Brown v. Atlanta R. & Power Co.

• Decision Date: 20 May 1901
• Citation: 39 S.E. 71,113 Ga. 462
• Parties: BROWN v. ATLANTA RY. & POWER CO. et al.
• Court: Georgia Supreme Court

39 S.E. 71

113 Ga. 462

BROWN v. ATLANTA RY. & POWER CO. et al.

Supreme Court of Georgia

May 20, 1901

Syllabus by the Court.

1. The act of August 31, 1891 (1 Acts 1890-91, p. 169), providing that "all charters heretofore granted by the secretary of state to street and suburban railroad companies are hereby confirmed and declared to have had full effect from their dates," was, in effect, a general law giving the consent of the general assembly that street and suburban railroad companies theretofore organized under the charters referred to might in the future exercise the corporate powers mentioned in such charters; and with this legislative consent such companies became, after either an express or an implied acceptance of the provisions of the act, de jure corporations, with all the powers granted in the charters and this is true whether the charter in a given case was originally granted without authority of law, or in violation of law.

2. The general assembly had in 1891 authority to grant corporate powers to a street-car company, though the consent of the corporate authorities of the town or city in which the lines of street railway were to be located had not been first obtained; but the grant of such powers did not authorize the construction of a line of street railway upon the streets of any town or city until the consent of the corporate authorities had been obtained.

3. That a corporation may have acquired a portion of its property in violation of law is not a sufficient reason for enjoining it from exercising its legitimate corporate powers, at the instance of a private citizen whose property will be damaged by the exercise of such powers.

4. Following the decision of this court in Moore v. City of Atlanta, 70 Ga. 611, this court will not control the discretion of the trial judge in refusing to grant an interlocutory injunction which would interfere with a public improvement in which no part of the property of the applicant is actually taken, although there was evidence before the judge authorizing a finding that the property of the applicant would be damaged by the improvement.

5. Even if in 1891 the general assembly had no power to confer upon street-car companies the authority to become common carriers of freight, the grant of such authority would not in any way affect other powers which had been lawfully granted to such companies.

6. A street-car company which has acquired the lines of street railway of two other companies may, when authorized by its charter, and with the consent of the authorities of the city in which its lines of railway are situated, connect the lines acquired from the other companies by laying its tracks upon such portions of a street of the city as may be necessary to make the connection.

7. A street-car company having authority to lay its tracks along the streets of a city will not be enjoined from laying its tracks along a given street, at the instance of one claiming to have an interest in a line of street railway in another street, on the ground that the construction of the new line may operate as an abandonment of the line in which he is interested.

8. The lawmaking body of a municipal corporation may pass a special ordinance which is in conflict with a prior general ordinance, when there is nothing in the charter prohibiting this kind of legislation.

9. A general power in the charter of a street-railway company to construct a line of street railway authorizes the construction of double tracks upon the streets of a city provided the authorities of such city consent that the streets may be so used.

10. The rulings on the admission of evidence were free from error and no sufficient reason for the reversal of the judgment has been shown.

Error from superior court, Fulton county; J. H. Lumpkin, Judge.

Bill by Julius L. Brown against the Atlanta Railway & Power Company and others for an injunction restraining defendants from building connections between street railroads. From an order denying an interlocutory injunction, plaintiff brings error. Affirmed.

Plaintiff filed his petition against the Atlanta Railway & Power Company, the Metropolitan Street-Railroad Company and the Atlanta Consolidated Street-Railroad Company, seeking to enjoin the construction of a street-railway line in front of his residence, on Washington street, Atlanta, and from making a connection between the lines of the two companies last above mentioned, and from the removal of tracks and changes of schedules on Woodward avenue and Pulliam and Clark streets, and from using the franchises and tracks of the Metropolitan Street-Railroad Company by the Atlanta Railway & Power Company. The injunction was refused, and plaintiff excepted. The plaintiff owns and resides on a lot at the corner of Washington and Rawson streets. He also owns a lot on Pulliam street, in the same block with the other. Washington and Pulliam streets are parallel and run north and south, and Pulliam is west of Washington. Rawson street is the southern boundary of this block. The next street which crosses Washington north of Rawson is Woodward avenue formerly Jones street, and the next cross street south of Rawson is Clark street. There is no street-car line on Washington street between Woodward avenue and Clark street. There is one extending to Woodward avenue along Washington street from the north and the center of the city, then along Woodward avenue eastward for a distance of two blocks to Capitol avenue, which is parallel to Washington street, and along Capital avenue southward, which line was built and originally operated by the Atlanta Street-Railroad Company under a charter granted in 1866; and there is a line, subsequently established, from Clark street southward on Washington, extending from the center of the city to and along Pulliam street to Clark, and along Clark to Washington, which line was built and originally operated by the Metropolitan Street-Railroad Company under a charter granted in 1882, which defined its route. Acts 1882-83, p. 201. One share of stock of the last-mentioned company is owned by the plaintiff, who has held it since 1890. In 1891 Hurt and others filed in the office of the secretary of state articles of association for the purpose of forming a corporation to be known as the Atlanta Consolidated Street-Railway Company; and a certificate of incorporation was issued to them, under which the railroads of the Atlanta Street-Railroad Company and the Metropolitan Street-Railroad Company, with other lines which the incorporators had obtained control of, were consolidated and operated under one management. In 1892 the property and franchises of the Metropolitan Street-Railroad Company were bought by the Atlanta Consolidated Street-Railroad Company at a receiver's sale made under an order of court, and the sale was confirmed by the court. In 1899, on the application of the Atlanta Consolidated Street-Railroad Company to the secretary of state, its charter was amended by changing its name to the Atlanta Railway & Power Company. In August, 1900, on the application of the Atlanta Railway & Power Company, authority was granted to it by a municipal ordinance "to extend its line of street railway on Washington street from Woodward avenue to Clark street by laying single or double tracks on said portion of Washington street"; and the ordinance provided that inasmuch as the work permitted to be done was a straightening, rather than an extension, of the lines of the company, the acceptance of this grant should not be held to place its lines under the operation of the general street-railway ordinance approved August 22, 1899, which imposes certain burdens on all existing street-railway companies applying for and accepting privileges to construct a new line, to extend an existing line, or to connect to one otherwise held to be an existing line. An extension of the time for laying tracks was subsequently granted; and, in pursuance of the authority thus granted, work on the tracks was begun, whereupon this petition for injunction was presented. The plaintiff alleges that the running of cars in front of his residence will be a nuisance, and that he will be thereby damaged from the noise and dust, and from interference with the entrance and exit to his home; the street being narrow, requiring the track to be placed near the curb stone. Damage would also result from the electric wires with which cars are operated. He alleges that no compensation has been offered or paid for damage above specified. Plaintiff alleges that he was the chief promoter of the Metropolitan Street-Railroad Company, and specified the line of its road in its charter, so as to avoid having any line in front of his residence, which was afterwards built at great expense; that he established his home in its present location, believing that the line of the company last named, and also that of the Atlanta Street-Railroad Company, was permanently established. He alleges: That the defendants intend to run a line in front of his residence, and to remove its tracks on Woodward avenue and Pulliam street, and on Clark street between Pulliam and Washington streets, and to change existing schedules, to the inconvenience of the public. That they have no power under their charter to make such change. That the charter powers of said railroad companies on said streets were exhausted when their lines were established and built, and that any company succeeding by purchase or otherwise to the franchises is bound by the obligations of the former company as to schedules and route. That, under the constitution, no company can be authorized to buy the tracks of another or to change its route. That there is no necessity for running the proposed line, the present transportation...