DISSENTING OPINION
GREENHILL, Justice.Admittedly, the phrase “gas used for lifting oil,” if given its literal meaning, embraces a broad category of methods, particularly when not limited by the words, “injected into the earth,” which were employed in the 1941 statute. “Lifting oil” includes any method which by the application of some species of force or energy causes oil to rise to the surface of the earth. It thus includes gas injected into the oil producing structure to re-pressure a reservoir; gas used for aerating the oil column in the tubing, and gas used to operate a pump. The circumstance that a term is broad does not necessarily mean that it is uncertain or ambiguous. The designation of a class of animals as cattle is not uncertain because it includes a number of subclassifications, such as bulls, cows, calves, steers, heifers, and yearlings. The term cattle includes them all just as the term “lifting oil” includes various methods of raising oil to the surface.
Departmental or administrative construction of a statute cannot operate to change or modify the plain meaning of a clearly worded statute. To give effect to administrative construction of a statute under such circumstances would be to recognize that a legislative power was vested in the executive branch of government contrary to the provisions of Article II, § 1, of the Texas Constitution. It is only when the statute is ambiguous and capable of being given two or more differing constructions that the court in interpreting the statute may consider a history of administrative construction. The exclusion, “gas used for lifting oil,” as used in Article 3.01 of Title 122A, is clear and unambiguous, hence the controlling rule is that stated in Fox v. Burgess, 157 Tex. 292, 302 S.W.2d 405 (1957).
For the reasons stated, the judgments of the courts below should be affirmed.
GRIFFIN, SMITH and WALKER, JJ., join in this dissent.