Arnett v. The Bd. Of Comm'rs Of Decatur County

• Decision Date: 31 October 1885
• Citation: 75 Ga. 782
• Parties: Arnett. vs. The Board of Commissioners of Decatur County.
• Court: Georgia Supreme Court

75 Ga. 782

Arnett. vs. The Board of Commissioners of Decatur County.

Supreme Court of the State of Georgia

OCTOBER TERM, 1885.

Actions. Counties. Constitutional Law. Amendment. Before Judge Hansell. Decatur Superior Court. November Adjourned Term, 1884

Reported in the decision.

Lyon & Gresham, for plaintiff in error.

D. A. Russell, by J. H. Lumpkin, for defendants.

Hall, Justice.

When this case was called for trial in the superior court, a motion was made to dismiss it because it was improp-erly brought against the board of commissioners of Decatur county, —that the suit was not maintainable against the defendants, as such commissioners; and the court having intimated an intention to sustain the motion, plaintiff then asked leave to amend, first, by striking from the declaration the words"Board of commissioners of Decatur county, " so that the suit should proceed against the persons named as such county commissioners individually; and, secondly, by making the county of Decatur a party defendant to the suit, as counsel for original defendants had announced to the court, on arguing the motion to dismiss, that he represented the county, and not the board of commissioners. The leave asked to amend was refused, and the court then sustained the motion to dismiss the suit, and these are the errors alleged.

1. We think there can be little doubt that this was a suit against the county, and that the purpose was, if it had been successful, to obtain a judgment which would bind the county corporation. The petition set out by alleging that the board of county commissioners of the county of Decatur, to-wit, John P. Dickinson and four others, whose names were given, had injured and damaged petitioner ten thousand dollars, and proceeded to show that they, as such commissioners, had deprived him of a certain ferry and bridge franchise, and had appropriated to the public use, not only such franchises, but a portion of the lands belonging to him, by entering thereon, and had commenced and continued to lay off a public road on both sides of Flint river, and to erect a bridge over that stream within thirty or forty yards of the site on which plaintiff's bridge stood, and that they are now prepared to use the same for the benefit of the public, etc When it is remembered that it is incumbent upon the counties to open roads and erect bridges across streams for the public accommodation and convenience, and that the board of commissioners are the agents of the county for the performance of this duty, we apprehend the character and purpose of this action ishardly questionable. It was designed as a suit against the county, and the board of commissioners, as agents of the county, instead of the county itself, were made defendants. A county cannot be proceeded against in this way; before it can be called upon to answer to suits against it, the action must name it, and not its agents, as defendants.

By a provision of the constitution of 1877 (Code, §5222), it is declared that " each county shall be a body corporate, with such powers and limitations as may be prescribed by law. All suits by or against a county shall be in the name of the county."

It was insisted by counsel that this requirement of the constitution would not be operative without legislation to carry it into effect, and that no provision had been made as to the persons on whom process could be served, where a county was ...