposes.
"The product here under consideration, which is commonly known as Trinity Portland Cement Company's finished product of mortar, is manufactured, as the writer understands it, in the following manner. The clinkers above referred to, without being ground and without being treated with gypsum, are taken in their raw state as they come from the furnace, mixed with lime rock in its raw state, containing approximately 47 or 48 per cent of lime after the same has been burned, treated and reduced to lime. This lime rock in itsraw state, without being treated in any particular,~is ground and pulverized with .-the clinkers, both productqbeing mixed-and ,placed through a
sieve and then you~have the finished ~product. :~The,percentage of lime rock and clinkers used-in this finished product, vary, depending upon the strength ordurability or mortar desired.' This finished product Is mused a.smortar,~ as I..understand. it, snd,, is.nothing;in.fact hut a:.preparedmortar;".: ..~ .i_. ., ~.
ihe~ statute: in'iqu~atioh..is'.pjlr;?graphi. (a)':;f: H&rii;; B&c.~o;:j~ji, Acts 1931, Forty+second Legislature,, p.~355;.::ch;' 212,'j'how codified.as Section 4la of Article 7047 of VernonVAnnotated‘Revised Civil Statutes of Texas, which.reads~~as follows:
*There is hereby imposed<a' tax of one and one-fourth <l:t) cents on the one hundred .(lOG) pounds, or fractionalpsrtthere- of, of cementonevery persons in~this~~State.m8nufacturing'or... producing in and/or importing cement into thisstate, and who' thereafter distributes-, sells or uses the same-in intrastate commerce. Said tax shall accrue on and is imposed on the first intrastate distribution, salecr use; providad~however, no tax shall be paid except on one sale, distrihution'or use.
The person liable for said tax is hereby defined to be a 'dis- tributor.(*
As the word "cement" is not defined in the statute,'it must be given the meaning in which it is ordinarily used and.understood. State v. Yturria 109 Tex. 220, 204 S.W. 315; and Bradford v. Hunt, 15 Fed. Supp. ~428.
Webster's New International Dictionary, Second Edition, defines the word "cement" as follows:
"A substance which is mixed with water and used in a soft or .pasty state to join stones.or bricks ,in a building, to cover floors, etc., and which afterwards becomes hard like stone; esp., such a substance made with lime, or a calcined mixture of clay and limestone.* *3 O-545
Very few courts have made an expression on the word "cement", and about the only definition of the word as given by a court is in the case of Brunswicke-Balke-Collender Co. v. Seamless Rubber Company, 2'7 Fed. (2d) 925, as follows:
"The term (cement', as commonly used, implies a substance dis- solved in a solvent, and when the solvent is evaporated the cement hardens, and binds the layers of material together." In 14 Corpus Juris Secundum 61, we find a definition as follows:
"In its ordinary commercial sense, the work has been defined as a substance used in a soft or pasty state to join stones or bricks in a building, etc., which.afterward.becomes hard like stone.? ..~ . These&e.definitidtis oL-th&word as. it~'&'ordina&.Iy~ used andi understood.
It seems to be the contention that cement is usually made by a pro- cess that results in a product called Bortland.cementl, and that the " 'Legislature did not intend for this tax toapply~to cementmade by
‘any other .process,,~or to:any other:kindzof csment. .We. do .notagree
with that contention; We:believe -that.any...product thatmeets.the definition o,f *cement" as that,.word isordinarily~used~ and-under- stood is cement within the terms of the statute. The definitions of~cementare not concerned .with-the process by which ,it-.Tsmads, and in determining whether or-nota .product is'.cement, we .should not look to the method by whichit ismanufactured., We ~look to see what the product does .and..-hicnr-it-'~~~;,.'::~-_, .$ .,I A good discussion of ce,ment .is fouud.inVolume~.6 of The Encyclopedia Americana at page. 189, as ,follows:,~
*A cement is any,compo.u&which; under certainconditions, is Blastic~a.nd.under othersdevelops, tenacity, and.can be used for holding together various’materials; hence glue, lime, asphaltum, mucilage and.solder arecements., By far the most important class of cements, structurally and commercially are the hydraulic Cements, ,compounds of ,lime, silica and alumina that have the propertywhen mixed with.waterto a.paste of cohering or setting and.-finally'becomingstone hard, even un- der water. The hydraulic cements may be divided into.four classes based on differences in the materialsused.
"The four classes of hvdraulic buildi&material above men- tioned are: (1) Hydraulic lime ~made*from a limestone contain- ing a small proportion of clay (8 to.lO.~per cent) by burn- ing ata low temperature,~and< slaking:,theburned~rock and water. (2) Hydraulic or.natural-rock cement made from;s lime- stone containing a. relatire,~y,high., proportion::af clay, by *4 o-545
burning at a low heat and grinding the product to powder. (3) Portland Cement made from an artificial mixture of carbonate lime (either chalk, limestone or marl), with a certain pro- portion of cla burning at a white heat and grinding the clink- er to powder. 4) Pozzuolsna or sla cement made by mixing f '
some kinds of finely-ground scoria volcanic ash) or blast- 7
furnace slag with a small proportion of slaked lime. Of these the second and particularly the third are of chief importance in this country, though the manufacture of slag cement is a promising industry."
This discussion shows that there are four classes of hydraulic building cement, one of them being Portland cement. According to this discussion the cement in question comes within the second class, which is *hydraulic or natural-rock cement". We believe that all .af these classes of hydraulic building cement, which includes Port- land cement, and the cement in question, as.well as other classes of cement, ~come within the definition of cement as that-term is ordinarily used and under.stood.
The general question as to what kind and class of 'cement is subject to this tax has been heretofore considered by this department and was answered in a. very able opinion dated.September 11, 1931, by Mr. Sidney Benbow;Assistant.under attorney'.General'Allred, which opinion strongly supports. our view, and which~reads, in part, as follows:
*From .an .observation of these.defixriticns-.it canreadily-be seen that the term Jcement' has a very broad,and not a well defined ,or fixed meaning but could, include any.substanc,e of',a cementititmsnsture~ . _ _
*It is a fundamental rule of conatruction.that In.the..absence of anything in the context of a statute to the contrary, com- mon or popular words are to be understood in a~ popular sense. Sutherland Statutory Construction, Section 389, page 747; Gilmer v. Maples, 138 S.W. 1037. And a thing or subject which is not within the intent and sprit of the statute is not with- in the statute though within the letter. Sutherland's Statu- tory Construction, Section 379, page 730; Hawaii v. Manckichi, 190 U.S. 197; Pool v. Simmons, 134 Calif., 621. The words or clauses may be enlarged, or restricted to effectuates the inten- tion or to harmonize them with other express provisions. Where general language construed in a broad sense would lead to absurdity, it may be so restrained. Peop1e.v. Davenport, 91 N.Y. 574; McKee v. United States, 164 U.S. 287; Sutherland's Stat.utory Construction, Section 376, page' 721.
"Bearing in mind the above rules of construction, it is the opinion of the writer that the Legislature intended to impose the tax upon any substance of a cementitious nature, which, in my opinion, would be commonly understood to mean such *5 Honorable George H. Sheppard, page 5 o-545
cement as is used in construction work, namely, the construc- tion of buildings, roads, sidewalks, and the.~like, and would not apply to such substance as dental cement, belting cement, and like substances as mentioned in your inquiry. It seems that this theory is supported by the act itself by imposing only a nominal tax upon the one hundred pounds of such cement which, I understand, is the standard unit for sale of cement used for ordinary construction work."
It is our condlusion that the word "cement" in the statute means cement as that term is ordinarily used and ~understo,od, and the best definition we can find of this term in regard...to. how.it is ordi- narily used and understood is the definition quoted above from Webster's Dictionary; and under that definition the product in question is cement. . .
Our answer to your question is that it is our opinion that "Trinity- MIX", as that product has been explained to us, is.cement, and, therefore, is subject to the cement tax.- ._
Yours very truly ~ATTORWEYGRWEXALOF'D3XAS By /s/Cecil.C. Rot&h Assistant CCR:FG:pwb;ml