delivered the opinion of the court:
The plaintiff in this case seeks to recover with interest the sum of $1,236,437.17, which was collected from him as Federal income and profits taxes for the years 1917, 1918, and 1919 upon income and profits earned and received by him in the development and operation of certain of the Oklahoma State school lands leased to him by said State for the purpose of obtaining oil and gas therefrom, and also upon income from the sale of leases of a portion of said land. After the collection of the taxes and within due time, the plaintiff filed an application for refund of said taxes on the ground, in substance, that such income was not subject to tax on the part of the Federal Government and if any of its laws so provided they were unconstitutional and void. It is contended on behalf of the Government that the tax was constitutionally assessed and collected, and this constitutes the whole issue in the case.
We shall not enter into any extended argument or discussion as to the law applicable to the case for the reason that we think the questions involved have been decided by the Supreme Court.
The act of Congress authorizing the formation of the State of Oklahoma and its admission into the Union required as a condition of admission that provision should be made for the establishment and maintenance of a system of public schools. In the same act, Congress granted to the State, for the use and benefit of the common schools, certain lands within this territory and provided that all lands granted by the act valuable for minerals, gas, and oil should not be sold prior to a certain date but might be *75leased, the proceeds from the land to be covered into the school fund. The constitution of the State, as adopted, provided for the establishment of a free school system and the use of such lands and moneys for the benefit of the public schools. The plaintiff herein leased certain of these lands from the State of Oklahoma under conditions prescribed by the statute, which required the development thereof. Through such development and operation of these leases and by the sale of leases of said land to others, the plaintiff received income as stated above. Under the facts in the case the question to be determined is whether the United States can constitutionally levy a tax upon this income.
Counsel for plaintiff lay down the broad principle that neither the instrumentalities of the State nor of the Federal Government, employed in the execution of their governmental powers, can be the subject of taxation by the other. But the Supreme Court in the case of Metcalf & Eddy v. Mitchell, 269 U.S. 514, 522, said:
“ Just what instrumentalities of either a State or the Federal Government are exempt from taxation by the other cannot be stated in terms of universal application.”
While this case does not determine that the lessee of land owned by the National Government or a State is not such an instrumentality, although the land is leased for. a governmental purpose, we think the reasoning of the opinion therein and other cases decided by the Supreme Court might lead to such a conclusion, and would be inclined to so hold were it not that the Supreme Court appears to have laid down a different rule in the case of Gillespie v. Oklahoma, 257 U.S. 501.
In the case of the Coronado Oil & Gas Co. v. Burnet, 50 Fed. (2d) 998, 1001, the Court of Appeals of the District of Columbia, in passing on a similar case to the one at bar, said:
“We are unable to observe any difference in fact, or to perceive any distinction in principle, between the Gillespie case and that under consideration,”
*76and the court went on to show by comparison that so far as-the application of the principle in controversy is concerned' the facts in the two cases presented the same question. We concur in this conclusion of the Court of Appeals and fee! constrained by the decision in the Gillespie case, supra, to> hold that the Federal Government could not constitutionally tax the income of plaintiff derived through operations under the leases made to him by the State of Oklahoma. There is, however, another question to be determined.
Defendant contends that even if the income derived By plaintiff from operations under the leases obtained from the State was exempt, the profits received by plaintiff during the years 1918 and 1919 from sales of leases, the total amount off which was $2,595,766.08, were not exempt but subject to tax. It is quite obvious that a tax could not be levied directly upon the leases themselves. In Indian Oil Co. v. Oklahoma, 240 U.S. 522, 530, it was said:
“A tax iipon the leases is a tax upon the power to make them, and could be used to destroy the power to make them; ”
and in Gillespie v. Oklahoma, supra, as one of the reasons for the decisions the Court said, referring to the language just quoted:
“The step from this to the invalidity of the tax upom income from the leases is not long.”
But in Willcuts v. Bunn, 282 U.S. 216, it was held that the’ profits realized from the sale of municipal bonds were’ taxable, and that the case of Gillespie v. Oklahoma, supra, was not analogous. In the Willcuts case the municipal bonds-were obtained by purchase; in this case the leases were Ob'tamed by direct contract. In the Willcuts case an outstanding fact was found to be the long practice of the Federal Government to tax profits from the sale of such securities-without anything appearing to indicate as a result of this» practice that the tax laid any material burden upon the power of the municipality to borrow money. In the case at bar there is no direct evidence which bears either way on this point, but on the whole we think the case of Willcuts-v. Bunn is authority for holding that the profits realized! *77from the sale of an assignable contract are subject to tax, notwithstanding such a contract is governmental in its nature. If we are correct in this conclusion, it follows that the income from the sale of leases is subject to tax and that plaintiff’s recovery should be limited accordingly. Under this conclusion the stipulation of the parties and the findings of fact fix plaintiff’s recovery at $158,582.38. This amount was included in the last payment which plaintiff made on his taxes and will draw interest from the date thereof, November 6, 1926. Judgment will be rendered accordingly.
Whaley, Judge; Williams, Judge; and Booth, Chief Justice, concur.