Railroad Commission of Georgia v. Southern Ry. Co.

• Decision Date: 30 September 1922
• Docket Number: 2715.
• Citation: 114 S.E. 335,154 Ga. 297
• Parties: RAILROAD COMMISSION OF GEORGIA ET AL. v. SOUTHERN RY. CO.
• Court: Georgia Supreme Court

114 S.E. 335

154 Ga. 297

RAILROAD COMMISSION OF GEORGIA ET AL. v. SOUTHERN RY. CO.

No. 2715.

Supreme Court of Georgia

September 30, 1922

Syllabus by the Court.

The discretion of the trial judge in refusing, on motion, to consolidate cases will not be disturbed, unless there is a very plain case of abuse of discretion to the detriment of the movant. Under the circumstances showing the character of the two cases which the court refused to consolidate, upon which ruling error was assigned in this case, even if the judge would have been authorized to consolidate the cases there was no abuse of discretion in refusing to do so.

On the trial of the case upon the issues formed by the petition as amended and the answer and intervention filed by the interveners in such case, the record and judgment of the court in the other case which the court refused to consolidate with the case on trial were admissible in evidence.

This was an equitable suit by the Southern Railway Company against the Railroad Commission of Georgia and certain other persons who intervened as parties defendant, to enjoin enforcement of an order of the Railroad Commission requiring the Southern Railway Company to resume operation of the railroad of the Roswell Railroad Company, alleged to have formerly been operated by the Southern Railway Company, and abandoned without having obtained permission from the Railroad Commission, as provided in its rules, to discontinue operating the road. There was uncontradicted evidence that after passage of the order of the Railroad Commission, the Roswell Railroad Company had been placed in the hands of a receiver appointed by the court in another case, and that the railroad and other property of the Roswell Railroad Company were in possession of the receiver, and being administered as assets of the Roswell Railroad Company in winding up the affairs of that company. Held, that under such circumstances the judge was authorized, on the final trial of the case, to direct a verdict permanently enjoining the order of the Railroad Commission requiring the Southern Railway Company to resume operation of the railroad.

Error from Superior Court, Fulton County; W. D. Ellis, Judge.

Suit by the Southern Railway Company against the Railroad Commission of Georgia and others, in which other parties intervened. Judgment for plaintiff, and defendants bring error. Affirmed.

The exception is to a judgment directing a verdict for the plaintiff. The action was in equity, seeking to perpetually enjoin an order of the Railroad Commission of Georgia requiring the Southern Railway Company to resume operation of a railroad which, it was stated, that company had formerly operated and abandoned without consent of the Railroad Commission. The following is a statement of the pleadings:

On March 15, 1920, the town of Roswell, located in Cobb county and the town of Alpharetta, located in Milton county, Ga., filed an application to the Railroad Commission of Georgia, alleging that prior to March 1, 1920, the Southern Railway Company, as a common carrier of freight and passengers, had operated a railroad about 9 1/2 miles in length between Roswell and Chamblee, Ga., but that on the day above mentioned it abandoned operation of the road. The petition contained a prayer that the respondent be required to resume operation of the road. In answer to a rule nisi the respondent denied that it had ever owned or operated the railroad in question, or that it was under any public duty to operate the road, and denied that the Railroad Commission had jurisdiction to require it to operate such road. On the hearing the Railroad Commission made the following order:

"Upon consideration of the record in the above-stated case, it is ordered that the rule nisi issued in the same be made absolute, and that Southern Railway Company be, and is hereby, directed, not later than 7 o'clock a. m. Monday, March 29, 1920, to resume service over and operation of the railroad between Chamblee, Ga., and Roswell, Ga., as operated by it on March 1, 1920, and to continue such service and operation until it shall have been legally authorized to discontinue the same."

On March 27, 1920, the Southern Railway Company instituted an action against the Railroad Commission of Georgia and the individual members of the Commission and its secretary, to declare void and to enjoin enforcement of the order of the Commission. In addition to all that is stated above, the original petition, with the exhibits attached as a part thereof, made substantially the following allegations:

Petitioner is a corporation created and existing under the laws of the state of Virginia, and engaged in the carriage of passengers and freight, and operating lines of railroad in the state of Georgia. The Atlanta & Roswell Railroad Company was chartered by the state of Georgia under the act of the General Assembly approved April 10, 1863 (Acts 1862-63, p. 219), for the purpose and with the power of constructing a railroad from the town of Roswell to the city of Atlanta; said charter was amended by act of the Legislature approved October 6, 1870 (Acts 1870, p. 287), and the Atlanta & Roswell Railroad Company, under said amendment, was given the right to construct a railroad from Roswell to some convenient point of connection with the track of the Atlanta & Richmond Air Line Railway Company. For a considerable period of time after the granting of the charter no work towards the construction of the line of railroad was done by the Atlanta & Roswell Railroad Company, but shortly prior to the year 1874 it entered into a contract with a certain firm for the construction of a narrow-gauge line of railroad from Roswell to Chamblee, which was a station on the line of railroad of the Atlanta & Richmond Air Line Railway Company. The line was never completed by the Atlanta & Roswell Railroad Company, but the contractors in the year 1874 filed a lien upon said railroad and a proceeding in the superior court for its foreclosure. As a result of this proceeding all the properties of the Atlanta & Roswell Railroad Company were sold at public outcry, and the purchasers at such sale, under the laws of this state, reorganized in the year 1880, under the name and style of "Roswell Railroad Company," under an amendment granted by the Secretary of State to the charter of the Atlanta & Roswell Railroad Company. The charter as amended expired in 1910, and has not since been revived.

The Roswell Railroad Company received certain aid, when it began completion of the railroad, from the Atlanta & Charlotte Air Line Railway (successor to the Atlanta & Richmond Air Line Railway Company), but the line was not completed until the Richmond & Danville Railroad Company leased the properties of the Atlanta & Charlotte Air Line Railway, and when it did so the Richmond & Danville Railroad Company acquired a beneficial interest in 201 shares of the capital stock of the Roswell Railroad Company, which had been issued to the Atlanta & Charlotte Air Line Railway, and succeeded the Atlanta & Charlotte Air Line Railway Company in what was known as a sinking fund agreement, under which the Atlanta & Charlotte Air Line Railway Company had indorsed a bond issue of the Roswell Railroad Company to the amount of $35,000, the two companies agreeing that the Atlanta & Charlotte Air Line Railway should deposit 25 per cent. of the proportion of the gross earnings from all traffic interchanged between the two railroads at Chamblee with a trustee, for the purpose of providing a fund to take care of and ultimately pay off said bonds. The Richmond & Danville Railroad Company became insolvent, and when its properties were sold petitioner acquired its interest in the lines of the Atlanta & Charlotte Air Line Railway Company and its property, and became a party to said sinking fund agreement. In the year 1903 the gauge of the Roswell Railroad Company from Roswell to Chamblee was broadened, and a refinancing of said company became necessary. As a result of such refinancing new capital stock was issued by the Roswell Railroad Company, and new bonds were issued to retire the old bonds and to fund certain indebtedness. Petitioner acquired in its own name 175 shares of the new issue of stock, as well as a certain amount of the new bonds. It also acquired a beneficial interest in 175 shares of new stock which were issued to the Atlanta Charlotte Air Line Railway, as well as a beneficial interest in certain bonds which were also delivered to the Atlanta & Charlotte Air Line Railway in retirement of certain old bonds held by that company.

Although petitioner became a creditor and stockholder of the Roswell Railroad Company in the manner above set forth, the corporate entity of the Roswell Railroad Company was never in any wise merged, either with petitioner or with any of its predecessors; but a separate, distinct, independent corporate organization has always been kept up by the Roswell Railroad certainly until its charter lapsed and expired. When the Roswell Railroad Company was broad-gauged it did not have sufficient funds or credit to acquire new engines, rolling stock, and equipment necessary to operate upon the line of railroad; and in this situation petitioner, for a consideration, has furnished the Roswell Railroad Company with the motive power and cars necessary to perform its duties as a carrier of persons and things, and has also furnished it the services of its agents, for a consideration, in conducting its business as a common carrier. This furnishing resulted from a business arrangement between the two corporations, and petitioner never assumed the charter obligations or public duties of the Roswell Railroad Company, and nothing was done in this way to relieve that company of its...