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 inspection fees 

to a fertllixer sold 

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 question with 

the State Chemist as to whether the City of 

Houston is subjeot to the inspection fees 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 activated sewage sludge under the 

trade name of Hou-Actlnlte. This product is 

registered with the State Chemist as having a 

guaranteed analysis of 5$ nitrogen, 3% total 

phosphoric acid, and O# potash. It is a commeroial fertilizer under the definition given 

in Paragraph 1, Article 1716, Revised Penal 

Code, 1925. 

"This product has been registered for 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 amendment of the law bv the 

51st Legislature, the City of Houston has purchased tax tags in compliance with 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 inspeatlon fees on the tonnage of 

fertilizer sold by that city, under Article 
Hon. Gibb Gilchrist, page 2 (V-1012) 

97, Revised Civil Statutes, 1925, and Article 

1712, Revised Penal Code, 1925, as amended by 

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 regulatory laws, an inspection fee of twenty-five cents per ton is provided for 

commercial fertilizer "aold, exposed or offered for sale 

in this State" by "all firms , corporations or persons" 

engaged in the manufaoture or sale of aommercial fertilizers . Art. 97, V.C.S., and Art. 1712, v.P.c. 

These statutes were 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 Lnspectlon fee 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 registering commercial fertilizers. 

ions and Reports, Vol. 1914-1916, p.722. 

See A.G.OpinAn examination of Section 1, Artlole VIII, and 

Section 9, Article XI of the Conatltutlon of Texas reveals that these sections operate to exempt munioipal 

oorporat$ons from only three classes of taxes. They are 

ad valor&m, occupation end income taxes. State v'. City 

ofE1 Pai~o, 135 Tex. 359, 143 3.W.2d 366 (1940). It i 

plain that the Inspection fee 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 inspection fee here under oon- 

-ion oannot be classed as an occupation tax. Such 

tax or fee 1s a license fee. A.G.Opinions and Reports, 

Vol. 1914-1916, p.722. This being true, the oonstitutional exemption of municipal aorporatlomfrom ocoupation, 

Income or ad valorem taxes has no applioation. 

Article 97, V.C.S., as amended by Section 1, 

Rouse Bill 574, Acts 51at Leg., B.S. 1949, oh.170, p. 

342, provides in part: 

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

the lnspeotion and analysis of commercial 

fertilizers sold, exposed or offered for 

sale in this State and experiments relative 

to the agrioultural value thereof, all firms, 

corporatkins or persons engaged in the manufaature or sale of aommeroial fertilizers, 

herein termed the guarantors of commercial 

fertilizers, shall pay to the State Chemist 

at his officre in College Station, Texas, an 

lnspeation fee of o . 0 (256) per ton of 

. 0 0 (2000) pounds of oommem$al fertillzers whioh have been registered In oompliance 

with the requirements of Article 95 of this 

Chapter and sold or distributed for sale in 

this State. Such lnspeotion fee shall be 

paid by the guarantor of suoh fertilizer, and 

no other person shall be required to pay any 

additional inspeotion fee o D on 

Artiole 1712, V.P.C., as amended by Section 2 

of House Bill 574, supra, provides in part: 

"All firms, corporations or persons engaged in the manufaoture OP sale of oommercial fertilizers, hereinafter referred to as 

the guarantors of oommeroial fertilizers, 

shall pay an inspection fee of D 0 o (254) 

per ton of 0 a 0 (2000) pounds of all commeraial fertilizers which have been regfstered 

in aompliance with the requirements of Artiole 1710 of this Chapter and sold or distributed for sale in this State in order to 

entlt:e the same to Inspection and delivery 

. s . 

It is evident that the legislative intent, as 

expressed in the above quoted statutes, is to impose an 

Inspection fee of twenty-five cents per ton of ooumterala1 fertilizer which is sold or distributed for sale 

in this State, to be paid by the guarantor of such fertilizer. It is expressly provided that "no other person shall be mqulred to pay any addltlonal inspecrtlon 

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 

Administrator on fertilizer distributed by it in Texas, 

for the reason it is an instrumentality of the Federal 
Hon. Gibb G~lohrlat, page 4 (V-1012) 

, 

Government and as such could not lawfully be burdened 

with that tax or fee. However, that oplnlon~as well as 

Opinion Ro.O-4792, by the same Attorney General, held 

that a prtvate person, firm or oorporation selling aommerolal fertilizer to the Agricultural Adjustment Administration in 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 immunity possessed by the vendee. From the reasoning expressed in Opinion Ro.04792, it follows that 

a person, firm or corporation selling commert3ial fertilizer to a munioLpa1 oorporation in Texas is likevise 

subject to the Texas fertilixer laws. Referring to'the 

above quoted statutes, we find no direct provision exempting persons, firms or corporations who sell consueroial fertilieers to Texas munloipal oorporatlons, nor 

till suah statutes permit of any suoh construction. 

The question of whether a municipal oorporatioa was aubjeot to the Texas fertilixer laws 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 referring to the statutory 

language of "person, firms or oorporati~bns.” 

We are aware that it is a general rule of statutory conatruation that a tax imposed by law upon oorporations till not be held to be imposed upon municipal 

oorporations unless the intent to do so olearlg appears 

or is free from doubt. State v. City of Rl Paso, supra. 

Considering the Texas Fertlllser Laws as a whole, and 

the proteotive purpose for whioh they were enacted, It 

is clear, in our opinion, that it was the intention of 

the Legislature that such laws were intended to cover 

all persona, firms or oorporatlons engaging in the sale, 

or offering for sale In Texas of oonanemlal fertilizers, 

regardless of 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 statutes be ambiguous and susoeptible of more than one constrwtlon, there are certain 

other well-settled rules 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 

e8pe0iallp true-when tact 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 T exas Juriaprudenoe 266, ,Statutes, Section 

“Where a statute which has been oonstrued, either by a oourt of last resort or 

by exeoutive offioers, is re-enaoted without 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 registered the oomercial fertillzer product of the municipal corporation in question, and 

the corporation, in compliance with those laws, has purchased the tax tags required by 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 amendments to the 

act, if the amendments have not obviously changed such 

oonstruotion. Likewise the construction to be given an 

re-enaated statute should be the same as that given to 

the original aot unless impelling reasons diatate otherwise. Te%as Emplovers Ins.Ass'n v. Holmes, supra. 

In the question under oonslderation it is olear 

that Artioles 97 and 1712, as amended In 1949, present 

no reason calling for a aonatruction of the inspection 

fee provisions of the fertilizer laws different from 

that heretofore given them by the State Chemist. The 

1949 amendments are primarily directed at the ahanging 

of the tag affixing requirements of the original act. 

Sec.4, H.B. 574. 

SUMMARY 

A municipal corporation engaged 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 amended by 

Yours very truly, 

APPROVED: 

J. C. Davis, JP. 

County Affairs Division 

Charles D. Mathews 

Exeoutive Asslstant 

CEO:bh:mw 

PRICE DAEUEL 

Attorney General 

-dfszzLifBY 

Chester E. Ollison 

Assistent