71 Ga. 106 | Ga. | 1883
The Gate City Gas Light Company brought suit on the equity side of the court against the City of Atlanta, the mayor of said city, and its engineer, and alleged by its ibill that it was incorporated by an act of the general assembly of Georgia, approved'the 4th of February, 1875; fthat in addition to the powers conferred on such corporations, of having and using a common seal, etc., full power "and authority was granted it to make, manufacture and .¡.sell,gas, to be made of coal, rosin, or other materials, for .lighting the streets, jrablic and private buildings, and 'other-places in the city of Atlanta, and “to lay down in any and all of the streets, lanes, avenues, alleys, squares . and public grounds of said city, gas pipes, and other apparatus for conducting gas through the same, and to erect therein such gas posts, burners and reflectors as may be necessary-, or convenient,” “ only provided that the public .thoroughfares shall at no time be unnecessarily interrupted or impeded by the laying down or erection thereof, and that said -streets, lanes, avenues, squares and public . grounds shall not be thereby injured, but shall be left in . as good state and condition as they were before the laying ■ down of said pipes, conductors, or other apparatus, and ; the erection of said posts.”
Said complainant purchased a parcel of land in said '"city, in ward one (1), on land lot seventy-eight, fronting on ¡the right-of-way--of the Central Railroad one hundred feet, ¡.¡and running back on an alley one hundred and fifty-seven ffeej,, joining Mrs. M. F. Parker on'the north, and E. L. Uonesi on the south, and built thereon, in a tasteful and most-durable manner and style, all the structures required
Complainant placed in said buildings machinery and apparatus for the manufacture of gas, duplicated and of a capacity to supply a city of over one hundred thousand inhabitants.
The quality of said materials and style of workmanship cannot be excelled, and has never been equalled in the Southern States, and is open to inspection at any time.
The company has had cast mains for eight miles of streets. Fourteen car-loads of the same had arrived in Atlanta prior to the 4th of May, 1883, and the remainder was then en route for Atlanta (and part of the same has since arrived).
The company had then employed Hunnicutt & Bellingrath, of Atlanta, men skilled in such work, and responsible, to lay down said pipes, and erect said structures.
These mains are large enough to be so extended as to accommodate three hundred thousand inhabitants.
The company put extra work and expense upon its said plant. Their outlay for these Atlanta works already made is about one hundred and forty thousand dollars.
The company Iona fide intends making and selling good and cheap gas to the city of Atlanta and its inhabitants, and would be now preparing therefor but for the' reasons now to be stated. Being ready to begin laying its pipes and desirous of the co-operation of the city authorities of the city of Atlanta in its work, so as to avoid all misunderstandings and disagreements as to grades, etc., complainant addressed to the mayor and general council of the city of Atlanta a written request for the co-operation of their body or of the proper officer of said city in so beginning their work. The same was, on the 27th of April, 1883, referred to their city attorney and gas committee Ho investigate andreport allfacts.” Said committee did, on the 7th of May, 1883, report in writing that they had fully investí
On said 7th of May, 1883, after consideration of said report, said general council “ refused ” the request of complainant. Afterwards, to-wit, on the 11th of May, 1883, said company, still asserting its charter rights, but desirous of complying with all proper precautions to prevent collision with the city authorities, addressed to the city engineer, in accordance with section six hundred and twenty-one of the last revised Code of Atlanta, a written request for permission to dig streets for the purpose of laying such mains. '
On the said 11th of May, 1883, said city engineer replied thereto, refusing his permission, because of the action of the mayor and general council aforesaid.
On the day last aforesaid, said company gave written notice to the mayor of said city of the foregoing correspondence with the city engineer, denied his right so to refuse, and asked whether the mayor would interfere with said company in so laying its pipes as is allowed by its charter.
Thereupon, on the 12th of May, 1883, said mayor, in writing, replied that, as the executive officer of the general council he should certainly regard it as incumbent on him to conform to the will of that body as expressed (as aforesaid) on the 7th of May, 1883, by enforcing against the company and its agents any and all penal laws or ordinances of the city of Atlanta, violated by the obstruction or interference with the streets of the city for laying mains, or excavating therein, without the permission of the mayor and general council or city engineer for such purpose
Complainant shows that said defendant is a public corporation, having no authority except that expressed in its charter. By its charter or act of incorporation, as amended by an act of the general assembly of Georgia, approved on the 28th of October, 1874, the “inhabitants” of Atlanta were “ continued a body corporate by the name and style of the City of Atlanta,” “with power to govern themselves by such ordinances, resolutions and by-laws for municipal purposes as it may deem proper, not in conflict with this charter nor the constitution and laws of this state, nor of the United States.” Code of Atlanta, §1.
By said charter the mayor and council of Atlanta elect the city engineer (Ib., 96), and other officers there named, “whose duties shall be prescribed by ordinance” (Ib., 96). He is “removable for cause, to be judged of by the mayor and general council” (Ib., 96).
By their charter said mayor and general council have power to open, lay out, widen, straighten, or otherwise change streets, fix a system of grading and draining the same, to require streets and sidewalks paved, and to close lanes and alleys. But said corporation does not own the streets of said city in fee, and has no control over them, except what is necessary to enforce such ordinances as it has made or may make, not inconsistent with the laws of said state.
Among the ordinances made by the said corporation is this:
§621. “Any person who desires to excavate any street to any extent, for the purpose of laying sewer or gas pipes, or for any other purpose, shall get permission, in writing,- from the city engineer, which shall specify the streets and portions thereof which are to be so excavated, and the length of time for which such permission is granted. During the time such work is progressing lighted lanterns*112 shall he placed on either end of said excavation, and any piles of dirt or material.
“The top soil and rock, if any, shall be carefully kept apart from the clay or lower earth, and shall he replaced in as good condition as the same was before, or to the satisfaction of the engineer.
“Any person or persons violating this section, or any part thereof, shall, on conviction, be fined not more than one hundred dollars, or imprisoned not more than thirty days.”
This ordinance was passed on the seventeenth day of May, 1880.
Another of said ordinances is this:
§654 “No person shall place any trash, timber, wood, glass, or other obstruction in any public street, lane, alley, or way in said city, or on any sidewalk.
“Any person who shall place any obstructions as aforesaid in any public street, lane, alley or way, or on any sidewalk, failing or refusing to remove the same within six hours after being notified by the chief (of police) or any member of the police force, or having removed the said obstruction, shall replace the same, shall, on conviction, he fined not exceeding one hundred dollars, or imprisoned not exceeding thirty days.”
The mayor of said city had called the attention of complainant’s solicitor to said ordinances, and hence their specific mention as aforesaid.
By an ordinance passed on the 15th of March, 1872,
“Any person or persons actually building, or about to build or repair any building, may collect and lay all such materials as may be necessary for such building or repairs in the street, lane, or alley next adjoining to or in front o£ such building or repairs, and shall have the privilege of using one-half of the sidewalk and one-half of the street adjoining.” with certain provisos as to interfering with the running of street car lines, and as to lanterns at night to prevent accidents, etc.
The mains to be laid are iron cylinders, each twelve feet long and ten inches in diameter, and other smaller sizes. They are very heavy, and require many persons to handle them, so as to prevent breaking or cracking them, and thereby rendering them useless for the purpose of distributing gas.
Before they can be put into the ground they must be
Complainant, besides the plant already mentioned, has contracted for the casting of three other miles of piping for distribution of gas in said city. Its arrangements are made for a speedy consummation of their lona fide purpose to make and sell gas in Atlanta for public and private use under said charter..
- The general assembly of Georgia, by its said charter, annulled any and all ordinances, before or after made, which would deprive complainant of the right to so put in its pipes, etc., as by its charter allowed.
The mayor and general council of Atlanta, the creatures of the general assembly, have no authority to deny complainant the rights granted it by said creator.
The purpose of the application of complainant to the mayor and general council has been by them misunderstood. The mayor and the city engineer misunderstood it and the effect of the action of that body thereon, and upon that false opinion or understanding, undertake to do what neither of them has a right to do.
The city engineer has no right to refuse the permission asked, and the mayor has no right to consider the gas mains which complainant intends distributing in said streets as “ obstructions ” placed therein, nor to prevent the distribution and laying them in the streets, by having the agents of the complainant so distributing and laying them down arrested for so doing.
. That such persons as may be put upon trial for so- doing can successfully defend themselves, and will so do, this complainant doubts not. But that is not a matter with
It will postpone until inclement weather and indefinitely the use of the valuable works aforesaid, and cause injury and loss to them for want of use. It will prevent said company from an early entrance into the market with its gas for sale to the public and private persons, and otherwise irreparably damage complainant, because its loss cannot be estimated accurately and fully. It, therefore, has no adequate remedy at law, even if defendants be liable for such damages and able to respond.
What reasons the city of Atlanta, or its mayor and general council, had for its refusal, were not by that body put in writing. Perhaps each individual had his own peculiar reasons for his vote thereon. But complainant has heard that said mayor and general council pretend that it is not to the interests of the citizens of Atlanta to have the works of complainant completed; that complainant is not in good faith intending to complete the same; and that by law said mayor and general council have authority to keep out of the streets of Atlanta complainant’s works, in spite of said acts of the general assembly of the state incorporating complainant.
But the citizens of Atlanta have no such adverse interest. Complainant is, in good faith, intending to complete the same promptly, and said body is not by law the judge of whether such is the interest of citizens of Atlanta, nor of its motives and purposes, and has no authority to resist the will of the state so legally expressed as aforesaid.
If either the mayor aforesaid, or said mayor and general council, or said city engineer, has any such discre
The prayer was for a mandamus, if deemed necessary, ordering and commanding the defendants to grant the permission asked by complainant, and also for an injunction directed to defendants, restraining them, and either of them, their servants, employes, and officers from interfering by arrest or otherwise, under any pretence, with the right of complainant, its agents and employes to distribute and lay down pipes, and excavate said streets therefor as stated aforesaid, and from interfering in any way with the prosecution of the work under said charter and according thereto.
Upon filing of the bill, to-wit, on May 15,1883, Judge Hammond passed an order requiring defendants to show cause on May 17, 1883, why the injunction prayed for should not be granted.
Service was duly perfected on the defendants.
On May 17, 1883, the hearing was postponed by order of the judge, and came on to be heard by consent on May 24, 1883.
Defendants relied upon a special demurrer of misjoinder of the prayers for mandamus and injunction, and a general demurrer; also a plea, which was as follows:
“Defendants for plea in this behalf say: That the act of February 4,1875, named in the bill, was never accepted by the corporation named therein, nor did they organize the company mentioned in the act. There was no attempt to organize said company under said act, nor to exercise the power granted by the act within two years from its passage. Nor was there any acceptance of said act, or any attempt to exercise the power conferred by it until after the adoption of the present constitution of the state in 1877. Wherefore defendants pray that the said bill be dismissed. ”
Argument on the case was then had, and the court, on the 28th of May, passed the following order:
“ On consideration of the foregoing case, after hearing argument of counsel, thfi courtis of the opinion that the complainant is entitled to the relief prayed for, and it is therefore considered and ordered that the defendants be enjoined from obstructing or in any manner preventing the complainant, its agent and employes, from distributing and burying in the streets, lanes, and public alleys in the city of Atlanta, in a lawful manner, and in due conformity to city ordinances and laws, its gas mains and other pipes for the distribution of its gas, by instituting, commanding, counseling, advising or procuring prosecutions or arrests to bo made of any of the complainant’s employés for so exercising its rights under its charter.
This order is not intended, and shall not be construed, to prevent ihe proper ministerial officers of said city from making any arrest of any person for any violation of any city ordinance, or from making a case against any such person, or to prevent the proper judicial officer from trying any such person, but is intended only to secure to complainant the exercise of its rights under its charter, by restraining the mayor and general council from carrying out the policy towards complainant and its employes plainly indicated in the action of the general council and the letter of the mayor set out out in the bill, of using their influence and power towards a prevention of the exercise of those rights by complainant.”
To this order granting the injunction the defendants excepted, and brought the case here upon writ of error.
The case has been argued by both sides thoroughly and with unusual care and ability. For the valuable assistance rendered, this court returns its acknowledgments to the counsel engaged.
Premising that, if a charter is granted after having been applied for, acceptance may be presumed from such previous application; indeed, it would seem, in that case? that no acceptance would be required, since the consent of the grantees was given in advance. Morawetz Corp., §16, and cases cited in note 2. It would be difficult to find an instance in which our legislature has granted a particular charter which has not been applied for by the persons thereby incorporated. Those granted by the courts, under authority bestowed by general laws, can only be allowed upon the application of the persons desiring them. The section of the Code in question does not require the acceptance of the charter; it presupposes that.it has been already accepted; it only requires the exercise of the power conferred by it within the time specified.
Having disposed of this preliminary question, we proceed to examine the material point made under this section of the Code, viz.: Does this limitation apply to a charter granted by the general assembly ? Looking to its history, we are compelled to return a negative answer. It first appears in an act of the general assembly, approved 9th of March, 1866 (Acts, p. 27). By express terms, it is
The constitution of 1888, in declaring of force all acts passed by any legislative body, sitting in Georgia as such, since the 19th of January, 1881, (the date of her secession from the United States), including that body of laws known as the “Code of Georgia,” (evidently designating the original Code), and the acts ammdatory thereof, or passed since that time, which said Code and acts are embodied in the printed book known as “Irwin’s Code,” with certain named exceptions, did not surely intend to adopt as law every inaccuracy that may have crept into that book, especially when such inaccuracy was plainly in conflict with the manifest intention of the legislative bodies whose acts were thus adopted. The framers of that constitution could not have been ignorant of the fact that the contents of the Code were specified in the act authorizing its compilation, that commissioners to make it were directed to prepare for the people of Georgia a Code which should, as near as practicable, embrace in a condensed form, the laws of Georgia, whether derived from the common law, the constitution of the state, the statutes of the state, the decisions of the Supreme Court, or the statutes of England of force in this state ” (Acts, 1858, p. 95); or that this act was regarded as a portion of the Code subsequently adopted under it; or that the courts of this state, in construing the Code, had always rejected any apparent unintentional departures from the law it was authorized
But if this obstacle could be surmounted, another quite as formidable is encountered by the plaintiffs in error. According to the Code, §1685, the charter of a corporation may be forfeited for a willful violation of any of the essential conditions on which it is granted, or for a misuser or non-user of its franchise, but its dissolution for either of these causes can be effected only by the judgment of a court of competent jurisdiction declaring the forfeiture, and dates only from such judgment. There is no pretence that any of the essential conditions on which its charter was granted have been violated by the complainant; no abuse of its franchise has been charged; but it is said that it, has not made use of it within a reasonable time. Who is to judge of this failure to use its franchise within a reasonable time ? The state, through its accredited agents and officers, to whom is confided the superintendence rf such matters, has not been heard to complain. It has neither instituted a proceeding nor authorized it to be done, to seize, to itself the franchise with which it parted, and which, by the terms of the act creating the company, it is permitted to enjoy for thirty years. No one else can institute such a
This is taking high ground and assuming very large powers. The legislature created the city government for
The permission of the city of Atlanta was not required to enable the complainant to exercise its franchises. It certainly was not made a condition by its charter. This was not the contract- into which it entered with the state, and it would appear anomalous if a subordinate power could impose terms which the superior did not see proper to impose. This charter was accepted, it is true, subject to repeal or modification by the state; the right to do this is reserved by the general law; but the state alone, under this reservation, can exercise this right. No subordinate tribunal or agency can do this, unless, perhaps, it is expressly authorized to act in that behalf; and it is not clearly settled that the legislature, under this reservation, can delegate this power of .repeal or modification to another agency of the government. In doing so, it might subject itself to the imputation of bad faith m sanctioning the vio
But apart from all these considerations, the city of Atlanta has stood by and seen this company make an outlay of $140,000 in the exercise of their rights under this charter, without intimating to them that objection would bemad>e to their use of the streets for the purposes authorized, and without the use of which their enterprise would not have been undertaken and could not be prosecuted, and without which they would lose their entire outlay and be involved in irretrievable ruin. Upon every principle of equity this failure to notify the complainant of their intention until this heavy expenditure had been made, would estop them. Such conduct is fraudulent in the eye of the law, and where practiced upon an innocent party, who is seeking bona fide to carry out the provisions of its charter by availing itself of the powers and privileges thereby granted,
“A court of equity,” says Iierr (Injunctions 2), “has mo jurisdiction in matters merely criminal or merely immoral, which do not affect any right of property. If a charge be of a criminal nature, or of an offence against the public peace, and does not touch the enjoyment of property, jurisdiction cannot be entertained. * * But if an act which is also criminal touches also the enjoyment of property, the court has jurisdiction, but its interference is founded solely on the ground of injury to property.” Many cases and elementary writers might be cited to sustain the distinction here laid down. They are all contained in
The injunction ordered by the court below, while it protects the complainant from unwarrantable interference with its rights, privileges and immunities, is careful to restrain the exercise of none of the legitimate powers and prerogatives of the municipal government of the city, and was, in every view that we have been able to take, a proper application of the authority and discretion vested in that court.
Judgment affirmed.
Cited for plaintiffs in error: 61 Ga., 386; 68 Id., 84; 2 Vesey, Sr., 396; Kerr Inj., 2; 30 Ala., 131; Code, §3198; Code, 1832, g 676, par. 3: Ibid, 1867; Const. 1868, Art. 11, par. 3 ; 18 Conn., 179; M .r. Corp., 12-14; 2 K.nt Com. (9 ed ), pp. 322, 324; Boone Corp., 23; Acts 1875, p. 191; Cons:. 1868, Art. 3, Sec. 6, par. 5; Const. 1877, Art. 3, Sec, 7, par. 18; 22 How., 364; 12 B. Monroe, 144; 17 Ind., 243; Const. 1877, Art. 22, Sec. 1, par. 3, 4, 5; 8 Hill, 531; 28 Mich., 228; 18 Cal., 590; 31 Penn. St., 175 ; 12 Ill., 1 40 Id., 335.
Cited for defendant in error: Cobb's Dig., pp. 436, 437, 438 , 542, 543, 439, 440,431; 432, 418; 14 Ga., 80; Acts 1833-4, p. 24; Acts 1855-6, p UG (2); Code, 1868, Art. 4, §§1623 —1643 ; Acts 1164-5, p. I; Acts 186 ¡-6, pi>. 27, 28; Rev. Code, g 1676; Acts 1838, p. 95 ; Irwin’s Code, 1867, g4981; Irwin, Lester & Hill's Code, 1868, g 145; 37 Ga., 412; 42 Id., 192, 191-6; 51 Id., 269; Acts 1866, p. 21; 6 Ga., 154-6 14 Id., 321 (2); 15 Id., 71; 32 Id. 292 ; 69 Id., 180; 53 Id., 611; Code, 1882, §3077; 1 Ga., 321 62 Id, 311; Code, 1882, gg5232, 5233; 17 Ind., 243; 22 How., 361; -7 Ga., 370, 377; 18 Ind., 199, 40; 11 Ohio St. R., 16; 5 Id, 818, 326—329 ; 2 Id., 607; 53 (7a., 671-677; 61 Id., 386; 68 Id 61;Eden Inj, 66; 2 Vesey Sr., 396; Hilliard Inj., 2, 269, 308, 250 note a; Kerr , Inj. 2; 89 Ala., 133; 6 Mod R. 16; 1 Atkins R., 232; 2Id, 302; 1 Vernon R., 489; 18 Vesey, Jr , 211, 219; 74 Ponn., 401, Amb., 153; 3; Atkins, 750; 5 Vesey, Jr., 129 ; 2 Story’s Eq., gg920 - 921 (a) 2 Johns, ch. 371, 378 -9 ; 46 Ind.,59; 53 Ala., 193; 6 Daley, 81; 71N. Y., 363 ; 32 Ga., 601 (5), 619 ; 70 Id, 451 141; 14 Ala., 207; 8 Paige ch. 24, 6; 49 Ga., 70 ; 2 Story’s Eq, Jur., 893; 1 Barb., 302,368 ; 2 Eng. L. & Eq. R., 130; 5 C. E. Greene R., 296 ; 19 Vesey, Jr , 616, 631; 1 Russ. Cr., 362; 2 Camp. R., 891 Code, §1535; 1 Russ. Cr., 298; 299; Code §§1537, 4538; 33 Ga., 601 (5); Code, §3102; High on Inj., 308, ch. 14, See. 3 ; 60 Ga., 461; 45 Ga., 603; 19 Id, 485; 1211., 405 (41; 29 Id, 65: 63 Id., 311; 75 N. Y., 369 ; 27 Id., 354(3); 47 Id, 639 (9); 26 Id, 538 ; 2 Story's Eq. Jar., 227, §939 ; 86 Ga., 537.