171 Ga. 175 | Ga. | 1930
Lead Opinion
In McGregor v. Clark, 155 Ga. 377, this court said: “A repeal by implication takes place 'only in so far as a statute is clearly repugnant to a former statute, and so irreconcilably inconsistent with it that the two can not stand together, or is manifestly intended to cover the subject-matter of the former and operate as a substitute for it, that such a repeal will be held to result.’ ” This rule is stated in various forms in the following cases. Erwin v. Moore, 15 Ga. 361; Jones v. Central Railroad &c. Co., 21 Ga. 104; Miller v. Southwestern Railroad Co., 55 Ga. 143; Pausch v. Guerrard, 67 Ga. 319; Kennedy v. McCardel, 88 Ga. 454 (14 S. E. 710); Gress Lumber Co. v. Goody, 99 Ga. 775 (27 S. E. 169); Butner v. Boifeuillet, 100 Ga. 743 (28 S. E. 464); Crovatt v. Mason, 101 Ga. 246 (28 S. E. 891); Western & Atlantic R. Co. v. Atlanta, 113 Ga. 537 (38 S. E. 996, 54 L. R. A. 294); Horn v. State, 114 Ga. 509 (40 S. E. 768); Edalgo v. Southern Ry. Co., 129 Ga. 258 (58 S. E. 846); Gray v. McLendon, 134 Ga. 224 (67 S. E. 859); Verdery v. Walton, 137 Ga. 213 (73 S. E. 390); Jones v. Stokes, 145 Ga. 745 (89 S. E. 1078); Brackett v. Arp, 156 Ga. 160 (118 S. E. 651); Friedman v. Mizell, 164 Ga. 1 (137 S. E. 400). In Horn v. State, supra, it was said: "The rule as to repeal by implication is, in such cases, so far as we can ascertain from the authorities, that when the legislature intends to revise a former act or charter or to deal exhaustively with the subject of all or a part of the original act, and a portion of the original act is left out, such omitted portion is repealed by implication.” In the light of the foregoing, the first question propounded by the Court of Appeals will be answered.
In section 10 of the act of 1879 (Ga. L. 1878-9, p. 125), creating the Railroad Commission of this State, it is declared: “That if any railroad company doing business in this State shall, in violation of any rule or regulation provided by the commissioners aforesaid, inflict any wrong or injury on any person, such person shall have a right of action and recovery for such wrong or injury in the
The Civil Code (1910), § 2640, provides for liability of a railroad company for damages produced by “violation of any rule or regulation” made by the railroad commissioners. Eates and tariffs “fixed by” the board of railroad commissioners come within the meaning of the words “rule or regulation” above mentioned. Parmelee v. Savannah, Florida & Western Railway, 78 Ga. 239 (2 S. E. 686). A charge for freight in excess of the rates and tariff fixed by the commission is such violation of the rules of the commission as will give a statutory right of action under that section of the Code. This applies also to rules and regulations of the Georgia Public Service Commission, that body being the successor to the former board of Eailroad Commissioners of Georgia, and having in virtue of the act of 1922 (Ga. L. 1922, p. 143) succeeded to all its powers and duties. Fstes v. Perry, supra. The rates and tariffs which a railroad company may charge are no longer the subject of contract between such companies and their patrons, but are fixed by the rules and regulations of the commissioners, and the statute gives the right of action against the companies for charging intrastate freight rates in excess of those fixed by the commission.
The Civil Code, § 2666, imposes statutory liabilities against common carriers for positive acts “forbidden or declared to be unlawful;” also where such carriers "omit to do any act, matter, or thing required to be done either by any law of the State of Georgia, by this section, or by an order of the commission.” The only liability having relation to an “order of the commission” is for omission to perform such order or mere nonfeasance. This does not include liability for the positive acts of charging and collecting freight
The language of § 2640, in relation to limitation of actions based on excessive freight charges, is “that all suits under this article shall be brought within twelve months after the commission of the alleged wrong, or injury.” This limitation is a part of the statute that provides for the liability. It can not be taken out of the statute by construction. This comports with the ruling in Parmelee v. Savannah, Florida & Western Railway, supra, in which it was held: “Under § 719(j) of the Code [§ 2640 of the Code of 1910], it is a condition precedent to the bringing of a suit for the recovery of amounts paid for freight to a railroad companjr, in excess of the sum allowed by the railroad commission, that the suit should be brought within twelve months from the time the right of action accrues.” A request is made to- review and overrule the decision in that case; but this court, being satisfied with the ruling there made, declines to overrule it. That which' is stated above finds support also in the decision in Kansas City Southern Ry. Co. v. Wolf, 261 U. S. 133 (43 Sup. Ct. 259, 67 L. ed 571) involving the limitation fixed by § 16 of the interstate-commerce act, wdrich provides that “All complaints for the recovery of damages shall be filed with the commission within two years from the time the cause of action accrues, and not after.” The Supreme Court, quoting from Phillips Co. v. Grand Trunk Western Ry. Co., 236 U. S. 662 (35 Sup. Ct. 444, 59 L. ed. 774), said: “Under such a statute the lapse of time not only bars the remedy but destroys the liability. . . For when it appeared that the complaint had not been filed within the time required by the statute, it was evidence, as matter of law, that the plaintiff had no cause of action.” Under proper construction, the limitation expressed in the Civil Code (1910), § 2640, requires that all suits against railroad companies for the recovery of freight charges paid on intrastate shipments, in excess of the rates and tariffs fixed by the Georgia Public Service Commission, shall be brought within twelve months after the commission of the wrong.
Questions 1 and S answered in negativej 2 and 4 in affirmative.
Dissenting Opinion
dissenting. 1. I dissent from the ruling stated in the 2d division of the decision. Does section 2640 of the Civil Code of 1910 confer the right on a shipper to bring an action for the recovery of freight charges paid on intrastate shipments, in excess of the rates fixed by the Georgia Public Service Commission? The power to determine what are just and reasonable rates and charges was vested exclusively in the Eailroad Commission of this State under the act of October 14, 1879, by which it was created. Acts 1879, p. 125. By that act and the acts amendatory thereof, the railroad commissioners were required to make <e reasonable and just rates of freight and passenger tariffs, to be observed by all railroad companies doing business in this State on the railroads thereof.” Acts 1879, p. 125; Acts 1889, p. 131; Acts 1907, p. 72; Civil Code (1910), § 2630. The commissioners were likewise required to make reasonable and just rules and regulations to be observed by all railroad companies doing business in this State, as to charges to any and all points for the necessary handling and delivery of freights. They were likewise required and are required to make such just and reasonable rules and regulations as may be necessary for preventing unjust discriminations in the transportation of freight and passengers on the railroads in this State. They were likewise empowered to make just and reasonable rules and regulations to be observed by railroad companies to prevent the paying of any rebate or bonus, directly or indirectly, and from misleading or deceiving the public in any manner as to the real rates charged for freight and passengers. They were likewise clothed with power by rules and regulations to designate and fix the difference in rates of freight and passenger transportation to be allowed for long and shorter distances. Civil Code (1910) § 2630. The Public-Service Commission of Georgia is further authorized to make reasonable rules and regulations touching other matters than those referred to above. Civil Code (1910), §§ 2633, 2634, 2638. So the Public-Service Commission of this State is empowered both to fix reasonable and just freight and passenger rates, and to make reasonable rules and regulations for the government of the public utilities subject to its jurisdiction. It thus appears that the legislature in passing the act of 1879 made a distinction between the
In these circumstances what is the proper construction of section 3640 of the Civil Code? Does this section authorize a suit to recover freight overcharges? It provides that “If any railroad company, doing business in this State, shall, in violation of any rule or regulation provided by the commissioners, . . inflict .any wrong or injury on any person, such person shall have a right of action and recovery for such wrong or injury, . . and the damages to be recovered shall be the same as in actions between individuals, except that in cases of wilful violation of law such railroad companies shall be liable to exemplary damages; provided that all suits under this article shall be brought within twelve months after the commission of the alleged wrong or injury.” It provides a remedy for the recovery of damages for a wrong or injury inflicted on any person by a violation of any rule or regulation of the commission. It provides a remedy by which the person can recover damages for such wrong or injury, and in addition provides for exemplary damages if the injury or wrong is committed wilfully. It does not expressly provide for the recovery of freight overcharges. While the fixing of freight and passenger rates is in a general sense a regulation, is this action such a rule or regulation as comes within the meaning of this section? I am of the opinion that this section should be construed in connection with section 3770 of the Civil Code, which provides a remedy for the recovery of overcharges, and fixes a penalty for so doing. It is true that section 3770 of the Code was taken from the act of 1889; and it may be contended that it was the purpose of the legislature to provide two remedies for the recovery of overcharges. I do not think that this contention is well founded. If the legislature had intended, by the adoption of the act which is now embraced in section 3640 of the Code, to provide a remedy with a penalty for the recovery of overcharges, it would hardly have passed the act of 1889, now embraced in section 3770, which likewise provides a remedy for the recovery of overcharges with a penalty. It is true that the penalties provided in the two sections are different. Clearly the legislature was of the opinion that section 3640 did not provide a remedy for the recovery of overcharges with a penalty, and therefore passed the act of 1889, now embodied in section 3770.
2. I dissent from the ruling made in the 4th division of the decision. The majority hold that section 264-0 of the Civil Code of 1910, when properly construed, "requires that all suits against railroad companies for the recovery of freight charges paid on intrastate shipments, in excess of the rates and tariffs fixed by the Georgia Public Service Commission, shall be brought within twelve months after the commission of the wrong.” The majority do not confine themselves to the proposition that all suits brought under the above section of the code must be brought within twelve months after the commission of the alleged wrong or injury, but so extend the scope of this section as to prohibit any action for overcharges of freight rates unless such action is brought within 12 months after the wrong is committed. The ruling is based upon the assumption that the statute (§ 2640) created a new right which did not exist prior to the adoption of the statute, and that the statute which created the right made the exercise of the right contingent upon the bringing of the suit within twelve months after the commission of the wrong. This reasoning would be sound if this statute created for the first time the right to sue carriers for overcharges of freight, with the provision that the suit must be brought within twelve months from the collection of the overcharges. This statute did not for the first time give to shippers the right to recover from carriers overcharges of freight. Under the common law, where a carrier made overcharges, the same could be recovered by an action for money had and received. 10 C. J. 454, § 717; Cullen v. S. A. L. Ry. Co., 63 Fla. 122 (58 So. 182); Mobile &c. R. Co. v. Steiner, 61 Ala. 559. Besides, the party aggrieved is not limited to this form of action, but may sue in tort for a violation by the carrier of its duty in this respect. 10 C. J. 454, § 717; Smith v. Chicago &c. E. Co., 49 Wis. 443 (5 N. W. 240); Southern Railway Co. v. Schlittler, 1 Ga. App. 20 (3) (58 S. E. 59); South
The majority rely upon the decision in Parmelee v. S., F. & W. Ry., 78 Ga. 239 (supra), to support their ruling. In my opinion it is not authority for the position taken by the majority. In that case this court held that the action brought therein was brought under the law embraced in section 719(j) of the Code of 1882 (section 2640 of the present Code). With that finding of fact, the ruling made in that casé was inescapable. Conceding that an action is brought under section 2640, it clearly and necessarily follows that it must be brought within the time limit thereby fixed. Otherwise it will be barred. A statute instituting a new remedy for an existing right does not take away a pre-existing remedy, without express words or necessary implication. In such a case the new remedy is cumulative, and either may be pursued. When a statute gives a right and remedy which did not exist at common law, and provides a specific method of enforcement, the mode of procedure provided by the statute is exclusive and must be pursued strictly. Southern Railway Co. v. Moore, supra. Besides, by the act of 1889
