                   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
