                    March 25, 1960

Mr. E. B. Camiade         Opinion No. Wk-821
State Parks Board
Austin, Texas             Re:   Under House Bill 11, Acts
                                of the 56th Legislature,
                                Third Called Session, 1959,
                                is the Texas State Parks
                                Board required to collect the
                                Hotel Occupancy Tax on rooms,
                                cabins and camping shelters
                                owned and operated by the
Dear Mr. Csmiade:               Parks Board.
     By your letter dated January 11, 1960, you request an
opinion on four questions relating to the application
of the Hotel Occupancy Tax to rooms, cabins and camping
shelters owned and operated by the State Parks Board.
     In describing the subject accomtmdations,you state:
          "The revenue derived from the charges
        made for the use of said rooms, cabins and
        camping shelters is deposited by the employee
        of the Texas State Parks Board handling said
        rentals In a local bank fund, called a Con-
        cession Account. Out of said Concession
        Account, the employee pays for all expenses
        incurred in operating and maintaining said
        rooms, cabins and camping shelters. The
        Parks Board authorizes the employee to re-
        tain 204%of the money left in the Concession
        Account after paying all expenses of opera-
        tion and maintenance, as compensation for
        his work in handling said rentals. This
        compensation Is handled as wages, and is
        reported accordingly for social security
        and withholding tax purposes by the Texas
        State Parks Board. The other 80% of the
        money left in the Concession Account IS
        deposited in the State Treasury In the State
        Parks Fund, and used for operation, maintenance
        and repairs to the State Parks of Texas."
     Your first question is whether the State Parks Board is
required~to collect the Hotel Occupancy Tax.
Mr. E. B. Camlade, Page 2      Opinion NO. ww-821


      The tax in question is imposed upon the occupant (except
 "permanent residents") of any building or buildings in
which the public may, for a consideration, obtain sleeping
accomodations where the cost of occupancy of the space
 furnished is at the rate of two dollars ($2.00) or more per
       See Art. 23.01 (a) Art. 23.02 (a) and Attorney General's
g&ion    No. ~-706 (Sept&ber 21 1959). Only hospitals,
 sanitaPiums and nursing homes &e excepted from the definition
of "hotels ' Every "person" owning, operating, managing or
 controlling a "hotel" is required to collectthe tax and make
remittance to the State. Arts. 23.03 and 23.04. 'Person"
 is defined to mean any Individual, company, corporation, or
association owning, operating, managing or controlling any
hotel.
     The term "person" as extended to Include "corporation"
may include the State (thereby, obviously, including all State
components or "functioning arms") where such an Intention is
manifest. The fact that a State is, In the generic sense, a
corporation is a proposition having roots In judicial antiquity.
Witness the following statement from Chlsholm, Executor, v.
Geor ia 1 U.S. (Curtis) 17, 36, 2 U.S. (Dali.) 419, 447
Tide
           "The word 'corporation', in Its largest
         sense, has a more extensive meaning than
         people generally are aware of. Any body politic,
         sole or aggregate, whether its powers be re-
         stricted or transcendent, is In this sense 'a
         corporatlon8. The king, accordingly, in England,
         is called a corporation, 10 Ce. 29, b. So also,
         by a very respectable author (Sheppard, in his
         abridgement, (Vol. 431) is the parliament itself.
         In this extensive sense, not only each State
         singly, but even the United Statesmay without
         lmproprletv be ~tezmed 'corporations'. I have,
         therefore, in contradistlnctien ko this large
         and indefjnite term, used the term 'subordinate
         corporations'; meaning to refer to such only (as
         alone capable of the slightest application, for
         the purpose of the objection) whose creation and
         whose powers are limited by law."
     The United
          _     States Supreme Court haa not departed from the
foregoing Interpretation. See Cotten v';~United States, 11 How.
229, 231-232, 52 U.S. 229 (1850); Ohio v. Helverin    2
360 (1934); Georgia v. Evans, 316 U,S. 159 (1942);%eeg%~oS.
United States v. Cooper Corporation, et al., 312 U.S. 600
(1941); Stanley v. Schwalby, 147 U S 508 (189 ); Helverlng
v. Stockholms Enskilda Bank, 293 U:S: 84 ($9343 ; Far East
MP. E. B. Camiade, Page 3     Opinion NO, ww-821


Conference v, United States, 342 U.S. 570 (1952); Res ublica
v. Sweeps9 1 U.S. Dali. 41 (1779) and Relverl;g v.*
American Tobacco Company, Ltd., 69 F.2d 528 ( .C.A. 2nd
Cir. 1934) ff'd, 293 U S 9 95    In Georgiav. Evans, supra,
the wordinaaof the deflnition'of nerson was. lnsof‘aras pertinent.
identical go the definition in Issue. There the question was     -.
whether the State of Georgia was a "person" within the meaning
of the Sherman Anti-Trust Act (26 State. 209, 210) for the
purpose of instituting a civil action for treble damages.
Section 8 of the act defined "person" as "corporations and asso-
ciations existing under or authorized by the laws of any of
the territories, the laws of any State, or the laws of any
foreign country." The Court, speaking through Justice Frankfurter,
pointed out that whether 'person" includes a State or the
United States depends upon its legislative environment, and
that the following may be considered in construing the term:
 1 the structure of the Act; (2) its legislative history;
t3 1 the practice under It; (4) past judicial expressions.
Applying these principles, the Court held that the State of
Georgia was a "person" within the foregoing definition.
      Other authorities less imcressive t&n the Supreme Court
have held that the State Is a corporation. See Burke v.
Railroad Retirement Board, 165 F.2d 24 (C.C.A., D,C. 1947)
{in which it was held that the Allegheny County, PennsylvanIa,
drphans Court was a person within the meaning of the Rail-
road Retirement Act (50 Stat. 309) because the context and
purpose of thz Act required the terms as extended to Include
 'corporation, to incltie a governmen+.albody); Isner v.
Thterstate Commerce Commission, 90 F.Supp. 361 (U.S.D.C    S.D.
kich. 1950) in which the Court, relying on T. & P. Ry.'&o.
v. I.C.C., 1 2 U.S. 197; RRD. Labor Board, 258 U.S. 158, and
  tah State Building Comamissionv. Great American Indemnity Co.,
            -_ , held that the I.C.C. Is a "corporation"):
140 P .2d 763
Indiana State Toll-Bridge Commission v. NSnor, 132 N.E:2d 282
   95b) (in which it was held that the Toll-Bridge Commission,
a body politic and corporate, was a corporation); and Indiana
v. worsm, 40 Am.Dec. 378 (holding the State to be a'corporatlon"
and a "person" within the%&eaning of the statute providing‘that
all notes in writing and signed by any "person" are negotiable).
     The case of United States v. Coumentaros, 165 F.Supp. 695
(U.S.D.C., Md. 1958) contains an exhaustive review of authorities
on this subject.--It is even pointed out9 in a quote from
Helvering v. Stockholms Enskllda Bank, supra, that Blackstone,
the eminent authority on all matters pertaining ,to law, had
this to say (1 Bl. 123):
           "Persons are divided by the~~~law
                                           Into
         either natural persons9 or artLflcia1.
MP. E. B. Csmiade, Page 4     Opinion NO. ww-821


        Natural persons are such as the God of
        nature formed US; artificial aressuch as
        are created and devised by human-laws-for
        the purposes of society and government,
        which are called corporations or bodies
        politic." (Emphasis added.)
Based on its lengthy discussion, the Court concluded that the
United States Is a 'person" and "body corporate" within a
Maryland statute providing that every person and body corporate
that has the right to become a plaintiff In any action or
proceeding shall have,,,the
                          right to become a plaintiff in an
attachment against a non-resident. In so holding, the Court
makes the following statement which Is particularly appropos
to the instant situation:
          "By analyzing those decisions holding that
        the sovereign 1s a person or body corporate,
        it may be found that one or more of the follow-
        ing factors are present and It may be con-
        cluded that their presence determines the
        reasonableness of such a construction of the
        statute in question and the manifestation of
        legislative intent to include the sovereign.
        Generally the sovereign entity involved is'
        acting not In Its sovereign capacity but
        rather is engaging in commercial and business
        transactions such as other persons, natural
        or artificial, are accustomed to conduct,
        usually in addition, when a statute is construed
        ~80 as to include the sovereign within Its terms,
        no impairment of sovereign powers results
        thereby and rights and remedies are given
        rather than taken away-"
     Analysis of the Hotel Occupancy Tax Act In light of the
foregoing principles makes it clear that the State Is a "person"
required to collect the tax, In line with the reasoning in the
Coumantaros case, the State Parks Board is, In effect, given
a right or remedy (I.e., collection of the tax from the
occupant) In reference to an activity "such as other persons,
natural or artificial, are accustomed to conduct."1 This
position is also fortified by reference to another extrinsic
aid to statutory Interpretation, i.e., "past judicial expression."
(See discussion of Georgia v.,~
                              Evans, supra.)
1
 Though the renting of cabins in this case may, perhaps, be a
non-profit activity, or designed to foster the esthetic, It
nevertheless Is an enterprise that is commercial In nature.
Mr. E. B. Camlade, Page 5       Opinion No. ww-821


     It Is specifically noted   that by the statute in question
the tax is not imposed on the   State itself, rather Instead
the State merely collects the   tax from those occupying the
sleeping accomodatlons. Your    first question Is answered in
the affirmative.
     Conditioned upon an affirmative answer to the first
question, you ask:
           "Does the tax apply to a room or cabin
         where the cost of occupancy for one person
         is less than two dollars ($2.00) per day,
         but for two or more persons is more than two
         dollars ($2.00) per day?"
     The tax is imposed upon the total cost of occupancy of
a rental unit, or space", regardless of the number of people
who pay for or take advantage of the privilege of occupancy.
Consequently, where more than two dollars ($2.00).per day is
charged for the same rental unit, the tax is due.
     You next ask whether the tax applies "where group camp
facilities (consisting of dormitory buildings, service buildings
and showers, clothes washing equipment and sanitary facilities,
combination dining hall and kitchen, recreation hall and ad-
ministrative staff cottage) are rented to a group (that is not
exempt under paragraph (c) of Art. 23.02 of said H.B. 11) at
a charge of $35.00 a day for 50 persons,"
     Under the facts presented, it must be considered that the
entire "group camp facility" is the rental unit furnished, since
there is no indication that the rental price is divided according
to the number of 'rooms' or "spaces"; nor does there appear to
be any separation of the charge for the buildings used for
sleeping accomodations from charges made for service'buildings"
or "dining" or "recreation" halls. Therefore, It appears that
the tax Is due upon the entire cost of occupancy. (On this
point, attention is directed to Opinion No. w-706,  cited
supra, and In particular to Questions and Answers Nos. 1, 2 and
5 therein).

     The last question Is whether the tax is to be collected
on screened-in camping shelters where nothing is furnished, "not
even a bed."
     As pointed out above, a "hotel" is a building in which the
public may for a consideration, obtain "sleeping accomodations".
The term "sleeping accomodations' infers something more than
a mere overhead covering; it appears that some sort of bed,
cot, bunk, hammock, mattress, or at least a pallet, Is required.
’




     m.   E. B. Camiade, Page 6      Opinion No. WW-821


     A person who receives none of these articles (or a sub-specie
     thereof) Is not very well "accomodated" for sleeping. There -
     fore, this question is answered in th? negative.
                           SUMMARY

               The Hotel Occupancy Tax is due on the
           cost of occupancy of rooms, cabinsf,camping
           shelters, and "group camping units owned
           by the Texas State Parks Board where the
           price charged for such occupancy exceeds
           two dollars ($2.00) per day per individual
           rental unit. However, the tax is not due
           on screened-in camping shelters where
           nothing is furnished, "not even a bed."
                                  Yours very truly,
                                  WILL WILSON
                                  Attorney General of Texas




     JNP:cm
     APPROVED:
    ~.OPINION COMMITTEE:
      W. V. Geppert, Chairman
     Richard Wells
     Robert A. Rowland
     'Ray Loftln
     Charles Cabaniss
     REVIEWEBFOR THEATTORNEYGENERAL
     By: Leonard Passmore
