### - c.l.lAIiN AUST~NXL-R

AITURNEY GIENLFIRAL January 13, 1939

. _., Honorable Ceo. H. Sheppard Comptroller of Public Accounts Austin, Texas Dear Mr. Sheppard: OpinionNo. O-94 Re: Article 7047 Your request for an opinion as towhether 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 operatedmachines. 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 machineswere excepted from the tsx, and (2) the minimum penalty for violationwas 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 The latter statute provided that *all laws and parts of laws in conflict herewith are hereby repealed."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 enactedChapter 354, page 905, General and Special Laws, the caption ofwhich commenced as follows:
“An Act amending Chapter 116,Acts of the First Called Session of the Forty-third Legislature,and levyingan annual occupation tax upon coin-operatedvending machines;
. . * The Act mentioned last above covered in great detail the same matter forming the subject of saidArticle 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, enactedChapter 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 amendedby Chapter 354, Acts of the Regular Session of the Forty-fourthLegislature, and all laws and parts of laws that conflictherewith are in all things repealed." A reading of the above statutes clearly shows that each of them was intendedas a unit to cover thewhole subjectmatter, and that no one of themwas intendedto supplementany other one. No subsequent statute expressly repealed Section 23 of Article 7047. With few exceptions there is no conflictbetween 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 penaltiesprovided, do conflict. The law last enacted on the subject is exceedingly complete.Nothing is omittedwhich might be suppliedby 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 discussinga similar question, uses this language: "'If article 4.227, as amended, repeals article 279, it is a repealby implication. Such repeals are not favored, and unless there be a repugnancy or inconsistencybetween two statutes, the generalrule is that the latterwill not repeal the former in the absence of expresswords to that effect. But the question or repeal, like every other question arising upon the constructionof a statute,must be solvedby determiningas near as may be the intent of the Legislature' -citingRogers v. Wstrous, 8 Tex. 65; Ex parteValasquez, 26 Tex. 178; Cain v. State. 20 Tex. 355.
'LHe continues in the same case; "'In Rogers,Watrous (8Tex. 65, 58 Am. Dec. loo), supra, Judge Wheeler says: “A subsequent statute revising the subject-matterof 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 towhich its provisionsare revised and supplied, So though a subsequentStatute be not repugnant in its provisions to * former one, yet if it was clearly intendedto prescribe the only ruleswhich should govern, it repeals the prior statute."s- -

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

"The general rule, enunciatedabove by theAmerican end English Encyc. of Law, supra, and approvedby 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 inDickinson v. State, 38 Tex. Cr. R. 479, 419. W. 759, 43 S. w. 520, holding that the game law is lmpliedlyrepealedby a later statute, and inTunstall v. Wormley, 54 Tex. 481, holding an act concerning churches is repealedby a law concerning corporations. We have been unable to find any authority bearing directly on the subjectwhich 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 discussinga similar question, says: "'The rule iswell settled that,when a subsequent statute shows by its context that itwas intended to embrace all the law upon the subject dealtwith, such statutewill, 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 therebe a repugnancy or inconsistencybetween two statutes,.thegeneral rule is:thatthe latterwill not repeal the former in the absence of expresswords to that effect.But the question of repeal, like every other question arising upon the constructionof a statute,must be solvedby determiningas 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 quoteswith approval fromRogers v. Watrous as follows: (the same quotation ismade as has alreadybeen copied above.“ So much of Section 23, of Article 7047, as is in conflictwith Chapter 495, 3rd Called Session, 44th Legislature,has been repealed. So much thereof as is not in conflict therewithhas 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 subjectwill govern.. _

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

Yours very truly AlTOFU?EZ GENERAL.-OF TEXAS s/ Glenn R. Lewis

BY GlennR. Lewis

Assistant GRL;N/ldw APPROVED: s/ Gerald C. Mann A’l?TORNSYGENERAL OF TEXAS s/ mph