Chapter 164, Oklahoma Laws of 1915, makes every person of the State liable to a tax upon his entire net income arising from all sources, except such as is exempt from taxation by some law of the United States or of the State. Under that statute Oklahoma seeks in these proceedings to hold the defendant, the plaintiff in error, liable for taxes for the years 1915, 1916, 1917 and 1918, upon net income derived by him as lessee from leases of restricted Indian (Creek and Osage) lands, the leases being of the kind dealt with in Choctaw, Oklahoma & Gulf R. R. Co. v. Harrison, 235 U.S. 292, 35 Sup. Ct. 27, 59 L. Ed. 234, and Indian Territory Illuminating Oil Co. V. Oklahoma, 240 U.S. 522, 36 Sup. Ct. 453, 60 L. Ed. 779. The facts were set forth by the defendant in special returns for the years mentioned, claiming exemption under the Constitution and laws of the United States. The auditor of the State accepted the returns as true but held that the defendant was liable to taxes on the income derived by him from sales of his share of oil and gas received under his leases. It is agreed that the lessee was an instrumentality used by the United States in carrying out duties to the Indians that it had assumed, and that the only question in the case is whether he is liable to this kind of tax. The District Court of the State held the tax void and on appeal by the State the Supreme Court affirmed the judgment, but upon rehearing changed its mind and ordered the judgment reversed.
In Choctaw, Oklahoma & Gulf R. R. Co. v. Harrison, 235 U.S. 292, 35 Sup. Ct. 27, 59 L. Ed. 234, it was held that such a lessee could not be taxed on the gross sales of coals from Choctaw and Chickasaw mines, when the tax was in addition to the taxes collected upon an ad valorem basis. In Indian Territory Illuminating Oil Co. v. Oklahoma, 240 U.S. 522, 36 Sup. Ct. 453, 60 L. Ed. 779, it was held that a similar lessee could not be taxed upon the value of an Osage oil lease. Subsequently the principle was applied per curiam to gross production taxes under a later statute of 1916, without reference to the fact that the taxes, instead of being in addition to, were in lieu of all taxes upon property rights. Howard v. Gipsy Oil Co., 247 U.S. 503, 38 Sup. Ct. 426, 62 L. Ed. 1239; Large Oil Co. v. Howard, 248 U.S. 549, 39 Sup. Ct. 183, 63 L. Ed. 416.
The argument for the State is based primarily upon the cases sustaining taxes upon net income that include gains from interstate commerce, Shaffer v. Carter, 252 U.S. 37, 57, 40 Sup. Ct. 221, 64 L. Ed. 445; United States Glue Co. v. Oak Creek, 247 U.S. 321, 38 Sup. Ct. 499, 62 L. Ed. 1135, Ann. Cas. 1918E, 748; when 'all expenses are paid and losses adjusted, and after the recipient of the income is free to use it as he chooses.' William E. Peck & Co., Inc., v. Lowe, 247 U.S. 165, 175, 38 Sup. Ct. 432, 434 (62 L. Ed. 1049). It is said also that tangible property within the State is subject to taxation and that therefore the defendant's share of oil and gas cannot escape. If the cases that we have mentioned as decided per curiam tend to oppose the State's position, on the ground that if the property is exempt the income from it also is exempt, it is urged that so far as appears the distinction between the statute of 1916 then before the Court and the statutes dealt with by the authorities cited in those cases was overlooked.