February 21, 1950

Hon. Glbb Gilchrist Chanoellor opinion Ho. v-1012.

Texas A de

M College System Re: The appllcabllity of College Stat,ion,

Texas State inspectionfees

to a fertllixersold Dear 3trr by the City of Houston.

Your request for en opinion reads as follows:
"The dire&or of Publia Works of the City of Houston has raised the questionwith the State Chemist as to whether the City of Houston is subjeot to the inspectionfees required by Article 97, Revised Civil Statutes, 1925, and Article 1712 of Revised Penal Code, 1925, on the tonnage of fertilizer which they sell.
"The City of Houston makes and markets
a processed activatedsewage sludge under the trade name of Hou-Actlnlte. This product is registeredwith the State Chemist as having a guaranteedanalysis of 5$ nitrogen, 3% total phosphoricacid, and O# potash. It is a commeroial fertilizerunder the definitiongiven in Paragraph 1, Article 1716, Revised Penal Code, 1925.
"This product has been registeredfor a number of years with the State Chemist In oompliance with Artticle 95, Revised C1vFl Stetutes, and Artlole 1710, Revised Penal Code.
"Prior to the amendmentof the law bv the 51st Legislature,the City of Houston has purchased tax tags in compliancewith these'laws. The City of Houston has filed a report of the sales of this product for the quarter September 1 through November 30, 1949. "Question: Is the City of Houston subjeot to the inspeatlonfees on the tonnage of fertilizer sold by that city, under ArticleHon. Gibb Gilchrist,page 2 (V-1012)

97, Revised Civil Statutes, 1925, and Article 1712, Revised Penal Code, 1925, as amendedby Chapter 170, House Bill 574, 51st Legislature, Acts 19491"
Articles 94 through 1.08 of Vernon's Civil Statutes, and Artloles 1709 through 1720 of Vernon's Penal Code, regulate the sale of cotmnmrclal fertilizer

wLthLn the State of~T&xas. To defray the expenses of inapection and enfbroement of these regulatorylaws, an inspection fee of twenty-fivecents per ton is provided for commercialfertilizer "aold, exposed or offered for sale in this State" by "all firms, corporationsor persons" engaged in the manufaotureor sale of aommercialfertilizers

. Art. 97, V.C.S., and Art. 1712, v.P.c.

These statuteswere passed to prevent fraud being praotiaed in the sale of such roducts. Ex Parte White 82 Tex Crim.85 198 S.W. 583 71916); A.G.Lettep ~&UT, vol:363, p.695. The Lnspectlonfee or tax authorized

by this law Is levied and oolleoted for the purpose of defraying the expenses of the State Chemist and those working under him in inapeoting,analyzLng and registeringcommercialfertilizers. ions and Reports,Vol. 1914-1916,p.722. See A.G.OpinAn examinationof Section 1, ArtloleVIII, and Section 9, ArticleXI of the Conatltutlonof Texas reveals that these sections operate to exempt munioipal oorporat$onsfrom only three classes of taxes. They are ad valor&m, occupationend income taxes. State v'. City ofE1 Pai~o,

135 Tex. 359, 143 3.W.2d 366 (1940). It i plain that the Inspectionfee required to be collected' by Article 97 is not an ad valorem tax or an income tax. It is equally clear, we think, under the decisions of the Supreme Court in City of Fort Worth v. Gulf Ref.Go., 125 Tex. 512, 83 S.X.2d UO (1935) and State v. City of El Paso, supra, that the inspectionfee here under oon- -ion oannot be classed as an occupationtax. Such tax or fee 1s a license fee. A.G.Opinionsand Reports, Vol. 1914-1916,p.722. This being true, the oonstitutional exemption of municipalaorporatlomfrom ocoupation, Income or ad valorem taxes has no applioation.

Article 97, V.C.S., as amendedby Section 1, Rouse Bill 574, Acts 51at Leg., B.S. 1949, oh.170, p. 342, provides in part:

* To defray the expenses oonneotedwithBon. Gibb Gilohrfst,page 3 (V-1012)

the lnspeotionand analysis of commercial fertilizerssold, exposed or offered for sale in this State and experimentsrelative to the agrioultural value thereof, all firms, corporatkinsor persons engaged in the manufaature or sale of aommeroialfertilizers, herein termed the guarantorsof commercial fertilizers,shall pay to the State Chemist at his officre

in College Station, Texas, an lnspeationfee of o
. 0 (256) per ton of

. 0 0 (2000)pounds of oommem$al fertillzers whioh have been registeredIn oompliance with the requirementsof Article 95 of this Chapter and sold or distributedfor sale in this State. Such lnspeotionfee shall be paid by the guarantor of suoh fertilizer,and no other person shall be required to pay any additionalinspeotionfee o D on Artiole 1712, V.P.C., as amendedby Section 2 of House Bill 574, supra, provides in part:

"All firms, corporationsor persons engaged in the manufaotureOP sale of oommercial fertilizers,

hereinafterreferred to as the guarantors of oommeroial fertilizers, shall pay an inspectionfee of D 0 o (254) per ton of 0 a 0 (2000)pounds of all commeraial fertilizers

which have been regfstered in aompliancewith the requirementsof Artiole 1710 of this Chapter and sold or distributed for sale in this State in order to entlt:e the same to Inspectionand delivery

. s
. It is evident that the legislativeintent, as expressed in the above quoted statutes, is to impose an Inspectionfee of twenty-fivecents per ton of ooumterala1 fertilizer

which is sold or distributedfor sale in this State, to be paid by the guarantor of such fertilizer. It is expresslyprovided that "no other person shall be mqulred to pay any addltlonalinspecrtlon fee."

In Opinion No. O-4617,by a former Attorney General, it was held that au& a fertilizer inspeotlon tax could not be imposed on the Agricultural Adjustment Administratoron fertilizerdistributedby it in Texas, for the reason it is an instrumentality of the FederalHon. Gibb G~lohrlat,page 4 (V-1012) ,

Government and as such could not lawfullybe burdened with that tax or fee. However, that oplnlon~as well as Opinion Ro.O-4792,by the same AttorneyGeneral,held that a prtvate person, firm or oorporationselling aommerolal fertilizerto the Agricultural AdjustmentAdministrationin Texas is subject to the Texas fertilieer laws. It was pointed out that the feat the sale is made to a Federal Instrumentality does not olothe the vendor with the immunitypossessedby the vendee. From the reasoning expressed in Opinion Ro.04792, it follows that a person, firm or corporationselling commert3ialfertilizer to a munioLpa1oorporationin Texas is likevise subject to the Texas fertilixerlaws. Referring to'the above quoted statutes, we find no direct provision exempting persons, firms or corporations who sell consueroial fertilieersto Texas munloipaloorporatlons, nor till suah statutespermit of any suoh construction.

The question of whether a municipaloorporatioa was aubjeot to the Texas fertilixerlaws was not presented or oonsidered in the above opinions (o-4617 and O-4792), and they should not be conatrued as hating passed on suoh question. The word "private"la Lnaptly used in those opinions in referringto the statutory language of "person,firms or oorporati~bns.”

We are aware that it is a general rule of statutory conatruation that a tax imposedby law upon oorporationstill not be held to be imposed upon municipal oorporationsunless the intent to do so olearlg appears or is free from doubt. State v. City of Rl Paso, supra. Consideringthe Texas FertlllserLaws as a whole, and the proteotivepurpose for whioh they were enacted, It is clear, in our opinion,that it was the intentionof the Legislaturethat such laws were intendedto cover all persona, firms or oorporatlons engaging in the sale, or offering for sale In Texas of oonanemlalfertilizers, regardlessof whether they are private or municipal corporations. The emphasis in the statute Is on the sale of oommemial ferttillzers rather than on the status of the vendors thereof.

But If the statutesbe ambiguousand susoeptible of more than one constrwtlon, there are certain other well-settledrules which govern their construction. First, the praotical interpretation of the act by the Agewy charged with the duty of administering it is entitled to the highest respect from the oourts. This is e8pe0iallptrue-whentact i-on has been long continuedan un%form. Texas Employera~ Ius. Ass'n v~. -Ron. Gibb Gilohrlst,page 5 (V-1012)

Holmes 145 Tex. 158, 196 S.W.2d 390 (1946). Qeeond, as *in 39 Texas Juriaprudenoe 266,,Statutes,

Section

“Where a statute which has been oonstrued, either by a oourt of last resort or by exeoutive offioers,is re-enaotedwithout any substantial ohange of verbiage, It will oontinue to reoeive the same aonstrwMon."
Under both the original and amended fertilizer laws, the State Chemist is oharged with the duty of their administration. Under the facts submitted,he has for a number of years registeredthe oomercial fertillzer product of the municipal corporationin question, and the corporation,in compliancewith those laws, has purchased the tax tags requiredby it prior to the amend-~ men of Artloles 97, V.C.S. and 1712, V.P.C., by the 51st Legislature.

Artiale 97, 1 .C.S. and Article 1712,V.P.C., were amended by H.B.57 , Aots 51at Leg., R.S. 199, oh. 170, p.342. The Legislature is presumed to have known the oonstrwtion giventhis statute by the State Chemist. The construction

given an original act should be regarded as having been brought forward in amendmentsto the act, if the amendmentshave not obviouslychanged such oonstruotion. Likewise the constructionto be given an re-enaated statute should be the same as that given to the original aot unless impellingreasons diatate otherwise. Te%as Emplovers Ins.Ass'nv. Holmes, supra.

In the question under oonslderationit is olear that Artioles 97 and 1712, as amended In 1949, present no reason calling for a aonatructionof the inspection fee provisions of the fertilizerlaws different from that heretoforegiven them by the State Chemist. The 1949 amendmentsare primarilydirected at the ahanging of the tag affixing requirementsof the original act. Sec.4, H.B. 574.

SUMMARY

A municipal corporationengaged in the making and selling of oommerolal fertilizer In Texas la subjeot to the payment of the inspection fees required in Artiole 97, V.C.S.Eon. Gibb Gilahrist,page 6 (V-1012)

and Article 1712, V.P.C., aa amendedby

Yours very truly,

APPROVED:

J. C. Davis, JP. County AffairsDivision
Charles D. Mathews Exeoutive Asslstant
CEO:bh:mw PRICE DAEUEL Attorney General

-dfszzLifBYChesterE. Ollison

Assistent