Thompson v. United Gas Corporation

• Decision Date: 31 October 1945
• Docket Number: No. 9520.,9520.
• Citation: 190 S.W.2d 504
• Parties: THOMPSON et al. v. UNITED GAS CORPORATION.
• Court: Texas Court of Appeals

190 S.W.2d 504

THOMPSON et al. v. UNITED GAS CORPORATION.

No. 9520.

Court of Civil Appeals of Texas. Austin.

October 31, 1945.

Rehearing Denied November 21, 1945.

Appeal from 53d District Court, Travis County; J. Harris Gardner, Judge.

Suit by the United Gas Corporation against Ernest O. Thompson and others to recover the amount of gross receipts taxes paid under protest by plaintiff. Judgment for plaintiff, and defendants appeal.

Affirmed.

Grover Sellers, Atty. Gen., and W. V. Geppert, and J. Arthur Sandlin, Asst. Attys. Gen., for appellants.

Vinson, Elkins, Weems & Francis and Thomas Fletcher, all of Houston, for appellee.

BLAIR, Justice.

Suit to recover the amount of the gross receipts taxes demanded under Art. 6060, R.S.1925, and paid under protest by appellee, United Gas Corporation. It was alleged and the trial court held that as concerned appellee, a gas utility pipe line distributing company, Art. 6060 was repealed by Sec. 10 of House Bill 547, Acts 42d Leg. (1931), p. 111, Vernon's Ann.Civ. St. art. 6060 note, and recovery of the taxes so paid, aggregating $46,167.55, was allowed.

Appellants contend that the 1931 Act was unconstitutional because it attempted to amend Art. 6060 by reference to its title, in violation of Sec. 36 of Art. 3 of the Texas Constitution, Vernon's Ann.St.; and further, that if the 1931 Act were valid, appellee was nevertheless liable for the taxes under Art. 6060 as amended, being a gas pipe line as defined in Sec. 2 of Art. 6050, R.S. 1925.

Neither of the foregoing contentions is tenable.

In 1920 the 36th Legislature, Acts 3d C. S., p. 18, passed House Bill No. 11, referred to as the Natural Gas Utility Act, which Act was later codified as Arts. 6050 to 6066, both inclusive, R.S.1925. As so codified Art. 6060, in part, reads as follows: "Every gas utility subject to the provisions of this subdivision * * * quarterly * * * shall file with the Commission a statement, duly verified * * * showing the gross receipts of such utility for the quarter next preceding * * * and at such time shall pay into the State Treasury at Austin a sum equal to one-fourth of one per cent of the gross income received from all business done by it within this State during said quarter."

As so codified Art. 6066 provided in substance that such taxes were to be used by the Commission to defray the expense of carrying out the regulatory provisions of the Natural Gas Utility Act.

In 1931 the 42d Legislature passed House Bill No. 547, Chap. 73, p. 111, which levied "taxes against natural gas and cigarettes"; the portion of the caption here material reads as follows: "Repealing certain portions of Article 6060 of the Revised Statutes of 1925."

And Section 10 of said 1931 Act reads as follows: "That Article 6060 of the Revised Civil Statutes of 1925, except insofar as it imposes a license fee or tax of one-fourth of one per cent against persons owning, operating, or managing pipe lines, as provided in Section 2 of Article 6050, is hereby repealed and said fund shall be used for enforcing the provisions of Articles 6050 to 6066, inclusive."

The repealing Act became effective in July 1931, and on October 3, 1931, the Railroad Commission sent a letter to gas utilities engaged in distributing gas, advising them that they were relieved from the payment of the taxes imposed by Art. 6060, R.S.1925, from and after the effective date of House Bill No. 547. In accordance with this ruling the Commission did not demand nor collect from appellee the taxes formerly imposed by Art. 6060, R.S. 1925, until June 1943. An opinion by the Attorney General's Department in June 1942 agreed to or conformed to the foregoing interpretation of House Bill No. 547 as repealing portions of Art. 6060, holding that the taxes were after the enactment of House Bill No. 547 imposed only upon gas utilities owning, operating, or managing pipe lines engaged in transporting or carrying natural gas as defined in Sec. 2 of Art. 6050 of the Natural Gas Utility Act, which defined and classified "gas utility", "public utility", or "utility" as being persons, companies or corporations doing "either one or more of the following kinds of business:

"1. Producing or obtaining, transporting, conveying, distributing or delivering natural gas: (a) for public use or service for compensation; (b) for sale to municipalities or persons or companies, in those cases referred to in paragraph 3 hereof, engaged in distributing or selling natural gas to the public; (c) for sale or delivery of natural gas to any person or firm or corporation operating under franchise or a contract with any municipality or other legal subdivision of this State; or, (d) for sale or delivery of natural gas to the public for domestic or other use.

"2. Owning or operating or managing a pipe line for the transportation or carriage of natural gas, whether for public hire or not, if any part of the right of way for said line has been acquired, or may hereafter be acquired by the exercise of the right of eminent domain; or if said line or any part thereof is laid upon, over or under any public road or highway of this State, or street or alley of any municipality, or the right of way of any railroad or other public utility; including also any natural gas utility authorized by law to exercise the right of eminent domain.

"3. Producing or purchasing natural gas and transporting or causing the same to be transported by pipe lines to or near the limits of any municipality in which said gas is received and distributed or sold to the public by another public utility or by said municipality, in all cases where such business is in fact the only or practically exclusive agency of supply of natural gas to such utility or municipality, is hereby declared to be virtually monopoly and a business and calling affected with a public interest, and the said business and property employed therein within this State shall be subject to the provisions of this law and to the jurisdiction and regulation of the Commission as a gas utility."

Sec. 36 of Art. 3 of the Texas Constitution provides that: "No law shall be revived or amended by reference to its title; but in such case the act revived, or the section or sections amended, shall be re-enacted and published at length."

On April 27, 1943, the Attorney General's Department ruled that Sec. 10 of House Bill 547 in fact amended Art. 6060, R.S.1925, by reference to its title in violation of the foregoing provision of Sec. 36 of Art. 3 of the Texas Constitution. Acting under this opinion the Commission, on July 6, 1943, demanded of appellee the taxes for the twelve-year period preceding the demand, which appellee paid under protest, and instituted this statutory suit to recover the taxes so paid.

We are of the view that by the enactment of House Bill No. 547, Acts 1931, the Legislature clearly intended to and did repeal certain portions of Art. 6060; and that since the Act is one of repeal it does not violate Sec. 36 of Art. 3 of the Constitution, because it merely inhibits the revival or amendment of a law by reference to its title. Nor does the repealing act violate the constitutional provision requiring that an act of revival or amendment of a law shall re-enact and publish at length the portion or section revived or amended. The decisions so construing Sec. 36 of Art. 3 of the Constitution are reviewed at length by the authority 39 Tex.Jur. 126, wherein the rules of construction or interpretation so established are stated as follows: "The constitutional requirement in question applies to a statute that comes within its terms, that is, to one which attempts to revive or amend a former act `by reference to its title.' It does not apply to a statute that repeals an existing act or a definite portion or section thereof, nor to a statute that leaves intact the terms of the original act and merely adds a section or sections thereto, or extends, restricts or postpones its operation."

Among the cases cited as supporting the foregoing text are Chambers v. State, 25 Tex. 307; Snyder v. Compton, 87 Tex. 374, 28 S.W. 1061; Henderson v. City of Galveston, 102 Tex. 163, 114 S.W. 108; and State Bank of Barksdale v. Cloudt, Tex.Civ.App., 258 S.W. 248. These and other cases establish the further rule that since there is no constitutional inhibition against the repeal of a statute or a part thereof by reference to its title, the Legislature may exercise its power of repeal in any manner or form which clearly expresses its will or intention in that regard. Jessee v. De Shong, Tex.Civ.App., 105 S.W. 1011; and Berry v. State, 69 Tex. Cr.R. 602, 156 S.W. 626. In view of the foregoing established rules we hold that by the enactment of House Bill 547 the Legislature, by plain and appropriate language, intended to and did repeal the portion of Art. 6060 imposing the license fee or tax upon "every gas utility" subject to the regulatory statutes, and specifically and expressly thereafter imposed the license fee or tax upon only gas pipe lines as defined in the repealing Act itself and by Section 2 of Art. 6050, referred to in the repealing act for a further description of the character of the gas pipe line utility upon which the Legislature intended to thereafter impose the fee or tax.

Appellants contend, however, that although the 1931 Act specifically stated that its purpose was to repeal certain portions of Art. 6060, it was in fact an amendment of said statute within the meaning of the constitutional provision requiring the unrepealed portion of the statute to be re-enacted and published at length. This contention is predicated upon a construction of the 1931 Act as being in fact an attempt to amend Art. 6060. Cited in support of their construction of the 1931 Act as being in fact an amendment of Art. 6060 are, among others, the cases of Snyder v. Compton, supra; Henderson v. City of Galveston, supra; Caples v. Cole, 129 Tex. 370, 102 S.W.2d 173, 104 S.W.2d 3; ...