Atl. & B. Ry. Co v. Mayor

• Decision Date: 14 May 1906
• Citation: 54 S.E. 155,125 Ga. 373
• Parties: ATLANTIC & B. RY. CO. v. MAYOR, ETC., OF CITY OF CORDELE.
• Court: Georgia Supreme Court

54 S.E. 155

125 Ga. 373

ATLANTIC & B. RY. CO.

v.MAYOR, ETC., OF CITY OF CORDELE.

Supreme Court of Georgia.

May 14, 1906.

1. Municipal Corporations—Streets—Powers of Corporation — Removal of Railroad Tracks.

The general principles of law touching the power of a municipal corporation, under proper charter authority, to require shifting of the tracks of a railroad company from one part of a street to another, provided this is not unreasonably or arbitrarily done, but is really for the convenience and welfare of the public, is determined in Macon Consolidated Street R. Co. v. Mayor, etc., of Macon, 38 S. E. 60, 112 Ga. 782.

2. Same—Charter.

The powers of the mayor and city council of Cordele, contained, in the charter of that city, are sufficiently broad to fall within the decision in the case cited in the preceding note.

3. Same.

Whether a municipal corporation would have authority to enforce against a railroad company the expense of removal of its tracks, if one should take place, need not now be determined.

4. Trial—Unauthorized View by Judge.

The presiding judge, who heard the issues involved in the application for injunction, including the questions of whether the required removal was in fact for the convenience and welfare of the public or only for the benefit of another corporation, whether there was a necessity for the proposed change, whether the proposed act would be unreasonable or arbitrary, and what would be the effect, if any, upon the operation and property of the plaintiff, having stated, in his order refusing to grant an injunction, that he heard evidence and argument, and also that "this order [is] granted after a personal inspection and observation of the tracks and surroundings of the street crossing and tracks involved, " and it thus appearing that the judge's personal inspection and observation were made an integral part of his judgment, and it not appearing that this was done with the consent of counsel or parties, the judgment will be reversed, with direction that the case be heard upon the evidence which may be introduced, unless inspection by the judge as part of the proceedings be had with the consent of both parties.

(Syllabus by the Court)

Error from Superior Court, Dooly County; Z. A. Littlejohn, Judge.

Action by the Atlantic & Birmingham Railway Company against the mayor and council of the city of Cordele. There was judgment for defendant, and plaintiff brings error. Reversed and remanded.

The Atlantic & Birmingham Railway Company filed its equitable petition against the mayor and council of Cordele, alleging, in brief, as follows: Prior to the extension of its road to the city of Cordele, it obtained the written consent of the mayor and council, and entered into a contract with them whereby it was granted the right to construct, maintain, and operate its main line of railroad in and through the city and along Tenth avenue, together with all necessary side tracks, and thereupon it constructed and has since maintained and operated such tracks. They were located along and in Tenth avenue at a point most practicable, and calculated to do the least damage to abutting property owners, and so as to enable it to construct, maintain, and operate necessary side tracks and a transfer track, and also cross two other railroads. If the main line of its road were removed from its present location along Tenth avenue and near to the south side thereof, it would be impracticable for plaintiff to maintain and operate its side tracks, transfer tracks, and crossings. On June 24, 1905, the mayor and council adopted a resolution requiring the plaintiff to remove its main line of railroad and its side tracks along Tenth avenue further towards the south side thereof. This was done for the ac-commodation and convenience of the Seaboard Air Line Railway in the construction of its new freight depot on the north side of the avenue. On August 2d, they passed a resolution providing that if the plaintiff did not change its tracks as required within five days, the city would proceed to have the change made at the plaintiff's expense. Such a change will work a serious damage to the plaintiff and interference with its business. The mayor and council are without authority to remove the plaintiff's tracks as proposed. Injunction was prayed. The defendant answered, in brief, as follows: It admits the adoption of the resolution...