Trustees of Academy v. City Council

Simmons, Justice. The City Council of Augusta-sought to subject to taxation property held by the Trustees of the Academy of Richmond County under two separate trusts : (1) lands held for the use of the academy, under a trust created by the State; and (2) choses in action held under a trust created by the will of Richard Tubman for the erection of a poorhouse. Exemption was claimed as to both kinds of property, as to the lands because they are public property, held and used for a public purpose ; as to the choses in action because their situs for taxation is outside the corporate limits of the city. An injunction was prayed against the enforcement of the execution issued for the taxes claimed to be due on this property, and the case was heard upon an agreed statement of facts, which, together with the petition and answer, is set out, in substance, in the report prefixed to this opinion. The court below refused an injunction, and the petitioners excepted. 1. The trust under which the lands are held had its origin in the act of July 31st, 1783 (Marb. & Crawf. Dig. 132), by which the legislature established and endowed the academy afterwards designated as “The Academy of Richmond County”; this being done in conformity to the constitution of 1777, which provided 'that “schools shall be erected in each county and supported at the general expense of the State, as the legislature shall hereafter point out and direct.” (Marb. & Crawf. Dig. 12.) By this act, certain persons named therein as commissioners were directed to lay out lots from the public lands of the State in and near the town of Augusta, and to sell the same ; and the moneys arising therefrom, after defraying the expense of building a church, were vested in the commissioners as trustees, for — 644 — the erection and maintenance of an academy or seminary of learning, to be conducted under their supervision; and they were required to account yearly to the governor and executive council. Sections 4-7 of the act are as follows : “Sec. 4. And whereas, a seminary of learning is greatly necessary for the instruction of our youth, and ought to be one of the first objects of attention after the promotion of religion : Be it further enacted, that after the said commissioners have reserved one of the first lots for the building a church or house of worship to the Divine Being, by whose blessing the Independence of the' United States has been established, and a reserve of ten other principal lots for public uses, the moneys, arising from such sales, after defraying the charges of the building said church, shall be, and they hereby are, vested in the hands and power of said commissioners named as aforesaid, as trustees, for the purpose of carrying into execution the intentions of this law, and for erecting an academy or seminary of learning as aforesaid, their.heirs and successors in office forever, in trust for the sole use of said church and academy or seminary. “Sec. 5. And be it further enacted, that the said commissioners, on the sales and restrictions aforesaid being complied with, shall be, and they are hereby, authorized and empowered to give titles as amply and fully to such purchasers, as the State possibly could or might do, and in their name and the name of their successors in office, to receive such moneys, both principal and interest, arising from such sales, or the loan of any part thereof, and the same to lend out again at interest, or otherwise dispose of, as the said commissioners, or a majority, their successors or a majority of them, shall think most advantageous to the fund of the said church and academy or seminary. “Sec. 6. And be it further enacted, that the said com — 645 — missioners or trustees shall yearly, and every year, render a just and true account of the fund of said seminary, to his honor the governor and executive council for examination; and if found by them guilty of malpractice, such offending commissioner or commissioners shall be displaced and others appointed for that purpose in his or their room. “Sec. 7. And be it further enacted, that the said commissioners shall be, and they are hereby authorized and empowered to erect on one of the said lots, or purchase from the sales of the same, some spot convenient for that purpose, a building commodious and proper to answer the intentions of this act, as an academy or seminary, as aforesaid, and to enter into such contracts for erecting the same as may be thought most advantageous for the said fund by a majority of the said commissioners ; and further to procure and agree with proper masters and professors for the ruling the same, and to institute such by-laws, for the increasing the said fund and better governing the said seminary, as to the said commissioners may appear best adapted.” From time to time other acts were passed making further provision as to the support of the institution. One of these was the act of August 14th, 1786, which authorized “the trustees of the Richmond Academy” to lease out the commons of Augusta, the rent “to be considered as part of the funds of the said academy.” (Marb. & Orawf. Dig. 134.) And this was followed in 1810 by an act which, after reciting that the academy was in a flourishing condition and deserved the further patronage of the legislature, authorized the trustees, upon the expiration of the existing leases, to “lease out any part or the whole of the said common in lots for one or more years at their discretion, the rents . . to be considered as part of the funds of the said academy.” Some question having afterwards arisen between the — 646 — trustees of the academy and the City Council of Augusta as to their respective interests in the commons, a settlement was agreed upon, under the terms of which the trustees released to the city council their interest therein, with certain exceptions,- the city council agreeing to pay the trustees a certain sum annually, and after the sales of lots from the property should reach a certain amount, to divide equally the proceeds of subsequent sales; and this settlement was confirmed by the legislature. (Act of December 22,1834.) Subsequently a petition was filed to adjudicate questions growing out of this contract, and in January, 1891, a decree was made by the superior court of Richmond county, pursuant to which the unsold portions of the vacant land on the commons were partitioned between the city and the trustees, and the city council conveyed back to the trustees the land now assessed for taxation. The tax in question is for the year 1892. ITp to that time no tax had been assessed against the property. It is claimed on the part of the city that the property is not public but private, that the academy is conducted by the trustees as a private school and is not a part of the public .school system of the State or county; and that as the lands taxed ai’e separate from the tract on which the academy is situated and are used only as a means of income, they are not within the exemptions allowed by the constitution and granted by the statute of exemptions. (Code, §§5182, 798.) In view of the legislation to which we have referred, there can be no question as to the public character of this institution originally. The property vested in the trustees was public property and was committed to them for a public purpose. No private interest of any kind was acquired The beneficial interest was in the public, and the trustees were merely agents of the State for the administration of the fund and the management of the — 647 — institution. Since that time there has been no legislation changing the public character of the trust or parting with the control of the State over the institution or the fund connected with it. Mere non-interference with the control exercised by the trustees could not affect the rights of the State or divest the institution or the property of its public character. Nor is the institution conducted now, any more than it was at first, for any private purpose. It still subserves the public •end for which it was created — the education of the people; and its purpose is none the less public because; of its being conducted independently of the general public school system of the State or county. The right of the State as to property held in this manner was under consideration by this court in the case of Dart et al. v. Houston et al., 22 Ga. 506. It was there complained by the plaintiffs in error that the court below erred in deciding that the Glynn County Academy, an institution endowed in the same manner as the Richmond County Academy, was a public corporation, and that the trus-,tees had no beneficial interest in the fund, but only a naked power which the State could resume at pleasure. This court affirmed the judgment, and held that the funds of the academy were public property and that the control of the institution was in the State. As to the-same institution it was said, in the ease of The Board of Education of Glynn Co. v. Mayor, etc. of Brunswick, 72 Ga. 353: “It is not and never was a private or corporate, but a public eleemosynary establishment.” See also the opinion of Nisbet, T., in Cleaveland v. Stewart, 3 Ga. 291. These lands, therefore, are clearly exempt under the-statute (Code, §798), which declares that “ all public property” shall be exempt from taxation. It is immaterial whether the property is used merely for income or not. The proviso at the end of the statute and of — 648 — the constitutional provision on this subject (Code, §5182), which excludes property “ used for pui'poses of private or corporate profit or income,” does not" apply to public property. As was said in the case of The Trustees of the Academy of Richmond County v. Bohler, tax-collector, 80 Ga. 168, “ The terms ‘ private or corporate’ are employed in contradistinction to public. . . . Public property is not taxed, whether income be derived from it or not.” See also on this subject, Auditor General v. Regents of University of Michigan, 10 Lawy. Rep. Annot. 376, and notes, and Regents v. Hamilton, 28 Kans. 378, opinion by Brewer, J. And see Cooley, Taxation, 172-174. 2. That part of the property taxed which was held under the will of Richard Tubman as a part of the poorhouse fund, consisted of notes and accounts. In the absence of statutory provisions to the contrary, choses in action follow the person of the creditor; and where the legal title is in a trustee, he is regarded as the owner, and they are subject to be taxed at his domicile. City Council v. Dunbar, 50 Ga. 392, 393; Wright, compt. gen., v. Southwestern R. Co., 64 Ga. 799; Cooley, Tax. 375; Burroughs, Tax. 225; Jacobs’ Law of Domicile, §51. Here some of the trustees resided in the city, and the others outside, in the county. Our statutes make no provision for such a case as this, nor is there any decision of this court on the subject. We think, however, a just and proper rule under such circumstances is that furnished by the decisions of other courts in similar cases, which are here cited. In Mayor, etc. of Baltimore, v. Stirling, 29 Md. 48, it was decided that “ where property held in trust by trustees, who reside, one in Baltimore city and the other in Baltimore county, is taxable, the same should be taxed in equal proportion as of the place of residence of each trustee.” This ruling was followed in the case of the — 649 — Appeal Tax Court of Baltimore City v. Gill, 50 Md. 396. There, as here, there was no statute which expressly provided for such a case. In State of Ohio, ex rel. Harkness, v. Matthews, 10 Oh. St. 431, it was held: “ Where three executors of an estate reside in the same township, two of them within the corporate limits of a village, the other without such limits, and who have possession, in law, of taxable moneys, credits, bonds and stocks of the estate, the same must, in view of the equities and analogies of the statute (which does not expressly provide for such a case), be entered for taxation, one third as of the place of residence of each executor.” To the same effect, see Hardy v. Inhabitants of Yarmouth, 6 Allen, 278. To hold that under such circumstances the whole of the property of this kind held by the trustees could be taxed by each municipal corporation within whose limits one of their number might reside, might render the property subject to be taxed several times over; and unless expressly authorized by statute such taxation will not be upheld. The fact on the one hand that the president and treasurer of the board resided in the city ■and there kept the evidences of debt upon which the tax was assessed, or on the other hand that a majority of the trustees resided outside of the city, in the county, and that the meetings of the board for transacting the business of this trust were held outside of the city at an office on the premises selected for the site of the poorhouse, did not render the one place or the other the situs ,of the whole of this property for taxation. The debts, as we have seen, had no situs of their own; being intangible property, they followed the creditors. And the creditors, under the decision of this court in City Council of Augusta v. Walton, ex’r, 77 Ga. 518(b), 527, were the trustees personally and as tenants in common, and not as an incorporated body. It was there — 650 — adjudicated that the trust under which this indebtedness is held “ devolved upon the persons who might be the ■trustees of the Richmond County Academy, and not upon the corporation of which they were trustees.” Consequently, as to this property, they could acquire no corporate domicile, and the fact that they met or had their office in a particular place, or the fact that the president and treasurer resided in a certain locality and there kept the evidences of debt, did not operate to give them one. The debts had their situs where the trustees resided or were domiciled individually, and were taxable at no other place. We hold, therefore, that while the city could properly tax the pro rata shares of those trustees who resided within its corporate limits, it was not authorized to tax the shares of those who did not reside there. Judgment reversed.