When this case was called for trial in the superior court, a motion was made to dismiss it because it was improp
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 pn 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 is
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 the defendant. We think otherwise. The direction as to the proper and only proper parties is positive, and existing legislation has made provision for service in cases where a county is the defendant. Code, §§491, 492. In Bennett et ux. vs. Walker et al., 64 Ga., 326, the suit was brought in the name of commissioners, instead of that of the county, and it appearing that the county was the party really interested, this court, in reversing the judgment and ordering the suit dismissed, held that, under this provision of the constitution, all suits by or against a county must be in the name thereof, and that it followed where the county magistracy, such as commissioners, sue for land officially in their own names, no recovery can be had. It is true, that was an action of ejectment, and it is added, “ that they could not maintain the suits, if (hey had no possession of the land, and if the title was not in t hem, but in the county;” but we do not perceive that the peculiar character of the suit distinguishes it from others in which the right of action is in the county, or where the liability is upon it for a violation or invasion of the rights of private persons, by their agents, acting officially within the scope of their authority, such as laying out and main»
2. We are of opinion that the court was right in refusing eadj of them. To maintain that a suit which had not been brought against a county as a corporate body could be so amended as to make the county, with others, a party would, as it seems to us, be not only an evasion of the stern legal requirements already invoked, but would be in open violation of section 3480 of the’ Code, which forbids the allowance of an amendment adding a new and distinct cause of action or new and distinct parties, unless expressly provided for by law. We know of no such provision.
What is true of this amendment is likewise true of the proposition to strike from the' declaration words which would have changed the suit from one against the commissioners officially to one against- them in their individual capacity. Code, §3358, and citations; Gill vs. Tison et al., 61 Ga., 161; Tiller vs. Spradley, 39 Ga., 35.
3. Another question has been made and argued in this case, but which does- not seem to have been passed upon by the court below. It is insisted that no action could be maintained against the county unless the plaintiff’s claim had been presented to and refused by the board of county commissioners, and not then unless it had been brought within a year from the date of the refusal, and the following citations were made as applicable to this position: Code, §507; Powell vs. The County of Muscogee, 71 Ga., 587; Maddox vs. The County of Randolph, 65 Id., 216. Whatever may be the merit of this suggestion, it is wholly unnecessary, under the facts of the record, to consider it, and as there was no judgment passed on it by the superior court, it would seem best to leave it without further remark.
Judgment affirmed,