joined by Justice Walker, dissenting.
This case involves three basic questions, as follows: 1. Is Phillips Chemical Company’s leasehold estate in the Cactus Ordinance Works taxable? 2. If it is, on what basis is it to be *132valued for tax purposes? 3. If it is, pn what date did it become taxable?
Actually, the second question was severed by the trial court, was not tried and technically is not before- us. But the three questions are so interrelated that a discussion and decision of the first and third questions require an incidental discussion and decision of the second.
My discussion will indicate not only my points of difference with the majority opinion but as well my points of difference with the dissenting opinion filed by Associate Justice Garwood.
At the time Congress enacted Public Law 364 in 1948, under which Phillips holds its lease, the right of the State of Texas and its political subdivisions to tax exempt property which had been leased for a non-exempt use, as well as the basis for valuing such property, was then fixed and established by the Constitution and certain statutes and court decisions.
Section 1 of Article 8 of our State Constitution then provided and still provides: “Taxation shall be equal and uniform. All property in this State, whether owned by natural persons or corporations, other than municipal, shall be taxed in proportion to its value, which shall be ascertained as may be provided by law.”
Article 7146, Y.A.T.S., then provided and still provides : “Real property for the purpose .of taxation, shall be construed to include the land itself, * * * and all the rights and privileges belonging or in anywise appertaining thereto * * *.”
Article 7173, Y.A.T.S., then provided and still provides: “Property held under a lease for a term of three years or more, or held under a contract for the purchase thereof, belonging to this State, or that is exempt by law from taxation in the hands of the owner thereof, shall be considered for all the purposes of taxation, as the property of the person so holding the same, except as otherwise specially provided by law. * * *”
Article 7174, V.A.T.S., then provided, in part, and still provides : “Taxable leasehold estates shall be valued at such a price as they would bring at a fair voluntary sale for cash.”
Article 5248, ViA.T.S., then provided: “The United States shall be secure in their possession and enjoyment of all- lands *133acquired under the provisions of this title; and such lands and all improvements thereon shall be exempt from any taxation under authority of this State so long as the same are held, owned, used and occupied by the United States for the purposes expressed in this title and not otherwise.”
In 1888, this Court in Daugherty v. Thompson, 71 Texas 192, 9 S.W. 99, with Articles 7146, 7173 and 7174 before it, made the following significant holdings:
1. Neither the fee nor a leasehold interest in County public school land is taxable.
2. Exempt property, when leased for a non-exempt purpose for any term, will “doubtless become subject to taxation,” but “it does not follow that a lessee will be liable to pay taxes on the leasehold, unless the law so provides.”
3. Privately owned exempt property, leased for a nonexempt purpose, will be subject to taxation at its full value to the owner.
4. The Legislature has the power to impose a tax on the value of a leasehold, on the lessee.
5. “In cases to which Article 4691 (7173) is applicable, it must be held that it was the intention of the legislature only to impose on the lessee a tax based on the value of the ‘taxable leasehold estate,’ and not impose upon him a tax based on a sum equal to the full value of the real estate.”
6. Article 7173 is the only statute authorizing taxation of leasehold estates.
In 1889, this Court held in Trammell v. Faught, 74 Texas 557, 12 S.W. 317, that a lease of state owned lands for terms of six and ten years, subject to cancellation upon sale, v/ere not leases “for a term of three years or more” within the meaning of Article 7173.
In 1944, the Supreme Court of the United States held in United States v. Allegheny County, Pennsylvania, 322 U.S. 174, 64 Sup. Ct. 908, 88 L.Ed. 1209, that a leasehold estate in federally owned property was not subject to local taxation.
Section 6a of Article 7 of our State Constitution was adopted *134in 1926 withdrawing county school lands from the class of lands exempt from taxes, and Article 7150a, V.A.T.S., was enacted in 1927 providing for the payment of taxes on county owned school lands by the counties.
Such was the status of the law in this State when Public Law 364 was enacted by Congress in 1948. The following developments thereafter occurred.
Effective March 17, 1950 the Legislature amended Article 5248 to provide “that any portion of said lands and improvements [federally owned] which is used and occupied by any person, firm, association of persons or corporation in its private capacity, or which is being used or occupied in the conduct of any private business or enterprise, shall be subject to taxation by this State and its political subdivisions.”
In the series of cases recently decided by the Supreme Court of the United States, cited in the majority opinion, it is now held that leasehold estates in federally owned lands are subject to local taxation. Moreover, it is held that they may be made taxable to the lessee as though he were the fee owner. There is, therefore, now no Congressional Act or decision of the Supreme Court of the United States which stands as a bar to local taxation of leasehold estates in federally owned lands as here involved because they are federally owned, or which, for that reason alone, prohibits their taxation to the lessee as though he were the owner of the fee. But the absence of such a bar or prohibition does not mean that such leasehold estates may be taxed to the lessee as though he is the owner, or even that they may be taxed to him at all. They may not be so taxed under enumerated holding Number 2 in Daugherty v. Thompson unless their taxation is authorized by state law. And it goes without saying that lessees of federally owned lands may not be singled out as objects of discriminatory taxation. Discriminatory taxation is prohibited by Article 1, sec. 3 and Article 8, sec. 1 of the Constitution of Texas and by the Fourteenth Amendment to the Constitution of the United States.
In my opinion it was the purpose of the 1950 amendment to Article 5248 to authorize taxation of leasehold estates in federally owned lands to lessees. On this point I agree with the majority opinion and disagree with the dissenting opinion filed by Justice Garwood. True, the amendment provision is not placed in the Taxation Title of our statutes and does not specifically provide that federally owned lands used for private busi*135ness shall be taxed to the user, but I think it the clear purport and intendment of the amendment that it be so taxed.
State statutes do not ordinarily levy ad valorem taxes; they only authorize the levy of ad valorem taxes by state and local taxing agencies. The amendment to Art. 5248 is sufficient for that purpose. Moreover, the Legislature could hardly have intended by the amendment that taxes would be assessed to the United States, as owner, for it had been held in M’CuIIoch v. Maryland, 4 Wheat. 316, 4 L.Ed. 579, that local taxes could not be imposed on property of the United States without consent of Congress, and Public Law 364 did not provide that they could. It seems to me, therefore, that the amendment to Article 5248, reasonably interpreted, purports to authorize taxation of leasehold estates in federally owned lands. In the latter respect it can be said that the amendment meets enumerated holdings 2 and 4 of Daughtery v. Thompson.
The majority have held that the amendment to Article 5248 authorizes taxation of leasehold estates in federally owned lands to lessees - as though they are the owners of the land, and, thus holding, have upheld the validity of the amendment against the claim that it is unjustly discriminatory. I do not agree with either of those conclusions. They have been reached without reference to enumerated holding Number 5 of Daugherty v. Thompson, without overruling either that holding or Trammell v. Faught, and without examination of the discriminatory features of the amendment.
Enumerated holding Number 6 in Daugherty v. Thompson is that Article 7173 (4691) is the “only law providing that the lessee shall pay taxes on leased property.” That article provided then and provides now for taxation of leasehold estates in exempt property only when the lease is “for a term of three years or more.” There is no statute authorizing taxation of leasehold estates in exempt property owned privately or by the State or its subdivisions when the lease is for a term of less than three years. The amendment to Article 5248, considered alone and apart, purports to authorize taxation of leasehold estates in federally owned property even though the lease be for a term, of less than three years. If that be the proper construction of the amendment, it is quite obviously discriminatory against lessees of federally owned exempt property. I know of no sound basis for such discrimination.
A better construction of the amendment to Article 5248 is *136to say that it must be read in connection with and is controlled by the provisions of Article 7173. Under that construction, we can say that leasehold estates in federally owned property are taxable, but only when the lease is “for a term of three years or more.” That construction will obviate a holding that the amendment is per se discriminatory.
That brings us to the question of whether Phillips’ lease is “for a term of three years or more.” The lease gives an absolute right of cancellation in the event of sale of the property. In that respect it is identical with the lease in Trammell v. Faught. Unless Trammell v. Faught be overruled — and the majority opinion does not suggest that it should be overruled — we must hold that Phillips’ lease is not one “for a term of three years or more.” So holding, we must then hold that the amendment to Article 5248, as qualified by Art. 7173 and enumerated holding Number 5 in Daugherty v. Thompson, does not authorize taxation to Phillips of its leasehold estate in Cactus Ordinance Works on any basis.
Even if Trammel] v. Faught should be overruled and it should now be held that leases of the type considered in Trammell v. Faught and held by Phillips are leases for the full term stipulated subject to a conditional limitation, I yet could not agree with the majority’s holding that the property should be taxed to Phillips as though it were the owner of the fee. Here again the majority holding runs squarely into the equal protection clauses of our Constitutions.
Under enumerated holding Number 5 in Daugherty v. Thompson it is expressly held, with respect to leasehold estates “for a term of three years or more” made taxable by Article 7173, “that it was the intention of the legislature only to impose on the lessee a tax based on the value of the ‘taxable leasehold estate,’ and not impose upon him a tax based on a- sum equal to the full value of the real estate.” I can conceive of no sound basis for saying that that holding will apply to leasehold estates in state owned and privately owned exempt property when the lease is “for a term of three years, or more” but will not apply to leasehold estates in federally owned property. The holding of the majority, without overruling enumerated holding Number 5 of Daugherty v. Thompson, obviously results in unjust discrimination against lessees of federally owned property.
The majority seek to justify their holding that a leasehold estate in federally owned land may be taxed on the full value of *137the fee by referring to the adoption of Section 6a of Article 7 of the Constitution, the enactment of Articles 7150a and 7150c, certain provisions of Article 7150, and the series of cases recently decided by the Supreme Court of the United States, I respectfully suggest that none of the matters to which reference is made avoid or justify the discrimination which results from the majority’s holding.
As heretofore noted, adoption of Section 6a of Article 7 of the State Constitution and the enactment of Article 7150a only withdrew the exemption from taxation theretofore accorded county owned school lands. I-find no provision in either of those enactments which permits taxation of leasehold estates in such lands. On the contrary, Article 7150a specifically provides that the counties shall themselves pay taxes levied against such lands. Under enumerated holding Number 2 of Daugherty v. Thompson leasehold estates in such lands may not be taxed until the legislature so provides. The same may be said with respect to Article 7150c enacted in 1931. That Article authorizes payment by the State of local taxes on lands set apart for endowment of the University of Texas. It does not provide for taxation of leasehold estates in such lands.
The specific provisions in Article 7150, referred to by the majority as indicating that property there listed as exempt will not be exempt if it is “leased or otherwise used for profit,” are the identical provisions which were in the early counterpart of Article 7150 (4673) and were said by this Court in Daugherty v. Thompson not to authorize taxation of leasehold estates in the property. See 9 S.W. 100, 101. Surely those provisions have no stronger force now than they had then.
The decisions of the Supreme Court of Michigan in United States of America and Borg-Warner Corp. v. City of Detroit, 345 Mich. 601, 77 N.W. 2d 79, and Township of Muskegon v. Continental Motors Corp., 346 Mich. 218, 77 N.W. 2d 799, and the decisions of the Supreme Court of the United States in the same cases (see 352 U.S. 963, 78 Sup. Ct. 474, 2 L.Ed. 2d 424 and 352 U.S. 962, 78 Sup. Ct. 483, 2 L.Ed. 2d 436) are not in point and cannot be made controlling on the question at issue in this case. The principal reason they are not in point is because of the vast difference between Michigan and Texas statutory provisions governing taxation of leasehold estates.
The portion of Michigan Public Act 189 quoted in the majority opinion shows clearly that it authorizes taxation of lease*138hold estates of whatever duration in all exempt property to the lessees as though they were the owners of the property. Our statute, interpreted in the light of Trammell v. Faught and Daugherty v. Thompson, authorizes taxation of leasehold estates only in federally owned property, only when the lease is “for a term of three or more years” and only on the fair market value of the leasehold estate. Obviously we are not dealing with the same problem that was before the Supreme Court of Michigan and the Supreme Court of the United States in the cited cases.
The Supreme Court of the United States made clear in the Borg-Warner case that local taxing units would not be permitted to assess and collect discriminatory taxes from lessees of federally owned property, when it said:
“It still remains true, as it has from the beginning, that a tax may be invalid even though it does not fall directly on the United States if it operates so as to discriminate against the Government or those with whom it deals. Cf. M’Culloch v. Maryland, 4 Wheat. 316. But here the tax applies to every private party who uses exempt property in Michigan in connection with a business conducted for private gain. Under Michigan law this means persons who use property owned by the Federal Government, the State, its political subdivisions, churches, charitable organizations and a great host of other entities. * * * Nor is there any showing that the tax is in fact administered to discriminate against those using federal property. To the contrary undisputed evidence introduced by appellees demonstrates that lessees of other exempt property have also been taxed.”
In Texas, under existing law, there is no authority for taxing-leasehold estates created by leases for a term of less than three years in either non-exempt or, exempt property, and leasehold estates in exempt property owned either privately or by the state and its subdivisions created by leases for a term of three years or more may only be taxed on their fair market value. And yet the majority hold in this case that leasehold estates in federal property created by leases for a term of less than three years may be taxed and that they may be taxed on the full value of the fee.
I conclude: 1. That the amendment to Article 5248 authorizes taxation of leasehold estates in federally owned property. 2. That the amendment to Article 5248 is discriminatory and unconstitutional unless it be construed to apply only to lease*139hold estates of three or more years duration. 3. That the amendment may properly be held to apply only to leasehold estates of three or more years duration. 4. That the amendment is still discriminatory and unconstitutional if it be construed to authorize taxation of leasehold estates to lessees as owners. 5. That the amendment may properly be construed to authorize taxation of leasehold estates of a duration of three or more years at their fair market value. 6. That unless and until Trammell v. Faught is overruled, Phillips’ leasehold estate in Cactus Ordinance Works is for a term of less than three years. 7. That Phillips’ leasehold estate is not subject to taxation, and the taxes levied on such estate by Dumas Independent School District may not be sustained. 8. That the judgments of the trial court and of the Court of Civil Appeals should therefore be reversed and judgment be rendered in favor of Phillips. 9. That Phillips’ leasehold estate may be taxed only by overruling Trammell v. Faught, and then may be taxed on the full value of the fee only by overruling certain of the holdings in Daugherty v. Thompson.
Unless the mentioned holdings in Daugherty v. Thompson are overruled, I agree with the majority’s holding that there is no statutory authority for taxation of Phillips’ leasehold estate prior to the date of the amendment to Article 5248 in 1950.
Opinion delivered June 18, 1958.
Rehearing overruled October 22, 1958.