Senator A. M. Aiken, Jr. Opinion No. c-56 

Chairman, Committee on State Affairs 

The Senate of The State of Texas Re: 

Austin, Texas 

Constitutionality 

of Senate Bill 

No. 258 

Dear Senator Alken: 

This acknowledges your request for an 

the validity of Senate' Bill 258, Fifty-Eighth 

copy of which is attached to your request. 

opinion as to 

Legislature, a 

This bill, If enacted, would amend the present statutes 

of Texas by exempting from the sales tax levied by Chapter 6, 

Title 122A, Taxation-General, Vernon's Civil Statutes, the sale 

of any motor vehicle to be used by a church solely In the operation of a school for the education of children or for the 

transportation of said children to and from or in connection 

with said school or Its activities. It would exempt motor 

vehicles, trailers and semitrailers which :re the property 

of and used exclusively ln'the service of . . . a church 

when used exclusively in connection with the operation of a 

school operated by said church or in the transportation of 

children to and from said school or in connection with said 

school activities thereof, . . .' from registration fees 

required by the motor vehicle registration laws provided in 

Articles 6675a-1 through 6675a-17, V.C.S., 1925. This bill 

also makes provisions for the refunding of the motor fuel tax, 

levied by Chapter g,,of Title 122A, Taxation-Qeneral, V.C.S., 

on motor fuel used . . . for the purpose of operating or propelling any . . . motor vehicle to be used by a church solely 

in the operation of a school for the education of children or 

for the transportation of said children to and from or in connection with said school activities, . . .'. 

Although this bill proposes to amend three different 

tax statutes, the amendments are all germane to the one subject 

of taxation; therefore, it is not invalid because of more than 

one subject-matter (Missouri-Kansas-Texas R. Co. of Texas v. 

Rockwall County Levee Improvement Dlst. No. 3, 117 Tex. 34, 

297 S.W. 206 (1927)). 

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Senator A. M. Aiken, Jr., Page 2 (No. C-56) 

Article VIII, Section 1 of the Texas Constitution provides in part as foll,ows: 

"Section 1. Taxation shall be equal 

and uniform. All property in this State, 

whether owned by natural persona or corporations, other than municipal, shall be taxed 

In proportion to its value, which shall be 

ascertained as may be provided by law. The 

Legislature may Impose a poll tax. It may 

also Impose occupation taxes, both upon 

natural persons and upon corporations, 

other than municipal, 

in this State. . . ." 

doing any business 

Section 2 of Article VIII of the Constitution reads in 

part: 

"Sec. 2. All occupation taxes shall 

be equal and uniform upon the same class 

of subjects within the limits of the 

authority levying the tax; but the leglslature may, by general laws, exempt from 

taxation public property used for public 

purposes; . . .' 

That part of Section 2 of Article VIII, supra, authorizing 

the Legislature to exempt certain public property from taxation 

has reference to property taxes and does not pertain to excise 

taxes such as those mentioned in Senate Bill 258. 

The Courts of Civil Appeals, the Supreme Court and the 

Court of Criminal Appeals of the State of Texas in numerous 

cases have held that the Legislature has authority to classify 

different types of business for purpose of taxation so long as 

the legislation Is not discriminatory nor arbitrary as between 

the same or like classes of business. 

In the case of Hurt v. Cooper, 130 Tex. 433, 110 S.W.2d 

896, 901 (1937), the Court in speaking of a greater tax per 

store on chain stores than on Individual stores pointed out 

the following distinctive features: quantity buying, ability 

to pay cash and receive discounts, skill in buying, warehousing, 

and distribution from single warehouses, capital, unified advertising, superior management, standard form of display, concentration of management In special lines, and standardization. 

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Senator A. M. Alken,, Jr., Page.3 (No. C-56) 

These distinctive features were held to be interrelated and 

Interdependent In the ohaln store business. 

:’ In the opinion in, Hurt v. Cooper, supra, the Court 

said at page 900: 

j “That is a definite holding that merchants may’be divided into classes and 

the classes taxed In different amounts 

and accoqlln& ,$o different standards; 

that the consideratlons,upon which such 

classlficatlor@ are based are primarily 

within the cjlscretlon of the Legislature; 

and that courts can interfere only when 

,it is, made ,,q@arly to ,appear that there 

is no reasonable baslg,for the,attempted 

classification. If there is a reasonable 

basis or, $0 express it differently, if 

it, cannot be sald~that the Legislature 

acted arbitrarily, the courts will not 

Interfere. Mere differenoes in methods 

of, conducting businesses have long been 

reoognlzed In this atate a8 sufficient 

to support,the classlfiqatlon of merchants for the purpose of levying ocoupatlon taxes. For instance, our statutes (see article 7047, as amended 

P 

ernon’s Ann~.Clv. St. art. 70471) 

evy occupation taxes on itinerant merchants and peddlers. The difference 

between their ocoupatlons and that of 

an,ordlnary merchant is not great, but 

It would hardly be contended at this 

time that it Is not sufficient to support a separate classlflcatlon.” 

Difference in profits derived, in extent of consumption of articles, and other conditions that might be supposed, 

can properly be :taken. into coqslderatlon by the Legislature 

In making classlflcatlons and In determining the amount of 

occupation taxes to, be laid,on each. 

The mere fact tha$~,d$scrimlnatlon 1s made In classlfications for occupation taxes proves nothing against classlflcatlon which Is not one its face an arbitrary, unreasonable or 

unreal one. ,,’ 

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Senator A. M. Alken,, Jr., Page 4 (No. c-56) 

The Court in rendering Its opinion in Texas Co. v. 

--it= 

100 Tex. 628, 103 S.W. 481, 484 (1907) in which 

an o jectlon was made that a statute dlscrlmlnat~s between 

persons pursuing occupations which belong to the same class, 

said: - 

In 

The very language of the Const l- 

&o; of the state Implies power In 

the Legislature to claeslfy the subjects,of occupation taxes and only 

require’s that the tax shall be equal 

and ‘uniform upon the same class. ‘Persona who, In the most general sense, 

may be regarded as pursuing the same 

occupation, as, for Instance, merchants, 

may thus be divided Into classed, and 

the class&s-may be taxed In different 

amounta and,~accordlng to different 

standards. Merchants may be divided 

Into wholesalers and retailers, and, 

If t,hiire be,‘reasbnable grounds, these 

may be further divided according to 

the particular clasaea of business In 

which they may engage. The conalderatlone upon which such classlflaatlon8 

shall be based are primarily within the 

discretion of the Legislature. The 

courts, under the provisiona relied 

on, can only Interfere when It Is made 

clearly to appear that an attempted 

classlflcatlon has no reasonable basis 

In the nature of the businesses classlfled, and that the law operates unequally 

upon subjects between which there Is no 

real difference to justify the separate 

treatment of them ufdertaken by the 

Legislature. . . . 

=-i-i% 

76 S.W.2d 1060, Tex.Crim. (1934), 

Appellant was conv c e on complaint of not having a license 

for a coin-operated handkerchief vending machine. He claimed 

that Article 7047A-1 was vlolative’of Article VIII, Section 2, 

In that It was not equal and uniform because pay toilets and 

drinking cup vending machines were exempted. He also complained because the tax on marble machines was greater than, 

and measured by a different standard than “other similar 

amusement machines. ” Relief was denied. 

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Senator A. M. Alken, .Jr.:, Page’ 5 (No. C-56) 

We quote from page 1064: 

II 

. businesses of the same general 

ciaks may be properly subdivided or 

reclasslfled where reason exists 

therefor. Particular attention Is 

called to this because’there are 

commodities and commodities, amusementa and amusements, servloee and 

services; and, If reason exists therefor, the Legislature may subdivide or 

reclassify commodity vending machines, 

service vending machines, and amusement 

vending machines. In Qong Wing v. 

Klrkendall, 223 U.S. 59, It Is laid 

down that e etate enactment may make 

dlscrlmlnatlons, If’ founded on dlrrtlnctlona not unreasonable or purely 

arbitrary. ” 

That the Court.6 have nothing to do with the policy, 

wisdom, expediency or propriety of legislative enactments Is 

almost a maxim. Ollre v. State, 123 S.W. 1116 (Tex.Crlm. 1909 

In compllanoe with the rule laid down in the above 

oases, the Legislature has,authority to classify, and by 

claselfylng to exempt from taxation, certain types of buslnessea, aasoolatlons, corporations or lndlviduals, provided 

they are equal and unlform upon the oame olass of subjects 

within the limits of the authority levying the tax. 

We are of the opinion that the provisions of Senate 

Bill No. 258 are not arbitrary nor dlsarlmlnatory and that It 

la a valid Bill. 

1. 

SUMMARY 

Senate Bill No. 258 provides for a 

reasonable classlflcatlon, Is equal and unlform ae to the class of subjects affected and 

Is therefore valid. 
- . 

Senator A. M. Aiken, Jr.:,?Ps@'6(No. C.-%) i. 

Yours vgry truly, 

WAOQONER CARR 

'. Attorney ,Ceneral of Texas 

.,: 

‘. 

JRB:pw " ~, 

APPROVED: I' ::~ 

OPINION COMMITl'E$ "5~ " 

W. V. Qeppert; Chairman 

John Reeves 

Bill Allen 

James Stofer 

Pat Bailey., 

!' 

APPRUVEDFORTHEATTORhlEY GENERAL 

By: Stanton Stone 

.., ,,--279-