Georgia Railway & Power Co. v. Mayor and Council of College Park

• Citation: 111 S.E. 911,153 Ga. 329
• Docket Number: 3019,3081.
• Decision Date: 29 April 1922
• Parties: GEORGIA RY. & POWER CO. ET AL. v. TOWN OF DECATUR. GEORGIA RY. & POWER CO. ET AL. v. MAYOR AND COUNCIL OF COLLEGE PARK.
• Court: Supreme Court of Georgia

111 S.E. 911

153 Ga. 329

GEORGIA RY. & POWER CO. ET AL. v. TOWN OF DECATUR.

GEORGIA RY. & POWER CO. ET AL. v. MAYOR AND COUNCIL OF COLLEGE PARK.

Nos. 3019, 3081.

Supreme Court of Georgia

April 29, 1922

Syllabus by the Court.

A judgment of a trial court granting or refusing an injunction where the same depends upon a question of law, is, upon its affirmance by the Supreme Court, a final adjudication of such question.

The rulings of the Supreme Court, upon the interlocutory order of the trial judge granting an injunction, became the law of the case as to the particular case.

An affirmance by the Supreme Court of the order of the lower court granting a temporary injunction is a ruling upon all questions of law involved, though the legal contentions may not have been specifically enumerated or mentioned in the opinion of the court.

No 3019:

Error from Superior Court, De Kalb County; Jno. B. Hutcheson Judge.

No 3081:

Error from Superior Court, Fulton County; Geo. L. Bell, Judge.

Separate actions by the Town of Decatur and by the Mayor and Council of College Park against the Georgia Railway & Power Company and others. Judgments for plaintiffs, and defendants bring error. Affirmed.

J. Prince Webster, Rosser, Slaton, Phillips & Hopkins, and Colquitt & Conyers, all of Atlanta, for plaintiffs in error.

Harwell, Fairman & Barrett and Frank Harwell, all of Atlanta, and J. Howell Green, of Decatur, for defendant in error.

No. 3081:

Colquitt & Conyers, J. Prince Webster, and Rosser, Slayton & Hopkins, all of Atlanta, for plaintiffs in error.

Geo. P. Whitman, of Atlanta, for defendant in error.

WRIGHT Special Judge.

The present case comes up upon the final hearing in the court below. The exceptions are to the rulings sustaining the general demurrers, the declination of certain requests to charge, and the direction of a verdict in favor of a permanent injunction, and the final decree thereon. The case thus comes before the court the second time for review. The first appeal was from the interlocutory order of the trial judge granting a temporary injunction against the plaintiffs in error. A decision therein was rendered September 27, 1921. 152 Ga. 143, 108 S.E. 615. Upon the hearing of this first appeal the court held that the decision of the court in the mandamus case, Georgia Ry., etc., Co. v. Railroad Commission of Georgia, 149 Ga. 1, 98 S.E. 696, 5 A.L.R. 1, was controlling upon the questions then under consideration, and a request for a review of the mandamus case was refused by this court; and immediately following the refusal to review the mandamus case the court held:

"And the court is further of the opinion that, independently of this ruling as to the case we are asked to review, the Georgia Railway & Power Company was without authority to fix the rate which the plaintiffs in the court below sought to enjoin; and consequently the court did not err in granting the interlocutory injunction."

The effect of this ruling was that not only the law in the mandamus case was controlling, but that independently, under the questions of law presented in the appeal then under review, the ruling of the trial judge was without error.

While the plaintiff in error now insists that some ten distinct points of attack upon the validity of the contract are made in the present appeal that were not made in the mandamus case (149 Ga. 1, 98 S.E. 696, 5 A.L.R. 1), it is not and cannot be insisted that the identical questions of law were not involved upon the first hearing of the interlocutory injunction (152 Ga. 143, 108 S.E. 615) as are now involved upon this second appeal.

But it is insisted by plaintiff in error that one question of constitutional objection to the contract, to wit, that it was violative of section 6389 of the Civil Code (Const. art. 1, § 3, par. 2), "was not raised or pleaded when the case at bar was before this court, * * * and, though discussed in argument, was not considered in the opinion, presumably because it was not then properly before the court." The question raised upon this constitutional objection, if not clearly stated in the pleadings, was certainly argued fully and exhaustively before the court. Supplemental briefs and reply briefs were filed upon the effect of the constitutional question involved in section 6389 of the Civil Code, and the ruling in the case of City of San Antonio v. San Antonio Public Service Corporation, 255 U.S. 547, 41 S.Ct. 428, 65 L.Ed. 777, now cited in support of this very constitutional objection, was then cited and was considered by this court in its ruling.

Upon a careful inspection of the entire record, we are unable to find a question of law or fact that was not involved in the former hearing upon the interlocutory order granting the injunction, or in the mandamus case. The same questions of law are reiterated by amendment, reclothed, and elaborated; but it is not difficult, upon a careful inspection, to find that we have met them before.

1. This entire litigation, so often before the courts, has revolved continuously around the single question as to whether the contract between the Georgia Railway & Power Company and the town of Decatur was a valid, subsisting contract. This question has twice been definitely ruled in favor of the validity of the contract; and the last ruling (152 Ga. 143, 108 S.E. 615) is clearly res judicata, in our opinion, of the present case.

In the case of Ingram v. Mercer University, 102 Ga. 226, 228, 229, 29 S.E. 273, Chief Justice Simmons delivering the opinion, this court reaffirmed the decision in the case of City of Atlanta v. Methodist Church, 83 Ga. 448, 10 S.E. 231, holding that--

"A judgment of a trial court granting or refusing an injunction, when the same depends entirely upon a question of law, is, upon its affirmance by the Supreme Court, a final adjudication of such question."

The court in the case of Ingram v. Mercer University, supra, said:

"Under the equity practice which has prevailed in this state since the passage of the act of October, 1870 (Civil Code, §§ 5540, 5558), we think that decision is sound and proper. Under that act many cases are brought to each term of this court which involves no questions but those purely of law. The trial judge passes upon the same, and either grants or refuses an injunction. For a speedy determination of the matter, the law provides a 'fast' writ of error to this court, and further provides that this court shall advance the same upon its dockets, when requested so to do by either party. This has been the practice since 1870; and, as far as we know or can ascertain from consulting our reports the decisions of this court made upon pure questions of law, upon interlocutory injunctions, have been always regarded as final and controlling upon the trial judge on the final trial before a jury. If it were not so, a great burden has been unnecessarily placed upon this court. A great many of the cases upon these fast writs of error are brought here upon questions purely legal, and this court spends hours, days, and even weeks in investigating these questions; and to say that after all of this labor a decision made in such a case is merely advisory and does not bind the trial judge or this court in the subsequent litigation between the same parties seems to us to be absurd. During this term of court a case was brought here from the city of Augusta, involving the acts and contracts of the city and of a street railway company in that city, under the charter of the city and of the railway company, and certain contracts entered into by the city, the street railway company and certain steam railroad companies whose lines ran into the city, involving only the construction of these charters and of these contracts, matters not of fact, but of pure law. The decision of these questions occupied this court for days, in order to arrive at the proper construction of the law upon the charters and contracts. According to the

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