Payment of taxes on account of property otherwise liable to
taxation can only be avoided by clear proof of a valid contract of
exemption from such payment.
The validity of such a contract presupposes a good consideration
therefor. In this case, the ordinances exempting from taxation were
only exemptions for the year in which the ordinance was passed, and
the same rule applies to all the exempting ordinances.
The views of the Supreme Court of Georgia in this case are
sustained by this Court.
The plaintiffs in error commenced this proceeding in the
Superior Court of the State of Georgia, Chatham County, against the
mayor, etc., of the City of Savannah and its city marshal, to
enjoin the collection of taxes upon certain real estate in that
city, of which they claim to be lessees from the city, and they
allege that the taxes assessed upon such real estate are illegal;
they also seek to recover from the city the amount of taxes
theretofore paid by them on such real estate, under protest. The
trial of the case resulted in a judgment for the city, which was,
on appeal to the supreme court of the state, affirmed, and the
plaintiffs have brought the case here on writ of error.
They claim that the levying and collection of the taxes referred
to, under an ordinance of the city providing therefor, passed in
1878, constitute an impairment of the obligations of a contract
between the city and the predecessors in title of the plaintiffs in
error, made at the time the real estate was purchased, by which
contract it was agreed that, on the payment of a certain annual
sum, called "ground rent," to the city by the holders of the real
estate, it was to be forever exempt from all city taxation.
Upon the trial of the action, these facts appeared: prior to
Page 181 U. S. 532
1790, the City of Savannah owned certain lots which were called
"common lots," and on September 28 of that year, the common council
passed an ordinance for disposing of a portion of them. Each lot,
by the provisions of the ordinance, was to be valued by the city,
and then put up for sale at public outcry, and the highest bidder,
over and including the original valuation, was to have the lot, and
if he chose to pay the whole amount of his bid in cash, he was to
have a deed conveying it to him in fee simple, or he might, instead
of making the whole cash payment, agree with the city to pay in
cash the balance of his bid over to valuation, called the increase
money, and also to pay a ground rent of five percent upon the
amount of valuation, payable quarterly, and in that event the lot
might be retained in his hands or in the hands of his heirs and
assigns forever on payment of such ground rent. The ordinance
further provided that at any time thereafter, the purchaser or his
heirs or assigns should have the power to pay the original
valuation money, with what rent might be due up to that time, in
full discharge and extinguishment of the ground rent, and he or
they should thereupon be entitled to the land in fee simple. The
city was also to give a deed by way of bargain and sale to each
purchaser of lots which should vest an absolute or conditional
estate in the purchaser, according to the circumstances -- that is
to say, an absolute one if the valuation and increase money should
be paid down, or a conditional one if the valuation money should
not be paid down, but which should become absolute if and when the
valuation money should at any future time be paid into the
treasury, which payment should be acknowledged by the mayor and a
majority of the aldermen, under the seal of the city and attested
by the city treasurer, to be indorsed on the deed. The ordinance
continued:
"And the said conditional estates shall amount to this, that the
use and occupation of the premises are forever secured to the
purchaser and others claiming under him or her on payment of the
ground rent, but on failure therein for the space of fifteen days
after the same shall become due, the said premises are to revert to
the corporation, who shall immediately thereafter possess the power
of reentry, and having by means of
Page 181 U. S. 533
their proper officers exercised such power and given a notice
thereof in writing posted on the premises, the lot or lots so
entered upon, with all improvements thereon, are to be considered
at the expiration of ten days thereafter as absolutely revested in
the corporation, and the conditional estate therein determined, to
all intents and purposes, as fully as if the same had not been
bargained for or purchased, any sale or encumbrance or other act,
made or suffered by the purchaser or purchasers or others under
him, her, or them, to the contrary thereof in anywise
notwithstanding."
Pursuant to such ordinance, the lands were sold and the
purchasers of many of the lots elected to hold their purchases on
ground rent payable quarterly, as stated in the ordinance. Deeds
were thereupon executed on the part of the city and also were
signed by the respective purchasers. Lands have been sold from time
to time under ordinances of substantially the same character and
containing language in substance the same up to 1872, since which
time conditional sales have been abandoned.
The deeds contained a provision that,
"in consideration of the rent to be paid, and of the several
covenants and agreements to be performed, [mayor and aldermen] have
bargained and sold, and by these presents do bargain and sell, unto
the said _____ _____ all that lot of land [describing it] . . .
unto the said _____ _____ executors, administrators, and assigns,
forever, on this express condition. Nevertheless, that _____ _____
the said _____ _____ executors and administrators and assigns"
shall pay rent as covenanted, and
"in case of failure herein for the space of twenty days after
any of the said quarterly payments shall become due, that then the
said lot and premises shall revert to the corporation of the said
city, who shall immediately thereafter possess the power of
reentry, and having, by means of their proper officers, exercised
such power and given a notice thereof in writing, posted on the
promises, the said lot, with all improvements thereon, shall be
considered at the expiration of ten days thereafter, as absolutely
revested in the corporation, and the estate by these presents
created determined to all intents and purposes as fully
Page 181 U. S. 534
as the same had not been bargained for or purchased, any sale or
encumbrance, or other act made or suffered by the said _____ _____
executors, administrators, or assigns, or others under him or them,
to the contrary thereof in anywise notwithstanding."
The purchaser also covenanted to pay the annual rent and that,
in case of failure, the city should have the lawful right of
reentry as already provided for.
The deed also contained the following provision:
"And it is hereby declared to be the true intent and meaning of
these presents, and all parties to the same, that, on payment of
the said ground rent at the times and after the manner hereinbefore
directed, the said _____ _____ heirs, executors, administrators,
and assigns, shall and may from time to time, and at all times
hereafter, peaceably and quietly have, hold, use, occupy, possess,
and enjoy the said lot and premises, and receive and take the
rents, issues, and profits thereof, and of every part thereof, to
_____ and _____ own use, absolutely, without the let, suit,
trouble, eviction or denial of the said corporation or of any
person whatsoever acting under them or by virtue of their
authority, subject only to such assessments and burthens as shall
be in common with other lot holders in the said city."
It was also provided in the deed that the purchaser, his heirs,
executors, or administrators, or assigns, might at any time pay
into the city treasury the valuation money and the rent then due,
in full discharge and extinguishment of such rent, and in that case
there should be an acknowledgment of such payment under the seal of
the city, signed by the mayor and a majority of the aldermen and
attested by the city clerk, and indorsed on the deed,
"which shall then and from thenceforth vest an absolute estate,
in fee simple, of and in the said lot and premises, in the said
_____ _____ heirs and assigns to _____ and their only proper use
and behoof forever."
It is admitted that the same character of deed has been executed
for lots sold under other sales since 1790.
Extracts from the minutes of the proceedings of the common
council of the city in regard to meetings of that body in 1790
Page 181 U. S. 535
and thereafter were put in evidence, from which it appeared that
the ordinance for the sale of these lots was induced by the fact
that the expenses of the city government were more than its
revenues, and these sales were provided for in the hope that the
condition of the city's finances might thereby be improved. There
was also put in evidence a notice of sale of lots, advertised in
the Georgia Gazette of June 13, 1799, in which were specified the
terms contained in the ordinance for the sale of the lots, and the
advertisement contained the statement that the
"purchasers are at liberty to take a lease to him or her or his
or her heirs and assigns forever of the lots so purchased at a
ground rent of five percent on the valuation,"
etc.
An ordinance for laying off into city lots what was called the
"Springfield Plantation," and providing for the sale of the same,
passed in the year 1851, was also put in evidence, which contained
substantially the same plan as that provided for in the ordinance
of September 28, 1790, except that the conditional sale was to be
for twenty-four years only. Although the lots mentioned in the
petition of the plaintiffs in error in this case are not situated
within the Springfield Plantation, the ordinance and the deed
thereunder regarding those lots were put in evidence for the
purpose of comparison with the ordinance of 1790, and the deeds
executed thereunder, in order to show that the same language,
except as to the term, was used in the instrument which granted a
lease for but twenty-four years as was used in the other granting a
perpetual term. There were also ordinances of February 27 and July
31, 1851, put in evidence, the former of which permitted one of two
or more tenants in common or joint tenants to pay his proportion of
the purchase money, and, upon such payment, he should receive a
deed in fee, and any lessee of a city lot might, on application,
have it divided into two or more parts and receive a lease for the
same, and the other ordinance provided for increasing the depth of
certain lots at an increased rent therefor, payable at the same
time that the regular ground rents on these lots fell due.
A report of the mayor in 1854, to the common council, was put in
evidence in which was a statement of the resources of
Page 181 U. S. 536
the City of Savannah, among which were designated 643 lots in 22
wards "under lease;" also two reports of the mayor, the one on
October 31, 1855, and the other a year later, both containing
similar statements as to the number of lots belonging to the city,
which were "under lease," and similar reports from and including
1857, up to and including 1877, with the exception of the years
1864 and 1865, when no report was made by the mayors of the city.
This class of evidence was offered for the purpose of showing that
the title conveyed to the purchasers was under a lease, and that it
was not a conditional estate subject to be terminated by a breach
of a condition subsequent, and that the city recognized the
conveyance as a lease, and not in truth as a conditional
estate.
On April 7, 1806, an ordinance was passed by the city council
for raising a fund for the support of a "watch" in the city, which
provided that a tax should be levied on property therein,
"including all lots held by lease from the corporation," but on
November 24, 1806, an ordinance was passed providing
"that so much of the first section of the aforesaid ordinance as
imposes a tax on lots held by lease from the corporation . . . be
and the same is hereby repealed."
It was admitted that every annual tax ordinance to raise revenue
for the city passed by the mayor and aldermen from the above date,
November 24, 1806, up to and including the ordinance of January 22,
1857, used the words "excepting lots held by lease from the
corporation." On December 11, 1857, the tax ordinance provided as
follows:
"SEC. 4. The following real property shall be exempt from
taxation, to-wit: each lot of land held at the time of the passage
of this ordinance upon the payment of ground rent to the mayor and
aldermen, of the class commonly called city lots."
The annual report of the mayor for the year 1871 was also put in
evidence, in which the following language occurs:
"It is not known to the foreign public that a very large part of
the real estate in the city consists of lots sold on condition of
the payment of ground rent, and are therefore not the subject of
taxation, and are not included in the assessments."
It was also admitted that lots known as "ground rent lots"
Page 181 U. S. 537
were never in fact assessed for taxation from 1790 until some
time after the passage of the ordinance of May 29, 1878, and that
those lots were omitted from the assessment books made in 1807 and
every year thereafter down to the assessment book made out in the
year 1878, and that in fact no city taxes were ever levied on them
until after the resolution of the common council of November 17,
1889, under which they have been for the first time assessed for
city taxation for the year 1890.
It was also admitted that no taxes were in fact assessed or
levied under the ordinance of April 7, 1806, above mentioned. The
holders of these city lots have always paid state and county taxes,
and street improvements, and assessments for sidewalks, and all
other assessments and burdens common to lot owners in the said
city, except city taxes. A report of the finance committee made in
1872 and signed by the chairman was also put in evidence, in which
it was stated as follows:
"The reason why city lots are not taxed beyond the ground rent
is that the city is understood to have bound itself not to tax
them."
"The ordinance of 1790, which was the first to provide for the
sale of lots on these terms, contains a stipulation that the
purchaser of such a lot, and all claiming under him, shall have the
use, etc., upon paying the ground rent. This ordinance has been
followed either in terms or substance by all succeeding ordinances
providing for such sale."
"It is of no moment that the stipulation does not appear in the
deeds; the ordinances contain the real terms of the contracts and
control the deeds whenever the latter depart from them or conflict
with them. And as the city has never taxed such lots, it is
difficult to resist the conclusion that such was the design when
the ordinance of 1790 was framed."
The ordinance of May 29, 1878, provided that--
"Every person and corporation owning real property in said city,
including improvements, shall pay a tax upon said property of two
and one-half percent of the value thereof, including ground rent
lots, except on such property as may be exempt from taxation under
the laws of this state. "
Page 181 U. S. 538
The city is given full power of taxation by state legislation.
Code of 1863, sec. 4756; Code of 1882, sec. 4847.
Oral evidence was also given from which it appeared that, on
sales of the property under various ordinances of the same nature
as that of 1790, the city marshal by whom the sales were made
"would announce that, so long as the lots were held under ground
rent plan, they would be free from city taxes. These announcements
were made under authority of the committee. And often when the
bidding would lag, the marshal would remind the bystanders that
there was only a twenty percent cash payment required, and that
there was no city taxes, but only an annual ground rent."
One of the witnesses, who was himself at the time of some of the
sales an alderman between 1858 and 1869, stated:
"I, as a city official, in good faith, have made the statement
and directed the marshal so to announce when making sales of city
lots under my supervision as chairman of the committee on public
sales and city lots, and under the common and universal
construction of the city deeds, the absence of any reservation of a
right to tax the lots sold under ground rent has always been
construed as an agreement not to tax."
Another witness said that he would not say that the City of
Savannah ever at any time formally agreed not to tax ground rent
lots; he did not know of any official action taken thereon by the
city.
The above are substantially the facts upon which the contention
of the plaintiffs in error that their lots are exempt from city
taxation is founded. There is no evidence that any of them bought
their lots at a sale where an announcement of exemption was made,
or that they purchased them under the belief that they were forever
legally exempt from all city taxation.
They also claim that the deed itself, irrespective of the above
testimony, necessarily and, by its terms, implies a perpetual
exemption from all city taxation upon the lots so long as the
ground rent is paid.
Page 181 U. S. 539
MR. JUSTICE PECKHAM, after making the above statement of facts,
delivered the opinion of the Court.
The contention on the part of the plaintiffs in error is that,
in the exercise of the taxing power granted it by the legislature,
the common council of the city adopted the ordinance of May, 1878,
and in providing therein for the taxation of the leased lots, it
thereby impaired the obligation of the contract existing between
the city and the holders of that class of property, among whom are
the plaintiffs in error, and the ordinance is therefore to that
extent void. This contract, they say, is evidenced first by the
ordinance of 1790 and the deeds executed in pursuance of its
provisions; also by the minutes of the common council of the city
and by subsequent proceedings of the common council; by the
statements of the city officials at the time when some of the sales
of the property were made; by the reports of the officials, mayors
of the city and committees of the common council; by the actual
omission for a hundred years -- from 1790 to 1890 -- to tax these
lots; also by ordinances similar to that of 1700 for the sale of
lots, passed subsequently to that year, and by the deeds executed
pursuant to such ordinances, which, it is admitted, were is
substance similar to those executed under the ordinance of
1790.
Taking all the foregoing evidence into consideration, including
the ordinance of 1790 and the deeds executed under it, we are
unable to see that any contract of exemption has been proved. The
payment of taxes on account of property otherwise liable to
taxation can only be avoided by clear proof of a valid contract of
exemption from such payment, and the validity of such contract
presupposes a good consideration therefor. If the property be in
its nature taxable, the contract exempting it from taxation must,
as we have said, be clearly proved. It will not be inferred from
facts which do not lead irresistibly and necessarily to the
existence of the contract. The facts proved must show either a
contract expressed in terms or else it must be implied from facts
which leave no room for doubt
Page 181 U. S. 540
that such was the intention of the parties and that a valid
consideration existed for the contract. If there be any doubt on
these matters, the contract has not been proven and the exemption
does not exist. This has been many times decided by this Court.
Tucker v.
Ferguson, 22 Wall. 527,
89 U. S. 573;
Bank of Commerce v. Tennessee, 161 U.
S. 134,
161 U. S. 146,
and cases cited.
The different annual ordinances for taxation passed by the
common council, exempting from taxation thereunder the leased lots,
were but exemptions for the year in which the ordinance was passed,
and there can be no plausible claim urged that they, one or all,
constituted any contract for exemption beyond the time of each
specific ordinance. The statements of officials when lots were sold
that they were not taxable did not constitute a contract. The lots
had not in fact been taxed at the time of these statements, and had
been annually exempted from taxation, and the statements amounted
to no more than opinions of officials as to what would be done in
the future. There is no evidence that they had the least power to
speak for or to bind the corporation in this behalf. The reports of
committees that the lots were not taxable are of the same character
-- merely the opinions of officials upon a question of law, and not
in the nature of a contract.
Upon this question of proof of a contract we quote what was said
by the Supreme Court of Georgia in this case upon the last review,
through Mr. Justice Lewis:
"Was such a contract shown in the present case? With the view of
determining whether or not there was, we have naturally looked to
the official action taken by the governing body of the city, either
in its ordinances or resolutions providing for the plan upon which
the sales were to be made and the consequences and effect thereof
or in its deed of conveyance to the purchaser. Upon examining the
various ordinances set out in the record, we fail to find any
reference whatever to the matter of exempting this property from
taxation, and instead of finding any stipulation to that effect in
the form of deed invariably made by the city to the various
purchasers, there appears a clause directly negativing the idea
that the city ever intended to grant a perpetual exemption of this
property
Page 181 U. S. 541
from the burden of taxation. In each instance, it was recited in
the deed given to the purchaser that the conveyance of the city was
made and the rights of the purchaser thereunder were conferred
'subject only to such assessments and burthens as shall be in
common with other lot holders in the said city.' The term
'assessment' is often used as a synonym of 'taxes.' Indeed, one of
the definitions of this term given by Webster is 'a tax.' But even
if this word, as used in the deed, does not necessarily refer to
taxation, the word 'burthen,' which is also therein employed, is
certainly sufficiently comprehensive to include municipal taxes.
Taken all together, the language adopted is clearly broad enough to
embrace every burden then existing or which might thereafter be
lawfully imposed upon other landowners in the city. The deed was
signed by both parties. Here, then, is a specific written agreement
made between the parties to the contract relating to the sale of
property by the city, whereby it is expressly declared that the
property shall be held by the purchaser (and, of course, by his
assigns) subject to any burden which might be borne in common by
the holders of other lots in the city, necessarily including that
of municipal taxation."
"Plaintiffs in error contend, however, that the contract they
insist upon is evidenced sufficiently by the conduct of the
municipal officers at the time the sales by the city took place. It
was shown that, when lots were put up for sale, the city marshal
publicly announced that they would not be subject to city taxes,
that this was generally understood by the city at large, and that,
for nearly a hundred years after these sales first began, the
municipal authorities failed to tax the lands, and in various
ordinances afterwards passed these ground rent lands were exempted.
The effect of these ordinances was merely to grant an exemption
from taxes for the particular years to which they related. Mere
nonuser by a government of its power to levy a tax, it matters not
for how long it continued, can never be construed into a forfeiture
of the power. This question was directly passed upon by this court
when the case was here before. As to this point, Chief Justice
Bleckley said:"
"Whatever the expectation of purchasers or the unbroken practice
of
Page 181 U. S. 542
the city hitherto may have been, the mandate of the Constitution
of 1877 is to tax all property save that expressly exempted by the
legislature under constitutional authority, if any is taxed. That
this mandate may have heretofore been disregarded is no reason why
it should not be obeyed now."
"There is an absolute want of any testimony in the record
showing that the mayor and aldermen of the City of Savannah, by
ordinance, resolution, or official action of any sort, ever
authorized the marshal to make the public announcement above
referred to in offering for sale the city's property. . . . Besides
all this, we fail to find in the record any testimony showing that
these particular plaintiffs or any of their predecessors in title
bought any of the lots in question under the impression that the
same would be exempt from taxes. Indeed, it is not shown that any
of these lots were purchased at a sale at which the marshal made
such an announcement as that above referred to. The evidence simply
goes to the extent of showing what was his custom in this
particular and what was the general impression of the public in
regard to the matter. For aught that appears, those who actually
bought at these sales were fully advised as to the truth with
reference thereto, if not prior to the sale at least before they
complied with their bids and accepted the city's conveyance of the
lots purchased by them."
We think the opinion correctly states the facts and the law
relating to them.
Looking specially at the contents of the deeds executed under
the ordinance of 1790, which were signed by both parties, the city
and the purchasers, we find that the provision under which the
purchasers took the title and by which they were thereafter
peaceably and quietly to have possession of the lots was, by
positive agreement, "subject to all such assessments and burthens
as might be in common with other lot holders in the city."
Plaintiffs in error endeavor to give to the word "assessments,"
contained in the deeds from the city, its more modern meaning of a
peculiar kind of tax levied upon lands specially benefited by
improvements which are to be paid for by such assessments.
Page 181 U. S. 543
The fact is notorious that, a century ago, special assessments
of that kind upon the lands benefited were not usual in this
country, and at that time, the word was used as synonymous with
"rates or taxes," generally. Thus, in a statute passed by the
Legislature of Georgia in the year 1787, to be found in Watkins'
Digest of the Laws of Georgia, 1755-1790 at 354, it was provided in
the fourth section, in speaking of the City of Savannah and the
hamlets thereof,
"that it shall and may be lawful for the said wardens, or a
majority of them, yearly and every year, or oftener if occasion may
require, to make, lay, and assess one or more rate or rates,
assessment or assessments, upon all or every person or persons who
do or shall inhabit, hold, use or occupy, possess or enjoy any lot,
ground, house, or place, . . . within the limits of the Town of
Savannah or hamlets as aforesaid, for raising such sum or sums of
money as the said wardens, or a majority of them, shall in their
discretion judge necessary for and towards carrying this act into
execution, and in case of refusal or neglect to pay such rate and
assessment, the same shall be levied and recovered in manner as
hereinafter directed."
Here is an instance of the use of the word "assessment" at that
time in relation to this very city as descriptive of a general tax
upon the owners of property within the limits of the city, and to
be expended for the general purposes of the corporation. We agree
with Mr. Justice Lewis in his construction of this language
contained in the deed.
It is further objected in behalf of the plaintiffs in error that
the condition that the land was to be subject to assessments, etc.,
was inserted in the deeds without the authority of the common
council, and that the ordinance of 1790 providing for the sale of
lots contained no such provision. We think the deeds are
substantially in accord with that ordinance, and there is nothing
therein inconsistent or at war with the insertion of such provision
in the deed; it was but providing for one of the details connected
with the sale, and there was an implied power under the ordinance
to do so. In addition to that, the purchasers took their deeds with
such language contained in them, and, having themselves signed the
deeds, they personally agreed to
Page 181 U. S. 544
the condition, and took their titles subject thereto. We do not
by this mean to intimate that the title would not have been equally
subject to the condition contained in the deed by accepting the
deed while not signing it, but, in addition to the acceptance,
there is the affirmative act of signing the instrument, and we
think the language subjecting the lots to the same assessments and
burthens as were laid in common with other lot holders created a
valid agreement, and made the lands subject to the same kind of
taxation as is levied upon other lots in the city.
The covenant on the part of the city that the purchasers should
have peaceable and quiet possession, use, occupation, and enjoyment
of the lots upon payment of the rent as it became due is in nowise
violated by the taxation of the lots in the hands of the purchasers
or their assigns. A covenant for quiet enjoyment would not under
these circumstances include an exemption from taxation. The
purchasers of these lots became to all intents and purposes their
owners, as they had the right to their possession, use, and
occupation forever upon payment of the rent, and they could assign
or devise the same, and their assignees or devisees would take good
title, and their heirs would also take in case there was no
assignment or devise. They could also, at their discretion and on
the payment of the money agreed upon, become owners in fee.
Although the city retained the right of reentry for nonpayment
of rent, the character of the title conveyed to the purchasers and
their heirs and assigns was not thereby so changed from an absolute
fee that the property actually conveyed could not be assessed for
the payment of city taxes. The interest of the purchasers was
capable of assessment for taxation, and their right was in
substance that of ownership. It bears no resemblance to the case of
an ordinary lease for years between landlord and tenant.
In reference to this subject, Mr. Chief Justice Bleckley, in his
opinion in this case on its first appearance in the Supreme Court
of Georgia, 87 Ga. 397, at 399, said:
"The value of property consists in its use, and he who owns the
use forever, though it be on condition subsequent, is the true
Page 181 U. S. 545
owner of the property for the time being. This holds equally of
a city lot or of all the land in the world. Where taxation is
ad valorem, values are the ultimate objects of taxation,
and they to whom the values belong should pay the taxes. Land sold
or by a contract of bargain and sale demised forever subject to a
perpetual rent is taxable as corporeal property, and, in private
hands, the rent also is taxable as an incorporeal hereditament. The
tax on the former is chargeable to the purchaser or perpetual
tenant, and on the latter to the owner of the rent. The corporeal
property in such case is at the direct risk of the purchaser; he
alone sustains the losses of depreciation in value, and he alone
takes the benefit of appreciation. The vendor risks only the fixed
rent or the fixed purchase money, and neither of these will ever
become more or less by anything which may happen to the premises.
Only his security, not his property, will be affected thereby. It
is to be assumed that the whole contract between the parties will
be observed, not broken, and their true relation to the property is
to be determined on that assumption. Possession of real estate
attended with an indefeasible right to occupy in perpetuity, and
also with an indefeasible right to be clothed with the fee upon the
voluntary payment of a fixed sum as purchase money, will constitute
the purchaser the substantial owner of the property. So long as his
possession, supplemented with these rights, continues, he is not a
mere lessee, but a purchaser admitted into possession on the faith
of his contract of purchase. Such were the contracts involved in
the present case, and under them the purchasers have the actual
possession and use of the premises, with the right to hold forever
on condition of paying up the purchase money whenever they please,
and until that time, an annual ground rent due by quarterly
installments, the amount of which is fixed by contract and is the
equivalent of interest at a moderate rate per annum on the unpaid
purchase money. In all essential respects, so far as liability for
taxes is concerned, these purchasers are in the position of
ordinary purchasers in possession under a bond for title, and these
last are chargeable with accruing taxes on lands so held.
National Bank v. Danforth, 80 Ga.
Page 181 U. S. 546
55. Not an iota of beneficial ownership in the city lots now in
question abides in the municipality. The city but retained a
qualified and wholly unproductive title as security for the
purchase money, and, until that shall be paid, as security also for
the annually accruing compensation under the name of ground rents
in lieu of interest on that money. If the municipal government held
all the values in the city as trustee for the owners, or as
security for purchase money, these values would be nonetheless
taxable for that reason. The Constitution of the state requires
that taxes on property shall be
ad valorem, and that, when
any part is taxed, all shall be taxed which is subject for the time
being to the taxing power in the given locality. This rule is
without exception. It prevails in Savannah.
Savannah v.
Weed, 84 Ga. 683. The property in question is situate in that
city, and as already said, its beneficial ownership is not in the
municipality, but in those who long ago purchased it from the city
or who hold under such purchasers by succession to their title.
Relatively to the question of taxation, it makes no substantial
difference whether the estate or property of beneficial owners be
classed as realty or personalty -- whatever property of either kind
belongs to them is taxable
ad valorem. That the so-called
ground rent lots, as long as the conditions of sale are unbroken,
are the property of the purchasers, follows from what was decided
by this court in
Laurence v. Savannah, 71 Ga. 392, and
that case shows that, even after condition broken, the limit of the
city's rights would generally be to have all arrearages cleared and
discharged, the surplus proceeds realized by a sale of the property
being payable to the real owner. Our reasons for the conclusion at
which we have arrived need not be further elaborated. The
constitution is imperative that property is to be taxed
ad
valorem. The foundation principle of such a system is that
those who own and enjoy values are to pay the taxes. The real
owners of the money which these lots would now sell for on the
market are the persons whom we have designated as owners, and it is
upon the cash market value that taxes are assessable. If that value
is any less, on account of the subjection of the property to
ground
Page 181 U. S. 547
rents or unpaid purchase money, than it otherwise would be, that
fact would no doubt be taken into consideration in making the
assessment. The market value, whatever that may be, is the proper
basis."
"2. There was no error, either of practice or decision, in
denying the injunction. Whatever the expectation of the purchasers
or the unbroken practice of the city hitherto may have been, the
mandate of the Constitution of 1877 is to tax all property, save
that expressly exempted by the legislature under constitutional
authority, if any is taxed. That this mandate may have heretofore
been disregarded is no reason why it should not be obeyed now."
We think these views are a correct exposition of the law
applicable herein.
We find no element of estoppel in the case. As has been said,
the statements of officials made at the time some of the sales may
have been effected were nothing more than expressions of opinion,
there being no evidence of any agreement on the part of the city or
its duly authorized agents to exempt perpetually or at all these
lots from taxation for city purposes. The ordinances and the deeds
show the transaction and there is no estoppel arising from the
language there used. On the contrary, there is evidence of an
agreement to pay such taxes.
Such an estate as was created by these deeds does not, in our
opinion, come under the general rule which imposes on a landlord,
when the lease is silent upon the subject, the payment of taxes
chargeable upon the premises during the term of the lease. Where
the purchaser holds real property for a term which may be in
perpetuity upon the condition of paying a certain ground rent, and
where he is entitled to a deed conveying the fee at any time on the
payment of certain money, he is more nearly described as an owner
than he is as a lessee of such property, and he would be liable to
pay the taxes imposed upon the property upon the principle which is
set forth in
Sanderson v. Scranton, 105 Pa. 469, and
Delaware &c. Railroad Company v. Sanderson, 109 Pa.
583. It is not necessary to decide this question, however, as the
specific language
Page 181 U. S. 548
of the deed places the burden of paying the taxes on the
purchaser and his grantees.
The judgment of the Supreme Court of Georgia was right, and must
therefore be
Affirmed.
