Neal-Millard Co. v. Trustees of Chatham Academy

• Decision Date: 11 November 1904
• Citation: 48 S.E. 978,121 Ga. 208
• Parties: NEAL-MILLARD CO. v. TRUSTEES OF CHATHAM ACADEMY et al.
• Court: Georgia Supreme Court

48 S.E. 978

121 Ga. 208

NEAL-MILLARD CO. v. TRUSTEES OF CHATHAM ACADEMY et al.

Supreme Court of Georgia

November 11, 1904

Syllabus by the Court.

1. The buildings held by the trustees of Chatham Academy for educational purposes are public property, and, in the absence of an express statute authorizing a materialman's lien against public property, are not subject to such a lien.

Error from Superior Court, Chatham County; Geo. T. Cann, Judge.

Action by the Neal-Millard Company against the Stewart Contracting Company and the Trustees of Chatham Academy. Judgment for defendants, and plaintiff brings error. Affirmed.

Twiggs & Oliver, for plaintiff in error.

Lawton & Cunningham, Garrard & Meldrin, and H. W. Johnson, for defendants in error.

FISH P.J. (after stating the foregoing facts).

The act establishing Chatham Academy was passed February 1, 1788. Watkins' Dig. p. 372. That act provides "that an academy or seminary of learning be erected in the said county [of Chatham], at such place as the majority of the trustees hereinafter appointed shall think fit, and that the said trustees or a majority of them shall proceed to transact the business of the said academy." The sixth and seventh sections of the act are as follows:

"(6) And whereas, there may be in the said county of Chatham lands unlocated and not granted, be it further enacted, that all such vacant lands not contained within any tract for which a grant has been obtained, be reserved for the use of the said academy or seminary of learning provided, that the quantity of vacant land thus reserved shall not exceed five thousand acres.

(7) And be it further enacted, that one thousand pounds specie of confiscated property lying in the county of Chatham, be put into the hands of the said trustees by the sheriff of said county. ***"

The eighth section names the trustees of said academy. The ninth section provides for supplying the places of any of the trustees who shall decline to act, or shall resign, or die and provides that "the remaining trustees, or a majority of them, shall nominate three persons, one of whom shall be appointed by the executive to supply the vacancy." This act was in conformity to the fifty-fourth section of the Constitution of 1777, which provided that "schools shall be located in each county, and supported at the general expense of the state and as the Legislature shall hereafter point out and direct." Marbury & Crawford's Dig. 12. On December 21, 1829, an act was passed to ascertain, dispose of, and appropriate the ungranted lands of Chatham county which appointed commissioners, who were directed to have such lands surveyed, and required the trustees of Chatham Academy to select 5,000 acres of such land within six months after the survey and map should be completed, and notice thereof given to them, the lands so selected to be "for the sole use, benefit, and behoof of said academy"; and the act provided that the surplus land should be sold, and the interest on the proceeds of the sale should be paid annually to the Free School and Union Society, in the city of Savannah. See Dawson's Compilation, p. 272. Under an act passed in 1866 (Acts 1865-66, p. 265), the Chatham Academy, Free School, or the Union Society, was authorized to sell its interests in ungranted lands held under the act of 1829 to either of the other ""societies." Under this act the Union Society was authorized to sell its interest in such lands to the Chatham Academy. On February 1, 1788, the same day the Chatham Academy was incorporated, the Legislature passed an act incorporating the Glynn County Academy. Watkins' Dig. 381. For a history of this latter academy, see Dart v. Houston, 22 Ga. 532, where it was held (page 535): "The funds of the academy are public property." In Board of Education of Glynn County v. Mayor, etc., of Brunswick, 72 Ga. 353, 357, Mr. Justice Hall, in delivering the opinion, said: "The whole history of Glynn County Academy shows that it was designed to afford free education to the children and youth of the county, and was not for the exclusive benefit of those residing within the limits of the city of Brunswick. It is not, and never was, a private or corporate, but a public, eleemosynary, establishment." In view of the legislation to which we have referred in reference to the Chatham Academy, and what has been said by this court in the decisions above cited in reference to the Glynn County Academy--a similar institution--there can be no question that the property held by the trustees of Chatham Academy, upon which it is sought to enforce a lien in the present case, is public property. Section 2801, par. 2, of the Civil Code of 1895, as amended by the acts of December 19, 1897 (Acts 1897, p. 30), and December 19, 1899 (see Acts 1899, pp. 33, 34), provides: "When work done, or material furnished for the improvement of real estate is done or may be furnished upon the employment of a contractor, or some other person than the owner, then, and in that case, the lien given by this section shall attach upon the real estate improved, as against such true owner, for the amount of the work done, or material furnished, unless such true owner shows that such lien has been waived in writing, or produces the sworn statement of the contractor, or other person, at whose instance the work was done or material was furnished, that the agreed price or reasonable value thereof has been paid: provided, that in no event shall the aggregate amount of liens set up hereby exceed the contract price of the improvement made." It will be seen that there is nothing in the statute which makes it apparent that the Legislature intended it to apply to public buildings or other property devoted to public use. "As a general rule, in the absence of some expression in the statute making it evident that the Legislature intended it so to apply, a mechanic's lien statute will not be construed to give a lien upon public buildings or other public property devoted to public use. Thus a lien cannot be acquired or enforced against a public school building or the lot on which it is situated, a courthouse, a city hall, a public bridge which is...