Untitled Texas Attorney General Opinion

February 21, 1950
Hon. Glbb Gilchrist opinion Ho. v-1012.
Chanoellor
Texas A deM College System Re: The appllcabllityof
College Stat,ion,Texas State inspection fees
to a fertllixersold
Dear 3trr by the City of Houston.
Your request for en opinion reads as follows:
"The dire&or of Publia Works of the
City of Houston has raised the question with
the State Chemist as to whether the City of
Houston is subjeot to the inspectionfees re-
quired by Article 97, Revised Civil Statutes,
1925, and Article 1712 of Revised Penal Code,
1925, on the tonnage of fertilizerwhich they
sell.
"The City of Houston makes and markets
a processed activated sewage sludge under the
trade name of Hou-Actlnlte. This product is
registeredwith the State Chemist as having a
guaranteed analysis of 5$ nitrogen, 3% total
phosphoric acid, and O# potash. It is a com-
meroial fertilizer under the definition given
in Paragraph 1, Article 1716, Revised Penal
Code, 1925.
"This product has been registered for a
number of years with the State Chemist In oom-
pliance with Artticle 95, Revised C1vFl Stet-
utes, and Artlole 1710, Revised Penal Code.
"Prior to the amendment of the law bv the
51st Legislature,the City of Houston has pur-
chased tax tags in compliance with these'laws.
The City of Houston has filed a report of the
sales of this product for the quarter Septem-
ber 1 through November 30, 1949.
"Question: Is the City of Houston sub-
jeot to the inspeatlon fees on the tonnage of
fertilizer sold by that city, under Article
Hon. Gibb Gilchrist, page 2 (V-1012)
97, Revised Civil Statutes, 1925, and Article
1712, Revised Penal Code, 1925, as amended by
Chapter 170, House Bill 574, 51st Legislature,
Acts 19491"
Articles 94 through 1.08of Vernon's Civil Stat-
utes, and Artloles 1709 through 1720 of Vernon's Penal
Code, regulate the sale of cotmnmrclalfertilizerwLthLn
the State of~T&xas. To defray the expenses of inapec-
tion and enfbroementof these regulatorylaws, an inspec-
tion fee of twenty-fivecents per ton is provided for
commercial fertilizer "aold, exposed or offered for sale
in this State" by "all firms, corporationsor persons"
engaged in the manufaoture or sale of aommercial fertil-
izers. Art. 97, V.C.S., and Art. 1712, v.P.c.
These statutes were passed to prevent fraud
being praotiaed in the sale of such roducts. Ex Parte
White 82 Tex Crim.85 198 S.W. 583 71916); A.G.Lettep
~&UT, vol:363, p.695. The Lnspectlonfee or tax
authorizedby this law Is levied and oolleoted for the
purpose of defraying the expenses of the State Chemist
and those working under him in inapeoting,analyzLng
and registeringcommercial fertilizers. See A.G.Opin-
ions and Reports, Vol. 1914-1916,p.722.
An examination of Section 1, Artlole VIII, and
Section 9, Article XI of the Conatltutlon of Texas re-
veals that these sections operate to exempt munioipal
oorporat$onsfrom only three classes of taxes. They are
ad valor&m, occupation end income taxes. State v'.City
ofE1 Pai~o,135 Tex. 359, 143 3.W.2d 366 (1940). It i
plain that the Inspectionfee required to be collected'
by Article 97 is not an ad valorem tax or an income tax.
It is equally clear, we think, under the decisions of
the Supreme Court in City of Fort Worth v. Gulf Ref.Go.,
125 Tex. 512, 83 S.X.2d UO (1935) and State v. City of
El Paso, supra, that the inspectionfee here under oon-
-ion oannot be classed as an occupationtax. Such
tax or fee 1s a license fee. A.G.Opinionsand Reports,
Vol. 1914-1916,p.722. This being true, the oonstitution-
al exemption of municipal aorporatlomfrom ocoupation,
Income or ad valorem taxes has no applioation.
Article 97, V.C.S., as amended by Section 1,
Rouse Bill 574, Acts 51at Leg., B.S. 1949, oh.170, p.
342, provides in part:
* To defray the expenses oonneoted with
Bon. Gibb Gilohrfst, page 3 (V-1012)
the lnspeotionand analysis of commercial
fertilizerssold, exposed or offered for
sale in this State and experimentsrelative
to the agrioulturalvalue thereof, all firms,
corporatkinsor persons engaged in the man-
ufaature or sale of aommeroialfertilizers,
herein termed the guarantors of commercial
fertilizers,shall pay to the State Chemist
at his officrein College Station, Texas, an
lnspeation fee of o . 0 (256) per ton of
. 0 0 (2000) pounds of oommem$al fertill-
zers whioh have been registered In oompliance
with the requirementsof Article 95 of this
Chapter and sold or distributed for sale in
this State. Such lnspeotionfee shall be
paid by the guarantor of suoh fertilizer,and
no other person shall be required to pay any
additional inspeotion fee o D on
Artiole 1712, V.P.C., as amended by Section 2
of House Bill 574, supra, provides in part:
"All firms, corporationsor persons en-
gaged in the manufaoture OP sale of oommer-
cial fertilizers,hereinafterreferred to as
the guarantors of oommeroial fertilizers,
shall pay an inspection fee of D 0 o (254)
per ton of 0 a 0 (2000) pounds of all commer-
aial fertilizerswhich have been regfstered
in aompliance with the requirementsof Arti-
ole 1710 of this Chapter and sold or distri-
buted for sale in this State in order to
entlt:e the same to Inspection and delivery
. s .
It is evident that the legislativeintent, as
expressed in the above quoted statutes, is to impose an
Inspectionfee of twenty-fivecents per ton of ooumter-
ala1 fertilizerwhich is sold or distributedfor sale
in this State, to be paid by the guarantor of such fer-
tilizer. It is expressly provided that "no other per-
son shall be mqulred to pay any addltlonal inspecrtlon
fee."
In Opinion No. O-4617, by a former Attorney
General, it was held that au& a fertilizer inspeotlon
tax could not be imposed on the AgriculturalAdjustment
Administratoron fertilizerdistributedby it in Texas,
for the reason it is an instrumentalityof the Federal
,
Hon. Gibb G~lohrlat, page 4 (V-1012)
Government and as such could not lawfully be burdened
with that tax or fee. However, that oplnlon~aswell as
Opinion Ro.O-4792, by the same Attorney General, held
that a prtvate person, firm or oorporationselling aom-
merolal fertilizer to the AgriculturalAdjustmentAdmin-
istration in Texas is subject to the Texas fertilieer
laws. It was pointed out that the feat the sale is made
to a Federal Instrumentalitydoes not olothe the vendor
with the immunity possessed by the vendee. From the rea-
soning expressed in Opinion Ro.04792, it follows that
a person, firm or corporationselling commert3ial fertil-
izer to a munioLpa1 oorporation in Texas is likevise
subject to the Texas fertilixer laws. Referring to'the
above quoted statutes, we find no direct provision ex-
empting persons, firms or corporationswho sell consuer-
oial fertilieersto Texas munloipal oorporatlons,nor
till suah statutes permit of any suoh construction.
The question of whether a municipal oorpora-
tioa was aubjeot to the Texas fertilixerlaws was not
presented or oonsidered in the above opinions (o-4617
and O-4792), and they should not be conatrued as hating
passed on suoh question. The word "private" la Lnaptly
used in those opinions in referring to the statutory
language of "person, firms or oorporati~bns.”
We are aware that it is a general rule of stat-
utory conatruationthat a tax imposed by law upon oor-
porations till not be held to be imposed upon municipal
oorporations unless the intent to do so olearlg appears
or is free from doubt. State v. City of Rl Paso, supra.
Consideringthe Texas FertlllserLaws as a whole, and
the proteotive purpose for whioh they were enacted, It
is clear, in our opinion, that it was the intention of
the Legislature that such laws were intended to cover
all persona, firms or oorporatlonsengaging in the sale,
or offering for sale In Texas of oonanemlal fertilizers,
regardless of whether they are private or municipal cor-
porations. The emphasis in the statute Is on the sale
of oommemial ferttillzers rather than on the status of
the vendors thereof.
But If the statutes be ambiguous and susoepti-
ble of more than one constrwtlon, there are certain
other well-settledrules which govern their construction.
First, the praotical interpretationof the act by the
Agewy charged with the duty of administeringit is en-
titled to the highest respect from the oourts. This is
e8pe0iallp true-when tact i-on has been long -
continuedan un%form. Texas Employera~ Ius. Ass'n v~.
Ron. Gibb Gilohrlst, page 5 (V-1012)
Holmes 145 Tex. 158, 196 S.W.2d 390 (1946). Qeeond, as
*in 39 Texas Juriaprudenoe266,,Statutes,Section
“Where a statute which has been oon-
strued, either by a oourt of last resort or
by exeoutive offioers, is re-enaotedwith-
out any substantialohange of verbiage, It
will oontinue to reoeive the same aonstrw-
Mon."
Under both the original and amended fertilizer
laws, the State Chemist is oharged with the duty of
their administration. Under the facts submitted,he has
for a number of years registeredthe oomercial fertillz-
er product of the municipal corporation in question, and
the corporation,in compliancewith those laws, has pur-
chased the tax tags required by it prior to the amend-~
men of Artloles 97, V.C.S. and 1712, V.P.C., by the 51st
Legislature.
Artiale 97, .C.S. and Article 1712, V.P.C.,
were amended by H.B.571 , Aots 51at Leg., R.S. 199, oh.
170, p.342. The Legislature is presumed to have known
the oonstrwtion giventhis statute by the State Chemist.
The constructiongiven an original act should be regard-
ed as having been brought forward in amendments to the
act, if the amendmentshave not obviously changed such
oonstruotion. Likewise the constructionto be given an
re-enaated statute should be the same as that given to
the original aot unless impelling reasons diatate other-
wise. Te%as Emplovers Ins.Ass'n v. Holmes, supra.
In the question under oonslderationit is olear
that Artioles 97 and 1712, as amended In 1949, present
no reason calling for a aonatructionof the inspection
fee provisions of the fertilizer laws different from
that heretofore given them by the State Chemist. The
1949 amendments are primarily directed at the ahanging
of the tag affixing requirementsof the original act.
Sec.4, H.B. 574.
SUMMARY
A municipal corporationengaged in the
making and selling of oommerolal fertilizer
In Texas la subjeot to the payment of the
inspection fees required in Artiole 97, V.C.S.
Eon. Gibb Gilahrist, page 6 (V-1012)
and Article 1712, V.P.C., aa amended by
Yours very truly,
PRICE DAEUEL
APPROVED: Attorney General
J. C. Davis, JP.
County Affairs Division -dfszzLif-
BY
Charles D. Mathews Chester E. Ollison
Exeoutive Asslstant Assistent
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