Georgia Power Co. v. City of Decatur

• Decision Date: 15 August 1931
• Docket Number: 8367.
• Citation: 159 S.E. 863,173 Ga. 219
• Parties: GEORGIA POWER CO. v. CITY OF DECATUR.
• Court: Georgia Supreme Court

159 S.E. 863

173 Ga. 219

GEORGIA POWER CO. v. CITY OF DECATUR.

No. 8367.

Supreme Court of Georgia

August 15, 1931

Syllabus by the Court.

Decision on former review in which reversal was concurred in only because claim case was extended into general action held not binding on subsequent review.

In the case of Georgia Power Co. v. City of Decatur, 170 Ga. 699, 154 S.E. 268, 278, it was held: "We therefore hold that, while equitable pleadings may be filed by way of amendment in a claim case, by either party thereto, such pleadings must be germane to the issue in the case, which is whether the property levied upon is or is not subject to the execution levied; and this rule cannot be so extended as to convert the issue in a claim case into a general action where either party may obtain a general judgment in personam, as was done in the instant case. It therefore follows that the direction of the verdict and the entering of the judgment and decree thereon by the court below was error for this reason and the judgment overruling the motion for a new trial is reversed. Beck, P.J., and Eve, Gardner, and Graham, JJ concur in the judgment."

Held, that the only judgment concurred in was one of reversal upon the ground stated, and that such former decision, for the reason stated, is not a binding authority requiring affirmance of the decision now before us.

Substation of street railway necessary in performing public duties held not subject to levy under pavement execution apart from franchise without legislative sanction or special judgment.

The levy in this case was upon a substation of the claimant company, located in the city of Decatur, and used in the performance of duties and the rendition of service to the public, same being an integral and indispensable part of the system of the company for furnishing electric current to consumers in the community, and supplying power for the operation of its railway line. Such property is not subject to levy and sale under pavement execution, separate and apart from its franchise, without legislative sanction or special judgment and decree. The court erred in directing a verdict finding the property subject.

Court will not determine constitutionality of statute, if decision can be based on another ground.

It is not now necessary to determine the constitutional questions raised, for the reason that "A court will always abstain from passing upon the question of the constitutionality of an act of the legislature, if there be any other ground in the case upon which to rest its decision."

Error from Superior Court, De Kalb County; Frank Guess, Judge.

Execution by the City of Decatur against the Georgia Railway & Power Company, in which the Georgia Power Company filed a claim. Judgment for plaintiff, and claimant brings error.

Reversed.

Colquitt Parker, Troutman & Arkwright, of Atlanta, and Hugh Burgess, of Decatur, for plaintiff in error.

Branch & Howard, Bond Almand, and Robt. C. W. Ramspeck, all of Atlanta, for defendant in error.

EVE Judge.

This case arose by virtue of a claim filed by the Georgia Power Company to certain property levied on under a special paving execution or special fi. fa. issued by the city of Decatur against the Georgia Railway & Power Company. The execution was levied upon a substation located in the city of Decatur about one-half mile from the street paved. The substation is operated for the purpose of reducing electrical energy from a high to a low voltage, which is finally reduced by transformers located in different parts of Decatur, and throughout the electric distribution system in the city of Decatur, to voltage suitable for use by light and power customers of the company and to voltage used in the operation of its street railway lines. This case, that of City of Decatur v. Georgia Railway and Power Company, Georgia Power Company, Claimant, came on for hearing before the superior court of De Kalb county on the 6th day of March, 1931; and on that date the presiding judge then and there directed a verdict finding the property subject; and the case is now before us. In practically its present form this case came before this court on a previous occasion. See Georgia Power Co. v. City of Decatur, 170 Ga. 699, 154 S.E. 268. The judgment of the trial court was reversed for the reason and on the ground stated in the opinion. Defendant in error contends that "the former decision of this court reported in 170 Ga. 699, 154 S.E. 268, demands the affirmance of the judgment of the trial court." It is therefore necessary that we consider briefly the form of the judgment of concurrence and the facts in connection with its rendition. Judges Wood, Gardner, Persons, Graham, and Eve, as a result of disqualification on the part of Justices of the Supreme Court, were called to preside in this case. Judge Wood disqualified before final hearing, and did not participate in rendition of the opinion, which was written by Judge Persons. Eve and Graham concurred in the judgment of reversal, but, specially concurring, announced dissent from rulings appearing in the opinion. Justice Beck and...