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Massenburg et al. vs. The Grand Lodge F. & A. M. of the State of Georgia.

assessment, so as to confine the exemption to so much of the value as the privileged part of the premises represents. State vs. Board of Assessors, 34 La. An. 574; Appeal Tax Court vs. Grand Lodge, 50 Md. 421; County Comm’rs vs. Sisters of Charity, 48 Md. 34; State vs. Elizabeth, 4 Dutcher, 103; Cin. College vs. The State, 19 Ohio, 110; Library Association vs. Pelton, 36 Ohio St. 258; Detroit vs. Mayor etc., 3 Mich. 172; St. Joseph's Church vs. Assessors, 12 R. I. 19.

Constitutions which exempt or provide for exempting “institutions of purely public charity" are, of Ohio (1851), Pennsylvania (1873), and Louisiana (1879). Alabama (1875) specifies “institutions or enterprises devoted exclusively to charitable purposes”; Arkansas (1874) specifies “buildings and grounds and materials used exclusively for public charity”; Colorado (1876) specifies "lots with the buildings thereon, if said buildings are used for strictly charitable purposes”; Kansas (1859), Illinois (1870) and Nebraska (1875) each has “property used exclusively for charitable purposes”; Missouri (1875) specifies lots in certain localities and buildings thereon “when the same are used exclusively for purposes purely charitable”; Tennessee (1870) has “property held and used exclusively for purposes purely charitable”; Virginia (1870), "property used exclusively for charitable purposes”; West Virginia (1872), the same, omitting the word “exclusively.”

Louisiana has the same proviso as to use which we have, except that “or leased” is added after the word “used.” Ohio had, by statute, as far back as 1845 the restrictive words, not leased or otherwise used with a view to profit”; but these words were not inserted in the constitution.

The more one investigates the constitutions, statutes and reports of the several States, the more will he be

Massenburg et al. vs. The Grand Lodge F. & A. M. of the State of Georgia.

impressed with the tendency to narrow the range of exemption from taxation, and to lay stress on the open, visible and direct use of property as a test of its exemption in the interest of charity. The distinction between the acquiring and the dispensing functions of charitable organizations has been constantly felt, though not perhaps often formulated in words; and that distinction is the key to the policy which puts productive property, when held for charity, on a different footing from nonproductive. The acquiring of money by the use of property or capital is not the appropriate office of a charitable agency, but rather to apply and administer that which has been accumulated through its own bounty or the bounty of others. It is not an instrumentality for gathering together, but for scattering abroad. When charity has a business side, let it conduct business as the world generally, on business principles, the first rule of which is to provide for taxes the highest claim on every species of property employed in the common avocations of life. There appears to us no reason why stores belonging to the grand lodge, rented out by it to merchants or shop-keepers, and thus put in competition with other like realty in the city of Macon, should not be taxed, irrespective of whether the “lodge” of the order is in the same building, and whether the proceeds of the renting have been or are to be applied to one purpose or another.

2. It results from what we have said that the most the grand lodge could rightfully claim was to have the rule of apportionment which we have indicated recognized and applied in making its returns for taxation. But the record before us gives no information and furnishes no data on that subject as to the taxes of 1887, those in question; and so we can but reverse generally the judgment granting the injunction, and re-open the

Boatmen's Savings Bank vs. The Western and Atlantic Railroad Company,

way for the ministerial officers of the State and county to do their duty.

Judgment reversed.

BOATMEN'S SAVINGS BANK vs. THE WESTERN AND ATLAN

TIC RAILROAD COMPANY.

1. Where by the terms of the bill of lading the goods are consigned

to the order of the consignor, and the bill is indorsed in blank, and negotiated for value as security for a draft drawn by the consignor on a third person, the carrier has no right to deliver the goods to such third person without production of the bill of lading or

authority from the holder thereof. 2. The special facts of this case did not put the holder of the bill upon

notice that a promissory note negotiated for value by the consignor to the same holder, was given after delivery of the goods and to cover the purchase price thereof. The payment of the note by the maker did not release the carrier from liability on the bill of lading. There was no evidence of any participation by the holder

in the fraud committed by the consignor. 3. Bills of lading are amongst the most important securities of com

merce, and are not to be defeated by mere presumption, or without clear evidence.

April 16, 1888.

Negotiable instruments. Common carriers, Bailments. Promissory notes. Bill of lading. Before Judge Van EPPs. City court of Atlanta. December term, 1887.

Reported in the decision.

B. F. ABBOTT, for plaintiff.

Julius L. BROWN and A. H. Cox, for defendant.

BLECKLEY, Chief Justice.

On November 19th, 1884, a railway company issued, at Litchfield, Illinois, a bill of lading covering a con

Boatmen's Savings Bank vs. The Western and Atlantic Railroad Company,

signment of 900 sacks of flour, 29,100 pounds, from the Planet Milling Company, consigned to its own order, to Atlanta, Georgia; the bill of lading having upon it an indication that J. C. McMillan & Co. were to be noti. fied. On the same day, the Planet Milling Company drew a draft for $576.51 upon J.C. McMillan & Co., payable to its own order one month after date. It indorsed the draft in blank, and negotiated it, together with the bill of lading, also indorsed in blank, to the Boatmen's Savings Bank, and received value. The effect of that transaction was to pass the title to the flour from the milling company to the bank, as security, for the acceptance of this draft.

On the 22d of November, this draft (and as may be presumed, with the bill of lading attached,) was presented for acceptance, and acceptance was refused, the drawees noting upon the draft in pencil this memorandum : “This flour was bought on sixty days' time. Draw and we will accept." There was no signature to the memorandum. The draft was protested for non-acceptance, and in the protest, as a reason for non-acceptance, were the words : “Goods bought on sixty days' time.” Three days thereafter, to wit, November 25th, the flour was delivered by the Western & Atlantic Railroad, the terminal member of this shipping line, to J.C. McMillan & Co., the bill of lading being out in the hands of this bank. Some two weeks thereafter, the precise time not stated, J.C. McMillan & Co. executed in Atlanta and sent to the milling company a promissory note for $580.73, dating that note November 19th, 1884, and making it payable to the order of the Planet Milling Company, and appointing as the time of payment sixty days after date. On the 3d of December following, this note, being in the hands of the Planet Milling Company, was discounted in due course of business by this same

Boatmen's Savings Bank vs. The Western and Atlantic Railroad Company.

bank, the Planet Milling Company indorsing and receiving value for it, and the transaction taking place long before the maturity of the note. On December 22d, when the draft would have matured had it been accepted, it was presented to the drawees for payment, and payment being refused, it was protested for nonpayment. When the note matured it was paid, and after that, some time in January, 1885, the bank caused a demand to be made upon the railroad company in Atlanta, the point of destination, for the flour, and on failure to deliver, this action was brought, the declaration being filed on the 19th of May, 1885. The action was founded upon the contract in this bill of lading; the declaration alleges a breach of it, demand for the flour and failure or refusal to deliver. The action was pending for almost a year when the defendant filed a plea of fraud, alleging a combination between the bank and the milling company to get pay for this flour twice, and set up the fraud as a defence.

The case was tried by a jury, and a verdict was rendered for the defendant. A motion for a new trial was made on several grounds, complaining of the charge of the court, and on the general grounds that the verdict was contrary to law, evidence, etc. The court refused the motion for a new trial, and that refusal is the cause of the present writ of error.

1. The consignment being to the order of the consignor, the indorsement of the bill of lading by the consignor was the expression of such an order, and the railway company and the lines with which it was connected in this contract for carriage and delivery had no right to deliver to J. C. McMillan & Co. without production of the bill of lading or some proper accounting for it. North Penn. R. R. vs. Commercial Bank, 103 U. S. 727; Bass vs. Glover, 63 Ga. 745.

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