          OFFICE   OF THE    ATTORNEY   GENERAL              OF TEXAS
                                 AUSTIN




Honorable D. F. Xftherapoon
County Attorney
tdaverick County
Eagle Pass, Texas
                         Opinion No. O-6869
                                 Ro:      Mabpg
                                              a
                                          have, 1140and n4at
                                          than on4 brand?




whiohrr

                                                               ) 4maIldodv
                                                                la, which,
                                                                the word4
                                                            y, 4u4h wordr
                                                           having a plural
                                                           hareafter  any
                                                           0x-d on4 or 0oC4
                                                            lying with all

                                               a m4an that any perron
                                              on of more than on4
                                              than one mark or brand?
                            8)      Does thle,      in your opinion,     sul-
                             of     the    Penal   Code,    whloh   among
                            vidse      a psnaltg     ior    using   mars than


              wn attaohing hereto my opinion to tha County
     Clerk, of keueri4k County, T4~84, d4t4d Q4ptemb4r Ee,
     1945, and making it a part hereM, of this request.*
                                                                306


Eonorable   D. F. ?;itherspoon    - page 2



              Art1010 6099 of Revised Clvll Statutes,  1925,
originally    provided that only reoorded brands were evl-
denoo of ownership of the oattle,     horses or mules upon
whfoh they W8r8 U44d. However, this stetute      was repealed
by Acts, 1929, 41st Leg., p. 55, Ch. 22, 3eo. 1. The 40th
Legislature,    by Aota, 1943, F. 471. Ch. 315, oreated a new
Arti       8899, which r&ads as tollowe:
            ~Seotlon 1. That Chapter 1, Title 121, %4-
     vised Civil Statutes of Texas, 1925, be amenled by
     adding after Artiole 6898 an Art1014 nucnbared 6899
     to read as folloas:
             “‘Arti       6899.
             *‘All    raoorda   oi marks and brand6 haretotom
     rimds as provided in this ChaptW, etoept a11 oounq
     brandm,  shall beoome rofd an6 or ao foroe end errsat
     on the lrt day of Ootober, 1943, and every peraon
     who has oattle,   hogs, sheep, or goats 8hall hare his
     mark and brand reoorded or ma-recorded   la aooordanoo
     with Article   6890 and Artlola 6898.
            **Tha legal. Owner of a brand and/or mark shall
     have a preferential    right to raoord auoh brand end/or
     mark for a peribd of two (8) year6 from the iat day
     of Ootober, L943, but if auoh preterential    right is
     not exercised   wlthln suoh two (E) years the same
     ahall be rorfeited    and suoh brand and/or mark shall
     be aubjeot to regiatratloa    by any pereon, and the
     first person to record the sa@n ahall be the ownor
     of the 44m4.
             n*@y brand reoordrd in aeoordaaee   with the
     re&xements     of this Aot shall be ooneldered as
     the property ot the pereon afmslng euoh record to
     be made and shall be subjeot to sale, aaslgment,
     transfer,   devise and desoent the ame as other per-
     eoml property.
            *‘Any parson may record suoh brand and/or mrk
     as he ;nay desire to U84 provided no other pereon ha6
Bonorable    D. F. sltherspoon   - ~ttge 3


      recorded such brand and/or tmrk, without regard
      to whether or not such person has previousiy re-
      corded a brand and/or mrk.
             "*This Act shall not apply to any county
      which shall have re-recorded  all brand8 and mark8
      within the post five (5) y4ara.'"

             Th8 above Aot was amended by lots,   1945, 49th La-
gislature,   F. 321, Ch. 235, gee, 1, in ths rollowlhg   lang-
uege .
             w*Seo. la.   At shy plaoe in the above and rors-
      going 8eOtiOh Of titiole    6899 whsre th4 word8 *brand
      and/or mark* are used singularly,     pUoh words or lang-
      uage eball be oon8trued as having a plural meaning
      and lnterpretatlon,    80 that h4reaft4r ah legal owner
      amy have and own and reoord oae or more i rends and/or
      mark8 by otherwlae oixnplying with all the other pro-
      visions of this titiole.'
             *See. 2. nceyt   as is asmnded in 'Seotion  la*,
      above, all the other provisiom,    wbrds, and language
      of drtiole  0899 are hereby re-enaoted.
             *sec. 3. All law8 or parts or laws in oonrliot
      henwith ar4 hereby 4xpresaly rop4aled.
             mSdo. 4. The taot that th4re ha8 bQen muoh oon-
      fU8iOn a8 to the meaning of the word8 *brand and/or
      mark*, and the further fact that the AttOrn4y Osneral
      of the State of Texae has oon8trwd the Aot 80 as to
      giv4 a 8ingular meaning to euoh word4 and languae,
      and the further fast that there is a gr4at neoe8eity
      oa the part of the own6r8 or livertook to own and re-
      oord more thsn one brand and/or mark. creates an
      emergenay . . . ."

           ~8 8e4n from the emergenoy olauee, Seotlon 4, above,
there was a heoeaslty on the part of owners of livestock to
own and reoord more than one brand and/or mark, and oonseCuently
Honorable D. P. Y;itharSpoon - Fage 4



the Legislature authorize4 the reoordatlon  an4 ownership of
aore than one.  Althsugh the word ‘WUQ” iS not Sp801ffOEii1y
listed in the amendment, it would be impraatioal  for a live-
stoak owmr to have, OwA and record mars than one brand
without the -uw of Such brands.

            Artiole   6899 reade that, *any person may moor4
 such brand and/or mark as he may desire to kelp. . . .w (em-
~hasia addodh and the -Went        of 1945, aupm, provides
that where the wor4e “bran4 and/or mark- were use4 elngular-
ly, Such words now have a plural meaning.        Thus it is seen
that  when the .language of the act and the amenbmant thereto
are oonatrued together,    an owner of lfvsstook    may -use one
or more brands, as -11     as moor4 then.
             The Legislature*s~ power to Snaot law8 is only lfm-
its4 by the restrictions     ot the State an4 W?sral Constitution
and foderal   lawa.   Similarly,   the Legislature    has the powor
to repeal a statute,    subjeot to those same restriations,       either
by express terms or neoecrsary lmpllcation~        Although the repeal
of statutes by implioatlon      is not generally   favored, a statute
whioh olearly and manliestly      oonfliote  with a formar law to
the extent that both oannot be enforced         operates as a repeal
of the former statute by neoeseary lmplfoation.          89 C. J. 899,
9001 60 Am. JUr. Seo. 5254, 638, 558, S42 643i Oilmore Y.
Matthews, 122 S. xii. (24) 342 (errex 4laad88e4)~ Mingu8 Y.
ga4ane, 125 9. W. (24) 630 (error dismissed,         ju4gment oorreot)s
Sutherland on Statutory Construotlon,       vol. 1, Seotiom 2011,
2012.
            Although the 1915 amendment, aupra, make8 no ax-
press referenoe to Artlo     6890 (V.&O.&)    and Artlele  1484
(Fenal Code), its provisions   oontllat therewith.    These two
artloles  are Set out below:
           *Article   6890.~ Every person whP has Sattle,
     ho858 sheep   or goat8 Shall have an ear mark an4
     brand differing   from the ear mark an4 brand of his
                                                                 309




Honorable D. F. WithherBQOOA
                           - Pa&e       S

     neighbors,  whioh ear mark an& brand shall be ra-
     oorded by the oounty olerk of the county where
     such apical shall be.   NO person shall use mom
     than one brand, but may reoord his brand in as
     many aountlra as he deems naoossary.W    (Emphasis
     a44s4)
          *Artiolr  1404. whoetor in originally   brsnd-
     tug or nearking oattle us48 more than one mark or
     brBA% shall be iiAed IJOt 1088 thBA twentpfi7B    Aor
     more than ona hundred dollars  for laoh animal so
     branded or marked.*

            The test for BA impllod repeal Is whethar or
not thsrs is an irrsoonoilrblo      oontliot    -twoen    lA esrli8r
and l later atatuta.     80 Am. Ju&fieo. 543.        Applying   the
taat hers, wa fin4 only an 8uthorised        UM OS but OAR bread
 iu the langwgr    of ths earliar   ltatute,    end an exprmar
aothorioe4 use oi mre than on4 brand in ths words 6r ths
later statute.     gonasqaently,  it is our belist      that that
prt    of tha OOAOlUdiAg SenteAo, of brtiole        6890 (sm@88lsed
above) aA the entir4 proririanr        of rrtlole    14e4, mpra,
sn in lrxsoonoilabls     ooniliot  with tha provlalon8 ot tho
lstsr statute,   Artiole 6899, aupra, tha lrttar        being eon-
tr~lll~g.
           ~8 the result thersor,      only that portion of
Artiole 6890, emphaalxed above, la lmplbdly          rapsalad as
it is the only abattar rqmgnant to the rubsequent rtatute.
50 A% JUr., Sea. 843. ~2~4ad the general &la8 appl.loable
to tha repel    OS 8tatutea    prsvsil  with oriisinal as wsll as
oivil rtatutea,   Art1010 1484 (Mnal Code) is implf~dly re-
poBle4 fn its entlraty      by tha later 16gislstivr    enaotiaant
of Artiole  6699 with Pm4AdEMAtB. Sutherland 0A Stetutory
COnBtrUOtiOA, Vol. 1, 300. 2031.
    .
f




IM  I
        iionorable   D. F. KitherBpOOn - Page 6




                     Yie therefore
        BffiI'nUItiVe.
                                     anmr   both Of your -questions in the




                                                Very truly   yours,
                                            ATTORNEY GEhTRkL.OF T"ZXh.8




                                                             K. Ayer
                                                                       0




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