As I view it, the majority opinion has placed a strained and technical construction upon the act of Congress involved herein, and does not give due consideration to the spirit, purpose, and intent thereof.
By virtue of the decisions quoted in the majority opinion and prior to the permissive act of Congress (Act March 3, 1921, 41 Stat. at Large 1250), oil operators had escaped *Page 149 all taxation on oil and gas produced from certain Indian lands on the theory that as such operators they constituted federal agencies. The state was therefore powerless to claim any revenue whatever for the support of its governmental functions from this natural resource, which was rapidly becoming exhausted. The preferment of an oil operator who produced oil from Indian lands over another operator who produced oil from other lands is not sustained by the principles of common justice. To remedy the unfair situation so created, the permissive act of Congress was passed.
The act specifically grants authority to the state of Oklahoma to levy a gross production tax on all oil and gas produced in Osage county. It is significant that the maximum or minimum tax is not prescribed by the act. Thus there is manifested a clear intent that the oil and gas produced in Osage county should be taxed on the same basis as oil and gas produced on other lands within the state.
A helpful rule of construction relating to a similar problem involving taxation is announced by the Supreme Court of the United States in the case of Shaffer v. Carter, 252 U.S. 37, 40 S.Ct. 221, 64 L.Ed. 455, wherein it is said:
"This argument, upon analysis, resolves itself into a mere question of definitions, and has no legitimate bearing upon any question raised under the federal Constitution. For, where the question is whether a state taxing law contravenes rights secured by that instrument, the decision must depend not upon any mere question of form, construction or definition, but upon the practical operation and effect of the tax imposed. St. Louis-S.W. Ry. v. Arkansas, 235 U.S. 350, 362, 35 S.Ct. 99, 59 L.Ed. 265; Mountain Timber Co. v. Washington,243 U.S. 219, 37 S.Ct. 260, 61 L.Ed. 685, Ann. Cas. 1917D, 642; Crew Levick Co. v. Pennsylvania, 245 U.S. 294, 38 S.Ct. 126, 62 L.Ed. 295; American Mfg. Co. v. St. Louis, 250 U.S. 459, 39 S.Ct. 522, 63 L.Ed. 1084."
Pursuing the above policy of construction, it is apparent that it is immaterial whether the tax involved herein is called an excise tax, a property tax, or a gross production tax. We cannot escape the conclusion that it is a tax on the gross production of oil.
Two reasons are assigned in the majority opinion as to why the tax does not come within the permissive act of Congress. The first relates to the manner of levy, in which it is pointed out that the gross production tax is based on the gross value of oil produced, while the tax involved herein is fixed at a flat rate per barrel of oil. I fail to perceive any manner in which this distinction relates to the practical operation and effect of the tax imposed. The distinction is purely technical and is not justified by the manifest object and purpose of Congress in the enactment of the permissive statute.
It is also pointed out in the majority opinion that the manner of distribution of the gross production tax differs from the manner of distribution of the tax involved herein. An examination of the permissive act of Congress discloses that the act does not directly or impliedly provide for the manner in which the tax levied by virtue thereof is to be distributed. On the other hand, the act specifically provides that the tax is to be distributed "as provided by the laws of Oklahoma." It must have been contemplated that there was a possibility that the law providing for the distribution of the gross production tax might be changed or amended, and no one would contend that such a change or amendment would invalidate the permissive act of Congress and result in a withdrawal of said permission to levy and collect such tax. In my judgment, it is not within the province of Congress to provide for the manner of distribution of a general tax levy, as this is one of the powers vested in a sovereign state.
No complaint is made as to the justice of the tax. The benefits flowing from the enforcement of the proration laws apply to all oil operators alike. I do not believe that it was the intention of Congress that operators on Indian lands should profit at the expense of other operators. This identical question was presented to the Federal Court of the Northern District of Oklahoma in the case of Gypsy Oil Co. v. Oklahoma Tax Commission, 6 F. Supp. 6. The cause was heard by three judges. Although the case was decided on a jurisdictional issue, the judges announced their respective opinions relating to the validity of the tax. Judges McDermott and Kennedy were of the opinion that the tax levied by chapter 132, Session Laws 1933, was within the permissive act of Congress, and Judge Kennamer entertained the opposite view. In my judgment the majority opinion was correct.
But I want to register a most vigorous *Page 150 dissent to some of the reasoning in the majority opinion. It is not for this, or any other court, to speculate upon the motives that actuated Congress to grant the right of taxation on this governmental agency; it is for this court to construe the language of the act conferring such right. I especially dissent to the expressed theory of the majority opinion set forth therein: "But we should be slow to presume upon consent given, and careful to remain within the limits of the acquiescence or consent heretofore given, and we should not create or presume the right to levy and collect one tax because the national government has consented to the levy and collection of another and a different tax." This is in conflict with the universal rule that the power of taxation is always construed liberally in favor of the sovereign and a claim of exemption from taxation is construed strictly as against one claiming lack of power to levy. I am unable to perceive a distinction in basic effect from a tax that exacts a per centum of the gross value of a barrel of oil and a fixed tax of a fraction of a cent per barrel.
I therefore respectfully dissent. I am authorized to say that BUSBY, J., concurs in this dissenting view.