City of Macon v. Georgia Power Co.
| Decision Date | 02 July 1930 |
| Docket Number | 7504. |
| Citation | 155 S.E. 34,171 Ga. 40 |
| Parties | CITY OF MACON v. GEORGIA POWER CO. |
| Court | Georgia Supreme Court |
Motion to Rehear Denied September 20, 1930.
Syllabus by the Court.
Ordinance providing street railway shall not be required to pay for "new street paving" exempts railway from liability arising from city's repaving project (Laws 1927, p. 1327 § 74(c).
Where an ordinance of a municipality, duly enacted and based upon legislative authority, provides that a street railway company "shall not be required to pay or contribute to the cost of any new street-paving construction hereafter to be done by the city," the provision is sufficient to legally exempt such company from any and all liability arising or resulting from the carrying out of the city's repaving projects.
Successor to rights, franchises, and privileges of railway and light company under ordinance and certificate of secretary of state succeeded to predecessor's exemption from liability for street paving.
The defendant, having, under the ordinances of the city, and by virtue of the certificate of the secretary of state, become the legal successor and assignee of the Macon Railway & Light Company, is entitled to all of the rights, franchises, and privileges lawfully held by its predecessor in title. Among these is the exemption from liability for the cost of new street-paving construction.
Legislative intent is to be arrived at by considering statute or ordinance in its entirety.
Legislative intent is to be arrived at by a consideration of the statute or ordinance in its entirety. When this is done, no ambiguity, uncertainty, or inconsistency appears in the legislation involved in this case.
Statute exempting street railway from paving assessment held not to discriminate against taxpayers; statute exempting street railway from paving assessment held not denial of due process of law to city (Laws 1927, p. 1327, § 74(c); Const. U.S. Amend. 14; Const. Ga. art. 1, § 1, pars 2, 3).
The act and the ordinance are not unconstitutional for any of the reasons insisted upon.
Error from Superior Court, Bibb County; H. A. Mathews, Judge.
Injunction proceedings by the Georgia Power Company against the City of Macon. Judgment for plaintiff, and defendant brings error.
Affirmed.
Ellsworth Hall, Jr., and E. W. Maynard, both of Macon, for plaintiff in error.
Roland Ellis, Chas. A. Glawson, Louis G. Smith, and Wallace Miller,all of Macon, for defendant in error.
The point first raised and most strongly insisted on in the brief and argument of attorneys for the plaintiff in error involves and makes necessary a consideration and construction of certain clauses in the ordinance of May, 1927, and an act of the General Assembly of August, 1927. It is declared in the ordinance: "With the exception of Lawton Avenue and Vine Street, as now laid out and established, the Company shall not be required to pay or contribute to the cost of any new street-paving construction hereafter to be done or authorized by the City of Macon or its authorities." In the act of the General Assembly this appears: "Provided, that nothing herein contained shall authorize any assessment for new street-paving construction by the City of Macon against the Macon Railway and Light Co." Laws 1927, p. 1327, § 74(c). In the ordinance of 1927 are set forth exceptions to this seemingly general exemption of the company from liability for paving assessments: "Provided, however that all other provisions of the franchise contract and of the charter and ordinances of the City in reference to maintenance by the Company of its tracks and road-bed on both paved and unpaved streets remain unimpaired and in full force and effect." The plaintiff in error contended in the court below, and insists here, that the language of the statute and the ordinances fixes the liability against the company for all repaving; that it is within its legal rights in assessing against and endeavoring to collect from the Georgia Power Company its proportionate share of the expense of repaving a certain portion of Vineville avenue upon which the company maintains a double track. Notice was given to the company by the city that it intended to repave this street with concrete and that the existing brick pavement would be removed. The defendant in error insists that under the language of the law and ordinances there remains in the city no right to hold the company to liability for any costs of pavement construction, whether original or new replacement. Viewing the record in its entirety, taking into consideration the beneficent purpose of the city in granting the exemption as embodied in the report of its committee upon which the ordinance was based, giving to common words their ordinary use and meaning, applying to the phrases noted the generally recognized rules of grammatical construction, and measuring all related or relevant matter by the rule of reason, we are led inevitably to the conclusion, evidently reached by the trial judge, that the company is legally exempt from all liability for street-paving assessment, general or special, except such as might arise in connection with "maintenance by the company of its tracks and road-bed; and the placing of its road-bed in condition suitable for the placing of pavement by the city, in the event of new street-paving construction by [abutting] the company's track."
The brilliant and long-continued assaults made by attorneys for the plaintiff in error, directed against this particular point in the case, constrain us to discuss the reasoning through which our conclusion is reached. The committee of council decided, and set forth in their report, that modern conditions and motor bus competition had placed the company in an exceedingly difficult situation; that the bus lines were being operated on the streets free from any assessment for street-pavement construction, and without liability for maintenance or repairs, and that "the ultimate cost of this disastrous competition must be borne by the patrons who ride the cars." This furnishes a sufficient reason for the exemption; and we are certainly authorized to infer that the council in the enactment of its ordinance based upon this recommendation intended to grant a substance, not a shadow. Under its charter the city of Macon has legal authority to repave its streets in the exercise of a sound discretion, and levy and collect assessments as in cases of original paving. This being true, the Georgia Power Company will always rest under the shadow of impending "new pavement" assessments. The company has paid its proportion of the cost of original construction. The bus lines have paid nothing. It is now sought to hold the company liable for the new paving or repaving on Vineville avenue. Indirectly it is sought to fix a future liability on the company for the laying of new replacement paving on all of the paved streets abutting its lines, representing probably seven-eighths or more of its trackage. We are now asked to hold that a proper interpretation of the ordinance and its equalization feature is possible or consistent with these contentions of the plaintiff in error.
It is conceded by the plaintiff in error that under the statuteand ordinances the company has secured exemption from liability for costs of new street paving if placed on streets yet to be opened and on streets not yet paved. While it is intimated that the company has some track on "dirt" streets no information is furnished as to the probable length of such line, and we have a right to presume that most of the trackage is located in business or prominent residential sections of the city where the streets are paved. The recognized financial situation of the company would seem to preclude the laying of additional lines along unpaved streets, and the city does not contend that it has any paving of old dirt streets or opening up of new streets on its schedule. It seems to us that repaving is new paving. The street itself may be old, but the paving is new, the material is new, the construction work is new, the assessments and levies are new. According to Webster, "Rebuild--to build again, as something which has been demolished; to construct anew." "Rename--to give a new name to." Evidently "repave" is to pave again or anew. Attorneys...
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