Commissioners v. Reid

35 Ga. 47

• Court: Supreme Court of Georgia
• Decided: December 15, 1866
• Status: Published

Opinion

Lumpkin, C. J.

The first ground of error complained of in this case is one of practice. The Judge decided, that on a motion to dissolve an injunction, complainants’ counsel were entitled to open and conclude the argument. It seems to be now the English rule, and the general practice throughout this State, so far as we know or are advised, that the party moving to dissolve, opens and concludes the argument, whether the motion be made in open Court or in Chambers; and this practice is shown to be founded on principle, from the very able and conclusivo argument submitted by Governor Johnson on this subject.

The next and only other error complained of is, in the the Court’s deciding to hold up this injunction. This involves the whole merits of the controversy between the parties.

"We think the injunction should have been dissolved by the Court, and the bill dismissed. It is admitted by the Solicitors for the tax-payers, that the authorities of Summerville had power to levy the tax which they imposed. They also disclaim having intended to impute moral fraud to the Trustees of this Academy, or the Commissioners of the village, who are pretty much one and the same persons. It is not pretended that any person, in behalf of the original donor of this property, Thomas Cumming, deceased, is here, complaining of the abuse or perversion of his donation— neither are the Commissioners of the Richmond Academy, who leased the property to the Trustees of Summerville Academy, finding fault of what has been done, Who, then, are complaining? Some of the tax-payers of the village of Summerville, for being taxed to raise money to repair the Academy, which was greatly dilapidated, and for which gratuitous contributions could not be procured. These are the persons who grumble at this arrangement, intended for the double benefit of furnishing educational means for the community, and also accommodations for municipal and other public purposes to the village.

The Judge seems to put his judgment wholly on the leases which have been used to convey this property, and has come to the conclusion, that a legal fraud has been perpetrated by their means, and, therefore, concludes to hold up the injunction ; whereas, in our view of these documents, we think we should not only have dissolved the injunction, but also dismissed the bill. This is not one of the cases where this Court will not interfere with the discretion of the Court below unless it has been flagrantly violated.

We hold that Ilis Honor misapprehended the design and effect of these papers. Eor instance, we hold that the supplementary instrument made by the municipality of Summerville, instead of reinvesting Summerville Academy with all the rights which the former had conveyed by the previous lease, served only to explain what might be considered doubtful in the previous lease.

Read the papers in this case carefully, and there is the design, steadily adhered to from the beginning, to maintain the purpose for which this endowment was made by Mr. Cumming. And as to the Trustees of the Academy being censurable for reimbursing themselves out of their own Treasury, for moneys which they had advanced to make the necessary repairs, we see nothing wrong in that, but the evidence of a praiseworthy liberality in furnishing, from their private means, funds to save the building from decay and ruin; and whether they will apply these taxes, raised to pay for these repairs, to their own use, or to donate it to widows and orphans to pay their taxes, is a matter entirely for their own decision, and with which nobody has the right to interfere.

Concurring, as we do, in the following conclusions, at which the plaintiff’s counsel arrived, namely: “ That the arrangement between the corporations is no violation of the charter of the Summerville Academy; that its Trustees, under the incidental power which the law attaches to all corporations, were authorized to lease the premises, for the use intended, to the Board of Commissioners of Summerville; that the contract is not in violation of the intention of Mr. Cumming and his wife, who founded the Academy by a donation of the lot; that it is not a breach of any covenant which the Trustees entered into with the Richmond County Academy, under which they hold as lessees; that the supplementary deed of July 1st, 1866, is not a reconveyance of the premises, and does not defeat the lease; that the contract between the two Boards is supported by sufficient consideration, and is advantageous to both parties — on the one hand, saving the existence pf the Academy, and on the other, greatly promoting the convenience of the Board' of Commissioners, as well as of the village of Summerville

And believing that the aspect of this litigation, depending, as it does, upon documentary evidence, and to save further expense and harrassment, we reverse the judgment of the Court below, in not dissolving the injunction, and further direct that the bill be dismissed.

Judgment reversed.