Osborne v. Humphrey

7 Conn. 335

Opinion

Peters, J.

The case presents two questions. 1. Was this land exempt from taxation, by the act of 1702 ? 2. Was it made liable, by the act of 1821 ? By the statute of 1702, it is provided, “ That all such lands, tenements and hereditaments, and other estates, that either formerly have been, or hereafter shall be given and granted, either by the General Assembly of this colony, or by any town, village or particular person or persons, for the maintenance of the ministry of the gospel, in any part of this colony, or school of learning, or for the relief of poor people,'or for any other public and charitable use, shall forever remain and be continued to the use or uses to which such lands, See. have been or shall be given and granted, according to the true intent and meaning of the grantors, and to no other use whatsoever, and also be exempted out of the general list of estates, and free from the payment of rates.” Stat.p. 66. revis. 1702. — p. 108. revis. 1750. — p. 111. — revis. 1784. — p. 252, 3. ed. 1796. — p. 433. ed. 1808. The land in question is within the words of the statute, and the appropriation is within the intention of the legislature. It was given and granted for the maintenance of the ministry of the gospel. This case presents the precise question recently decided, by this Court, in Atwater v. Woodbridge, 6 Conn. Rep. 223. wherein it was unanimously holden, that a fund appropriated to the support of the gospel ministry previous to the act of 1821, was not thereby made liable to taxation.

But the defendants contend, that this grant to Simsbury was before 1702, and so not within the act. This, however, is a mere gratis dictum. In the first place, the fact does not appear in the case. Secondly, the statute is retrospective as well as prospective. The words are : “ All such estates that either formerly have been, or hereafter shall be given and granted,” &c. This is not like other retrospective laws, destroying a vested right, but creating and securing one.

It is also said, that the title of the plaintiff, and of those un-jer whom he holds, is a sale or grant, and not a lease, because there is no rent reserved. But a lease may be for money paid, or rent reserved, and must be of a less term than the lessor has in in the premises. I Swift’s Dig. 131.

Again, it is said, that the plaintiff has a vested taxable interest. He certainly has a vested interest; and a valuable part of it, is, its exemption from taxation; and this he obtained for a valuable consideration.

It is emphatically asked, why should not the plaintiff be taxed to the extent of his buildings ? My answer is, the buildings are attached to the land, which the legislature, having the power and the right, have been pleased to exempt from taxation, for the public good, and the special benefit of an institution, which our ancestors considered as the main pillar of civil government.

In the revised statutes of 1821, tit. 56. sec. 3. (pp. 301.485.) thó legislature have been pleased to omit, and, I think, repeal an exemption from taxation of all estates given in pios usus, which had been handed down through every revision from 1702 ; and by a subsequent act, (tit. 100. sec. 2. p. 446. revis. 1821.) to direct, that all lands, &c. previously granted for public or pipus uses, which had been leased for terms not then expired, at rents merely nominal, should be valued and assessed, &c. These provisions embrace the land in question, and present the main point in this case, viz. Have the legislature a constitutional right and power to repeal this exemption, and direct this assessment ? This Court have said No ! And a higher tribunal have said the same.

In Atwater v. Woodbridge, already cited, which runs on all fours with this case, the only difference being, that the estate in that case was personal and in this real, Brainard, J., in giving the unanimous opinion of this Court, thus emphatically speaks : “I cannot, for a moment, believe, that the legislature ever intended to interfere with the rights given and acquired under the first statute. But if they did, I will, with deference, but with boldness, say, they had no constitutional power to affect them. It appears to me, that property given under the statute, so long as it is applied to the uses designated, must forever retain the rights and privileges attached to it, at the time of the grant; that the government made a contract with all such persons as might be disposed to give their prop erty to these religious purposes and charitable uses, that it should forever be exempted from taxation ; and that a right in the grantees, donees, devisees or legatees became vested, which no subsequent legislature could divest.”

In 1812, a similar case, upon similar principles, was decided, by the supreme court of the United States. In 1758, the legislature of New-Jersey and the Delaware Indians agreed to exchange lands. The Indians were to cede all their lands to the province ; and the legislature were to purchase and cede to the Indians other lands, and by statute declared, that the lands so purchased and ceded to the Indians should not thereafter be subject to taxation. In virtue of this act, the convention with the Indians was executed. In 1801, the Indians obtained an act of the legislature authorizing a sale of their lands ; and in 1803, the commissioner under the act conveyed the lands to the plaintiffs. In 1804, the legislature repealed that part of the act of 1758, which exempted the lands from taxation. The lands were then assessed, and the taxes demanded ; for which an action was brought; and the highest court in the state decided, that the repealing act was valid, and the lands liable to taxation. This decision, on a writ of error in the supreme court of the United States, was reversed. In delivering their unanimous opinion, Marshall, Ch. J., said : “ The question is narrowed to the enquiry, whether in the case stated, a contract existed, and whether that contract is violated, by the act of 1804. Every requisite to the formation of a contract is found in the proceedings between the colony of New-Jersey and the Indians. The subject was a a purchase, on the part of the government, of extensive claims of the Indians, the extinguishment of which would quiet the title to a large portion of the province. A proposition to this effect is made ; the terms stipulated; the consideration agreed upon, which is a tract of land with the privilege of exemption from taxation ; and then, in consideration of the arrangement previously made, one of which this act of Assembly is stated to be, the Indians execute their deed of cession. This is certainly a contract. The privilege, though for the benefit of the Indians, is annexed, by the terms which create it, to the land itself, not to their persons. It is for their advantage that it should be annexed to the land, because, in the event of a sale, on which alone the question could become material, the value would be enhanced by it.” — “ The land has been sold with the assent of the state, with all its privileges and immunities. The purchaser succeeds, with the assent of the state, to all the rights of the Indians. He stands, with respect to this land, in their place, and claims the benefit of their contract. This contract is certainly impaired, by a law, which would annul this essential part of it.” In formally pronouncing judgment, the Court declare, that the repealing act “ is repugnant to the constitution of the United States, in as much as it impairs the obligation of a contract, and is, on that account, void.” New-Jersey v. Wilson, 7 Cranch 164.

fn these opinions I entirely concur. The cases cannot be distinguished from the case before us. I therefore advise, that judgment be rendered for the plaintiff.

Hosmer, Ch. J. and Bissell, J., were of the same opinion. Daggett, J. conceiving himself interested in the question, and Williams, J. having been of counsel in the cause, gave no opinion.

Judgment to be given for plaintiff.