Georgia Ry Power Co v. Town of Decatur, 463

• Decision Date: 04 June 1923
• Docket Number: No. 463,463
• Citation: 67 L.Ed. 1065,262 U.S. 432,43 S.Ct. 613
• Parties: GEORGIA RY. & POWER CO. et al. v. TOWN OF DECATUR
• Court: U.S. Supreme Court

262 U.S. 432

43 S.Ct. 613

67 L.Ed. 1065

GEORGIA RY. & POWER CO. et al.

v TOWN OF DECATUR.

No. 463.

Argued April 24 and 25, 1923.

Decided June 4, 1923.

Mr. Walter T. Colquitt, of Atlanta, Ga., for plaintiffs in error.

Messrs. J. Howell Green, of Decatur, Ga., and Frank Harwell, of Atlanta, Ga., for defendant in error.

Mr. Justice SUTHERLAND delivered the opinion of the Court.

The defendant in error, plaintiff below, brought suit against the power and electric companies, defendants below, to enjoin them from increasing the rate of fare on a line of street railway between Decatur and the city of Atlanta. Hackman and others intervened, asserting that they resided near Atlanta and used certain car lines of defendant going to and from Atlanta, upon which a seven-cent fare was exacted, and that the contract, hereinafter referred to, giving residents of Decatur a lower rate of fare, constituted an illegal discrimination against them and against the localities where they lived. They did not allege that the seven-cent fare was unreasonable, nor did they seek any change in that rate, but merely joined with defendants in praying that the contract be held void and of no effect.

The electric company was the owner and the power company the lessee of the lines involved. About the year 1902 the electric company owned three lines between Atlanta and Decatur. Desiring to abandon the most northerly of these lines, the company began to tear it up. Thereupon suit was brought for an injunction. The controversy was adjusted by an agreement between the company and the town of Decatur, by which the company was allowed to remove its line and an ordinance was enacted, carrying the agreement into effect. This ordinance, which was formally accepted, bound the company 'to never charge more than five cents for one fare upon its main Decatur line * * * for one passenger and one trip upon its regular cars from the terminus of said line in the city of Atlanta to the terminus of the same in the t wn of Decatur, or from the terminus of said line in the town of Decatur to the terminus of the same in the city of Atlanta, * * *' and 'to grant one transfer ticket upon the payment of one full fare for the purpose of giving one continuous ride from any point within the town of Decatur * * * to any point within the city of Atlanta on any of its lines in said city and vice versa.' In pursuance of this agreement the company tore up, removed, and abandoned the northerly line and has never since restored it.

The company maintained a five-cent fare until October, 1920, at which time it gave notice that the fare would be increased to seven cents. Prior thereto an application of the company to the Railroad Commission of Georgia for permission to make this increase had been denied, on the ground that, because of the contract, the commission was without jurisdiction. The company then sought by mandamus to compel the commission to assume jurisdiction of the question; but the application was denied by the trial court, whose ruling was affirmed by the Supreme Court of the state, in so far as it related to the line covered by the contract. The present suit against the defendants was predicated upon the foregoing facts. The contentions of the defendants were that the execution of the contract was beyond the powers of the town; that permission to remove and abandon the northerly line furnished no consideration for it; that it constituted an attempt to fix fares outside the corporate limits of the town; that, since it was entered into, these limits had been twice extended so as to include a portion of the main line, outside the corporate limits when the contract was entered into; and that the contract could not be applied to this additional territory without impairing its obligation, in violation of the Constitution of the United States. They further contended that, in any event, the five-cent fare should be limited to passengers entering cars at the termini of the line in Atlanta and Decatur and not to those entering at intermediate points, and that, because of changed conditions since the contract was made, the five-cent fare was confiscatory. Upon an application made by the defendants, after the disposition of the mandamus proceeding, the Railroad Commission had fixed a seven-cent fare on lines not covered by the contract and required the defendants to furnish, during rush hour periods, additional seating capacity, and, on the main Decatur and College Park routes, to operate trailers during such rush hours. The commission had also ordered that no change should be made in the existing rules and practices of the company as to transfers.

The trial court made an interlocutory order, granting a preliminary injunction, which was affirmed on writ of error by the state Supreme Court. 152 Ga. 143, 108 S. E. 615. Thereafter, the case having been remanded, defendants were allowed to amend their answer and cross-bill in several particulars. A general demurrer to these amended pleadings was sustained in part; and a jury, impaneled to try the remaining issues, found for the plaintiff by direction of the court, upon which a final decree was entered. A second writ of error from the state Supreme Court followed. That court held that its judgment upon the first writ of error became the law of the case and was res judicata and therefore precluded a further review and the decree of the trial court was affirmed. 153 Ga. 329, 111 S. E. 911. Deprivation of rights under the federal Constitution was duly and properly asserted. The case is here on writ of error. From motives of caution defendants also filed a petition praying the issuance of a writ of certiorari, consideration of which was postponed to await the hearing on the writ of error.

Preliminarily, defendant in error insists that the decision of the state Supreme Court on the first writ of error affirming the interlocutory order of the trial court, was a final adjudication from which a writ of error from this court might ave been sued out, and, hence, that we are precluded from considering the present writ of error. Rio Grande Railway v. Stringham, 239 U. S. 44, 36 Sup. Ct. 5, 60 L. Ed. 136, is cited and relied upon; but that case furnishes no support to the contention. There the trial court had adjudged the title to a piece of land to be in the defendant. Upon appeal the state Supreme Court reversed this judgment and remanded the case with directions to enter judgment awarding plaintiff title to a right of way over the land. The trial court followed this direction. Plaintiff again appealed, insisting, as it had done before, that it had title in fee simple; but the appellate court declined to consider the question, holding that the former decision concluded the court as well as the parties. This court held that as the judgment on the first appeal disposed of the whole case on the merits and directed that judgment should be entered, it left nothing to the judicial discretion of the trial court and was therefore final. Here the first writ of error was not from a final judgment, but from an interlocutory order granting a temporary injunction. That it did not finally dispose of the case is clear, since the trial court thereafter allowed amendments, ruled on a demurrer, impaneled a jury, directed a verdict and entered a final decree, and it was upon this decree that the second writ of error was brought. We are not unmindful of the ruling of the appellate court to the effect that the issues were, in fact, disposed of on...