- 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 Iiovember 1, 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herewith are hereby repealed."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in all things repealed."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. 

'LHe continues 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, Jcinuary 13, 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.-OF TEXAS 

s/ Glenn R. Lewis 

BY 

Glenn R. Lewis 

Assistant 

GRL;N/ldw 

APPROVED: 

s/ Gerald C. Mann 

A’l?TORNSY GENERAL OF TEXAS 

s/ mph