Atl. Log & Export Co v. Cent. Of Ga. Ry. Co

• Decision Date: 15 September 1930
• Docket Number: No. 7143.,7143.
• Citation: 155 S.E. 525,171 Ga. 175
• Court: Georgia Supreme Court
• Parties: ATLANTIC LOG & EXPORT CO. v. CENTRAL OF GEORGIA RY. CO., and three other cases.

171 Ga. 175

155 S.E. 525

ATLANTIC LOG & EXPORT CO.

v.CENTRAL OF GEORGIA RY. CO., and three other cases.

No. 7143.

Supreme Court of Georgia.

Sept. 15, 1930.

Rehearing Denied Sept 29, 1930.

HINES, J., and RUSSELL, C. J., dissenting in part.

Certified Questions from Court of Appeals.

Proceeding between the Atlantic Log & Export Company and the Central of Georgia Railway Company; the Atlantic Tie & Timber Company and C. E. Gay, Jr., receiver; the Pierpont Manufacturing Company of Georgia & Florida and C. E. Gay, Jr., receiver; and the Pierpont Manufacturing Company of Georgia & Florida and the Seaboard Air Line Railway Company. From judgments for latter parties in each case, former parties bring error. On certified questions from Court of Appeals.

Questions answered.

The Court of Appeals certified the following questions for decision: "1. Were the provisions of section 2640 of the Civil Code (1910), repealed by implication by the enactment of the subsequent statute codified as section 2666 of the Civil Code (1910)? 2. If the foregoing question should be answered in the negative, does section 2640 of the Civil Code (1910) confer the right on a shipper to bring an action for the recovery of freight charges paid on intrastate shipments in excess of the rates and tariff fixed by the Georgia Public Service Commission? 3. Does section 2666 of the Civil Code (1910) confer the right on a shipper to bring an action for the recovery of freight charges paid on intrastate shipments in excess of the rates and tariff fixed by the Georgia Public Service Commission? 4. If the first question should be answered in the negative, does a proper construction of the provisions of section 2640 of the Civil Code (1910) require that all suits for the recovery of freight charges paid on intrastate shipments in excess of the rates and tariff fixed by the Georgia Public Service Commission shall be brought within twelve months after the commission of such alleged wrong or injury? See, in this connection, Pannelee v. Savannah, etc., Ry., 78 Ga. 239, 2 S. E. 686."

Chas. E. Donnelly, of Savannah, and Watkins, Asbill & Watkins, of Atlanta, for plaintiffs in error.

T. M. Cunningham, Jr., and A. R. Lawton, Jr., both of Savannah, for defendant in error Central of Georgia Ry. Co.

Hitch, Denmark & Lovett, of Savannah, for defendant in error Gay.

Anderson, Cann & Cann, of Savannah, for defendant in error Seaboard Air Line Ry. Co.

ATKINSON, J.

1. In McGregor v. Clark, 155 Ga. 377, 116 S. E. 823, 827, this court said: "A repeal by implication takes place 'only in so far as a statute is clearly repugnant to a former statute, and so irreconcilably inconsistent with it that the two cannot stand together, or is manifestly intended to cover the subject-matter of the former and operate as a substitute for it, that such repeal will be held to result.'" This rule is stated in various forms in the following cases: Erwin v. Moore, 15 Ga. 361; Jones v. Central Railroad, etc., Co., 21 Ga. 104; Miller v. Southwestern Railroad Co., 55 Ga. 143; Pausch v. Guerrard, 67 Ga. 319; Kennedy v. McCardcl, 88 Ga. 454, 14 S. E. 710; Gress Lumber Co. v. Coody, 99 Ga. 775, 27 S. E. 169; Butner v. Boifeuillet, 100 Ga. 743, 28 S. E. 464; Crovatt v. Mason, 101 Ga. 246, 28 S. E. 891; Western & Atlantic R. Co. v. Atlanta, 113 Ga. 537, 38 S. E. 996, 54 L. R. A. 294; Horn v. State, 114 Ga. 509, 40 S. E. 768, 769; Edalgo v. Southern Ry. Co., 129 Ga. 25S, 58 S. E. 846; Gray v. McLendon, 134 Ga. 224, 67 S. E. 859; Verdery v. Walton, 137 Ga. 213, 73 S. E. 390; Jones v. Stokes, 145 Ga. 745, 89 S. E. 1078; Brackett v. Arp, 156 Ga. 160, 118 S. E. 651; Friedman v. Mizell, 164 Ga. 1, 137 S. E. 400. In Horn v. State, supra, it was said: "The rule as to repeal by implication is, in such cases, so far as we can ascertain from the authorities, that when the legislature intends to revise a former act Or charter, or to deal exhaustively with the subject of all or a part of the original act, and a portion of the original act is left out, such omitted portion is repealed by implication." In the light of the foregoing, the first question propounded by the Court of Appeals will be answered.

In section 10 of the act of 1879 (Ga. L. 1878-79, p. 125), creating the railroad commission of this state, it is declared: "That if any railroad company doing business in this State shall, in violation of any rule or regulation provided by the Commissioners aforesaid, inflict any wrong or injury on any person, such person shall have a right of action and recovery for such wrong or injury in the county where the same was done in any court having jurisdiction thereof, and the damages to be recovered shall be the same as in actions between individuals, except that in cases of willful violation of law, such railroad companies shall be liable to exemplary damages; provided, that all suits under this Act shall be brought within twelve months after the commission of the alleged wrong, or injury." This law was carried into the several Codes and appears in exactly the same language in the Civil Code of 1910 as section 2640. The provisions of section 2666 in the Civil Code of 1910 originated in section 9 of the act of 1907 (Ga. Laws 1907, p. 72) and appeared in the Civil Code of 1910 as follows: "In case a common carrier or other corporation or company mentioned in this section shall do, cause to be done, or permit to be done any act, matter, or thing prohibited, forbidden, or declared to be unlawful, or shall omit to do any act, matter, or thing required to be done, either by any law of the State of Georgia, by this section, or by an order of the commission, such common carrier or other corporation orcompany shall be liable to the persons or corporations affected thereby for all loss, damage, or injury caused thereby or resulting therefrom, and in case of recovery, if the jury shall find that such act or omission was willful, it may fix a reasonable counsel's or attorney's fee, which fee shall be taxed and collected as part of the costs of the case. An action to recover for such loss, damage, or injury may be brought in any court of competent jurisdiction, by any such person or corporation." The caption of this act is: "An Act to increase the membership of the Railroad Commission of Georgia, and to prescribe the qualifications for membership; to authorize the designation of a chairman thereof by the Governor, and to prescribe his duties and compensation; to revise, enlarge and more clearly define the powers, duties and rights of said commission; to authorize it to employ rate and other experts, and to fix their pay; to increase the printing fund, and the salary of the secretary of the commission; to employ a stenographer and fix his pay; to extend its powers and jurisdiction over docks and wharves, terminal companies, cotton compress companies, corporations or persons owning, leasing or operating railway terminals or terminal stations; over telephone or telegraphic companies or corporations or persons owning, leasing or operating any public telephone service in this State, and over street railroads and street railroad corporations, companies or persons owning, leasing or operating street railroads in this State, over gas and electric light and power companies, corporations or persons owning, leasing or operating public gas plants, electric light and power plants furnishing power to the public; to fix the domicile of the Railroad Commission, and prescribe what courts of this State have jurisdiction over proceedings instituted against it; to prescribe and fix penalties and punishments for failure or refusal to observe any order, rule or regulation of the Railroad Commission, and to prescribe the form of procedure for enforcing the same; to repeal sections 2195 and 2196 of the Code of Georgia, 1S95, touching penalties and procedures to enforce the same for a violation of the orders, rules and regulations of the commission; to repeal sections 3 and 4 of the Act approved August 23, 1905, prescribing certain penalties and forms of procedure for enforcing same, and for other purposes." It will be perceived that there is no mention in the above caption of repeal of section 10 of the act of 1879 (Olvil Code 1910, § 2640). In section 9 of the act of 1907 (Civil Code 1910, 8 2666) there Is no reference to repeal of section 10 of the act of 1879 (Civil Code 1910, § 2640), nor is there such reference in any portion of the act; but in section 10 of said act of 1907 there is express repeal of sections 2195 and 2196 of the Civil Code of 1895, relat ing to penalties and procedure for enforcement thereof for violations of orders, rules, and regulations of the commission. If there had been an intention to repeal section 10 of the act of 1879, an expression to that effect was opportune and would have been most appropriate. Again, while retention of section 10 of the act of 1879 in the Code of 1910, after the act of 1907, may not have revived the former if it had been repealed by the latter, yet such retention in the Code is entitled to some weight on the question of intent to repeal by implication. The language of the Civil Code 1910, § 2666, referring to "a common carrier or other corporation or company mentioned in this section, " is broader than the language of § 2640, "any railroad company doing business in this State." See Estes v. Perry, 167 Ga. 902, 147 S. E. 370. There are other differences in the two statutes. The right of action under section 2640 is predicated on "violation of any rule or regulation provided by the commissioners." The right of action under section 2666 is predicated on the doing, causing, or permitting to be done "any act, matter, or thing prohibited, forbidden, or declared to be unlawful, " or omission to do "any act, matter, or thing required to be done, either by any law of the State of Georgia, by this section, or by an order of the commission." Section 2640 provides for exemplary damages, while section 2666 does not...