Untitled Texas Attorney General Opinion

THE&ITO~Y GENERAL
OFTEXAS
GERALD C. MANN
Honorable George Ii. Sheppard
Comptroller of Public Accounts
Austin, Texas
Dear Sir: Opinion No. O-5483
Re: Whether Section 2 of House Bill No.
677, Acts of the RegUIar Session
of the 48th Legislature, repeals
Article 7047a, R. C. 3.
We have received and considered your opinion request
of July 30, 1943, wherein you state:
"I shall thank you to advise this de-
partment whether Section 2, House Bill 677, Acts
of the Regular Session of the 48th Legislature,
repeals Article 7047a, R. C. 5. 1925."
The Section in question reads as follows:
"Sec. 2. That subsection 7 of Article
7047 of the Revised Clvtl Statutes of the State
of Texas, 1925, as amended by Section 1 of House
Bill No. 251, Chapter 212 of the General Laws of
the Regular Session of the Forty-second Iegisla-
ture, 1931, is hereby amended to read as follows:
cehalf 0T
-ano; .`` business OP occuoa-
tion of a Broker or Factor, whether he 1s
prlncloallv enganed in such business OP not,
there shall be collected Ten Dollars ($lO,OO)
per year. A "broker" or "factor," for the
DUPDOSI zof this subsectlon. is every person
who; for another and for a-fee, commission
OP other valuable consideration, rents, bugs,
sells, OP transfers, for actual spot or
future delivery, or negotiates purchases OP
sales or transfers of stocks, bonds, bills
of exchange, negotFable paper, promissory
notes, bank notes, exchange, bullion, coin,
money, real estate, lumber, coal, cotton,
grain, horses, cattle, hogs, sheep, produce
Hon. Geo. H. Sheppard, page 2 O-5483
and merchandise of any kind; whether or not
he receives and delivers possession thereof;
provlded that this subsection shall not apply
to a salesman who is employed on a salary or
commission basis by not more than one retail-
er; wholesaler, jobber’; or manufacturer, nor
shall this subsection apply to or be construed
to include persons selling property only as
receivers, trustees In bankruptcy, executors,
administrators, or persons selling under the
order of any Court, or any Derson who is in;
eluded within the definition of any other oc-
CUDatlOn’and 1s Darinn OP subject to the Day-
ment of a tax under ang other subsection of
this Act; however, this exemption shall not
apply to any ind,ividual engaged In more than
one occupation as defined by the other subsec-
tion of this Act. I” (Emphasis ours).
Article 7047a provides:
“There shall be levied on and collected from
every Derson ,-f firm corDoration, or association of
persons owninn 0DeratlnR manaRinR coiitrollinq,~
pursuing the b&iness or &cuoatlon’of any cotton
exchanne’ auotation service in this State-, or furnish-
InR’ auotatlons on the stock market on Rraln, ~cotton,
or other commodities, or stocks and bonds, and”‘who,,
maintain an office or place of’buslness, or branch
office, and have a bulletin board OP other means
of furnishing quotations on the stock market, an
annual State occupation tax of TWO Hundred and Fifty
($250.00) Dollars, which shall be paid annually in
.aavanc e, or as otherwise provided by law for the
payment of occupation taxes, on each and every sep;
arate establishment, office, branch office, OP place
of business; provided the tax herein levied shall
be only One Hundred ($100.00) Dollars for each per-
son, firm or corporation which is a member of only
one commodity exchange; provided, this Article
shall not apply to any person, firm or CorpOratiOn,
or association of persons who furnish gratuitously
market quotations to any person desiring the same
and who are not engaged in the business of furnish-
ing market quotations and without intent to soliclt
or accept orders for contracts, or contracts for
future del.iverles or sales oft any commodity, stock
or bonds; provided, further, any person, firm or
corporation liable for a tax under this Article ‘shall
not be required to pay the tax under Sections 8 and
Hon. Gee, Ii. Sheppard, page 3 O-5483
12 of Article 7047, but shall pay the tax pro-
vided by this Article; provided, further, each
county or city in which same is operated may
levy one-half the occupation tax herein provided
for ih the manner now provided by Article 7048."
(Emphasis aurs).
In no way does Section 2 of House Bill No. 677 ex-
pressly purport to repeal Article 7047a; ~nelther do we think
that such repeal is accomplished'by Implication. As can readily
be seen, the two acts levy occupation taxes upon different
things: THe former affects, with certain exceptions, persons‘
"engaged in the business or occupation of a Broker or Factor";
the latter relates, again with stated exceptions, to persons or
associations 'pursuing the business or occupatlbn of any cotton
exchange quotation service" or "furnishing quotations on'the
stock market on grain, cotton, or other commodities, or stocks
and bonds." No conflict can possibly exist between'these two
acts, and without such a conflict a repeal by implication i's
impossible. 39 Tex. Jur. I[ 73: If the business of a broker
or factor be considered as being included within that of fur-
nishing stock exchange quotations, the underlined proviso to
Section 2 of House Bill No. 677 operates to harmonize the~tWo
statut~es and to make the business taxable only under Artlc'le
7047a s On the other hand, If the two businesses are considered
distinct but are conducted by the same individual, the oneis
taxable under Section 2 of'House Bill No. 677 and the other Is
taxable under Article 7047a. In this situation no repeal by
implication is possible since the two acts and the'taxes levied
therein relate to different subjects, and, as Is said in 39 Tex.
Jur. 1 76:
"There can be a repeal by implication only
when two acts or statutory provisions are in pari-
materia, that Is, when they treat of the same mat-
ters OP their subject and object are the same."
Consequently, you are respectfully advised that Sectl,on 2 of
House Bill No. 677 in no way operates to repeal Article 7047a.
Trusting that the foregoing fully answers your in-
quiry, we are
Hon. Geo. H. Sheppard, page 4 O-5483
Very truly yours
ATTORNEYGENERALOF TEXAS
By s/R. De&n Moorhead
R. Dean Moorhead
AssIstant
RDM:fo:wc
APPROVEDAU0 6, 1943
s/Grover Sellers
FIRST AZSISTANT
ATTORNEYGBlQERAL
Approved Opinion Committee By s/BWS Chairman