with whom WINCHESTER, V.C.J., joins, concurring in result:
¶ 1 I agree with the majority’s result. However, I write separately because the majority’s terse analysis essentially ignores the controlling statute and finds an unconstitutional statute unambiguous while leaving it intact.
¶ 2 Here, the town of Forest Park (Forest Park) attempted to collect municipal sales tax from Twin Hills Golf & Country Club (Twin Hills). Pursuant to 68 O.S. Supp.2003 § 2701(A),1 a municipal government may levy and collect sales taxes. The statute provides in pertinent part:
“Any incorporated city or town in this state is hereby authorized to assess, levy, and collect taxes for general and special purposes of municipal government as the Legislature may levy and collect for purposes of state government ...”
¶3 Twin Hills seeks exemption from any obligation to remit a municipal sales tax under the portion of 11 O.S.2001 § 21-109(A) which provides:
“Tracts of land in excess of forty (40) acres which are annexed to a municipality and used for industrial or commercial purposes shall not be subject to municipal taxes.... ”
I agree with the majority that 11 O.S.2001 § 21-109(A)2 is applicable only to property taxes. However, that conclusion is immaterial because Twin Hills is without any legal basis for claiming a tax-exemption under the statute. The portion of the statute relied upon by Twin Hills is unconstitutional and has been since 1967, when State ex rel. Nesbitt v. Ford, 1967 OK 186, ¶ 17, 434 P.2d 934 was decided.
¶ 4 In Nesbitt, several county assessors had placed city tax exemptions on the ad valorem tax rolls pursuant to 11 O.S. Supp. 1963 § 481 and 11 O.S. Supp.1965 § 482.3 *11Sections 481-482 were statutes concerning the authority to change city limits, annexation, and municipal tax exemptions for land larger than forty acres used for industrial or commercial purposes. In addressing the constitutionality of the municipal tax exemptions, the Court began its analysis with Okla. Const, art 5, § 50 which provides:
“The Legislature shall pass no law exempting any property within this State from taxation, except as otherwise provided in this Constitution.”
The Court also noted Okla. Const, art. 10, § 6 which provides in pertinent part:
“... Provided, that all property not herein specified now exempt from taxation under the laws of the Territory of Oklahoma, shall be exempt from taxation until otherwise provided by law....”4
It determined that under the Okla. Const, art. 10, § 6, supra, any exemptions in existence under the laws of the Territory of Oklahoma remained effective until reduced or eliminated by the Legislature.
¶ 5 However, because neither a constitutional provision nor a territorial law permitting an exemption of municipal taxes for tracts of land in excess of forty acres and used for industrial or commercial purposes existed when the Constitution was adopted, the Nesbitt court, in effect, held that portion of the statute unconstitutional. In 1977, the Legislature revamped the Municipal Code codifying 11 O.S. Supp.1963 § 481 and 11 O.S. Supp.1965 § 4825 as 11 O.S. Supp.1977 § 214.09(A).6 Section 21409 is indistinguishable from those involved in Nesbitt and consequently, it was unconstitutional when it was enacted by the Legislature and it remains so today.
¶ 6 I agree that statutory construction can be utilized to avoid the need to resolve constitutional conflicts. However, we cannot use an unconstitutional statute to realize this goal. I would resolve the present cause by applying the controlling statute, 68 O.S. Supp.2003 § 2701,7 and finding that State ex rel. Nesbitt v. Ford, 1967 OK 186, ¶ 17, 434 P.2d 934 is irrelevant to the disposition of this cause — except to the extent that it reaffirms that the pertinent portions of 11 O.S. 2001 § 21409 are invalid.
. The statute was amended in 2003. Because the pertinent portion of the statute is substantially the same as the prior version, references are to the most current version.
. Title 11 O.S.2001 § 21-109(A).
. Title 11 O.S. Supp.1963 § 481, a statute dealing with the authority to change city limits with consent of owners and the exemption of certain tracts of property to city taxes, provides:
"The city council, in its discretion, may add to the city or other territory adjacent to the ci1y limits as it my deem proper, and shall have power to increase or dimmish the city limits in such manner as in its judgment and discretion may redound to the benefit of the city. Provided, that in no case shall any additional territory, except when subdivided into tracts or parcels of less than five acres with more than one residence thereon, be added to the city limits without the consent in writing of the owners of a majority of the whole number of acres owned by residents of the territory to be added, except that when three sides of such additional territory is adjacent to, or abutting on, property already within the city limits, such territory may be added to the city limits without the consent hereinbefore mentioned. Provided, further, that where the territory sought to be added is separated from the city limits by an intervening strip less than four rods in width upon the land so detached by such strip it shall be considered as adjacent or abutting within the meaning of this section; and provided further, that tracts of land in excess of forty acres shall not be subject to city taxes when located within a city or town and when used for industrial or commercial purposes. Provided, further, that tracts of land in excess of five acres utilized by persons engaged in farming or ranching, and all horses, cattle, mules, asses, sheep, swine, goats, and other machinery and household goods located thereon, shall not be subject to city taxes, unless the city or town affected furnishes municipal services as ordinarily furnished to city residents.” (Emphasis supplied.)
Title 11 O.S. Supp.1965 § 482, which addresses annexation on a petition of three-fourths of the voters, provides in pertinent part:
"On petition in writing signed by not less than three-fourths of the legal voters and by the owners of not less than three-fourths (in value) of the property in any territory contiguous to any incorporated city or town and not embraced within the limits thereof, the city council of the city or the board of trustees of the town, as the case may be, shall by ordinance annex such territory to such city or town upon filing a copy of such ordinance with an accurate map of the territory annexed ...; provided that tracts of land in excess of five acres utilized by persons engaged in farming or ranching, and all horses, cattle, mules, asses, sheep, swine, goats, and other livestock, and all agricultural implements and machinery and household goods located thereon, shall not be subject to city or town taxes, unless the city or town affected furnishes municipal services as ordinarily furnished to city or town residents; and provided, further, that tracts of land in excess of forty (40) acres shall not be subject to municipal taxes when located within a city or town and when used for industrial or commercial purposes."(Emphasis supplied.)
. This provision of the Constitution was amended in 1984, 1986, and 1992. However, the pertinent portion remains substantially unchanged.
. Title 11 O.S. Supp.1963 § 481, see note 3, supra; 110.S. Supp.1965 § 482, see note 3, supra.
. Title 11 O.S. Supp.1977 § 21-109, a statute entitled taxation of annexed territory provides:
"Tracts of land in excess of forth (40) acres which are annexed to a municipality and used for industrial or commercial purposes shall not be subject to municipal taxes. Tracts of annexed land in excess of five (5) acres which are used by persons engage in farming or ranching, and all farm animals and livestock, and all agricultural implements and machinery and household goods located on the land, shall not be subject to municipal taxes unless the municipality furnishes services to these tracts as are ordinarily furnished to municipal residents. No land which is used for agricultural purposes may be taken within the limits of a town and taxed at a greater rate than land which is adjacent to but outside the town limits.”
The current version of the statute’s pertinent portion remains substantially unchanged.
.Title 68 O.S. Supp.2003 § 2701.