Gardner v. Georgia R. & Banking Co.

• Decision Date: 07 April 1903
• Citation: 43 S.E. 863,117 Ga. 522
• Parties: GARDNER et al. v. GEORGIA R. & BANKING CO.
• Court: Georgia Supreme Court

43 S.E. 863

117 Ga. 522

GARDNER et al. v. GEORGIA R. & BANKING CO.

Supreme Court of Georgia

April 7, 1903

Syllabus by the Court.

1. The power granted the Georgia Railroad & Banking Company to condemn private property in the manner prescribed in its original charter, as amended by the act approved December 26 1836, p. 197 (Prince's Dig. p. 358), could not legally be, and was not, affected by the passage of the act approved December 18, 1894, p. 95 (Civ. Code 1895, § 4657 et seq.) "to provide a uniform method of exercising the right of condemning, taking, or damaging private property."

2. The act of 1836 above referred to, amending the original charter of the Georgia Railroad & Banking Company, was sufficient in scope to authorize that company to take private property by condemnation, and to provide a method of so doing.

3. Under a power granted in the charter of a railroad company to "purchase, and have and hold *** any lands necessary for the site, on and along which to locate *** the aforesaid railroad *** or any branches thereof; or to vary, or alter the plan or plans, and of such breadth and dimensions through the whole course of the road and roads, as [the company] may see fit," it was permissible for the company, under proper proceedings, to condemn private property for the purpose of laying a double track and enlarging its terminal facilities.

4. The power to condemn private property conferred by the charter of the Georgia Railroad & Banking Company was not exhausted by its first exercise, but is coextensive with the necessities to meet which it was granted.

5. Cases of Alabama R. R. Co. v. Gilbert, 71 Ga. 591 and Savannah Railroad Co. v. Woodruff, 13 S.E. 156, 86 Ga. 94, distinguished.

Error from Superior Court, Richmond County; E. L. Brinson, Judge.

Action by G. S. Gardner and others against the Georgia Railroad & Banking Company. Judgment for defendant, and plaintiffs bring error. Affirmed.

Wm. H. Fleming, for plaintiffs in error.

Jos. B. & Bryan Cumming, for defendant in error.

CANDLER J.

This was a suit for injunction, in Richmond superior court, brought by Mrs. Gardner and others against the Georgia Railroad & Banking Company. The allegations of the petition are substantially as follows: The plaintiffs are the owners of a described tract of land in Richmond county, a portion of which the defendant is seeking to condemn, and in pursuance of that intention it has filed with the ordinary its application for the appointment of appraisers, and served plaintiffs with a copy of the application. The strip of land so sought, if condemned, is to be used by the defendant company for establishing a shifting yard for its cars, and for constructing additional facilities outside the city of Augusta. More than 60 years ago the defendant company definitely located its right of way and constructed its road in pursuance of the power granted in its original charter in 1833 (Laws 1833, p. 256), and it is not proceeding under the general law of the state for the condemnation of private property by railroads, but under the charter granted it in 1833, and amended in 1836 (Laws 1836, p. 197). "Defendant company, in seeking to condemn private property, must adopt the method prescribed by the Code of Georgia, § 4667 et seq., and cannot proceed in the manner set out in its application." It has no power to condemn plaintiffs' property for the purpose stated by it, nor for any other purpose, unless it shall proceed under the general law of the state, and accept the terms and conditions embraced in section 2178 of the Code. "Whatever power to exercise the right of eminent domain may have been granted to defendant company in its original charter, that power does not survive after the lapse of more than half a century, but was exhausted by its first user in permanently locating the road, side tracks, and terminal facilities. The power to condemn private property, as granted to defendant in its original charter, was afterwards repealed, and has not since been restored, except as contained in the general law now embodied in the Code." The prayers of the petition were that the defendant be perpetually enjoined from condemning the land in question, for process, and for general equitable relief. The answer of the defendant admitted its purpose to condemn the plaintiffs' land under its charter power, and that the object of the proposed condemnation was to enable it to lay double tracks and construct additional terminal facilities. It also admitted that it had constructed a single main line in pursuance of the power granted in its charter of 1833, but contended that, in so doing, it did not limit or intend to limit the land to be occupied by it in its legitimate business of a railroad to the land then taken. It denied that its power to condemn private property had been repealed. On the hearing of the issues raised by the petition and the answer, the court refused the prayer for an injunction, and the plaintiffs excepted.

1. The first question presented for our determination is whether the right given to the defendant corporation in its charter of 1833, as amended by the act of 1836, was abrogated or repealed by the act of 1894, p. 95 (Civ. Code 1895, § 4657 et seq.), which prescribed a different method of procedure for the condemnation of private property by corporations or individuals seeking to exercise the right of eminent domain. When this charter was granted, and until the time the Code of 1863 went into effect, it is unquestionably true that the correlative rights and duties of a corporation prescribed by its charter constituted a contract on its part, the obligation of which could not constitutionally be impaired by subsequent legislation. This was decided in the Dartmouth College Case, the principles of which, as was said by Chief Justice Waite in the more recent case of Stone v. Mississippi, 101 U.S. 816, 25 L.Ed. 1079, "have become so imbedded in the jurisprudence of the United States as to make them, to all intents and purposes, a part of the Constitution itself." Following this authority, it was held by this court in State v. Georgia R. & B. Co., 54 Ga. 423, that section 15 of the original charter of the defendant company, providing for a tax of one-half of 1 per cent. per annum on the net proceeds of its investments, was a valid, binding contract, and that "the tax act of 1874 (Laws 1874, p. 107), taxing the railroads of this state, upon the property belonging to them, as other property of the citizens of this state is taxed, is, so far as the Georgia Railroad Company is concerned, as to its railroad and appurtenances, unconstitutional and void." See also Central R. Co. v. State, 54 Ga. 402 (4); Goldsmith v. Georgia R. Co., 62 Ga. 490, 543. The charter of the Augusta & Savannah Railroad Company, which was granted in 1838, and accepted prior to the adoption of the Code of 1863, contained an agreement on the part of the state, in regard to taxes, similar to that contained in the charter of the defendant company in the present case; and in Central R. Co. v. State, 54 Ga. 413, the tax act of 1874 was also held invalid as to that company. Section 1636 of the Code of 1863 provided that: "In all cases of private charters hereafter granted the state reserves the right to withdraw the franchise, unless such right is expressly negatived in the charter;" and in section 1637 it is provided that: "Private corporations hereafter created, without the reservation of the right of dissolution, and where individual rights have become vested, are not subject to dissolution at the will of the state." And so we must necessarily conclude that the substantial rights and privileges given to the defendant company in its charter of 1833, and as amended by the Legislature in 1836, could not be abrogated nor repealed by any subsequent legislation.

The plaintiffs in error, while admitting that the rule in the Dartmouth College Case protects the defendant company from any legislation the effect of which would be to impair the obligation of the contract with it, made in the grant of its charter, contend that the doctrine therein laid down does not affect the act of 1894 so far as it prescribes a method for the exercise by the defendant company of its right to condemn private property; that the act of 1894 is remedial only, and its only effect is to provide a method for the enforcement of the right to condemn. While in a sense this is true, we think there is also a very substantial right involved. Under the amended charter, the company, exercising the state's right of eminent domain, obtained a fee-simple title to the land upon paying the amount awarded by the arbitrators appointed to assess the damages arising out of the condemnation. Under the act of 1894, upon payment of the award of the appraisers, the company would only obtain an easement in the land condemned, and, if at any time the company should cease to use the land, the title would revert to the person from whom it was taken. While it may be argued that for all practical purposes the railroad company gets all it wants in securing the right to use the land, there is in law a very substantial difference between an easement and a fee-simple title. Remedial statutes of the kind cited by the plaintiff in error are those which affect only the course and form of proceedings, but do not affect the substance. Morton v. Valentine, 15 La. Ann. 153. We are satisfied that the act of 1894, so far as it is inconsistent with the exercise of its charter rights, has no application to the defendant company.

2. The second point raised by the bill of exceptions is that "the only section of defendant's charter which granted the power to take or condemn private property, to wit, section 11, p. 261, Acts 1833, ***...