Millsaps College v. City of Jackson

• Decision Date: 06 October 1924
• Docket Number: 24040
• Citation: 101 So. 574,136 Miss. 795
• Court: Mississippi Supreme Court
• Parties: MILLSAPS COLLEGE v. CITY OF JACKSON. [*]

101 So. 574

136 Miss. 795

MILLSAPS COLLEGE v. CITY OF JACKSON. ^[*]

No. 24040

Supreme Court of Mississippi

October 6, 1924

Suggestion of Error Overruled Nov. 17, 1924.

(En Banc.) Suggestion of Error Overruled Nov. 17, 1924.

1. COLLEGES AND UNIVERSITIES. "Endowment" defined.

The endowment of a college, unless the term is qualified by other words or phrases, is commonly understood as including all property, real or personal, given to the college for its permanent support.

2 TAXATION. Exemption of specific college lands held to negative intention to exempt land of different character as part of endowment.

Where the charter of a college exempts specific lands owned by the college from taxation and also the endowment fund contributed to said college, the grant of the specific exemption of land negatives an intention on the part of the legislature to include land of a different character held by the college as a part of its endowment.

3 STATUTES. Same meaning attached to same word or phrase in different parts of statute, unless contrary intention appears.

Where the same word or phrase is used in different parts of a statute, it will be presumed to be used in the same sense throughout, and where its meaning in one instance is clear this meaning will be attached to it elsewhere, unless it clearly appears from the whole statute that it was the intention of the legislature to use it in different senses.

4 TAXATION. Exemption of college endowment fund held not to include other than money or negotiable securities. Where the charter of a college authorized it to accept contributions of money or negotiable securities in aid of its endowment, an exemption granted the college from taxation on its endowment fund will not include property held by the college as a part of its endowment, other than money and negotiable securities.

HON. W. H. POTTER, Judge.

APPEAL from circuit court of Hinds county, First District., HON. W. H. POTTER, Judge.

Proceeding between Millsaps College and the city of Jackson. From the judgment rendered the former appeals. Affirmed.

Affirmed.

Scott & Scott, for appellant.

This case is here on appeal from the circuit court of the First Judicial District of Hinds county, Mississippi. It involves the question of whether or not certain real estate belonging to the appellant, Millsaps College, hereinafter called the "college" is exempt from taxation. The appellee, the city of Jackson, hereinafter called the "city," assessed the said property for taxation for the year 1923. The college filed its petition with the mayor and commissioners of the city, asking that said assessment be abated and struck from the assessment roll. The city council denied the petition.

UNDER SECTION FIVE OF THE CHARTER OF THE COLLEGE THE PROPERTY HEREIN INVOLVED IS EXEMPT FROM TAXATION. Having shown that the charter exemption, to whatever extent it applies, is constitutional, and that it forms a contract between the state of Mississippi and the college that cannot be vitiated without coming in conflict with the Constitution of the United States, we come now to consider whether or not under said charter the property here involved is exempt from taxation. Section five of the charter under which the exemption is claimed is as follows: "That the lands or grounds, not to exceed one hundred acres, used by the corporation as a site and campus for said college, and the buildings, halls and dormitories thereon erected, and the endowment fund contributed to said college, shall be exempt from all state, county and municipal taxation, so long as the said college shall be kept open and be maintained for the purposes contemplated by this act, and no longer."

The question, then, is whether or not the property here involved constitutes a part of the endowment fund of Millsaps College. If the answer is in the affirmative, then clearly the college is entitled to the exemption under the charter; if it is answered in the negative, then the college cannot get the exemption under the charter.

We submit that beyond doubt the property here involved does constitute a part of the endowment fund of Millsaps College. In the first place, the petition, which is the agreed statement of facts in this case, says so. We, therefore, find it agreed that the property here involved does constitute a part of the permanent endowment fund of the college. As it may be said, however, that this is a conclusion of law on the part of both the city and the college in so agreeing, we will proceed to show that under the said section five, as a matter of law, the said property does constitute a part of the endowment fund of the college and is therefore exempt. We will show that the term "endowment fund" includes the property here involved, interpreting it in either its legal meaning, its professional meaning, or in its commonly accepted meaning by the laity.

The endowment fund of a college is that part of its property set apart for its permanent uses as distinguished from the site, campus or grounds, and the building located thereon, and that part of its property used for operating expenses and purposes. It is that part of the property of a college, the body or corpus or which is not used for current operating purposes and expenses, but only the revenue from which may be and is used for such current operating expenses.

The word "endowment" and the words "endowment fund" are used interchangeably and synonymously, both in the law books, in common usage, and professionally. They mean the same thing. When the words "endowment fund" are used together, the only purpose is to distinguish the permanent endowment or permanent fund from that portion of the college property used for current expenses.

The words "endowment" and endowment fund" include any kind of property which is susceptible of being set apart for the permanent uses of the college as explained above. Real estate is such property. In former times it was the property most commonly used for such purposes. In fact, there is no safer way to hold the endowment fund of the college intact and unimpaired than in improved real estate.

For definitions of "endowment" see: Bouvier's Law Dictionary; Webster's New International Dictionary; 2 Century Dictionary; 2 Black's Law Dictionary.

In the Dartmouth College case, 4 U.S. (L. Ed.) 626, the United States supreme court throughout the decision used the words "fund" and "funds" to include real estate. While Chief Justice MARSHALL did not make use of the word "endowment," Justice STORY did on several occasions in rendering his concurring opinion. In one place Justice STORY states: ". . . the very language of the charter supposes him (meaning Dr. Whellock, the founder) to be the legal owner of the funds (a large part of which were lands), of the charity school and by virtue of this 'endowment' declares him the founder of the college."

In Trustees for Vincennes University v. State of Indiana, 14 U.S. (L. E.) 267, the United States supreme court used the word "fund" to include lands. In The State v. The Vicksburg & Nashville Railroad Company, 51 Miss. 361, which was a case involving school property, Judge TARBELL used the following language: ". . . With reference to the magnificent donation of Congress two theories have obtained in different states followed by corresponding results. In one class of states, these donations have been faithfully employed within the letter and spirit of the grants, the people, the legislatures and the courts co-operating to the same end. Take Iowa as an illustration of one class. SHE HAS A SCHOOL FUND IN LAND AND MONEY VALUED AT NOT MUCH LESS THAN FIVE MILLION DOLLARS."

The case of Brown University v. Granger, 36 L. R. A. (R. L.) 847, shows that real estate is considered a part of the endowment of the college if it is held as a part of its permanent property. The case of Webster City, etc. v. Wright County, et al. (Iowa), 123 N.W. 193, 24 L. R. A. (N. S.) 1205, is another case which is conclusive that under the charter of Millsaps College, productive real estate is a part of the endowment fund exempted. The case of Ellsworth College of Iowa Falls v. Emmett County, et al. (Iowa), 135 N.W. 594, 42 L. R. A. (N. S.) 530, is another case absolutely conclusive. The case of Norton's Executors v. City of Louisville, 118 Ky. 862, 82 S.W. 621, shows that lands may be considered a fund as well as any other kind of property. By the will in this case certain lands are given to the executors to constitute a trust fund, and it is spoken of as an endowment fund.

The case of Edward Abend v. Endowment Fund Commissioners of McKendree College, 174 Ill. 96, recognizes that real estate may be a part of the permanent endowment fund of the college, and also shows that the words "endowment" and "endowment fund" are synonymous terms.

In Beeler v. Highland University Company, 54 P. 295 (Kansas) , the words "endowment fund," the word "endow," and the word "endowed" and the word "endowment" are all used interchangeably and synonymously, meaning the same thing. In McElwain Richards Company v. Gifford, 65 N.E. 576, the supreme court of Indiana referred to the endowment of the University of Indiana as the "permanent endowment fund."

In Burlington University v. Barrett, Executor, 22 Iowa 60, the court used the terms "permanent endowment" and "endowment fund" interchangeably and synonymously. Yale University v. The Town of New Haven, is instructive in that in it the supreme court of Connecticut recognized that real estate could constitute a part of the "funds" of the University.

The Constitutional Convention of 1890, recognized that...