dissenting.
For the following reasons, I must respectfully dissent.
In my view, the opinion of the majority is based upon a fallacious premise. On its face, 68 O.S.1977 Supp., Sec. 1402a is not limited in application to out-of-state purchases. I therefore believe it applies to both in-state and out-of-state purchases. No limiting language appears in the section itself, or in the title of the legislative act which adopted it, and I know of no constitutional objection to a use tax as such.
The section is made a part of the existing use tax code, and for that reason existing provisions as to exemptions, etc., are applicable. Under 68 O.S.1971, Sec. 1404, the use tax does not apply
“(c) in respect to the use of any article of tangible personal property on which a tax, equal to or in excess of that levied by this Article, has been paid by the person using such tangible personal property in this State, whether such tax was levied under the laws of this State or some other state of the United States. If any article of tangible personal property has already been subjected to a tax, by this or any other state, in respect to its sale or use, in an amount less than the tax imposed by this Article, the provisions of this Article shall apply to it by a rate measured by the difference only between the rate herein provided and the rate by which the previous tax upon the sale or use was computed. * * * ” (Emphasis added.)
The result is that Oklahoma citizens would pay a total use and/or sales tax of 4% and only 4% on all sales, whether instate or out-of-state, because sales taxes already paid are in effect a “credit” against the 4% use tax. The tax would therefore be mathematically equal in all situations, and there could be no possible objections under either the Interstate Commerce Clause of the United States Constitution or Article X, Section 5, of the Oklahoma Constitution (the uniformity clause).
It is argued in the briefs that (1) the existing Sec. 1402 is admittedly limited to out-of-state purchases and (2) the language of Section 1402a is almost identical with that of Section 1402, and that for these reasons, our Legislature “must have intended” for Sec. 1402a to apply only to out-of-state purchases. Such a conclusion is not justified. Sec. 1402 was not limited to out-of-state purchases by any language in the section itself, but by the legislative title of the act which adopted it. That title was, in pertinent part, “An Act relating to taxation; establishing a Use Tax Code; levying an excise tax on the use, storage and consumption of tangible personal property purchased outside Oklahoma * * * (Emphasis added.) See Session Laws of 1963, Chapter 368, page 692.
The same is not true of the legislative title of the amendatory act which adopted *1287Sec. 1402a, which was “An Act relating to revenue and taxation; amending 68 O.S. 1971, Sec. 1403; providing for additional state excise tax and apportionment of additional revenues * * * No limitation to “property purchased outside Oklahoma” is included. See Session Laws of 1977, Chapter 113, page 326. It also may be noted that by the terms of Sec. 1402a, the additional use tax is levied upon every person “ * * * storing, using or otherwise consuming, within this state, tangible personal property purchased or brought into this state * * * It is not limited to property purchased and brought into this state. (Emphasis added.)
It may be observed in passing that, under figures compiled by the Oklahoma Tax Commission and set out in its brief herein, the tax burden of the great majority of Oklahoma taxpayers would not be increased under my view of Sec. 1402a, because they live in municipalities such as Lawton, Oklahoma City and Tulsa, which already levy a 2% municipal sales tax. Thus, they already pay a sales tax totaling 4% (2% state and 2% municipal) and under Sec. 1404, are not subject to the additional use tax levied by Sec. 1402a.
I agree that serious constitutional questions are raised by the “allocation” provisions of sub-paragraphs (1) and (2) of Sec. 1402a, which may be in violation of Article X, Section 20, of the Oklahoma Constitution, under which our Legislature “ * * * shall not impose taxes for the purpose of any county, city, town, or other municipal corporation * * * ”. The highest courts of other states having similar constitutional provisions have held that they apply only to property taxes, and the Oklahoma Supreme Court has, in past opinions, cited with approval holdings to that effect, but without specifically holding that the Oklahoma provisions apply only to property taxes. See, for instance, State v. Union Cent. Life Ins. Co., 8 Idaho 240, 67 P. 647; and Trustees, Executors’ and Securities Ins. Corp., Limited et al. v. Hooton, County Clerk, 53 Okl. 530, 157 P. 293. Needless to say, even if the “allocation” provisions are unconstitutional as applied to counties, cities and towns, the balance of the act which adopted Sec. 1402a must stand, because it contained a “sever-ability” clause to the effect that “The provisions of this act are severable and if any part or provision hereof shall be held void the decision of the court so holding shall not affect or impair any of the remaining parts or provisions of this act.”
In summary: the supposed inequality of taxation which the majority opinion finds fatal to Sec. 1402a results not from any language of the section itself, but from the erroneous holding that it applies only to out-of-state purchases. When the section is properly applied to both in-state and out-of-state taxes, it provides for a plan of taxation which is mathematically equal in all situations, to which no constitutional objections can be raised.
I therefore respectfully dissent.
I am authorized to state that HODGES, C. J., and BARNES, J., concur in the dissenting views herein expressed.