Storey v. Town of Summerville

• Decision Date: 24 April 1924
• Docket Number: 3992.
• Citation: 123 S.E. 139,158 Ga. 182
• Parties: STOREY v. TOWN OF SUMMERVILLE.
• Court: Georgia Supreme Court

123 S.E. 139

158 Ga. 182

STOREY v. TOWN OF SUMMERVILLE.

No. 3992.

Supreme Court of Georgia

April 24, 1924

Syllabus by the Court.

Where a municipality was incorporated under the name of the town of Summerville, with the authority to sue and be sued, plead and be impleaded, etc. (Acts 1897, p. 308;Code of 1895, § 689 et seq.), and subsequently the name of the municipality was changed by act of the Legislature to the city of Summerville(Acts 1909, p. 1366), with the powers hitherto conferred by the act of 1897 preserved, which included the power to sue and be sued, etc., the new municipality city of Summerville could not be sued in the name of the town of Summerville.

The act of 1909, supra, is not unconstitutional for the alleged reason that the body of the act contains matter different from what is expressed in the title thereof.

In a suit for damages by one against the town of Summerville, the city of Summerville was not estopped from moving to dismiss the action by reason of the fact that a third party had entered into a contract with the town of Summerville to make certain street improvements which, as was alleged, caused the injury, the basis of the suit.

The trial court did not err in disallowing the amendment to the petition, and in dismissing the action.

Error from Superior Court, Chattooga County; F. A. Irwin, Presiding Judge.

Suit by Stella Storey against the Town of Summerville.Judgment for defendant, and plaintiff brings error.Affirmed.

Maddox Lipscomb & Matthews and James Maddox, all of Rome, for plaintiff in error.

Denny & Wright, of Rome, and Wesley Shropshire, of Summerville, for defendant in error.

HILL J.

Mrs Stella Storey brought suit against the town of Summerville and J. B. McCrary & Co. to recover damages alleged to have been sustained by reason of the automobile in which she was riding going into an open ditch across a certain street in that town, without the proper danger signal, etc.Process was issued, directed to the defendants in the name in which they were sued.An answer was filed by the town of Summerville denying each and every material allegation of the petition; and thereafter the case was dismissed as to J. B. McCrary & Co., leaving the case standing against the town of Summerville only.Subsequently a motion was made to dismiss the case on the ground that the action was not brought in the true corporate name of the defendant, viz., the city of Summerville.The plaintiff offered an amendment attacking, upon constitutional grounds, the act of the Legislature approved August 16, 1909(Laws 1909, p. 1366), which changed the name of the town of Summerville to the city of Summerville.It was alleged that the act of 1909 was unconstitutional as being in violation of article 3, § 7, par. 8, of the Constitution of Georgia(Civil Code of 1910, § 6437), on the ground that the act referred to more than one subject-matter and contained matter different from what was expressed in the title.The amendment stated that--

"It is 'an act to create and incorporate the city of Summerville, in lieu of the town of Summerville, and for other purposes,' when as a matter of fact said act is merely an amendment to the act creating the town of Summerville, and said act contains other provisions other than set forth in the caption."

The amendment further alleged that the defendant was estopped from denying that its corporate name was the town of Summerville, for the reason that it had theretofore contracted with the J. B. McCrary Engineering Company, a corporation, under the name of the town of Summerville.The court denied the amendment, on objection made by the defendant, and then sustained the motion to dismiss the case.The plaintiff excepted to these rulings.

1.The act of 1897, incorporated the town of Summerville.Acts 1897, p. 308;Civil Code 1895, § 689 et seq.The act of 1909(Acts 1909, p. 1366) changed the name of the municipality to the city of Summerville.The title of the act of 1909 was as follows:

"An act to create and incorporate the city of Summerville, in lieu of the town of Summerville, and for other purposes."

Section 1 of that act provides as follows:

"That the city of Summerville is created and incorporated in lieu of the town of Summerville, in Chattooga county; * * * this act shall not be construed as destroying and ending the powers hitherto conferred upon the town of Summerville by the General Assembly of Georgia, but is enacted in the nature of an amendment to the present charter of Summerville, and as continuing the existence of said town, but changing it to a city, reserving and saving to it, in its new corporate form all the powers, rights, privileges, duties and liabilities of said town through its charter, the amendment thereto, and the acts legally done thereunder (not inconsistent with what is herein enacted), but extending and adding the provisions of this act to the rights, privileges, powers, duties, liabilities and limitations created by said charter of the town of Summerville, the amendments thereto, and the acts done thereunder.The ordinances of the town of Summerville shall be ordinances of the city of Summerville and enforceable as such until repealed or changed by the city council of Summerville."

The act then provides for the territorial limits of the city of Summerville, and that it shall be divided into four wards; also, for the extension of the corporate limits, for a mayor and four councilmen, for their election and how the election shall be held, etc.

Assuming that the act of 1909 is not open to the attack made upon it, we will consider first whether the suit was properly brought against the corporation under its changed name.In the case of Boon v. Mayor, etc., of Jackson,98 Ga. 490, 25 S.E. 518, this court held:

"A municipality incorporated under 'the name and style of the town of Jackson,''with power in and by said corporate name to contract and be contracted with, sue and be sued, plead and be impleaded,' cannot be properly sued under the name of 'the mayor and council of the town of Jackson'; and accordingly, a declaration describing the defendant in the words last quoted, though it may have been designed as an action against this municipality, was rightly dismissed on demurrer."

To the same effect is the case of Town of Dexter v. Gay,115 Ga. 765, 42 S.E. 94, where it was held:

"A municipal corporation can be sued only in the corporate name set forth in the charter.When the General Assembly by an act incorporates 'a town under the name of the town of Dexter,' and declares that the municipal government of such town shall be vested in a mayor and five aldermen, who shall be styled 'the mayor and aldermen of the Dexter, and by that name are hereby made a body corporate,' and as such may sue and be sued, such town can be sued only in the corporate name last referred to, and a suit brought against the 'town of Dexter' should be dismissed on demurrer."

In Augusta Southern Ry. Co. v. City of Tennille,119 Ga. 804, 47 S.E. 179, it was held:

"The act of December 15, 1900, incorporating the city of Tennille, in express terms declares that no suit shall be brought against that municipality save in its corporate name, to wit, 'the city of Tennille.'Acts of 1900, p. 448, § 3.It follows that a petition brought, apparently, with a view to seeking relief as against that municipal corporation, but in which process is prayed against the 'mayor and council of the city of Tennille, a corporation,' is not maintainable."

See, also, Town of East Rome v. City of Rome,129 Ga. 290, 58 S.E. 854;Gelders v. City of Fitzgerald,135 Ga. 400, 404, 69 S.E. 569;Walker v. Mayor, etc., of East Rome,145 Ga. 294, 297, 89 S.E. 204;Mayfield v. City of College Park,19 Ga.App. 823, 92 S.E. 289.

From these authorities we are of the opinion that the court did not err in dismissing the case because it was brought against the town of Summerville instead of the city of Summerville.

2.We next consider the question as to whether the act of 1909 is unconstitutional because it contains matter different from what is expressed in its title.It will be observed that the caption of the act is "to create and incorporate the city of Summerville in lieu of the town of Summerville, and for other purposes," and that is what the act purports to do.Prescribing the duties and powers, etc., of the municipality is a necessary incident to the creation and incorporation of a municipal corporation, and the act is not thereby rendered unconstitutional for the reason suggested.In Sessions v. State,115 Ga. 18 (2), 41 S.E. 259, it was held:

"Legislation having the effect to change the town of Sandersville into the city of Sandersville is constitutional under an act entitled an act 'to alter and amend the several acts incorporating the town of Sandersville, and to confer upon said town of Sandersville a municipal government, with all the rights and privileges usually enjoyed by citizens of Georgia, as herein set forth.' "

In the ...