Oliver Wendell Holmes, Jr.

“ When the law creates an obligation outside of the expressed intent of the parties, it must consider all the circumstances, and the effect with reference to them. In ordinary cases the whole property is taxed, and which party shall bear the burden is not a matter of public concern. But when the state makes the lease, the supposed obligation would be an obligation not to tax,-a restriction of public import not lightly to be imposed. ”

“ The concession of the court was that in private contracts, 'in the absence of a covenant or condition to the contrary, it is an implied covenant in every lease that the lessor shall pay all taxes and assessments levied on the leased land during the term.' Stated in this form, the rule appears to be a rule of policy to which special considerations may set a limit. But it might be suggested that if the state should expressly covenant against such assessments, it could not impair the obligation of its contract by a subsequent law. ”

“ It is urged that to deny the state's obligation discriminates unconstitutionally against this class of lessees, since all others are free from the burden. But that is not true. Whether landlord or tenant shall pay a tax is a matter of private arrangement, and the practice one way or the other has no bearing on the matter. The argument from inequality really works the other way. ”