City Of Acworth v. Western &. A. R. Co

• Court: Georgia Supreme Court
• Writing for the Court: HINES
• Citation: City Of Acworth v. Western &. A. R. Co, 126 S.E. 454, 159 Ga. 610 (Ga. 1925)
• Decision Date: 23 January 1925
• Docket Number: (No. 4147.)
• Parties: CITY OF ACWORTH v. WESTERN &. A. R. CO.

159 Ga. 610

126 S.E. 454

CITY OF ACWORTH

v.WESTERN &. A. R. CO.

(No. 4147.)

Supreme Court of Georgia.

Jan. 23, 1925.

(Syllabus by the Court.)

Russell, C. J., and Atkinson, J., dissenting in part.

Error from Superior Court, Cobb County; D. W. Blair, Judge.

Suit by the Western & Atlantic Railroad Company against the City of Acworth. Judgment for plaintiff, and defendant brings error. Affirmed.

The Western & Atlantic Railroad Company filed its petition against the city of Acworth, in which it made these allegations: Petitioner is a railroad corporation of this state, operating a line of railroad from Atlanta, Ga., to Chattanooga, Tenn., and is engaged in the transportation of passengers and freight over said railroad in interstate and intrastate commerce; more than 50 per cent, of its business being interstate. Said line runs through the city of Acworth, a small town containing a population of about 1, 000 or 1, 500 people, and extending over an area five-eighths of a mile in every direction from petitioner's depot. The charter of the city of Acworth gives to its mayor and aldermen the power "to remove nuisances, " and "to furnish and maintain all things needful for the protection of life, liberty, and property, the maintenance of law and order, and to such other purposes as may in their discretion pertain to the proper and legal government of the city, " and provides that the city council "shall have the right, power, and authority to declare what shall be a nuisance, and to provide punishment of persons who may create or continue nuisances, " and that punishment for any violation of the city ordinances shall not exceed $100 fine, three months' imprisonment in the city guardhouse, three months' work on the street chain gang or other public works, one or more, or all three, in the discretion of the trial court. The administration of the affairs of the city is committed to the mayor and five aldermen, and its municipal court for the trial of viola tors of its ordinances is held by the mayor, and in his absence or disqualification by the mayor pro tem. Heretofore, at great expense and without any reasonable necessity therefor, petitioner has been required by said city of Acworth to maintain watchmen at two street crossings, one of them 275 feet north and the other 650 feet south of its passenger depot; these two crossings being the only ones within 300 yards of said depot. For some years prior to the filing of its petition a watchman has been maintained by petitioner at the crossing north of the depot, and one at the crossing south of said depot since June, 1922, at an expense of $82.96 per month for each. Being bound by a desire to operate its railroad with economy so far as is consistent with the public safety and by the act of Congress, of 1920, known as the Transportation Act (U. S. Comp. St. Ann. Supp. 1923, § 10071 1/4 et seq.), which limits its expenses for maintenance of way and structures, petitioner has been for some time considering whether it was not desirable, with due regard to economy and. safety and protection of the public, to substitute for human watchmen at such crossings a signaling device sometimes called a "wigwag." Such devices are in general use by many of the best equipped and conducted railroads in the United States, and efficiently serve the purpose of protecting the public at such crossings. This signaling device gives notice of the approach of trains at crossings by ringing a bell and swinging a vertical arm, and, during hours of darkness, displaying a red light on such arm, giving ample opportunity to persons approaching and intending to cross to desist in time to avoid danger.

On September 15, 1923, the mayor and aldermen of said city adopted an ordinance which provides:

"That on and after the 15th day of September, 1923, every person, firm, or corporation operating a railroad through the city of Ac-worth shall be required to keep and maintain a human watchman at all public railroad crossings where said railroads cross the public highways or streets within 300 yards of the Western & Atlantic Railroad Depot, or where same is now located in said City of Acworth, every day in the week, Sunday excepted, between the hours of 6 o'clock a. m. and 6 o'clock p. m. for the purpose of warning travelers of the approach of trains, in the same manner as watchmen are now kept at the two crossings, one north of said depot and one south thereof and within 300 yards of said depot. This ordinance is not made to repeal ordinances now existing on the subject, but as cumulative thereof. * * * Any person, firm, or corporation violating this ordinance shall be punished by a fine of not less than $1.00 and not more than $100.00 for each day same is violated."

The maintenance of human watchmen at such crossings would be far more expensive than the installation and maintenance of said signaling device, and less conducive to the protection of the public, not only because human watchmen are likely to become inattentive to their duties, subject to illness or to being absent, but also because said signaling device is one which petitioner can and intends to operate every day in the week and during the night. Said ordinance is unreasonable, arbitrary, in excess of the power of said mayor and aldermen to adopt and enforce, and violative of petitioner's rights, and the enforcement thereof would deprive petitioner of its property and liberty without due process of law, in violation of the Fourteenth Amendment to the Constitution of the United States. Said mayor and aldermen, without authority under said charter and in violation of the rights of petitioner and with intentional disregard thereof, on October 17, 1923, passer] an ordinance amending the above ordinance of September 15, 1923, by adding the following provision:

"It shall be unlawful for any railroad company or any engineer or other person in charge of any engine or locomotive, with or without cars attached to same, to run over either of said crossings or streets at said crossings, at the points mentioned in said ordinance, until and unless a watchman is stationed and kept as provided in said ordinance at each of said points on said street or at said crossing. * * * And in case such violation is by an individual not a corporation, said person shall be subject to a fine as above mentioned, and in addition to be sentenced to work on the public streets, or confined in the calaboose not more than fifty days, either one or all in the discretion of the mayor."

On the same day the mayor and aldermen passed another ordinance which prohibits "erecting of any signaling device which rings a bell known as a 'wigwag' or other noisy or dangerous device of a like nature within the city limits, " and which declares that "such a device or apparatus known as a 'wigwag' as above described is hereby declared to be a nuisance." The ordinance provides that any person, firm, or corporation violating the same shall be punished by a fine of not less than $1 and not more than $100, and "any person, not a corporation, who is an agent, servant, or employee of such corporation, or any other person violating this ordinance shall be punished as above described, and in addition be sentenced to work on the public streets or confined in the calaboose not more than sixty days, either one or all in the discretion of the mayor. Any engineer or other person directing the erection of such a device herein prohibited, or any laborer performing any work or labor in building, erecting, or connecting with electric wires such a device as herein prohibited, shall be deemed to have violated this ordinance, and shall be, on conviction thereof, fined or sentenced as herein provided. Any railroad company or other corporation violating this ordinance and having a local agent in the city of Acworth, said agent shall be held responsible for such violation and shall be penalized as herein provided."

The passage of such ordinance was without the power of the mayor and aldermen of said city, and was and is arbitrary and unreasonable, violates the rights of petitioner, and its enforcement would be in contravention of the Fourteenth Amendment of the Constitution of the United States, in that it would deprive petitioner of its liberty and property without due process of law. Said two last-mentioned ordinances were not passed until petitioner had actually begun work on installing said signaling device, and until same was practically completed at an expense of approximately $2,500; said work having been done openly and with knowledge of the city. On account of inclement weather said work was not finished on October 18, 1923, and on October 19, 1923, one of petitioner's employees, W. Collins, acting under the direction of petitioner's signal engineer, was proceeding to install the electric battery and connecting the wires necessary for the entire completion of said device, when two of the employees under said Collins, John McDonald and J. A. Blevins, were arrested by the marshal of said city under the direction of the mayor, and were taken before the mayor's court, charged with the violation of said last-mentioned ordinance. They were required to give an appearance bond of $100 each, and their trial was set for October 23, 1923. It is the intention and purpose of the defendant, acting through its mayor, to continually arrest and punish any of the agents or servants of petitioner who shall take any part in installing or maintaining said signal device, or in running its trains and protecting the public by or with the help of such device, or in running its trains through said city without keeping human watchmen at said crossings. Petitioner is remediless to prevent such arrests and prosecutions and to assert its right, without the aid of a court of equity. It prays for injunction against the enforcement of said ordinances.

By an amendment the petitioner made these allegations: In addition to the above ordinances the...