                           A-N             ii..




                                         *       I
 Hon. C. B. Belk, Administrator                    :                            i,~‘,
.Bcerd or Plumbing Bxamlners
 Austin, Texas                  ,Opinion No.~ V+28.
                                                                              .:
                                           ., He :. Whether then licenser r
                                                      r9e iixed.;by., the, P&umb-
                                                     ing ticenae      Iaw Oi‘1917,
                                                  ~. :&B. ;188,, ;,Acts 50th Leg-
                                                     islature,.   is a license
                                                     ree .or,anoccupation
                                                     tax; and. related ques-
                                                   .,iti.ons.       .,;..
                                      .-                 ,i   .:   ?;   >   :


Dear Sir:                                            ~




            Your request         ror.. an. opinion
                                            reads as ‘&ows:
                                                        . ..~
           .*This Board has received sevaral’ communica-
     tlons rrom;plumbers~ complaining that some of the
     smaller cities     require the payment of a prohibi-
     tive occupation t.ax or ,l%censa fee ~of plumbers.
     Therefore,   we -..submit the hollowing questions   rsr
     answer:
            “1.
                  charging ‘an occupation tax of more than
                  one-halr 0r the state occupation tax, ap-
                  pllcable: to a part.icular.~~occu~tiidn,
                  plsaae advise ua whether the.-~license fee
                  as riied in the Plumbing .License .Law or
                  1947 .would. const$tute  an oc’cupation tax
                  under the. provision ,o? the .const:,tut$oh?
            “2.   &uestion:    If such rees w0Q.d constitu’te
                  an .odcupation tax unqer the ;provision. of
                  the constitution,.   v&at would be the, ,max-
                  imum amount that could be charged ,by clt-
                  las o$ t,h6 State,. ror occupati~on tax .,or, ll-
                  censa fee of plumbers?
            “3.
 &on.. c. E. Belk,               Page 2,   V-428.


                     citks    under 5,000 inhabitants   charge an
                     occu tion tax or 1lcense ree ot plumb-
                              ~xcess~ or one-hali
                     ers r II OXC~SS~    one-half Or
                                                  or the State Li-
                     COMI rwv..
                     COMI                         ,
          In your rlrst question you ask whether the ll-
tense roe provided by the Plumbing License Law or 1947,
S. B. 188 is an occupetlon tax, cornin& within Section 1,
Artiole VIII, or the Texas 0oristitution.
                     In   the    csse
                           dr City 0r Fort worth V. wr   w-
flnily        Conpeny,  Ter. 512, 83 8. W, (2d) 610, the Sa-
                                125
prem   0ourt distinguishes     between an occupation tax and
.a lloumr   ?a0 a8 r0ii0w8:

                 WAn’oooupation tax is levied primrilp
           ror the p.urpom   of .ralslng revenue, and unless
          the mat+rq before ud Is primarily a revenue
          ma&~ur:(,~it is not an ,oocupation tex, . . A
          &lcense 1$w IS one whloh tourers upon those
          “ho ~oomply ‘thonwith a right denied all, others,
          and it is ima.t+rial     whether or not it provides
          a tee theretor   a . ; An orrioiai     ii0~13e may
          be said to br a. permission granted by pub110 au-
          thority to oarry on a business or trade or~prr-
          ronn other aots whioh are rorbldden by law ex-
          ~oept to persoy ‘obtalnlng     suoh permlsslon . . .I
           An oocupation tax la thus                 dletinguishable    irOn
a licemite fee or tax imposed under                 the police’ power, In
that an occupatlofi tax Is primarily                 Intended to ralue re?e-
MI, uhlle a lioenm     tee or tax is                priemlly    intended as
a man.~ or, or ald to, re&alatlon.
            A ply-,   this yardstick   t0 .tho Plumbin& Lloense
LOW      0r  , we tee1 that them is little
              194?                               doubt that the
primary purpose of the Aot Is the re ulatlon or ‘the plumb-
ing trade.    This Is clear rran the --h-T
                                        pr no pa provisions     or
the Aot which provide for the lssuanoe and ‘nnevml or li-
oenaas  to varying types of plumbers and plumbing Inspectors
and rOr ‘qualifying   examinations   to detanine    the tltnere  or
applicants.    Also tha exoluslon    or t& purpose or raising
revenue as ‘the solo 0~ as even a primary purpose of the Pot
IS left beyond ,quesflOp bi the provision ‘or the Bat that
the lloense   fees provided for therein shall be Teduoed if
then fw&ds rema lning in the hands of the Board at the end
of any oalendar year are in excess of the expenses of the
Board (See Section 7).     We, therefore,    advise you as to
your rimat   question that the license    leas provided for In
Hon. C. E. Belk, Page 3, v-4.28.


the Plumbing License Law of 1947 are not occupation taxes,
but arr license fees.
          Your second and third,questionsask whether muni-
cipalitiesmay charge an occupation tax or license fee or
plumbers, and if so, in what amount,
          We quote Section 1,.Article VIJI, of the Texas
Constitution,on the question of whether a mmicipality
may levy an occupation tax on plumbers:
          ". 0 . It (The Legislnture) may also
     impose occupation taxes, both upon natural
     persons and upon corporations,other than
     municipal, doing any business in this State
         . except that persons engaged in mechan-
     i&l and agriculturalpursuits shall never
     be required to pay an occupation tax; . . .
     and provided rurther that the occupation
     tax levied by any county, city or town for
     any year on persons or corporationspursu-
     ing any profession or business, shall not
     exceed one half of the tax levied by the
     State ror the same period on such prorossion
     or business.n (Parentheticaladdition ours).
          In the light of the for8gOing constitutional
provision, a municipalitymay not levy an occupation tax
on plumbers for two reasons:
          First, because plumbing is a mechanical pursuit
aud as such is not subject to an occupation tax. wsstrrn
Company v. Sheppard, 181 S. W. (2d) 850, error refused.
          Second, because a plunicipalitymay not tax an
occupation which is not taxed by the Legislature for the
benefit or the State. Hoefling v. City Of San Antonio, 20
S. Wi 85; Ex Part8 Stevenson,169 S. W. (2d) 175; 27 Tex.
Jur. 901, Section 54-.
          This answers your second and third questions with
respect to the levying of an occupationtax.
          As to whether municipalitiesmay charge a license
fee of plumbers, we interpret the statute as ,establishing
the Texas State Board of Plumbing Exa.tinersas the sole ll-
tensing agency ror plumbers, fron and after the erfective
date of the statute, to the exclusion of all municipalities.
Hon. C. E. Belk, Page 4, V-L28 *


          This Interpretationfollows from the provis-
ions of the Plumbing License Law of 1947 repealing the
previous statutory authority for municipal licensing of
plumbers (Arts. 1078, 1079, 1080, and 1081, R. C. S.),
from the provisions throughout the Aot establishinga
uniform State licensing system to beginitiatedand ad-
administeredby the Texas State Board of Plumbing Exam-
iners, and from the provisions of the Act to the effect
that no city or town shall prescribe any ordinance, by-
law, rule or regulation inconsistentwith the Act.
          In this holding,~we follow Opinion No. V-333
of this department,a copy of,which opinion we enclose
herewith.


         The license fee provided for in the
    Plumbing License Law oi 1947, 9. B. 188,
    is not an occupationtax. City or Fort
    Worth v. Gulf Retining Co., 83 5. WV..
                                         (2d)
    610.
         Municipalitiesmay not levy an occu-
    pation tax on the plumbing trade. Sec. 1,
    Art.,VIII, Texas Constitution;Hoefling v.
    City or San Antonio,'20 8..W. 85; Ex Parte
    Stevenson, 169 S, W. (2d) 175; Western Co.
    v. Sheppard, 181 9. W, (26) 850.'
         The Texas State Board of Plumbing Ex-
    aminers is the exclusive licensing agency
    for plumbers, and municipalitiesare pre-
    cluded iron issuing licenses to plumbers
    after the efrective date.of the Plumbing
    License Law.~
                          Yours very truly
APPROVWD:            ATTGRNEYGENERALOFTElL4S


                     BY
   RNEYGENERAL
DJC:jmc
