dissenting:
Until the filing of the majority opinion in these consolidated cases this court had consistently maintained the integrity of the 1855 guarantee by the State of Illinois to Northwestern University “That all property of whatever kind or description belonging to or owned by said corporation shall be forever free from taxation for any and all purposes.” (1855 Ill. Laws 483, sec. 4.) (Northwestern University v. People ex rel. Miller (1875), 80 Ill. 333, rev’d (1879), 99 U.S. 309, 25 L. Ed. 387; In re Assessment of Northwestern University (1903), 206 Ill. 64; Northwestern University v. Hanberg (1908), 237 Ill. 185; People ex rel. County Collector v. Northwestern University (1972), 51 Ill. 2d 131; cert. denied (1972), 409 U.S. 852, 34 L. Ed. 2d 95, 93 S. Ct. 65; Dee-El Garage, Inc. v. Korzen (1972), 53 Ill. 2d 1.) The "net effect of today’s opinion, as I understand it, is to nullify that exemption as to property owned by Northwestern and leased to others even though the income therefrom is used for educational purposes.
Northwestern’s tax exemption is one of the few remaining broad, subsidy-type exemptions possible only under our 1848 constitution. Its history was described in some detail in People ex rel. County Collector v. Northwestern University (1972), 51 Ill. 2d 131, 134-36:
“*** Viewed from today’s perspective, the charter tax exemption of Northwestern University is highly unusual. But as of the date when the tax exemption was enacted as a means of inducing donations to the institution, the tax exemption was not at all unusual. The public interest in higher education was recognized in the early days of the State, but at that time the recognition took the form of special charters authorizing the incorporation of particular educational institutions. The charters contained tax exemptions, the terms of which varied, apparently in accordance with the inducement thought necessary to bring about contributions to establish and maintain the institutions. Some of the variations are set forth in this court’s opinion in People ex rel. Gill v. Lake Forest University (1937), 367 Ill. 103.
Prior to the adoption of the constitution of 1870, a large number of corporate charters had been granted by the legislature to private educational institutions. There were more than 80 such charters which contained some provision for tax exemption. Only a relatively small number of these institutions have survived. ***
With the adoption of the constitution of 1870 the situation changed dramatically. That constitution prohibited the legislature from granting to any corporation any special privilege (art. IV, sec. 22), and with respect to exemption from taxation provided that such ‘property as may be used exclusively for *** school *** purposes, may be exempted from taxation; but such exemption shall be only by general law.’ (Art. IX, sec. 3.) And by general law the legislature exempted only that property of schools which was used exclusively for school purposes, and not leased or otherwise used with a view to profit.
Educational institutions established subsequent to 1870 therefore do not enjoy the same kind of tax exemption that is enjoyed by Northwestern University. That fact, however, does not impair the validity of Northwestern’s charter provision. As this court stated in 1908: ‘The changed conditions with which the university is now surrounded cannot affect the meaning of the amendment passed in 1855. Doubtless the legislature did not foresee the enormous growth of the city of Chicago, the increase in the value of property, the growth in the wealth, and the work, the wants and necessities of the university. The university was not then regarded as an incubus on the community. Schools of higher learning were scarce, and the legislature which granted this exemption to Northwestern University granted to various other schools perpetual exemption from taxation of all the property they should ever acquire. (Private Laws of 1855, pp. 380, 384, 503, 511, 513.) Even now the legislature appropriates yearly for the University of Illinois, from money raised by taxation, sums vastly greater than those released to the Northwestern University through this exemption.’ Northwestern University v. Hanberg (1908), 237 Ill. 185, 191-2.”
Our earlier cases establish, as the majority concedes, that Northwestern’s tax exemption constitutes a contract between the State and the university, the obligation of which cannot be impaired by subsequent legislation imposing taxes upon its property, whether that property be directly and physically used for school purposes or leased to others and the proceeds of the leases used for those purposes. (Miller; Hanberg; People ex rel. County Collector v. Northwestern University.) In fact, this court’s original interpretation narrowly limiting the scope of the exemption to that property used directly and physically for school purposes was reversed by the United States Supreme Court. (Northwestern University v. People ex rel. Miller (1875), 80 Ill. 333, rev’d (1879), 99 U.S. 309, 25 L. Ed. 387.) In its opinion the court stressed: “The purpose of a college or university is to give youth an education. The money which comes from the sale or rent of land dedicated to that object aids this purpose.” (99 U.S. 309, 324, 25 L. Ed. 387, 390.) The court then held the leasing of its land to others did not destroy Northwestern’s exemption.
In discussing the effect of the taxes here in question defendants concede that sustaining the tax will result in a reduction in Northwestern’s income from its leased property by compelling the university, depending on the interpretation of its lease clauses, to reimburse its lessees for taxes paid, forgo its right to the additional rent it now receives in lieu of taxes, or accept a lower rental when its leases must be renegotiated. The allegations by plaintiffs and Northwestern that these immediate or ultimate losses of income resulting from imposition of the tax will exceed $1,000,000 are not contradicted.
It is important in the consideration of this case to note that the leasehold tax in question is a substantial one levied and computed under sections 20(2) and 26 of the Revenue Act. The former provides that “Each taxable leasehold estate shall be valued at its fair cash value.” (Ill. Rev. Stat. 1973, ch. 120, par. 501(2).) In People ex rel. Korzen v. American Airlines, Inc. (1967), 39 Ill. 2d 11, this court considered the method to be used in computing the fair cash value of a leasehold taxable under section 26. The tax had there been levied upon the leasehold interest of American in hangar facilities and a site at Chicago-owned O’Hare Airport. Since the property owned by the city was exempt, the airline contended its leasehold was exempt from the tax under the earlier opinion of this court in Illinois State Toll Highway Com. v. Korzen (1965), 32 Ill. 2d 338. This court held, however, that Toll Highway was not controlling since in that case the burden of the tax would have fallen upon the tax-exempt lessor in the form of reduced rentals whereas in American Airlines the likelihood of appreciably reduced rental income to the tax-exempt lessor was “extremely remote.” (39 Ill. 2d 11, 15.) Consequently, the court held American’s leasehold interest taxable. In determining the proper basis for valuing that interest the court expressly rejected the argument that the tax base should be the incremental value — the amount which a third party would be willing to pay the lessee, in addition to assuming the rental obligation, for an assignment of the lease. It is entirely clear from American Airlines (39 Ill. 2d 11, 18-19) and Dee-El Garage (53 Ill. 2d 1, 5) that the leasehold tax to be levied under sections 20 and 26 of the Revenue Act is not to be measured merely by incremental or potential profit value. Rather, the fair cash value of that leasehold is determined by multiplying the current rental value of the property by the present value of an annual payment of one dollar during the remaining term of the lease. While, obviously, the fair cash value upon which the tax is to be assessed will depend on the unexpired term of the lease, the very real nature of the resulting burden to the lessor emanating from reduced rentals is demonstrated by American Airlines and by the tax bills in this case.
Northwestern’s lease with Pepsi-Cola expressly requires payment by the lessee of “tax-lieu rent” — an amount, agreed upon by the parties at four-year intervals, representing the approximate amount which would be payable in taxes were the property not exempt. For 1974 the amount of “tax-lieu rent” claimed by Northwestern was $87,150. The tax bill received by Pepsi in August of that year, for 1973 taxes, was $83,498.10. Quite clearly demonstrated is the fact that taxation of this leasehold interest is, for all practical purposes, the equivalent of taxing Northwestern upon its exempt fee interest, thus, as to this leased property, effectively nullifying its exemption. The university will no longer receive “tax-lieu rent” from Pepsi-Cola, and Nabisco will deduct its taxes from rental payments. This subversion of Northwestern’s exemption is, in my judgment, a clear impairment of its charter contract in violation of section 10 of article I of the Constitution of the United States.
In nullifying, as to leased property, the benefits of Northwestern’s exemption the majority relies upon Jetton v. University of the South (1908), 208 U.S. 489, 52 L. Ed. 584, 28 S. Ct. 375. In that case the Supreme Court upheld a tax upon the leasehold interest of a lessee of land owned by the University of the South under a charter exempting that land from taxation “as long as said lands belong to said university.” Such authority as Jetton might have been, however, was severely diluted by the later case of Wright v. Central of Georgia Ry. Co. (1915), 236 U.S. 674, 59 L. Ed. 781, 35 S. Ct. 471, in which the majority of that court struck down a tax upon the lessee of railroad property exempted by the State of Georgia from taxation. The diminution in Jetton’s stature is further emphasized since the dissenting opinion in Wright relied upon it, and by the further fact that in Central of Georgia Ry. Co. v. Wright (1919), 248 U.S. 525, 527, 63 L. Ed. 401, 404, 39 S. Ct. 181 (the second Central of Georgia case), the court adhered to its original view, distinguishing Jetton as controlled by “exceptional facts and language.” People v. International Salt Co. (1908), 233 Ill. 223, also relied upon in the majority opinion, construes without discussion an earlier leasehold-taxing statute to permit a tax upon the leasehold interest in otherwise exempt property. That opinion contains no indication as to the manner in which the value of the lessee’s interest was to be determined, and it may have been assessed upon an incremental value which the plaintiffs, Northwestern and I agree would be taxable here. Consequently, I do not regard International Salt as persuasive here. The majority also views the presence of tax-protection clauses in plaintiffs’ leases as indicating their expectation of taxation of their leasehold interest, but the presence of such clauses seems to me only the normal action of any prudent lessee. And, in any event, the existence for more than a century of statutory provisions similar to section 26 (1853 Ill. Laws 39, sec. 5) without their application in the manner now attempted would seem to be some indication of the opinion of taxing authorities regarding their applicability to Northwestern’s lessees.
In my judgment the other authorities cited by defendants and the majority are not persuasive, for they are largely concerned with either the “use” type of exemption incorporated in our 1870 constitution limiting the scope of an exemption to property used exclusively for the exempt purpose, or with “governmental” exemptions in which the exemption attaches only so long as the property is used by agencies of the government. In both of those instances, of course, a lease of the land for a nonexempt use violates the “exclusive use” requirement. The opinions which do not fall in either of these categories simply do not discuss the exemption issue.
Some leasehold interests in otherwise exempt property may, of course, be taxed separate and apart from the exempt fee, as American Airlines and. our earlier opinions clearly establish. But those cases have not involved exemptions of the character present here. The thrust of the earlier decisions by this court and the Supreme Court in the prior Northwestern cases has been that the university enjoys one of the few remaining broad exemptions from property taxation of a type possible only under our pre-1870 constitution. That exemption was originally granted by a young and growing State as part of its policy to encourage the establishment and maintenance by private persons of needed institutions of higher education. As a direct result Northwestern now receives from its leased properties and devotes to its educational purposes substantial amounts of additional rent approximating the amount of taxes which would be payable were it not for the charter exemption. Sustaining the leasehold tax on the lessee’s interests in that property, as American Airlines holds the value of that interest must be computed, will significantly reduce Northwestern’s rental income. Considering the fact that the leasehold tax, as assessed, closely parallels the amount of general real estate taxes collectible on nonexempt property, the practical result is to shift to Northwestern the burden of the tax in disregard of our Toll Highway decision. It is also apparent that in the situation Lake Forest finds itself — with the rent from the leased property only slightly more than the leasehold taxes — its exemption has virtually been converted to a “use” exemption so far as its value to the college is concerned — a result which the Supreme Court in Miller expressly precluded. Likewise the inevitable and significant reduction in rental income impairs Northwestern’s charter contract in what I believe to be a violation of section 10 of article I of the Constitution of the United States. As Mr. Justice Holmes wrote in the first Central of Georgia case, “the protection of the lessee being necessary in order to make good that promised to the lessor” (236 U.S. 674, 680, 59 L. Ed. 781, 785, 35 S. Ct. 471, 472), I would hold that the section 26 leasehold tax, as this court has held it must be computed, cannot be imposed upon the plaintiffs herein.
MR. JUSTICE RYAN joins in this dissent.