gross intrastate receipts, as to suburban and interurban railroads it was fixed at 1.2 per centum of gross intrastate earnings, and on express and telephone companies, it was 2 per cent., while on railroads, including plaintiffs in error, it was 4 per cent. of such earnings, and the same on pipe line companies. With regard to the contention that the statute violated both the "uniformity" clause of the state Constitution and the "equal protection" clause of the 14th Amendment, the opinion reads:

"Both of these contentions turn upon the familiar question of classification, concerning which much has been written.

We agree with the court below that whether the question be considered in view of the uniformity and equality provisions of the Ohio Constitution, or the "equal protection" clause of the 14th Amendment, the result is the same; it cannot be said that the classification rests upon no reasonable and sufficient basis of distinction. State ex rel. Taylor v. Guilber, 70 Ohio St. 253, 71 N. E. 636, 1 Ann. Cas. 25; Kentucky R. Tax Cases, 115 U. S. 321, 337, 29 L. ed. 414, 419, 6 Sup. Ct. Rep. 57; Bell's Gap R. Co. v. Pennsylvania, 134 U. S. 232, 237, 33 L. ed. 892, 895, 10 Sup. Ct. Rep. 33; Magoun v. Illinois Trust & Sav. Bank, 170 U. S. 283, 293, 42 L. ed. 1037, 1042, 18 Sup. Ct. Rep. 594; Southwestern Oil Co. v. Texas, 217 U. S. 114, 121, et seq. 54 L. ed. 688, 692, 30 Sup. Ct. Rep. 496."

Again, in the course of the opinion, it was said that the tax was in substance as well as in form, an excise or privilege tax; that its reasonableness, unless some federal right be violated, was within the discretion of the state legislature. That it had already been seen that the classification adopted could not be deemed illusory; that is, that there was no apparent violation of the equality provisions of the state Constitution, or of the "equal protection" clause of the 14th Amendment, although railroad and pipe line companies were required to pay at the rate of 4 per cent. of their annual intrastate earnings, while other public service corporations paid a less percentage. Authorities in harmony with those cited are numerous. Among them are: Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 562, 46 L. ed. 679; Armour Packing Co. v.Lacey, 200 U. S. 226, 235, 50 L. ed. 451; People ex rel. Hatch v. Reardon, supra; Braun et al. v. Chicago, 110, 111, 186; Maine v. Western U. Tel. Co., 73 Me. 518. The principles of equality and uniformity do not require the equal taxation of all pursuits or classes of business, nor prevent the legislature from taxing some kinds of business, while omitting others; but only that the burden of taxation shall be imposed equally upon all those engaged in the same vocation, or as provided by our Constitution, "upon the same class of subjects." Rhinehart v. State, 121 Tenn. 420, 117 S. W. 508; State v. Galveston, H. & S. R. Co., 100 Tex. 157, 97 S. W. 71; Kehrer v. Stewart, 197 U. S. 60, 47 L. ed. 665; Kintanning Coal Co. v. Commonwealth, 79 Pa. St. 100; 37 Cyc. 732. A rule requiring that all kinds of business be in

cluded within some class, made the subject of taxation as authorized in Section 12, Article 10, of the Constitution, would deprive the state of its right to select its subjects of taxation and be in violation of Section 13, Article 10, of the Constitution.

The objection is made that the act is in violation of Section 19, Article 10, Constitution, in that, being an act levying a tax, it fails to specify distinctly the purpose for which the tax is levied. The act is not an exercise of the police power, but is, instead, a revenue measure. Binion v. Oklahoma Gas & Electric Co., 28 Okla. 356, 114 Pac. 1096. Section 10, of Article 10, is identical with Section 180 of the Constitution of Kentucky, 1891, except that the latter has an additional provision giving to the general assembly the power to authorize counties, cities, or towns, to levy a poll tax. In fact, it is said, that the above provision of our Constitution was taken from the Kentucky Constitution. This provision of our Constitution was before the court in McGannon, Adm'x. v. Trapp, Auditor, 33 Okia. 145, 124 Pac. 1063, where it was held that it did not apply to the Act of May 26, 1908, imposing an inheritance tax upon the transfer of property, but applied only to annually recurring taxes.

The construction of the constitutional provision before us has frequently been before the court of last resort cf Kentucky. In Commonwealth et al. v. United States F. & G. Co., 121 Ky. 409, 89 S. W. 251, the order of the fiscal court of Taylor County, levying a tax for the year 1901, wholly omitted to state the purpose for which the tax was levied, and the order was held to be void. In Chesapeake, O. & S. W. R. Co. v. Commonwealth, 129 Ky. 318, 111 S. W. 334, 33 Ky. L. Rep. 882, the order of the fiscal court levied a tax, but failed to designate the purpose for which it was levied, and it was likewise held invalid. To the same effect are: Somerset v. Somerset Banking Co., 109 Ky. 549, 60 S. W. 5, United States Fidelity Co. v Board of Education, 118 Ky. 355, 80 S. W. 1191; Morrell Refrigerator Car. Co. v. Commonwealth, 108 S. W. 926, 32 Ky. Law. Rep. 1389. In Pulaski County v. Watson, 106 Ky. 500, 50 S. W. 861, it was ordered that the sheriff of Pulaski County, for the year 1894, be directed to collect 25 cents on each $100.00 of the taxable property reported by the assessor for said year, and pay same to the county treasurer, in accordance with the law, for the purpose of paying claims against the county. The order was held sufficient. In McInery v. Huelfield, 116 Ky. 28, 75 S. W. 237, the resolution of the fiscal court levied a tax of 38 cents on the $100.00, which recited that it was apportioned as follows:

"Three cents for the purpose of creating a sinking fund with which to purchase a poor farm and erect suitable buildings thereon, 10 cents for the maintenance and repair of the public roads and bridges of the county, and 25 cents to defray the general county expenses.

And it was held that the resolution satisfied the purposes of the levy with sufficient dis

*

tinctness. In Mt. Pleasant v. Eversole, 29 Ky. L. Rep. 830, 96 S. W. 478, it was held that the ordinance of a town out of debt, levying a "for municipal purposes property tax, sufficiently specifies the purpose for which the tax was levied, within the provisions of Section 180 of the Constitution, requiring an ordinance imposing a tax to specify distinctly the purpose for which the same was levied.

In Meyer et al. v. Lynd-Bowman-Darby Co., 35 Okla. 480, 130 Pac. 548, the act providing for a graduated tax on land holdings did not specify distinctly or otherwise, the purpose for which the tax was levied, and was therefore held to be void.

Turning to the act in question, we find that in Section 4 it is provided that all gross production revenues collected by the state auditor under the provisions of the act, shall be paid into the state treasury:

**** one-half to be credited to the general revenue fund of the state, and applied to the current expenses of the state government and any unexpended balance at the close of each fiscal year shall be credited to the common school fund of the state as are other common school funds); the remaining onehalf shall be, by the state treasurer distributed to the county treasurer of the counties from whence the same was collected in proportion to the school enumeration of such counties, and the same shall be distributed in aid of common schools of such counties upon a per capita basis as are other common school funds.

The act contains a further section that if

for any reason the provisions of Section 4 may prove ineffective, then at once shall the proceeds of all gross production tax collected pursuant to the act, be paid into the general revenue funds of the state, and be applied to the current expenses of the state government, and that any unexpended balance at the end of each fiscal year shall be credited to the common school fund of the state, to be distributed as are other common school funds of the state. We have seen, therefore, that the primary object of the act was to levy a tax, one-half of which should go into the general revenue fund of the state, the remaining one-half to be distributed to the counties from whence the tax was collected, in the proportion named; same to be distributed in aid of the common school funds of such counties. But, if the latter provision could not be made effective, then the entire proceeds of the tax collected should be applied to defray the ordinary expenses of the state; any unexpended balance at the end of each fiscal year to be credited to the common school fund of the state.

But it is urged that the revenue collected is to be used in a manner contrary to the provisions of the Constitution, hence the purpose of the act is unlawful. The purposes for which the tax was imposed, we have already seen. Generally speaking, it is the duty of the legislature to provide for the levy of taxes to defray the expenses of the state govern

ment. The legislature has also the power, under certain limitations, to levy a state tax in aid of the public schools. Atchison, T. & S. F. Ry. Co. v. State, 28 Okla. 94, 113 Pac. 921; Thurston v. Caldwell, 40 Okla. 206, 137 Pac. 683. In its broadest sense, therefore, the purpose for which the tax is levied is not an unlawful one. Whether the tax collected should be credited and distributed under Sections 4 and 4B of the statute, is not necessary to a determination of the present proceedings. It involves a question of the distribution of the revenue collected when the same reaches the state treasurer. By the express language of the act, this court is given exclusive and original jurisdiction of any and all suits instituted to determine the validity of the act, and not to pass upon all questions arising out of its administration by the executive officers of the state.

As to whether the revenues collected and received by the state treasurer should be credited and distributed under Sections 4 or 4B of the act, and the effect of the statute, making oil on hand for more than thirty days at tax rendering period, liable to an ad valorem tax, it is proper to call attention to Article 3 of the statute, which provides that:

"The invalidity of any section, subdivision, clause, or sentence of this act, shall not in any manner affect the validity of the remaining portion thereof."

It is urged that one part of the statute cannot be declared void and leave any part in force, unless the statute is so composite, consisting of such separable parts, that, when the void part is eliminated, another living tangible part remains, capable by its own terms of being carried into effect, consistently with the intent of the legislature, which enacted it in connection with the void part. A number of authorities are cited which announce the foregoing rule, and among which is that of Meyer v. Wells Fargo Co., 223 U. S. 298, 56 L. ed. 445. The latter case was an appeal from the circuit court of the United States for the Western District of Oklahoma, to review a decree enjoining the collection of a tax upon the gross receipts of a nonresident express company, and it was said that the act could not be upheld without being so remodeled that it would be a mere speculation whether the legislature would have passed it in the new form. Generally, it may be said, that because one section or provision of an act may be unconstitutional and void, does not necessarily render the entire statute or enactment void. That if the act can be given operation and effect without such void provision, the valid portions of it will be allowed to stand, unless the court is unable to say or to know that the legislature would have passed the act without the void provision. Statutes similar in their wording to Section 3 of the act, have on several occasions been before the courts, and in each instance to which our attention has been called, have been upheld, though not always without limitations upon the extent to which they should be allowed to control the courts in passing upon the validity

It

of the statutes. In State ex rel. Clark v. Carter, 174 Ala. 266, 56 So. 974, a section of the act provided that if any of its provisions should be held void, it should not affect any other section or provision of the act. was said by the court, that by reason of such provision, it was relieved of any doubt as to the legislative intent. In State ex rel. Crumpton v. Montgomery, 177 Ala. 212, 59 So. 294, it was held not within legislative competency to bind the courts by any declaration or pronouncement in their unfettered functions of determining the constitutional validity of enactments. But it was said that the court did not doubt that it was within legislative competency to remove by express assertion in the act, any uncertainty in the judicial mind, as to what the legislature would have done in respect of the adoption of the act, with the invalid parts thereof stricken therefrom before passage. In Borgnis v. Falk Co., 147 Wis. 327, 133 N. W. 209, 37 L. R. A. (N. S.) 489, it was said that the court knew of no good reason why the legislature might not declare its intention that one part or section of the law is not a compensation for, and that it may be separated from, the balance of the act, for the very purpose of saving such balance from being invalidated in case the first named part or section be held unconstitutional. In State ex rel. Davis-Smith Co. v. Clausen, 65 Wash 156, 117 Pac. 1101, 1114, it was held that by section 27 of the act of the legislature made clear that it did not intend the provisions relating to those who were entitled to partake of its benefits, to be so far an integral part of the act, that it could not be eliminated in part, without destroying the act in its entirety. Referring

to this section, it was said:

"It is there expressly provided that the adjudication of invalidity of any part of the act shall not affect the validity of the act as a whole, or any other part thereof. This means that the legislature intended the act to be enforced as far as it may be, even though it might not be valid in its entirety. It was competent for the legislature so to provide.' In Ex parte Schuler, 167 Cal. 282, 139 Pac. 685, a section of the statute in question provided that if any part of the act should be declared unconstitutional, that the legislature intended to pass the statute without that part. And it was said that such statutes imposed upon the courts the duty of supporting the legislative will as far as possible. the question not going to, or at least not necessarily going to the validity of the act, we refrain from the expression of any further opinion involving the law's administration. This because of the limitation upon our jurisdiction in an original suit.

But

The tax not being an ad valorem tax on property, the statute imposing it is not in conflict with Section 8, Article 10, of the Constitution, requiring that all property, which may be taxed ad valorem, shall be assessed for taxation at its fair cash value, estimated at the price it would bring at a fair and voluntary sale.

It is urged that the act in question violated the requirements of uniformity of taxation prescribed by the state Constitution, and thereby denies to the Wolverine Oil Company and others similarly situated, the equal protection of the laws of the state, which the 14th Amendment of the federal Constitution guarantees shall not be abridged by state action. We may here observe that it cannot be denied but that the state, keeping within the limits of its own fundamental law, can adopt any system of taxation or classification that it deems best for the common good, and the maintenance of its government, provided such classification be not in violation of the 14th Amendment. Such is the demand and right of the states in their relation to the general government, as recognized by the federal courts. In Bell's Gap R. Co. v. Pennsylvania, 134 U. S. 232, 33 L. ed. 892, a case often cited, the question arose as to whether a statute of Pennsylvania, subjecting bonds and other securities issued by corporations, to a higher rate of taxation than was imposed on other monied securities, was a denial of the equal protection of the laws to corporations. The contention was met by Mr. Justice Bradley, who held that there was no distinction which the state was not competent to make, saying:

as

"All corporate securities are subject to the same regulations. The provisions in the 14th Amendment, that no state shall deny to any person within its jurisdiction the equal protection of the laws, was not intended to prevent a state from adjusting its system of taxation in all proper and reasonable ways. It may, if it chooses, except certain classes of property from any taxation at all, such churches, libraries and the property of charitable institutions. It may impose different specific taxes upon different trades and professions, and may vary the rates of excise upon various products; it may tax real estate and personal property in a different manner; it may tax visible property only, and not tax securities for payment of money; it may allow deductions for indebtedness or not allow them. All such regulations, and those of like character, so long as they proceed within reasonable limits and general usage, are within the discretion of the state legislature, or the people of the state, in framing their Constitution."'

Again, in Home Ins. Co. v. New York, 134 U. S. 594, 33 L. ed. 1025, the question was the constitutional validity of a law taxing corporate franchises and business. The court held that the statute was not a denial of the equal protection of the laws. It said that the amendment,

*** does not prevent the classification of property for taxation-subjecting one kind of property to one rate of taxation, and an other kind of property to a different ratedistinguishing between franchises, licenses and privileges, and visible and tangible property, and between real and personal property."

In Connolly v. Union Sewer Pipe Co., supra, it was held that a tax could be imposed only

upon certain callings and trades, for when the state exerts its power to tax, it is not bound to tax all pursuits or all property that may be legitimately taxed for governmental purposes. In Kentucky R. Tax Cases, 115 U. S. 321, 337, 29 L. ed. 14, 419, the court sustained, as not inconsistent with the "equal protection" clause of the 14th Amendment, the Kentucky statute providing for the assessment of railroad property for purposes of taxation in a mode different from that prescribed as to ordinary real estate, or as to the property of corporations chartered for other purposes, such as bridge, mining, street railway, manufacturing gas, and water companies. The court said that:

"The rule of equality, in respect to the subject, only requires the same means and methods to be applied impartially to all the constituents of each class, so that the law shall operate equally and uniformly upon all persons in similar circumstances. There is no objection, therefore, to the discrimination made as between railroad companies and the other corporations in the methods and instrumentalities by which the value of their property is ascertained.

In Delaware R. Co. Tax, 18 Wall. 206, 231, 21 L. ed. SSS, 896, it was said that:

"It is not for us to suggest in any case that a more equitable mode of assessment or rate of taxation might be adopted than the one prescribed by the legislature of the state; our only concern is with the validity of the tax; all else lies beyond the domain of our jurisdiction."

In Pacific Express Co. v. Seibert, 142 U. S. 339, 35 L. ed. 1035, it was held that the 14th Amendment of the U. S. Constitution did not prevent the state from adjusting its system of taxation in all proper and reasonable ways, nor the classification of property for taxation. That the Missouri statute, imposing a tax upon the business of express companies was not repugnant to the 14th Amendment, because it did not impose a like tax upon railroad or steamboat companies which carried express matter. In Southwest Oil Co. v. Texas, 217 U. S. 114, 54 L. ed. 688, one of the last expressions of the Supreme Court on the subject at hand, it is said by Mr. Justice Harlan:

"But we will not speculate as to the motives of the states, and will assume-the statute, neither upon its face nor by its necessary operation, not suggesting a contrary assumption that the state has by good faith sought, by its legislation, to protect or to promote the interests of its people. It is sufficient for the disposition of this case to say that, except as restrained by its own Constitution or by the Constitution of the United States, the state of Texas, by its legislature, has full power to prescribe any system of taxation which, in its judgment, is best or necessary for its people and government; that, so far as the power of the United States is concerned, the state has the right, by any rule it deems proper, to classify persons or businesses for the purposes of taxation, subject to the condition that such classifica

tion shall not be in violation of the Constitution of the United States."

It was held that the statute, requiring that all wholesale dealers in specified articles should pay a tax of a given amount on their occupation, without exacting a similar tax on wholesale dealers of other articles, could not, on the face of the statute, or by reason of any facts within the judicial knowledge of the court, be held within the meaning of the 14th Amendment, to deprive the tax payer of his property without due process of law, and to deny him equal protection of the laws, and that the federal court could not interfere with the enforcement of the statute simply because it may disapprove its terms or question the wisdom of its enactment, or because it could not be sure as to the preise reasons inducing the state to enact it.

These opinions are but few of the many expressions by the Supreme Court of the United States, as to the power of the state in the passage of laws imposing or providing for the imposition of taxes. Having seen, by the terms of the act, that there is nothing unreasonable or invidious in the selection of the subjects of taxation, or in the classification thereof, according to the Constitution of the state, and following the rule announced by the Supreme Court, we may fairly conclude that no rights of the producing companies, vouchsafed by the federal Constitution, have been denied, or in any wise impaired, by the provisions of the statute in question, or the collection of the tax thereby imposed.

This disposes of the principal contentions, and all, we feel, that go to the constitutionality, or involve the validity of that part of the act involved. There are, however, a number of other questions of minor importance presented, but which have to do principally with the administration of the law. These should not be difficult of solution in the light of our conclusions. It would seem that all taxes illegally collected and held by the state auditor, if such there be, should at once be repaid those who paid such taxes, either in whole or in part, according to the facts. All taxes lawfully collected, will, of course, be paid into the state treasury. The matter of the collection of an ad valorem tax is one for the proper taxing authorities. ALL THE JUSTICES CONCUR.

compensation should be computed on his wages from both employers, the respondent and insurance carrier contend that it should be based on his wages only from the respondent for whom he was working when injured.

Sub-section 8, Section 3, Article 1 of the

Workmen's Compensation Law defines wages as a money rate at which services rendered is recompense under the contract of hiring in force at the time of the accident *** received from the employer; HELD, that compensation should be awarded on a basis of the claimant's wages from the respondent, The Bartlesvule Zine Company.

STATEMENT OF FACTS.

The parties to this cause have entered into the following agreed statement of facts:

We, Ray Berry of Bartlesville and the Bartlesville Zine Company and the Travelers Insurance have agreed upon the following statement of facts relative thereto.

(1) Said injury was sustained on September 4th, 1915, at 9:30 a. m.

(2) Nature of injury: Testicles badly injured.

(3) Period of disability from September 4th, 1915, to September 29th, 1915.

The Travelers Insurance Company has agreed to pay for the medical services and medicines that were incurred during the first fifteen days following the injury.

It is

The weekly wages of Ray Berry amounted to $19,60 at the time he was injured. In addition to this amount he received $10.50 a week for working in a confectionery store. agreed by all parties hereto that Ray Berry was disabled from September 4th, 1915, to September 29th, 1915, and that during this time he would have received $19.60 a week from the Bartlesville Zinc Company and $10.50 a week from the confectionery store. It is claimed by the said Ray Berry, that he is entitled to fifty (50) per cent. of what he would have earned from these two employments, after excluding the first two weeks, as his compensation. It is claimed by the Bartlesville Zinc Company and the Travelers Insurance Company that the said Ray Berry is only entitled to fifty (50) per cent. of the $19.60 as his compensation. This is the sole question in dispute between the parties hereto. OPINION BY MCDONALD, CHAIRMAN.

The sole question for the Commission to determine in this case, is whether in computing the average weekly wages of the claimant, it should be based solely on his wages received from the respondend or by adding together his wages received from the respondent and the confectionery store, in which he was employed.

In this case the claimant suffered what is termed a temporary total disability, sub-section 2 of Section 6 of Article 2 says:

"In case of temporary total disability, fifty

per centum of the average weekly wages shall be paid to the employee, during the continuance thereof, but not in excess of three hundred weeks, except as otherwise provided in this Act."

Wages is defined in Sub-section 8, Section 3 of Article 1 as follows:

"Wages" means the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the accident, including the reasonable value of board, rent, housing, lodging, or similar advantage received from the employer."

The foregoing section seems to limit the wages to those covered under the contract of hiring in force at the time of the accident *** received from the employer. It may be contended that the words "received from the employer" refers to board, rent, housing, lodging or similar advantages, but that contention is hardly tenable.

It would seem that under the Act, the compensation should be based upon the wages received under the contract of hiring with the employer, and not from the sum total of wages received in other employments.

It is true there are a number of British cases holding the contrary, but an examination of the British Compensation Act discloses that the Act provides where a workman makes concurrent contracts of service, his wages shall be computed as if his earnings under all such contracts were earnings in the employment of the employer for whom he was working at the time of the accident.

Compensation will therefore be awarded on the basis of the claimant's wages from the Bartlesville Zinc Company only.

JACKSON AND BLESSING, COMMISSIONERS, CONCUR.

OPINIONS FROM ATTORNEY GENERAL'S OFFICE.

MR. J. D. SAMPLE, ATOKA, OKLAHOMA. Dear Sir:

Receipt is acknowledged of your letter of recent date, in which you make certain inquiry with reference to one person holding two offices at the same time under the laws of the state of Oklahoma.

Replying thereto, you are advised that Section 4274, Revised Laws, 1910, provides:

"Except as may be otherwise provided, no person holding any office under the laws of the state and no deputy or any officer so holding any office, shall, during his term of office, hold any other office, or be the deputy of any officer holding any other office, under the laws of the state."'

Whether the language employed in the above statute is intended to cover all offices created by state laws, whether state, county, city, school or other municipalities, has never been decided by the courts of this state. Some courts have held similar statutes to prohibit only the holding of offices which are considered state offices, but the view of