#### Nahum Hardy *versus*The Inhabitants of Waltham.

*Jan.*1st, 1829, *in Suffolk*

By the colonial law of 1650, all lands, tenements, or revenues of Harvard College, not exceeding the value of 5002. per annum, are exempted from taxation Held, that under this act the lands first acquired by the college before their annual income amounted to 5002., would never be liable to taxation so long as they were owned by the college ; and that they were equally exempt from taxation in the hands of a lessee, as if in the immediate possession of the college.

Whether under a provision, that “all persons having the management of the estates of Harvard College shall not be assessed for the same,5’ tenants holding estates under leases from the college would be exempted from taxation, *queere.*

Trespass. On a case stated by the parties, it appeared that the plaintiff was assessed by the assessors of Waltham for 1826, to the town and county tax, 24 dollars, 71 cents, and to the ministerial tax, 17 dollars 36 cents. This assessment except 14 dollars, was made on a farm in Waltham in the plaintiff’s possession under a lease from the President and Fellows of Harvard College. The President and Fellows had been seised in fee of the farm ever since April 4, 1738, and no assessment for it until that just mentioned, had ever been made against the Corporation, or any tenant of the farm. This farm was not included in the last general valuation ; nor in any previous valuation or invoice of property made for the purpose of taxation ; and it was leased to the plaintiff on the understanding that it would not be taxed during the continuance of the lease. The President and Fellows of Harvard College possess other real estate, besides this farm, which is under their personal management and improvement, the income of which now exceeds 500Z.

The assessment, with a warrant to collect it, was committed to the collector of Waltham, who after demanding the tax of the plaintiff, took a carriage by distress and sold it for the payment of the tax and incidental expenses, which amounted to 33 dollars 69 cents, for which sum judgment is to be given for the plaintiff, if the tax is considered by the Court to be illegal ; but if legal, the plaintiff is to become nonsuit.

*Hoar*relied on the colony ordinance of 1650, which provides “ that all the lands, tenements, and hereditaments, houses, or revenues within this jurisdiction, to the aforesaid presiden* *114or college appertaining, not exceeding the value of five hundred pounds *per*annum, shall be from henceforth freed from all civil impositions, taxes, and rates.” Anc. Chart. 80. At the time this farm came to the college, the annua! income of its estates did not amount to five hundred pounds *per annum.*The Corporation now owns property of a larger annual income ; but it is the subsequently acquired property which is liable to be taxed. All the existing rights of the college are expressly protected by the State Constitution, *c.*5, § 1. Even if there had been no provision in the charter of 1650, this land would be exempted from taxation by prescription. It has never been the policy of the State to tax .property given for the purpose of education.

*I.*Fiske, contra, said,

that prescription or usage did not apply to taxation, which depends on statutes. The construction given to the law by one set of assessors is not binding on their successors. Since the constitution was adopted, the college has become possessed of property yielding a greater annual income than 500Z. ; and property yielding that amount is now in fact exempted from taxation. This farm is not exempted by the recent tax acts. It might be contended that under *St.*1820, c. 64, § 1, this farm was not liable to be taxed, but this tax was under a different law, the annual tax act, *St.*1821, c. 107. The sixth section of this act, it is true, provides that “ all persons who have the management of the estates of Harvard and Williams Colleges shall not be assessed for the same.” The object of the legislature, in this provision, was merely to exempt from taxes land of which the colleges had the annual profits. The college has no interest in the profits of this estate which was under lease. The same construction has been put on the same provision in a previous act. *Harvard College*v. Kettell, 16 Mass. R. 205.

Hoar, in reply,

said that the construction put upon the provision of the tax act in *Harvard College*v. Kettell, was extrajudicial and not required by the question decided in the case. The object of the legislature in this provision was to favor the college ; which receives the same benefit from having the land exempted from taxation, whether it is in the immediate occupation of the college or leased ; for if the land is taxed, the *115tax must come out of the lessor, whose rent will be diminished to the amount of the tax.

The opinion of the Court was afterwards drawn up by

Parker C. J.

By the colonial act of 1650, which is considered as "the original charter of Harvard College, taken in connexion with previous acts of 1636, 1640, 1642, it is ordered by the court and the authority thereof, that all the lands, tenements and hereditaments, houses or revenues, within this jurisdiction, to the president or college appertaining, not exceeding the value of 500Z. *per*annum, shall be from thenceforth freed from all civil impositions, rates and taxes.

This grant or charter was irrepealable in its nature, and it began to operate on the property then belonging to the college, and such as should afterwards be acquired until their real estate should exceed in value 500Z. a year ; after which all real estate acquired by the college would be liable to taxation, unless exempted by subsequent legislative acts.

This original grant is expressly confirmed by the chapter of the constitution respecting Harvard University, so that the legislature has not constitutional power to tax the property belonging to the institution within the limits of the grant. It is an immunity which is protected by the very words of the constitution.

This immunity operated upon the estate for which the plaintiff was assessed, for by the terms of the grant, lands were to be exempted, and without doubt, at the time when this farm was acquired by the college, their income from real estate fell much short of 500Z. *per annum.*

Real estate subsequently acquired would be subject to legislative disposition in regard to taxation, after the exemption provided for has been secured. Whether such estates are ab solutely exempted by the late tax acts, or the tenants are taxable for them, is a question which does not come up in this case.

The fact agreed, that the farm in question has never been included in the general valuation, or in any invoice, and has never been assessed in any tax, goes very stróngly to show the construction which has been put upon the original charter to the college

*116The remarks made in the case of *Harvard College*v. *Kettell,*16 Mass. R. 207, are applicable to estates not within the original exemption of the charter. It is intimated there, but not decided, that the tenants of such estate by lease might he subject to taxation ; but whether they are or not, must depend entirely upon the acts under which such assessment shall be made.

The plaintiff must have judgment according to the igreement of the oar ties.