Mayor of Macon v. Harris

• Decision Date: 11 November 1884
• Citation: 73 Ga. 428
• Parties: THE MAYOR, ETC., OF MACON et al. v. HARRIS.
• Court: Georgia Supreme Court

73 Ga. 428

THE MAYOR, ETC., OF MACON et al. v. HARRIS.

Supreme Court of Georgia.

November 11, 1884

September Term, 1884.

1. The charter granted to the Macon Street Railroad Company (Acts 1868, pp. 107, 108) contemplates the construction of the road and the running of cars for the use of all the public, and not of any one person, natural or artificial. Under it, the municipal authorities could authorize the propelling of cars through the streets by steam for public use; but they could not do so for private use; and if they sought to do so, a bill to enjoin the authorizing by the city of such use, and to stop the damage which its authority had permitted, on behalf of a property owner whose property was injured, was not without equity.

2. Where such authority to haul coal, etc., for a manufacturing company was sought to be granted to the Street Railroad Company in consideration of an annual payment to be made to the city, and this was done for the benefit of the manufacturing company, which was a party to the contract, and guaranteed the annual payments, and that it would save the city harmless against any damage arising from the use of steam, there was equity in the bill filed to enjoin such illegal use, as against such manufacturing company.

3. There was also equity in such a bill, as against the Street Railroad Company. It was a party to the contract, was the instrument used to work the injury and confer the benefit was the actual perpetrator of the wrong, and was an essential party to the injunction.

4. The municipal authorities, the Street Railroad Company and the manufacturing company, charged in the bill to have combined in the diversion of a charter granted for public purposes to private benefit, and to have been parties to a contract for that purpose, were properly joined in the bill as defendants.

5. The other parties defendant to this bill are made so because connected with the two private corporations, or one of them as president, agent or purchasers, and may be interested in the subject-matters of the suit, as they " claim an interest in or control over the street railroad franchises." Discovery is sought, and an attack is made on the legality of the purchase and title to the corporate franchise of the Street Railroad Company. These parties were proper, on the principle that in equity all parties in interest should be joined.

6. The contract being illegal, its violation could only add additional force to the charge of the use of a franchise for private benefit.

Corporations. Charters. Municipal Corporations. Equity. Parties. Contracts. Streets and Sidewalks-Constitutional Law. Before Judge SIMMONS. Bibb Superior Court. April Term, 1884.

Peter Harris filed his bill against the Mayor and Council of Macon the Macon Street Railroad Company, the Bibb Manufacturing Company, J. F. Hanson and other individual defendants alleging, in brief, as follows: The Macon Street Railroad Company was chartered in 1868, and constructed its road through a number of the streets of the city. Under its charter, it could run its cars only for public use. In 1875 a fi. fa. was levied on its property and franchises, and one of the defendants, Mrs. Mary J. Hill, became the purchaser, and operated the road for two or three years, when it was abandoned, and most of the track was taken up. The corporation ceased to exercise its corporate powers, and did nothing further as a company, except that, in May, 1881, a petition on the part of certain persons named therein was placed before the council of the city, asking for authority to lay a track on a street called Hawthorne street, to enable them to have their freight delivered nearer their places of business. This petition was granted. On May 31, a counter-petition, on the part of persons owning property lying on Hawthorne street, was presented to the council, asking that the permission to lay this track be withdrawn; but action on the latter petition was deferred and never taken. A track was laid on Hawthorne street, and then the Macon Street Railroad Company presented a petition asking permission to run steam engines on their track from the Central Railroad up Hawthorne street to the property of the Bibb Manufacturing Company temporarily, in order to enable that company to get a supply of coal. This was granted, and a committee was appointed to agree upon a contract to be drawn and the terms and restrictions to be imposed. A protest by complainant and others was made against such use of the street; but on October 28, 1881, the committee presented to the mayor and council a contract granting a permanent right to the Street Railroad Company to use steam engines on their track, and this the mayor was authorized to sign by resolution of the council, and accordingly signed it. The body of this contract, bearing date October 26, 1881, between the mayor and council of the city of Macon, parties of the first part, and the Macon Street Railroad Company and the Bibb Manufacturing Company, parties of the second part, was as follows:

" That for and in consideration of $100.00 to be paid to them annually on the 10th day of January in each year, commencing on the 10th day of January, 1882, the said mayor and council, parties of the first part, has consented and give permanent permission to the said Macon Street Railroad Company and said Bibb Manufacturing Company, parties of the second part, to employ steam in the running of cars upon the line of the said Street Railroad Company, now laid up Hawthorne street, in the city of Macon, to the grounds of the Bibb Manufacturing Company, known as the old factory; Provided, that the train and cars are not run at a greater rate of speed than four (4) miles per hour, and shall always be preceded by a flagman. The said Street Railroad Company, and the said Bibb Manufacturing Company, parties of the second part, do each hereby covenant and agree on their part, jointly and severally, to hold the said mayor and council, party of the first part, harmless from any cost or damage that may arise to them, from any cause whatever, by reason of the granting of the above privilege, or the running of said railroad in said city of Macon. And said party of the second part further covenants and agrees to defend all suits, and pay all damages that may arise, or be brought against said party of the first part, because of the running of said street railroad in said city. Said parties of the second part further covenant and agree to keep in a reasonably safe condition, for travel and use, the street along the line and track of said road, and to keep up and in good repair, and to erect such new crossings along their line of track as they may, from time to time, be required to by the said party of the first part; and if said party of the second part fail to erect, and to keep in repair, such track and crossings, then the said party of the first part shall have the power to have the same done, at the cost and expense of the said party of the second part, which expense they hereby covenant to pay.

It is distinctly understood to be the purpose of this instrument to set out a contract between the mayor and council of the city of Macon and the Macon Street Railroad Company; and the Bibb Manufacturing Company, by joining therein, intends and does only become, for its own benefit and interests, the guarantor of the said Street Railroad Company in its undertakings therein."

Since that time, trains have been run irregularly over the track. They have not been run in accordance with the contract, but at a higher rate of speed than that agreed upon, and without a flagman, and in several instances cars have been allowed to rundown grade without any control. The track is within thirty feet of complainant's residence and within twenty-five feet of another residence on his lot, and causes annoyance, inconvenience and danger to himself and family. It has decreased the rental value of his property $500 per annum and reduced its actual value $6,000. The contract granting the use of the street to the street railroad for the benefit of an individual or corporation, and not of the entire public, was illegal and a perversion of the charter of the Street Railroad Company.

The contract was signed by William H. Ross, as president of the Street Railroad Company; and complainant is advised and believes that he and the other individual defendants claim an interest in or control over the franchise of that corporation. The company is entirely insolvent. The prayer was for discovery as to the officers, directors, stockholders and persons controlling the Street Railroad Company and the manner and authority under which they claim such control; that the further use of the track in the manner stated be enjoined; that the mayor and council be enjoined from permitting the use of Hawthorne street for that purpose; that the track be removed from the street; and that recovery be had for the damage sustained.

Demurrers were filed by the defendants, setting up that the bill was without equity and would not authorize the relief prayed for; that complainant had a complete common law remedy; and that there was a misjoinder of parties. The court overruled the demurrer, and defendants excepted.

HILL & HARRIS; BILLUPS & HARDEMAN; B. M. DAVIS, for plaintiffs in error, cited, as to liability of city, Acts 1868, pp. 107, 108; Code, §5079; 69 Ga. 542; 50 Id., 451; 65 Id., 376; 20 Id., 635; 19 Id. ; 471; Code, §1685; 6 Ga. 130; 14 Id., 327; 25 Id., 536; 32 Id., 291-2; 47 Id., 282; 60 Id., 180; Dill Mun. Corps., 556, 558, 563; 29 Ills., 279-286; 45 Iowa 406; 45 Ga. 602; 44 Id., 547; 52 Id., 212; 57 Id., 114; Code, §2222; 34 La.Ann. 462; 24 Iowa 455; 36 Penn. St., 99; 27 Id., 339.

As to liability of manufacturing company, Code, ...