Atlanta Ry. & Power Co. v. Atlanta Rapid-Transit Co.
| Decision Date | 20 May 1901 |
| Citation | 39 S.E. 12,113 Ga. 481 |
| Parties | ATLANTA RY. & POWER CO. v. ATLANTA RAPID-TRANSIT CO. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. An assignment of error upon an order denying an application for injunction, made in the following words: "To which order the plaintiff excepted, and now excepts, and assigns the same as error, in that it is contrary to the law and the evidence in the case,"--is good. The motion to dismiss the writ of error for insufficient assignment of error is overruled.
2. A street-railway company which has constructed, and is legally operating, a line of railway in the streets of a city, is possessed of such a property interest as gives it a legal right to maintain an application to restrain a similar company from interfering with its line of tracks already laid, and from constructing a line of road over its private property without authority of law. To such an application the city is not a necessary party defendant.
3. Notice of a motion to reconsider the passage of an ordinance by a legislative body of a municipal government, which requires the approval of the mayor to give it force, has no other effect than to prevent the immediate transmission of such ordinance to the mayor for action thereon. If the motion to reconsider is not made at the next regular meeting, the notice is functus officio, and the ordinance so passed stands as the action of the body which passed it, and, on the adjournment of such meeting, should be transmitted. (a) The action of the general council of the city of Atlanta, in fixing January 7, 1901, as a day for the regular meeting of the aldermanic board, was, under its rules, bad by a two-thirds vote. (b) The ordinance in controversy, granting a franchise to construct and operate a line of street railroad in certain streets, having been legally passed by the two legislative bodies of the city of Atlanta, and approved by the mayor in due time, it operates as a legal and valid consent of the city to the exercise of the powers conferred by law on the Atlanta Rapid-Transit Company, upon the terms incorporated in such ordinance.
4. Under the evidence, the trial judge was fully warranted in ruling that Cherokee avenue was one of the public streets of the city of Atlanta.
5. Under the terms of the contract made by the two parties at interest, a connecting track of a street railway, to be made by one of them at Hunter street, with the tracks of the street railway on Whitehall street, which was authorized by the municipal authorities, is not in violation of any legal right of the other owner of an equal interest in, and right to use, such tracks.
6. No error was committed in refusing the application for injunction.
Error from superior court, Fulton county; J. H. Lumpkin, Judge.
Action by the Atlanta Railway & Power Company against the Atlanta Rapid-Transit Company. Judgment for defendant, and plaintiff brings error. Affirmed.
Payne & Tye, King & Anderson, and L. W. Thomas, for plaintiff in error.
Brandon & Arkwright, Rosser & Carter, J. L. Hopkins & Sons, and King & Spalding, for defendant in error.
The Atlanta Railway & Power Company, a corporation which maintains and operates lines of a street railway in the city of Atlanta, presented its petition to the judge of the superior court of Fulton county, in effect praying that a certain other corporation, the Atlanta Rapid-Transit Company which also operates lines of a street railway therein, be enjoined from constructing, in whole or in part, a particular line of railway in the streets of said city, which the transit company claims it has the legal right to construct and operate under the laws of the state and the ordinances of the city of Atlanta; and also from in any manner interfering with the railway of petitioner, already laid in the streets of the city, and the appropriation of certain private property of petitioner to the uses of the defendant in connection with its proposed new line. It was conceded that the question as to whether the construction sought to be enjoined was authorized by law depended, in a large measure on the validity of a certain ordinance of the city of Atlanta, which, by its terms, purported to grant to the Atlanta Rapid-Transit Company, under certain conditions authority "to construct, electrically equip, and operate a line of single or double track street railway over the following route, viz.: Commencing on Atlanta avenue, at a point south of about the middle of Grant Park; running thence west to Cherokee avenue; thence, along Cherokee avenue and Thomas street, to Woodward avenue; thence west, along Woodward avenue, to Hill street; along Hill street to Hunter street; and along Hunter street to Whitehall street,--with the right to move the tracks of the Atlanta Railway & Power Company on Hunter street, between Frazer and Pryor streets, to one side of the center of the street, so as to permit the building of a single track on the other side of the center of the street between these points." It was contended by the plaintiff that the ordinance was void because it was not legally adopted; that what is described in it as Cherokee avenue is not a public street, but is the private property of the plaintiff; that the construction of the apparently authorized line would conflict with the plaintiff's rights under a contract between it and the defendant as to the use of the street-railway tracks on Whitehall street, from Hunter to Alabama street, and with its rights as to its tracks on Hunter street between Frazer and Pryor streets.
The brief of evidence is voluminous. Such parts of it as may be necessary will be hereafter referred to in considering the several issues which arise in the case. The defendant demurred to the petition, and answered, insisting that the ordinance was legally adopted; that Cherokee avenue was one of the public streets of the city of Atlanta, and that there was nothing in the contract between the plaintiff and defendant which rendered the authority to connect with the Whitehall tracks illegal, or an encroachment of the rights of the plaintiff at Whitehall street or elsewhere. The judge, after hearing evidence, refused an injunction, and held that the ordinance in question was not void on the grounds alleged; that the plaintiff was not entitled to an injunction on the ground of its alleged ownership of the land on Cherokee avenue; and that there is nothing in the contract between the parties, as to the Whitehall street tracks, which would prevent the use of these tracks in connection with this franchise. To the refusal to grant the injunction the Atlanta Railway & Power Company excepted, and such refusal is the error which is assigned for our consideration.
1. On the call of the case a motion was made to dismiss the writ of error on the ground that the bill of exceptions does not plainly and specifically set forth the errors alleged to have been committed, and that it does not contain any special assignment of error. This must be overruled. After reciting the fact that the judge passed an order on a given date denying the injunction prayed for, the bill of exceptions recites the following: "To which order the plaintiff excepted, and now excepts, and assigns the same as error, in that it is contrary to the law and the evidence in the case." This exception and assignment of error fully complies with the law.
2. The points made by the demurrer were ruled on by the judge in rendering the opinion under which the injunction was refused. The first of these is that petitioner had no right to have an injunction restraining the defendants from building its tracks in the streets of the city of Atlanta under any circumstances, and that the only party having the right to object to such building is the city of Atlanta. The second ground is that the city of Atlanta is a necessary party defendant to the case made by petitioner. Each of these grounds was overruled, the judge saying, in reference to the latter, that, We agree with the trial judge that the city of Atlanta was not a necessary party to this case in passing on the application of the plaintiff to restrain the defendant was prayed for under the allegations made, and we also agree with the ruling made by him that, under the pleadings and evidence, plaintiff had such an interest as authorized it to prosecute an application to restrain the defendant from constructing the line of railway for the want of legal authority. As a general proposition, the right to construct a railway in the streets of a city must rest upon legislative authority so to do. Primarily, the right of control of streets is in the general assembly, whether as a matter of fact the fee of the land on which the street is located is in the state, the city, or a private person. This is so because the only legitimate use which can be made of a street is a public use. Not in the sense of being public to the inhabitants of the city in which it is located, but to the people at large, and of this public the general assembly of the state is the only representative. The power which a municipal government may lawfully exercise over a street is that conferred on it by the general assembly, either expressly or by implication, and the right primarily to grant authority to an individual or a corporation to occupy a street with cars operated by steam or electric power, although for the convenience of the citizens does not rest in the municipal...
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