Ron. Robert S. Calvert                       OPINION NO, ww-71
Comptroller     of Public Accounts
Capitol   Station                            RE: Occupation    ta% to be
Austin,   Texas.                                 levied   on carnivals    under
                                                 Article   7047, Subdivision
                                                 25(b) and Antic18     7047,
                                                 Subdivision     37; Vernon’s
Dear Mr. Calvert    t                            Civil   Statutes.

           You request    the opinion     of this office     as to whether
stationary   amusement parks now operating         in many cities
throughout   the State should be taxed as carnivals            aa provided
in Article   7047, Subdivision      25(b),   Vernon’s    Civil  Statutes,
or under Article     7047, Subdivision      37, V.C .S., which levies      a
tax on persons keeping or using for profit            hobby horses    or
other similar    devices,   whether designated       by name or not.

         You advise us that the definition             of carnival
adopted by you Is as follows:       “A carnival        Is a collection    of
shows, exhibitions,  riding   devices,    etc.,       collected   and opera-
ted as a whole under, one management. ’

            No tax is levied     by Article 7047, V. C. S., or any
subdivision     thereof,   against    stationary      amusement parks as
such, but a tax is levied        against      carnivals.         If we accept
your definition      of a carnival      literally,       a stationary    amuse-
ment park could reasonably         fall    within    It.      But we do not
believe    that it was the intention          of the Legislature        to tax
stationary     amuaement parks, operated           as they are today,      as
carnivals.       There are no reported          cases which have come under
our observation      which lead us to a definite             conclusion   as to
the distinction      between a stationary          amusement park and a
carnival;    yet, we think there is a distinction.                   In the case
of Veterans     Bore      Wars, Ledbetter-McReynolds             Post No. 3015
v.    u 1, et al                          (Sup. Ct. of New Mex.,           4 #
the Court aal I

            “The term carnival      has an extended     slgnlf lca-
         tlon,    and comprehends a variety      of amusements.
         As defined    by Webster’s     New International      Dic-
         tionary,    Second Edition,     It means, ‘an amuae-
         ment enterprise     consisting    of sideshows,      vaude-
Hon. Robert     5.   Calvert,      page 2               (w-71)



         vllle,   games of” ~:~srlie, tnerr,y-g;o-To,l;;iSs,         etc.)
         also an association     Po% conducting       such          an
         enterprise    , . . .‘I

It may be admitted      thnt WeSsteP's defLnifio,n      of’ a carnival    is
broad enough to cover exhfbftfone        and devfrev     cf every kind and
character     from which an amGsamer:t Is dsrfved:       yet it can ‘by no
means be said that the terms “c,arnival”        and “stationary        amusement
park” are synonymous or can be ;sed as convertible              terms.     They
may be arranged under the S,erm amusemeritY’ but differ             from each
other, as one species     differs  from anotilqr ch the same genus,            A
carnival    lacks the charac%erLstic     of’ pe-ma’nercy and stability
which a stationary      amusemen,t park possesses.         Neither    does the
stationary      amusement park, as Its operation      i-: generally     under-
&;;Eeby     the public,   have sIC;eshovz,. vaude\vfiie,     or games of
         , all of which are common to carnlvn1.z.

          Moreover,   ve thi.nk that stationary      amu:sement parks, as they
,are operated     in this State and az geneLXally il:lderztood        by the pub-
 lic,  have more to do wrth the entertainmerit          and amusement of chlld-
 ren;   whereas,    a carnivai.,as   generally    undeps,tood,  embraces enter-
 tainment and amusement of adults          az well as children.        Indeed,
 many of the exhibitions        and entertainment    features   ,of carnivals
 appropriate    for adults    would be inappropriate       for children.       ?.,ls,
 we think,   Is at least     Jne dPztin ction wh%ch sets them apart from
 each other.

          You advise us that you have cor;str-ded Article            ,7047, Subdivi-
sion 37, which     levies    a tax on persons      keeping cr using for prcflt
hobby horses    and other rfdl.n,g devices,        to mean tL,at the tax should
be collected    from all persons,       fl.rms or co?oorations        owning, con-
trolling,    or operating     any h.o’bby h.orze, :?o1,?.?r coaster,     whip air-
plane swing, doctor       dippy,  cj1.1 mill,   dotikerf trafl,   miniature    rail-
road, ferris    wheel. o? other dac,lcs cf’ 4I.k.? :‘:)l,azai:teT, with or
without    a name, arid that the tax 4hoiLl:        b*  collected     upon each and
every such device,,      unless  ~u?~de:?tt,? man.agsmt??it,and c,cnnncteti with
a carnival.
         Subziv’l.sio:l   37 iif’ ;\-:~t:.e’L+:‘:G;,,     V.C .S .,? yeads   as foilows   :
Hon.   Robert   S. Calvert,     page 3       (W-71)



         We cannot agree with your interpretation               of this subdlvl-
slon as to how the tax is to be Imposed.                  It Is our opinion        that
the tax levied     by Subdivision       37 of Article      7047 is upon the per-
son owning the “hobby Horses,           etc.”    and not upon each device.          Sub-
division   37 levies      the $25.00 tax on the Individual,            and the terms
“hobby horse,    flying      jenny,   or other device      of that character”        are
merely definitive       of the persons       liable  for payment Of the tax.
Our conclusion      is substantiated       by the following       observationst
(1) The tax levied        by the article       Is an occupation     tax, and not a
tax on specific       devices.       (2) The tax is to be collected           “From
all persons    keeping or using for profitn            the named devices.         This
wordiq    is equivalent        to “From all persons who keep or use for
profit     which clearly        shows that the provlzn          concerning      the
named d&ices      is merely definitive          of the occupation      on which the
tax Is to be levied,         and Is not to be used to determine            the amount
of the tax.       (3) There is no indication            whatsoever     that the tax
Is to be imposed on each device,             but to the contrary,       there is to
be “From all persons         . . . an annual tax of $25.00.

        Therefore,  you are respectfully  advised that the tax con-
templated  by Subdivision  37 of Article  7047 is a flat  rate tax of
$25.00 per year upon the owners of such devices,    and the tax so
imposed Is not to be affected    by the number of devices  owned by
such person.

         We would not be understood      as holding  that the tax imposed
by Subdivision      37 is $25.00 for each owner of such devices         regard-
less of the number of establishments         owned.    The qiiestion    of
separate    establishments    Is governed by the introductory       provision
;f Article     7047, which provides    that the tax Is to be levied
          on every such occupation     or separate  establishment,       . . .l’
Tiui   ’if a person owned more than one establishment         or stationtiry
amusiment park, the tax would be Imposed on each establishment;
but if such person owned only one park, only one tax would apply,
regardless     of the number of devices     in the park.
.   .




                                                         ; ..I:.;   ;
    Hon. Robert S. Calvert,   page 4   (WW-71.)‘~   ””
