49 Ga. 151 | Ga. | 1873
This was a bill filed by the complainant against the defendant, pi'aying for an injunction to restrain the defendant from constructing, equipping or operating any street railway in any street of the city of Atlanta. On hearing the motion on the
On the 23d day of February, 1866, the General Assembly of this State passed an Act incorporating the Atlanta Street Railroad Company. By the second section of said Act it is declared, “That said company shall have exclusive power and authority to survey, lay out, construct and equip, use and employ street railroads in the city of Atlanta, subject to the approval of the City Council thereof, for each route selected first had and obtained, before the work thereon shall be commenced.” This charter being silent as to the time of its continuance, it will not expir® until thirty years from its date: Code, section 1677.
On the 26th day of August, 1872, the General Assembly passed an Act incorporating the West End and Atlanta Street Railroad Company. By the 3d section of that Act it is declared, “ That said company shall be entitled to all the powers and privileges of the Atlanta Street Railroad Company, and subject to the same liabilities and restrictions.” That is to say, the West End and Atlanta Street Railroad Company shall have the exclusive power and authority to survey, lay out, construct and equip, use and employ, street railroads in the city of Atlauta, subject to the approval of the City Council thereof, for each route selected, first had and obtained, before the work thereon shall be commenced. It will be noticed that neither company has the exclusive power and authority, under the respective charters, to construct and use any street railroads in the city of Atlanta, until the route has first been selected by it and approved by the City Council thereof.
The complainant alleges that it has already in operation eight miles of street railroad at a cost of $140,000 00, but does not allege on what streets or routes the same have been selected or located, nor is it alleged that any particular street or route has been selected by’ it for a street railroad in the city and been approved by the City Council, as required by its charter. It is true, the complainant alleges that before.
It is a well established rule of law, that exclusive grants in derogation of common right, as well as in all cases in which exclusive rights are claimed under a législative grant to a corporation, that such grant should be strictly construed, that nothing is to be intended beyond the express words contained in it. Applying this rule of construction to the complainant’s grant as expressed in its charter, does it give to it the uncon
In our judgment, there are no words in this charter which grants to the complainant’s company the unconditional, exclusive power and authority to construct and use street railroads in all of the streets of the city of Atlanta, but that the grant is limited and restricted to each route that may be selected by the company in the streets of the city of Atlanta, which shall be approved by the City Council thereof. When each route for the street railroad has been selected by the company in one or more streets in the city, and approved by the City Council thereof, then the company have, under the grant in the charter,the exclusive power and authority to construct and use street railroads on each route so selected and approved, and that is the extent of the grant. The exclusive grant to construct and use street railroads on each route that may be selected in the streets of the city, and approved by the City Council, is one thing j the exclusive grant to construct and use street railroads in all the streets of the city for thirty years, is another and quite a different thing, as will be readily perceived. The complainant cannot derive any benefit from the general ordinance of the City Council granting authority to its company to construct street railways on any street in the city, and across the bridge on Broad street, because that ordinance is void, not
The grant is not the exclusive power and authority to construct and use street railroads in all the streets of the city for thirty years, but the grant is to construct and use street railroads in the city, subject to the approval of the City Council thereof for each route selected, first had and obtained, before the work thereon shall be commenced; and to each route so selected and approved, the company shall have the exclusive right to construct and use street railroads thereon for thirty years.
When the company accepted the grant made by the General Assembly, it did so with a full knowledge of this general law, as much so as if it had been inserted in the Act incorporating the company, and it is a well established rule that the laws which exist at the time and place of the making of a contract, enter into and form a part of it. The complainant’s company, therefore, accepted the charter, subject to the right of the State to withdraw, modify or restrict the franchise granted to it whenever the State should think proper to do so. The power to withdraw the entire franchise granted, necessarily includes the power to modify it, oi* to restrict the exercise of it, and the question is, whether the General Assembly, by the passage of the Act of 1872, has modified or restricted the complainant’s franchise, as claimed under the Act of 1866,
In the case of The Union Branch Railroad Company vs. The East Tennessee and Georgia Railroad Company, 14 Georgia Reports, 328, this Court held and decided that an Act of incorporation, in which the Legislature have reserved the right of repeal, may be repealed by implication, upon the principle that every -affirmative statute is a repeal, by implication, of a precedent affirmative statute, so far as it is contrary thereto. Our conclusion, therefore, is, that if the complainant’s company had had the exclusive right granted to it by the Act of 1866, as claimed, that it was competent for the General Assembly, under the general law of the State, to modify and restrict that grant as it did by the passage of the Act of 1872, which repealed all laws in conflict with the provisions of that Act. This did not impair the complainant’s contract, under its charter with the State, because it made the contract in view of the general law of the State, which entered into and formed a part of it. The complainant’s company and the defendant’s company, under the two respective Acts of the General Assembly, each for itself, has the exclusive power and authority to survey, lay out, construct and equip, use and employ, street railroads in the city of Atlanta, subject to the approval of the City Council thereof for each route selected, first had and obtained, before the work thereon shall be commenced, for and
Let the judgment of the Court below granting the injunction be reversed.