188 Ga. 569 | Ga. | 1939
Lead Opinion
The briefs filed in this case by the defendant in error, and to some extent those filed by the plaintiff in error, present many pages of historical matter covering the creation and the life story of the Atlanta and Florida Railway. Under our view of the legal issues involved, however, we deem it hardly necessary to set forth herein more than a bare statement of a few outstanding facts. It is sufficient to say that on July 9, 1886, the secretary of State of Georgia, under general law of the State, granted a charter or articles of incorporation creating the Atlanta and Hawkinsville Railroad Company. During the same year, by special act, the General Assembly conferred upon the corporation additional powers, privileges, and, we might say, imposed upon it additional duties and responsibilities. In 1887, by act, the General Assembly again enlarged its powers and changed its name to Atlanta and Florida Railway Company. The new line soon fell into financial difficulties, and was mortgaged and then sold, and then mortgaged and sold again, until it finally came to rest under the outstretched arms of the Southern Railway Company, where it has lain, if not rested, since the 27th day of June, 1895. It is admitted that continuously since that time the Southern Railway Company has exercised the franchises and privileges granted to the Atlanta and Hawkinsville Railroad Company, and those which came after it, through direct legislative action or otherwise, operating the entire line from Atlanta to Fort Valley, Georgia. It is also admitted that the Atlanta & Florida Railroad Company and its properties are now being used and operated by the Southern Railway Company as part of its system and in the transportation of both intrastate and interstate passengers and freight.
Within the past few years the Southern Railway management
In June, 1938, under authority of the Governor of Georgia, the State’s attorney-general filed an equitable petition in the superior court of Fayette County, Georgia. This petition, after setting up in detail the story of the Atlanta & Florida Railway, which we will not set out at this time, declares that the State of Georgia has never consented to the discontinuance of service along any part of the Atlanta & Florida Railroad, and has never consented to the dismantling of any part of the railroad or the abandonment of any part of the line or tracks along the line. The plaintiff in error admits that this is true. It is distinctly charged in the petition that irreparable damage and injury'would result to the State and its citizens from the threatened action of the defendant; and that, if consummated, the action would be a breach of the contract embodied in the charter and franchise granted to the defendant. Also, that so long as it continued to exercise the privileges and franchises granted to it, it has no legal right to discontinue or abandon a portion of the line of railroad without the consent of the State, unless it surrendered or offered to surrender the whole franchise granted to it by the State. It may well be noted just here that on several occasions during the course of his argument counsel for the defendant in error intimated, if he did not openly declare, that the Interstate Commerce Commission would have been entirely within its jurisdiction and powers had the application been made and the certificate granted to cover the line in its entirety. He also expressed it as his opinion that if the railroad company could show financial loss through operating the line in its entirety and under its franchise, then it could legally abandon the entire line without consent of the State. Be that as' it may, counsel strongly argued
A controlling question presented by the record' is, whether or not, under the facts alleged in the petition, the superior court of Fayette County has jurisdiction to grant the relief which complainant seeks, this question having been raised by the demurrer to the petition. The railway removed the case to the Federal court. It was remanded. State of Georgia v. Southern Ry. Co., 25 Fed. Sup. 630. Counsel for the State insists that this was an adjudication, binding on the railway company, that the suit was not one to enjoin or annul an order of the Interstate Commerce Commission, and was not one arising under the constitution or laws of the United States. We can not agree to this contention. The United States district judge held: '“In the suit at bar, plaintiff insists that it has a right granted by the State statute, which in fact was a contract between the State and defendant, and that the fact that the Interstate Commerce Commission had authorized the abandonment of the lines in question would not defeat its right under the State statute. Thus it is seen that plaintiff relies wholly upon the State statute as the source of its right, and in ño way relies upon
In section 1, paragraph 18, of the transportation act (U. S. C. A. title 49) it is stated that “No carrier by railroad subject to this chapter shall abandon all or any portion of the line of railroad, or the operation thereof, unless and until there shall first have been obtained from the commission a certificate that the present or future public convenience and necessity permit of such abandonment.” In paragraph 19 we find the following: “Upon receipt of any application for such certificate, the commission shall cause notice thereof to be given to and a copy filed with the Governor of each State in which such additional or extended line of railroad is proposed to be constructed or operated, or all or any portion of a line of railroad, or the operation thereof, is proposed
Attention was called to the fact that in the opinion filed by the commission along with its certificate of convenience and necessity this statement appears: '“Whether the abandonment would be in violation of the law of Georgia is not a question within our jurisdiction.” It seems to us that remarks or statements made while compiling an opinion to go with its certificate, as required by statute, are by no means sufficient to define and fix the jurisdiction of the Interstate Commerce Commission, nor should they be
We agree to this statement of counsel for the railway company: “Although the State has not in form prayed that the certificate of convenience and necessity issued by the Interstate Commerce Commission on April 23, 1938, to become effective sixty days thereafter, be enjoined, it has sought to prevent Southern Railway Company from doing the very thing the commission has found and issued a certificate that the public convenience and necessity permit, which, by virtue of subparagraph (20) of section 1 of the interstate-commerce act is all that is necessary to enable Southern Railway Company to abandon the trackage. By its prayers the State has sought exactly the same result it would have sought had it in terms prayed that the commission’s order be enjoined. Therefore to say that the State has not, in effect, prayed that the certificate be enjoined would be to emphasize form and ignore substance and reality.” The suit is in purpose and effect an effort to enjoin an order of the Interstate Commerce Commission; and Congress has enacted that “ Suits to enjoin, set aside, annul, or suspend any order of the Interstate Commerce Commission shall be brought in the district court against the United States.” 28 U. S. C. A. title, 28, § 46 (Judicial Code, § 208). Congress has likewise declared that “No interlocutory • injunction suspending or restraining the enforcement, operation, or execution of, or setting aside, in whole or in part, any order made or entered by the Interstate Commerce Commission shall be issued or granted by any district court of the United States, or by any judge thereof, un
The case of Lambert Run Coal Co. v. Baltimore & Ohio R. Co., 258 U. S. 377 (42 Sup. Ct. 349, 66 L. ed. 671), is in point. There suit was brought against a railroad in a State court, to enjoin it from distributing coal-cars in accordance with certain rules of the railroad, and apparently the plaintiff sought to conceal the fact that the suit was to enjoin the railroad from doing that which it had been authorized to do by the commission. Though the complainant in its pleadings did not disclose the fact that the suit was in reality one to enjoin an order of the commission, the Supreme' Court of the United States held that such was its character, and that it should have been dismissed. As pointed out by counsel, the fact that the order of the Interstate Commerce Commission involved in the Lambert Bun case was mandatory, 'and the order in the instant case is permissive, is of no consequence. In Venner v. Michigan R. Co., 271 U. S. 127 (46 Sup. Ct. 444, 70 L. ed. 868), the Supreme
The defendant in error relies strongly upon Texas v. Eastern Texas Railroad Co., 258 U. S. 204 (42 Sup. Ct. 281, 66 L. ed. 566), to support its contention that the Interstate Commerce Commission was without authority to pass an order allowing abandonment of the segment of this intrastate road. The commission, however, did by the express terms of its order allow abandonment, and the question here is not as to the validity of the order, but as to jurisdiction of the State court to declare the order invalid, in view of the transportation act. In the case just cited two actions by the State were considered, but only one of the actions was instituted after passage of the order by the Interstate Commerce Commission; and that suit was brought, not in the State court, but in the Federal district court, and against the United States as defendant, in accordance with the transportation act. So the decision ruled nothing pertaining to the present inquiry as to jurisdiction of the State court. Cf. Colorado v. United States, 271 U. S. 153 (46 Sup. Ct. 452, 70 L. ed. 858). We reach the conclusion
Judgment reversed.
Dissenting Opinion
dissenting. It is agreed that an order of the Federal court, remanding a case to the State court, can not have the effect of conferring jurisdiction upon the State court Avith respect to a matter over AAdiich it otherwise has no control. Consequently there can be no question that the process of injunction could not be employed in the State court against the railway company, in order to attack a permit granted to it by the Interstate Commerce Commission to discontinue a portion of its line engaged in interstate commerce. This is true for the reason that under the Federal law any such attack on such an order must be brought in the district court of the United States against the United States as party defendant. Still, since there has been no determination by the Interstate Commerce Commission as to the validity of the State’s contention under its alleged contract, it Avould not seem that an effort to establish such right in the State court could be taken as an effort to annul any action taken by the commission. IrrespectiAre of AAdiether or not the Interstate Commerce Commission Avas in fact clothed Avith the authority, which it disclaimed, to determine the alleged contractual right of the State of Georgia, it has nevertheless plainly-and specifically declined to do so, and by its opinion has limited it's order accordingly. The result is that its permit thus became conditional in character, and has thus been confined solely to questions of public convenience and necessity. All this being true, can it then be properly said that the State, in noAv seeking to assert its alleged contractual rights, is undertaking to annul or enjoin the order of the Interstate Commerce Commission, which plainly and specifically refrained from passing upon the very question which the State is now seeking to have adjudicated? Were it to be assumed that the commission was in error in holding itself to be without authority to adjudicate such a contractual matter, even then .it is one thing to possess
Accordingly, without making any attempt to reach a conclusion on the merits of the State’s case, which has not been dealt with in the majority opinion, it would seem, since the State’s contention is based solely upon a matter of contractual right, which has never been adjudicated, but which, on the contrary, was expressly excluded from the scope of the order of the Interstate Commerce