### THE&ITO~Y GENERAL
OFTEXAS

GERALDC.MANN

Honorable George Ii. Sheppard Comptroller of Public Accounts Austin, Texas
Dear Sir: Opinion No. O-5483 Re: Whether Section 2 of House Bill No. 677, Acts of the RegUIar Session of the 48th Legislature, repeals Article 7047a, R. C. 3.
Wehave received and considered your opinion request of July 30, 1943, wherein you state:

"I shall thank you to advise this department whether Section 2, House Bill 677, Acts of the Regular Session of the 48th Legislature, repeals Article 7047a, R. C. 5. 1925."

The Section in question reads as follows:
"Sec. 2. That subsection 7 of Article 7047 of the Revised Clvtl Statutes of the State of Texas, 1925, as amended by Section 1of House Bill No. 251, Chapter 212 of the General Laws of the Regular Session of the Forty-second Iegislature, 1931, is hereby amended to read as follows:

cehalf 0T ano; business OPoccuoa- - .~~ tion of aBroker or Factor, whether he 1s prlncloallv enganed in such business OPnot, there shall be collected TenDollars ($lO,OO) year. per A "broker" or "factor," for the
DUPDOSI zof this subsectlon. is every person who; for another and for a-fee, commission
OP other valuable consideration, rents, bugs, sells, OP transfers, for actual spot or future delivery, or negotiates purchases OP sales or transfers of stocks, bonds, bills of exchange, negotFable paper, promissory notes, bank notes, exchange, bullion, coin, money, real estate, lumber, coal, cotton, grain, horses, cattle, hogs, sheep, produceHon. Geo. H. Sheppard, page 2 O-5483

and merchandise of any kind; whether or not he receives and delivers possession thereof; provlded that this subsection shall not apply to a salesman who is employed ona salary or commission basis by not more than one retailer; wholesaler, jobber’; or manufacturer, nor shall this subsection apply to or be construed to include persons selling property only as receivers, trustees In bankruptcy, executors, administrators, or persons selling under the order of any Court, or any Derson who is in; eluded within the definition of any other ocCUDatlOn’and 1s Darinn OPsubject to the Dayment of atax under ang other subsection of this Act; however, this exemption shall not apply to any ind,ividual engaged Inmore than one occupation as defined by the other subsection of this Act. I” (Emphasis ours).
Article 7047a provides:

“There shall be levied onand collected from every Derson firm corDoration, or association of

,-f persons owninn 0DeratlnR manaRinR coiitrollinq,~ pursuing the b&iness or &cuoatlon’of any cotton exchanne’ auotation service in this State-, or furnishInR’auotatlons onthe stock market on Rraln, ~cotton, or other commodities, or stocks andbonds, and”‘who,, maintain an office or place of ’buslness, or branch office, and have abulletin board OP other means of furnishing quotations onthe stock market, an annual State occupation tax of TWOHundred andFifty ($250.00) Dollars, which shall be paid annually in .aavance, or as otherwise provided by law for the payment of occupation taxes, on each and every sep; arate establishment, office, branch office, OPplace of business; provided the tax herein levied shall be only OneHundred ($100.00) Dollars for each person, firm or corporation which is amemberof only one commodity exchange; provided, this Article shall not apply to any person, firm or CorpOratiOn, or association of persons whofurnish gratuitously market quotations to any person desiring the same andwhoare not engaged in the business of furnishing market quotations andwithout intent to soliclt or accept orders for contracts, or contracts for future del.iverles or sales oftany commodity, stock or bonds; provided, further, any person, firm or corporation liable for a tax under this Article ‘shall not be required to pay the tax under Sections 8andHon. Gee, Ii. Sheppard, page 3 O-5483

12 of Article 7047, but shall pay the tax provided by this Article; provided, further, each county or city in which sameis operated may levy one-half the occupation tax herein provided for ih the manner nowprovided by Article 7048." (Emphasis aurs).

In nowaydoes Section 2of House Bill No. 677 expressly purport to repeal Article 7047a; ~nelther dowethink that such repeal is accomplished'by Implication. As can readily be seen, the two acts levy occupation taxes upon different things: THeformer affects, with certain exceptions, persons‘ "engaged in the business or occupation of aBroker or Factor"; the latter relates, again with stated exceptions, to persons or associations 'pursuing the business or occupatlbn of any cotton exchange quotation service" or "furnishing quotations on'the stock market ongrain, cotton, andbonds." or other commodities, or stocks

Noconflict can possibly exist between'these two acts, andwithout such a conflict arepeal by implication i's impossible. 39Tex. Jur. I[73: If the business of abroker or factor be considered as being included within that of furnishing stock exchange quotations, the underlined proviso to Section 2of House Bill No. 677 operates to harmonize the~tWo statut~es and to makethe business taxable only under Artlc'le 7047as Onthe other hand, If the two businesses are considered distinct but are conducted by the same individual, the oneis taxable under Section 2of'House Bill No. 677 andthe other Is taxable under Article 7047a. In this situation no repeal by implication is possible since the twoacts and the'taxes levied therein relate to different subjects, and, as Is said in 39Tex. Jur. 176:
"There can be arepeal by implication only when two acts or statutory provisions are in parimateria, that Is, whenthey treat of the samematters OP their subject and object are the same." Consequently, you are respectfully advised that Sectl,on 2of House Bill No. 677 in noway operates to repeal Article 7047a.

Trusting that the foregoing fully answers your inquiry, weareHon. Geo. H. Sheppard, page 4 O-5483

Very truly yours ATTORNEY

GENERALOFTEXAS
Bys/R. De&nMoorhead R. Dean Moorhead AssIstant
RDM:fo:wc

APPROVED

AU06, 1943 s/Grover Sellers FIRSTAZSISTANT ATTORNEYGBlQERAL Approved Opinion Committee Chairman Approved Opinion Committee Bys/BWSChairman