City of Acworth v. Western & A.R. Co.
| Decision Date | 23 January 1925 |
| Docket Number | 4147. |
| Citation | 126 S.E. 454,159 Ga. 610 |
| Parties | CITY OF ACWORTH v. WESTERN & A. R. CO. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
The general welfare clause of the charter of the city of Acworth is broad and comprehensive, and under it that city could enact a reasonable ordinance requiring a railroad company to keep a watchman at certain street crossings over its line of railway in said city.
All municipal ordinances based on general powers in a charter must be reasonable.
Generally the reasonableness of a municipal ordinance, based upon general powers in the charter of the municipality, is a question of law for the court to decide, unless its reasonableness depends upon the existence of particular facts which are in dispute; but it sometimes becomes a question of fact whether, under a given situation or circumstances, an ordinance, or its administration, is reasonable. The administration of an ordinance which cannot, as a matter of law, be declared to be unreasonable may become unreasonable and its enforcement improper at certain times, places, or under certain circumstances.
We cannot say, as a matter of law, that the ordinance of said city of September 15, 1923, requiring the railroad company to maintain a watchman at all street crossings over its railroad, within 300 yards of its depot in said city, is unreasonable or unconstitutional in and of itself, so far as the railroad company is concerned, looking at the ordinance alone, and in the absence of extrinsic facts showing its operation and administration to be unreasonable or to produce unconstitutional results.
(a) But where the railroad company had erected and was maintaining a system of signals at such street crossings, known as wigwags which were as efficient as watchmen in safeguarding persons and property passing over such crossings, and where the employment of watchmen involved much heavier expenditures than the installation and maintenance of such system of signals, the enforcement of said ordinance under such circumstances was unreasonable and an unconstitutional administration thereof.
(b) If the public safety required the keeping of watchmen at such crossings, the fact that their employment would involve expenditures so heavy as to impair the efficacy of the railroad as an agency of interstate commerce, or even cripple the company financially, would not render this ordinance violative of the commerce and due process clauses of the federal Constitution (.
The power given to the city council of Acworth, in its charter "to declare what shall be a nuisance" did not authorize it to declare the installation and maintenance by a railway of a legitimate system of signals at street crossings over its line of road to be nuisances, and to prohibit the same, without notice to the railroad company and an opportunity to be heard upon the question whether such system was in fact a nuisance. Only things which are nuisances by the common law or by statute or are nuisances per se can be summarily suppressed.
Applying the above principles, there was evidence to authorize the chancellor to find that the enforcement of this watchman ordinance was unreasonable, and we cannot say that he abused his discretion in granting the interlocutory injunction prayed.
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 violators 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:
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, passed an ordinance amending the above ordinance of September 15, 1923, by adding the following provision:
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...
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