121 Ga. 208 | Ga. | 1904
(After stating the foregoing facts.) The act establishing Chatham Academy was passed February 1, 1788. Watkins’ Dig. 372. That act provides: “That an academy or seminary of learning be erected in the said county [of Chatham], at
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, paragraph 2, of the Civil Code, as amended by the acts of December 19, 1897, and December 19, 1899 (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 o\yner 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 improvements 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 con-
Much stress has been laid, in the argument here, by counsel for the plaintiff in error, upon the allegations of the petition as to the manner in which the property has been and is being used by the trustees of the academy; and, as we understand their contention, it amounts to this: that because the allegations of the petition, as they insist, show that the property is not used in accordance with the purposes which actuated the State in the creation and endowment of Chatham Academy, as shown by the legislation above referred to, and the Mayor and Aldermen of the City of Savannah in making the grant set forth in the petition,-it has become-private or corporate, as distinguished from public property, and ' hence is not exempt, as public property, from the lien law Which' the plaintiff invokes. We will not stop to consider whether or
Certain observations by the present Chief Justice in Trustees v. City Council, supra, are peculiarly relevant and appropriate in the present case. On page 646 he said: “In view of the legislation to which we have referred, there can be no question as to the public character of the 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 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 char
In view of the contention of the plaintiff in error as to the effect of the act of the Trustees of Chatham Academy in renting the property in controversy to the Board of Public Education for the City of Savannah and County of Chatham, the case of Fleishel v. Hightower, 62 Ga. 324,is directly in point. It was there held: “ 1. The town of Jonesboro is empowered to own and use a public school-house for the education of the children thereof, and the authorities of said town may use the same in such manner as in their discretion will best promote the end in view,— the education of the children — either by a free public school or by renting the said school-house to private teachers, at their option. 2. Such school-house is not subject to levy and sale by virtue of judgment and execution against the town, and consequently, if the house be destroyed by fire, the insurance thereof can not be reached by garnishment by the judgment creditor.” In this connection, see also Curry v. Savannah, 64 Ga. 290; City of Albany v. Lynch, 119 Ga. 491.
Our conclusion is, that the property held by the Trustees of Chatham Academy is public property, and, therefore, not subject to a materialman’s lien, as there is no express statute in this State authorizing such a lien against public property. Consequently there was no error in sustaining the demurrer, and the judgment of the court below is
Affirmed.