Case Information
*1 OFFICE OF Y-HE AITORNEY GENERAL OF TEXAS
AUSTIN
Honorable George Ii. Shepp~d
Comptroller of Publla Aacounte
AH8CII:, reus
m6r Sir;
68king vhether or ‘, not oerteln m6t e “bu.lldLng materUle= ~,olthintheM Fe Tar fall. Your lot-
tar rwlda 68
rge group of 1lnlber vhethep Or not the c lietsd, and eold vided that the terma "The lmber yarda are contending thet %he
sale of the f'olloving mterial, when eald at Ium- her yard@, vi11 not make them subjeat to the
etorb tax.
Honorable George H. Sheppard, page [2]
"1. COOLING SYSTEW :
1-A. COOLING SYSTEM WITH FAN. Representa-
tive materials carried:
(a) Grille, which replaces section of ceiling in building. A Grille 1s usually constructed of wooden slate-with outside wooden frame and sometimes metal is used. Grilles are constructed on job by car- penters, also carried In stock.
(b) Pulpboard (such as Kasonlte) and Lumber for construction of airtight wind tunnel. One end of this tunnel 1s connected with grille. The wind tunnel Is constructed on the job and 1s located in the attic of the bulld- ing. (c) A special suction type of electric
fan designed for this particular use is into the other end of the tunnel. built (a) Louvres or Windows are used to per- mit air to pass out of building. Lou- into the gables of build- vres are built lngs.
(e) Wire, Conduit (either paper or flex- ible) and Switch are built Into wall and celling for starting and stopping operation.
All of the above materials are built in- to and become a part of the structure.
1-E. OTilER COOLING SYSTEMS. Representative
materials carried:
Galvanized flat sheets, solder, lnsula- tion board, such as Masonite or Celotex, and asbestos paper for the construction of ducts which are built into walls and ceilings. Also grilles, pipe and pipe *3 Honorable George H. Sheppard, page 3
fittings. All of which materials can be used in construbtion of Other Cooling Systems. All of,the above materials are built into and become a part of the struc- ture.
"2. flEATING SYSTEMS:
2-A. HEATING SYSTEM WITH GAS FLOOR FIJENACE.
Representative materials carried: Metal grille replacing section of floor. Special type of gas burner connected be- neath level: of floor. Saidburner is n& useful for any other purpose. Bolts ana screws for oonstructlon of system. Gal- vanized Iron izhiela constructed around Gas Burnex. Ducts, either metal or as- bestos, constructed to lead from burner to flue or to ventilating pipe where no flue available. Thermostat, pipe and pipe fittings used therewith. The above materials are used in constructing on the Job as a part of the structure of a heat- ing system with gas floor furnace.
2-B. WALL HEATING SYSTEM WITH GAS BURNER. Re-
presentative materials carried: Unfinished Wood cuff or frame to be built In between studding or Into opening. Gas burner. Pipe ana pipe fittings. 811 of the foregoing materials to be built into &nd become a part of the structure.
"3. EXHAUST FANS (Kitchen):
3-A. FOR HOODS.. Representative materials car-
ried: Wood framing with Galvanized flat sheets, shaped to desired form; also construct- ed and attached to flue or other ventilat- ed pipe or duct opening. Special type of *4 340 Honorable George Ii. Sheppard, pge 4
small electric exhaust fan Is built in- to hood to force fumes through flue or ventilated pipe or duct.
3-B.FOR ROOMS. Representative materials
oarried:
Wood or metal frames to be built Into opening In outside wall. Metal for - shields oonstructed'above opening to protect from weather. Screen wire to cover opening. Special type of eleo- trio exhaust fan built Into frame.
"4. VENTILATORS:
4-i. VENTiLATORS IN FOUNDATION AND BELOW FIRST
FLOOR LINE.
The purpose of this type of Ventilator Is to permit a clroulatlon oft air beneath the floor of the structure to prevent de- cay, deterioration ana rot of structural materials; including floors, beneath the first floor level, and furthermore to pre- vent destruction of such materials by termites. Sald Ventilators are now be- Ing required as part of house conetruo- tion by F.H.A. These Ventilators replace a section of the lower walls of the struc- ture end are built Into the building. ReA presentatlve materials oarrled: Metal Lath, Hardware cloth, Poultry Wire, Heavy Woven Wire, Wooden strips ana metal, oe- ment or wood grille, together with lumber used for building frame around opening.
4-B. VENTILATORS IN STRUCTLiRE TO DISCHARGE
FUkIES, ODOR AND SEWER GAS,, Building Codes In Cities require, and good building practices reoognlze, that each sewer connection In.a builalng shall be ventl%ated. Representative materials carried: Pipe of various kinds, pipe *5 Honorable George H. Sheppard, Page 5~
fittings, Galvanized Iron flat sheets for construction of metal ducts, Wood and Metal Grilles, lead and oakum for connec- ting pipe, Lumber for framing Grille open- lngs. These Ventilators are constructed in Walls, Floor6 and Celling6 and extend through roof. They,become a part of tk structure.
4-C. VENTILAtiRS IN ROOF CONSTRUCTION.
The purpose of these Ventilators Is to discharge hot air which develop6 in at- tic and roof of buildings. Many types of ventilators are used for this purpose de- pending upon character of hoof construe- tlon.
(a) Louvres, which are used in gablee. This Ventilator 1s of wood slat oonstruc- tlon with slats placed on steep pitch to prevent raln and snow from entering. Re'- presentatlve materials carried: Lumber Galvanized metal~and screen wire. uSUd1y - constructed on Job, butt small sizes also carried in stock. In all instaTiCe6 Louv- res replace seotlons of walls and become a permanent part of the structure. (b) Grilles, @lch are used in Cornice. In cornice construction where. roof'projects beyond line of wall, ventilators in the form or grilles replace sectlons or cornice and are built Into and beoome a part of the structure. Rep.resdntatIve materials are the same a6 mentioned In the next preced- Ing paragraph in connection with Louvres. The grille ventilator In cornice serves the same purpose as the Louvre.
(c) Metal Ventilators ror R00r Construc- tion which will not permit hse of Louvrea or grilles. The purpose Is to dl6charge hot alr'from roof. Representative material *6 342 Honorable George H. Sheppard, Page 5
carried: Galvanized metal, ecrewa and solder, This type of ventilator conatruct- ed.on order for special type8 of roof: al- so common designs and.slzes carried In stock. Use of thI6 type of ventilator for certain type6 of.roor eliminates neo- esslty of building penthouse on roof to obtain ventilation. In all Instances these ventilators replace section of roof and become part of structure.
"5. ELZCTRICAL F'U(TURES:
5-A. ELECTRIC WIRING~AND CONDUIT, This refers
to the materials used In the oonstruotlon of the-building so a6 to provide for cur- rent from point where same connects with the structure to and Including the outlet In the structure. Representative material carried: Tube6 to Insulate through Jolsts; Wire, Knobs, Screws, Metal plpe for.con- dult. Lead covered cable for conduit end Flexible Cable for conduit; Base, Floor, Wall and Celling Metal Outlets, boxes or receptacles; panel boards and switches. All of the above materlals are built Into and become a part of the structure.
5-R. ELECTRICAL LIGHTING FIXTURES forming an
integral part of the structure and beoom-' lng a part of the building or structure. Such rixtures do no.t include Electric Flx- tures which are made use of by plugging ln- to outlet or receptaoie end do not Include light bulbs. These..flxtures are connected directly with the wiring system of the structure. RepreSentatiVe IIIaterids car- ried: Metal, Glass, Porcelain, Wire and Switches. Such Fixtures are carried in stock, but In all oases form a part of the construction and require labor for aasem- bly and for making a part of the structure. During recent years Electric Lighting Flx- tures' are being built Into walls In order to obtain Indirect lighting and further- more to create a type of construction where *7 F.. .._ 343
Ronorable George H. Sheppard, page 7
fixture6 are lnvlalble. These Fixtures have no use except,ae Building Materials and they form an important part of the, structure.
"6. GAS FIXTURES FORMING AN INTEGRAL PART OF THE
STRUCTURE:
6-A. GAS PIPING AND FITTINGS.
Thls refers to the materials used In the construction of the bulldlng 60 a6 to pro- vide flow of gas from point where same. connects with structure to and Including outlet or cock In the structure. These materials consist of pipe and pipe fittings. It 16 usual for said materials to be con-. atructed in walls and between ceilings and. floors of the structure.
"7. PLUMBING. .i
7-A. PIPE AED FITTINGS. These materials Include Sewer, Vent, Water and Gas pipe (Clay and Metal): together with fittings. All of these materials are built into and become a part of the build- ing or structure. It 1~6 usual for said materials to be.constructed In walls and between ceilings and floors of the atruo- ture.
7-B. PLUWSING FIXTURES. i 71
Bath Room Plumbing FiXfJUr66 built Into and becoming a part of the Building or Struc- ture. Thesematerials Include Bath Tubs, - . I Shower Bathe, Lavatories and Commodes, all of which are directly connected with Sewer- age System, Water System and Vents In a' permanent manner. .Bath Tubs are usually built Into walls and fl'oor of bath room with tile or other wall or floor flnish- lng material resting on top edge of Bath Tub and against Side6 of Bath Tub. Shower Bath6 are usually built into structure by *8 - -^ - .
Honorable George B. Sheppard, page 8
building three walls;. said walls flnlah- ed on interior with tile or other suitable material and with drain built into floor,. and with door, hinges and bolts. Lava- tories are of two types, wall and floor. Wall lavatories are usually oonatructed by being permanently fastened to wall with tile or other finishing wall material 8x- tendlng around edge of Lavatory.. Floor Lavatories are usually oonstruct.ed by be- ing set on conorete part of floor with tile extending around edge of base. Com- modes are usually oonstruoted by being bolted into floor with water tank bolted into walls. The above fixtures are’ oar- . rled in stook, but are of no praotloal use, exoept as building materials rorming a part of the struoture and as mentioned are all dlreotly conneoted and tied in with ‘papes and fittings to .the sewerage _ system, water system ma vents. The OOP- struotlon.of the above materials Into the building or struoture forms a substantial part of the labor necessary in the ereo- tion of the struoture.
7-C. HOT WATER BEATING SYSTBL-. . .
The ma&ials oonsist ore. steel reaervolr or oontalner permanently.oonnected with. the water system of the atruoture and forms an integral part of the oompleted Hot Waffir. Fystei for &e building or struo- ture anp,furthermore oonneoted with Gas Syste&and Vent i Other ldaterlals are pipe adQ~pip8 flttl.iigs., - . .
7-D. KITCHEN SINKS.
These materials oonslit of metal sinks which are permanently oonneoted and built into the btilldlng ‘or structure, being bolt- ed into wall or into drain board oonatruo- tion. Also directly oonneoted ‘with sewer- age ‘system, water system and vent, Other materials are pipe and pipe $lttings. \ i- - *9 Honorable George H. Sheppard, page 9
-. 7-E. SEPTIC TANKS. - , Septlo Tanks are used wher&~ other sewer- age Woeal not available. Constructed by using oement and relnforolng ror oon- orete type or by using clay tile materials. Said tanks are conneoted with building with sewes tile. The materials are carried in .stook. A substantial amount or labor is neoeasary in the oonstruotlon of the mater- - lala into a septlo tank. "8. CARPENTER'S TOOLS.
These materials oonslst or certain tools used by the mechanic in the construction of the building or struoture and are ab- solutely essential to the use of the mater- lala.whIch go into and become a part of the building. Throughout the'hlstory of the Building Industry, hardware has been dlvld- e$ into two classes, viz;" Builders Hard- ware and Shelf Hardware., Builders ha,rd- ' ware lnoludes Carpenters toUs and carried in Building Material &oaks. .
"4. PAINT BRUSHES.
These materials are essential to the use of paint, one of the important building materials. Paint.brushes oonstltute a class of material whiah is consumed in the oonstruotlon of the .bullding or struoture where palnt'is used. Usually a number or : r paint brushes are oonsumed in the oomple- tlon of one struoture or building. Paint Brushes have been carried in stook and sol& almost exclusively by Building Mater- ial Dealers.
"10. SAND PAPXR.
This inaterlal is essential in the oonstruc- 'tlon df a Building or structure, partl- oularly in the finishing of oertaln sur- raoes of lumber and is consumed in construo- tion. It is essential in completing the *10 .-
Honorable George H. Sheppard, page 10
prooessing of lumber where a smooth sur- face is necessary and the oonsumpti,on is' very rapid. Sand Paper has been carried in stook and sold almost exolusively by Building Material Dealers throughout the life of the industry.
"11. BARBED WIRE, WOVEN WIRE OF ALL KIND& STEEL
FENCE POSTS AND METAL GATES.
These mater;ials are all used in the build- ing of Fenoe Struotures. Building material dealers have handled materials for building either wire or wooden fences throughout the history of the industry.
Light Woven Wire is also used in'the oon- struotion of walls of poultry buildings and in stucco wall construction for a oer- tain type of building and as Ventilators in walls and cornices of buildings. Heavy Woven Wire is also used as reinforo- Ing id concrete oonstruotion and as Venti- lation material in walls and tiorhioes of buildings. 4so used in stuooo and plas- ter wall oonstruotion.
"12. METAL TANK MATERIALS.
These materials consist of flat steel sheets, either galvanized or black; also oorrugat- ed sheets., These materials as carried in stock are not formed~or shaped for tank .oonstruotion. 'Said materials are used in the building of stook tanks and out-side water supplyhstanks.
"13. WINDNILL PARTS
Representative Materials carried: Steel angle and flat irons, bolts and nuts for use in oonstruotion of tower; also lumber for tower construction. Windmill gears, Windmill tails, steel fap seotions for Wind- i *-
Honorable George H. SSheppard, page 11
ml&l, pipe and fittings, sucker .rods,
couplings, cylinder barrels, valves and
washers. All of the above materials are
used to oonstruot the completed struo-
ture and to become part of water system.
A great number of houses are not oonneot-
ed to a municipal water system, and water
for said houses is obtained from a water
system in which the water is pumped by a
windmill.
"14. PUMP PARTS.
Representative materials oonsist of pipe,
pipe fittings, cylinder barrels, valves
and washers used for constructing pump. "This department will appreciate your opinion as to whether a lumber yard selling the items of
material listed above, brings suoh.lumber yard
within the definition of a store under the Chain
Spore Tax Amt."
The Texas Chain Store Tax Law is dodified as Artiole lllld of Vernon's Annotated Penal Code. Said law prbvides that every person or firm operating a store shall pay a fee for the privilege of doing so, and a graduated soale of fees is presorib- ed, the amount of the fBe for each store depending on the tot@ number of stores operated by said person or firm. A store is de- fined in Section 7 of the law as follows:
9eo. 7. The term 'store' as used in this Act shall be construed to mean and include any store or stores or any meroantile,~establishent or estab-
lishments not specifically exempted within this Act which are owned, operated, maintained, or controlled by the same person, agent, receiver, trustee, firm, corporation, copartnership or association, either
domestic or foreg$n, in which goods, wares or mer- chandise of any kind are sold, at retail or whole- sale."
Several exemptions are set out in Section 5,of the law, one of them being as follower
1, . . . Provided that the terms, 'store,
stores, mercantile establishment or mercantile *12 '
Honorable George H. Sheppard, page 12 , establishments' wherever used in this aot shall not include: wholesale and/or retail lumber and build- ing material businesses engaged-exclusively in the sale of lumber and building material; . . .n
We think that by using the word uexclusively" in said exemption the Legislature intended that those nwholesale and/or retail lumber and building material businesses" that engage only in the selling of lumber and "building material" should come within the exemption. In construing one of the other exemptions in the Chain Store Tax Law the court in the case of Standard Oil Company of Texas u. State, 142 SW. (2d) 519, said:
"We are of the opinion that when the legisla- ture used the language in the exemption clause 'en: gaged exclusively in . . . selling . . . petroleum products' the word 'exoludivelyt was used synony- mously with 'only' and 'purely.*" *.
Therefore; if any of the materials listed in your letter are not "building material" in the sense that said term is used in the statute, and said material is sold in a lumber or building mater- ial business establishment, or in any other mercantile establish- ment or store, said establishment or store would be subject to the chain store tax.
We will endeavor to decide in the case of eaoh of these materials whether or not it is a Zbuilding material."
Before deoiding each question we will discuss generally the meaning of the term wbuilding material." There being no stat- utory definition of said term, we are relegated to the lexico- graphers, legal and otherwise.
The word nbuilding2 in this statute is used as an ad- jective modifying the noun ?.uaterial;w but the adjeotive "build,- ing" cones from the noun wbuilding.n "The word '*builoing' is derived from the Anglo-Saxon lbold,t meaning a dwelling." Sauls- berry v. North Amerioan Refractries Co., 278 Icy. 808, 129 S.W. ‘xx (26) 525; Neekamp v. Huntington Chamber of Commeroe, 99 W. Va. 388~, 129 S. E. 314. Definitions of the word "building," both noun and ?~. ,adjective, are of value to us in determining the meaning of the p word in this case. j! 'h.<
.: n\ *13 Honorable George H. Sheppard, page 13
The word %aterial" in this statute is clearly a noun. Webster's Wew International Diotionayy, 2nd Ed., Un- abridged, defined the word "building" as follows:
"That whioh is built, specif.: As now gener- ally used, a fabric or edifice, framed or construct- ed, designed to stand more or less. permanently, and covering a space of land, for use as a dwelling, storehouse, factory, shelter for beasts, or some other useful purpose. Buildin in this sense does not include a mere wall, d monument hoard- ing, or similar structure, though designAd for
permanent use where it stand; nor a steamboat,
ship, or other vessel of navigation."
There are very few Texas oases defining the word *build- 1ng.v In the ease of Peterson v. Stolz, (Tex. Ct. 01~. App.) 269 S.W. 113, the court held that a monument on a burial lot was not a building within the terms of the meohanicsl lien statute, and the oourt said:
n . In interpreting the word tbuilding,* in relAt;on to meohanios' liens it has been held that a 'building' includes only'those structures whioh have capacity to contain and a?e designed for the habitation of a man or animals or the
shelter of property. Railway Co. v. Vanderpool, 11 Wis. 119, 78 Am. Deo. 691. . . .-
In the case of Johnson v. State, 96'Tex. Cr. R. 2U.257 S;W.
351, the court held that a cattle dipping vat was not a building.
The noun %aterialn is defined in the case of Oliver v..State, 110 Tex. Cr. R. 263, 8 S. W. (2d) ,184, as follows:
" . 'materials' include such artioles as art of the finished pro- enter inio and form a P duct; while 'equipment imports 'the most neoes- sary to enable the contractor to perform the
agreed service, the tobls, implements, and appli- ances which might have been previously used or might be subsequently used by the contractor in carrying on other wdrk of like oharaoter.' . . .n *14 Honorable.George H. Sheppard, pase 14
We have not been able to find any Texas cases in which the court discusses the term "building material;" but, as point- ed out above, there are Texas cases discussihg separately the word *building" and the word "material.V' However, there are oases in other jurisdictions in which the term."building material" is discussed. In the case of Ward v. Kadel, 38 Ark. 174, the court indicated that "building material*V was anything essential for building any kind of house. (See 12 Corpus Juris Secundum 389).
In the case of Hundhausen v. Bond, 36 Wis. 29, the court held that excavated dirt that had been piled in the street was not nbuilding material" unless some person had 'placed it there for the "purpose of using it in his building." A'correct statement, according to our view, was made by the oourt in the case of Schaible v. Board of Adjustment, 15 N.J. Misc. 707, 194 AU.
388, as follows:
wBuilding materials normally consist not only of lumber, bricks, stone, and iron, but of paints, varnishes, and many other substanoes used in build- ing construction. . . .*
A similar statement was made in the case of Lawrence v. Comstock, 124 Mioh. 120, 82 N. W. 808, as follows:
* . In the first place, it is not impro- bable ihit the term was used to cover other mater- ial besides Mmber, such as lime, brick, sand,
nails, lath, hair, and other supplies and, arti-
cles designed for building. . . on
The foregoing,oases represent the majority thought on the question, that is, that nbuilding materials" are limited to those things that go into and become a part of a building. How- ever, some oases adopt a broader meaning, as is illustrated by the oase of Wood Preserving Corporation v. State Tax Commission, 235 Ala. 438, 179 So... 254, in whioh the court held that the Leg- islature of Alabama intended for the term "building material" in an'e~xeeption in a tax statute to include railroad oross tiers and %aterial of all kinds used in oonstruotion work."
As we are convinced that the adjective ubuildingn in ' the term "building material *' has reference to the noun Rbuilding,N instead of the verb "build, n it is important that we determine what we are ubuildings". In the case of Trussell v. Gay, 13 Gray '(MassT) 311, the court said:
Honorable George R. Sheppard, page 15
“‘The word “bulldLn&’ cannot be held to ln-
alude every speclea of erection fenoee, gatea or other like struoturetv. Takan ln on land, suoh 88
Its broadeet eenee, it can mean only an ereotlon
intended for use and occupation aa a habitation
or for some purpose of trade, manufacture, orna-
Dent, or uee, oonstltutlng a fabric or edifloe,
such aa a home, a store, a churoh, a shed.‘”
In the oaae of City of Conaord v. Morgan, 74 R. H. 32, 64 Atl.
725, the court said:
II . . . all permanent etruoturea Intended to
shelter human belngc! or domeetlo animala, or to
reaelve, retain, or oonflne the goods ln which a
person Qeale, or to house the tool8 or machinery
he wet! or the peraone he employee ln Ns bual-
ness, are commonly called lbulldlnge.~ . . ,” A almllar deflnltl?n was approved ln the casea,~of Ran&Z1 v. At- lantld Advertls Servlac, 159 Ga. 217, I.25 8. E. 462, Tovn OS Union v. Zfller, 9 51 &tee. 467, 118. SOIL
Zurlah General Aooldent & Liability Into,
(2d) 3094
The determlnatlon OS the queatlon, vhat 1s a building, 1s of no greater importance in ths preeent inquiry than the de- termln8tlon of what is “m8terla.lrn The very e8cenoe of the word *msteria1,” in the oonnectlon here wed, It mean8 those ia that simple things that enter into the aonatruatlon OS 8 bulldlng 88 elements of etruaturei The term %8terial" doea not aonnote 8 finlehed or fabricated thin& whether bulldlng OP other strua- ture. It mean8 those thlnga of whiah the f8brlOated etruoture la composed, Thle dlstlnotlon IS vhat dlfferentlatee between the material and the building or strwture. Of ooursei the mat- erials upon being fabricated do become a part of, and therefore constitute the struoture, but the fabrioated artlole, whether house or fixture therein le no longer %tateclaleY in the oomkon- la EL bulldlng or a aoo&lng ly aocepted meaning of that term. It eyrtem, or a plumb- system or a heating ayatem or a ventllatlng lng system, aa the individual fabrication may be. St ia note- worthy, too, that suoh fabrloated structure of such enuiWrated ayatema is not itself a building ln any just aense conoerning the preeent inquiry, but neverthelesa,lt la a fabricated atructuve.
honorable Oeorge 8. imeppard, page 16
machine, or utility, and has oeased to be %aterlal.' The l&en- tttg of the materials entering into the fabrlostloa haa been lo@&- consumed--it ie freqwntly aald in the use thereof. Thla, we think, Is the final teat of the intention of the statute, and affords the.anewer to your many queetiona.
Many fabricated articles, however, by ookmon we are such ae ere not only oonvenlent but considered even to be erse- tlalr to the modern oonoeptlon OS oolniortable hourlng. Thur, the modern howe la not ready.Sor aatual habitation until it has its heating’egstem, croollng qatem, lte eleotrlo eyrtea, It.8 sever ita eystem, lte cooking eyatem, and the like. Thle doer not man, hovever ., .that such convenienoea or even necerrltler are to beeone ~&&u&l firturea to the reaIlty, for in many if not meet lnetanoea they are not such real fixturea --but Femain throughout aa per- sonal property. Thus, the heatiing furnace, and the oooling ap- paratw, the electric Sixturee, and the lik;e, may be and apa tic+ quently utlllced without becoming attached to, the ~pealty In rueh vay as to become a seal fixture serving all the vhile the require- menta of the ovner or oocupant t Certainly, in’~euah oa~~a the fabricated ial, syetq could not poarlbly be ooneldered bullding~mater-
for th6y have not entereq, into the etruoture OS the hotwe in any vay vhataoever. geither can it be argued vith a good reaeon that by beoomlng attaohed to the building In much vay as to be- oome a ~Sixture to the real estate that they thereby have ,been geilvanlted Into building materials, for their eaae.ntlal nature ham not been changed, The prlnaipal atid only..:i!ubstentlal ohange that qan result from the&r att&ohment 80 a8 to become permanent real fixture8 Is one of oonvenlence oontrolled largely by. the vent and demands and the abilltlea Sl.nanolally OS the ovner.
One aan hardly think of any fabricated ryetem, mechine, :. lnetrument, or utility for the home, that may not be permanently
attauhed to the bulldlng so as to become a part of the realty, but this Uoee not change the essential nature of the things thus attached.
From what we have eald, those thinga vhich are useful only In the fabrication ancl oonatruation OS a building are not themselves necessarily building materials. Thus, oarpenterta toole, such aa hammere, aawe,,planee, seendere, polishera, and the like, are in no sense building materials. They are Implementa and tools for build-, but they aurvlve their UEB, and unlike the building materials actually nought into the strucrture they do not~perieh with their use. Those materials, howevex?, thst are
7.: - ,. 3.5 Ronorable George Ii. Sheppmd, page 17
ooneumed ln their. use ln aonneotlon vlth the oonetruotlon OS the building are “bulldlng ~t%rl8la,” examples being sand-paper and paint brushes. Thle dletlnotlon la Illustrated py the oaee OS Troy Publio Works Co,’ P., City OS KonkezIe, 207'X. Y. 81, 100 X.B. the court said: 700, it? vhiah
“In vlev of vhat vbe *itten SOP #le. oourt ‘. g Sohaghticoke Povder Co. ‘I. Oroenvloh I J. By. : #;
183 H. Y. 306, 76 H. B. 153, 2 L. R. A. (X.8.) 286: ‘1l.l b. St. Rep. 751, 5 Ann. Oaa... 443, there to be said In the &see at bar. ‘.” ~,~ .‘. remains very little In the Sohaghtlooke Caee..the plaeintlff Surnlehed ,’ ” dyne&t% and other explosivea to a oontractor for we ln the oonetruotlon OS a’ railroad,. and then filed ita l$sn for the unpaid prlos. The Ques- tion vae vhother these explosives vere materials withFn the purview OS the statute. Ue decided that they vere, beoauee they yere not only wed In the aonetIwtion OS the. work,. but vore liter-. .~ ally ‘used up’ ln Its perfomisncei The dyn.smLte and povder verb put into the vork end uere ooneum- ed In the operatlom s ~Thoy vere as mu&h a part OS .‘:’ thee materials the;t~‘vent jato the structure as the varboua oonetltuente identity thatloet,thelr separate
lnbeoonlng part OS the plaster, cement; or concrete+. For ati purpoae.oS lllwtrating
this idea ve ealdt ‘The argument that dynamite la not’ a material., but a’part. OS the oontraetor’s .’ ~’ ‘Y’~:’ plant vhlch, like .piokti end ehovele. or meohanioal : appLlanoe8, are used in the performmoe OS vork,, :,. .:::l: :+ but ee not ooqsldered ~mterlale Surnlshed vlth- .i~’ :~: :?j’:::, In the purvl%V .oS the statute, *Bbm to us a- .: .,... “,:.:+ herently unsound; ‘A eteam shovel, an engine ~~),,~_.:!~,.~,;~.~,j,~., boiler, pioke; shov'eb, orOvbBpa~ and the Iike are tools ,&nd appllanoee vhloh, vhlls tieed ln :I:>. ~::::!~,‘!:::..1 .the doing of the York,. eurvlve ite. perfqreienoe ,. : ;;~: .‘;~i:: and remain ‘the- property of their ovner,: Rot so, .: .f .~~’ ‘..~‘. hovever,. vlth materials that are used up in the ; ~~ performance OS the work, and are thereafter l.nvl-~~ ‘:. tic .J;: alble :exuept as ‘they survive .in tangible resulte.( -:~ ’ .,::. 183 R.-Y. 312, 76 Ri.B; 155, 2 .L, R. A,. (R.9.):‘~;‘:‘.;‘:;,~.:.:‘., 288, 111 Am St. Rep. ,751, 5 Ann. Cae. *43., The .’ .~ ateam shovel in the cae8 at bar did not go into It Van a maahine wed on ~‘. ;I ,.;.- the vork ae materlal~ the work,’ snot by the ovner but by his leeeee, and ‘;.‘:‘:’ *18 Bonorable Qeorge Ii. Sheppard, page 1.8
it VW returned to the ovner just an It vaa re-
ceived, necessary wear and tear exoepted. It was
not material; either aoaordlng to the deflnltlona or under the decieiona
of the lexicographers, In
other dates where they have lien etatutes eimllw
to our own. . . .*
The eeme reasoning was adhered tQ in the Texas case of Btone v. Morrieon end Pavers, $294 3. W. 641 (Reversed on other grounds 298 S. W. 538) in which the aourt saldr
I( The vord *material* means (the eub-
etance’oi &h anfihlng ls’iparde.@ The pile-
driver van itot a eubetanoe OS vhlah the ooncrete
piles were made, but vae an equipment to be used
inthemaklng.. . ,”
In the case of come OS the materials listed in your opinion Bald materl&le oan be used SOP several ptipoeee, that le, they oan be used as “building materials” and they can be For example, used as some other Jclnd OS esate~le38. light voven wire m,n be used as a “building materl.al’ by using it In the walls of atuooo buildinga, or 1% can be used ao Chat It vi11 not be a “bullding material ” by oalng It ea a ohioken Senge.
In the oaee of materials that OM be used as “bulldIng nK&eri.alL” and also'.% non-bullbiag materirle if #L lumber yard ogerata in etook lo. order to have a complete StoQk., keege said material of bullding material” and ln order to Sill “building rmste~lal purchaeer*r needs It should be atmeldered "btildlng mEter+al" ~vlthln the meanihg of the Texas Obaln Store Tax Lav.~ IS a lum: her y-d operator has in etook rood-screwa are appr~pr~rtb that for faetenlng hlngee inside of a house, it would not affect.. the liability of the operator for ahsin store taxes IS a purohaear used eald wood-screwa for something other than a ‘bulldlng sat- erial, * for example, for faetening a “no-hunting” sign to 0 tree.
It la not strictly R question of whether or not a place ia a lumber yard, &a that term la oommonly understood, but It 1s a queetion of whether or not the plaoe is ‘engaged 3.~ the sa.le. of lumber and building material.‘, Hov- exoluslwly ever, we think it Is apparemt the Leglalature van thinking of a lumber yard when it pageed this exemption. The only dade we have found that deeidee whether or not a partioular place la 8 lumber yard or not within the common understanding of the *19 Honorable Qeorge II. Sheppard, page 19
~e”s”,~ tp case of PlanterQe Lumber Co. v. Yells, 147 Miaa. 279, . The follovlng quotation ahove vhat waa eold in the lumbar yard involved in that oaee, to-wits
WI . . k 75 per oent. In value of all material8
bought and eold by defendant conalated of lumber,
10 per cent. wooden ahtnglee, lath, aaah, door%,
and windova and artlales of like kind, making a
total of 85 per sent. In value of all materials
handled aud aold by defendant aa aforesaid, con-
aiatlng of lumber, e&ah, doors, and rlndova and
articlee of like kind, and the remaining 15 per
cent. conaiatlng of other building materlale, such
ae composition ahlnglea, roofing, cement, lime, and vhat ia oomnonlg knovn aa build- and plaster,
er’% hardvare, aonaietlng of aaah weights and
oord, pulley%, gratea, nails, door and vindov
hinges, and other building haxdvaxe similar In
kind, and.other Item% of bui+3ing suppllerr and
n&erial not inoluded In auoh artiolee aa lum-
ber, roofing, tithinglee, lathe, aaeh, doora, and
vindowa and aztlolee of like +nd, hereinafter
called ‘other materiale,“~”
Another important oonalderation beera very dlreotly up- on the proper conatruotlon to give to thla statute. It 1% t&ie: We think it warn never intended br the Legislature to perPlit Lum- ber yarda dealing in building materiala In general liketiae to deal ln thoae articles involved In the present inquiry--to handle euoh e??tlole;r tax free; and at the. same time to make those bual- neea concern8 taxable~ which happed to deal alone in such fabri- oated utllltiee. Such a law, if It were Intended by the Legia- lature, might be invalid as a diaoriminetion vithout reaeonable factual basla for different legislative treatment; but thie ques- Won need not be decided eince our aoncluelon doea not twn upon that oonaideratloni
What we have raid here f$nde support in and la in her- many with our OpinLon Ho. 0-2080, dated Nay 2, 1940, addreared to Honorable George H. Shepwd, Comptroller and a prior opin- ion by tbla department, dated Jwwwy 3* 1936, llkevlae addreeaed to Honorable George II. Sheppard, Comptroller.
e.. .-_ 356 Ronorable Qeorge B. Sheppard, page 20
We will now annweIr your qwationa, keeping in mind that our anewera are to the facts stated by you. We limited will endeavor to answer e8oh queatlon by raying "pa' 0~ 'no" aa to whether the material deaorlbed in thb.queetlon.18 “bulld- ing material,” within the ae8nlng 0r this rtatute, to-wit I
1. Cooling Syetemar -
1-A. Cooling Syetem with Best ‘Ilo.”
1-B. Other Cooling iyrtemat “are.”
2. Heating 3yatemar -
2-A. ligtpg Byatem with Oaa Floor Furmae I 2-B. %iReatlng System with ?aa Burner: ?Zxhawt F&I (?LLtohen)8 -
3.
3-A. For Hoodat 90.’
3-B. For Roomat %O**
4.. Ventilatorar -
4-h. Ventilatiore in Foundation 8nd Below First
Bloor~l&~e: jYea,'
4-B.: ventilators
Fumes, Odor and Sewer Qaet ~_’ 4-O. Ventilators in Roof Conatruotlon*’ “Yea.” : 5. Eleotrloal Pixturear -~ .~, 5-A. Eleotrlo Wiring and Conduit t “Ys%aI:‘y’ ‘( ~‘~ ,. :
‘.
5-B. Eleotrioal Llghtlng Fixture%: ‘“Bo.~ 6. Gae Fixtures Forming an Integral Part-of the
Struoturet -
6-A. Oaa Piping and Fittingat “Yee,’ -
The roughing in.
Bonorabl? George Ii, Sheppard, page 21
7. Plumbing: -
7-A. Pipea and FIttAngs: *Yea," - the
roughing In.
7-B. Plumbing Flxturea: “l0.’
7-c. Hot Yater Iieatlng Byetams “HO.’
7-D. lUtahen Slnkat 'Ho."
7-B. Septia Tenkar “PO.*
8. Carpenter~a Toola; "lea.!
9. Paint Bruehee: "Yee."
10. Sand Paperr “Yea.” Barbed Wire, Woven Wire of all kinbe, %teel
il.
fence poate and m&al gates: *HO," exaept
that material deeoribed in thla question
that la sometime% used fin the %on%truatlon
of a building and la kept In %tOck in order
to fill auah neede Is bt.aildlq material.
la. Metal Tank IUaterlalar RHO."
13. lilndmill Part%: "Ho."
14. Pump partar Qo." opinion anawer8 your questions,
Ue hope the foregoing and that It will be of value to you in adminlat%ring the T%xea @haIn Store Tax Law.
~~...
Your6 very truly