On Motion to Modify.
PER CURIAM.Appellants have filed a motion to modify the opinion, pointing out that while we have held that § 155.040 does not require the “assessment separately of each type of aircraft which was flown in Missouri,” we have nevertheless approved the trial court’s judgment limiting the maximum assessment to $264,287, being a figure arrived at by that method. This, of course, presents an inconsistency. We may say, initially and somewhat apologetically, that while the point was briefed by appellants, the brief did not deal specifically with the computations involved in that point, as does the present motion. The trial court’s judgment contained the following: “3. That the State Tax Commission of Missouri should have applied, and under the governing statute could only apply, the statutory assessment and apportionment formula set forth in the aforesaid Section 155.040, to such aircraft only and to only those separate and distinct types of classes of plaintiff’s aircraft which were operated in Missouri in air commerce, to-wit, plaintiff’s DC-6 Coach planes (28 in number) and its DC-7 First Class planes (38 in number), and should thereby have determined an initial Missouri assessed valuation for 1960 tax purposes, which, however computed, in no event should have exceeded Two Hundred Sixty-four Thousand Two Hundred Eighty-seven and No/00 Dollars ($264,287.00), for those of plaintiff’s aircraft which were subject to taxation in Missouri, for said year.” It fairly appears that the computation of the court was made on a “by type” basis, that is, by applying the formula separately to the valuation of all planes of each of the two types of planes operated in Missouri and by adding the results to obtain the total assessment of $264,-287. It is now demonstrated that, by applying the combined formula percentage of 1.173005 to the “lumped” depreciated values of both types of planes ($47,201,434) a figure of $553,675 results; applying the equalizing factor of 49% to that figure, the final result and the actual assessment would be $271,301. In other words, if the Commission was not required to use the “by type” approach, then its assessment, even upon our basic holding that the statutory formula could only be applied to the depreciated value of “aircraft operated in this state in air commerce,” would have been $271,301 instead of $264,287, to which latter figure the trial court limited the assessment. Thus, the inconsistency is demonstrated. Appellants, as stated, briefed this point as a trial court error, but not by a demonstration of these figures out of the total accumulated mass of figures.
We repeat that “we find nothing in § 155.040 to require” a by-type calculation. In our view the statute permits an assessment by either method and hence the larger figure, in the discretion of the Commission and in the absence of any constitutional restriction (and subject, of course, to the rulings of our original opinion). We *454do not agree with the statement in the opinion in Division One in the Delta case that the statute specifically calls for “a final lump sum valuation of all * * * aircraft * * * and not a valuation by type.” It would seem appropriate, however, that the Commission should not switch back and forth between the two methods in order to favor the state; we do not indicate that such has been done. We did not discuss any question of constitutional limitation, as applied to this question, for the simple reason that such an objection would only be applicable where the method used by the Commission was arbitrary, unfair, unreasonable, or confiscatory, as applied to the particular facts of this case. Hans Rees’ Sons, Inc. v. North Carolina ex rel. Maxwell, 283 U.S. 123, 51 S.Ct. 385, 75 L.Ed. 879; Norfolk and Western Ry. Co. v. North Carolina ex rel. Maxwell, 297 U.S. 682, 56 S.Ct. 625, 80 L.Ed. 977. We find no constitutional problem here, for obviously a difference of $7,104 in such an assessment cannot be held to operate so unfairly and unjustly as to deprive Respondent of its property without due process or violate its rights of equal protection. We do not now pretend to rule any situation which may de-. velop on some other state of facts, where conceivably the use of a particular method of computation might work an unconscionable result. We merely say that the statute, as we construe it, permits either the “lump” or “by type” approach and that there is nothing in the present facts to suggest any constitutional invalidity.
The statute, § 155.040, requires the Commission to assess and equalize “the valuation of all aircraft operated in this state”; and the valuation apportioned to this state shall be “the portion of the total valuation of the aircraft as determined * * There is no indication whatever in the wording of the statute that such valuation must be made separately “by type” of aircraft. Respondent argues that it is more fair and more logical to make the computations in that manner, in view of the radical differences in the valuations of the different types, and the differences 'in the use in Missouri of the different types. We merely construe the statute, we do not re-write it.The same argument could conceivably be made that the formula should be applied to each separate plane of each type flown in Missouri and the 66 different results aggregated, but that contention has not been made.
Our original opinion is modified to the extent that we now order that the figure $271,301 be substituted for the figure $264,-287 wherever the latter figure appears in the judgment of the trial court. It is so ordered.