131 Ga. 129 | Ga. | 1908
The Georgia Bailway and Electric Company, the main defendant in this case, was incorporated as a street and sub
Where a railroad company has the right to condemn private property, it has a large discretion in the selection of a location for its right of way. 15 Cyc. 634, 635; 1 Rorer on Railroads, 281; 1 Lewis on Em. Dom. (2d ed.), §279, p. 675; 3 Elliott on Railroads, §919, p. 1264; 10 Am. & Eng. Enc. Law (2d ed.), 1057; Savannah R. Co. v. Postal Telegraph Co., 112 Ga. 941, 945 (38 S. E. 353); Georgia R. Co. v. Maddox, 116 Ga. 64, 68 (42 S. E. 315). The mere fact
The question arises especially upon, the construction of the last clause of the act of 1894, which, as codified, reads as follows: “and in case any street railroad incorporated under this division shall be partly located in an incorporated town or city and partly located in the country, then the provisions of the preceding division which apply to other railroads located in the country shall apply to it so far as that portion of its road is concerned.” Bearing in mind that the amending act of 1894 was not a separate an(l distinct provision, apart from the general law for the incorporation of railroads, but became a part thereof and a section of the act of 1892, what is the proper construction of the clause just quoted? Does it confer upon a street and suburban railroad companj'-, a part of whose line extends into the country beyond the limits of an incorporated town or city, the right to condemn land for a right of way, or does it not? There are three possible constructions which may be given to section 2180 of the Code on the subject of the power to condemn land for a right of way: first, that no power of condemnation at all is conferred upon a street and suburban railroad company as to that part which lies outside of an incorporated town or city; second, that, as to the part of such a road which is located in the country outside of an incorporated town or city, such a railroad stands exactly like a general commercial railroad company in all respects, and has the same power and right of condemnation, and has all the same powers and rights as such a company-; and third, that, as to such part of its road, it has a power of condemnation analogous to that of other railroads located in the country, but its exercise is restricted by the nature and character of street and suburban railroad companies, and by what may be necessary and appropriate for such roads; in other words that a street and suburban railroad company, as to that portion of its line which is located in the country, has the power of eminent domain; but that the exercise of such power is limited and restricted by the nature and character of the company, and by what is necessary and appropriate for the use and operation of such a company. If this clause refers to suburban extensions only,
The Century Dictionary, among other definitions of the word “provision,” gives the following: “In law, a stipulation; a rule provided; a distinct clause in an instrument or statute; a rule or
Cases may be cited to show that there are very material differences between ordinary commercial railroads and street railroads, or street and suburban railroads, and that the conferring of the power of eminent domain generally on “railroads” would not be ordinarily construed as conferring that power upon a street railway, unless there were something to show the legislative intent to do so. Thomson-Houston Electric Co. v. Simon, 20 Or. 60 (25 Pac. 147, 10 L. R. A. 251, 23 Am. St. R. 86). Even where a legislative act conferred the power of eminent domain upon a street railway company to condemn property when necessary, it has been held that this did not authorize a general condemnation by it for its line in the city, but that the power would be construed in the light of the character of the corporation and of its business, and limited to condemnation when necessary to carry out its purposes. The ease before us differs from the Oregon case, supra, in that here the legislature has declared that the provisions of “the preceding division” touching railroads in the country generally
The change in modern methods of transportation has been very great. Beginning with the omnibus and street hack as modes of public conveyance through the streets of a city, there followed the tramway or -horse-car line, then cars drawn by a “dummy engine,” and finally the electric car. Street cars, accurately speaking, are cars which traverse the streets of a town or city, and carry passengers, who get on and off at various points along the line. They have been considered as vehicles of street travel; and on this basis they have been declared to create no such additional servitude upon the street as to give a right to damages to owners of abutting land. Within the corporate limits of the city they are subject to reasonable regulations by the municipal authorities. Both by the statute and by the constitution they are required to obtain the consent of the corporate authorities to their use of the streets. . Civil Code, §5782. We need not consider how far the legislature could confer upon them a power of eminent domain other than to use the streets with the consent of the municipal corporation. When the line of such a company is extended beyond the limits of the town or city, it is plain that the provisions of the law referred to touching street railroads within the corporate limits become largely inapplicable. What was the legislative intent as to the status of such portion of the line as should lie without the limits of the town or city? Should no law apply to it, or, if any, what law? The legislature answered this by saying that the provisions touching railroads in the country generally should apply to that portion of the line beyond the town or city. But, construing that legislative declaration in the light of other expressions in the act of 1894, the exercise of the power of eminent domain should be limited by a consideration of the nature and character of the incorporation dealt with; and if it should attempt such an exercise of power as is not appropriate to its nature and character, it would be enjoined.
At the time when the act of 1894 was passed, electrically equipped street railways had not been very long in use; and the extension of such railways beyond the corporate limits and into the suburbs was also of recent origin. Special provisions for the incorporation
The foregoing part of this division of the opinion expresses the views of all of the members of the court except the writer, upon the subject of the right of the defendant company to condemn private property outside of the limits of incorporated towns and cities. The writer does mot concur in such views, but it is his opinion that such company does not possess the power in question; and in support thereof he offers the following:
On December 17, 1892, the General Assembly passed an act to carry into effect article 3, section 7, paragraph 18, of the constitution of this State, in so far as it relates to the issuing and granting of corporate powers and privileges to railroad companies by the secretary of State. The provisions of this act, except what was contained in section 16, are now found in divisions 1, 2, and 3 of article 6, vol. 2 of the Civil Code. Section 16 of the act provided that its provisions should not apply to and govern in the incorporation, control, and management of suburban and street railroad companies. On December 18, 1894, the General'Assembly passed an act repealing section 16 of the act of 1892, and substituted in lieu thereof certain provisions which are now embraced in the Civil Code, §2180, which is a part of division 4 of the article above named. If a street or suburban railroad company has the power to condemn land, it must be found in this section, which is as follows: “All the provisions of the preceding divisions shall govern in the incorporation, control, and management of suburban
The language in the first part of this section, declaring that the provisions of the preceding divisions shall govern in the “incorporation, control, and management,” may not be broad enough to include powers and franchises, within the purview of which latter terms the right of condemnation would fall. If the words quoted are-broad enough to include powers, what is hereinafter said in reference to the words “necessary and appropriate,” occurring in this section, is relevant to the words “applicable and appropriate” in the portion above quoted.
A part of section 2180 is as follows: “and provided further, only such of the powers and franchises that are conferred by said divisions shall belong to said street railroad companies as shall be necessary and appropriate thereto.” The power to condemn is conferred on ordinary railroads in division 3 above referred to,
A full quotation of the latter part of section 2180 is as follows: “And provided further, only such of the powers and franchises that are conferred by said divisions shall belong to said street railroad companies as shall be necessary and appropriate thereto; and in ease any street railroad incorporated under this division shall be partly located in an incorporated town or city and partly located in the country, then the provisions of the preceding division which apply to other railroads located in the country shall apply to it so far as that portion of its road is concerned.” If the latter part of the section above quoted means that all of the provisions of the preceding divisions applicable to ordinary railroads, without restriction or qualification, apply, to street and suburban railroads in the country, then the right of such street railroads to condemn lands in the country (when located partly in a city and partly in
If, instead of the words “and in case,” other words had been used, showing a breaking off from the restrictions immediately preceding and indicating an intention to free what succeeded such words from the qualification preceding, and giving notice that what is then to be said is not to be held to the restriction just
The legislature, in saying only such powers and franchises conferred by the preceding divisions shall belong to street railroad companies as shall be necessary and appropriate thereto, did not say this provision applied to them only in cities and towns, but made this provision applicable' to them generally and undertook to state their powers everywhere, whether in cities or towns or country. There is nothing in the statute from which it can be inferred that the legislature intended to name what powers they should have simply in towns or cities. This is the only place in the statute where the legislature undertook to define their powers and franchises. If the legislature had intended to refer to powers and franchises in cities or towns only, it would have so stated. When the statute says in the succeeding words that the provisions of the preceding division which apply to ordinary railroads shall apply to street railroads in so far as their line is concerned which is in the country, the provisions referred to mean provisions outside of those provisions giving powers and franchises, because the act has just named the powers and franchises which they are to have whether in city or town or country. There are many matters outside of powers and franchises in the preceding division relating to ordinary railroads, and it is these other matters to which the provision referred to relates, and not to powers and franchises. The only theory on which the power of condemnation can be said to be given to street-railroads when part of their line is in the country, is that all the provisions of the preceding division, without qualification, relating do ordinary railroads, shall apply to street and suburban railroads so far as the line of their railroad located in the country is concerned. If this is true, then before they could operate any line which was located in the country, would they have to obtain a charter as an ordinary railroad,
The latter part of the section of the code above referred to does not say that in ease any street railroad shall be partly located in an incorporated town or city and its suburbs and partly located in-the country, but says that in case any street railroad shall be partly located in an incorporated town or city and partly located in the country, etc. Does the word “country” here mean any part of the country, or only such part as is in the suburbs, as distinguished from territory within the corporate limits of a town or city? “Suburb,” as defined by the Century Dictionary, denotes “A region or place adjacent to a city; an outlying district of a city; a town or village so near that it may be used for residence by those who do business in the city; in the plural, collectively, environs; surroundings; outskirts; hence, any adjuncts of a place.” Whether the word “country” would ordinarily embrace suburbs, its meaning as used in the section quoted includes suburbs, even if the position above assumed is incorrect. The ordinary meaning of a street and suburban railroad is a railroad in a town or city and the suburbs thereof. A railroad could be denominated a street and suburban railroad and could be given the power to run in any part of the country; but unless it appears that it was the intention to give this power, the ordinary meaning of a street and suburban railroad should be given it; and when this meaning is given it, such meaning would be that such railroad would be confined to the city or town and its suburbs. The-application for an amendment to its charter granted by the secretary of State, and the allowance of the amendment itself by him, does not show on its face that the property of the plaintiff through which it wishes to run its railroad' is in the limits of an incorporated town or city, or the suburbs thereof. His jurisdiction is limited to grant such charters only as the law permits, -and to a street and suburban railroad he would have no authority to grant a charter giving it the power to operate outside of both, and the jurisdictional fact that the property of the
There is no law in this State expressly providing for the incorporation of an interurban railroad to do a passenger business only, as street railroads generally do. ' The only railroad for which a charter can be obtained to do an interurban business is the ordinary railroad, carrying freight and passengers, with power to use public highways, with the consent of the corporate authorities, and to condemn private property. Under section 2167, in the preceding division, railroads have the right to carry property, receive compensation therefor, and “to do all things incident to railroad business.” To hold that the latter part of section 2180 means that a street railroad can run in any part of the country, and that all the provisions of the preceding division apply to it when in the country, would carry with it the right,, when in the country, to carry freight and passengers, to leave the public highways, condemn land, and do many other things for which provision is made in the ease of ordinary railroads. In'other words, it would have the riglit in the country, right up to the corporate limits of a city or town, to run as ordinary railroads, with all their incidents, powers, and rights. If all the provisions of the preceding division apply, and not such only as are necessary and appropriate, then under Civil Code, §2167, par. 7, such roads, when out of the city, could leave highways, condemn residence lots and go through them, with all their lines operated with engines driven by steam, with all the annoyances incident to noise, cinders, and smoke, to residents in thickly populated suburbs just out of city limits; and there would be no' law to prevent this, as the section above quoted absolutely and unqualifiedly gives ordinary railroads this legal right. Ordinary railroads generally want and only have one way through suburbs to a city, but street railroads have many lines, on different highways, in the suburbs; yet under the law, if all provisions named apply, they could operate all their lines on the different highways in the suburbs with steam, and there would be no law to stop them from so doing. Municipal authorities could prevent them from doing this in the limits of the city, but there is no authority which could interfere with this right in the suburbs. If all of the provisions
The legislature never intended that a street and suburban railroad should consist of a street railroad inside the limits of the city, and when it left such limits it could go through private property in the suburbs and through the balance of the country to other cities and towns, carrying freight cars,'and doing “all things incident to railroad business” performed by ordinary railroads. If such was the intention, every time such railroad passed through an incorporated town or city it would he a street railroad, compelled to run on its streets, and between that town and the next it would be an ordinary railroad. In such case, to obviate its being a street railroad, between its termini it would have to go around any- intervening cities or towns, because, under the laws of the State and the constitution, it would be a street railroad when it was within the corporate limits of the towns through which it was to pass. Street railroads ordinarily mean surface roads. They do not usually have their rails above the surface so as to impede or inconvenience travel across them by persons or vehicles, even if they could lawfully do so. Street railroads do not impose additional servitude. Damages can not be obtained by owners of land abutting on the streets through which they go. This is not true with ordinary railroads. Street railroads are not supposed to do a regular freight business, as ordinary railroads. They do not impede traffic along the streets or cause congestion, but they relieve passenger traffic and prevent congestion, just as hacks and ’buses do. Their right to run along streets does not depend on the will of the owner of abutting property, but on the will of the city or town authorities. The constitution itself provides: “The General Assembly shall not authorize the construction of any street-passenger railway within the limits of any incorporated town or city, without the consent of the corporate authorities.” The kind of railroad intended by this section was the kind named — -a street and suburban railroad. When it reached the country, it meant the
The act of 1903 (Acts 1903, p. 38), amending section 2180 of the Code, provides “that nothing in section 2176 of said preceding division, which provides that the general - direction and location of railroads sought to be constructed in this State shall be ten miles from a railroad already constructed or laid out and selected to be constructed, shall be or be held applicable to electric street, suburban or interurban railways, or the selection of the route or the construction of the same.” The law provides for the incorporation of two distinct classes of railroads: one as an ordinary railroad, which is an interurban railroad, and the other as a street and suburban railroad. But for the passage of this act no interurban iailroad could run within ten miles of another when 15 miles from its terminus, but under this act any interurban railroad which
The legislature intended for street railroads to have the right to run on highways to and through suburbs when out of the city or town limits. The writer does not mean to say that they can not leave the highway when in the suburbs, but when they do they must obtain a right of way by some method other than by condemning property. The provisions of law regarding ordinary railroads in the country necessary or appropriate for street railroads in the country shall belong to street railroads in the country. Street and suburban railroads have no more power of condemnation than persons or companies 'operating hacks, omnibuses, and automobiles for the purpose of taking passengers from one part of the city or suburbs to another.
Judgment reversed.