Untitled Texas Attorney General Opinion ( 1945 )

OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Honorable D. F. Xftherapoon
County Attorney
tdaverick County
Eagle Pass, Texas
Opinion No. O-6869
Ro: Mabpg
a
have, 1140and n4at
than on4 brand?
whiohrr
) 4maIldodv
la, which,
the word4
y, 4u4h wordr
having a plural
hareafter any
0x-d on4 or 0oC4
lying with all
a m4an that any perron
on of more than on4
than one mark or brand?
8) Does thle, in your opinion, sul-
of the Penal Code, whloh among
vidse a psnaltg ior using mars than
wn attaohing hereto my opinion to tha County
Clerk, of keueri4k County, T4~84, d4t4d Q4ptemb4r Ee,
1945, and making it a part hereM, of this request.*
306
Eonorable D. F. ?;itherspoon - page 2
Art1010 6099 of Revised Clvll Statutes, 1925,
originally provided that only reoorded brands were evl-
denoo of ownership of the oattle, horses or mules upon
whfoh they W8r8 U44d. However, this stetute was repealed
by Acts, 1929, 41st Leg., p. 55, Ch. 22, 3eo. 1. The 40th
Legislature, by Aota, 1943, F. 471. Ch. 315, oreated a new
Arti 8899, which r&ads as tollowe:
~Seotlon 1. That Chapter 1, Title 121, %4-
vised Civil Statutes of Texas, 1925, be amenled by
adding after Artiole 6898 an Art1014 nucnbared 6899
to read as folloas:
“‘Arti 6899.
*‘All raoorda oi marks and brand6 haretotom
rimds as provided in this ChaptW, etoept a11 oounq
brandm, shall beoome rofd an6 or ao foroe end errsat
on the lrt day of Ootober, 1943, and every peraon
who has oattle, hogs, sheep, or goats 8hall hare his
mark and brand reoorded or ma-recorded la aooordanoo
with Article 6890 and Artlola 6898.
**Tha legal. Owner of a brand and/or mark shall
have a preferential right to raoord auoh brand end/or
mark for a peribd of two (8) year6 from the iat day
of Ootober, L943, but if auoh preterential right is
not exercised wlthln suoh two (E) years the same
ahall be rorfeited and suoh brand and/or mark shall
be aubjeot to regiatratloa by any pereon, and the
first person to record the sa@n ahall be the ownor
of the 44m4.
n*@y brand reoordrd in aeoordaaee with the
re&xements of this Aot shall be ooneldered as
the property ot the pereon afmslng euoh record to
be made and shall be subjeot to sale, aaslgment,
transfer, devise and desoent the ame as other per-
eoml property.
*‘Any parson may record suoh brand and/or mrk
as he ;nay desire to U84 provided no other pereon ha6
Bonorable D. F. sltherspoon - ~ttge 3
recorded such brand and/or tmrk, without regard
to whether or not such person has previousiy re-
corded a brand and/or mrk.
"*This Act shall not apply to any county
which shall have re-recorded all brand8 and mark8
within the post five (5) y4ara.'"
Th8 above Aot was amended by lots, 1945, 49th La-
gislature, F. 321, Ch. 235, gee, 1, in ths rollowlhg lang-
uege .
w*Seo. la. At shy plaoe in the above and rors-
going 8eOtiOh Of titiole 6899 whsre th4 word8 *brand
and/or mark* are used singularly, pUoh words or lang-
uage eball be oon8trued as having a plural meaning
and lnterpretatlon, 80 that h4reaft4r ah legal owner
amy have and own and reoord oae or more i rends and/or
mark8 by otherwlae oixnplying with all the other pro-
visions of this titiole.'
*See. 2. nceyt as is asmnded in 'Seotion la*,
above, all the other provisiom, wbrds, and language
of drtiole 0899 are hereby re-enaoted.
*sec. 3. All law8 or parts or laws in oonrliot
henwith ar4 hereby 4xpresaly rop4aled.
mSdo. 4. The taot that th4re ha8 bQen muoh oon-
fU8iOn a8 to the meaning of the word8 *brand and/or
mark*, and the further fact that the AttOrn4y Osneral
of the State of Texae has oon8trwd the Aot 80 as to
giv4 a 8ingular meaning to euoh word4 and languae,
and the further fast that there is a gr4at neoe8eity
oa the part of the own6r8 or livertook to own and re-
oord more thsn one brand and/or mark. creates an
emergenay . . . ."
~8 8e4n from the emergenoy olauee, Seotlon 4, above,
there was a heoeaslty on the part of owners of livestock to
own and reoord more than one brand and/or mark, and oonseCuently
Honorable D. P. Y;itharSpoon - Fage 4
the Legislature authorize4 the reoordatlon an4 ownership of
aore than one. Althsugh the word ‘WUQ” iS not Sp801ffOEii1y
listed in the amendment, it would be impraatioal for a live-
stoak owmr to have, OwA and record mars than one brand
without the -uw of Such brands.
Artiole 6899 reade that, *any person may moor4
such brand and/or mark as he may desire to kelp. . . .w (em-
~hasia addodh and the -Went of 1945, aupm, provides
that where the wor4e “bran4 and/or mark- were use4 elngular-
ly, Such words now have a plural meaning. Thus it is seen
that when the .language of the act and the amenbmant thereto
are oonatrued together, an owner of lfvsstook may -use one
or more brands, as -11 as moor4 then.
The Legislature*s~ power to Snaot law8 is only lfm-
its4 by the restrictions ot the State an4 W?sral Constitution
and foderal lawa. Similarly, the Legislature has the powor
to repeal a statute, subjeot to those same restriations, either
by express terms or neoecrsary lmpllcation~ Although the repeal
of statutes by implioatlon is not generally favored, a statute
whioh olearly and manliestly oonfliote with a formar law to
the extent that both oannot be enforced operates as a repeal
of the former statute by neoeseary lmplfoation. 89 C. J. 899,
9001 60 Am. JUr. Seo. 5254, 638, 558, S42 643i Oilmore Y.
Matthews, 122 S. xii. (24) 342 (errex 4laad88e4)~ Mingu8 Y.
ga4ane, 125 9. W. (24) 630 (error dismissed, ju4gment oorreot)s
Sutherland on Statutory Construotlon, vol. 1, Seotiom 2011,
2012.
Although the 1915 amendment, aupra, make8 no ax-
press referenoe to Artlo 6890 (V.&O.&) and Artlele 1484
(Fenal Code), its provisions oontllat therewith. These two
artloles are Set out below:
*Article 6890.~ Every person whP has Sattle,
ho858 sheep or goat8 Shall have an ear mark an4
brand differing from the ear mark an4 brand of his
309
Honorable D. F. WithherBQOOA
- Pa&e S
neighbors, whioh ear mark an& brand shall be ra-
oorded by the oounty olerk of the county where
such apical shall be. NO person shall use mom
than one brand, but may reoord his brand in as
many aountlra as he deems naoossary.W (Emphasis
a44s4)
*Artiolr 1404. whoetor in originally brsnd-
tug or nearking oattle us48 more than one mark or
brBA% shall be iiAed IJOt 1088 thBA twentpfi7B Aor
more than ona hundred dollars for laoh animal so
branded or marked.*
The test for BA impllod repeal Is whethar or
not thsrs is an irrsoonoilrblo oontliot -twoen lA esrli8r
and l later atatuta. 80 Am. Ju&fieo. 543. Applying the
taat hers, wa fin4 only an 8uthorised UM OS but OAR bread
iu the langwgr of ths earliar ltatute, end an exprmar
aothorioe4 use oi mre than on4 brand in ths words 6r ths
later statute. gonasqaently, it is our belist that that
prt of tha OOAOlUdiAg SenteAo, of brtiole 6890 (sm@88lsed
above) aA the entir4 proririanr of rrtlole 14e4, mpra,
sn in lrxsoonoilabls ooniliot with tha provlalon8 ot tho
lstsr statute, Artiole 6899, aupra, tha lrttar being eon-
tr~lll~g.
~8 the result thersor, only that portion of
Artiole 6890, emphaalxed above, la lmplbdly rapsalad as
it is the only abattar rqmgnant to the rubsequent rtatute.
50 A% JUr., Sea. 843. ~2~4ad the general &la8 appl.loable
to tha repel OS 8tatutea prsvsil with oriisinal as wsll as
oivil rtatutea, Art1010 1484 (Mnal Code) is implf~dly re-
poBle4 fn its entlraty by tha later 16gislstivr enaotiaant
of Artiole 6699 with Pm4AdEMAtB. Sutherland 0A Stetutory
COnBtrUOtiOA, Vol. 1, 300. 2031.
.
f
IM I
iionorable D. F. KitherBpOOn - Page 6
Yie therefore
BffiI'nUItiVe.
anmr both Of your -questions in the
Very truly yours,
ATTORNEY GEhTRkL.OF T"ZXh.8
K. Ayer
0
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