(specially concurring). I concur fully in the opinion as written by the Chief Justice, so far as the opinion deals with the controversy plresented by the *425record, but desire to offer some additional reasons on the point decided, and also think we ought to decide the proposition pretermitted in the chief opinion, so that thé legislature may be fully advised as to the view of the court thereon.
The provision of section 112 of the state Constitution ° — that “Property shall be assessed for taxes under general laws, and by uniform rules, according to its true value. But the legislature may provide for a special mode of valuation and assessment for railroads, and railroad and other corporate property, or for particular species of property belonging to persons, corporations, or associations not situated wholly in one county” — means that property of one person or corporation should be assessed only under general laws and by uniform rules, and according to its true value, and has no reference to taxes, as distinguished from assessment, nor does it authorize a special method of taxation as distinguished from valuation and assessment, and does not have reference to taking any one method in lieu of another method, but has reference to arriving at the value of the property, and, when the value is arrived at, then the property so valued must be taxed in the same way and to the same extent as other property. This is apparent when we consider section 181 of the Constitution in connection with section 112. This section specifically provides that “the property of all private corporations for pecuniary gain shall be taxed in the same way and to. the same extent as the property of individuals,” subject only to certain exceptions named in section 181, which do not embrace the property involved here. Neither section authorized the legislature, as to the property here involved, to adopt a distinct method of taxing in lieu of ad valorem tax.
The act under review provides that it shall be taxed with three per cent, of the gross income derived from the sources named in the statute. I fail to see how gross *426income has any real relation to value. It seems to be entirely arbitrary in the method of valuation, if indeed it is valued at all. It is well known that'ad valorem taxes on property vary from year to year. For’ the present year the state ad valorem tax is nine mills, for some of the' years in the past it has been five and one-half mills, for some years six mills, and for some years six and one-half mills,; but under the method used in the act under review the tax on this property would be the same, regardless of variations in the amount of the state, county, and municipal levies that other prop1-erty had to bear. It is easily perceived that a business might, or could, be conducted, and the propierty used, so as to produce a considerable gross revenue, and still be operated at a loss. Again, property commanding a good value on the market might, because of disuse or other causes, produce a very limited gross income during a particular year, and indeed might produce none at all.
The pro-visions in the section, that the legislature may provide for a- special mode of valuation and assessment for certain kinds of property, is followed by the provision that — “All such propierty shall be assessed at its true value, and that no county shall he denied the right to levy county and special taxes upon such assessment as in other cases of property situated and assessed in the county.”
This section clearly means that the county shall have the right to levy county and special taxes upon that class or classes of property whose valuation and assessment may be made by a special mode, owing to its situation in more than one county, and inasmuch as the act under review makes the three per cent, of the gross earnings in lieu of all taxes, and no scheme for distributing the taxes so collected among the counties and municipalties of the state in which thje property is situated, or through which it is operated, it clearly violates the Constitution for this reason.
*427The evil designed to be remedied in the Constitution (section 112) is well known for prior to the Constitution of 1890 the legislative history of the state shows that many special schemes of taxation were adopted, under which the state would secure a favorable tax, and the counties would be denied the right to tax certain property situated in or running through them. For instance, some of the railroads were taxed by a privilege tax at so much per mile in lieu of all other taxes, and the counties could not tax such property for local purposes at all.
Section 181 of the Constitution specifically authorizes special methods of taxing banks, building and loan associations, and domestic insurance companies. It is a well-known rule of construction that, where a statute or the Constitution enumerates classes to be excepted from the operation of a statute or the Constitution, the enumeration excludes all others not so enumerated. In Brennan v. Miss. Home Ins. Co., 70 Miss. 531, 13 So. 228, it was said that the provisions that no county shall be denied the right to levy county or special taxes upon certain assessments applies only to> assessments of railroad or other like property not situated wholly in one county. As I understand this case, the court understood that the property authorized to be specially assessed or valued by a special method, such as railroad and other corporate property, and particular species of property belonging to persons, corporations, or associations not situated wholly in one county, applied only to property which was situated partially in two or more counties, but which, owing to the unit theory, might have a value as a whole not easily apportionable between the counties ; and this is my view of this provision.
Some members of the court as now constituted think this provision authorized the assessment of corporate property by a special mode different from other property, even though it was wholly situated in one county; *428but it seems to me that the decision of this court in Robertson, Revenue Agent, v. K. C. Lumber Co., 77 So. 246; Robertson, Revenue Agent, v. Miss. Valley Co., 77 So. 253, and Robertson, Revenue Agent, v. Mississippi Valley Co., 120 Miss. 159, 81 So. 799, settles this question unfavorably to this view, for under the last case named the decisions constitute precedents so far as the issues therein presented for decision are concerned, regardless of the expressions in the individual opinions then written.
In the K. C. Lumber Co. Case, supra, the question was clearly presented and decided, though by a divided court, in favor of that theory that all property of a’ private corporation of a physical and tangible nature must be assessed and taxed in the county or municipality where situated; and, if the conclusion or judgment then rendered -is authority, it seems inescapable that the reasoning of the opinion expressing my own views as to the issues there presented is logical and sound. In the Brennan Case, 70 Miss. 531, 13 So. 228, the foundation and authority for the conclusion reached rests in that provision of section, 181 of the Constitution which provides:
“And domestic, insurance companies shall not be required to pay a greater tax in. the aggregate than is required to be paid by foreign insurance companies doing business in this state, except to the extent of the excess of their ad valorem] tax over the privilege tax imposed upon such foreign companies.”
The Constitution having thus expressly provided that domestic insurance companies should not be taxed to a greater extent than foreign companies, the court necessarily must give effect to the Constitution rather than to the legislature or the taxing authorities, and for that reason the court had full authority to make a decision which limited the tax imposed upon a domestic company.
*429I have expressed my opinion upon the concluding sentence of section 112, so as to bring into view of the legislative authorities a consideration of this section, so that in framing taxation schemes under said section it might be advised of the probabilities to be encountered in running contrary to the plan and purpose of the Constitution, and the dangers of enacting legislation experimental in character. As has been often said, “The old paths are the best paths,” and the system of imposing taxation with an equal hand, so as to impose the burden equally, is fair and just and should be adhered to.
It is said in the brief for appellee that the property sought to be taxed here is fugitive, transitory, and hard to locate; in other words, that it is tramp property, here to-day and there to-morrow, and that in the very nature of things the county and municipality cannot tax the property, and that the county can lose nothing by reason of no provision being made for county taxes on this hind of property. I think it is a sufficient answer to say that, if the property is domiciled in the state, it must necessarily be domiciled in some county of the state, for the entire territory of the state is divided into counties. If it can be valued and taxed for state purposes, it may also be valued for county purposes.
The Constitution, in authorizing the legislature to provide a special mode of valuing and assessing the classes of property therein named, does not, in my judgment, authorize the legislature to provide a separate and special systetm for each kind or class of such property. The legislature by general law has provided a method for assessing such property under which, in my judgment, this property may be assessed and valued, regardless of the unconstitutionality of the law under review. The general statute has worked satisfactorily as to railroad, telegraph, telephone, sleeping car, and *430express companies, and could be applied to any other company operating from one county to another over fixed tracks. The rolling stock of companies like the one involved here may be taxed exactly like the rolling stock of railroad companies, and under section 6818 Hemingway’s Code, it is not exempt from taxation, and all property not so exempt is taxable, if situated or having a situs in this state. The failure of the statute here condemned need not defeat the state of any taxes.