Untitled Texas Attorney General Opinion

THEA~ORNEY GENERAL OFTEXAS

September 2, 1959

Honorable Coke R. Stevenson -- . Opinion No. ww- 6% Texas Liquor Control Ljoara P. 0. Box 56 Re: Whether subsection 2 of Austin 61, Texas H. B. 11, 56th Leg., 3rd C.S., directs the Liquor Control Board to collect a floor tax from all se- tailers of distilled Dear Mr. Stevenson: spirits in Texas. You have requested an opinion concerning whether or not Subsection 2 of Section 2 of House Bill 11, passed at the 3rd Called Session of the 56th Legislature, directs your Department to collect a "floor tax" from all retailers of distilled spirits in Texas. You have also directed attention to the fact that an objection to the Constitu- tionality of the Act has been made on the ground that if it does direct that the tax be collected/it is in conflict with Article III, Section 35 of the Texas Constitution. The constitutional section referred to is as follows: "No bill, (except general appropriation bills, which may embrace the various subjects and accounts for and on account of which monies are appropriated) shall contain more than one subject, which shall be expressed in its title But if any subject shall be embraced in an act,which shall not be expressed in its title, such act shall be void only as to so much thereof, as shall not be so expressed." The pertinent portions of the title to House Bill 11 are: "An Act. . .amending Section 21 of Article 1. Chapter 467, Acts of the 44th Legislature, Second Called Session 1935> as amended (compiled as Article 666.~21 of <Vernon'sAnnotated Penal Code of Texas) increasing the g on distilled spirits and wine. . ." ‘(Emphasisadded.) In so far as relevant, Section 2 of House Bill 11 provides: "Section 2. Section 21 of Article 1, Chapter 467,

Honorable Coke R. Stevenson, Page 2 (Opinion No. W- 695 )

Acts of the 2nd Called Session of the Forty-fourth Legislature as last amended by Section VIII of Chapter 402, Acts of the Fifty-second Legislature, Regular Session 1951, compiled as Article 666-21,Vernon's Annotated Penal,Code of Texas, shall be and is hereby amended so as to read hereafter as follows: 'Sec. 21 There is hereby levied and imposed on the first eal? in addition to the other fees and taxes levied by this act the following: '. . ,.fiewrates on distilled spirits specifiedlf. . 'The term "first sale” as used in Article 1 of this Act shall mean and include the first sale, possession, distribution, or use in this State of any and all liquor refined, blended, manufactured, imported into, or in any other manner produced or acquired, possessed, or brought into this State. 'The tax herein levied shall be paid by affixing a stamp or stamps on each bottle or container of liquor. Said stamps shall be affixed in strict accordance with any rule or regulation promulgated in pursuance of this Act; provided, however, any holder of a permit as a retail dealer as that term is defined herein shall be held liable for any tax due on any liquor sold on which the tax has not been paid. /The provisio&s of the two preceding para- graphs*are'Fecodifications of provisions in Article 666-21, Tex. Pen. CodeJ' "(2) It is further provided that such portion of the tax provided by the amendment to Sectiu,l21 of tne Texas Liquor Control Act by Subsection (1) of Section 2 of this Act which represents an increase in the tax rate on liquors shall apply and attach to all liquor which shall be in the possession of any person for the purpose of sale. Every person having possession of any liquor for the purpose of sale shall on the effective date of this Act render and submit to the Texas Liquor Control Board at Austin, Travis County, Texas a true and correct sworn inventory of,all such liquors, setting forth in detail the size of containers and the quantity thereof and shall attach to such sworn inventory a cashiers' check or certified check payable to the State of Texas in an amount equal to the portion of said tax representing an increase in .chepax rate on such liquor.

Honorable Coke R. Stevenson, Page 3 (CPinion NO. WW-695 )

The sworn inventory shall be rendered upon a form to be prescribed and furnished by the Texas Liquor Control Board. The sworn inventory with cashiers' check or certified check attached shall be placed in the United States mail, addressed to the Texas Liquor Control Board at Austin, Travis County, Texas within twenty-four (24) hours after the effective date of this Act, and a true, correct and exact copy thereof must be retained by the person making such report. Failure or refusal to render and submit such inventory and cashiers' check or certified check on or before the time specified above or the willful falsification of such inventory shall be deemed sufficient grounds for the cancellation of any permit or license by the Board. The capy of the sworn inventory and the purchaser's copy of the cashiers' check or ce-tified check retained by the person making such report shall be evidence of the payment of the portion of the tax which represents an increase. The Texas Liquor Control Board is hereby authorized to adopt. rules and regulations which may include provisions for the present stampsfiig or stamps of the present denomi- nations, to evidence payment of both the increase in the tax herein levied and the tax heretofore levied in the Texas Liquor Control Act as amended." There can be no doubt that the tax increase imposed by Section 2 of House Bill lllsintendedto apply .to all "floor stock" held by retailers for the purpose of sale as of September 1, 1959; the direction to collect the tax from the retailers is explicit. The question that must be decided is whether or not such intendment and direction are comprehended by the caption of the Bill. The purpose of Art. III, Sec. 35, Tex. Const. is to insure that legislator, lawyer and layman are reasonably apprised of the nature or contents of each particular bill, thus avoiding deception and giving those who are interested in a subject under consideration an opportunity to be heard thereon. Sec. 39 Tex. Jur. 77, and cases there cited. Said section is to be liberally construed, i.e., it cannot be given a construction which would embarrass, defeat or retard leaislation. Ibid. P. 80. Particularly is this true in regard to revenue measures. City of Beaumont v. Gulf States Utilities Co., 163 S.W.2d 426 (Tex.Civ.App. 1942, erro- refused). Giving the caption to H. B. 11 literal interpretation, its purpose (in so far as relevant) is to amend Art. 666-21, ,Tex.Pen.Code,by increasing the tax on distilled spirits and wine. It should be noted that the .captiondoes not specify

Honorable Coke R. Stevenson, Page 4 (Opinion No. WW- 695)

the .~-- amount, or the nature of, or who is to pay the tax increase. The tax levied by A.P=~-21, Tex. Pen.Code is imposed on distilled spirits and wine on -.-.- which the -tax has not previously -,.- been paid. (See quotation o??Sec. 2.T H, By-il,upsa). ConseEtiy, it is clear that any interested person(harticu- a retailer) would reasonably be put on notice that the amend- ment to said Article might make provision for the collection of the tax increase on all liquor held for sale as of the effective date of the increase. It is well settled that the caption of a bill need not state every detail designed to effectuate, accomplish, or enforce the main object of the act, but is sufficient if such main purpose is stated. Continental Bus System v. Carney, 310 S.W.2d 676 (Tex.Civ.App.1958, error refused), City 07 Beaumont v. Gulf State Utilities Co., supra. And see 39 Tex. jur. 90.7s stated in Wilkinson v. Lyen,,2U'(S.W. 638,640 (Tex. Civ.App. 1918): "It is also well settled that an act of the Legis- lature is unobjectionable on the ground that it contains more than one subject, if those subjects are germane or subsidiary to the main sub,iect;that the requirement of the consti- tutional provision is addressed to the subject, and not to the details of the act, -+- to accom lish the main object of - the act,and such details may be mu tifarious. miffS=te, TTex. Cr. R. 63, 109 S.W. 176; Singleton v. State, 53 Tex. cr. R. 626, 111 S.W. 736, and authorities there cited." (Emphasis added.) Section 2 of H. B. 11, in effect, does three things: 1. Specifies the new rate applicable to distilled spirits and wine. 2. Clearly expresses the intent that for the pus- pose of the rate boost, "first possession" shall include possession of stock held for sale on September 1, 1959.

3. Directs that the tax increase be collected on all such stock. It is clesr that Nos. 2 and 3 above are designed solely for the purpose of effectuating the tax increase, and are germane to the main object of the Bill as stated in the caption. For the reasons above stated, you are advised that the provisions of subs. 2 of Sec. 2 of H. B. 11 are consti-

Honorable Coke R. Ste.venson,Page 5 (Opinion No. WW695)

tuitional. Accordingly, you are directed .tocollect the tax increase from all retailers on all stock held fo;,sale as of Septemoer 1, 1959. SUMMARY Subsection 2 of Section 2 of House Bill 11, 3rd C.S., 56th Leg., directs the Liquor Control Board to collect a "floor tax" on all stock held for sale as of September 1, 1959, from all retailers of distilled spirits and wine in Texas. Such provision does not contravene Art. III, Sec. 35, of the Texas Constitution. Very truly yours, WILL WILSON Attorney General

By: t+ k N. Price ' JNP:lp APPROVED: OPINION COMMITTEE: Geo P. Blackburn, Chairman

J. C. Davis James R. Irion Marvin H. Brown, Jr. REVIEWED FOR THE ATTORNEY GENERAL By: W. V. Geppert