The opinion
LAVENDER, Justice
(dissenting in part):
It is my view that the statute now appearing as 68 O.S.1971 § 1001(h) authorizes the State Board of Equalization (or this court on appeal therefrom) to make a binding determination as to the proper rate of gross production tax to be applied against the value of a taxpayer’s production of “taxable” minerals during a particular fiscal year so as to “conform” to what the taxpayer’s total ad valorem taxes on the property mentioned in that statute would be for the same fiscal year if subject to ad valorem taxation; but that it does not authorize that board (or this court on appeal therefrom) to make a binding determination as to the total amount of gross production taxes to be paid by, or refunded to, the taxpayer.
It is also my view that the statute now appearing as 68 O.S.1971 § 226 requires the Oklahoma Tax Commission to segregate, and hold, in its official depository clearing account, that portion, but only that portion, of the tax paid in compliance therewith as the taxpayer seeks to recover in his action under that statute.
It is my further view that, in the basic situation involved in this case [a complaint under Section 1001(h), and payment of each monthly installment of gross production tax, at the rate and on the value of the production, and at the times and in the manner, prescribed therefor in the Gross Production Tax Code], Section 226 is applicable and provides the taxpayer’s only remedy for the amount of gross production tax, if any, which he would not have been required to pay under the rate as finally determined in his proceeding under Section 1001(h). And, since the “segregation” provision of Section 226 is an integral and essential part of the remedy provided thereunder, the court could, and should, if necessary, in an action thereunder, hold a hearing or hearings and determine the proportion of the gross production tax installments being paid by the plaintiff pending final determination of the plaintiff’s proceeding under Section 1001(h) and his court action. Such a determination would be necessary and, I think, proper where, as the intervenors in the present instance, the plaintiff makes it clear in his petition that he seeks to recover that portion, but only that portion, of the gross production tax which he would not have been required to pay under the rate therefor as finally determined in his proceeding under Section 1001(h), unless the plaintiff and the Tax *655 Commission agreed on the proportion to be segregated and held.
Under my views of the matters involved, the petitioner herein, Continental Oil Company, would not be entitled to any relief, but each of the intervenors would be entitled to a writ of mandamus to compel the Oklahoma Tax Commission to segregate, and hold, in its official depository clearing account pending final determination of their intervening actions in the District Court of Oklahoma County, a stated proportion of the monthly installments of gross production tax paid by it with respect to the value of its production of oil and gas during the remainder of the current fiscal year. If the intervenors and the Tax Commission did not, within a reasonable time allowed by this court, agree upon the proportion to be segregated and held, I would refer the matter to the above-named district court for hearing and report to this court.