DISSENTING OPINION. Oil produced (i.e. taken from the earth or water, section 1, Par. i of the statute we are considering) and oil producing machinery are, of course, property. So, also, is oil "under the ground," as it is a part of the land in which it lies. It is owned, either by the landowner, or separately by another who has been invested with title thereto. Consequently, all of this property must be taxed, under section 112 of our Constitution, if taxed at all, in proportion to its value uniformly and equally with other property. Our statutes other than the one we are now considering contemplate that oil, while in the ground, shall be taxed as a part of the land in which it lies; or separately from the land if separately owned, section 9770, Code 1942.
The pertinent portions of section 11 of Chap. 134, Laws 1944, which we are now considering, are set forth in the majority opinion herein; and section 14 thereof is as follows: "If any clause, sentence, paragraph or part of this act shall, for any reason, be adjudged by any court of competent jurisdiction to be invalid, which changes or materially affects the scheme and method of taxation herein provided for, or which in anywise prevents or modifies the exemptions provided for under section11 *Page 749 hereof, then the whole of the act shall be invalid, and every law which this act amends, modifies or repeals shall become operative and in full force and effect." (Italics mine.)
It is manifest from these two sections of the statute that the privilege tax levied by section 2 thereof on persons producing oil, for profit, or commercial purposes, was adopted by the legislature as a substitute for the ad valorem tax on oil in and produced from land. Such a tax violates section 112 of the Constitution, and is void. Adams v. Mississippi State Bank,75 Miss. 701, 23 So. 395; Adams v. Bank of Oxford, 78 Miss. 532, 29 So. 402; Thompson v. Kreutzer, 112 Miss. 165, 72 So. 891; Chicago, etc., R. Co. v. Robertson, 122 Miss. 417, 84 So. 449; Reed Bros., Inc. v. Board of Supervisors, 126 Miss. 162, 88 So. 504.
Counsel for the state admit that this would be true ordinarily, but they say that section 112 of the Constitution does not apply here, for the reason, as they say, that oil beneath the surface of the ground cannot be assessed for taxation, either as a part of the land in which it lies, or separately therefrom, for the reason that prior to its removal from the land its existence vel non, and its amount and value, cannot be ascertained. All of this may be true, as to which I am not in position to express an intelligent opinion; but this is a question of fact, to be determined on evidence, the answer to which was for the legislature when enacting this statute. Whether the answer which the legislature made thereto is right or wrong, the constitutionality vel non of this statute which it enacted pursuant thereto, must be tested thereby. What the legislature intended to do, and thought it had done by section 11 of the statute, was to relieve the property described therein from the burden of ad valorem taxes, under which the legislature thought it then rested, but substituting a privilege tax therefor; and by section 14 of the statute it expressly declared that if section 11 thereof is invalid — i.e. has no force or effect — then *Page 750 neither shall section 2 thereof have any force or effect. Each is tied to the other, and both are to be effective, or neither shall be. The statute is lengthy and carefully drawn, and it is manifest therefrom that the legislature did not intend to impose the privilege tax set forth in section 2 thereof, unless at the same time it had relieved oil in, and produced from, land from the burden of ad valorem taxes under which it then rested; and there is nothing in the statute to indicate that the legislature would have enacted section 2 thereof if no necessity existed for section 11 thereof, in order to relieve this property from the burden of ad valorem taxes.
All of this discussion as to whether oil can be taxed while in the ground would seem to be beside the mark, for the state's land assessment rolls are so ruled as to require the return of oil and gas beneath the surface of the ground by the owner thereof for taxation; such returns are being made, and ad valorem taxes are being collected thereon. But oil, while in the ground, is not the only property exempted from ad valorem taxes by section 11 of the statute. Oil that has been produced — extracted from the ground — is also exempted, as is also oil production equipment. No claim is made that the latter cannot be assessed for taxation; but as to the first, it is said it is impossible to assess oil after it has been extracted from the ground for the reason that the producers do not permit it to come to rest after reaching the surface of the ground, and remain there long enough for the tax assessor to assess it. I do not know whether this is being done or not; but I do know that the legislature can prohibit it from being done; and, also, that provision can be made for measuring the quantity and value of the oil as it leaves the well and begins its journey to its ultimate destination. This is being done under sections 6 and 11 of the statute we are now considering, and the tax collected under section 2 of the statute is based thereon. *Page 751