Case Information
*1 . . .~ I 36.
OFFICE OF THE A’ITORNEY GENERAL OF TEXAS AUSTIN
Oame, Fish and Oyster Comulsaion
AU3tin, Texas
Attention: I&-. H. D.
Dear Sirr
Your reqG3st for an
are herein stated has been re
who delivers edible ale 0wa miteids and 'oyster dealer8 e sold prior to en- :
3 f cane, Fish and Oyster Corn., Attention: I&, H. D, DOB&en, Fag6 2
You inform us that you refer to the v~ious Ii- cenaes required by Article 934a of the Pcncl Code. 934a of the Fenal Code reads in part as i&lcle
fOllOVjs : "SBC. 1. The following: lords, term and phrases used in this Aot~ are hereby defined ES follovl3 ;
"(31 A *Comsrcial Fishsrmn~ is nny per- son who takes fish or oystsrs or shri~g or other edible aquatic products from the waters of this State, for pay, or for the puspose of s&e, bsrter or exchange.
n(b) A Wholesale Fish Dealer' is any par- son ehga&ed in the business of buying far the purpose of selling, canning, preserving or pro- cessing, or buying for ths purpose of handling for shlpnents. OT sale, fish or oysters ox shrimp or other comerciaP edible aquatic products, to Retail I$sh Dealers, and/or to Eotels, Restau- rants or Cafes and to the Consmer.~ "(Cl k 'Retail Fish Dealer' Is any person engaged in the busiqess of buying for the pur- pose of oelllnC either fresh or frozen edible aquatic produclts to the consumer, "(dl A *Bait Dealer' is any person engaged in the business of selling either 13In.ho~., fish, skim or other aquatic products, for fish bait. "(01 A *Fish GuiUe' is any person who operates a boat for pay dr anything of value, in aocompanying transporting any person engngo6 in fishing In the waters of thin State.
"(fl *T;erson' shall include the plural as well cs the singular, a5 the case demands, and shall include ihdiolduals, partnerships, assooia- tions ana corporations.
"(El 'Population' is determined es ~3hovM by the last or any subsequent Federal Census. %iaense required "Sec. 2. Before any person in this State shall engage In the business of a fComercial *3 3 .; f Gazne, Plsh and Oyster Corn... Attention: %, H. D. Dodgsn, Page 3
Ffshsrnanl, Wholesale Fish Doalert, 'Rota11 Dealer', 'Bait Dealer', 'Fish Guides; or use or operate a shrimp trawl, net or seine, oys- ter dredCs, boat or skiff, for the purpose of catching or taking my sdible aquatic life fros the waters of this State for pay, bartar, sale or exchange, ths proper license provided for in this riot privileging then so to do shall first be procured by such person fron the Gazae, Fish and Oyster Commission of Tows or fron otie of its authorized agents.
"Liaense fees wsea. 3. The llcennes and the foes to be paid for the sme are hereby provided for in this Xot and are as follower Comeroial Fishermen's License, fee Threea~~llars ($3).
"2. Xholesale Fish Dealem' LLcense, fee for each place of business, Two Euudrsd Dollar6 ($200) l
"2-a. Viholesals Truok Dealers' Fish License, fee for eaoh truck, One Hundred Dollars ($100). "3. (a) Retail Fish Dealers' License, fee Three Dollars ($3) for each place of business in eaoh city or town of less than seven thousand, five hundred (7,500) population.
"(b) Retail Fish Dealers* Llcenae, fee Ten Dollars ($10) for each plaoe of business in each city or town of not less than sevsn thousand, five hundyed (7,500) and not wore than forty thousaud (40,000) population.
*(o) Rotail Fish Dealers' License fee Fif- teen Dollars ($15) for each plaoe of business in saoh city or town of more than forty thousad (40,000) population.
l'(d) Retail Oyster Dealers' License, psr- nittlng the sale of oysters only, fee Five Dol- lars (95) for eaoh place of business in eaoh Oity *4 Gme, Fish and Oyster Corm., Attention; Xv, H. 1). Wdgen, j-cl@ Q
or tom of zxore then seven thousand, five hund- red (7,500) population. G-E sule of any fresh or frozen edible aquiltic prouucts, other than oysters, by a ret&l fish dealer posscasinC the license nmod intbisoubsectfon, shall comtl- tuts a violntiou of this Act.
"(8) iielxil Dczlernl Truck License, por- mitting tho sale of edible aquatfo products from a zotor vehicle to Consmers only, fse T::ehty- five Dollare ($25) for each truck; provided the omer of any retail fish dealers' llcenso issued since ~epteiaber I., 1934, for a pluaa of business in a city or tom of more then five thousand (5,000) po?ulat:on, shall be entitled ,to a rabate on the sane vthen said owner of such license shall furnish tho Game, Fish and Oyster Commission a claim sworn to for said mount. i?hen such claim is Sound to be correct and Is approved by the Executive Secretary of said Comission, sane shall ,be paid out of any moneys available in the State Areasury upon warrant issued by the State Comptroller.
"4, Bait Dealers' License, fae Tvfo Dollars ($2) for each place of business.
"5. (a) shrimp Trawl.Liocnse, for eaah boat operating or toM.ng a travel not more than ten (10) feet in width et the mouth, and not more than twenty (20) feet in length, See !kro Dollars ($2).
Shrimp Trawl License for each boat opera:& or to;iiing n trawl nod thantan (10) feet Mde'at'its mouth or more than twenty (20) feet in lerqth, fee Fifteen'Dollars ($15); Which said license shall permit the use of a 'try net* as auxiliary to said travel.
eo. seine or hTet License, to be of mtcti, for and to be firmly attached to each one hun- dred (100) feet or fraction thereof, fee On0 Dol- lar ($1) for eaoh dne hundred (100) feet of the length thereof.
Vrovided, no license shell be issued for any seine net 1onCcr than eighteen hundred *5 Gc.me,5Fish and Oyster Comm., Attention; :J.r. 8. D. Dodgen, Pam
(1600) feat, and also provided that after the passage of this Act no license shall be issued for any seine or net, the meshes of which are less than one end one-half (l&) inches from knot to knot.
“7. Fish Boat License, for boats equipped with a motor of any kind 6r with soils, See Three Dollars ($3).
"0. Skiff License, for boat propelled by oars or poles, to be of metal and flrnly attach- ed to skiff, fee One Dollar ($1).
*‘9. Oyster Dredge License, fee Fifteen
Dollars ( $15) . Fish Guide License, fee ~wto Dollars ($2).
“10. "IS. Flace of business, as used in this &A, shall include the place where orders for aquatic products are received, or where aquatic products are sold, and if sold from a vehicle, the vehicle On which, or fromwhioh such aquatio prOdUOts are sold, shall constitute a place of business. The license shall at all times be publicly displayed by the dealer in his place of business so as to be easily seen by the public and the employees of the Game, Fish and Oyster Commission. And if any aquatlo products are transported for the purpose of sale In any vehicle the license required of such dealer shall be displsyed inside of such ve- hicle. Provided that no person shall bring into this State any aquatic products and in this State offer same for sala without procuring the license required for such a transaction by a dealer in this State, and the fact that suoh aquatic products were caught in another State shall not entitle the
erson Claiming to have caught them to seU. same f n this State as a commeroialflsherman.n
Article 934a, Fenal Code, supra, among other things, Provides that no person shall engage in the business Of Ye- tail dealer In either fresh or frozen edible aquatio products without procuring a license fronthe Game, Fish and Oyster ~Orsaission; nnd that the licensee shall pay an annual tRX of Three ~ollays in any oity or town of less than 5,000 population, Ten Dollars in any city or town of not less than 5,000 and not
Game, Fish and Oyster Comm., Attention2 Mr. H. D. Dodgen, page 6
more than 40,000 population, and Twenty Dollars in any city cr town of more than 40,000 population; and the failure to Pay the tax and procure the required license shall consti- tute a misdemeanor for which the person offending may be Punished bY a fine of not less than Ten nor more than Two Hundred Dollars. Also the Act provides that no person shall in the business of wholesale dealer of fish, oysters, engage shrimp, or other commercial edible aquatic products without an annual tax of Two Hundred Dollars and procuring a paying license from the Game, Fish and Oyster Commission; and that failure to pay the tax and procure the license shall oonsti- tute a misdemeanor punishable as in the case of a retail dealer. The pertinent definitions set forth in the Aot are as follows:
*A *Wholesale Fish Dealer' is any person engaged in the business of buying for the pur- pose of selling, canning, preserving or pro- cessing, or buying for the purpose of handling for shipments or sale, fish oysters or shrimp or other commercial edible aquatic products, to Retail Fish Dealers, and/or to Rotels, Restau- rants or Cafes and to the Consumer.
*'A 'Retail Fish Dealer' is any person engaged in the business of buying for the pur- pose of selling either fresh or frozen edible aquatio products to the consumer."
It is clear from a reading of the definitions of dealers that one who confines his business to selling to the consumer is required to pay the tax provided for retail dealers, and that the amount of such tax is determined by the population of the city or town in whioh the ocoupation is pursued. It is true that the wholesale dealer is permitted to sell to the consumer. However, when he has paid the tax required of wholesale dealers he is authorized to extend his operations. For examPle, in addition to selling the consumer, he may buy for the purpose of canning and may buy for the Purpose of selling to retail dealers. For the privilege of extending his operations beyond those of a retail dealer, he PaYs a higher tax. (Ei parte Xehlman 75 S. W. (26) 689; Greiner vs. State, 75 S. W. (2d) 1llOl. Article 7055 and 7058, Vernon’s Civil Statutes
reads as ~O~OWS~
&,me, Fish and Oyster Comm., Attention: Ids. H. D. Dodgen, Page 7
"Art. 7055. Any person, rim, corporation, or association of persons, who shall be the le- gal owners or holders.of any unexpired ocoupa- tion license issued in accordance with the laws of this State, may transfer the same on the books of the officer by whom the same was issued.
"Art. 7056. The assignee or purchaser of such unexpired occupation license shall be au- tEorized to pursue such occupation under such unexpired license for and during the unexpired term thereof, provided that such assignee or pur- chaser shall, before following such oocupation, oomply in all other respects with the.require- ments of the law provided for in the original applications for such licenses. Nothing in this law shall be so construed as to authorize two or more persons, firms, corporations or associations of persons to follow the same occupation under one license at the same time. bhenever any per- don, firm, corporation or assooiation persons following an ocoupation shall be closed out by legal process, the occupation license shall be deemed an asset of said person, firm, corpora- tion or association of persons, and sold as other property belonging to said person, firm, oorporation, or association; and the purchaser thereof shall have the right to pursue the oo- oupation named in said license, or transfer it to any other person; provided, suoh occupation license shall under no cfrcumstanoes be trans- ferred more than one time."
Ordinarily a license is a mere personal privilege which may not be assigned. But by express' provisions of the above quoted statute an unexpired occupation tax license is transferrable one time. A failure to comply with a provi- sion of statute directing'the transfer of a license to be reoorded on the books of the officer who issues it does not void the transfer as between the parties, such a provision being not for their benefit but for that of the state. The assignee of a license aaquires the same right that his as- signor had to pursue the occupation during the unexpired Portion of the term; but an attempt to make a second trans- fer in oontravention of an express provision of the law will
Game, Fish and Oyster Comm., Attention: I?. H. D. Dodgen, me 8
be nugatory. See Tex. Jur. Vol. 27, p. 905.
The oase of Asher v. Texas, 128 U. 2. 129, holds a state law exacting a license tax to enable a person that rithin the state, to solicit orders and make sales there for a person who is residing within another state, is repug- nant to that clause of the Constitution of t.he United States vblch gives Congress the power to regulate commerce among the several states, and is void.
The case of %mert v. Kissouri, 156 U. 3. 296 holds that a statute of the state, by which peddlers of goods, go- ing from place to place within the state to sell them, are required, under a penalty, to take out and pay for license, and which makes no discrimination between residents pro- ducts of the state and those of another state, is not, as to peddlers of goods previously sent to them by manufacturers in other states, repugnant to the grant by the Constitution to Congress of the power to regulate oommerce among the several states. Also see the oases of Rx parte Overstreet, 46 2. I?. 225; Crenshaw v. Arkansas, 227 U. 2. 389; Faces v. State of Louisiana, 232 U. S. 334; G.E. & C. Railway Company, 2 Tex. 217.
In view of the foregoing authorities you are re- speotfully advised that it is the opinion of this department that any person, firm or corporation engaged in the business of soliciting and/or accepting orders for edible aquatic pro- ducts when such produots are’to be shipped or delivered from another state to the purohaser in this state is not required tohave a fish dealer’s license. Rut if a person, firm or corporation engaged in the business of a *wholesale fish deal- er* or “retail fish dealer”, as these terms are defined by the statute, has an agent or representative stationed at a place, other than the main place of business of such person, rim, or oorporation, and who solicits and/or aooepts orders. for aquatic products to be sold and/or delivered by his rrincipal to the purchaser within this state, such an agent or representative would not be required t.o have a fish deal- er’s license, but his principal must have an additional li- cense for the “place of business” of &he agent, as required by Subsection 11, Section 3, of krticle 934a. Eov:ever, if anfgent of the dealer has no established “place of business” x?lers orders for aquatic psoducts are received, but travels from city to city soliciting orders for aquatic products to be delivered by his principal, neither he nor his principal FcuLd be req,ulred to have a dealer’s license by reason of such ammy.
we, Fish and Oyster Co&m., Attention: I.:r. H. D. Dodgen, Page Q
In reply to your seoond question, you are advised that if edible aquatic products are rmrely delivered by motor vehicle frosi outside the State of Texas and no sale is made witkin the state, such person would not be required to have 5 lioense.
Your third quest~ion is answered in the nsgative. In reply to your fourth question, you are further advised that such license may be transferred one time, when the business to which it was issued changes ownership, and that auoh licenses are transferrabla to a new business lo- cation under the sme ownership any t&m, -Tided the stat- ute is complied with regarding fees Fertaining thereto in towns or olties of different populations.
Trusting that the foregoing answers your inquiries, we reniain
Yours very truly ATTOITNEY CEXEEXAL OF T3XAC &.+&&j-&s- Ardell williams jLTT~.-~~~;~OV 24, 1939 Assistant Aw:J?‘t b. ~
*~~cIprLf ci;.ixiiA> 0%’ TEXikS