Walker v. City of East Rome
| Decision Date | 15 May 1916 |
| Docket Number | 420. |
| Citation | 89 S.E. 204,145 Ga. 294 |
| Parties | WALKER v. MAYOR AND COUNCIL OF CITY OF EAST ROME. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
The act of the Legislature (Acts 1906, p. 1010) provides, among other things, for the repeal of the charter of the town of East Rome, and that before it shall become operative the question as to the passage of the law shall be submitted for ratification to the qualified voters of the municipality at a prescribed election to be held for such purpose. Held that, if at such an election the requisite number of votes be cast in favor of ratification of the law the act contemplates that its terms will become binding and result in the repeal of the charter of the municipality from and after the date specified in the act for the law to go into effect.
(a) In an action instituted after the repeal of the charter of the municipality, the case having been submitted to the judge for decision, and his judgment reciting, "It appearing that the town of East Rome, by legislative enactment, became a part of the city of Rome on January 1, 1907, and this suit having been filed December 24, 1907, after said town of East Rome became a part of the city of Rome, and after said town of East Rome had ceased to exist," and nothing to the contrary appearing, it will be presumed, on exception to the judgment, that the judge had evidence or admissions in open court to the effect that the act had been duly approved by the qualified voters at an election as provided for in the act.
The act referred to in the preceding note was not repealed by the act amending the charter of the town of East Rome, approved the same day (Acts 1906, p. 727).
The charter of East Rome having been repealed, and all of its territory and corporate property transferred, with all of its liabilities, to the city of Rome, there was no theoretical continuance of the existence of East Rome, relatively to existing creditors, for the purpose of enabling them to collect their debts. As to creditors and all other persons the corporation went out of existence for all purposes, and could not thereafter be sued.
It was not erroneous to dismiss the action on the ground that the defendant, the alleged town of East Rome, did not exist at the time the suit was filed.
Error from Superior Court, Floyd County; Moses Wright, Judge.
Action by Henry Walker against the Mayor and Council of City of East Rome. Judgment for defendant, and plaintiff brings error. Affirmed.
Denny & Wright, of Rome, for plaintiff in error.
Max Meyerhardt, of Rome, for defendant in error.
1. The judgment of dismissal was as follows:
By the act of 1906 (Acts 1906, p. 1010) it was provided that the charter of the city of Rome be amended to take effect from and after the 1st day of January, 1907, so as to extend the corporate limits of the city of Rome and to incorporate into and as a part of the city of Rome all the territory included within the corporate limits of the town of East Rome. It was further provided that the act should not become effective unless the same should be approved by a majority of the voters of the town of East Rome at an election to be held on September 12, 1906. The judgment complained of was rendered by the judge at a term subsequent to the appearance term, under a submission of the case to him for decision, and recited, in effect, that it was made to appear that the act had become effective. The assignments of error do not complain that there was no evidence to authorize such finding; and it is to be presumed that the judge had before him sufficient evidence that the act had been approved by the people at an election held in accordance with the terms of the act, thereby rendering it effective. If there was no such evidence, and the plaintiff desired to show that the judgment was erroneous on that account, the burden being upon the plaintiff in error to show error requiring a reversal of the judgment of the trial court, it was his duty to make it legitimately appear before the Supreme Court that there was no such evidence.
2. On the day the act was approved there was another act approved, purporting to amend the charter of the town of East Rome (Acts 1906, p. 727). This act did not repeal the act above mentioned, or prevent it from going into effect. The question was elaborately discussed by Pottle, J., and correctly decided in the Court of Appeals. Walker v. City of Rome, 16 Ga.App. 817, 86 S.E. 658.
3. Having disposed of the question as to whether the act went into effect, we may now consider its effect upon the rights of the plaintiff as an ordinary creditor without a lien at the time of its passage. It is urged in a brief filed by the plaintiff that, notwithstanding the express terms...
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