Dallas Consolidated Electric Street Railway Company v. State of Texas et al., 102 Tex. 570

Mr. Justice Williams delivered the opinion of the court.

The question in this case is whether or' not so much of the Act of 1897 as levied an occupation tax upon street railway companies of $2.00 per mile of their roads was repealed by the Act of May 16th, 1907, levying an occupation tax upon the same companies, consisting of a percentage of their gross earnings. (Art. 5049, Subd. 54, Sayles Stat.; Laws 30th Leg., 479-489.) • We quite agree with counsel for plaintiff in error, that a statute may impliedly repeal an earlier one by entirely superseding it, although there be nothing in the provisions of the two which might not stand together if all of them were inserted in one Act.

This kind of "repeal by implication is familiar and takes place when the later Act manifests a clear intention to cover the entire subject of the earlier one and to substitute its own provisions for the others to govern and regulate that subject. We also agree that the ordinary implication arising from a statute which merely imposes an occupation tax is that it is to be the only tax upon the occupation—all that the State proposes to charge for the pursuit of it; and that we should naturally look for some expression of a different intent when it exists.

This much was frankly conceded at the argument by counsel representing the State. The Act of 1907 does contain such expressions as make it clear to our minds that the occupation tax imposed by it on street railway companies was intended as an additional tax and not as a substitution of that previously charged. Such expression is found in

Section 22 as follows: “Except as herein stated all taxes levied by this Act shall be in addition to all other taxes now levied by law, provided that nothing herein shall be construed as authorizing any county or city to levy an occupation tax on the occupations and business taxed by this Act.”' Counsel for plaintiff in error attempt to limit this sweeping reference to “all other taxes” so that it would mean other kinds of taxes than occupation taxes, and the suggestion, at first, struck us with much force; but the intention thus imputed to the Legislature is made improbable even by the language of this

section wherein it denies to the counties the power to levy Occupation taxes of the kind levied by this Act. If it also repeals former statutes levying occupation taxes it at once deprives the counties of all power to charge occupation taxes against the corporations here taxed and it is not probable that such a consequence was intended. Looking to

Section 25 of the Act we find that a large part of the taxes referred to by the words of

Section 22—“except as herein stated”—as those which are not to be charged in addition to those “levied by this Act,” were the occupation taxes imposed by the Act of 1905, When, therefore, the Legislature provided by

Section 22 that the taxes levied should be in addition to all other taxes with exceptions defined by the Act itself, some of which exceptions were occupation taxes, it is plain that occupation taxes were in mind and that all but those excepted were included in the words “all other taxes” in addition to which those imposed by the Act were to be collected.

The explanation of this additional imposition as an occupation tax is found in the fact that the necessity for increased revenues for the support of the State Government had arisen and had led to the adoption of the policy of taxing certain corporations and businesses upon the basis of their gross receipts, which policy was carried into the Act of 1905, of which the Act of 1907 is largely a revision. The purpose of this legislation, as expressed throughout the former statute and in

Section 22 of the latter, was to raise additional revenue to meet a deficit and to provide means for the support of the government, and not, generally, to supplant entirely the existing revenue measures. And hence it was that an additional charge was laid to make up the occupation tax to be paid in future by those mentioned in these acts. If one statute had provided for an occupation tax to consist of the prescribed mileage and also of the percentage of the gross receipts there would be no conflict between the provisions and no question to decide.

As it is, the question exists only because of the implication which might arise if the last statute merely levied an occupation tax without expression of intention as to that already levied by other laws. That implication is excluded by the express provisions to which we have referred and no room is left for the contention that the Act of 1907 repeals the part of the Act of 1897 relating to street railway companies. Affirmed.