Parker v. Mayor, etc., of Savannah

• Decision Date: 07 July 1960
• Docket Number: No. 20933,20933
• Citation: 216 Ga. 210,115 S.E.2d 555
• Parties: F. A. PARKER et al. v. MAYOR, ETC., OF SAVANNAH.
• Court: Georgia Supreme Court

Page 555

115 S.E.2d 555

216 Ga. 210

F. A. PARKER et al. v. MAYOR, ETC., OF SAVANNAH.

No. 20933.

Supreme Court of Georgia.

July 7, 1960.

Syllabus by the Court

For reasons given in the opinion, the trial court did not err in sustaining the motion to dismiss the petition.

The appeal is from a judgment of the Superior Court of Chatham County sustaining a motion to dismiss the petition brought by named parties for themselves and others similarly situated, against the Mayor and Aldermen of the City of Savannah, seeking to declare unconstitutional, upon numerous grounds, House Bill 990, 1960 acts of the General Assembly (Ga.L. 1960, pp. 2213-2220), which purports to incorporate within the City of Savannah certain territory of which petitioners are residents, and to enjoin the City of Savannah from 'extending its corporate limits or otherwise availing itself of the powers and authority conferred upon it by said act.'

Crawford, Leeb & Calhoun, Savannah, for plaintiffs in error.

Edwin Maner, Jr., Oliver, Davis & Maner, Savannah, for defendants in error.

MOBLEY, Justice.

1. The court's order sustaining the defendant's motion to dismiss recites: 'When the case was sounded on the calendar, both parties announced ready, and simultaneously therewith the defendant filed with the clerk a pleading entitled 'Answer and Motion to Dismiss,' whereupon the plaintiffs moved to dismiss it because it was not filed within thirty days after a service of the petition which was had on the defendant on the 24th day of February 1960. Though the court suggested that the defendant pay the costs as the paper was filed within the additional fifteen days' period permitted by Code, § 110-401, defendant elected to have the pleading treated as a motion to dismiss, whereupon the court ruled that the first two paragraphs in the pleading, which categorically admitted or denied all the paragraphs in the petition, be disregarded and that the pleading be treated only as a motion to dismiss in the nature of a general demurrer.

'The petition attacks on the constitutional grounds only the act of the General Assembly known as House Bill No. 990, extending the corporate limits of the City of Savannah. (See Georgia Laws, 1960, vol. 2, pages 2213-2220.) The matter is before the court, therefore, only on questions of law as if only a general demurrer had been filed. There being no denial of any of the allegations of the petition, all well pleaded allegations are taken as true for the purpose of the motion. The court will take up the attacks seriatim as made in the petition.'

There is no merit in the plaintiff in error's contention that the court erred in considering the pleading of the defendant, with that part denying the allegations disregarded, as a motion to dismiss in the nature of a general demurrer.

The pleading was styled as an answer and motion to dismiss the petition. The part treated by the court as a motion to dismiss was on the ground that none of the allegations of the petition attacking the constitutionality of the act was a valid attack, that the act was constitutional, and that the legislature and not the City of Savannah had incorporated the territory in question in the city limits of Savannah. Code, § 81-302 provides: 'All defects which appear on the face of the pleadings may be taken advantage of by motion.' Where a petition is fatally defective because it fails to set forth a cause of action, it may be attacked by oral motion to dismiss at any time before verdict. Kelly v. Strouse & Bros., 116 Ga. 872(1a)(5a), 43 S.E. 280; Dingfelder v. Georgia Peach Growers Exchange, 184 Ga. 569(1), 192 S.E. 188.

Since this motion to dismiss was in the nature of a general demurrer, the court did not err in treating it as such. This court in division 2 of Gibbs v. Forrester, 204 Ga. 545, 50 S.E.2d 318, where the demurrer and answer were not filed within the required time, and were stricken by the trial court because not timely filed and the case was marked in default, held that the court properly entertained an oral motion to dismiss in the nature of a general demurrer, sustained the motion, and dismissed the petition. While the cases cited by counsel and those which we have found are cases in which the motions to dismiss the petition because it failed to state a cause of action, thereby barring recovery thereon, were oral, Code, § 81-302 states that defects appearing on the face of the petition may be taken advantage of by motion. An oral motion to dismiss for failure of the petition to state a cause of action may be made at any time before verdict; the same motion made in writing would be equally good.

2. (a) Under an act of the General Assembly approved by the Governor on February 16, 1943, as amended by an act approved February 2, 1945 (Ga.L.1943, p. 331, as amended by Ga.L.1945, p. 123, Code Ann. §§ 14-1809, 14-1810), the first day of January and other named days are declared to be and are made public and legal holidays; but only Sunday is made a religious holiday. While January 1 is a legal holiday under this statute, it is not dies non juridicus (a nonjudicial day).

The plaintiffs in error contend that House Bill 990 violates article 3, section 7, paragraph 15 of the Constitution of Georgia (Code Ann. § 2-1915), for the reason that the intention to apply for such legislation was not advertised in the newspaper in which sheriff's advertisements are published once a week for three weeks as required, because the first advertisement is void since it appeared on a legal holiday, January 1, 1960, and because there were only two other such advertisements, those which appeared on January 8 and January 15, 1960.

The advertisement which appeared on January 1, 1960, a legal holiday, was valid; and accordingly, House Bill 990 was properly advertised as required by the Constitution. See Hamer v. Sears, 81 Ga. 288(2), 6 S.E. 810; Biggers v. Home Building & Loan Ass'n, 179 Ga. 429, 431(2), 176 S.E. 38; Wood v. State, 12 Ga.App. 651(2), 78 S.E. 140. The case of Gay v. Laurens County, 213 Ga. 518(1), 100 S.E.2d 271, is distinguishable since there the publication was on a Sunday. Sunday, a religious holiday, is dies non juridicus. Sawyer v. Cargile, 72 Ga. 290; Hayden v. Mitchell, 103 Ga. 431, 30 S.E. 287; Chafin v. Tumlin, 20 Ga.App. 433(2), 93 S.E. 50.

(b) The notice specifying intention to introduce legislation 'to change the corporate limits of The Mayor and Aldermen of The City of Savannah * * * to otherwise amend the laws constituting the charter of The Mayor and Aldermen of The City of Savannah and for other purposes,' complies with the provisions of article 3, section 7, paragraph 15 of the Constitution of Georgia (Code Ann. § 2-1915), requiring that no local or special bill shall be passed by the General Assembly unless notice of intention to apply therefor is given as provided therein. This court, construing this constitutional provision vision in Walker Electrical Co. v. Walton, 203 Ga. 246, 252, 46 S.E.2d 184, 188, held: 'Under reasonable rules of construction the constitution of 1945 (art. 3, sec. 7, par. 15), requiring the publication of notice, does not require more information as to the law to be enacted than would be required in the caption of the bill itself.' In Tison v. City of Doerun, 155 Ga. 367, 372, 116 S.E. 615, 617, it is said: 'The title of this act expressly declares that its purpose is to amend the charter of the City of Doerun. This is clearly broad enough to refer to any change made in this charter in the body of the act.' See also Swiney v. City of Forest Park, 211 Ga. 154, 155(1), 84 S.E.2d 573, and Panlos v. Stephenson, 213 Ga. 816(1), 102 S.E.2d 165.

3. The plaintiffs allege that the act violates article 3, section 7, paragraph 8 of the Constitution of Georgia (Code, § 2-1908) in that it contains matter different from what is expressed in the title. The title of the act is: 'An Act to amend the several Acts relating to and incorporating the Mayor and Aldermen of The City of Savannah, to extend the corporate limits of the City of Savannah and for...