447 F.2d 502 (5th Cir. 1971), 29758, City of Gainesville, Ga. v. Southern Ry. Co.

Docket Nº:29758.
Citation:447 F.2d 502
Party Name:CITY OF GAINESVILLE, GEORGIA, Plaintiff-Appellee-Cross Appellant, v. SOUTHERN RAILWAY COMPANT, Defendant-Appellant-Cross Appellee.
Case Date:September 02, 1971
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 502

447 F.2d 502 (5th Cir. 1971)

CITY OF GAINESVILLE, GEORGIA, Plaintiff-Appellee-Cross Appellant,

v.

SOUTHERN RAILWAY COMPANT, Defendant-Appellant-Cross Appellee.

No. 29758.

United States Court of Appeals, Fifth Circuit.

Sept. 2, 1971

Emory F. Robinson, Gainesville, Ga., Charles J. Bloch, Macon, Ga., Charles A. Horsky, James Hamilton, Washington, D. C., Ellsworth Hall, Jr., Macon, Ga., for appellant.

William B. Gunter, Samuel L. Oliver, Kenyon, Gunter, Hulsey & Sims, Gainesville, Ga., for appellee, City of Gainesville, ga.

Before JOHN R. BROWN, Chief Judge, and COLEMAN and CLARK, Circuit judges.

PER CURIAM:

This is the second appellate appearance of this case. Our prior opinion is reported at 423 F.2d 588 (1970). We remanded the case to the District Court for findings on one issue. Our language was explicit:

'We do not hold that a municipality or a state does not have full power to require a railroad company to bear all the cost for a grade crossing safety device, nor that the Gainesville ordinance is unconstitutional per se because it is an unreasonable and arbitrary exercise by the City of Gainesville of its police power, nor that benefit should be the sole measure of the allocation of cost. We find here that the district court did not make a finding as to the reasonableness of the allocation of costs in installing and maintaining the signal devices as to this particular case, a determination which might or might not make the application of the ordinance unconstitutional. Therefore, we conclude that we must remand the case to the district court for a determination as to the reasonableness under all of the circumstances, of the allocation of one hundred percent of the cost to Southern Railway.' 423 F.2d at 591.

The District Court complied with the mandate. It held a further hearing on April 17, 1970. On April 21, 1970, it filed an additional memorandum opinion and order, concluding as...

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