Southern Ry. Co v. Works

• Decision Date: 14 May 1907
• Citation: 128 Ga. 207,57 S.E. 429
• Parties: SOUTHERN RY. CO. v. ATLANTA STOVE WORKS.
• Court: Georgia Supreme Court

57 S.E. 429

128 Ga. 207

SOUTHERN RY. CO.

v.ATLANTA STOVE WORKS.

Supreme Court of Georgia.

May 14, 1907.

1. Mandamus — Nature and Grounds — Existence of Other Remedy.

Under the Civil Code 1895, § 4869, which provides that "a private person may by mandamus enforce the performance by a corporation of a public duty as to matters in which he has a special interest, " it is not necessary, before the remedy there given would be available, that such private person should have no adequate remedy by action for damages.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 33, Mandamus, §§ 8, 34.]

2. Same—Persons Entitled to Relief—Interest in Subject-Matter.

A railroad company owes to the public a duty to obey the reasonable tariff rates fixed by the State Railroad Commission, and a shipper, whose shipment has been rejected on the ground that one of the rates of the Commission's schedule is, in the opinion of the carrier, too low, has such special interest in the observance by the railroad company of its duty to the public in this regard as that he may compel its performance by mandamus.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 33, Mandamus, §§ 265-269.]

3. Carriers—Regulation—Charges.

The railroad commission, in fixing its schedule of rates, may consider any economic or industrial factor which may potentially influence freight transportation. It may also consider the natural advantages of localities. These natural and traffic conditions may enter into rate adjustment, and may, in a proper case, justify a classification of commodity rates between localities, whereby the rates between designated points may be excepted from the general classification.

Where the commission, after fixing a reasonable schedule of rates for all commodities, makes an exception, by amendment to the general schedule, of one of the commodities provided for in the general schedule, by fixing a lesser rate therefor between designated points, such exception cannot be said as a matter of law to be discriminatory. On the contrary, the presumption is in favor of the reasonableness of the commission's classification, and the burden is on the railroad company to allege and prove that the classification is illegal.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 9. Carriers, §§ 11, 19.]

4. Writ of Error—Review—Scope and Extent—Nature of Decision.

The grant of a mandamus absolute necessarily adjudicates that the matters averred in the plea are no defense to the issuance of the writ. An assignment of error upon the judg ment making the rule for mandamus absolute brings under review the sufficiency of the answer as a defense to the proceeding. The cases of Hollis v. Nelms, 115 Ga. 5, 41 S. E. 263, Stromberg-Carlson Co. v. Bisbee, 115 Ga. 346, 41 S. E. 573, and Ray v. Anderson, 117 Ga. 136, 43 S. E. 408, decided by five justices, wherein the contrary principle is enunciated, are disapproved, and will not be followed.

5. Mandamus — Proceedings — Answer — Sufficiency.

The petition for mandamus alleged that a shipper tendered to the railroad company, at the proper place, certain goods for transportation over its line to a particular station in this state, and tendered the freight tariff prescribed by the Railroad Commission, and that the railroad company refused to accept the shipment, because the amount of money tendered was deemed by it insufficient, though in accord with the Commission's rate, and the prayer was for the writ of mandamus compelling the defendant to transport the articles alleged to have been tendered, and to otherwise observe and obey the order of the Commission, promulgating a particular commodity rate. The answer denied an actual tender of the goods, but admitted that the shipper stated to its agent that he desired to make a tender of the goods for transportation over its line to the designated point at the commission rate on the particular commodity. The tender of the money alleged in the petition was not denied, and the answer admitted that the railroad company "declined to put into effect on its line said circular 309, " which circular prescribed the particular rate. The tenor of the answer was that the particular rate was unreasonable and discriminatory, and that the defendant would not obey the Commission's order establishing the particular rate. Held that, inasmuch as the defendant avers that it declined to put into effect the Commission's order, actual tender of the articles is not required, and a denial of the actual tender of the articles is insufficient to raise a defensive issue of fact.

6. Same.

Circular 309 of the Railroad Commission, prescribing a certain rate on stoves, etc., between specified points, is amendatory of the general schedule or body of rates promulgated by the Commission. The reasonableness or unreasonableness of a single commodity rate cannot be determined from a consideration of the reasonableness of the single rate, apart from the general schedule of rates. Courts have no power to fix rates, but may restrain the Commission from putting into effect and enforcing an unreasonable body of rates. An averment which attacks the unreasonableness of an individual rate, without reference to its relation to the whole body of rates, raises no defensive issue of fact.

7. Pleading—Answer—Denial of Conclusion.

A denial in the answer of a conclusion drawn from certain allegations of fact does not make an issue of fact.

8. Mandamus—Defenses—Railroad Commission — Rates — Establishment — Injunction by Third Party.

The existence of a temporary injunction granted in a suit by a third person against the Railroad Commission and the respondent, in a different forum, temporarily restraining the Commission from putting into effect similar rates prescribed in other circulars, is no bar to the petitioner in this case from prosecuting his remedy for mandamus.

9. Courts — Conflicting Jurisdiction — State and Federal Courts — Comity — Stay of Proceedings.

An ad interim injunction, granted by a judge of the United States court, on a bill filed subsequently to the petition for mandamus by the respondent in the mandamus proceeding against the Railroad Commission, to enjoin thespecific rate which petitioner is seeking by mandamus to compel respondent to observe, to which litigation in the United States court the petitioner is not a party, affords no sufficient reason for staying the mandamus proceeding, or denying the issuance of a mandamus absolute.

(Syllabus by the Court.)

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

Petition by the Atlanta Stove Works against the Southern Railway Company for mandamus. From a judgment in favor of plaintiff, defendant brings error. Affirmed.

The Atlanta Stove Works applied to the superior court of Fulton county for the writ of mandamus against the Southern Railway Company. The petition alleges that the petitioner is a corporation, duly organized under the laws of the state of Georgia, and engaged in the business of manufacturing and selling stoves, ranges, hollow ware, and other similar products. The Southern Railway Company, which is named as defendant, is a corporation of the state of Virginia, and is a common carrier, operating lines of railroad within the state of Georgia, and in the county of Fulton, and having an office and agent and conducting business in that county. Petitioner on August 29, 1905, delivered at the freight depot of the defendant in the city of Atlanta, Fulton county, Ga., for transportation over its road to Columbus, Ga., a shipment consisting of three heating stoves, consigned to King Hardware Company, at Columbus, Ga., and tendered to the agent the sum of 90 cents in payment of freight charges on the shipment from Atlanta to Columbus, in conformity with the rate established by the Railroad Commission of Georgia on July 19, 1905, effective August 19, 1905, as promulgated in circular No. 309 of the Commission. The articles offered were received by the defendant, but the tender of 90 cents in prepayment of the freight charges thereon was refused, and petitioner was informed by the agent of the defendant that it would, and did, refuse to transport the articles at and for the rates prescribed in circular 309. To the petition is attached a memorandum bill of lading of the articles offered to be shipped, and also a copy of circular 309, which is as follows: "Railroad Commission of Georgia, J. P. Brown, Chairman, H. Warner Hill, Jos. M. Brown, Commissioners. Geo. F. Montgomery, Secretary, Atlanta, Ga. July 19, 1905. Circular 309. Rates on stoves, stove plates, stove furniture and hollow ware, including the necessary pipe. Effective with the circular rates on stoves, stove plates, stove furniture, and hollow ware, including the necessary pipe between the points named below, shall be made upon the following basis. On less than carload shipments for distances less than 100 miles, use 6th class, plus one cent; for distances in excess of 100 miles, use 6th class, less one cent. On carload shipments for distances less than 100 miles use seventy-five per cent of 6th class plus one cent; for distances In excess of 100 miles use seventy-five per cent of 6th class, less one cent. Between Atlanta, Athens, Augusta, Brunswick, Columbus, Dalton, Macon, Rockmart, Rome, Savannah, and Adel, Adrian, Albany, Americus, Arlington, Athens, Atlanta, Augusta, Bainbridge, Bremen, Brunswick, Cartersville, Cedartown, Collins, Columbus, Cordele, Covington, Cullodon, Cuyler, Dalton, Dawson, Dublin, Elberton, Empire, Everett, Fitzgerald, Fort Gaines, Fort Valley, Griffin, Harris, Hawkinsville, Hay-low, Helena, Jesup, La Grange, Macon, Madison, Marietta, Meldrim, Milledgeville, Milieu, Montezuma, Moultrie, Newnan, Offerman, Pidcock, Pitts, Quitman, Rockmart, Rome, Sandersville, Savannah, Sparks, Statesboro, Stillmore, Swainsboro, Tennille, Thomaston, Thomasville, Tifton, Valdosta, Vidalia, Vienna, Washington, Waycross, Woodbury, Worth. To and from all local stations not named above the...