# Untitled Texas Attorney General Opinion > Texas Attorney General Reports ยท July 2, 1952 URL: https://www.frixlaw.com/law-library/cases/4137262 ## Case - **Court:** Texas Attorney General Reports - **Decided:** July 2, 1952 - **Precedential status:** Published - **Opinion:** Opinion - **Judges:** Price Daniel - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4137262 ## Opinion text August 27, 1952 Hon. Geo. W. Cox, M.D. Opinion No. V-1512 State Health Officer State Dept. of Health Re: Necessity that bedding Austin, Texas manufactured in Texas for sale outside the State comply with the bedding stamp require- ments of the Texas Dear Dr. Cox: Bedding Act. Your request for an Opinion of this office reads In part as follows: IWe should like to know if bedding manufactured In Texas and sold outside the State of Texas through wholesale and retail commercial channels is required to have affixed an adhesive stamp (tax stamp) under the provisions of the Texas Bedding Act. "We believe that the wording of the Act requires that any person who manufac- tures, who renovates, or who sells or leases any bedding covered by the provi- sions of this Act should have an adhesive stamp (tax stamp) affixed regardless of the ultimate destination of the article." Section 7 of Article 4476a, V.C.S. (Bedding Act), provides in part: 'Sec. 7. (a). No person shall manu- facture, renovate, sell or lease or have in his possession with intent to sell Or lease in the State of Texas, any bedding covered by the provisions of this Act, un- less there be affixed to the tag required by this Act by the person manufacturing, renovating, selling or leasing the same, an adhesive stamE prepared and issued by this Department. . -. Hon. Geo. W. Cox, page 2 (V-1512) The language of Section 7 of Article 4476a clearly provides that bedding manufactured in Texas is required to have a stamp affixed regardless of where the bedding is to be sold. Therefore, we agree with you that bedding manufactured in Texas and sold outside Texas is required to have an adhesive stamp (tax stamp) affixed, if the statute does not violate the commerce clause of the United States Constitution (Art. 1 Sec.' 8 cl. 3). Section 8 of Article I of the Federal Consti- tution provides in part: "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Ex- cises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;" Should it be considered that the regulations and fee charges incident to the regulation operates on manufacturing alone, it has been held that manufactur- ing Is not a part of interstate commerce and consequent- ly the prohibition of the Commerce Clause would not be applicable. In American Manufacturing Co. v. St. Louis, 250 U.S. 459 (1919) the city of-St. Louis levied against manufacturers a tax'imposed as a condition of a grant of a license to carry on a manufacturing business in that city, the amount of which was to be ascertained by the amount of sales of manufactured goods whether sold within or without the State. In upholding this tax the Court stated: "In our opinion, the operation and ef- feet of the taxing ordinance are to impose a legitimate burden on the business Of _ . carrying on the manufacturing Of goods In that city; it produces no direct burden on commerce in the goods manufactured, whether domestic or interstate, and only the same kind of incidental and indirect effect as that which results from the payment Of Hon. Geo. W. Cox, page 3 (V-1512) property taxes or any other and general contri- butions to the cost of government. It there- fore does not amount to a regulation of inter- state commerce. D D .It See also Utah Power & Light Co. v. Pfast, 286 U.S. 165 (1932). __ . Considering next the effect of the regulation should it be one on the selling of bedding; it has been held that under the federal constitutional system, there necessarily remains to States, until Congress acts, a wide range for permissible exercise of power appropriate to their territorial jurisdiction, even though interstate commerce may be affected thereb Alexandria, 341 U.S. 622 (195l.y' Breard v* City Of We have been unable to find any Federal Statute regulating the manufacturing, renovating, selling or leas- ing of bedding. In Milk Control Board of Pennsylvania v. Eisenberg Farm Products, 306 U.S. 346 (1937) the court had before it a statute which regulated the sale of milk and required a license of all persons in Pennsyl- vania who were selling milk. The Court held that since Congress had not legislated on this subject matter and since only a small portion of the milk produced in the state was shipped outside ~the state, the act was not a burden on interstate commerce. Also in Townsend v. Yeomans, 301 U.S. 441 (1937) a Georgia statute fixing maximum charges for handling and selling leaf tobacco was held not invalid as placing a burden on interstate commerce though practically aIl:.bfth8,,Coba~coi,gr6wni:Yn the state of Georgia was shipped outside the state. In H. P. Hood & Sons v.,BuMond, 336 U.S. 525 (19@), the Court was considering a case where a distri- butor of milk in Massachusetts sought a license for a receiving station in New York enabling him to compete with purchasers of milk in the area in New York State where the receiving station was to be located. In up- holding the right of the New York State Commissioner of Agriculture and Markets to deny a license on the basis that the area did not have an'adequate supply to allow another receiving station, the Court stated: Hon. Geo. W. Cox, page 4 (V-1512) "Our decision in a milk litigation : most relevant to the present controversy deals with the converse of the present situation. Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 55 S.Ct. 497, 79 L. Ed. 1032, 101 L. R. A. 55. In that case, New York placed conditions and limitations on the local sale of milk imported from Vermont designed in practical effect to exclude it, while here its order proposes to limit the local facilities for purchase of additional milk so as to withhold milk from export. The State agreed then, as now, that the Com- merce Clause prohibits it from directly curtailing movement of milk into or out of the State. But in the earlier case, it contended that the same result could be ac- complished by controlling delivery, bottling and sale after arrival, while here it says it can do so by curtailing facilities for its purchase and receipt before it is ship- ped out. In neither case is the measure supported by health or safety considera- tions but solely by protection of local economic interests, such as supply for local consumption and limitation of competition. This Court unanimously rejected the State's contention in the Seelig case and held that the Commerce Clause, even in the absence of congressional action, prohibits such regu- lations for such ends. "(1,2) The opinion was by Mr. Justice Cardozo, experienced in the milk problems of New York and favorably disposed toward the efforts of the State to control the industry. Hegeman Farms Corporation v. Baldwin, 293 U.S. 163, 55 S.Ct. 7, 79 L.Ed. 259; Borden's Farm Products Co. v. Baldwin, 293 U.S. 194, concurrence at page 213, 55 S.Ct. 187, at page 193 79 L.Ed. 281; May- flower Farms v. Ten Eyck, 297 U.S. 266, dissent at page 274, 56 S.Ct. 457, at page 459, 80 L.Ed. 675. It recognized, as do we, broad power in the State to protect its inhabitants against perils to health or safety, fraudulent traders and highway haz- ards even by use of measures which iear adversely upon interstate commerce. Hon. Geo. W. Cox, page 5 (V-1512) Also see Parker v. Brown, 317,~U.S.341 (1943). In view of the above authorities we believe that this small fee, which Is incldental~to the exercise of the State's police power to protect public health in the sale of bedding Is not a burden on interstate com- merce. SUMMARY Section 7 of Article 4476a, V.C.S. re- quires that bedding manufactured in Texas and sold outside Texas have an adhesive stamp affixed. Yours very truly, APPROVED: PRICE DANIEL Attorney General J. C. Davis, Jr. County Affairs Division E. Jacobson Reviewing Assistant Charles D. Mathews First Assistant BA:am --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4137262. Public record. Not legal advice.