Untitled Texas Attorney General Opinion ( 1955 )

Hon. Robert S.~Calvert Opinion No. S-174
Comptroller'of .PublicAccounts -
Capitol Station Re: Construction of Subsec-
Austin, Texas tions (a) and (b) of Sec-
tion 2 of Article 7065b,
V.C.S., as to the appli-
cation of the 1% eva-
poration and handling de-
duction to the fifth cent
~of the'gasoline tax; and
; ,.
construction of Section
14s.as to the application
of thenincreased.fuel tax
on fuels used by non-
.p&ssenger carrying vehicles
Bear Mr. CaIvert: ‘of tran'sitdompanie.s.
You request the opinion of this office upon three
questions stated'in~yov letter 'ofAugust 8, 1955; which we
shall answer id the-twder..inwhi& you.h&e stated them in-
your request. .:
:
...I. ':-,._.
Your questions are, in substance, as follows:
i. ,; ~_
i. In view of the ~acttbat;'Section I-of'.:
Article II of House.Blll 660; Cha&& 404,~::.'
Regular Session of the '54th~Legislature;amended"
Subsection (a) of Section 2, of the motor fuel
tax'lau--Article'7065b+ Vernon's -Clv,il~ Statutes--
to increase the' excise tax imposed on the first i
sale, distribution or use,of motor fuel from four
cents (4#)'to.five c'ents(5#) 'per. allon, but
Subsection (b) of said Section 2'&7.,i!;ig~;;p&e
izes 'a.deducfion of the':taxdn 1
gallonage to be thereafter apportionedamong (1)'.
distributors,'(2) wholesaler-jobbers,~and. (.3)
retailers, for the expense of 'collection;ac-
counting for, and reporting the tax collected,)~
cites the tax rate at 44%per gall.on and in view
. o:fShe.,fact ,that this subs.ection~'.
(.bjwas not
amended, will you please give me'.youropinion as
to whether the,distributor, wbo:is~'requiEed: to
collect the tax, be authorized to deduct the ' ..-
on 1% of the total taxable gallonage at 5 CE
Hon. Robert S. Calvert, page 2 (S-174)
per gallon or at 4 cents per gallon?
2. If you hold that the tax on 1s of the
total taxable gallonage at 5 cents per gallon
may be deducted, will the .distributorwho makes
the first sale and the wholesaler-jobber who
makes subsequent sales of said motor fuel, be
required to set up the.tax on the manifest and s
compute the 'deductionsto be distributed, ona
basis of.fivecents (5#), or on a basis of four
cents (-4qi)? :I
3. .Are company automobiles, pickups and
:trucks .operatedby,transit companies to super-
vise.and maintain the conveyances transporting
passengers at fixed.rates, subject to the higher
.,_ tax rates prescribed In subsection (a) of.Sec-
tlon2.,and Sectlon~14 of the law as now amend-
ed; or arethey subject to the lower rates lm-
Dosed by the new Section 14a?
_: .:
The.answer.to your first question &q that the ais.
on 1% ofthetotal
tributor is authorized .todeduct the tax (
taxable gallonage at 5 cents per gallon. The answer to your
tiecondqnestion"ls "on .thebasisof 5.cents.per gallon."
The answer to your third question&: -the fuel consumed In
such vehicles will be subject~to the.highertax rates pre-
scribed in Subsection (a) of Section 2, and Section 14 of
the law as now amended.
Our answers to your first and second questions are
arrived at by what-we conceive to~:bethe Intention of the
Legislature and this is arrived at by.the application of wel:
known rules of statutory constructi.on.
In Shipley v. Floydada Indeuendent School Dist.,
250 S.W. 159, (comm. App. 1923). the court held:
when~a new section has been introduced in-
to a law, it.must be construed in view of the
original statute as it stands.after the amend-
ment is introduced, and it and all the sections
of the old law must.be regarded as a harmonious
whole,-all sections mutually acting upon each
other."
A similar holding is roundin American Suretg.Co.
of New York v. Axtell Co., 120 Tex. 166, 36~'S.W.2d.,715(193
wherein the~court stated:
Ron. Robert S. Calvert, page 3 (S-174)
"To arrive at the intention of the Legis-
lature, in enacting the amendment of 1927, to
Art'.5~160;which was the original act of the
Legislature.on this subject, it is the duty, of
course, tomlook primarily to the act itself as
an entirety; and to understand~.thelegal effect
of thenamendment enacted by the Legislature, it
must be~considered'in connectionwith the
original act, and that.which had.been done there-
under. A particular section of an act of the
Legislature, when enacted, must be construed in
view of the.existence of the original statute
as it stands after the amendment is introduced:
itand all sections of the old law must be re-
garded a:s~
a harmonious~whole, as c~onnected'with
and'naturally actingupon each."
See .Cernochv,.Colorado CountV, 48 S.W.2d.
also
470 (Tex.Civ.App. 1932) and MarWell'v;. Galveston County
186 S.W.2d 273 .(Tex.Civ:App.1945; error re,f.)~.This is in
accord with.the general rule that ali acts 'and'partsof acts
In pari materia are to be-construed together..:~
Cain v. State,
20 Tex. 355 (1857). :,.' ., :-
-Auother+ule of construction is that; when a law
is amended effectmust'be given to'the'amended'law in a
mauner consistent wSth the 'amendment.'Pett v. Cook, 115 Tex.
205, 281 s-w. 837 (1926); Mitctiell:v.Citp'of Terrell;.g&
S.W.2d. ,556 (Tex.,Civ.App.1936 error ref.) if the acts are
so inconsistent that the provi&ons cannot .ie harmonized,
the provisions of.prior acts in conflict.with'the intention
of the .lastact are lmpl~iedlgrepealed. In'Townsenc-v.
Terrell, 118 Tex.'463, .16S.W.2di 1063 (1%97, the court up-
held'tbe last of two acts.;.stating:.
"Itis wel.1~.settled thatrepeale by impli-
cationare not-favored, and that all acts and
parts of acts .in @ari'materia are to.be~construed
'as a ~whole and interpreted in.such mariner~asthat
all may stand'where~such'may r'eas'onablg be done.
It is'only where acts are so...inconsisteiitasto
be irreconcilable that a repeal by implicati.on
will be indulged.' If there exists such conflict,
then'there is a presiimption.ofthe intention to
repeal all lawsand parts of laws in conflict with
the clcr?r,,intention'ofthe lastact. This is
.'necess~arily~true where~both'actscannot ;stand as
valid enactments;". '~...
Hon. Robert S. Calvert, page 4 (S-174)
In Whittenberg v. Craven, 258 S-W. 152 (Comm. Ap
1924), the court stated the rule as follows:
"In the construction of a particular statute
or in the interpretation of its provisions, all
acts relating to the same subject, or having the
same general purpose, should be read in connection
with it, as together constituting one law. Such
statutes, being in pari materia and relating to
the same subject are to be 'takentogether and so
construed, in reference to each other, as that, if
practicable, effect may be given to the entire pro-
visions of each. The object of the rule is to
ascertain and carry into effect the intention of
the Legislature, and it proceeds ~uponthe sup-
position that the several statutes relating to one
,subjectwere governed by one spirit and policy,
and were intended to be consistent and harmonious
in their several parts and provisions. If they
cannot be construed so as to be consistent and
',ha??monfonsin their several parts and provisions,
._ then .either~
the hypothesis that they'relate~to
the same subject must be abaudonedor else the
-‘laterstatute, in so far as it cannot be recon-
ciled and made consistent and harmonious with
the earlier, all1 be construed.as repealing those
‘.provisions.of the earlier.'statutebetween uhich
and the provisions of~the later'statute irrecon-
cilable ~rspugaancy:exis``,.'~',
We think it manifest that It was.the,intention o
the Legislature that the deduction of 1-s be computed on
the actual tax rate as set out in the manifest, namely the
5 cents.,and that the reference 'in the unamended Subsectic
(b) to the prior tax.rate of 4 cents pei-gallon should be
disregarded. It is necessary'to construe Section 1 of
Article 2 of House Bill 660, amending Subsection (a) of
Section 2 of the.Motor Fuel Tax Law,,Article 7065b, V.C.S.
to avoid a conflict wlth,,theunamended section which refer
to the 4 cents per gallon, if possible. We do not regard
the apparent conflict as material. The manifest will bear
the 5 cent tax rate/and the l-&% deduction should be allc
upon this.
With-respect to your third question, we think it
was the intent of the Legislatux%to accord the lower tax
rate to transit companies in the operation of their facili
ties actually used in the transportation of passengers in
incorporated cities and towns under a franchise from such
cities or towns which regulate the rates. We think the
Ron. Robert S. Calvert, page 5 (S-174)
automobiles and pickup trucks used to supervise and main-
tain the facilities of transportation companies do not come
under the provisions of the statute according a lower tax
rate. Such automobiles and pickup trucks are not actually
a part of the facilities used for transporting passengers
for hire under a franchise and under rates fixed by such
city or town. No fares are charged as to the use made of
such automobiles and pickup trucks.
Under the motor fuel tax law, as
amended, Article 7065b, V.C.S., a dis-
tributor is authorized to deduct the
tax on 1% of the total taxable gallon-
age at 5 cents per gallon. The distri-
butor who makes the first sale and the
wholesaler-jobber who makes subsequent
sales of motor fuel will be required to
set up the tax on the manifest and com-
pute the deductions to be distributed
to the purchasers on a basis of 5 cents
per gallon.
Company automobiles, pickups and
trucks operated by transit companies to
supervise and maintain the conveyances
transporting passengers at fixes rates
will~be subject to the hi her tax rates
prescribed in Subsection 7 a) of Section
~2,.and Section 14 of the law as now
amended.
APPROVED: Yours very truly,
Davis Grant JOHN BEN SEIEPPERD
Reviewer Attorney General
L. W. Gray
Reviewer
Will D. Davis
Special Reviewer Assistant
John Atchison
Acting First Qsistant
John Ben Shepperd
Attorney General