Macon & B.R. Co. v. Stamps

• Decision Date: 14 April 1890
• Citation: 11 S.E. 442,85 Ga. 1
• Parties: MACON & B. R. Co. et al. v. STAMPS et al.
• Court: Georgia Supreme Court

11 S.E. 442

85 Ga. 1

MACON & B. R. Co. et al. v. STAMPS et al.

Supreme Court of Georgia

April 14, 1890

Syllabus by the Court.

1. A railroad corporation having power by its charter, granted in 1888, to locate and construct its road where it may think proper, may, by amendment to its charter made after the company has located, but before it has constructed, its road be confined to a particular route, on certain prescribed conditions as to a portion of the line through a given county. This results from the reserved power of the state declared in sections 1651, 1682, Code, to withdraw the franchises, or change, modify, or destroy the corporation, at the will of its creator.

2. The right of the state so to amend the charter is not in any degree abridged or affected by executory contracts between the company and a construction company, and between the latter and subcontractors, touching the construction and equipment of the road. In so far as the amendment may render the performance of these contracts impossible, the impossibility will result from act of law, and performance to that extent will be excused. All parties contracting with a corporation must take notice of the conditions on which it holds its franchises, and of its subjection to the legislative will.

3. Any allowable modification of the charter of a private corporation may be made by an amendment adding a proviso to one of its sections. The form of the amending act has no influence on its construction or effect.

4. A substantial, not a literal, conformity of a law to its title is required by the constitution. The title indicating that a railroad is to run into and through a named town, and the body of the act providing for running it into and through the corporate limits, or within one mile of the court-house, on certain conditions, the title covers the matter of the enactment.

5. The amending act under construction does not contemplate that the town of Thomaston shall or may devote municipal funds to the purpose specified, but that the town as a community, or the citizens, may, if they think proper, contribute voluntarily from their private means, and thereby raise a duty on the part of the railroad company to comply with the act.

6. The citizens of Thomaston have, as a class, a special and particular interest in the matter involved in this cause, and can support an action for the protection of that interest.

7. The class being composed of numerous individuals, some may sue in behalf of all, the interest involved being common to the whole class.

8. Nothing appears to show that the judge erred in entertaining jurisdiction of the cause. Any objection, founded on the non-residence of the principal defendants in the county could be waived, and was waived, if these defendants answered without raising and urging that objection.

9. There was no need for enjoining the mandamus proceedings, and the injunction granted was, to that extent, improper. Direction is given to modify the injunction accordingly.

10. Under the special circumstances, as a condition of continuing the interlocutory injunction in force after the amount of money necessary to be deposited in bank by the citizens is ascertained, there ought to be bond and security required that the deposit will be made at the proper time. Direction is given that it be so ordered, and that, for any failure to comply with the order, the injunction be dissolved.

Error from superior court, Upon county; BOYNTON, Judge.

Gustin, Guerry & Hall, T. B. Cabaniss, and N. J. Hammond, for plaintiffs in error.

J. A. Cotton, J. T. Allen, M. H. Sandwich, Lanier & Anderson, and Hall & Hammond, for defendants in error.

BLECKLEY C.J.

The Macon & Birmingham Railroad Company was incorporated by an act of the general assembly passed in December, 1888, (Acts 1888, p. 164.) The act provided, among other things, "that said company shall have power and authority to survey, lay out, and construct, maintain and equip, a railroad from the city of Macon, in the county of Bibb, or from some point on the present line of the Georgia Southern & Florida Railroad, through the county of Bibb, and through the following counties, or such of them as said railroad company may deem fit, to-wit, Houston, Crawford, Monroe, Upson, Pike, Meriwether, Troup, and Heard, to some point on the state line of Alabama, by the most direct and practicable route, to be judged of by them, and in the direction of the city of Birmingham, Alabama." Part of the statute law of this state in force when this act of incorporation was passed were two sections (1651, 1682) of the Code, as follows: "Persons are either natural or artificial. The latter are the creatures of the law, and, except so far as the law forbids it, subject to be changed, modified, or destroyed at the will of their creator; they are called 'corporations."' "In all cases of private charters hereafter granted, the state reserves the right to withdraw the franchise, unless such right is expressly negatived in the charter." There is no such negative in the charter of this company. These provisions of the Code have been construed by the supreme court of the United States in Railroad Co. v. Georgia, 98 U.S. 359. That court, adjudicating upon a charter granted in 1863, said: "These provisions of the Code became, in substance, a part of the charter. Railroad Co. v. Maine, 96 U.S. 499. It is quite too narrow a definition of the word 'franchise,' used in this statute, to hold it as meaning only the right to be a corporation. The word is generic, covering all the rights granted by the legislature. As the greater power includes every less power which is a part of it, the right to withdraw a franchise must authorize a withdrawal of every or any right or privilege which is a part of the franchise. So it was held in Banking Co. v. Georgia, 54 Ga. 401, and so it must be held now, especially in view of the statutory provision of the Code that private corporations are subject to be changed, modified, or destroyed at the will of their creator." The constitution of 1877 declares that no law making irrevocable grants of special privileges or immunities shall be passed, and that no grant of special privileges or immunities shall be revoked, except in such manner as to work no injustice to the corporators or creditors of the corporation. Code, §§ 5025, 5026. The company proceeded under its charter to locate its line of railroad through Upson county, but, before it constructed any part of the same in that county, the general assembly amended the charter by an act approved November 7, 1889, (Acts 1889, p. 336.) This amendment provided that, if the railroad runs through Upson county, and within five miles of the town of Thomaston, it shall run into and through the corporate limits of that town, or within one mile of the court-house, provided it shall not cost the company any more from where the road crosses the five-mile limit on the east of the town to the Rogers property than any other route within that limit. The cost is to be determined by two competent disinterested civil engineers, one to be selected by the company, and the other by the mayor of Thomaston, to locate the route proposed by the company within the five-mile limit, and the route within the town, or within one mile of the court-house, on a way which is equitable and just both to the company and the town. These engineers are to estimate the cost of building such line, and, if they fail to agree, they are to appoint a third disinterested competent civil engineer, who shall decide and determine the matter. In estimating the cost of the respective routes, the safety and permanency of the road-beds, and keeping up the same, are to be considered. Whatever amount the estimate shows it will cost more to go through the corporate limits, or within one mile of the court-house, than the route proposed by the company within the five-mile limit, shall be paid by the town of Thomaston, or the citizens thereof. Upon refusal to pay the same, the company is released from building the road through the corporate limits, or within one mile of the court-house. A sum equal to such extra cost, if any, is to be paid into some solvent national bank of this state when the road is built from the city of Macon to the five-mile limit, subject to be checked out by the company when the road is built through the five-mile limits. The company refuses to accept this amendment, or to comply with its terms. The citizens of Thomaston, or some of them, offer to comply on their part, and insist upon compliance by the company. This difference gives rise to the present controversy.

1. The first question is whether the state, through the legislature could ingraft this amendment upon the charter without the consent of the company, inasmuch as the original charter granted power and authority to construct and maintain a railroad through the county of Upson by the most direct and practicable route, to be judged of by the company, with no condition whatever. The amendment certainly withdraws a portion of this broad franchise on certain conditions. As modified by the amendment, the charter still allows the company to select its own route at will through the county, if in so doing it should not bring the road within five miles of Thomaston. By bearing away from that town so as not to approach within the five-mile limit, the company can render this amendment wholly inapplicable to its operations. This being done, the charter will be the same with the amendment as without it. Only by approaching as near to Thomaston as five miles in locating and constructing its line will any affirmative duty whatever devolve upon the company by virtue of the amendment. If such an alteration as this in the charter of a...