Street v. City of Columbus

Taxation. Sixteenth sections. Leaseholds. Leaseholds or other private interests of persons in the sixteenth sections of land in this state, dedicated to school purposes, are subject to taxation.

FROM the chancery court of Lowndes county. Hon. A. M. Byrd, Chancellor. The facts are stated in the opinion of the court. The policy of the government was established in 1785, when Virginia ceded the territory northwest of the Ohio river to dedicate -a part of the public lands for the benefit of schools in every township. When the United States, in 1802, purchased the territory out of which Alabama and Mississippi were formed, the ordinance of 1787, governing the northwest territory, was applied to Mississippi. Then, by act of congress, March 3, 1802, the first general law was passed for the sale of all the lands of the territory, but the sixteenth section in every township was reserved from sale and dedicated to schools. After acquiring the title from Georgia by payment of $6,-200,000, many treaties with the Indians were made, and thus there were as many different surveys. A special act of congress followed each treaty, providing for the sale of these lands. In each the sixteenth section of every township was reserved for the township school. In the act of congress ordering the survey of the lands known as the Madison survey, with Huntsville as its basis meridian, extending west to the Tombigbee river, the stereotyped reservation of the sixteenth section is made. The sixteenth section on which two-thirds of Columbus is located, was embraced in this North Alabama Madison survey. By the terms of admission, act tenth of December, 1817, Mississippi disclaimed all right or title to the waste or unappropriated lands and the right to tax them. The policy of leasing was first adopted by congress January 9, 1815, two years before the territory became a state. This act authorized the county court to make leasehold contracts. One of the first laws passed by the state, February 5, 1818, embraced the provisions of the act of congress of January 9, 1815, which authorized the county court of Monroe, in which this section was then located (Lowndes county not having been created until twelve years after), to appoint eight commissioners, to lay off the section into lots, and then three commissioners were appointed to lease these lots. The terms of the contract of lease are laid down in this law. In compliance with this act, Stephen Cocke and two others leased a quarter part of the section. In 1823, the law of 1818 was amended, and the president and directors of the literary fund displaced the three agents, and were authorized to make the leases, but, in 1824, five trustees were substituted for the board of directors. And, then, in 1830, the Franklin Academy having been incorporated as the township school in Columbus, the trustees were authorized to make further leases. The attention of the court is called to one important change in that part of the leasehold contract which provides the remedy for nonpayment of the annual rent, commonly called leasehold tax; but it is not a tax. It is an annual rental. The first series of contracts covered 160 acres of the section, under the acts of 1818 and 1820. In those contracts, the commissioners reserved the right to enforce the payment of the annual rent, first, by sale of the lease to another person, and if the renter defaulted in payment, the commissioners were to dispossess the tenant ‘ and lease the same in the same manner as if it had never been leased.” The contracts of lease made under the law of 1830, in case the tenant failed to pay annually the rent, dispensed with a sale, and reserved the right to dispossess the tenant and enter into part or all of the land, and again to lease clear and disincum-bered of all title, etc. The following is a copy of that provision of the leasehold contracts under which complainants hold: ‘ ‘And in order to insure a certainty and punctuality of payment of said sum yearly in advance, the said agent hereby makes a lien on said lot and its appurtenances, which may from time to time be created thereon, as security, and declare the same liable to be sold to satisfy the said sum of nine dollars, in whose possession soever the same may be; and on failure to pay the said sum annually in advance, they reserve to themselves and successors the right of entering on said lot and leasing the same in the same manner as if it had never been leased. To have and to hold unto him the said (tenant), his heirs and assigns, for the full end and term of ninety-nine years next ensuing, subject, nevertheless, to the covenants and restrictions heretofore created.” There are quite a number of laws of congress reserving all sixteenth sections for school purposes, between the years 1815 and 1852, but the act of 1815 was the last of congress -which provided a mode for leasing these lands until the act of 1852. The state, in 1818, assumed the authority to re-enact substantially the act of congress of 1815, which granted to the territorial county courts the power to lease. But, at that time, the state had no more jurisdiction over this sixteenth section than it now has over the Klondike. Happily, its legislation was in harmony with that of congress, and when it was discovered that the state had proceeded without the authority of the general government, congress, by act of May 19, 1852, ratified the action of the state, but the precaution was-taken to insert in this act of 1852, that the leases should be for the benefit of the township schools, “and for no other use or purpose whatsoever.” Judge Cooper seems to have overlooked the fact, in the able opinion in the case of Jones v. Madison County, '72 Miss., 777, that congress had passed no law on the subject of the sale or lease of this sixteenth section after 1815, whilst we were yet a territory, until the law of 1852 was passed. The title, legal and equitable, so far as the general government is concerned, in its relation to this sixteenth section, stood in 1852 as it did in 1815. -The only authority to dispose of it had been given to the territorial county courts, and that was to lease, and not to sell. As just shown, the state, in 1818, during the first year of its existence, followed up the legislation of congress, and under its laws of 1820, 1822 and 1830 all of these leasehold contracts were made, and they were ratified by congress in 1852. The contracts of lease were made under special laws of the state, confirmed by the act of congress of 1852. No sale of any part of the sixteenth section was authorized. This brings us to the question to be decided by this court: Are these leasehold lots and lands subject to taxation by the city, county or state? From 1802, the date of the purchase from Georgia, up to 1.817, when the territory became a state, no tax was imposed on them by the territorial government. From 1817 to 1839 the state did not tax, or claim the right to tax. In 1839 the first act taxing this property breathes a consciousness of doing a naughty thing. It imposed a tax of one-fourth of one per centum to buy an engine to protect the property from fire, and bribed the city with a gift of power to grant license to billiard tables, hotels and dramshops, with a right to turn the license fees into the city treasury. This law was repealed in 1844, but the vampire had tasted blood, and returned to its victim in 1846, and that section of the revenue act of 1846 was transferred to the code of 1857, and has been retained in all of the codes up to and including that of 1892. Thus, we see that for the one hundred years past no tax was claimed for near fifty years, and the tax has been imposed a little more than fifty years. I have examined all of the text-books on taxation accessible to me, and the digests of all the decisions of the courts, state and federal, and, so far as my research has gone, the question now presented is one of first impression, except in one case, on which I rely, from the state of Texas. It is impossible to answer correctly the question of liability to taxation without determining, first, who has the title to the property; and, second, by what tenure do complainants hold? What is the estate which appellants have to be taxed ? Judge Sharkey says the lease for ninety-nine years is of no higher dignity than a lease for one year, all of the legal elements of a contract being essentially the same. “A lease for ninety-nine years is of no higher dignity than a lease or term for one year; both are mere chattels, and go to the administrator to be administered.” Dillingham v. Jenhins, 7 Smed. & M., 479. The complainants are the mere tenants of the inhabitants of the township, and they, as the landlords owning these lots in fee, have the same absolute and unqualified right to eject the defaulting rent payer as any landlord in Lowndes county has to eject his defaulting renter. The next question is, who has the title to the property? Where is the legal title ? Down to Jones v. Madison County, 72 Miss., this court had uniformly held that the legal title was in the general government. Morton v. Grenada, 8 Smed. & M., Bishop v. McDonald, 27 Miss., Hester v. Crisler, 36 Miss., were followed by Judges Campbell, Cooper and Arnold as late as 1885, holding that the legal title is in the general government. Such, also was the view of the supreme court of the United States in Trustees v. Indiana, in 14 Howard. If the title is yet in the government of the United States, there is an end of the argument, for we have seen that, by the terms of admission, the state disclaimed all title to the public lands and all right to tax them. But, accepting the later view of this court as announced in Jones v. Madison County, that the legal title has passed to the state, does it follow that the state has the right to tax ? That depends upon the nature of the estate which is vested in the state. There is a title superior to the legal title. The equitable title is paramount to the legal title. The most which can be claimed for the state is that it holds the title as a trustee for the inhabitants of the township, and these lands are to be held in perpetuity for the support of the township school. Such is the line of decisions of the supreme court of the United States, followed by the courts of Alabama, Indiana, Missouri, Illinois and Ohio, and admitted in Jones v. Madison County, swpra. The duty of the state is to carry out the trust as created in letter and spirit. It cannot tax a trust estate committed to its keeping. The authorities appended to this brief are full on that subject. The constitutional prohibition against impairing contracts extends to and restricts the state from imposing illegal taxation. Murray v. Charleston, 6 Otto, 432. The contract between the state of Georgia and the United States and the state of Mississippi, under the cession by Georgia, the establishment of a territorial government, and the admission of Mississippi as a state into the union, was that every sixteenth section should be devoted exclusively to school purposes. When the state, as trustee, undertakes to impose the additional burden upon sixteenth sections, it violates the contract by which they are to be held exclusively for school purposes. Cooley’s Const. Lim., p. 331. The Indiana case holds it to be a contract, and that principle is maintained by the other cases referred to hereafter. The inhabitants of the township, by their original contract, reserved the right to re-enter all these city lots on default of the payment of the annual rental in advance. The sale for the taxes, under the city law, vests title in the purchaser at the tax sale, and thus the estate which the inhabitants of the township have in the sixteenth sections is destroyed, and that is a destruction of the constitutional compact, as shown above, and that cannot be done under the constitution of Mississippi or under the constitution of the United States. We concede the unlimited power of the legislature to tax when its right to taxation attaches, but here its right to tax this sixteenth section has never attached. Under the original contract, the lands were to be rented for the benefit of the township schools. Under that contract, it was to bear all the burden ever to be imposed, because the interest which the inhabitants had in the contract of lease was to realize the largest amount possible from the contract of lease for the benefit of the township schools. The proposition to tax involves four other diversions of this township school fund, namely, the city tax for general purposes, the county tax for general purposes, the state tax, and .an extra school tax. When the tax sale takes place, if no one else will become the purchaser, the state becomes the purchaser, and thus it becomes the owner of the trust fund, which, by contract, was to be held solely for the benefit of the inhabitants of the township. Diuuglierty v. Thompson, 9 S. W. Rep., 99, decided by the supreme court of Texas, on June 12, 1888, is, I think, conclusive of the proposition against the right of Mississippi to tax these sixteenth sections. The following is a list of the authorities on which I rely in support of the different positions assumed in this brief: 1 U. S. Stat., p. 550, sec. 6; Code 1857, p. 646; Alden’s Code, 1839, p. 20; 1 Story’s L. L., p. 361; 2 U. S. Stat., p. 229; Code 1857, p. 652; 2 U. S. Stat., p. 400; 2 U. S. Stat., pp. 479 and 548; 3 U. S. Stat., pp. 163, 228, 348, 680; 10 U. S. Stat., p. 6; Poindexter’s Code, p. 620; How. & Hutch. Code, p. 100; Alden & Y. Code, p. 378; Laws 1830, p. 9; Poindexter’s Code, p. 285; Laws 1839, p. 420; Laws 1846, p. 75; Hutch. Code, pp. 188, 521; Code 1871, §1679; Code 1880, §494; Code 1892, §3780; Fletcher’s case, 6 Cranch, p. 87; Hester's case, 36 Miss., p. 681; Bishop's case, 27 Miss., p. 371; Morton's case, 8 Smed. & M., p. 773; 27 Miss., p. 371; 3 U. S. Stat., 348; 13 Wall., pp. 92, 264; 33 U. S. Law. Ed., p. 687; 7 Smed. & M., p. 479; 4 Ala., p. 630; 5 Black., p. 455; 18 Mo., p. 313; 13 Mo., p. 112; 11 Ohio, p. 24; 9 Cranch, p. 292; lb., p. 43; 24 U. S. L. E., pp. 440, 321; 16 U.' S. L. E., p. 256; 16 IT. S. L. E., p. 259; 17 U. S. L. E., pp. 149-153; 21 IT. S. L. E., p. 373; 18 IT. S. L. E., p. 672; 13 U. S. L. E., p. 172; 22 IT. S. L. E., p. 805; 29 Wis., p. 351; 1 Black (IT. S.), p. 378; 22 U. S. L. E., p. 809; 54 Miss., p. 422; Cooley’s Con. Law, p. 332; 16 Wall., p. 23; Flint on Trusts, sec. 15; Perry on Trusts, sec. 41; 4 Kent, p. 427; Hill on Trustees, p. 466; 42 Miss., p. 194; 47 Miss., p. 187; 49 Miss., 518; 7 Smed. & M., p. 409; 38 Miss., p. 546; 14 Smed. & M., p. 80; 1 Cushman, p. 103; Code 1892, §§ 3815, 2568, 2563, 2564; Elint on Trustees, secs. 106, 168, 221; 7 Am. Dec., p. 718; Elint, secs. 3, 208, 222; 1 Perry, p. 20; Ordinance City Columbus, p. 94; 24 Miss., p. 386; 27 Miss., p. 517; Cooley on Taxation, pp. 80, 82; 20 IT. S. L. E., p. 536; Laws of Mississippi, 1821, 1830, 1832; 22 How. (U. S.), p. 56; 4 Otto, p. 792; 21 U. S. L. E., p. 447; 26 ü. S. L. E., p. 395; 103 U. S., p. 358; 3 Wall., p. 51; 4 Wheat., p. 518; 21 U. S. L. E., p: 447; 16 How., p. 369; 18 U. S. L. E., p. 314; 21 U. S. L. E., p. 447; 19 U. S. L. E., p. 495; 11 U. S. L. E., p. 529; 19 IT. S. L. E., p. 498; 26 U. S. L. E., p. 1128; Walker's case, 16 Wall., p. 314; Trammell v. Faught, 12 S. W. Rep., p. 317. The power of taxation is an incident of sovereignty, and is possessed by the government without being expressly conferred by the people. Everything to which the legislative power extends may be the subject of taxation, whether it be person or property, possession, franchises or privileges, occupation or right. Nothing bat express constitutional limitation upon legislative authority can exclude anything to which the authority extends from the grasp of the taxing power, if the legislature, in its discretion, shall select it for revenue purposes. And not only is the power unlimited as to subjects, but in its very nature it acknowledges no limits, and may be exercised to any extent which the government may find expedient. The judiciary .can afford no redress against taxation, so long as the legislature, in imposing it, shall keep within the limits of legislative authority and violate no express provision of the constitution. The necessity for imposing it addresses itself to legislative discretion, and it is or may be an urgent necessity, which will admit of no property or other conflicting right in the citizen while it remains unsatisfied. Cooley on Taxation (2d ed.), p. 4 et seq. It is undoubtedly true that the power of the legislature to determine the rate of taxation is limited only by its wise discretion, and may be extended so as to involve a complete confiscation of all the taxable property within the state,' if the payment of such a tax could be enforced. There would be no redress in the courts for such an abuse of power. Cooley’s Const. Lim. (6th ed.), pp. 587, 588. It is contended, however, by appellants that the sixteenth section is not subject to the taxing power, for the reason that it belongs to the United States government, and that the relation of the state to it is that of trustee, and that hence it is not taxable by the state nor its municipalities. The sixteenth section is part of the territory ceded by the state of- Georgia to the United States, to be held for the formation and establishment of schools. The act of cession will be found in code of 1867, p. 645 et seq. Under this act of cession, the title to this section passed to the United States, and, upon the formation of the state of Mississippi, passed to the state, and the title to it is now in the state of Mississippi. Oooper v. Roberts, 18 Howard (U. S.), 173; Beecher v. Wetherby, 5 Otto, 517; Jones v. Madison County, 72 Miss., 793. It-is a question, however, wholly immaterial to ns, where the title is located. The power to tax the leasehold (and it cannot be contended that more than that has been done) exists, even if the title to the land is in the United States. The question as to the right of the states to tax individual rights or estates in lands, the legal title to which is in the United States, has more frequently arisen in mining countries, and there we will find the question frequently arising. The unbroken authority is to the effect that it matters not that the United States holds title to the land, that any right of ownership, ■ any estate of the individual therein, is subject to the taxing power. Cooley on Taxation (2d ed.), 367, 368; lb., 393; State v. Moore, 12 Cal., 70; People v. Shearon, 30 Cal., 646; People v. Cohen, 31 Cal., 210; People v. Black Diamond Coal Co., 37 Cal., 54. If the state has the right to tax a hole in the ground, a mine upon land of the United States, when it, the mine, is owned by a private individual or corporation, the government owning the fee in the land, surely it has the right to tax a lease of the ground for ninety-nine years, renewable forever, which is, in effect, an absolute sale, if so desired by the holder. My research has failed to find a solitary case where any denial of the power to tax these school leases appears. Indeed, no one seems ever to have questioned the right to tax them. In Tram-mell v. Faught (Texas), 12 S. W. Rep., 317, the lessee of school lands did indeed question the right to tax his lease; but his contention was not that the state could not tax the leases, but that the state had not taxed the particular lease.