The judgment of the trial court having sustained appellant's contentions in part and appellee's contentions in the remainder thereof and this Court having affirmed the trial court's judgment in its entirety, both parties have filed motions here for rehearing, and in each instance the adversary has ably replied thereto.
After a careful examination of appellant's motion and the reply thereto the same is overruled.
In its original opinion this Court said in part and in effect that, although appellee, as a cross appellant, gave notice of appeal from the first part of the trial court's judgment granting appellant injunctive relief from January 1, 1949 up to March 17, 1950, appellee, as a cross appellant, did not bring forward its appeal from that part of the trial court's judgment. It thus appeared then because of language used in its briefs by appellee subsequent to the filing of a separate brief as a cross appellant on March 2, 1957. Appellee thereafter on March 27, 1957, filed its brief as appellee in the case and there on page 4 said in part:
"Appellee here has appealed from that portion of the judgment of the Trial Court denying its right to recover taxes for the period prior to March 17, 1950, but for the purpose of this Brief, only the question of taxability after such date will be considered."
It there devoted its entire brief of 55 pages to urging an affirmance to that part of the trial court's judgment denying relief from and after March 17, 1950, the date the amendment to Article 5248 became effective, and it did so without reference to overturning the former part of the trial court's judgment which favored appellant herein. Thereafter on September 17, 1957, after the case had been submitted and oral argument of the parties heard, appellee filed a reply brief consisting of 36 pages urging an affirmance of the trial court's judgment and concluded with the following language:
"For the above reasons, and in accordance with the above authorities, Appellee again prays the Court to affirm the Judgment of the Trial Court."
This Court did affirm the judgment of the trial court, feeling that appellee had by reason of the language more recently used abandoned its right of appeal, in any event, from the first part of the trial court's judgment.
However, after a careful re-examination of the record, the briefs filed and more particularly appellee's motion as a cross appellant urging us to pass on its cross assignment and sustain the same, we feel that the matter of passing on such should have a generous and liberal consideration by us, for which reason we likewise feel impelled to pass on the said cross assignment charging that the trial court erred in holding that appellant's leasehold was not subject to taxation from January 1, 1949 up to March 17, 1950.
As previously stated in our original opinion, we believe the language used in the leasehold contract and the Federal and State laws contemplate the payment of taxes by appellant upon its leasehold, but such could not be accomplished until a State law directly authorizing such had been passed. Property cannot be legally taxed merely by implication or by a "probable" construction of a statute. A direct act is required for such a purpose. We have failed to find any such authority taxing the property here involved until Art. 5248 was amended by the Texas Legislature which became effective March 17, 1950. The said amended Article was copied in full in our original opinion, which is here referred to for further consideration. All general laws governing taxation usually conclude with an exception such as: "* * * except as otherwise specially provided for by law." We think the matters here presented were "otherwise specially provided for by law" and no direct authority for taxing the leasehold in question was given until Art. 5248 was amended effective March 17, 1950. Before Article 5248 was amended, it did not authorize a leasehold such as the one here under consideration to be taxed by the State and its subdivisions. It did not prohibit such from being taxed but it did not authorize it. It did exempt such properties from taxation "so long as the same are held, owned, used and occupied by the United States for the purposes expressed in this title and not otherwise." (Emphasis added.) The phrase "and not otherwise" held the matter open for the taxation of a leasehold such as the one here under consideration if and when such statute may be amended directly authorizing such to be taxed, and we think such an amendment was passed by the Legislature for such a purpose effective March 17, 1950. Prior to the amendment a leasehold such as is here involved was exempt from taxation so long as the property leased was "held, owned, used and occupied by the United States." But when the Article was amended by adding the provisions thereto, we think then and only then, notwithstanding ownership of the primary property by the United States, authority was given by the State Legislature to tax the leasehold here under consideration for the use and benefit of the State and its political subdivisions.
For these reasons appellee's cross assignment as a cross appellant is overruled and the judgment of the trial court is affirmed even as it was in our original opinion.