Senator A. M. Aiken, Jr.                 Opinion No. c-56
Chairman, Committee on State Affairs
The Senate of The State of Texas         Re:   Constitutionality
Austin, Texas                                  of Senate Bill
                                               No. 258
Dear Senator Alken:
        This acknowledges your request for an opinion as to
the validity of Senate'Bill 258, Fifty-Eighth Legislature, a
copy of which is attached to your request.
        This bill, If enacted, would amend the present statutes
of Texas by exempting from the sales tax levied by Chapter 6,
Title 122A, Taxation-General, Vernon's Civil Statutes, the sale
of any motor vehicle to be used by a church solely In the opera-
tion of a school for the education of children or for the
transportation of said children to and from or in connection
with said school or Its activities. It would exempt motor
vehicles, trailers and semitrailers  which :re the property
of and used exclusively ln'the service of . . . a church
when used exclusively in connection with the operation of a
school operated by said church or in the transportation of
children to and from said school or in connection with said
school activities thereof, . . .' from registration fees
required by the motor vehicle registration laws provided in
Articles 6675a-1 through 6675a-17,  V.C.S., 1925. This bill
also makes provisions for the refunding of the motor fuel tax,
levied by Chapter g,,ofTitle 122A, Taxation-Qeneral, V.C.S.,
on motor fuel used . . . for the purpose of operating or pro-
pelling any . . . motor vehicle to be used by a church solely
in the operation of a school for the education of children or
for the transportation of said children to and from or in con-
nection with said school activities, . . .'.
        Although this bill proposes to amend three different
tax statutes, the amendments are all germane to the one subject
of taxation; therefore, it is not invalid because of more than
one subject-matter (Missouri-Kansas-Texas R. Co. of Texas v.
Rockwall County Levee Improvement Dlst. No. 3, 117 Tex. 34,
297 S.W. 206 (1927)).



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Senator A. M. Aiken, Jr., Page 2 (No.   C-56)




        Article VIII, Section 1 of the Texas Constitution pro-
vides in part as foll,ows:
             "Section 1. Taxation shall be equal
          and uniform. All property in this State,
          whether owned by natural persona or corpora-
          tions, other than municipal, shall be taxed
          In proportion to its value, which shall be
          ascertained as may be provided by law. The
          Legislature may Impose a poll tax. It may
          also Impose occupation taxes, both upon
          natural persons and upon corporations,
          other than municipal, doing any business
          in this State. . . ."
        Section 2 of Article VIII of the Constitution reads in
part:
              "Sec. 2. All occupation taxes shall
          be equal and uniform upon the same class
          of subjects within the limits of the
          authority levying the tax; but the legls-
          lature may, by general laws, exempt from
          taxation  public property used for public
          purposes; . . .'
        That part of Section 2 of Article VIII, supra, authorizing
the Legislature to exempt certain public property from taxation
has reference to property taxes and does not pertain to excise
taxes such as those mentioned in Senate Bill 258.
        The Courts of Civil Appeals, the Supreme Court and the
Court of Criminal Appeals of the State of Texas in numerous
cases have held that the Legislature has authority to classify
different types of business for purpose of taxation so long as
the legislation Is not discriminatory nor arbitrary as between
the same or like classes of business.
        In the case of Hurt v. Cooper, 130 Tex. 433, 110 S.W.2d
896, 901 (1937), the Court in speaking of a greater tax per
store on chain stores than on Individual stores pointed out
the following distinctive features: quantity buying, ability
to pay cash and receive discounts, skill in buying, warehousing,
and distribution from single warehouses, capital, unified adver-
tising, superior management, standard form of display, concen-
tration of management In special lines, and standardization.



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Senator A. M. Alken,,Jr., Page.3 (No. C-56)


These distinctive features were held to be interrelated and
Interdependent In the ohaln store business.
       :’In the opinion in,Hurt v. Cooper, supra, the Court
said at page 900:
            j “That is a definite holding that mer-
          chants may’be divided into classes and
          the classes taxed In different amounts
          and accoqlln& ,$o different standards;
          that the consideratlons,upon which such
          classlficatlor@ are based are primarily
          within the cjlscretlonof the Legislature;
          and that courts can interfere only when
          ,it is,made ,,q@arly to ,appear that there
          is no reasonable baslg,for the,attempted
          classification. If there is a reasonable
          basis or, $0 express it differently, if
          it,cannot be sald~that the Legislature
          acted arbitrarily, the courts will not
          Interfere. Mere differenoes in methods
          of,conducting businesses have long been
          reoognlzed In this atate a8 sufficient
          to support,the classlfiqatlon of mer-
          chants for the purpose of levying ocou-
          patlon taxes. For instance, our sta-
          tutes (see article 7047, as amended
              ernon’s Ann~.Clv. St. art. 70471)
          P evy occupation taxes on itinerant mer-
          chants and peddlers. The difference
          between their ocoupatlons and that of
          an,ordlnary merchant is not great, but
          It would hardly be contended at this
          time that it Is not sufficient to sup-
          port a separate classlflcatlon.”
        Difference in profits derived, in extent of consump-
tion of articles, and other conditions that might be supposed,
can properly be :taken.into coqslderatlon by the Legislature
In making classlflcatlons and In determining the amount of
occupation taxes to,be laid,on each.
        The mere fact tha$~,d$scrimlnatlon1s made In classlfi-
cations for occupation taxes proves nothing against classlflca-
tlon which Is not oneits face an arbitrary, unreasonable or
unreal one.           ,,’



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Senator A. M. Alken,,Jr., Page 4 (No.   c-56)




        The Court in rendering Its opinion in Texas Co. v.
          100 Tex. 628, 103 S.W. 481, 484 (1907) in which
--it=
an o jectlon was made that a statute dlscrlmlnat~s between
persons pursuing occupations which belong to the same class,
said:   -
                   The very language of the Constl-
            &o;    of the state Implies power In
            the Legislature to claeslfy the sub-
            jects,of occupation taxes and only
            require’sthat the tax shall be equal
            and ‘uniform upon the same class. ‘Per-
            sona who, In the most general sense,
            may be regarded as pursuing the same
            occupation, as, for Instance, merchants,
            may thus be divided Into classed, and
            the class&s-may be taxed In different
            amounta and,~accordlngto different
            standards. Merchants may be divided
            Into wholesalers and retailers, and,
                     be,‘reasbnablegrounds, these
            If t,hiire
            may be further divided according to
            the particular clasaea of business In
            which they may engage. The conaldera-
            tlone upon which such classlflaatlon8
            shall be based are primarily within the
            discretion of the Legislature. The
            courts, under the provisiona relied
            on, can only Interfere when It Is made
            clearly to appear that an attempted
            classlflcatlon has no reasonable basis
            In the nature of the businesses classl-
            fled, and that the law operates unequally
            upon subjects between which there Is no
            real difference to justify the separate
            treatment of them ufdertaken by the
            Legislature. . . .
         In                  76 S.W.2d 1060, Tex.Crim. (1934),
Appellant was
            =-i-i% conv c e on complaint of not having a license
for a coin-operated handkerchief vending machine. He claimed
that Article 7047A-1 was vlolative’of Article VIII, Section 2,
In that It was not equal and uniform because pay toilets and
drinking cup vending machines were exempted. He also com-
plained because the tax on marble machines was greater than,
and measured by a different standard than “other similar
amusement machines. ” Relief was denied.


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    Senator A. M. Alken, .Jr.:, Page’5 (No.   C-56)


            We quote from page 1064:
                II    . businesses of the same general
               ciaks may be properly subdivided or
               reclasslfled   where reason exists
               therefor.    Particular attention Is
               called to this because’there are
               commodities and commodities, amuse-
               menta and amusements, servloee     and
               services; and, If reason exists there-
               for,   the Legislature may subdivide or
               reclassify   commodity vending machines,
               service vending machines, and amusement
               vending machines. In Qong Wing v.
               Klrkendall, 223 U.S. 59, It Is laid
               down that e etate enactment may make
               dlscrlmlnatlons,    If’ founded on dlrr-
               tlnctlona not unreasonable or purely
               arbitrary. ”
            That the Court.6 have nothing to do with the policy,
    wisdom, expediency or propriety  of legislative   enactments Is
    almost a maxim. Ollre v. State, 123 S.W.     1116 (Tex.Crlm. 1909 1.
              In compllanoe with the rule laid down in the above
    oases, the Legislature has,authority to classify,     and by
    claselfylng   to exempt from taxation, certain types of busl-
    nessea, aasoolatlons,   corporations  or lndlviduals,  provided
    they are equal and unlform upon the oame olass of subjects
    within the limits of the authority levying the tax.
             We are of the opinion that the provisions    of Senate
    Bill No. 258 are not arbitrary nor dlsarlmlnatory     and that It
    la a valid Bill.

                             SUMMARY
                     Senate Bill No. 258 provides for a
            reasonable classlflcatlon,  Is equal and unl-
            form ae to the class of subjects affected   and
            Is therefore valid.
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Senator A. M. Aiken, Jr.:,?Ps@'6(No.         C.-%)     i.


                                   Yours vgry truly,
                                    WAOQONER CARR
                                 '. Attorney ,Ceneral of Texas
                         .,:




               ‘.

JRB:pw         " ~,
APPROVED:       I' ::~
OPINIONCOMMITl'E$ "5~ "
W. V. Qeppert; Chairman
John Reeves
Bill Allen
James Stofer
Pat Bailey.,
               !'
APPRUVEDFORTHEATTORhlEY GENERAL
By: Stanton Stone




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