Pursuant to rehearing granted, the Court has reconsidered the record in this cause in the light of the briefs, with the result that a majority of the Court, viz: Mr. Chief Justice THOMAS,, Mr. Chief Justice BUFORD, Mr. Justice ADAMS, and Mr. Justice BARNS, have reached the conclusion that our judgment of February 28th, 1947, should be adhered to.
However, Mr. Justice BUFORD and Mr. Justice BARNS have the view that our opinion of February 28, 1947, prepared by Mr. Justice THOMAS, should be extended to include the following observations:
Appellant's bill recited that the leases and extension of leases attached had been made and no documentary tax has been paid thereon but that the Comptroller, defendant-appellee, was attempting to exact taxes thereon pursuant to Sections
The consideration for the leases attached to the bill according to the terms therein expressed were as follows:
"WITNESSETH: That the lessor in consideration of the rental to be paid in cash and the covenants to be performed by the lessee, has leased and demised and by these presents, does lease and demise to the lessee, that certain store room, etc."
"WITNESSETH: That in consideration of the covenants hereinafter set forth said lessor has and by these presents does extend the term of that certain lease, etc., . . ." *Page 613
"WITNESSETH: That the lessor in consideration of the rental to be paid in cash and the covenants to be performed by the lessee, has leased and demised and by these presents, does lease and demise to the lessee, that certain store, etc . . ."
The operative and relevant words of the exercise of the option to renew one of such leases were as follows:
". . . We hereby give due notice that we are now exercising the right, privilege and option of renewing said lease and do hereby renew the said lease for said store for the further term of two years beginning September 1st 1943, as in said lease set forth . . ."
This Court has already determined in this appeal that leases as a class come within the terms of Section
"201.02. Tax on Deeds and other instruments relating tolands, etc. On deeds, instruments or writings whereby any lands, tenements or other realty, or any interest therein, shall be granted, assigned, transferred, or otherwise conveyed to or vested in the purchaser, or any other person by his direction, on each one hundred dollars of the consideration
therefor the tax shall be ten cents; . . ." Sec.
It is an accepted statutory construction principle that laws imposing taxes should be liberally construed for the taxpayers. Section
It appears from the terms of the leases here involved that the considerations passing to the lessors were the lease's promises in futuro to pay rent a future payment for a future use. Rent to be paid in the future under circumstances here is not a debt until it becomes either due or owing; and when the leases were executed no rent was either due or owing.
When taxes are to be levied according to monetary consideration, the law contemplates that such tax should be confined to considerations which have a reasonably determinable pecuniary value. The sole considerations passing to the lessors for the leases were executory promises for executory considerations. Such leases were not taxable under Sec.
As a majority of the Court neither approves nor dissents from these enunciations at this time (because they do not think the present record presents ground for determination of the question therein discussed), such enunciations are not binding on this Court or the lower court.
Opinion and judgment of February 28th, 1947, is adhered to.
So ordered.
THOMAS, C.J., BUFORD, ADAMS, and BARNS, JJ., concur.
TERRELL and CHAPMAN, JJ., dissent.
