Southern Exp. Co. v. R.M. Rose Co.

• Decision Date: 09 January 1906
• Citation: 53 S.E. 185,124 Ga. 581
• Parties: SOUTHERN EXPRESS CO. v. R. M. ROSE CO.
• Court: Georgia Supreme Court

53 S.E. 185

124 Ga. 581

SOUTHERN EXPRESS CO. v. R. M. ROSE CO.

Supreme Court of Georgia

January 9, 1906

Syllabus by the Court.

A corporation engaged in business as a common carrier is bound to receive all goods offered it for transportation, which it is able and accustomed to carry, upon compliance with such reasonable regulations as it may adopt for its own safety and the benefit of the public; and a private party may, by mandamus, enforce the performance of this public duty by such common carrier as to matters in which such party has a special interest.

A merchant, located and carrying on business in the city of Atlanta, and who has been accustomed for many years to sell therein the goods in which he deals to persons residing in Lawrenceville, upon orders received from them by mail, and to ship the goods to such persons by express, has such a special interest in the performance by an express company, operating a line of transportation between such cities, of its public duty relatively to packages containing goods, such as it is able and accustomed to carry, which he has sold to customers residing in Lawrenceville, and which he, under the reasonable regulations of such common carrier, offers to it for shipment and delivery to the owners of such goods, as entitles him to the writ of mandamus to compel such express company to accept, transport, and deliver such goods, when it, without lawful excuse, refuses to do so.

The municipal ordinance of the city of Lawrenceville which declares it to be unlawful for any railroad or express company, or any other person or persons, to deliver or cause to be delivered, in such city, any package containing wine whisky, beer, or any other intoxicating liquors "without first paying into the treasury of said city the sum of $1,000 per annum as a license for carrying on said business in said city," and which prescribes a penalty for its violation, is void, as the mayor and council of the city had no power, under its charter, to enact such ordinance.

A common carrier, able and accustomed to transport such goods from Atlanta to Lawrenceville and to deliver the same to the consignees thereof in the latter city, cannot lawfully refuse to do so merely because of the passage of such invalid municipal ordinance.

Error from Superior Court, Fulton County; J. T. Pendleton, Judge.

Mandamus proceeding by the R. M. Rose Company against the Southern Express Company. The writ was granted, and defendant brings error. Affirmed.

A private party, by mandamus, may enforce the performance of the public duty to receive all goods offered a carrier for transportation as to matters in which he has a special interest.

On the 16th day of March, 1905, the mayor and council of the city of Lawrenceville passed the following ordinance: "Be it ordained by the mayor and council of the city of Lawrenceville, Ga., that it shall be unlawful for any railroad company, any express company, or any other person or persons to deliver or cause to be delivered any package in the city of Lawrenceville, Ga., containing wine, whisky beer, or any other intoxicating liquors or whisky, without first paying into the treasury of said city the sum of $1,000 per annum as a license for carrying on said business in said city. Any person or persons engaged in this business, failing or refusing to pay said license, shall, upon conviction thereof, be punished as prescribed in Ordinance No. 1 of the by-laws of said city. Each day in which said business is carried on, without a license, shall be held to constitute a new offense. This ordinance to take effect on the 25th day of March, 1905. By order of the city council of Lawrenceville Ga., this the 16th day of March, 1905." Ordinance No. 1, herein referred to, defined disorderly conduct within the city and prescribed the punishment for the same. On March 25, 1905, the R. M. Rose Company, a corporation engaged in the wholesale liquor business in the city of Atlanta, received by mail, from J. L. Exum, of Lawrenceville, Ga., an order for one gallon of whisky of a designated brand. Accompanying this order was an express money order in full payment for the whisky. Thereupon the R M. Rose Company put a gallon of whisky in a jug, which was properly sealed and directed to J. L. Exum, at Lawrenceville, Ga., and this jug was taken by its agent to the office of the Southern Express Company in the city of Atlanta, and there tendered to the agent of the express company for shipment and delivery to Exum at Lawrenceville; the agent of R. M. Rose Company at the same time offering to prepay the express charges on the package. The agent of the express company refused to receive the jug of whisky for shipment to Lawrenceville, and stated that he would not receive any other such shipment until the ordinance of the city of Lawrenceville relative to the matter should be repealed. The Atlanta agent of the express company was acting in accordance with the following instructions from the express company: "Southern Express Company. Office of Second Vice President. Chattanooga, Tenn., March 22, 1905. The city of Lawrenceville, Ga., has passed an ordinance imposing a tax of $1,000 on any railroad company, express company, or any one else delivering intoxicating liquors within the corporate limits of that city. All agents in Georgia are hereby instructed not to accept such shipments for Lawrenceville until further notice. Charles L. Loop, Second Vice President."

The R. M. Rose Company then brought, in the superior court of Fulton county, a petition for a mandamus to compel the Southern Express Company to receive, transport, and deliver the jug of whisky to the consignee in Lawrenceville, and to compel it to receive from the petitioner, upon receiving its fair charges therefor, packages containing wine, beer, and other liquors, when properly packed under the rules and regulations of the express company, for transportation to Lawrenceville, and to there deliver the same to the parties to whom such packages should be consigned. Upon this petition, the judge granted a mandamus nisi, requiring the express company to show cause why a mandamus absolute should not be granted as prayed for. The answer of the express company raised certain issues of fact as well as issues of law, and, when the case came on for trial in term, by consent of counsel, both the questions of fact and the questions of law were submitted to the judge for determination; the right of either party to except to the judgment and carry the case to the Supreme Court being reserved. Upon the trial the facts alleged in the petition to have occurred were established, and the express company, in support of the defense set up in its answer, showed the existence of the municipal ordinance above set forth, contended that the ordinance was, in effect, prohibitory, and that so long as the ordinance was in force it had the right to refuse to accept any package of intoxicating liquor for shipment to and delivery in Lawrenceville. It also made certain other legal contentions which are sufficiently indicated in the opinion. The trial resulted in the grant of a mandamus absolute, requiring the express company to receive the jug of whisky in question, upon the payment of the express charges, and to transport the same to the city of Lawrenceville, and there deliver it to the consignee, Exum, and also to receive, at its public offices in the city of Atlanta, from the plaintiff, all other packages of intoxicating liquors, when properly packed and directed, under the reasonable rules and regulations of the express company, and when delivered on straight shipments as opposed to collect on delivery shipments, and transport the same to the city of Lawrenceville and there deliver them to the consignees thereof. The express company excepted to this judgment, and the case is accordingly before us for review.

C. H. Brand and Du Bignon & Alston, for plaintiff in error.

Rosser & Brandon, for defendant in error.

FISH, C.J. (after stating the facts).

(1) One of the contentions of the express company is, that the applicant for the writ of mandamus had an adequate and complete remedy at law by an action for damages, without resorting to the extraordinary writ of mandamus, and therefore the writ should have been denied. In support of this contention, the plaintiff in error cites Hutchinson on Carriers, § 115b, to the effect that: "If the carrier refuses without lawful reason to accept and carry goods, the owner may maintain an action against the carrier for the damages sustained by such wrongful refusal. This remedy by action is usually adequate to secure the plaintiff's rights, and therefore, in accordance with well-settled principles, mandamus will not lie to enforce the performance of the duty." In the same section, however, this author says: "Where the duty was expressly imposed by state statute and by the United States interstate commerce act, and the refusal was continuing and the injury irreparable, a mandatory injunction was granted to secure performance"--citing Chicago Railway Co. v. Burlington Railway Co. (C. C.) 34 F. 481. We are of the opinion that, even under the rule as laid down by this author, the judge below properly held that mandamus would lie in the present case. For, as we shall presently see, the duty of the express company which the petitioner sought to enforce by mandamus is one which, in this state, is expressly imposed by statute, and we think it is obvious, from the evidence, that the damages which would ensue to the petitioner by the continued refusal of the express company to transport intoxicating liquors from Atlanta to Lawrenceville would be incapable of being ascertained.

But it is clear, however, that the general rule laid down by Hutchinson is...