Oliver Wendell Holmes, Jr.

“ We cannot suppose that the legislature meant either to practise a cunning deception or to make a futile grant. Therefore, we are unable to read the charter as making the exemption vain by reserving to the state an unlimited right to impose upon the lessee all that it had renounced as against the lessor. For that was to give notice to the parties, if they were supposed to know the law, that the exemption would be lost if the income was earned in one of the contemplated ways ”

“ Under a system which tolerates such incongruities as the taxing of the entire value of the land to the owner of the equity of redemption, while the interest of the mortgagee is separately taxed, it would seem to be difficult to find ground for a constitutional objection to the treatment of the holder of a perpetual lease as virtual owner. ”

“ But in 1862, the Augusta & Savannah Railroad and in 1869 the Southwestern Railroad made leases of their respective roads and franchises to the Central Railroad & Banking Company of Georgia during the continuance of the charters of the lessors. In 1892 the property of the lessee went into the hands of a receiver, and the lessors, being allowed an election by the court, elected to allow the property to remain in his hands, which it did until a sale of the same and purchase, under a reorganization plan, by the appellee, the Central of Georgia Railway Company. ”

“ Code of 1910, §§ 3685, 3687, 3690, 3691; and it is argued that these leases created estates of such a nature that the lessee was practically in the position of owner subject to a rent charge, and was taxable for the land. We agree that technical distinctions are to be avoided as far as may be in matters of taxation, and we are not curious to insist upon the differences between a lease, having about eighty-five years to run, that may, not must, be renewed in perpetuity, and a fee subject to a rent charge. ”

“ Provided always, that said company may, when they see fit, rent or farm out all or any part of their exclusive right of transportation of freight, or conveyance of passengers, with the privilege, to any individual or individuals, or other company, and for such term as may be agreed upon,'-it being added that the company, in the exercise of the right of transportation, or the persons or company 'so renting from said company . ”

“ I do not find a word in the statutes of Georgia which confers any immunity from the taxing power upon this appellee. The question relates to its interest, not to that of the original companies. What that interest or property may be, and how it is to be assessed, is another question. ”

“ The injunction runs only against taxing the plaintiff as owner. We discuss nothing but the question before us. For the reasons that we have given we are of opinion that the taxes cannot be collected on the present executions. The court cannot take the place of the taxing power. ”