Untitled Texas Attorney General Opinion ( 1943 )

883
OFFICE oFmE A~ORNEY OENERALOFTEXAS
'0
AUSTIN
Honorable Gee. B. ShepparU
Comptroller of Public Aooounts
Austin, Texas
Dear sir:
real estate.
Your opinion revue er 2, 1043, reads
as followsr~
/
9 known as Eouse
tion 7 of AttAcle
MBroker an From every person, aoting
for hinTelf or dn b&alVoof enaas.ed in the
Broker or F%or, whether
such business or not,
Ten Dollars ($10) per year.
or the purpose or this sub-
per& who, for another and for a
other valuable consideration, rents,
ansfers, for aotual spot or future
iates purchases or sales or transfers
, bills of exohange,~neSotlable paper,
, bank notes, exchange, bullion, coin,
money, real estate, lumber, coal, cotton, grain, horses,
cattlei hogs, sheep,. produoe and ~erahandise of any
kind; whether or not he receives and delivers possession
thereof, provided that this subseotion sMl1 not apply
to a salesman who is employed on a salary or commission
basis by not more than one retailer, v?holesaler, jobber,
or manufaoturer, nor shall this subsection apply to or
890
1
Ron. Cao. B. Sheppard, page 2
be aonatrued to lnolude persons selling property only
as reaeivers, trustees in bankruptcy, exeoutors, admlnis-
trators, or persons selling under the order of any Court,
or any person who is inoluded within the definition of
any other ocaupation and is paying or subject to the
payment of a tax under any other subsection of this Aot;
however, this exemption shall not apply to any individual
engaged in more than one occustion as defined by the
other aubseotion of this Act. 1
lAttaahed herewith is a oopy of a letter reoeived
tram Rr. W. C. Perkins, keautive ;eeretery of the Texas
Real izstate Association, in..>nhiah he erpreases his doubt
as to the constitutionality of t:?e above quoted Act, and
raises the question of disorimination beoause salesnen
employed by a retailer, whDleoaler, jobber or xanufaaturer
are exempt from payment of the tax and real estate salesmen
employed on a salary or commission, are not.
Tour opinion is respectfully requested with referenoe
to the following questions:
*l. fs the above quoted Act unconstitutional beoause
it apparently applies to all real estate salesmen employed
on a salary or conmission and not to a salesnan who is
a&uployed on a salary or conmission basis by not more than
ona retailer, wholesaler, jobber or msnufaoturer?
-2. Should the application of the Aot be sorerned by
taots pertaining to the actual duties _rerformed by a real
estate salesman, rather than whether he is employed on a
salary or conmission bnsls?*
Mr. Perkins,’ letter requests that:
0. . . an offioial ruling be obtained iraPe the Attorney
Caneral on the question of real ostate salemen, holding
salesnuin*s license, and xorhing only out of one dealer *s
oifice, either on a salary or cormnission basti , not being
exempt from pyaent of the occupation tax under this Aot."
.
\
I” ~...
891
Hon. Ceo. H.. Sheppard, page 3
Sinoe we have deoided that Seotion 2 of B. B. 677
1s unoonstitutional insofar as it attempts to levy ah oooupa-
tion tax upon brokers and factors of real estate beoause of
a defect in it’s caption, we shall net attempt to give speoifio
answers to the questions stated in your letser and in that of
Ix. Perkins6
Pertinent portions of the caption of Ii. 8. 677’are
as follows:
*An Aot . . . to amend &bee&ion 7 of Article 7047,
as heretofore amended, so as to provide for an annual
Oocupation Tax of Ten Dollars (.“:lO) per year to be col-
lected l’roie every ‘broker’ or ‘factor, * defining aaxe,
inclLudlng brokers and factors of all classes, end exempt-
ing certain salesmen, and certain ot?.er persons; . . .
providing that this Act or any portioh of this Act shall
not levy or be construed as levying any tax on any new
oooupation or oocupations or be construed as levying any
inoreased and/or additional tax of any kind or oharacter
whatsoever upon any person, f%rm, partnership, association
and/or corporation; . . .*
Immediately prior to the effective date of R. 2. 677
no occupation tax was levied upon brokers and factors of real
estate unless suah tax was levied by Section 7 of Article 7047,
V. A. C. S which Set ion read as foll.ows prior to the act
uuder dism*%ion : 7
*7. Prokers.- Stocks and Bonds. - From every person,
rim, association of persons, or corporationa, dealing in
bonds, and/or stocks, either exclusively or ia connection
with other business, the sum of Piftg dollars (:@O.OO) for
each town or city in nbic?:. suah peruon, firm, association
or oorporation mintaim ari office. For the purjioneof
this Act, every person, fira, association. of pereons, or
oorporation whose business it is to negotiate purchases
or sales of stocks, bonds, excchan~e, bullion, coin, znoney,
bank notes , promissory notes, produce or nerohandise, or
anything else for sale, for30thers, shall be regarded as
a broker. Acts 1E.97, ‘1st C.3., p. 49; Aots 1951, 42nd
Leg .* p. 355, ch. 212, 0 1.”
Eon. Oeo. H. Sheppard, page 4
In our Opinion No. O-4287 we held that this Section
levied an occupation tax only upon stock md bond brokers of
the type therein described and that the seoond sontenoe of
aald Section IO no way authorized the levying of an oocupation
tax upon brokers of drugs, food products and other merchandise.
In the course of t-his opinion we aaid with raspeot to the
seoond sentence of this Section: “It was not intended to
extend the subjects tared in the first sentence of Seotion 7.*
In conformity with this opinion we are oo:~at:aineU to hold that
no oocupation tax was levied uDon real estate brokers and factors
prior to tile passage of EI. B. 677, and thue that K. B. 677 doe8
purport to levy a tar upon an occupation not heretofore subjeat
to.Asuoh tax.
section 35 OS kticle XII of the Texas Constitution
provides:
-0 bill, (except General aprzoprintlon bills, whloh
may eubmce the various subjects and accounte, for and on
aooount or whioh moneys are appropriated) shall aontain
nofe than one subject, whloh shall be expressed In Its
title. But If any subject shell be embraped In an aot,
which shall not be expreo3ed In the title, such sot ,shall
be void only as to so muoh thereof, as shall not be 80
expressed.*
A3 we3 said In Donaldson v. State ex rel. Janes,
161 3. $. (2d) 324 (error refused), the purpose of this sea-
tion Is to ap-grise legislators of the contents of bills, to
the end that surprise and fraud Iu legislation may be prevented.
Moreover, as was held by the Co*lrt of Criminal qppesla In De
Silvia v. State, 22a 3. %. 542, a statute is violative of this
seotion if the title is misladlng; and, as wus said In @iM
v. E. 0. L. C., 125 S, Yi+. (2d) 1063 (dismissed), If the aaption
epecifles the nature of a propo&d amendment to an existing 1
statute, the body of the amendment must conform thereto, and ‘-~.
any ohange attempted in any other reapcct is void.
Insofar a3 H, B. 677 attempts to levy an ocoupation
tax upon brokers and i’aotors of real estate we feel that It
runa oounter to all of these principles. A perusal ot the
Hon. Geo. E. Sheppard, page 5
oaption of this act would serve to lull a legislator or any
other Interested person into the belief that the act Imposed
no new taxes and would in no way apprise such person of the
atte.apt to levy a tax upon an occupstion not heretofore sub-
jeot to an oocu::ation tax. The csption is nisleading;
patently the body of the act varies fraa the natuze of the
aot as stated ir, Its caption.
Gouseguehtly, you are respeatfully advised that
insofar a8 I?. 3. 677 attempts to levy an occn~ation tax upon
brokers and factors of real estate mid act is violative of
Seation 35 of Artiole III of out Constitution, acd that auoh
tax ia void. This opinion in no way passes upon the validity
of those portions of 11. B. 677 whioh purport to tax ooaupations
other than that of a real estate broker oz factor,
Trusting that the foregoing ruiiy answers your
Inquiries, we are
Yours very truly
R. Dean Moorhead
Assistant