Central of Georgia Ry. Co. v. State

• Decision Date: 27 July 1898
• Citation: 31 S.E. 531,104 Ga. 831
• Parties: CENTRAL OF GEORGIA RY. CO. v. STATE.
• Court: Georgia Supreme Court

31 S.E. 531

104 Ga. 831

CENTRAL OF GEORGIA RY. CO. v. STATE.

Supreme Court of Georgia

July 27, 1898

Syllabus by the Court.

1. If a railroad company of this state refuses to comply with an order passed by the railroad commissioners requiring it to erect a depot building in a given town or city through which the line of its road passes, such refusal, in contemplation of law, is at the company's principal office or place of business; and consequently the superior court of the county in which that office is located, and it alone, has jurisdiction of an action by the state against the company for the recovery of the penalty incurred by the company in refusing to yield obedience to such order.

2. The intention of the act of December 16, 1895, adopting the present Code, and making the same of force as the Code of Georgia, is to enact into one statute law all the provisions embraced in that Code.

3. This act is not unconstitutional because it did not incorporate in its body the various sections of the Code, nor because these sections were not read three times, and on three separate days, in each house of the general assembly, before the passage of the act.

4. The act in question does not, within the meaning of article 3, § 7, par. 8, Const. Ga., refer to more than one subject-matter nor does it contain matter different from what is expressed in the title thereof.

5. The effect of this act is to make as part of the law of the state all new matter embodied in the Code of 1895 which could be constitutionally enacted by the legislature. It follows therefore, that an act, though unconstitutional as originally passed, on account of containing matter different from what was expressed in its title, if otherwise constitutional became valid law by its incorporation in the present Code, upon the passage of the act first above mentioned.

Error from superior court, Monroe county; M. W. Beck, Judge.

Action by the state against the Central of Georgia Railway Company for the recovery of a penalty incurred by the company in refusing to yield obedience to an order of the railroad commissioners requiring it to erect a depot building. There was a judgment for plaintiff, and defendant brings error. Reversed.

Lawton & Cunningham, Hall & Boynton, and Dessan, Bartlett & Ellis, for plaintiff in error.

J. M. Terrell, Atty. Gen., for the State.

LEWIS J.

1. The latter part of section 2189 of the Civil Code gives the railroad commissioners power to require the location of such depots, and the establishment of such freight buildings, as the condition of the road, the safety of freight, and the public comfort and convenience require. This provision is contained in the act of October 29, 1889 (Acts 1889, p. 132). Under section 2196 of the Civil Code a penalty is prescribed against any railroad company doing business in this state for a violation of the rules and regulations fixed by the railroad commissioners. This section is a codification of section 9 of the act of October 14, 1879 (Acts 1878-79, p. 129). It appears from the record that on January 28, 1896, the railroad commissioners of this state passed an order requiring the Central of Georgia Railway Company to erect a suitable depot building at Forsyth, in Monroe county. The company refused to comply with this order, and suit was instituted by the state, through the attorney general, in Monroe superior court, to recover the penalty provided for in the above section 2196 of the Civil Code. Unless the right to sue elsewhere is specially given by statute, suits against a railroad company of this state should be brought in the county of its principal place of business. The legislature, by special provision, in the act upon which this suits is based, has undertaken to fix the venue of such actions. Section 2196 of the Civil Code declares: "An action for the recovery of such penalty shall be in any county in the state, where such violation has occurred or wrong has been perpetrated, and shall be in the name of the state of Georgia." It is contended by counsel for the state that the superior court of Monroe county has jurisdiction of the petition, as it appears that the violation of the rule of the railroad commissioners and the perpetration of the wrong set forth occurred in that county. It is not alleged either that this county was the principal place of business of the defendant company, or that the company had any agent or employé in that county charged either with the duty or power of erecting a depot. The wrong done in this case was a failure on the part of the company, through its principal officer, to obey the order of the railroad commissioners. It involved simply an omission of a duty. No agent in Monroe county was charged with this duty, or had anything whatever to do with its performance, so far as the record shows. No disregard, therefore, of the mandates of the railroad commissioners occurred in that county. The wrong was perpetrated by the company through its principal officer, who failed or refused to obey the order in question. The violation, therefore, occurred in the county where the company's principal office is located, and there the wrong was perpetrated. In Coles v. Railroad Co., 82 Ga. 149, 9 S.E. 127, it appears that the gist of the action was the refusal of the company to issue a through bill of lading over its own line to the line connecting its road with Brunswick, the latter extending from Albany to Brunswick. The suit was brought in Dougherty county. According to the allegations in the declaration, the refusal did not occur in that county, but in other counties. It was held by this court that the suit ought to have been brought either in those other counties, or in Chatham county, the residence of the defendant. It further appeared in that case that before the freight arrived in Albany plaintiffs notified defendant's agent that it was coming, and requested that it be transferred in the same cars from the defendant's road to the Brunswick & Western Railroad, and that, after the cotton arrived at Albany, the same request was made, and the defendant refused to comply with the request. Notwithstanding the issuing of the bill of lading involved work to be done by the company in Dougherty county, to wit, a transfer of the freight from one road to another there, yet this court held that this did not give Dougherty superior court jurisdiction. So, in the case we are now considering, although the work contemplated by the order of the commissioners was to be performed in Monroe county, yet the gist of the action was a refusal to obey the order, and hence the action should have been brought where such refusal took place. In refusing to perform a duty enjoined upon railroad companies by statutes, and which can only be performed by its general officers, they are presumed to act at the principal place of business of the company. We think, therefore, that the court erred in not sustaining the first ground of the demurrer to the petition.

2. It is contended by counsel for plaintiff in error that there is no law in this state which confers upon the railroad commissioners the power and authority to require a railroad company to erect depot buildings; that the act which undertakes to confer this power, to wit, the act approved October 29, 1889, amendatory of the act of 1879, is unconstitutional, because it contains matter different from what is expressed in the title thereof; and that the act approved August 31, 1891, which undertook to remove the defect in the title in the act of 1879, is itself unconstitutional, because its title does not indicate the matter contained in the body of the act. On the other hand, it is contended by counsel for the state that, the act of 1889 being codified as section 2189 of the new Code, the act of 1895 adopting and making of force that Code cured all those defects, if any, which had existed in the act of 1889. Counsel for plaintiff in error insists, however, that by the adopting act of 1895 the legislature never intended to make anything in the Code law which was not the law before its adoption; and that, even if such was its intention, it did not have the power, under the constitution, to enact in this way new statutes, or any changes or modifications in the existing laws of the state. We will not pause to consider or pass upon the questions raised in reference to the constitutionality of the acts of 1889 and 1891 as originally passed by the legislature, but we will pass over these to consider the more important question as to what validity or force the adopting act of the legislature gave to the provisions in the present Code of 1895. Upon this issue was fought the great legal battle between counsel for the contending parties in this case; and the view we take of this question, which can scarcely be measured in its importance and interest to the profession and the people generally, renders it unnecessary to consider the other constitutional questions touching defects in the titles of the original acts. It is insisted that by the act approved December 19, 1893, providing for the appointment of three commissioners to codify the laws of Georgia, these commissioners were simply empowered to codify and arrange in systematic and condensed form the laws then in force in the state, and had no authority whatever to embody in the Code any new law, or any provision which modified any existing law of the state. No one would hardly pretend that any new matter in the Code derives force or efficacy by virtue of the act of the commissioners alone. Even if the legislature had attempted to confer upon the commissioners the power to make changes in the law, and to embody in the Code such new matter as they saw proper, such an act of the legislature, in so far as its...