Peachtree on Peachtree Inn, Inc. v. Camp
170 S.E.2d 709
Ga. Ct. App.
1969
Check Treatment

PEACHTREE ON PEACHTREE INN, INC. v. CAMP, Cоmmissioner, et al.

44368

Court of Appeals of Georgia

SEPTEMBER 4, 1969

REHEARING DENIED SEPTEMBER 30, 1969

120 Ga. App. 403

Hull, Towill & Norman, James M. Hull, Jr., for appellants.

Fulcher, Fulcher, Hagler, Harper & Reed, A. Montague Miller, for appellees.

ARGUED APRIL 7, 1969—DECIDED SEPTEMBER 4, 1969—REHEARING DENIED SEPTEMBER 30, 1969—

Poole, Pearce & Cooper, John J. Poole, Edwin Pearce, George V. Boyd, King & Spalding, John Izzard, Daniel J. O‘Connor, Jr., for appellant.

Harold Sheats, J. C. Murphy, Charles M. Lokey, for appellees.

Eugene T. Brаnch, Richard A. Allison, Nall, Miller, Cadenhead & Dennis, Edward S. White, Haas, Holland, Freeman, Levison & Gibert, Hugh W. Gibert, amicus curiae.

QUILLIAN, Judge. Code Ann. § 92-201 (Ga. L. 1943, p. 348; 1946, p. 12; 1947, p. 1183; 1955, pp. 262, 263; 1965, pp. 182, 183), provides in part:

“The following described property shall be exempt from taxation, to wit: . . . all institutions of purely public charity; . . . provided the property so exempted be not used for the purposе of private or corporate profit and income, distributable to shareholders in corporations owning such property or to other owners of such property, and any income from such ‍‌‌​‌​​​​‌​‌‌​‌‌‌​‌‌​​‌‌‌​​‌​​‌‌‌​​‌​​‌​‌‌​​‌​‌‌​‍property is used exclusively for . . . charitable purposes, . . . and for the purpose of maintaining and operating such institutions; this exemption shall not apply to real estate or buildings other than those used for the operating of such institution and which is rented, leased or otherwise used for the primary purpose of securing an income thereon.”

See Georgia Constitution, Art. VII, Sec. I, Par. IV, as amended (Code Ann. § 2-5404).

The question for determination is whether the appellant qualifies for tax exemption under the provisions of the above stаtute. To meet the criterion the institution must be purely charitable and public. “A familiar meaning of the word ‘charity’ is almsgiving, but as used in the law it may include ‘substantially any scheme or effort to better the condition of society or any considerable part of it.’

. ’ “Charity,” as used in tax exemption statutes, is not restricted to the relief of the sick or indigent, but extends to other forms of рhilanthropy or public beneficence, such as practical enterprises for the good of humanity, operated at moderate cost to the beneficiaries, or enterprises operated for the general improvement and happiness of mаnkind.’ 61 CJ 455, § 505.”
.

The appellees contend that the appellant is not a purely public charity becаuse the residents are required to pay a monthly rental. In the appellant‘s statement of facts, agreed to by the appellеes, it states: “In July, 1968, through the continuing generosity of the foundation, it became possible for appellant to fully effectuate this policy by accepting otherwise qualified residents who were unable even to make the minimum monthly payments established by the inn, even though, as indicаted, these minimum payments fell far short of defraying a resident‘s pro-rata cost of operating the inn. In keeping with this new capability two рersons had already been accepted on a substantially reduced payment basis by July 26, 1968.”

The fact that the residents are charged a rental toward the expenses of operating the inn would not destroy the charitable nature of the institution.

;
. It should be noted that payments made by the residents plus the store rentals have been insufficient to covеr the direct operating expenses of the inn. All income is used for the operation, maintenance and enlarging the facilities with nо part of its income being distributed to any person with an interest therein.

It is also contended that the inn is not public because the residents must mеet certain qualifications before they are eligible to be admitted. With this contention we do not agree. The requirements are that the residents must be at least 60 years of age, of good moral character, ambulatory and must pass a medical examination. While the inn is not open to the whole public it is open “to the whole of the classes for whose relief they are intended or adaрted.”

;
.

The case sub judice is distinguishable from

;
; and
, cited by the appellee. In the
case, the facts revealed that the hospital

was operated primarily for a profit from which the doctors benefited. The

case held that it was not public because only those who bought a policy would receive any benefits, аnd only such benefits as were paid for by the premium with no free or extra service regardless of the circumstances. The Supreme Cоurt held the Fulton County Medical Society building was taxable because the purpose of the society was for the improvement of thе medical profession which only incidentally benefited the public.

In the present case the facts disclose that the inn‘s objective is to house, feed and care for aged men and women who otherwise could not afford adequate facilities and to provide for their physical, mental and spiritual welfare. As is stated in

: “The concept of chаrity is not confined to the relief of the needy and destitute, for ‘aged people require care and attention apart from financial assistance, and the supply of this care and attention is as much a charitable and benevolent purpose as the relief of their financial wants.’ ”

Since the appellant is a purely public ‍‌‌​‌​​​​‌​‌‌​‌‌‌​‌‌​​‌‌‌​​‌​​‌‌‌​​‌​​‌​‌‌​​‌​‌‌​‍charity and meets the requirements of Code Ann. § 92-201, that portion of the рroperty which is being used as a home for the aged is tax exempt. However, that part of the building consisting of two retail stores which are leased would not be tax exempt. The area where the stores are located is being used to gain rental and not for the primаry purpose of operating the inn.

.

The appellees’ motion for a summary judgment prayed that the entire property locаted at 176 Peachtree Street, N. W., be declared subject to ad valorem taxation. The granting of the motion was error.

2. The appellant also enumerated as error the trial judge‘s failure to grant its motion for summary judgment. However, due to the fact that there was no certificate of the trial judge allowing an appeal of the refusal to grant the motion for summary judgment, this court is without authority to review suсh ruling. Code Ann. § 81A-156 (h) (Ga. L. 1966, pp. 609, 660; 1967, pp. 226, 238) provides: “an order denying summary judg-

ment is not subject to review by direct appeal or otherwise, unless within 10 days of the order of denial the trial judge certifies that the order denying summary judgment as to any issue or as to any party should be subject to review.”

.

Judgment reversеd. Bell, P. J., Jordan, P. J., Hall, Pannell, Deen and Whitman, JJ., concur. Felton, C. J., and Eberhardt, J., dissent.

FELTON, Chief Judge, dissenting. In my opinion the facts of this case bring ‍‌‌​‌​​​​‌​‌‌​‌‌‌​‌‌​​‌‌‌​​‌​​‌‌‌​​‌​​‌​‌‌​​‌​‌‌​‍it squarely within the deсision of the Supreme Court of Georgia in

. Under the facts of this case and under said decision of the Supreme Court the appellant here is not a pure charity or a purely public charity within the constitutional provisions of Code Ann. § 2-5404.

I am authorized to state that Judge Eberhardt concurs in this dissent.