Opinion
No. 28629.
May 9, 1939.
(Syllabus.)
1. Taxation — Distinct Authority of Law Required for Every Levy.
The power to tax is legislative, and there must be distinct authority of law for every levy upon the people under that power.
2. Same — Discretion of Legislature to Select Subjects of Taxation.
Property itself is a creature of law, and the discretion to select subjects of taxation rests solely with the Legislature.
3. Same — Property not Assessable Until Legislature Makes Proper Provision for Purpose.
Where the Legislature has omitted to provide for the assessment of certain kinds of property, it is not within the province or power of the court to make such assessments. No property can be assessed until the Legislature has made proper provision for this purpose.
4. Same — Oil and Gas Leases not Subjects of Taxation.
The Legislature of this state has not selected oil and gas leases as subjects of taxation.
5. Same — Lack of Legislative Provision for Severance of Various Interests in Real Property for Taxation Purposes.
The Legislature has not provided for a severance of the various interests which may be held in real property for purposes of taxation.
6. Same — "Real Property" as Defined by Statute to Be Listed and Assessed in Name of Owner of Land.
By virtue of section 12331, O. S. 1931, real property," which, for the purpose of taxation, means "the land itself, and all buildings, structures and improvements or other fixtures of whatsoever kind thereon, and all rights and privileges thereto belonging or in any wise appertaining, and all mines, minerals, quarries and trees on or under the same," must be listed and assessed in the name of the owner of the land.
7. Same — Oil and Gas Lying in Strata of Earth to Be Taxed as Real Property to Owner of Land.
Oil and gas, while lying in the strata of earth from which they are produced, must be taxed as real property to the owner of the land, if the land is taxable, under which for the time being they may lie.
Appeal from County Court, Creek County; George D. Willhite, Judge.
Tax ferret proceedings by the State to subject oil and gas and mineral and royalty grant to ad valorem taxation. Judgment for defendant, R.R. Kirchner, grantee, and plaintiff appeals. Affirmed.
Everett S. Collins, County Attorney, A.J. Mauldin, and T.L. Blakemore, for plaintiff in error.
George H. Jennings and J.E. Thrift, for defendant in error.
This is a tax ferret proceeding prosecuted by the county attorney of Creek county, presenting the question as to whether or not a nonproducing oil and gas and mineral and royalty grant by which the oil and gas and mineral rights have been severed from the surface rights in the land is subject to ad valorem taxation separately from the land containing the same. The county court of said county held that the rights, interests, and estate conveyed by deed is nontaxable by the ad valorem method in the name of and against the grantee, but that the same must be taxed as real property to the owner of the land; and it is for the reversal of said judgment of the county court that the plaintiff brings this appeal.
This is a companion case of State of Oklahoma v. Ernest Shamblin, No. 28628, 185 Okla. 126, 90 P.2d 1053. Under the doctrine announced in the case of In re I. T. I. O. Co., 43 Okla. 307, 142 P. 997, oil and gas and mineral rights are taxed as real property to the owner of the land, while lying in the strata of earth from which they are produced, no provision having been made by the Legislature for a severance of the various interests which may be held in real property for purposes of taxation.
Under the authorities cited in State of Oklahoma v. Ernest Shamblin, supra, the judgment of the trial court is affirmed.
WELCH, V. C. J., and RILEY, OSBORN, GIBSON, and HURST, JJ., concur. BAYLESS, C. J., and DAVISON and DANNER, JJ., absent.