100 Ga. 701 | Ga. | 1897
The Augusta & Summerville Railroad Company was incorporated by an act of the General Assembly, approved
Prior to the year 1868, the South Carolina Railroad' Company was in possession of and using a railway track which had been laid longitudinally in Washington street in the city of Augusta, claiming the right to do so under ordinances adopted by, and contracts made with, the city council. This track affords the only existing means by which a connection between some of the railroads running into Augusta can he made with other railroads en-
On November 13th, 1889, the General Assembly passed an act to continue in force the charter of the Augusta & Summerville Railroad Company. This act recited that the •original 'act of 'inooaporiaitioin Would expire on the 20th day of March, 1896, and provided .that it “he continued of force from and after Itihe exptinaltilon (thereof for (the full term of fifty additional years, with all the powers and privileges given in said act not restricted hereby.” Among the restrictions thus indicated, it was declared that “nothing in tin's act contained shall have 'the effect ar he construed to extend or continue in force” the several acts .amending the company’s charter, which had .been previously enacted, nor the several ordinances which the City Council of Augusta had adopted with aiefetLieinee to this company, mlor the special contract between the council .and the company; and also, that “this act -is not intended, nor shall it be construed to extend to said corporation any exclusive rights or privileges to the use of the streets of the city of Augusta, but the right to use .any and all of said streets shall be subject to the consent of and on such conditions as may be prescribed by the city council of Augusta.” This act further declared that the company might, “at .any time, 'by a majority vote of -the stockholders, surrender their present charter before tbe expiration thereof and accept this new charter, with all its privileges and liabilities.” There was never any direct action by the stockholders accepting the act of 1889 as the company’s charter, but the company did formally apply to and obtain from the Oity Council of Augusta valuable privileges and franchises, the application, reciting that it
Shortly before the 20th day of March, 1896, the Augusta & Summerville Railroad Company became aware that .after that day the city council intended to treat its contract with that company and the various ordinances which had been adopted in its favor as to the use of the streets of the city as having expired by limitation, and that it was the purpose of the municipal authorities to assume in behalf of the city the position 'of toll-gatherers from the steam railroad companies. Accordingly, the Augusta & Summer-ville Railroad Company filed an equitable petition against the city council, alleging, in substance, that all the rights, privileges and franchises it had obtained from the city would remain of full force and unimpaired after the day mentioned, and praying 'that the city be enjoined from interfering therewith or carrying into effect its proposed scheme •of substituting itself for the plaintiff as a gatherer of tribute from the steam railroad companies. These last, in their pleadings, coincided with the city in its defense to the petition, in so far as it sought to break up the monopoly which
1, 2, 8. Tbe original contract between -the city council' and tibe Augusta & Summerville Railroad Company and tbe ordinances adopted in its favor did expire on March 20th, 1896. Tbe company’s charter was for thirty years. Tbe grants were “for and during tbe term of their charter.” Plainly this meant tbat tbe grants were not to extend beyond tbe term of thirty years fixed by tbe charter. It makes no difference tihat tbe General Assembly ratified and confirmed this contract and these ordinances. This could.not, and did not, give them any more force than they bad in and. of themselves. That they were declared “not.liable to be' repealed by tbe city council,” simply meant tbat tbe latter’ could not cancel or annul its contracts as made. This declaration was certainly not intended to give these contracts a vitality they did not otherwise possess, or prolong tbe period'during which they should be effective. Tbe use of the-word “forever” in tbat portion of the special contract wherein tbe city undertook to keep in force an ordinance securing to tbe company tibe use of its tracks and prohibiting obstructions to tbe free passage of its cars, cannot be-given tbe significance claimed for it. In tbe light of all tbe facts, it would be very unreasonable to bold tbat tire employment of this word in this connection must necessarily operate to confer upon tbe company a grant in -per-pet-uam of exclusive and most valuable privileges, when everything else which occurred sboiws tihat nothing of the-
4, 5. It certainly can not be doubted that if the Augusta • & Summerville Railroad Company accepted the act of 1889, :it became the company’s charter. This proposition was not denied, but it was insisted that the company had not accepted this act, because it had not pursued the method ■for so doing pointed out in the act itself, viz: by surrendering tbe old charter before its expiration, and accepting tbe new one with all its privileges and liabilities. This was .not the exclusive manner in which the new charter could he accepted. The company, in its corporate capacity, made .an application to the City Council of Augusta for certain valuable privileges and franchises, which it obtained, used, ■enjoyed, and afterwards sold to .another corporation. As .-already remarked, this application recited .that it was made ¡under and by virtue of this very act. Haw, then,- can the
6. The act of December 20th, 1893, providing for the-renewal of charters previously granted to railroad and other-companies, manifestly could have no application except as to corporations whose charters had expired or were about to-expire. A company whose charter life was, in 1889, extended for a period of fifty years from March 20th, 1896,, as was the case here, had no right, in the latter year, to-apply to and obtain from the secretary of State any renewal of its charter. Of -course, the application with which we are now dealing was made upon the theory -that the Augusta & Summerville Railroad Company had not accepted the act of 1889, but it has been shown that -this theory was not well founded in fact.
7. It is clear that, under the provisions -of the act of 1889 which have already been set forth, the Augusta & Summerville Railroad Company could not continue to use-the streets of Augusta for t-he pur-poses specified in its original charter Avithou-t again obtaining the consent of the city council.
The foregoing disposes of this case so far as relates to this, company. We will now discuss .the controversy between the City Council of Augusta and the steam -railroad companies, the nature of which has been stated.
8. The question involved is, did the legal predecessors of these -companies have the right to operate Avith steam, power a railway longitudinally located in -and along a public-street in the city of-Augusta? The record discloses beyond' controversy that', under contracts Avith the city council, they did have such right, if that body had sufficient legislative-
In South Carolina Railroad Co. v. Ells, 40 Ga. 87, the question was whether or not justices of the peace had jurisdiction to abate a nuisance in the city of Augusta, the alleged nuisance being the running of trains in and along W adhiington street in rfhalt city. The railroad companies asserted their right to run these trains under a city ordinance which they, evidently referring to the above mentioned act of 1856, claimed had been mltfarized by ¡the General Assembly; but the question whether this act did or 'did not confer upon the municipal corporation authority to adopt the ordinance relied upon was not passed upon, nothing in fact being decided except that the justices of the peace had no jurisdiction in 'the premises.
The decision in Vason v. South Carolina Railroad Co., 42 Ga. 631, apparently, we do not hesitate to say, sustains the contention that the act of 1856 authorized the City
One of the acts referred to was an amendment to this* company’s charter, approved December 28 th, 1866, giving; it the right to use dummy cars or engines over the streets of Augusta. Then there was an ordinance adopted November 9th, 1867, granting this company “the right of using; locomotive power for the movement of passenger and baggage and freight cars, on their tracks” on various named streets, including Washington, “during the continuance of; their aforesaid contract,” 'the contract here referred to being; the special contract between the city and the company alluded to in the preliminary statement preceding this discussion. Following the ordinance just mentioned came that of March 13th, 1868, authorizing 'the Augusta & Summer-ville Railroad Company to lease the track in Washington, street from the S'outh Carolina Railroad Company, which i’t did, as above seen; and accordingly, it had control of this-track when Yason’s case was heard. At the trial of that, case, all these -acts and ordinances were under consideration,, and it cannot be doubted that they had great weight in its-determination. We entertain no reasonable doubt that the-rights and powers of the Augusta & Summerville Railroad. Company were the chief factors in bringing about the judgment rendered by the city council and its affirmance by the; superior court. The act of October 26th, 1870, was apr
The foregoing is, we believe, a fair presentation of the Yason case, and in view thereof we feel safe in saying that: it would not do to make that case a basis for holding that the act of 1856 conferred upon the municipal government, of Augusta the large power claimed for it, as above indicated. In so far as the decision of this court in the case of South Carolina Railroad Co. v. Steiner, 44 Ga. 546, may bear upon this question, what is said above is applicable tO' it also.
It only remains to show that upon principle and upon general authority the 24th section 'of the act of 1856 cannot, be given the scope contended for. The correctness of the. well settled proposition that there must be clear legislative; authority to construct and operate a steam railroad along a street of a city was very properly conceded; but it was, earnestly insisted 'that such authority was conferred by the; above cited enactment, and, in this connection, that a legislative grant of power to a municipal corporation to confer privileges or franchises upon railroad companies was not: subject to the rule of strict construction undoubtedly applicable to grants in derogation of the rights of the general public made directly (to the eiompiamies themselves. It was argued that the General Assembly, having complete control, of the streets of the city of Augusta, had made a general delegation of its sovereign authority in this regard to the-City 'Council of Augusta; that this body thus obtained a broad discretionary power in the matter of permitting railroad companies to connect their tracks within the corporate;
Judgment in each case affirmed.