Railroad Commission v. Louisville & Nashville Railroad
96 S.E. 855
Ga.
1918
Check Treatment
Gilbert, J.

The Eailroad Commission of Georgia has “authority to prescribe rules with reference to spur-tracks and side-tracks, with reference to their use and construction, removal or change, with full power to compel service to be furnished to manufacturing plants, warehouses, and similar places of business along the line of railroads, where practicable, and in the judgment of the commission the business is sufficient to justify, and -on such terms and conditions as the commission may prescribe.” Civil Code (1910), § 3664. Under this statute the commission is authorized to require railroad companies to build spur-tracks and side-tracks, within constitutional limitations. Mo. Pac. Ry. Co. v. Neb., 217 U. S. 196 (30 Sup. Ct. 461, 54 L. ed. 727, 18 Ann. Cas. 989). Taking the entire section together, we think the legislative intent in conferring “authority to prescribe rules” with reference to such tracks includes authority to determine when and under what terms and conditions the same are to be constructed, and this view is consistent with the language immediately following, viz., “with reference to their use and construction, .removal or change.” The commission would be without power to take private property for private purposes, because this is opposed to the “elemental conception of individual ownership, and forbidden by the organic law of the State and the United States.” Harrold v. Americus, 143 Ga. 686, 688 (83 S. E. 534). Consequently the section must be construed with reference to this constitutional' inhibition; and thus construed, the section empowers the commission to require a railroad company to construct spur-tracks or side-tracks: (1) when such,construction is practicable, and the business to be derived by the railroad company shows the order to be reasonable; and *445(2) when the facts show that such track is a public track and constructed for the benefit of the public. In the case just cited Presiding Justice Evans elaborately discussed the rule for determining whether a spur-track was of a private or public nature, citing numerous authorities. It is sufficient to say, without repeating the arguments there found, that the conclusion reached as to the test is as follows: “If the track is to be open to the public, to be used on equal terms by all who may at any time have occasion to use it, so that all persons who have occasion to do so can demand that they be served without discrimination, not merely by permission, but as of right, and if the track is subject to governmental control under general laws, such as are the main lines of a railroad, then the use is a public one.” The fact that the track may be for the present benefit of only one industry, while important in determining the character of the use, docs not necessarily negative the public character of the use. Id. 688; Union Lime Co. v. Chicago &c. Ry. Co., 233 U. S. 211 (34 Sup. Ct. 522, 58 L. ed. 924); Watkins on Shippers & Carriers, 21. While a chartered 'commercial railroad. company “may ordinarily condemn private property under the power of eminent domain, to enable it to serve the public as a common carrier, it can not exercise the power of eminent domain to acquire title to property to serve a mere private use.” Bradley V. Lithonia R. Co., 141 Ga. 741 (82 S. E. 138). Nor can a portion of the road-bed or right of way be taken for private use, except by due process of law and after just com pensation. Mo. Pac. Ry. Co. v. Neb., supra. Construing the section of the code above mentioned as empowering the commission to order the building of spur-tracks" for public use, the section is given a construction consistent with the constitution, preserving its validity; and this, we think, was the legislative intention.

In Union Lime Co. v. Railroad Commission, 144 Wis. 523 (129 N. W. 605), it was said: “Such track,-when built, becomes a portion of the trackage of the railroad. The fact that its initial cost is borne by the party primarily to be served, with provisions for subsequent equitable division of such cost, does not make it a private track nor change the nature of its use. Over it the products of the industry find their way into the markets of the world, and every consumer is directly interested in the lessened cost of such products resulting from the building and operation thereof. That these'products are supplied by a single owner, or by a limited *446number of owners, aifects the extent and not the nature of its use —the track is none the less a part of the avenue through which the commodities reach the public. Subject to the equitable division of initial cost, the track is at the service of the public as much as any other, and it constitutes an integral part of the railroad system. The duty to maintain and operate it rests upon the railroad. Except that it is relieved of the initial cost of right of way and construction, the track stands in the same relation to it that any other portion of its track does. The owner of the industry obtains no interest in or control over it beyond that of being served by it equally with any one else who may desire to use it.” The decision in that case was followed in Chicago &c. Ry. Co. v. Union Lime Co., 152 Wis. 633 (140 N. W. 346), which decision was affirmed in 233 U. S. 211, 222 (supra), where it was said by Mr. Justice Hughes: “While common carriers may not be compelled to make unreasonable outlays (Missouri Pac. Ry. Co. v. Neb., 217 U. S. 196), it is competent for the State, acting within the sphere of its jurisdiction, to provide for an extension of their transportation facilities, under reasonable conditions, so as to meet the demands of trade; and it may impress upon these extensions of the carriers’ lines, thus furnished under the direction or authority of the State, a public character regardless of the number served at the beginning. The branch or spur comes into existence as a public utility, and, as such, is always available, as localities change and communities grow.” And again, “There is a clear distinction between spurs which are owned and operated by a common carrier as a part of its system and under its public obligation; and merely private sidings.” It is alleged in the petition in the case under consideration that the spur-track in question is not for the public benefit, but for the benefit of a private enterprise. This allegation is to be considered in connection with other portions of the petition. The blue-print map attached to the petition and made a part thereof showed the proposed spur-track to be wholly on the existing right of way of the railroad company, so located as to run longitudinally by the side of the other tracks of the company and in front ef the warehouse of the Roberts Marble Company. When the allegations as to private purposes above mentioned are considered in connection with the map they amount to a mere conclusion, for the spur-track after all will be a part of the company’s facilities for serving the general public in the village where located. *447It could not be a private track, but would, like any other part of the company’s line of railroad, be subservient to the public use and subject to the reasonable orders and regulations of the railroad commission. So construed, the petition failed to set forth a cause of action, and the court erred in overruling the demurrer.

The court, with the exception of the writer, have thus reached the conclusion that the petition itself shows the proposed track to be a public one and for the benefit of the public. I can not assent to the view that, as a matter of law, a spur or side-track is for the benefit of the public by reason alone of its location upon the railroad right of way. Compare Mo. Pac. Ry. v. Nebraska, supra.

Judgment reversed.

All the Justices concur, except Gilbert, J., dissenting.