City Council of Augusta v. Augusta-Aiken Railway & Electric Corp.
150 Ga. 524
Ga.
1920
Check Treatment
Hill, J.

(After stating the foregoing facts.)

1. As wе view this case there is but one controlling question, viz., whether under a proper construction of the ordinances of the City Council of Augusta and the Village of Summerville, and the act of 1916 (Acts 1916, p. 549), the railway company is liable for the cost of paving the foundation and surface under and between its tracks on Walton Way in the City of Augusta, аccording to the plans and specifications adopted by the city for the improvement of this particular street, which plans were served upon the railway company. It is contended by the city that the railway company is liable for such cost under those ordinances and certain legislative authority, the act of 1916, supra. It is necessary, therefore to set out so much of these ordinances and acts as may be necessary to the correct decision in the case. By аn ordinance approved April 6, 1896, amending an ordinance passed February 13, 1890, it was provided in section 3 that “the exemption given the Augusta Bailway Company, and its reorganized or successor company, from constructing and keeping in repair any of the streets or parts of streets, shall remain of force not excеeding the term of its present charter, and in consideration of which the Augusta Bailwav Company, or its reorganized or successor company, agrees to oрerate its cars on the Turpin Hill division as far as Marburv *527Street at intervals of not less than twenty minutes,” etc. Section 4 of the same ordinance provides that “Whenever the city shall determine to ‍‌​‌​​‌​‌‌​​‌​‌‌‌‌‌‌‌‌‌​‌​​​‌​‌‌‌‌‌​​‌‌‌‌‌​​‌‌‌​‌‍pave any of its said streets on which said company’s tracks are or may be located, with belgian blocks, asphalt, granite, or other material, then said railroad company shall be required to prepare its tracks to receive and accommodate any such material as may be dеtermined upon by said city. [Italics ours.] On April 25, 1896, an ordinance was adopted by the Village of Summer-ville, similar to that by the City Council of Augusta, in section 1 of which ordinance it was provided that “The said Augusta Railway Company, its reorganized ‍‌​‌​​‌​‌‌​​‌​‌‌‌‌‌‌‌‌‌​‌​​​‌​‌‌‌‌‌​​‌‌‌‌‌​​‌‌‌​‌‍or successor company, in consideration that it has promised and covenanted with said Board of Cоmmissioners to operate at least a twenty-minute schedule on the line of its cars between said Village and the City of Augusta, shall be exempt from paving, constructing, or maintaining any portion of the streets in said Tillage [Italics ours]; this exemption to continue fоr and during, but not exceeding, the term of the present charter of said company, and in- no event is it to be construed as a license or grant in perpetuityetc. Thе latter ordinance also provided that “whenever said village authorities shall determine to pave or macadamize any of its said streets on which the traсks of said company are or may be located, then said railroad company shall be required to prepare its tracks to receive and acсommodate any such material ‍‌​‌​​‌​‌‌​​‌​‌‌‌‌‌‌‌‌‌​‌​​​‌​‌‌‌‌‌​​‌‌‌‌‌​​‌‌‌​‌‍as may be used in constructing said streets as the said village authorities may determine upon.” [Italics ours.] This portion of the street in the Villаge of Summerville was subsequently taken into and became a part of the streets of the City of Augusta. No question is raised as to the authority of the municipalities to makе the above contract. The act of 1916 (Acts 1916, p. 549) provides that “a railroad company now having, or which may hereafter have, tracks running through or across strеets or public alleys of. said city so improved, shall be -required to pay to the City Council of Augusta the cost of macadamizing or otherwise paving, as the City Council оf Augusta may direct, ' the width of its tracks and three feet on each side of every line of its track,” etc. The act of 1887 (Acts 1887, p. 566, § 4) provides that any street-railroad having tracks running through the streets of Augusta “ shall be required to macadamize or otherwise pave, as the city council may direct,” etc. Neither of the above *528acts аpplied to the Village of Summerville. The question, therefore, is whether under the ordinances and acts the City of Augusta can require the railway company to pay the cost of placing the foundation and surface under its tracks in the street in question, in accordance with the plans and specifications adopted by the City Council of Augusta, which were served upon the railway company. It is argued by counsel for the railway company that to prepare its tracks to receive ‍‌​‌​​‌​‌‌​​‌​‌‌‌‌‌‌‌‌‌​‌​​​‌​‌‌‌‌‌​​‌‌‌‌‌​​‌‌‌​‌‍and accommodate such material, as contemplated by the ordinances above set out in part, does not impose upon it the expense оf placing beneath its track a substructure of grouted stone and cement as required by the city council, but that the ordinances only require it to excavate its track sufficiently, and bring it to the proper grade and level, so that the city, at its own expense, may place the material determined upon by it as a part of its prоposed paving plan.

The duty of construing the ordinance devolved upon the judge. City of Columbus v. Ogletree, 102 Ga. 293 (2), 296 (29 S. E. 749) ; 2 McQuillin on Mun. Corp. 1733, § 810. And it has been held that the rules of construction for an ordinancе are the same as for a statute. Ib. In arriving at the intention, the facts and circumstances surrounding the adoption of the ordinance exempting the railway comрany from paying any part of the paving cost, as well as the old law, may be considered. The record shows that the receiver of the Augusta Eailway Company, bеfore the adoption of the ordinances in 1896, addressed, a communication to the Board of Commissioners of Summerville and the City Council of Augusta, stating that the comрany was insolvent and in the hands of a receiver and was about to be sold and reorganized, ‍‌​‌​​‌​‌‌​​‌​‌‌‌‌‌‌‌‌‌​‌​​​‌​‌‌‌‌‌​​‌‌‌‌‌​​‌‌‌​‌‍and that the failure of the company was due to the large expense put upon it in paving the streets of Augusta, and that it would be impossible to reorganize the company unless it was relieved of this burden. It appears also that in pursuance of this communication the Village of Summerville adopted the ordinance relieving the company from any cost of paving the streets, and the City Council оf Augusta passed a similar ordinance. It appears that prior to the passage of these ordinances the railway company had been required to рave the track area. In cases of doubt the title of an act may furnish some aid in showing what was in the mind of the legislature. U. S. v. Palmer, 3 Wheat. 610, 631 (4 L. ed. 471); Etowah *529Milling Co. v. Crenshaw, 116 Ga. 406, 408 (42 S. E. 709): So, the title of an ordinance may be cоnsidered in its interpretation. 2 McQuillin. Mun. Corp. 1737, § 812. Referring to the title of the Augusta ordinance in which the exemption above referred to appears, it will be seen that thе purpose of the ordinance was to amend the former ordinance which required the Augusta Railway Company “ to construct and keep in repair the streеts used by said company for its tracks;” and the title of the Summerville ordinance is “to exempt the Augusta Railway Company, its reorganized or successor company, from street paving or street building in the Village of Summerville, on certain conditions.” We think these titles clearly show that it was the purpose of the City Council of Augusta and the Village of Summerville to exempt the railway company from street-paving. And we do not think that the words which require the company to “prepare” its tracks to “recеive and accommodate” such material as might be selected by the city militates against this view. In view of the foregoing, the parts of the ordinances which providеd that whenever the city decided to pave the streets the company should “be required to prepare its tracks” at any and all times for receiving any kinds of mаterial that the city might see proper to put in it, did not mean that it should make large outlays for street building or paving, as contended for by the city. On the contrary we think it was intended only that the railway company should excavate, grade, and level its tracks to receive the grouted stone and concrete which might be purchasеd and placed therein by the city. From what has been said above it follows that the court did not err in granting the injunction; nor in refusing the mandamus absolute prayed for in the cross-action.

Judgment affirmed.

All the Justices concur.