153 Ga. 335 | Ga. | 1922
Lead Opinion
(After stating the foregoing facts.)
So far as the statutory enactments deal with the question of the duty of the railway company to maintain the portion of the street between its tracks in a safe and proper condition, we must look to the provisions of such statutes and make application of them in view of all the facts in the case, including the contracts affecting the rights and duties of the railway company. But in ascertaining the full extent of the liability of the railway company in regard to the matters here involved, where the statutes and the contracts do not cover all phases of the question, we can take into consideration the inherent and implied duties of the railway company which oe
What is here ruled as to the implied obligation of the street-railway company to maintain and keep in repair the portion of.the street between its tracks finds support in other adjudicated eases and other text-books. See especially Elliott on Eoads and Streets (3d ed.), §§ 985 et seq., and the authorities there cited. In the case of State ex rel. Jacksonville v. St. Ry. Co., 29 Fla. 590 (10 So. 590), the Supreme Court of Florida said: “The authority of a general nature to regulate and control the streets, usually granted to municipal bodies, is generally deemed sufficient to clothe the municipal body with the right to grant or refuse, or otherwise to regulate, the use of the streets for street railways operated by horse
In the act of 1881 set forth above it is provided that any street-railway company having tracks running through the streets of the city shall be required to macadamize, or otherwise pave, as the commissioners etc. may direct, the width of its track and for three feet on each side of every line now in use or which may hereafter be constructed by such company. This gives the city the authority to require the street-railway company to pave that portion of the street. And when we consider the inherent and implied obligations and duties of the railway company, discussed and defined in the authorities which we have quoted above, and the duty of the city to keep its streets in a reasonably safe condition, the authority given in the statute to compel the company to pave the street includes, when considered in connection with the implied duties of the railway company, the authority to compel the railway company to repave or to repair the portion of the street between its tracks when that becomes unsafe. Burckhardt v. Atlanta, 103 Ga. 302 (30 S. E. 32).
And now we must consider whether or not that power and authority arising from the legislative enactments and the essential and implied duties of the railway company have been modified
Section 1 of the act of 1892 (Georgia Laws 1892, p. 135) reads as follows: Section 1. “ That the Mayor and General Council of the City of Atlanta are hereby authorized, upon the presentation of sufficient petition for the paving of any street or portion of street, to authorize its paving under the existing law, to pave or contract directly for the paving of the whole surface of the street or portion of the street indicated by such petition, and to require any street-railroad company having' or using tracks in such street or portion of street to pay for the paving of the space therein which such company or companies may be required to pave under the existing law, the object of this amendment being to allow the city to pave or contract for the paving of the whole surface of the street, without giving the street-railroad company the option of having the space to be paved'by it paved by itself or by a contractor at its instance; provided, that this section shall not apply to street-railroad companies where the paving required of such companies has been satisfactorily done in advance of the letting of the contracts for paving the whole surface of such streets.” And counsel for plaintiff in error in their brief contend that this act last referred to changed the previous laws with reference to street paving, and provided that thereafter “ all paving was to be constructed by the city, without giving the street-railway company the option of putting down the pavement itself, and that thereafter a portion of
We will now pass to the consideration of the question as to whether the street-railway company is relieved of the duties and obligations imposed upon it by law in regard to repaving and repairing the portion of the street between its tracks, by contracts entered into between the city and the plaintiff in error or its lessors. The contracts relied upon by the plaintiff in error in defense of its resistance to the ordinance in question are set forth in the statement of facts. It appears that in the year 1902 the City of Atlanta and the Georgia Kailway and Electric Company entered into a contract, by virtue of which the railway company bound itself to pay into the city treasury within thirty days from the date of the contract the- sum of $50,000, which amount was paid according to the terms of the contract, and also to pay into the city treasury a certain percentage of its gross receipts; and in consideration of said payments and other matters set out and referred to in the contract the city, among other things, agreed that the payment of the percentage of gross receipts provided for should be in lieu of certain taxes, demands, and charges enumerated
On March 18, 1912, the City of Atlanta passed an ordinance, which was agreed to by the Georgia Railway and Power Company and the Georgia Railway and Electric Company on April 20, 1912. Treating this ordinance and any agreement thereto as a contract between the parties, we will consider whether it affected the obligations of the last-mentioned company to comply with the requirements of the ordinance in question and which is sought to be enforced by the mandamus proceedings. By section 1 (a) the contracting parties stipulated that the percentage payments of the gross receipts, as provided in the contract of 1902, were to continue, with the added stipulation that the Georgia Railway and Power Company should pay the percentage of gross receipts on all business done by it within the radius of seven miles from the center of the City of Atlanta, and that a like percentage of gross receipts should be maintained and preserved on all extensions on all lines made by the railway company within such radius. By section 1 (e) it was provided that the electric company and the power company, whenever paving was to be done by the city on any street upon which there were double tracks, should pay for 16 feet of such paving or repaving, and for 11 feet where there were single tracks. And this section, 1 (e), further provided that “with reference to repairs, the present law shall be continued, and the provisions of this section shall be enforceable only with reference to pavements upon streets where there is an assessment therefor.” The assessments to bear a specified proportion to the entire cost of the paving. If we have construed the contract of 1902 correctly, then this contract or ordinance did not affect or impair the right of the city to compel the street-railway company
Under the uncontroverted facts in the case, the repairing or repaving of the portion of the street in question was necessary to render it safe and practicable for use by the public. And that being true, under the law as we have construed it in the light of the statutes quoted or cited, and the law imposing certain implied duties and obligations upon the railway company, and under the contracts between the street-railway company and the municipality, the duty and obligation rested on the street-railway company to repair or repave the portion of the street in question. And further, where that duty or obligation is established, the city may by mandamus compel its performance. This doctrine has been stated by text-writers and ruled in courts of various jurisdictions. Elliott on Roads and Streets (3d ed.), § 986, and cases there cited. It follows from what we have said that the court did not err, under the uncontroverted evidence in the case, in directing the verdict excepted to and making the mandamus absolute.
Judgment affirmed.
Rehearing
ON MOTION FOR REHEARING.
In the motion for a rehearing in this case, .filed by the plaintiff in error, it is insisted that all of section 3 of the act of September 3, 1881, except the part quoted in the opinion, the same being an act to amend the charter of the City of Atlanta (Acts 1881, p. 359), must have been overlooked by the court. That section reads as follows: “That said Ma3ror and General Council shall also have full power and authority to assess one third of the cost of grading, paving, macadamizing, constructing side-drains, cross-drains, crossings, and otherwise improving the roadway or street proper, on the real estate abutting on each side of the street improved; Provided, that before any street, or portion of a street, shall be so improved, the persons owning real estate, which has
Tested by this and other similar definitions of a proviso, we are of the opinion that the clause in the section containing the words referred to is, strictly speaking, not a proviso. It does not except anything from the enacting clause; nor does it qualify or restrict its generality; nor does it exclude any possible ground of misinterpretation of it. It is absolute and general in its character. It declares in general terms that “any street-railroad company having tracks running through the streets of said city
Motion for rehearing denied.