  -        c. l.lAIiN             AUST~NXL-R

AITURNEY     GIENLFIRAL
                                                        January 13, 1939
            . _.,

       Honorable Ceo. H. Sheppard
       Comptroller of Public Accounts
       Austin, Texas

       Dear Mr. Sheppard:

                                               Opinion No. O-94
                                               Re: Article 7047

       Your request for an opinion as to whether Section 23 of Article
       7047, Revised Civil Statutes, is still in force and effect, has
       been received in this office.

       Section 23, of Article 7047, Revised.Civil Statutes, enacted by the
       43rd Legislature, became effective 90 days after June 1, 1933, The
       same levied occupation taxes on certain coin operated machines. Section
       43 of Article 7047 provided a penalty, towit, a fine of not more than
       $50.00 for violators.

       On Iiovember1, 1933, the same legislature, with emergency clause, enacted
       Chapter 116, tit called Session, 43rd Legislature, p. 320, identical
       with said Section 23, except as follows: (1) in the latter statute pay
       toilets and sanitary drinking cup vending machines were excepted from the
       tsx, and (2) the minimum penalty for violation was raised to $10.00. The
       latter statute provided that *all laws and parts of laws in conflict
       herewith are hereby repealed."

       Thereafter, on May 30, 1935, the 44th Legislature enacted Chapter 354,
       page 905, General and Special Laws, the caption of which commenced as
       follows:

                “An Act amending Chapter 116, Acts of the First Called
                Session of the Forty-third Legislature, and levying an
                annual occupation tax upon coin-operated vending
                machines; . . *

       The Act mentioned last above covered in great     detail the same matter forming
       the subject of said Article 7047, Section 23,     and said Chapter 116, 1st
       Called Session, 43rd Legislature, but levying     a higher tax for the most
       part, and providing a penalty by fine of from     $25.00 to $100.00.

       Thereafter, the 44th Legislature, enacted Chapter 495, page 2040, at its
       3rd Called Session, Section 4 thereof in fullest detail providing for the
       levying of occupation taxes upon such machines, and providing penalties.
       The same contains this provision:
Honorable Geo. H. Sheppard, January 13, 1939, page 2   o-94



     "That Chapter 115, Acts of the First Called Session of the
     Forty-Third Legislature, as amended by Chapter 354, Acts
     of the Regular Session of the Forty-fourth Legislature,
     and all laws and parts of laws that conflict herewith are
     in all things repealed."

A reading of the above statutes clearly shows that each of them was
intended as a unit to cover the whole subject matter, and that no one
of them was intended to supplement any other one. No subsequent statute
expressly repealed Section 23 of Article     7047. With few exceptions
there is no conflict between Article    7047, Section 23, and the subsequent
statutes, as to the subject taxed, but the amount of the taxes levied
by the subsequent statutes, as well as the penalties provided, do conflict.

The law last enacted on the subject is exceedingly complete. Nothing is
omitted which might be supplied by Article 7047, Section 23.

From the opinion of Judge Short of the Commission of Appeals, in the case
of Rank v. Lee County Cotton Oil Company, 274 S. W. 127, at page 130,
we copy:

     "In the case of St. Louis S. W. Ry. Co. v. Kay et al,.
     Justice Gaines, speaking for the Supreme Court of Texas,
     in discussing a similar question, uses this language:

     "'If article 4.227,as amended, repeals article 279, it is
     a repeal by implication. Such repeals are not favored,
     and unless there be a repugnancy or inconsistency between
     two statutes, the general rule is that the latter will not
     repeal the former in the absence of express words to that
     effect.  But the question or repeal, like every other
     question arising upon the construction of a statute, must
     be solved by determining as near as may be the intent of
     the Legislature' -citing Rogers v. Wstrous, 8 Tex. 65; Ex
     parte Valasquez, 26 Tex. 178; Cain v. State. 20 Tex. 355.

     'LHecontinues in the same case;

    "'In Rogers, Watrous (8 Tex. 65, 58 Am. Dec. loo), supra,
    Judge Wheeler says: “A subsequent statute revising the
    subject-matter of a former one, and evidently intended
    as a substitute for it, although it contains on express
    words to that effect, must operate to repeal the former
    to the extent to which its provisions are revised and
    supplied, So though a subsequent Statute be not
    repugnant in its provisions to * former one, yet if it
    was clearly intended to prescribe the only rules which
    should govern, it repeals the prior statute."s
-   -




        Hon. Geo H. Sheppard, Jcinuary13, 1939, Page 3    O-94



             "The general rule, enunciated above by the American end
             English Encyc. of Law, supra, and approved by the Supreme
             Court of this State by Judge Wheeler, which was followed
             by Judge Gaines, as above stated, is also enunciated in
             Chiles, v. State, 1 Texas. App.32, holding the act
             prohibiting tenpin alleys to be repealed by a later one
             providing for licensing them, and in Dickinson v. State,
             38 Tex. Cr. R. 479, 419. W. 759, 43 S. w. 520, holding
             that the game law is lmpliedly repealed by a later statute,
             and in Tunstall v. Wormley, 54 Tex. 481, holding an act
             concerning churches is repealed by a law concerning
             corporations. We have been unable to find any authority
             bearing directly on the subject which holds to the contrary.

             "In the case of State v. Houston Oil Corn.of Texas (Tex. Civ.
             App.) 194 S. FE. 432, Chief Justice Key, in discussing a
             similar question, says:

             "'The rule is well settled that, when a subsequent statute
             shows by its context that it was intended to embrace all the
             law upon the subject dealt with, such statute will, by
             implication, repeal all former laws relating to the same
             subject. The correctness of that rule is not controverted,
             and it is unnecessary to cite authorities in support of it.'"

        We quote from State v. T. & No. 0. Ry. Co., I25   S. W. 53,   error denied,
        et page 55, BS follows:

             "Unless there be a repugnancy or inconsistency between two
             statutes, .the general rule is:thatthe latter will not repeal
             the former in the absence of express words to that effect. But
             the question of repeal, like every other question arising upon
             the construction of a statute, must be solved by determining as
             near as may be the intent of the Legislature.. Railway v. Ksy,
             85 Tex. 559, 22 S. Il. 665; Rogers v. Watrous, 8 Tex. 62, 58
             Am. Dec. 100. In the case first cited Judge Gaines quotes with
             approval from Rogers v. Watrous as follows: (the same quotation
             is made as has already been copied above.“

        So much of Section 23, of Article 7047, as is in conflict with Chapter 495,
        3rd Called Session, 44th Legislature, has been repealed. So much thereof
        as is not in conflict therewith has been carried forward into the same.
        Practically speaking therefore, said Section 23, of Article.7047, has been
        superseded and repealed, and is not in force, but the last statute on the
        subject will govern.
                                                                  .   _




Honorable Geo. H. Sheppard, January 13,    1939, page 4    O-94



                                          Yours very truly

                                   AlTOFU?EZ   GENERAL.-OFTEXAS

                                   s/     Glenn R. Lewis



                                   BY
                                          Glenn R. Lewis
                                               Assistant

GRL;N/ldw

APPROVED:
s/ Gerald C. Mann

A’l?TORNSY GENERAL OF TEXAS

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