On Appellee’s Motion for Rehearing
GRAY, Justice.In its motion for rehearing appellee says that we erred in our original opinion and presents ten assignments. What we said in our opinion is sufficient to dispose of all these assignments except the fifth which is that we
“erred in failing to hold that the departmental construction of the statutes was to the effect that prior approval of the Banking Commissioner was not necessary in that the evidence clearly shows that the departmental construction was to the effect that the Commissioner’s prior approval was not necessary, and in that the Legislature having amended the law on numerous occasions during the time of the existence of such departmental construction did not change it, and thereby incorporated such construction into the statute.”
We will however further notice appel-lee’s argument that our construction of section 7 of Art. 881a would make the section unconstitutional.
Appellee says in its motion that:
“ * * * since the Banking Commissioner has approved the opening of these branch offices, Southwestern has a right to establish and operate said branch offices.”
If this statement be correct it would appear that this court is doing a useless thing in deciding whether such approval is required. However we will here concern ourselves with the questions noted supra.
In the “Statement” in appellee’s motion for rehearing, signed by the Honorable Dow H. Heard, it says:
“Counsel for Appellee Southwestern filed on Tuesday afternoon, October 28, 1958, its 52-page Reply Brief to Brief for Appellant. The opinion of the Honorable Court of Civil Appeals was handed down early Wednesday morning, October 29, 1958, and reproduced copies thereof were mailed to the parties of record on that date. Further, on Tuesday, October 28, 1958, Appellant’s Reply Brief of some 25 pages was also filed.
“It struck counsel for Appellee Southwestern with some peculiarity and substantial force that the opinion of the Honorable Court of Civil Appeals was handed down so promptly after the receipt of the Reply Brief filed by Appellee.”
We think it should not have required much concentrated thinking to conclude that our opinion was prepared, examined and approved prior to the filing of the reply brief and that after it was filed we did not see fit to change our decision.
This court has been most liberal in allowing parties to file briefs and replies. Here appellee’s motion for rehearing was filed November 13, 1958. On November 26, it filed a “Further Exposition of Ap-pellee’s Motion for Rehearing” and on December 12 it filed its reply to appellant’s reply to appellee’s motion for rehearing which was filed December 3, 1958. Thus it appears that the motion for rehearing is sufficiently presented for our disposition.
In our consideration of assignment five supra we are concerned with the statutes dealing with the Commissioner’s supervision and control of State chartered build*170ing. and loan associations. In our original opinion we discussed sections 2 and 7 of Art. 881a. Here we will also notice Art. 342-114, Vernon’s Ann.Civ.St. (cited by appellee) giving to the Building and Loan Section of the Finance Commission of Texas authority to promulgate general rules and regulations applicable to State associations.
Reference to Vernon’s Annotated Civil Statutes shows that Sec. 2 supra, was enacted in 1929 by the 41st Legislature at its second called session and that it has not since been amended. Section 7, supra, was first enacted in 1929 by the same Legislature that enacted section 2. It was amended in 1939 and again in 1943 and has not since been amended. Art. 342-114 was enacted in 1943 and has not been 'amended. Sections 24 and 35 of Art. 881a, Acts 55th Leg., p. 1319, Chapter 445, were amended in 1957 but those sections and their amendments are not relevant to the inquiry here.
In its motion appellee says:
“When the legislature re-enacted the statute on many occasions, or amended it in small particulars, it did so with the full knowledge of the departmental construction then in existence. Therefore, the Legislature incorporated the departmental construction into the statute itself.”
Appellee argues that the Commissioner testified that in his opinion his approval was not required for the establishment of branch offices. We will concern ourselves with what the record shows has been done by the Department that may or may not constitute departmental construction of the question before us.
The present Commissioner whose testimony is referred to supra on February 6, 1952, by letter from the attorney for the Banking Department, was advised in part as follows:
“Now, it is not a matter-of discretion with you as Banking Commissioner as to allowing branch offices out of analogy. The prohibition of places of business as to banks is a fundamental or constitutional one. Whereas, the provision for the place of business for the building and loan associations is purely one of statute.
“From these considerations I am of the opinion a state chartered building and loan association may have one or more branch offices at which to carry on its business, which such offices need not be mentioned by location in the articles of association.”
This letter then went on to say:
“ * * * Where an association does have a branch or branches, it should report their establishment forthwith to this Department as an essential incident to its supervisory powers.”
The letter concluded by stating that a “very perplexing question” might arise where the branch office in truth becomes the principal place of business “conceivably outside of the city or even county where the original principal place was located, * * * ” Prior to this letter (which was after the amendments supra) no departmental construction is shown. The letter itself disputes that there was a departmental construction prior to that date. Ap-pellee relies on this letter to establish its claimed departmental construction.
The Commissioner testified, by deposition, that after the above letter he took further steps to get advice as to his right to act on applications for branch offices for State chartered building and loan associations, and that on February 24, 1956 and November 4, 1956, he received advice from the Attorney General. These opinions were introduced in evidence and show that the advice to the Commissioner was that he should make his own investigation and determine whether the convenience and advantage of the public will or will not be served.
*171After the above letter of February 6, 1952 supra the Commissioner approved applications to establish branch offices at least on the following dates: March 11, 1952, which approv&l was cancelled by the Commissioner on October 23, 1952; March 25, 1952; April 24, 1953 and November 30, 1956.
On March 11, 1957, the Attorney General, in response to a request by the Commissioner, rendered an opinion that approval by the Department of Banking was necessary for the opening of branch offices by State chartered building and loan associations.
Appellee’s point five supra cannot be sustained because there has been neither a long continued or a well settled departmental construction “to the effect that prior approval of the Banking Commissioner was not necessary” for the opening of branch offices. This being true the question of legislative re-enactment of statutes in conformity with departmental construction is not presented.
To sustain appellee’s argument that there has been a departmental construction that the Commissioner’s prior approval is not required for the opening of branch offices the following must appear: (1) the statute in question must be ambiguous and be susceptible of more than one construction, and (2) that the agency charged with the duty of administering it has given it a practical interpretation. If this interpretation is shown to be long continued and uniform, it is to be given weight by the courts. Texas Employers’ Ins. Ass’n v. Holmes, 145 Tex. 158, 196 S.W.2d 390, 395. In any event appellee has failed to establish requirement (2). The evidence negatives interpretation by the Commissioner.
If it be argued that the failure of the Legislature to amend the applicable statutes subsequent to the letter of February, 1952, supra is legislative approval of the construction of the statutes given by that letter, then the answer to the argument is that there is no evidence in this record and no indication that the Legislature ever had the letter before it. Commissioner of Internal Revenue v. Glenshaw Glass Co., 348 U.S. 426, 431, 75 S.Ct. 473, 99 L.Ed. 483, 490, citing cases.
Our holding that section 7 of Art. 881a, gives the Commissioner supervision and control of branch offices, prior approval of their location and authority to promulgate rules with reference to applications for their opening is challenged by appellee with the argument that our construction of the section renders it unconstitutional as a delegation of law making power.
In 42 Am.Jur. p. 334, Sec. 43 at page 336, it is said:
“In considering the true test as to whether a power is strictly legislative or whether it is administrative and merely relates to the execution of the law, the true distinction is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and the conferring of authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made.’-’
Appellee does not appear to argue that the Commissioner does not have authority to promulgate rules as to the powers conferred on him by statute but says that the power of supervision and control over associations does not include the authority to require prior approval for opening branch offices, and further says that the act does not contain any standards by which such authority is to be exercised.
The rules set out the standards governing the applications and the findings to be made at the hearing. These are substantially the same as set out in section 2.
If appellee’s argument was sustained the effect would be to permit an association to *172obtain permission from the Commissioner to open its principal office at a given location, then open a branch office at another location and proceed to conduct its principal business, or even all of its business, there. In this manner the “very perplexing question” mentioned in the letter of February, 1952, would arise and the supervision and control of the Commissioner would be defeated. In this manner the enforcement of the provisions of Art. 881a would be rendered impossible. Such a construction of the statute should not be adopted. Davis v. Estes, Tex.Com.App., 44 S.W.2d 952. Thereby building and loan associations would be enabled to defeat the purpose of the statute. Smith v. Texas Co., Tex.Com.App., 53 S.W.2d 774.
Appellee’s motion for rehearing is overruled.
Motion overruled.
HUGHES, J., not sitting.