Railroad Commission of Georgia v. Palmer Hardware Co.

• Decision Date: 09 January 1906
• Citation: Railroad Commission of Georgia v. Palmer Hardware Co., 124 Ga. 633, 53 S.E. 193 (Ga. 1906)
• Parties: RAILROAD COMMISSION OF GEORGIA v. PALMER HARDWARE CO.
• Court: Georgia Supreme Court

53 S.E. 193

124 Ga. 633

RAILROAD COMMISSION OF GEORGIA v. PALMER HARDWARE CO.

Supreme Court of Georgia

January 9, 1906

Syllabus by the Court.

Where an injunction was granted on August 16, 1905, and the presiding judge left the state on the same day, and did not return until after the lapse of more than 20 days, and where the plaintiffs in error sought to tender the bill of exceptions in due time, and after the return of the judge he certified it at the earliest possible date, stating the cause of the delay, and the plaintiffs in error were without fault the writ of error will not be dismissed.

The decision in Jackson v. State,18 S.E. 558, 93 Ga 216, andGibson v. Thornton,26 S.E. 78, 99 Ga. 647 reviewed and reversed.Markham v. Huff,72 Ga. 106 distinguished.

Certain dealers in stoves, plates, etc., in Savannah filed an equitable petition against the railroad commissioners of the state and certain railroad companies.It was alleged that the commissioners had issued a circular fixing freight rates which the railroads should charge on articles of the character mentioned, from Atlanta to various other places in the state; that these rates were so low that they discriminated in favor of Atlanta shippers against those in Savannah shipping in the same places under like circumstances; that this was done under a policy of discrimination on the part of the commissioners for that purpose; that they considered interstate rates for freight in fixing interstate rates; and that the railroad companies would obey the commissioners and charge the reduced rates from Atlanta without changing the rates previously existing from Savannah.By amendment it was alleged that the lower rates had been by the commissioners made to apply to shipments from Rome, Dalton, and Rockmart.None of the railroad commissioners lived in Chatham county where the proceeding was instituted, but in other counties of the state; and only one of the railroad companies had its main office there.An injunction was prayed against the commissioners and the railroad companies.Held that, on demurrer by the commissioners to the jurisdiction, it was error for the judge of the superior court of Chatham county to entertain jurisdiction and grant the injunction prayed.

The action, if meritorious, should have been brought in the county where one or more of the railroad commissioners resided.

As the superior court of Chatham county was without jurisdiction to pass on the merits of the questions involved (the point having been duly made by the commissioners), and the grant of an injunction was therefore error, this court will not now pass on the reasons given by the presiding judge for such grant, or discuss the question whether, if the court had had jurisdiction, the judge could have granted an injunction in such a case.

Error from Superior Court, Chatham County; Geo. L. Cann, Judge.

Suit by the Palmer Hardware Company against the Railroad Commission of Georgia.There was a decree for plaintiff, and defendant brings error.Reversed.

Jno.C. Hart, Atty. Gen., and Ellis, Wimbish & Ellis, for plaintiff in error.

Cann & Barrow, Lawton & Cuningham, J. Randolph Anderson, Osborne & Lawrence, W. L. Clay, and Wm. Garrard, for defendant in error.

LUMPKIN J.

1, 2.The injunction was granted on August 16, 1905.The bill of exceptions was certified on October 7th, the presiding judge adding to his certificate the following statement: "I further certify that I left the state of Georgia, on the afternoon of August 16, 1905, and did not return until September 29, 1905; that, owing to necessary corrections and the public business, this is the earliest date upon which the bill of exceptions could be signed by me within the state of Georgia.This October 7, 1905.The bill of exceptions was handed the sheriff of Chatham county for me on September 1, 1905."If the decision in Jackson v. State,93 Ga. 216, 18 S.E. 558, and that in Gibson v. Thornton,99 Ga. 647, 26 S.E. 78, should be followed, the certificate must be held to have been signed too late, and the writ of error must be dismissed.In the first mentioned case it was held that the practice in reference to bills of exceptions in cases of injunction had been made applicable to criminal cases by the act of September 7, 1891; that the certificate must be signed within 20 days from the date of the judgment complained of; and that, although the absence of the judge from the state caused the delay and it was so certified, the writ of error must be dismissed.A similar ruling was made in the case of Gibson v. Thornton, supra.Leave was asked to review these decisions, and also that in Markham v. Huff,72 Ga. 106, so far as necessary.The leave was granted.

Prior to the act of September 12, 1881(Acts 1880-81, p. 114), the Code contained the following section in regard to verifying or certifying bills of exceptions after the time regularly prescribed therefor: "If the judge trying the cause resigns, or otherwise ceases to hold his office as judge, when the bill of exceptions is tendered, he may nevertheless sign and certify; and if he should die before certifying the same, or otherwise become incapable of acting, then the party may verify his bill of exceptions by his own oath, or that of his attorney, together with the oath of at least one disinterested member of the bar who was present at the trial; and such verifications shall operate in the same manner as the certificate of the judge.If the judge is absent from home, or by other casualty fails to certify the bill of exceptions within the time specified (and without fault of the party tendering), he may still sign and certify as soon as possible, which shall be held and deemed valid."Civ. Code 1895, § 5542.This section provides for several contingencies: (1) If the judge trying the cause resigns, or otherwise ceases to hold office; (2) if he should die before certifying, or otherwise becomes incapable of acting; (3) if the judge is absent from home, or by other casualty fails to certify the bill of exceptions within the time prescribed, without fault of the party tendering it.It was held several times that these provisions applied only to ordinary bills of exceptions, and not to what are called "fast"bills of exceptions, such as those excepting to the grant or refusal of interlocutory injunctions and the like.Gray v. Field,60 Ga. 315;Roberts v. Leonard,62 Ga. 209;Moring v. Ross,63 Ga. 308;Hardin v. Swann,66 Ga. 244;Sewell v. Edmonston, Id. 353.Thereupon, and no doubt on account of those decisions, the act of September 12, 1881, was passed.Its caption was: "An act to provide for the signing and certifying of bills of exceptions now required by law to be signed in twenty days, after said twenty days, in certain cases."It declared that "all the laws of this state now in force, having reference to the signing and certifying of bills of exceptions after the expiration of thirty days from the adjournment of the court and the rendition of the decision, and in case of the death of the judge, shall apply, so far as the same will conform, to all bills of exceptions which are now required by law to be signed and certified in twenty days after the rendition of the decision."This has been codified, and appears in Code 1895, § 5543.

In the case of Markham v. Huff,72 Ga. 106, no point was made as to the time when the judge certified the bill of exceptions, but as to the time when the clerk transmitted the bill of exceptions and record to this court.In the opinion Chief Justice Jackson made use of the following language "It is true, that in 1880 an act was passed to remedy this hardship in case of the death of the judge; but in other misadventures, it would seem that this act made no alteration in the law, as ruled by this court, in reference to the judge's certificate."But it is evidence that this was an obiter dictum, and we think an erroneous one.The caption of the act of 1881 provides for the "signing and certifying of bills of exceptions," etc.Certainly the Legislature did not contemplate that a judge could sign and certify a "fast"bill of exceptions after his death.In the event of death, verification was to be made as provided in cases of ordinary bills of exceptions."All the laws," not some of them as to signing and certifying bills of exceptions after the lapse of 30 days from the decision or the adjournment of court, were made to apply to "fast"bills of exceptions after the lapse of 20 days from the decision complained of; and also the provision for verification in case of the death of a judge was declared applicable.The expression "and in case of the death of the judge" did not limit or qualify all of the preceding portion of the act, but referred to a distinct contingency.This is a remedial act, and should be construed liberally to carry into effect the purpose of the Legislature; and in doing so we should not lose sight of the trend of legislation to prevent the dismissal of bills of exceptions on account of the absence of the judge from home, or other casualties affecting him, without fault of the excepting party.At the same session of the Legislature another act was passed tending to diminish dismissals (Acts 1880-81, p. 123), now embodied in Civ. Code, § § 5556, 5557.The case of Jackson v. State,93 Ga. 216, 18 S.E. 558, cited only decisions rendered prior to the act of 1881, except Markham v. Huff,72 Ga. 874, and made no reference at all to that act.The decision in Gibson v. Thornton,99 Ga. 647, 26 S.E. 78, apparently followed that just referred to.In both of them only headnotes were written.We think it is plain that a misconception of the meaning of the act of 1881 has grown out of the obiter dictum in Markham v. Huff, and it should be...