to possession its old and. proteot its inhabitants. against fire as beat it' ' . A reference will be ml:lde wthe master to ascertain and report the fair value of thew-ater furnifShed :to the city by the Water Company; and when the city shall pay into oourt, for the bondholders' committee, the amount thUl;1' ascertained , a decreElwill be entered annulling the contract, the city's title to the old mains.
TAYLOR 'It. ROBINSON, (J)ilflrict Oourt,
Under Rev. St. Tel[. art. 4691, providing that who.ever holds state lands under a contract of purchase, or under a lease for a term of three years, shall be considered. for the purposes of taxation, the owner of the same. one who contracts with a state to build for it a capitol, and, in payment, is given poslession of lands. under a contract which provides that he is to become the owner thereof in installments as the work progresses. the land being platted for that purpose; and which also provides that if he abandon his contract be is to pay rent upon that portion of the land which he has not then earned, is properly assessed before such abandonment, upon the unearned lands, as a holder under a contract of purchase.
HELD UNDEltCOl,'fTRACT Oll' PuRCHASB.
In Equity. On bill for injunction. The complainant, Abner Taylor, seeks to enjoin the dp-fendant, J. M. Robinson, sheriff and tax collector of Oldham county, Tex., from collecting taxes assessed against him upon certain state lands which he bolds under a contract of purchase. Rayland, Robertson & Coke, for complainant. J. S. Hogy, Atty. Gen., and R. H. Harrison. Asst. Atty. Gen., for defendant. .
McCoRMICK, J. The constitution of this state, art. t3, § 1, provides that "taxation shall be equal and uniform. All property in this state, whether owned by natural persons, or corporations, other than municipal, shall be taxed in proportion to its value: * * * provided, that two hundred and fifty dollars worth of household and kitchen furniture, belonging to eaoh family in this state, shall be exempt from taxation. * The legislature may ,by general laws, exempt from Seo. 2. taxation public property used for public purposes; actual places of religious worship; places of burial not held for private or corporate profit; all buildings used exclusively and owned by persons or associations of persons for Bchool purposes, (and the necessary furniture of all schools;) and institutions of purely public charity. And all laws exempting property from taxation other than the property above mentioned shall be void." Article 4691, Rev. St. Tex., provides: "Property held under a. lease for a term of three years or more, or held under a contract for the
TAYLOB ". ROBINSON.
purchl;lse thereof,belonging to this state, * * * shall be considered, for all purposes of taxation, as the property of the person so holding the same." On the 18th day of January, 1882, one Matthias Schnell contracted with the state of Texas to build for said state a capitol building described in .said contract, and to pay the sum of $20,000 to said state to reimburse the state for the incidental expenses theretofore incurred, chargeable to the account of the lands reserved for the capitol building, and to receive therefor said capitol lands, in certain installments, as the work progressed. This contract, agreeably to its terms, and with the consent or acquiescence of the proper state authorities, was assigned, and came in due· course of such assignment, before the 25th day of July, 1885, to be held by the complainant. This contract contained no express provision as to the possession and use of said capitol lands prior to their being patented to the contractor under said contract. The lands had been surveyed and designated by plats, numbers, metes, and bounds, etc., and the counties named in which the survt:lys respectively were situated. There appears to have been a question as to the right of the contractor to use these capitol lands (3,000,000 acres) prior to their being patented to him. On the 25th day of July, 1885, a supplemental contract was entered into by the proper state authorities and complainant, by which, among other things, his right to use said lands and all of them (3,000,000 acres) from that date was fully recognized. This supplemental contract was in two parts, one relating to changes in the material and construction of the building, and the other to the holding of the capitol lands by the contractor. The one part contains this provision: ..It is expresly agreed and understood by and between the parties hereto that the lease of even date herewith, executed by the of Texas, through its proper officers, and givinK to the capitol contractor the absolute right of possession to the capitol lands, upon the conditions contained therein, is hereby made a part of this contract, as funyand expressly as if the same had been at length herein set forth, reference being thereto made for further particulars." The other part contains these provisions: "Said Taylor [complainant] is to pay six cents per acre per annum for said land, and is to execute a good and sufficient bond payable to the governor of the state of Texas, or to his successors in olfice. for the payment of said rental. If said Taylor or his assigns completes the building of said capitol according to contract. then no rent Whatever is to be paid for said lands, said lands being then the propetty of said Taylor or his assigns I free from any claim on the part of the state for rent, as though this agreement had not been made. If said Taylor abandon bis contract, or the same be terminated, before the completion of said building. then he is to pay rent at the rate above mentioned for all lands which may not then have been earned by bim." So much of said capitol lands as are situated in Oldham county, and as had not been patented to complainant on the 1st day of January, 1886 and 1887, respectively, have been assessed for taxes as the property of complainant for those years; said assessment amounting in the aggregate to the sum of $9,464.69, which the defendant, as the bill alleges, is about to collect or threatening to collect by seizure and sale ofcomplaillant's
property. There is, substantially, no dispute as to the facts, and the; question is not one of irregular t>r excessive assessment, (for relief against which, if such ground existed, this court would probably not be the proper tribunal,) but it is whether on the said 1st day of January, 1886 and 1887 ,the complainant had any taxable property in said landsj and it would seem that under the constitution of this state that question resolves itself into the question whether on the dates named the complainant had any property in said lands. But waiving this broader view of the question, which has been presented, and ably argued, and well supported by authority, in the printed brief submitted by the attorney general and the assistant attorney general of the state on behalf of the defendant, I will notice briefly the positions taken in the bill and earnestly pressed in the brief of complainant's solicitors. As stated in the brief these are: First. The complainant did not on January I, 1886, or January 1, 1887, hold the unearned lands in Oldham county under a contract of purchase, within the meaning of article 4691, Rev. St. Tex. "Second. The complainant did not at either of said dates hold said lands, within the meaning of article 4691, under s. lease for a term of three years or more." The state of Texas owns a great many sections of land, separated from the public domain and set apart for a permanent public school fund, and for other public charities. There have been, and are still, laws providing for the sale of these lands on long time, and for leasing such as are not sold for longer or shorter terms on conditions as to reserved rent and other particulars mentioned in the statutes. The section of the state constitutionappropriating 3,000,000 acres of the public domain for the purpose of erecting a new state capitol, provided that said lands should be sold under the direction of the legislature, and that the legislature shall pass "suitable laws to carry this section into effect." The sixteenth legislature did pass laws for carrying this provision into effect, under which the lands were surveyed into leagues, (wherever practicable,) which were numbered and platted, and carefully described by fixed corners, metes and bounds, character of soil and water, and other features affecting value. These the capitol commissioners, under direction and with approval of the capitol board, were authorized to sell for money, or to contract to an accepted bidder for the erection of the capitol building, (as was donej) but no mention is made of any authority to lease all or any portion of the capitol lands in any act of the legislature that I have beenllble to find. There appears to have been authority hl the counties to lease certain lands belonging to said counties for school purposes. And on the 12th April, 1883, (page 89, Sess. Acts,) provision was made for leasing certain of the lands set "apart for the benefit of the common school, university, the lunatic, blind, deaf and dumh, and orphan asylum fundsj" and amended provisionE\ have since been made in reference to these lands, all requiring some rental (and generally fixing a minimum) to be reserved. The complainant insists that he did not hold these lands under a lease for a term of three years or more, for that before the expiration of three from the 25th day of July, 1885, he had earned said lands under his contract, and had received patents for