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Equitable petition. Fulton Superior Court. Before Judge Etheridge.
MOBLEY, Justice.
The petition does not show that the property of the appellant is used for "purely public charity," and it therefore fails to show that the appellant is entitled to the exemption of this property from taxation as an institution of "purely public charity" under Code Ann. 92-201.
The appeal is from a judgment sustaining the general demurrers to a petition brought by Historic House Museum Corporation against the Tax Commissioner of Fulton County and the taxing authorities of the City of Atlanta, seeking to temporarily and permanently enjoin them from collecting taxes upon described real estate (upon which is located a dwelling house presumed to be the oldest house in Atlanta), and to recover taxes illegally assessed and collected in the past.
The sole question is whether this property is exempt from taxation under the Constitution of Georgia, Art. VII, Sec. I, Par. IV (Code Ann. 2-5404) and the provisions of Ga. L. 1946, pp. 12-15, as amended (Code Ann. 92-201), which exempt from taxation "all institutions of purely public charity."
The petition alleges that the appellant is a nonprofit educational corporation chartered by the State as an educational and benevolent institution, whose purpose is "that of preserving, acquiring and maintaining houses and sited of particular and peculiar interest in the historical and educational background of this immediate section and State of Georgia"; that on the property claimed to be tax exempt is a house reported and presumed to be the oldest house in the City of Atlanta, which was occupied by Colonel L. P. Grant before and during the War Between the States, and was the dwelling wherein Mayor Calhoun before and during the siege of Atlanta by General Sherman planned and arranged with Colonel Grant the defense of Atlanta; that the property has been dedicated for the education, uplift, and advancement of the early history of Atlanta; and that the appellant is an institution of purely public charity as defined in Code Ann. 92-201, and its property is not used for any commercial purpose.
The sustaining of the general demurrers and the dismissal of the petition are enumerated as error, the several grounds of which are that the petition stated a cause of action, that a jury issue was made by the petition, and that the appellant is deprived of its property without due process of law and equal protection of law.
The test of whether property is exempt from taxation under Ga. b. 1946, pp. 12-15, as amended, (Code Ann. 92-201) as an institution of "purely public charity" is not whether the owner is an organization of purely public charity, but whether the property is dedicated to charity and used exclusively as an institution of "purely public charity." Tharpe v. Central Ga. Council of Boy Scouts of America, 185 Ga. 810 (196 SE 762, 116 ALR 373). That the organization is non-profit, is not used for commercial purposes, and its charter declares it to be a charitable and benevolent institution, do not make it a charitable institution. Mu Beta Chapter Chi Omega House Corp. v. Davison, 192 Ga. 124 (14 SE2d 744). Nor does the fact that it may serve a benevolent purpose make it such. Taylor v. Trustees of Jesse Parker Williams Hospital, 190 Ga. 349 (9 SE2d 165). See United Hospitals Service Assn. v. Fulton County, 216 Ga. 30 (114 SE2d 524).
While the petition alleges that the property is dedicated to the education, uplift, and advancement of the early history of Atlanta, and is not used for any commercial purpose, it fails to allege how the property is being used. In the absence of such allegation, the petition does not allege that the property is used for purely public charity, and fails to state a cause of action for exemption from taxation.
Judgment affirmed. All the Justices concur.
Harold Sheats, Charles M. Lokey, J. C. Murphy, for appellees.
G. Seals Aiken, for appellant.
ARGUED JULY 10, 1967 -- DECIDED JULY 14, 1967.
Friday May 22 19:22 EDT

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