          OFFICE OF THE ATTORNEY      GENERAL OF TEXAS
                             AUSTlN




‘i,cnurebls
          l’cmL. ~ceuoh~p
&scrstnr)-of 4ate
hlatin, ~sxna




          a*eare In rsoelpt of
which YOU rsqw8t the opinion 0
lng questlow :
                                             llaat a stIppleLe-
                                             0. 934 wh0rcra
    oowollb ation of                          ths taxabl.8
    capital of the
    tarabls caplt
                                          on 3 render Eowa

                                      . 934, 46th Ls$ialaturs,provides

                                eaid ocnsolidatfonof euoh
                            nerelrasthe taxable oapital
                         unt or the texebie oapltal  as
                         84, a6 wanded, of tbo ocprpors-
                          and upon ahioh a frwahhk3 tax
                       by said aorporet5.onsto the Eeara-
                      the aurrsut year, then in suah event
                     ise tar shslr La psyebla until the
    naxt regular psymmedtdrte, 61sprovided in l'ltle18s.
    Cha ter S OS the i;cttvirred
                              Civil i3htutesuf Terau of
    l&, but‘in the event that eafd aoaaolid,ation   of euoh
    aorporatlonsas provided in Eeotiono 1 and P.oilthis
                                                                  646


Bon, Tom I..Beauohemp,Page 2


    Aat shall provide for an lnareaee In the taxable
    aapltal of the proposed oorporatlonover the combined
    taxable capital of the corporationsso consolidatedup-
    im vahichfranohlrretax had been already duly paid for
    the current year by such oorporatlons,then in such
    event, upon the epproval of said consol‘iaationoy the
    Leoretary or atate, a supplementalfranOAlSe tax shafl
    be a
    pi0        sa   co 03%
    or the hevised blfil *tatutea or Aexae or IVES in the
    case of an lnarease in the taxable capital of &y aormestia
    or foreign oorporatlon."
         As pointed out by you In your letter, Artiole 7090, Revised.
Civil Statutes, 1925, was espreeely repealed by hots of 1930 418%
Legislature,6th Called Seesion, p. 220, Ch. 08, sec. 1. Prior to
Its repeal, krtiole 70D0 provided as follows:
        'In the event or Increase In the authorized aepital
    stock 0r any domestie or foreign corporation,it shall
    also pay in advance a eupplementalfranohlsetax thereon
    ior the remainder of the year down to and iualudingthe
    thirtieth day of April next thereafter,the amount of
    which shall be determined as la provided in the third
    article or this chapter lh case or the firet rranohlee
    tax payment to be made by a domestic aorporatlonwhlah
    may be hereafter authoriecsdto do business within this
    State.*
         A valfd express repeal abrogatas, destroy6 or supereedas
the aat or provielon against rhlah it ia direoted. Thereafter
the statute repealed Is considereda8 though It had never existed,
except as to transaotlonepassed and closed. 39 Tex. Jur. 155.
         Prior to the enactment of house Bill Bo. 934, It was ruled
by thle Department in Opinion No. O-784, addreesed to the Honorable
Tom L. Reauohamp, beoretary or State, that the Secretary oi State
is not authorizedto oolleot a aupplemantalfranchise tax on domea-
tio corporationsfor the iraatlonal part of'the year remaintrig when
suah corporationslnareaee their taxable oapltal by aha-&er amend-
ment.
          Article 3, Sea. 36 of the Texas Constitution,providea
a8 r0u0wst
Hon. Tom L. Eeauchamp,Page 3


         wNo law shall be revived or amended by reterence
     to its title; but in such case the act revived, or the
     seotlon or seotions amended, shall be re-enaotedand
     published at length.”
         It is well establishedthat a valid existing statute may
be incorporatedin an act by reierenoe to Its title and the erred.
of such adoption 1s to re-enaot the prior statute to whloh reierenoe
is made. CuinIan vs. Eouston & T. C. Ry. Co. (Sup. Ct. 1896) 34
@ Vi.7381 Dallas County Levee &strict No, 2 vs. Looney (Sup. Ct.,
$18) 207 S.,W. 3101 Dallas County Levee ImprovementDistrict ilo.6
VS. Curtis (T.C:A. 1936) 287 s. %‘.301; Trimmer vs. Carlton (Sup.
Ct. 1927) 296 S. i:~.
                    1070. In eaoh at these oases, however, the
Veierenoe statute” aas s valid existing statute at the time oS Its
adoption by the subsequentenactment.
         In Qulnlan vs. Rouston & T. C. Ry. Co, supra, the oonten-
tlon was made that the statute adopted by reierenoe had expired by
its own Umltatlon and Sor ‘ihatreason the section oS the act making
tha reieranoeWas inoperative. Although It wad held that the
Veieranoe statute” had not expired Sor all purposes, ChleS Justice
Gaines pointed nut a slgnilioantdlstlnotionbetween the present
Article 3, Section 36 and the provlslon OS I045 and many oonstltu-
tlonal provlslons oS other states In the Sollowing language:
    -‘TheconstitutionOS I045 contained no inhibitionegalnst
    the revival oS statutes by reterence to .thelrtitle.
    The present oonstitutlonhas a provlslon which oorresponds
    to h3CtiGn 25 0r Article 7 0r the Constitution0r 1045;
    but that provision uses the word *revlvs’ instead oS
    *revise*. IS it had been in roroe when the aot OS I566
    was passed, and if the law oS 1864 had then expired, it
    would have prasented the question Whether the older law
    would have been revived and made applioable to the Waoo
    Tap Railroad Company by a mere relerence to Its title.
    But, under the constitutionin force when the special
    charter was granted, the question doea not arise. In the
    absence of any oonstltutionalrestriotlon,we are of
    opinion that one statute, by a proper reierenoe to another,
    may lnoorporate in It the provisions oS the Sormer law,
    although the former may have expired, or may have b,een
    repealed. A law so reierred to in another, and made a
    part oS it, does not operate by Its inherent Soroa, but
    takeserreottrom the statute in whloh it is lnoorporated.
    . . . ii the statute reierred to ba an existing law,
                                                                ,648

Eon. Tom. L. Beauohamp,Page 4


    the legislativepurpose is to apply its provisions
    to the subjeot matter of the new aot. IS it has expired,
    or has been repealed, the purpose Is to revive it and
    make it ap?lioable in the same manner. . . n
         If the purbose or aeotion 3 or Rouse Bill No. 934 is to
revive the repealed artiole 7080 by reierence to Its title and make
It applicable to the corporatione‘designated in House 2lllNo. Ir34,
it is an attempt to revive a statute by referenoe to its title in
violationof Article 3, Section 36 of the Texas Constitutionand
thereforevoid, IS, however, the purpose of the aot is not to
revive said artiole but is to require the payment of a supplemental
franchise tax as now required of other domestio or foreign oorpora-
tions, it is or no otleot since such oorporationsare not required
to pay a supplementalSranchlse tax upon increase oS their taxable
oapltal.
         Sections 1 and 2 of House Bill MO. 934, 46th Leglslat.re/;f
authorize the oonsolldstionof.two corporationsorganized under the.
lawaot the State of Texas ior one or more of the purposes
speolrled lziSubdivision81 or Article 1302 of the Revised CivlL
Statutes oS Texas and it is provided in Seotlon 4, the,emergenoy
olause, that:
        '*The Saot that there is no preaent provlslon ln the'
    statute for the consolidationof corporationsorganlied
    r0r, the purposes stated under Bubdivislon81 or Artlclc
    1302 0r the R.3aiea Civil Statutes 0r xexas, 1926, ana
    that'lt is neoessary Sor the we3Sare oS the State that
    provision be made tor the consolidationor suoh corpora-
    tions create~an emergenay,etc.e
        .A well establfshedrule of'statutory oonstructloais ex+
*-48sedas tollows In San Antonio IndependentLahool Distrlot vs.
'tatd(T.C.X. 1916, writ rerused), 173 6. W. 526:
         n .~.
             . where part oS the whol.eact is un-
    oonstltutlonalend the remainder is oonstitutional,it
    the two parts oan be poaslbly separated uourts ahopl%
    do so, and not per&t the invalid part to destroy the
    whole law. ir, aster the elimination of the invalid
    part oS the l~aw,there,remainsen intelllglblaahd.
    valid statute oapable oS being pl.aoedIn exeoutlon.an%
    oonrormlng to the general purpose an% Intent oS .the
    Legislature,the law will not be destroyed,but hel.d
    te be valid .andbinding exoept as to the excised part.
    . . . As said by Ju%ge Cooley:
                                                                         649

     Eon. Tom L. Beauohamp,Page 6


                   "'b-heretherefore,a part cjf a statute is unoon-
               stitutional,that fact does not authorize the courts to
               declare the remaindervold also, unless all the pro-
               v'sions are cocnected in subject matter, d~ependingon
               each other, operating together for the same pur;>ose,
               or otherwise so connectedtogether in meaning that it,
               cannot be presumed the Legislaturewould have passed
               the one without the other, The constitutional.pro-
               visions may even be contained in the same sect&n, and
               yet be perfectly distinct and separable, so that the
               first may stand though the last fall'. Cooley Con-
               stitutionalUrn. seotions 177, 178.
                  "That dr:ctrineis always recognized by all cbu?i,s.*
               See also to the same effeot: cihltev. Farhing (T.C.A.
     1912, writ refuse&)  212 S.X. 193, White v. Viveriok County
     yiater Control & Imp.Dist.No.1,(bom.App.1931) 35 S.&;,(2)107;
     City of Dallas v. Love, (T.C.A. 1930) 23 S .F. f2d) 431; Gefirrt
     v. Yorktown Ind.SohoolDiet. (T.C.A. 1926), 285 S.W. 346; Gerhardt
     v. Yorktown Ind. School Diet., (T.C.A. 1923), 252 S.K. 197.
              The primary purpose of House Bill 934 appears to be to
     authorize the consolidationof corporationsand the provision for
     a supplementalrranchlse tax, incidental thereto. The two pro-
     riaione are not so Inter-relatedand dependent, one upon ths other
     that we can presume the Legislaturewould not have passed the.on8
     without the other.
               It is our opinion that the SeOretary of Gtate is not auth-
      o,rizedto collect a supplementaliranahise tax under Eouse Bill
     .No. 934, 46th Legislature,where a oonsolidationof oorporations
     ,Innreasesthe taxable oapital of the proposed oorporationsover
      ?he combined taxable capital of the corporationsoonsolldating.
             be are further of the opinion that the ineffectivepro-
     visionsOS Section 3 do not render House Bill No. 934 void In its
8~   entirety.
                                              Yours3very truly
                                         ATTOBNBY GEBEBAL OF TXAS

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