                               December         13,   1951



Hon. Bill TiDDen                          Oninion      No.   V-1375
County   Attorney
Taylor   County                           Re:     Constitutionality         of subsec-
Abilene.   Texas                                  tion (c) of Sec. 5a, Art.             7047k,
                                                  V.C.S.,     as amended,         requir-
                                                  ing seller       and purchaser          to
                                                  make a joint        affidavit     of the
                                                  true consideration            and rcquir-
                                                  ing the tax assessor-collector
                                                  to refuse      mot&      vehicle      reg-
                                                  istration     applications        from
                                                  any seller       who owes       ‘affidavit
Dear   Mr.   Tippen:                              error     fees.”

                 You submit     for the opinion    of this office   the question
of the constitutionality      of Subsection     4 of Section    VII (Motor    Ve-
hicle  Sales   Tax)    of House    Bill  285, Acts   52nd Leg.,    R,S. 1951, ch.
402, p, 695.      Subsection     4 of this act amends     Section    5a of Article
7047k,   V.C.S.,    to read in part as follows:

               “Section      4a,   The purchaser        and seller    shall
       make a joint      affidavit    setting     forth  the then value     in
       dollars   of the total consideration,            whether    in money
       or other    things     of value,    received     or to be received
       by the seller      or his nominee         in a retail   sale,   . . .

               ..
                    . . .

                 “(b)    Where     the joint affidavit     incorrectly    states
       the amount         of the consideration       actually    received   by
       the seller       so that the tax actually        paid is less than
       that which        was actually     due, the seller      shall pay an
       affidavit      error    fee as follows:

               “(i)  Twenty-five     Dollars    ($25)  if the actual
       consideration     received    by the seller    was from     five
       per cent (5%) through        10 per cent (10%)      greater    than
       the consideration       upon which    the tax was paid, and

               “(ii)    One Hundred       Dollars   ($100)  if the actual
       consideration       received     by the seller    was in excess    of
       ten per cent (10%)         greater    than the consideration     up-
       on which      the tax was paid.
                                                                              .




Hon.   Bill   Tippen,    Page     2 (V-1375)




                  “(c)    The seller      shall pay the affidavit        error
        fee to the Tax Collector             and Assessor.         One half of
        the affidavit       error    fee shall be retained         by the coun-
        ty as a fee of office          or paid into the officers         salary
        fund of the county,          as is provided        by general     law.
        The remainder           of the affidavit       error   fee shall be
        paid over       to the State.       The Tax Collector         and As-
        sessor       shall refuse      to accept     an application     for reg-
        istration      or for transfer        of title   of any motor      vehicle
        from     any seller       who owes      the Tax Collector        and As-
        sessor       an affidavit     error    fee.”

                 You    specifically    ask    the following      three    questions:

                ” 1. Is this method        of exacting   a fine or penalty
        constitutional,      since   it does not afford    any type of
        hearing     or right    of appeal    to any administrative     tri-
        bunal or to the courts?           Does it afford    due process
        of law?

                “2.    Does     the Tax Assessor           and Collector       have
        the authority      to accept      an applicdtion        for registration
        or for transfer        of title which      is presented        to him by
        the purchaser        of an automobile          from     a dealer     who
        owes   an affidavit        error   fee?     (Section     C of the Act
        herein    referred       to, clearly    states     that the Tax Asses-
        sor and Collector           shall not accebt        an application
        from   a seller     who owes an affidavit             error    fee.)

                 “3.   Is the refusal     to accept      applications   consti-
        tutional     as a method     of enforcing       a penal provision
        or of collecting      a deficiency?      ‘*

                  Your    first   question    calls   for ‘a consideration      of that
portion      of the statute     which    requires     the seller     and purchaser      to
make     a joint   affidavit    disclosing      the true    consideration     upon
which     the tax of 1.1% is assessed              by Section    l(a) and (b) of the
act.    The statute      provides      in explicit    terms    for payment     by the
seller     of an “affidavit      error    fee” in the event       the joint affidavit
incorrectly       states    the consideration        paid.

                You ask specifically       if this portion     of the statute     ac-
cords   due process.      We think it does.        That this is a part of a
revenue    statute  is apparent,     and has for its purpose,the            preven-
tion of fraud and evasion        of a valid    revenue     measure      and is in
our opinion     an appropriate     and proper      provision     upon the subject
of revenue    ~ We think the portion         of the statute    here    considered
does nothing     more   than subject     a dealer     who fails     or refuses      to
comply    with the statute     to a right    of action    in favor    of the State
.




    Hon.   Bill   Tippen,     Page    3 (V-1375)




    for the ‘affidavit      error      fees”     prescribed        by the statute.        The
    fact that it will subject         dealers       to litigatiqn     by the State to en-
    force   the collection      of the fees        thus incurred        is not sufficient
    to condemn      this part of thk statute as a denial                  of due process.
    It is but giving     a right     of action       in favor    ,of the State for the en-
    forcement     of the statutory          lien provided         by Article      7083a,    V.
    C.S., against     a dealer      who fails        to comply      with its provisions.
    The fact that the State must bring                  suit in a court       of Isw guaran-
    tees to the dealer       a hearing         and a r’ight of appeal.           *his    action
    preserves     to the dealer         a’ll of the fundamental           rights     character-
    ized as due .process.          Hagar       v. $ecla&$ion           District     No. 108,,
     111 U.S. 701 (1894);        Ivfexis     IndePendent        Schbol    Dist.    v. City of
    Mexia,    134 Tex.     95,133        S.W.2d       118 (1939).

                    This     portion    of the statute does not by its terms                 de-
    prive   a dealer     of any right.        Itsdoes     not impose      an arbitrary       or
    oppressive     burden.        It simply      require6      that the true considcra-
    tion be stated.       It is within      the lagi6lative       power     to inake rersoa-
    able provisions        to in6ure      the pe,rformance         bf *ties      60 closely
    interwoven     with th6 public          welfare     in collection     of tax66 legrlly~
    imposed    and to render~dealere               6ubject    to rer6b&abls       penalties
    incurred    by reason        of their    ne.gli&ncc       or refuosl      t$ comply      with
    the statute.     United      Slz+tei v. Stowcll,        133 U.S. 1 (1890);        Ipterst@a
    Forwarding       Co. v. Vinyard,          121 Tex.      289, 49 S.W.Zd        403-0;
    %‘lrst Nat. Bdnk v. Hughes,              6 Fed.     737 (cx.N.D.         Ohio,   1881).

                   In answer   to your first    q&&ion,       we hold that this
    part of the statute deep not v,iotate       due‘process       under either     the
    Federal    or State Con6titutioa,     or rny ot$ar      provision      of the Coa-
    stitutidn,  but is a valid   exercise    of comtitutional       legislative    pow-
    6r in the enforcement      of the revenue      laws of this State.

                    We ~466 next to the coasideration                  of your    eecond
    question    which    calls  for an opinion     66 to the         constitutionality        of
    the following     provisioh    of the statutb:

                    “The    Tax Collector          snd A66es6or     shall  refuse
             to accept    an application        for redistration    or for tranr-
             f6r of tiile   of any motor         vehicle   from  any seller    who
             owe6 the Tax      Collector        and h66666Or     an affidavit   er-
             ror fQe.”

                    There    is nothing     inherently    unlawful       in the sale of
    automobiles.       The right      to engage    in:&y    lawful    business        without
    4x1~ unreasonab,le      rtstraiut     and tegulotioa       ib inherent        in our demo-
    cratic   system    of governrrient.       Whether     (L statute erhanates           from
    tke police    powar    or the taxing      power    of the State,       it,is   clear    that
    the State cannet      prohibit     thl ordinary     buaitiess     of buying       or sell-
    ing rrew or used motor vehicles             by vestin&      absolute       or arbitrary
Hon.     Bill   Tippen,        Page       4 (V-1375)




power      in the    tax assessor-collector                      to refuse    to register      cars
sold by dealers              delinquent           in the payment         of *affidavit      error
fees.”      The     seller      must       be     given    an appvopriate       hearing       and an
opportunity to exonerate himself before the denial of such a val-
uable right as the pursuit of a lawful busineea.          We think this
portlon of the statute ia a denial of due procesr         and subjects
such a dealer    to arbitrary    restraint,  freedom from wkich ia
guaranteed    by the Constitution of the United States and the Bill
of Rights  embodied      in the Constitution   of this State.

              I,f this statute conferred     discretionary    power upon
the tax assessor-collector       safeguarded     by reasonable    rules or
regulations   for his guidance in the performance          of his duties
thereunder,    and provided a method of appeal, this provision           of
the statute might be susthined,       but this it does not do, Instead
it vests in the tax assessor-collector         unqualified end unrastraia-
ed power to refuse the registration         of motor .vehiclea purchased
from a delinquent dealer,       The cQoduct of a lawful business and
the right to earn a fkelihood       therefrom     may not be thus stifled.

                                                          ge Corporation v, SamuelI,   130
Tex. 107, 1                                                thesu preme c ou*t In coastru-
ing Article 6g54,N.C.S..                     readi          a8 followl?

                    *If the property      back by the defendnat
                                                   tendered
         has beam injured                or &ma-d
                                        while in hi,s posaess~on
          under 8och bond, tke lberiff or conmtable to whom the
          same is tendered aball not receive the same, unless
          the defendant lZ kke *ime t&me bnderr the reasonsbte
          amount d suph iqjury m damage, ta be judged of by
          8och ofitcbr.               (Emphamla           add   e d .)

said:

                “Tht  part of ertHe   68% eatboriatag the sher-
         iff 01 coamtable to &termlue   tke amount of damages
         te the property repCsvled baa tiea nullified, because
         it undertake@ to confer upoo #ucch offlcer judicial
         power, aad it has been bell timt such power cannot
          be conferred upon rerb aa efficer.                             Morgan v. Cole-
          man (Tex. ($1~. App,) 281 SW.                           670~ Dupree     v. State,
          102 Tex. 455, 119 S.W. 301.”

              The Legislature   in the exercise    of the sovereign
power of taxatton haa the iacldeatal rllht      to make reasrolrble
provisions   fot the collection of taxes and the enforcement       of
payment thereof, and what we kave said above LB O& to be con-
rtcued to tke comtrmtp. We hmid. km mml~lcc to Ilrt l*64          q-n-
tia, that the mstbod here a&ptedd. for the rubsem we have
p&it&    oat above, is uncoaatitutisul.
.           ,




    Hon.      Bill      Tippen,   Page   5 (V-1375)




                     We may hold that part of the statute             first    considered
    constitutional      and hold that part which        we have considered            in con-
    nection    with your     second   question    unconstitutional,         as they may
    be separated       and are not so dependent          upon each other         as to pre-
    clude-the    application     of this ruie.    City if Taylor        v. Taylor      B‘ed-
    dKng Mfg.      Co., 215 S.W.Zd      215 (Tex.    Citi. App.     194g, arrds       ref.j.

                          Olu answer      to your     eecoad   qkstioa       necessarily       an-
    swers        your     third question.




                        Subsection      4 of Section      VII (M&r       Vehicle     Sales
                Tax)   of Home@ Bill       285, Acts S2nd Leg.,          eh. 402, p. 695
                (Sec.   5a, Art.    7047k, V.C.S.)       requiring     the seller     and
                purchaser       of m&e@     vehlclee     to eicecuto    8 hint    affidavit
                gibing    the true conrideratien          w      w#ch     the metor      ve-
                hicle   aales, tax is aaaessed,         prawiding     for payment by
                the dealer      of an “affidavit     err’or   fee,”   ia a valid    provi-
                aiee of a t&ng        ,statute and does not violate           the due
                process     clause    of the 14th Amendment            of the Constiti-
                tibn of the United       States    or the 3rd and 19th Sections
                of Article     I of the Constitution        ef this State.

                        That portion       of Article     7047k. bowever,         wh6eh
                vests   arbitrary     pewer in the taco asaeoeor-collector               tt#
                refuse    to register      mstcpr vehic,lee      purchased      from   de-
                linquent    dealsra     is uncenrtitptieaal        aad void beeauaa
                it denies d&e pocera            under   the 14th Amendment           Ot
                the Federal       Constitutim      aud Settionr       3 and 19 of Ar-
                ticle  I od the Coa#titrtlw          of the State of Texas and
                vista   judicial    pawer     in aa &miai&trativc          OJiice,   of the
                State in violation       of w&ton       1, Article    II Ot w      Cmnmti-
                tutioa   of the State of Texar.

                                                                         Your8   very truly,

                                                                       P-E    ,ANIEL
APPROVED:                                                             Attsraey General

W. V. Geppert
Taxation  Diviaioa

    Charles          D. Mathews
First Assistant


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