The opinion
Mr. Justice Clifford
(Mr. Justice v Swayne concurring) dissented, saying:
“I dissent from the opinion and Judgment of the court in this case, because I think the taxes in question, both state and federal, were legally assessed, and that the officers of the railway company properly deducted the same from the amount of tho coupons described in the declaration.”
So that, as far as there has been any expression upon the validity of such provisions, they have been approved. There is no- reason why the situs of an income is any different when the tax is national instead of state. The relative positions of the nonresident alien and the state nonresident are, in this respect, identical. If the income is, for taxation purposes, only where the recipient resides, then the United States can no more tax the income of a nonresident alien than a state can that of a nonresident. There is common to both the same reason that no sovereignty can properly tax something not within its jurisdiction in the sense of not being under its protection. As said by Chief Justice Marshall in McCulloch v. Maryland, 4 Wheat. 316, 429 , 4 L. Ed. 579 , in speaking of the state power of taxation:
“ft may be exercised upon every object brought within its jurisdiction. This is true. But to what source do we trace this right? It is obvious that it is an incident of sovereignty, and is coextensive with that to which it is an incident. All subjects over which the sovereign power of a state extends are objects of taxation; but those over which it does not extend are, upon the soundest principles, exempt from taxation. This proposition may almost be pronounced self-evident.”
It is inconceivable that the national government would, under the guise of taxation, practice what, without such situs and power, would, in the language of Justice Brown, amount to extortion. Union Transit Co. v. Kentucky, 199 U. S. 194, 202 , 26 Sup. Ct 36, 50 L. Ed. 150 , 4 Atm. Cas. 493. This history of the long assertion and acceptation of the power in a government to tax an income produced in or arising from sources within its jurisdiction, though such income belong to one foreign in citizenship and residence, is strongly persuasive of its existence. As said by Chief Justice Marshall in the case just quoted (4 Wheat, p. 401, 4 L. Ed. 579 ), in speaking of the long Unchallenged legislation concerning the old National Bank:
“An exposition of the Constitution, deliberately established by legislative acts, on the faith of which an immense property has been advanced, ought not to be lightly disregarded.”
And as said by Justice Chase, in considering whether a tax upon carriages was a direct tax within the Constitution (Hylton v. U. S., 3 Dali. 171, 1 L. Ed. 556 ):
*880 “The deliberate decision of the national legislature (who did not consider a tax on carriages a direct tax, but thought it was within the description of a duty) would determine me, if the case was doubtful, to receive the construction of the legislature.”
To this national history may be added the fact that in every state income tax which has been brought to our attention there is the same provision levying on nonresident incomes from sources within the state. Hawaii (Haws April 30, 1901, p. 31, § 1), Missouri (Laws 1917, p. 524, § 1), South Carolina (Civil Code 1912, vol. 1, p. 130, § 354), and Wisconsin (Laws 1911, c. 658, § 3).
In what has been said above in reference to the character of an income tax being in the nature of an excise or privilege levy, the two decisions in the case of Pollock v. Farmers’ Loan & Trust Co. ( 157 U. S. 429 , 15 Sup. Ct. 673, 39 L. Ed. 759 , and 158 U. S. 601 , 15 Sup. Ct. 912, 39 L. Ed. 1108 ) have not been overlooked. That case determined that income taxes from real estate (“rents, or products, or otherwise”) and from personal property (“bonds, stocks, or other forms of personal property”) was a direct tax, within the meaning of the national Constitution, and that such a tax upon municipal bonds was invalid “because of want of power tu tax the source.” The facts of the present case place it without the three classes included in that decision. This income is derived from the prosecution of an oil business consisting of the mining, production, and marketing of oil under a lease for that purpose. If it is not so excluded, then under that decision there could be no question of the right to tax; for although the question in that case was,, in this respect, as to the meaning of constitutional terms, yet its determination turned on the identity or close relation between the income and the property which produced it ( 158 U. S. at 629 ). Viewing this case as without the decision of that case, yet there are expressions therein which seem to sustain the theory that the tax upon this income is a privilege tax, and within the rule of Springer v. U. S., 102 U. S. 586 , 26 L. Ed. 253 . In the later opinion the court ( 158 U. S. at 635 , 15 Sup. Ct. at 920 [ 39 L. Ed. 1108 ]) says:
“We bave considered the act only in respect of the tax on income derived from real estate, and from invested personal property, and have hot commented on so much of it as bears on gains or profits from business, privileges, or employments, in view of the instances in which taxation on business, privileges, or employments has assumed the guise of an excise tax and been sustained as such.”
In the earlier opinion ( 157 U. S. at 578 , 15 Sup. Ct. at 688 [ 39 L. Ed. 759 ]), in commenting on the Springer Case, the court says:
“The original record discloses that the income was not derived in any degree from real estate, but was in part professional as attorney at law and the rest interest on United States bonds. It would seem probable that the court did not feel called upon to advert tb the distinction between the latter and the former source of income, as the validity of the tax as to either would. sustain the action.
“The opinion thus concludes: ‘Our conclusions are that direct taxes, within the meaning of the Constitution, are only capitation taxes, as expressed in that instrument, and taxes on real' estate; and that the tax of which the plaintiff in error complains is within the category of an excise or duty.’
“While this language is broad enough to cover the interest as well as the professional earnings, the case would have been more significant as a prece *881 dent, if the distinction had been brought out in the report and commented on in arriving at judgment, por a tax on professional receipts might he treated as am, excise or duty, and therefore indirect, when a tax on the income of personalty might be held to be direct.” (Italics mine.)
The conclusion, therefore, is that the state had jurisdiction to levy an income tax against a nonresident upon that portion of an income of this character derived from sources within the state.
The provision of the law creating a tax lien upon all property in the state, is not subject to attack. It does not pretend to create a personal liability, and the lien is no broader than the tax which is based upon the income from all property, business, etc., in the state. Note Scholey v. Rew, 23 Wall. 331 , 23 L. Ed. 99 , for statute with similar provision.
Nor does the law discriminate against nonresidents. It can cover only such incomes as arise from property within Oklahoma. He is permitted the privilege of making an income in Oklahoma upon as near the same basis afforded residents as is possible to devise.
The preliminary order should be denied.