City of Atlanta v. Gate City Gas Light Co.

• Decision Date: 09 October 1883
• Citation: 71 Ga. 106
• Parties: THE CITY OF ATLANTA et al. v. THE GATE CITY GAS LIGHT COMPANY.
• Court: Georgia Supreme Court

71 Ga. 106

THE CITY OF ATLANTA et al. v. THE GATE CITY GAS LIGHT COMPANY.

Supreme Court of Georgia.

October 9, 1883

September Term, 1883.

1. If a charter is granted after having been applied for acceptance may be presumed from such previous application.

( a. ) The provision contained in Art. 4, par. 3 §1676 of the Code, that no corporation created under that article shall commence to exercise the privileges conferred by its charter until ten per cent of its capital stock has been paid in, and " no charter shall have any force or effect for a longer period than two years, unless the incorporators within that time shall in good faith commence to exercise the powers granted by the act of incorporation," does not apply to a charter granted by the general assembly, but only to those granted by the courts.

( b. ) The constitution of 1868, in declaring of force all acts passed by any legislative body since January 19 1861, including that body of laws known as the Code of Georgia and the acts amendatory thereof, or passed since that time, which Code and acts are embodied in the printed book known as Irwin's Code, with certain named exceptions, did not intend to adopt as law every inaccuracy which may have crept into that book.

( c. ) The charter of a corporation may be forfeited for a willful violation of any of the essential conditions on which it is granted, or for a misuser or non-user of its franchises, but its dissolution for either of these causes can be effected only by the judgment of a court of competent jurisdiction declaring the forfeiture, and dates only from such judgment. Misuser or non-user cannot be set up collaterally as a defence to an action.

2. Where a manufacturing company was regularly and legally chartered by the legislature under the constitution of 1868 the fact that it was suffered to lie dormant and was not organized until after the adoption and ratification of the constitution of 1877, did not bring it to an end and make it necessary that such company should obtain a new charter from the court.

3. Municipal corporations are created by the general assembly and may be destroyed by them. No rights are vested in such corporations as against the state. They can exercise no other powers than those conferred by the acts creating them; they are subordinate agencies to assist in the administration of the government of the state. Over their streets, lanes and alleys, it would seem that the state, through its legislature, has as much power and control as it has over other public highways, which it may change, alter or abolish at will.

( a. ) The legislature could authorize a gas company chartered by it in 1875 to use the streets of an incorporated town or city for its pipes and fixtures, and the permission of the city was not required to enable the company to exercise its franchises, and any ordinance, interfering with or denying the exercise of a right thus granted by the legislature, has been held void.

( b. ) Whether the state can delegate to a subordinate tribunal or agency the power to modify charters. Quæ re.

( c. ) The city of Atlanta having stood by and seen the company make an outlay of $140,000 in the exercise of their rights under this charter, without intimating to them that objection would be made to the use of the streets for the purposes authorized, without the use of which their enterprises would not have been undertaken, and could not be prosecuted, and they would lose their entire outlay and be ruined, such city would now be estopped from refusing to allow the laying of the pipes, etc.

4. A mandamus was not required to force the consent of the defendants in the bill to the exercise of the company's rights and privileges under its charter. Their exercise does not depend on such consent.

5. While a court of equity will not interfere by injunction with the prosecution of a criminal proceeding not touching the enjoyment of property, yet where it is evident that private property and civil rights are invaded by such means, equity will interfere to protect them.

Corporations. Municipal Corporations. Charters. Constitutional Law. Streets. Laws. Estoppel. Before Judge HAMMOND. Fulton Supreme Court. April Term, 1883.

Reported in the decision.

W. T. NEWMAN; HOPKINS & GLENN, for plaintiffs in error.

E. F. HOGE; N. J. HAMMOND, for defendant.

HALL Justice.

The Gate City Gas Light Company brought suit on the equity side of the court against the City of Atlanta, the mayor of said city, and its engineer, and alleged by its bill that it was incorporated by an act of the general assembly of Georgia, approved the 4th of February, 1875; that in addition to the powers conferred on such corporations, of having and using a common seal, etc., full power and authority was granted it to make, manufacture and sell gas, to be made of coal, rosin, or other materials, for lighting the streets, public and private buildings, and other places in the city of Atlanta, and " to lay down in any and all of the streets, lanes, avenues, alleys, squares and public grounds of said city, gas pipes, and other apparatus for conducting gas through the same, and to erect therein such gas posts, burners and reflectors as may be necessary or convenient," " only provided that the public thoroughfares shall at no time be unnecessarily interrupted or impeded by the laying down or erection thereof, and that said streets, lanes, avenues, squares and public grounds shall not be thereby injured, but shall be left in as good state and condition as they were before the laying down of said pipes, conductors, or other apparatus, and the erection of said posts."

Said complainant purchased a parcel of land in said city, in ward one (1), on land lot seventy-eight, fronting on the right-of-way of the Central Railroad one hundred feet, and running back on an alley one hundred and fifty-seven feet, joining Mrs. M. F. Parker on the north, and E. L. Jones on the south, and built thereon, in a tasteful and most durable manner and style, all the structures required for its business, using over five hundred and thirty thousand bricks, and other materials in proportion.

Complainant placed in said buildings machinery and apparatus for the manufacture of gas, duplicated and of a capacity to supply a city of over one hundred thousand inhabitants.

The quality of said materials and style of workmanship cannot be excelled, and has never been equalled in the Southern States, and is open to inspection at any time.

The company has had cast mains for eight miles of streets. Fourteen car-loads of the same had arrived in Atlanta prior to the 4th of May, 1883, and the remainder was then en route for Atlanta (and part of the same has since arrived).

The company had then employed Hunnicutt & Bellingrath, of Atlanta, men skilled in such work, and responsible, to lay down said pipes, and erect said structures.

These mains are large enough to be so extended as to accommodate three hundred thousand inhabitants.

The company put extra work and expense upon its said plant. Their outlay for these Atlanta works already made is about one hundred and forty thousand dollars.

The company bona fide intends making and selling good and cheap gas to the city of Atlanta and its inhabitants, and would be now preparing therefor but for the reasons now to be stated. Being ready to begin laying its pipes and desirous of the co-operation of the city authorities of the city of Atlanta in its work, so as to avoid all misunderstandings and disagreements as to grades, etc., complainant addressed to the mayor and general council of the city of Atlanta a written request for the co-operation of their body or of the proper officer of said city in so beginning their work. The same was, on the 27th of April, 1883, referred to their city attorney and gas committee " to investigate and report all facts." Said committee did, on the 7th of May, 1883, report in writing that they had fully investigated, and that the facts hereinbefore stated as to the purchase of land, the buildings and machinery, and apparatus therein, the piping being ready, and contract being so made to lay it down as before stated were, in their opinion, true, and which in their said report they denominated as " the petition of the Gate City Gas Light Company asking permission to lay their mains through the streets of said city."

On said 7th of May, 1883, after consideration of said report, said general council " refused" the request of complainant. Afterwards, to-wit, on the 11th of May, 1883, said company, still asserting its charter rights, but desirous of complying with all proper precautions to prevent collision with the city authorities, addressed to the city engineer, in accordance with section six hundred and twenty-one of the last revised Code of Atlanta, a written request for permission to dig streets for the purpose of laying such mains.

On the said 11th of May, 1883, said city engineer replied thereto, refusing his permission, because of the action of the mayor and general council aforesaid.

On the day last aforesaid, said company gave written notice to the mayor of said city of the foregoing correspondence with the city engineer, denied his right so to refuse, and asked whether the mayor would interfere with said company in so laying its pipes as is allowed by its charter.

Thereupon on the 12th of May, 1883, said mayor, in writing, replied that, as the executive officer of the general council he should certainly regard it as incumbent on him to conform to the will of that body as expressed (as aforesaid) on the 7th of May, 1883, by enforcing against the company and its agents any and all penal laws or ordinances of the city of Atlanta, violated by the obstruction or interference with...