OFFICE OF THE ATTORNEY GENERAL OF TEXAS

AUSTlN

‘i,cnurebls

l’cm L. ~ceuoh~p &scrstnr)-

of 4ate hlatin, ~sxna

a*e are In rsoelptof which YOU rsqw8t the opinion 0 lng quest

low :

oowollb ation of capital of the tarabls caplt llaat a stIppleLe0. 934 wh0rcr

a ths taxabl.8

on 3 render Eowa

. 934, 46th Ls$ialaturs, provides

eaid ocnsolidatfon of euoh nerelras

the taxable oapital unt or the texebie oapltal as 84, a6 wanded, of tbo ocprporsand upon ahioh a frwahhk3 tax by said aorporet5.ons to the Eearathe aurrsut year, then in suah event ise tar shslr La psyebla until the naxt regularpsymmedt drte, 61s

provided in l'ltle 18s. Cha ter S OS the i;cttvirred Civil i3htutesuf Terau of l&, but ‘in the event that eafd aoaaolid,ation of euoh aorporatlons

as provided in Eeotiono 1 and P.oil this

### 646

Bon, Tom I..

Beauohemp,Page 2

Aat shall provide for an lnareaee In the taxable aapltal of the proposed oorporatlonover the combined taxable capital of the corporationsso consolidatedupim vahich

franohlrre

tax had been already duly paid for the currentyear by such oorporatlons, then in such event, upon the epproval of said consol‘iaation oy the Leoretary or atate, a supplemental franOAlSe tax shafl be a pi0 sa co 03% or the hevised blfil *tatutea or Aexae or IVES in the case of an lnarease in the taxable capital of &y aormestia or foreign oorporatlon."

As pointed out by you In your letter,Artiole 7090, Revised. Civil Statutes, 1925, was espreeelyrepealedby hots of 1930 418% Legislature,6th Called Seesion,p. 220, Ch. 08, sec. 1. Prior to Its repeal, krtiole 70D0 provided as follows:

'In the event or Increase In the authorizedaepital stock 0r any domestie or foreign corporation, it shall also pay in advance a eupplementalfranohlsetax thereon ior the remainder of the year down to and iualudingthe thirtiethday of April next thereafter,the amount of which shall be determinedas la provided in the third article or this chapter lh case or the firet rranohlee tax payment to be made by a domestic aorporatlon whlah may be hereafterauthoriecsd to do businesswithin this State.*

A valfd express repeal abrogatas,destroy6 or supereedas the aat or provielonagainstrhlah it ia direoted. Thereafter the statute repealed Is considereda8 though It had never existed, except as to transaotlone passed and closed. 39 Tex. Jur. 155.
Prior to the enactmentof house Bill Bo. 934, It was ruled by thle Department in Opinion No. Tom L. Reauohamp, O-784, addreesedto the Honorable

beoretaryor State, that the Secretary oi State is not authorizedto oolleot a aupplemantalfranchisetax on domeatio corporations

for the iraatlonalpart of' the year remaintrig when suah corporationslnareaee their taxable oapltalby aha-&er amendment

. Article 3, Sea. 36 of the Texas Constitution, providea a8 r0u0wstHon. Tom L. Eeauchamp,Page 3

wNo law shall be revived or amended by reterence to its title; but in such case the act revived, or the seotlon or seotionsamended, shall be re-enaotedand publishedat length.”

It is well established that a valid existing statutemay be incorporatedin an act by reierenoeto Its title and the erred. of such adoption 1s to re-enaotthe prior statute to whloh reierenoe is made. CuinIanvs. Eouston & T. C. Ry. Co. (Sup. Ct. 1896) 34 @ Vi.7381 Dallas County Levee &strict No, 2 vs. Looney (Sup.Ct., $18) 207 S.,

W. 3101 Dallas County Levee Improvement District ilo.

6
VS. Curtis (T.C:A. 1936) 287 s. %‘.301; Trimmer vs. Carlton (Sup. Ct. 1927) 296 S. i:~. 1070. In eaoh at these oases, however, the Veierenoe statute”aas s valid existing statute at the time oS Its adoptionby the subsequentenactment.

In Qulnlan vs. Rouston & T. C. Ry. Co, supra, the oontentlon was made that the statute adoptedby reierenoehad expiredby its own Umltatlon and Sor ‘ihat reason the section oS the act making tha reieranoeWas inoperative. Although It wad held that the Veieranoe statute” **had** not expired Sor all purposes, ChleS Justice Gaines pointed nut a slgnilioant dlstlnotion

between the present Article 3, Section 36 and the provlslon OS I045 and many oonstltutlonal provlslonsoS other states In the Sollowing language:
-‘The constitution

OS I045 containedno inhibitionegalnst the revival oS statutesby reterenceto .thelr title. The present oonstitutlon has a provlslonwhich oorresponds to h3CtiGn 25 0r Article 7 0r the Constitution0r 1045; but that provisionuses the word *revlvs’ instead oS *revise*. IS it had been in roroe when the aot OS I566 was passed, and if the law oS 1864 had then expired, it would have prasentedthe questionWhether the older law would have been revived and made applioableto the Waoo Tap Railroad Companyby a mere relerence to Its title. But, under the constitution in force when the special charterwas granted,the questiondoea not arise. In the absence of any oonstltutional restriotlon,

we are of opinion that one statute,by a proper reierenoe to another, may lnoorporatein It the provisionsoS the Sormer law, although the formermay have expired, or may have b,een repealed. A law so reierredto in another, and made a part oS it, does not operateby Its inherent Soroa, but takeserreottrom the statute in whloh it is lnoorporated.

. . . ii the statute reierredto ba an existing law,

### ,648

Eon. Tom. L. Beauohamp,Page 4

the legislative

purpose is to apply its provisions to the subjeotmatter of the new aot. IS it has expired, or has been repealed,the purpose Is to revive it and make it ap?lioable in the same manner.
. . n If the purbose or aeotion 3 or Rouse Bill No. 934 is to revive the repealedartiole 7080 by reierenceto Its title and make It applicableto the corporatione‘designated in House 2lllNo. Ir34, it is an attempt to revive a statuteby referenoeto its title in violationof Article 3, Section 36 of the Texas Constitution and thereforevoid, IS, however, the purpose of the aot is not to revive said artiolebut is to require the payment of a supplemental franchisetax as now required of other domestio or foreignoorporations, it is or no otleot since such oorporations are not required to pay a supplemental Sranchlsetax upon increase oS their taxable oapltal.

authorize

Sections 1 and 2 of House Bill MO. 934, 46th Leglslat.re/;f the oonsolldstion

of.two corporations organizedunder the. lawaot the State of Texas ior one or more of the purposes speolrledlzi

Subdivision81 or Article 1302 of the Revised CivlL Statutes oS Texas and it is provided in Seotlon 4, the,emergenoy olause, that:

'*TheSaot that there is no preaent provlslon ln the' statute for the consolidation of corporations

organlied r0r, the purposes stated under Bubdivislon81 or Artlclc 1302 0r the R.3aiea Civil Statutes 0r xexas, 1926, ana that'lt is neoessary Sor the we3Sare oS the State that provisionbe made tor the consolidation or suoh corporations create~anemergenay,etc.e

.A well establfshedrule of' statutory oonstructloais ex+ *-48sed as tollows In San Antonio IndependentLahool Distrlot vs. 'tatd (T.C.X. 1916, writ rerused),173 6. W. 526:

n .~. . where part oS the whol.e act is unoonstltutlonal

end the remainder is oonstitutional, it the two parts oan be poaslbly separateduourts ahopl% do so, and not per&t the invalidpart to destroy the whole law. ir, aster the eliminationof the invalid part oS the l~aw,

there,remains

en intelllglbla

ahd. valid statute oapable oS being pl.aoed In exeoutlon.an% oonrormlngto the general purpose an% Intent oS .the Legislature,

the law will not be destroyed,but hel.d te be valid .and

binding exoept as to the excised part.

. . . As said by Ju%ge Cooley:

### 649

Eon. Tom L. Beauohamp,Page 6

"'b-here

therefore,a part cjf a statute is unoonstitutional,

that fact does not authorize the courts to declare the remaindervold also, unless all the prov'sions are cocnectedin subjectmatter, d~epending on each other, operatingtogether for the same pur;>ose, or otherwiseso connectedtogether in meaning that it, cannotbe presumed the Legislature would have passed the one without the other, The constitutional.provisionsmay even be containedin the same sect&n, and yet be perfectlydistinctand separable,so that the first may stand though the last fall'. Cooley Constitutional

Urn. seotions 177, 178.
"That dr:ctrine

is always recognizedby all cbu?i,s.*

See also to the same effeot: cihlte v. Farhing (T.C.A. 1912, writ refuse&) 212 S.X. 193, White v. Viveriok County yiater Control& Imp.Dist.No.1,(bom.App.1931) 35 S.&;,(2) 107; City of Dallas v. Love, (T.C .A. 1930) 23 S .F. f2d) 431; Gefirrt v. Yorktown Ind.Sohool Diet. (T.C.A.1926), 285 S.W. 346; Gerhardt
v. Yorktown Ind. School Diet., (T.C.A. 1923), 252 S.K. 197.

The primarypurpose of House Bill 934 appears to be to authorizethe consolidation of corporations

and the provisionfor a supplemental

rranchlsetax, incidentalthereto. The two proriaione are not so Inter-related and dependent,one upon ths other that we can presume the Legislature would not have passed the. on8 without the other.

It is our opinion that the SeOretary of Gtate is not autho,rized to collecta supplementaliranahise tax under Eouse Bill .No. 934, 46th Legislature, where a oonsolidation of oorporations ,Innreases

the taxable oapital of the proposed oorporations over ?he combinedtaxable capital of the corporations oonsolldating.
be are further of the opinion that the ineffectiveprovisions OS Section 3 do not render House Bill No. 934 void In its entirety. 8~ Yours3 very truly

ATTOBNBY GEBEBAL OF TXAS

CCC:N