(dissenting). This is a suit by the plaintiff, a nonresident of Oklahoma, to enjoin the defendants from enforcing, or attempting to enforce, the collection of a tax assessed against him for the year 1916 by the taxing authorities of the state of Oklahoma, based upon the net income of the plaintiff for that year from his business as an oil and gas producer in the state. An application for preliminary injunction has been heard by the court, organized under the provisions of section 266 of the Judicial Code (Act March 3, 1911, c. 231, 36 Slat. 1162 [Comp. St. 1916, § 1243]), Hon. KIM-BROUGH STONE,Circuit Judge, and Hon. JOHN H. COTTERAE and the writer, District Judges, sitting. Supplementing oral argument, counsel were given leave to file briefs, which have now been submitted.
At the threshold of the case it is urged on the part of the defendants that the. court is without jurisdiction to entertain this action, because the plaintiff is afforded a plain, adequate, and complete remedy at law by the provisions of section 7, c. 107, Session Laws of Oklahoma. 1915. A careful consideration of this section raises grave doubts as to whether it applies at all to cases involving the state income tax law which is the subject of this controversy. At any rate, even if it may be said to apply, it cannot be said, under the facts of this case, to afford that adequate and complete remedy afforded by a court of equity. The relief sought presents.matters clearly of equitable cognizance, and hence we conclude that this court has jurisdiction.
Upon consideration, it is the writer’s conclusion that the preliminary *884injunction should be granted, for the reason that the state has no. jurisdiction to subject a nonresident to its income tax, even though a part or the whole of the income of such nonresident °may arise from property owned or business conducted by him within -the state. The income tax act involved is chapter 164 of the 1915 Session Taws, and is entitled “An act providing for an income tax and repealing article 17, chapter 72, Revised Taws of Oklahoma, 1910.” By section 1 of the act it is provided that:
“Each and every person in this state shall be liable to an annual tax upon the entire net income of such person arising or accruing from all sources during the preceding calender year, and a like tax shall be levied, assessed, collected and paid annually upon the entire net income from all property owned, and of every business, trade or profession carried on in this state by persons residing elsewhere.”
The taxing power of the state was defined by Justice Field in State Tax on Foreign Held Bonds, 15 Wall, at page 319, 21 T. Ed. 179, as follows:
“The power of taxation, however vast in its character and searching in its •extent, is necessarily limited to subjects within the jurisdiction of the state. These subjects are persons, property, and business. Whatever form the taxation may assume, whether as duties, imposts, excises, or licenses, it must relate to one of these subjects. It is not possible to conceive of any other, though, as applied to them, the taxation may be exercised in a great variety •of ways.”
This is now the settled law defining and limiting the state’s taxing power. Cooley on Taxation (vol. 1, p. 25). In the case last cited, Judge Field also said:
“Property lying beyond the jurisdiction of a state is not a subject upon which her taxing power can be legitimately exercised. Indeed, it would seem that no adjudication should be necessary to establish so obvious a proposition.”
In Union Transit Company v. Kentucky, 199 U. S. at page 204, 26 Sup. Ct. at page 37 [50 T. Ed. 150, 4 Ann. Cas. 493], it is said:
“It is essential to the validity of a tax that the property shall be within the territorial jurisdiction of the taxing power. Not only is the operation of state laws limited to persons and property within the boundaries of the state, but property which is wholly and exclusively within the jurisdiction of another state receives none of the protection for which the tax is supposed to be compensation.”
In view of the foregoing well-founded and indisputable rules governing the state’s taxing power, it is of prime importance that we first classify the income tax under consideration; that is, determine whether it is a tax upon the person, the property, or the business of the plaintiff. The authority for laying the tax is found in section 12 of article 10 of the state Constitution, wherein, after providing for the taxation •of tangible property, real and personal, within the state on an ad val-orem basis, it is provided:
“The Legislature shall have power to provide for the levy and collection of license, franchise, gross revenue, excise, income, collateral and direct inheritance, legacy, and succession taxes; also graduated income taxes, graduated collateral, and direct inheritance taxes; graduated legacy, and succession •taxes; also stamp, registration, production, or other specific taxes.”
*885It is very plain that the framers of the state Constitution had the conception of the income tax provided for as something different and distinct from a license, franchise, gross revenue, excise, legacy, or succession tax. From a reading of the Oklahoma income tax act, it is clear that, so far as it relates to residents of the state, the Legislature did not intend that it should be levied upon or have any relation or reference to property or the operations of any trade or business within the state; for, as to residents of the state, the tax is levied upon “the entire net income of such persons arising or accruing from all sources,” including, of course, those without as well as those within the state; and it must be presumed that the Legislature well understood that they had no power to tax property or business operations outside of the state. A resident of the state is made subject to a tax upon his net income, even though all of it arises from property or activities without the state. Taxation and protection are reciprocal. The right to tax an individual results from the general protection afforded him and his property by the state. Cooley on Taxation, vol. 1, p. 22. The resident of the state is subjected to the income tax for the protection the state affords his person, not his property or any right to do business in the state exercised by him; else it could not be made to extend to a resident who neither had property nor did business within the state, and by terms of the act it is a like lax which is attempted to be levied upon nonresidents to the extent of their net income from property owned, and business, trade, or profession carried on in the state.
The Supreme Court of Wisconsin, discussing the income tax of that state, said in Manitowoc Gas Co. v. Wisconsin Tax Commission, 161 Wis. Ill, 152 N. W. 848:
“Our income tax is a burden laid upon the recipient of the income, whether derived from real estate, personal property, or labor, the amount of which is determined by the amount of the total net income derived from those sources, singly or combined.”
The same court, in State ex rel. Moon v. Tax Commission (Wis.) 163 N. W. 639, said:
“Much confusion of thought arises from regarding the income tax as a tax that is levied upon or attaches to property as such, irrespective of the person sought to be taxed. It is the recipient of the income that is taxed, not his property; and the vital question in each case is, Has the person sought to be taxed received an income during the tax year? If so, such income, unless specifically exempted, Is subject to a tax, though the property out of which it is paid may have been exempt from an income tax in the hands of the payor. It is the relation that exists between the person sought to be taxed and specific property claimed as income to him that determines whether there shall be a tax. If the person sought to be taxed is the recipient during the tax year of such specific property as income in its ordinary significance, then the person is taxed. But the tax is upon the right or ability to produce, create, receive, and enjoy, and not upon specific property. Hence the amount oí the tax is measured by the amount of the income, irrespective of the amount of specific property or ability necessary to produce or create it. In the ordinary acceptation of the term, this may be said to he a tax upon income as the statute denominates it. But the tax does not seek to reach property, or an interest in property, as such. It is a burden laid upon the recipient of an income. State ex rel. Manitowoc Gas Co. v. Wis. Tax Comm., 161 Wis. 111, 152 N. W. 818; State ex rel. Bundy v. Nygaard, 163 Wis. 307, 158 N. W. 87 [L. R. A. 19171E, 563].”
*886The Oklahoma income tax is clearly not a property tax in so far as it relates to residents of the state. As said by the Supreme Court of Wisconsin in relation to the income tax of that state, the income tax in this state, as applied to residents, does not seek to reach property or interest in property as such; it is a burden laid upon the recipient of the income. While conceding that this income tax is not a property tax, nor a tax directly imposed upon any business, trade, or profession carried on by the nonresident, counsel for defendants insist that for “jurisdictional purposes” the fact that the income subjected to the tax is derived from property or business within the state may be looked to. In their brief counsel for defendants say:
“Let us again here emphasize the fact that income has no relation to the property producing the same, nor to the business from which the same was produced, except for jurisdictional purposes alone; and this is not peculiar to income tax alone, but applies with equal force to other forms of taxation.”
But this cannot be sound. In the first place, it will not do to say that this tax may be imposed upon residents of the state upon one theory, that is, the protection they receive in their persons, irrespective of situs of property or business activity, and upon nonresidents, over whose persons the state has no jurisdiction, upon another theory, that the income arises from certain property or business enjoying the state’s protection. If the tax is one pertaining solely to the person of the taxable, as we have seen is clearly the case in relation to residents, then it cannot be imposed upon nonresidents, for they are not within the taxing power of the state so far as their persons are concerned. This was evidently in the minds of the legislators, and hence they attempted to bring their incomes within the state’s jurisdiction,to tax them by attempting to relate them to the sources within the state from which they might be derived. But this, while denominated an income tax, is in reality a tax upon the property or business producing the income, measured by the income. The basis of such tax must be the protection which the state affords the property or business, and no mere legislative nomenclature can make it other than a tax upon such property or business. While the declaration of the lawmaking power, as to the character of the tax involved, is entitled to much weight, the mere declaration contained in a statute that it shall be regarded as a tax of a particular character does not make it such if it is apparent that it cannot be so designated consistently with the meaning and effect of the act. Flint v. Stone-Tracy Co., 220 U. S. at page 145, 31 Sup. Ct. 342, 55 L. Ed. 389, Ann. Cas. 1912B, 1312. In Knowlton v. Moore, 178 U. S. 83, 20 Sup. Ct. 764, 44 L. Ed. 969, it was said:
“As a mere abstract, scientific, or economical problem, a particular tax might possibly be regarded as a direct tax, when, as a practical matter pertaining to the actual operation of the tax, * * * a court would not be justified, for the purpose of invalidating the tax, in placing it in a class different from that to which its practical results would consign it. Taxation is eminently practical, and is, in fact, brought to every man’s door; and, for the purpose of deciding upon its validity, a tax should be regarded in its actual, practical results, rather than with reference to those theoretical or abstract ideas whose correctness is the subject of dispute and contradiction among those who are experts in the science of political economy.”
*887In the case last mentioned it was held that the case of Pollock v. Farmers’ Loan & Trust Co., 157 U. S. 429, 15 Sup. Ct. 673, 39 L. Ed. 759, Id., 158 U. S. 601, 15 Sup. Ct. 912, 39 L. Ed. 1108, has decided these two things:
“(1) That no sound distinction existed between a tax levied on a person solely because of his general ownership of real property, and the same tax, imposed solely because of his general ownership of personal property. (2) That the tax on the income derived from such property, real or personal, was the legal equivalent of a direct tax on the property from which said income was derived, and hence must be apportioned.”
In Railroad Co. v. Collector, 100 U. S. 595, 25 L. Ed. 647, Mr. Justice Miller, considering the federal income tax law as amended by the act of 1866, imposing a tax of 5 per cent, on interest on bonds, dividends, or profits of certain corporations, said:
“The tax, in our opinion, is essentially an excise on the business of the class of corporations mentioned in the statute. The section is a part of the system of taxing incomes, earnings, and profits, adopted during the late war, and abandoned as soon after that war ended as it could be done safely. The corpora: ions mentioned in this section are those engaged in furnishing roadways and waterways for the transportation of persons and property, and the manifest purpose of the law was to levy the tax on the net earnings of such companies.”
But such, we have seen, is not the conception of the more recent income tax legislation, pursuant to state constitutional provisions. Keeping in mind that the taxing power of the state is limited to the three subjects — persons, properly, and business — and that, as said by Justice Field in the case involving tax on foreign-held bonds, supra, whatever form taxation may assume, it must relate to one of these subjects, and keeping in mind also the inability of the state to subject to tax the person of a noncitizen as well as any property lying without the.state, or any business transacted without the state, the tax* under consideration must have relation to the person, property, or business of the defendant. We have seen that as to citizens and residents of the state it dearly has relation to the person of the taxable as the recipient of the income, to the exclusion of any consideration of the source of such income, based upon the theory of the protection which the state affords him in his person as one of its citizens; but this theory fails when we corne to consider noncitizens, for the state affords them no protection in their persons, and, being outside its territorial ‘limits, it has no power or jurisdiction to impose upon them a tax purely personal in its nature. Nor does the fact that such noncitizen owns property or does business within the state empower the state to impose upon him a purely personal tax. It may tax such property or business, but it cannot, by calling such tax an income tax, change the nature of the tax. It would still be a property tax or an excise tax, according as it related to property or business. It is clear that the Legislature, realizing its inability to subject noncitizens to a tax purely personal in its nature, hut desiring to bring them within the operation of its income tax law to the extent that their incomes are derived frotn, property owned or business transacted within the state, has attempted to impose upon them what it styles an income tax, but which is es*888sentially a property or excise tax, measured by the net income derived from specific property or business within the state. But the property and business of noncitizens, while properly subject to any existing tax •’legislation operating alike upon citizens and noncitizens, may not be singled out and subjected to a tax which is not also imposed upon the property and business of citizens, merely because being that of non-citizens. The United States Constitution, art. 4, § 2, provides that:
“The citizens of each state shall be entitled to all the privileges and immunities of citizens of the several states,”
—and among such privileges and immunities of noncitizens of a state is tire right to protection from discrimination against them in favor of citizens of the state in matters of taxation. In Ward v. Maryland, 12 Wall. 418, 20 E. Ed. 449, the court said:
“Attempt will not he made to define the words ‘privileges and immunities,’ or to specify the rights which they are intended to secure and protect, beyond what may be necessary to the decision of the case before the court. Beyond doubt those words are words of very comprehensive meaning, but it will be sufficient to. say that the clause plainly and unmistakably secures and protects the right of a citizen of one state to pass into any other state of the Union for the purpose of engaging in lawful commerce, trade, or business, without molestation; to acquire personal property; to take and hold real estate; to maintain actions in the courts of the state; and to be exempt from any higher taxes or excises than are imposed by the state upon its own citizens. Cooley, Const. Lim. 16; Brown v. Maryland, 12 Wheat. 449 [26 B. Ed. 678].”
The tax under consideration is, as to citizens of Oklahoma, properly termed an income tax, because it is imposed upon them as a purely personal tax, measured by their incomes, in consideration for the protection which the state affords them in their persons, irrespective of the source of such income, or whether it be within or without the state, and the power of the 'state to levy such a tax upon its citizens is not questioned. But such a tax cannot reach citizens and residents of other states. In their persons they are only subject to the taxing power of the states of their domicile. If they acquire property or do business in this state, they may be taxed as to such property or business to the extent, and only to' the extent, that citizens of this state are taxed on similar property or business. Provisions for such taxes are found in laws other .than the income tax law now being considered, and they apply to citizens and noncitizens alike. To the taxes provided by these laws, so far as they exist, the property and business of the plaintiff within this state are subjected equally with the property and business within the state of all other persons, resident and nonresident. This being true, to subject the plaintiff to this so-called income tax, which, as we have seen, as applied to a nonresident, is essentially a tax upon his property and business within the state, to which the property and business of citizens and residents of the state are not subjected, is to deny to him the privileges and immunities of citizens of the state; for while by the same law a tax is imposed upon citizens of the state, it is, as we have seen, a purely personal tax, not in any true sense a tax upon their property or business, and a tax to which the state cannot subject the plaintiff, because, being a citizen *889and resident of another sovereign state, this state has no jurisdiction to tax him on his person. Whether he shall be subjected to such personal income tax is a matter solely within the power of the state of his domicile to determine.
While styled an income tax, the subject of this tax is the recipient of the income. The income merely affords the measure of tax. This, is the dominant conception in all modem so-called income tax legislation by the several states, so far as relates to residents and citizens of the state. The situs of the source of the income is ignored. The power to tax rests in the jurisdiction exercised by the state over the person receiving the income, and that its jurisdiction may not extend to the property or business producing the income is considered immaterial. The attempt to combine with legislation providing for such a tax a provision for a so-called income tax subjecting the net incomes of nonresidents upon property or business within the state, founded not upon jurisdiction of the person, but upon the fact that the situs of the property or business is within the state, cannot, in my judgment, he sustained. They are essentially separate and distinct provisions, relating to separate and distinct subjects of taxation, and the latter provision as to nonresidents is in no wise strengthened because it is found coupled with the former. It is essentially a tax upon the property or business involved. In fact, it must be that, for it will not be contended that the state has the power to subject nonciti-zens to a purfely personal tax. For the purpose of determining its validity, it must be considered as standing alone; and, of course, it will be conceded that an act imposing a tax upon the property or business owned or conducted within the state by nonresidents, without imposing a like tax upon the property or business of residents, cannot he sustained.
It is suggested that, because nonresidents can come into Oklahoma and make fabulous profits from the exploitation of its great natural resources, it is desirable that the state furnishing such opportunities should, as a consideration therefor, be permitted to exact a return in taxation commensurate with the opportunities afforded; and it is further suggested that, if these noncitizens cannot be taxed on their incomes as is sought to be done here, many operators who are now citizens and residents of the state will expatriate thepiselves, so as to avoid the income tax. But these are considerations which in no sense affect the legal questions involved. The Constitution of the United States has decreed that the natural resources of Oklahoma, however great, as well as those of every other state, are subject to development by all citizens of the United States alike, regardless of state lines, and citizens of other states may acquire property and do business here without subjecting themselves to liability for any purely personal taxes such as may be assessed against citizens and residents, and shall be subject to only such taxes on their property and business within the state as shall be levied upon similar property and business of citizens and residents of the state.
I am not unmindful of the fact that several other states have enacted laws similar to the one under consideration, and that the federal in*890come tax law provides for the collection of a tax from aliens and nonresidents of the United States upon incomes accruing to them from property or business within the United States. No case directly deciding the question here involved has been found, and it is suggested in section 15 of Black on Income Taxes, published in 1913, that this and kindred questions relating to the state income tax laws have not as yet been authoritatively settled by the courts. But for the foregoing reasons I am forced to the conclusion that as to the plaintiff, who is not a citizen or resident of the state, the law is invalid as without the taxing power of the state, in so far as it may be said to attempt to impose a tax solely upon the person, because the plaintiff is not a citizen or resident of the state. If as to nonresidents it be treated as a tax upon property or business, then it violates the privileges and immunities features of the federal Constitution.