The Mayor v. The Macon & Western R. R. Co.

• Decision Date: 31 August 1849
• Docket Number: N0. 43.
• Citation: 7 Ga. 221
• Parties: The Mayor and Council of Macon, plaintiffs in error. vs. The Macon & Western R. R. Co. defendant.
• Court: Georgia Supreme Court

7 Ga. 221

The Mayor and Council of Macon, plaintiffs in error. vs. The Macon & Western R. R. Co. defendant.

N0. 43.

Supreme Court of the State of Georgia

AUGUST TERM, 1849.

Motion to dissolve injunction, in Bibb Superior Court. Decided by Judge Floyd, in Chambers, 8th March, 1849.

By the provisions of an Act of the General Assembly, passed 20th December, 1828, a sale was authorized of the bridge across the Ocmulgee River at Macon, the property of the State, to the town of Macon, for the sum of $25,000, payable in instalments. By the 7th section of the Act, it was provided, that after thesale, the corporation "shall not be permitted to collect toll for any wagon or other carriage loaded with cotton or com, under the penalty" of forfeiting to the State for every such offense the sum of $30.

By an Act passed December 27, 1847, authority was granted the Mayor and Council of the city of Macon, "to pass all rules and ordinances necessary for the protection and preservation of the bridge across the Ocmulgee River at Macon, and shall regulate the toll of the same." To this Statute was a clause repealing all Acts inconsistent with its provisions.

On the 20th day of February, 1849, an absolute and unconditional grant issued to the city of Macon to the bridge and its abutments.

On the 12th February, 1849, it was ordained by the City Council of Macon, "that any licensed dray crossing the Macon bridge with a load, or part of a load, from either railroad depot, to deliver to wagons or to a railroad depot, or with cotton or other loading from wagons, to deliver to a railroad depot, should pay a specified toll.

The Macon & Western Railroad Company, an incorporation "for the purpose of constructing and keeping up a railroad communication from the city of Macon, " to the town of Atlanta, filed a bill against the City Council of Macon, alleging that the complainants were engaged in the transportation of cotton and other commodities from Atlanta and other places to Macon, and for the accommodation of their customers desirous of sending corn and cotton forward to the city of Savannah, the complainants caused the same to be carried across the Ocmulgee River on the bridge now owned by the city of Macon. The bill farther alleged, that the ordinance before mentioned was illegal and void, and that under it the defendants were collecting tolls from complainants illegally, amounting to ten dollars per day. The bill prayed an injunction and an account of the amount already collected.

The injunction being granted, the Council, by their answer, denied the right of the Macon & Western Railroad Company to engage in the business of draying, under its charter. The answer denied that the prohibition in the Act of 1828, applied to cotton and corn transported from one portion of the city to the other, but was intended solely for the benefit of planters tradingin the city, If it did apply to such, the answer contended, that the State alone could take steps to recover the forfeiture provided, and the complainants had no right to proceed in this matter. The answer farther contended, that the Act of 1847 repealed, protanto, the Act of 1828.

On the coming in of the answer, the counsel for defendants below moved to dissolve the injunction on several grounds, which may properly be considered under two.

1st. That the Macon & Western Railroad Company have not, under their charter, the privilege of draying through Macon and across the Ocmulgee River.

2d. That the Council of the city of Macon have the right to pass the ordinance complained of, and if they have not, the State alone can institute proceedings to recover the forfeiture provided by the Act of 1828.

The Court refused to dissolve the injunction, and defendants excepted.

J. J. Gresham and A. P. Powers, for plaintiffs in error, relied on the following authorities in support of the several exceptions—

5 Kelly & Cobb, 567. 4 Wheaton, 518. 4 Peters, 152. Angell & Ames, 66. 12 Gill & Johnson, 399. U. S. Supplemental Dig. vol. 2, 19. 5 Pike, 595. 1 Overton, 370. United States Digest, vol. 2, 472. 12 Pickering, 184. K. & M. vol. 2, 400.

W. Poe and Gregory, for defendant, contended—

That the prohibition contained in the 7th section of the Act of 1828, bears no resemblance to a reservation contained in a grant. Shep. Touch. 80. 29 E. C. L. 199.

The 7th section of the Act of 1828, is a prohibitory Statute, and every act done against it is not only illegal but absolutely void.

And if there were no prohibitory words, yet as there is a penalty annexed, it is a well settled rule that a penalty implies a prohibition. 14 Johns. Rep. 289, 290, Hallett vs. Novion.

Now, it cannot be questioned that the ordinance of the city complained of, is in direct violation of the provisions of the said 7th section, and it being so, makes said ordinance absolutelyvoid, and the bill of defendants in error only sought the aid of a Court of Equity to restrain said plaintiffs in error from demanding toll under a void ordinance.

But the plaintiffs in error contend, in the 5th assignment of error, that "the grant having issued under the great seal of the State to the Mayor and City Council, without any reservation or condition, conveys to them an absolute title, in fee, which cannot be infringed until the grant itself is set aside and annulled for cause, &c.

The only answer we have to make to this ground is, the Statute by virtue of which the sale was made and the grant issued, and which is specially referred to in the grant as containing the authority by which the grant was issued.

We reply to the first ground of exception, that the defendant in error is not, nor was engaged in the draying business, but procured the cotton to be conveyed in the drays of others, and no such admission is contained in defendant's bill, nor no such allegation in plaintiffs in error's answer; but contends that she has a right to convey, in her own drays, the cotton brought to market on her road.

By the Court.— Warner, J., delivering the opinion.

The first question made by the record, is as to the right of the Macon & Western Railroad Company, under their charter, to engage in the transportation of corn and cotton through the city of Macon, and across the Ocmulgee River on the bridge, by drays or other conveyance.

A corporation is an artificial being, invisible, intangible and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly or as incidental to its very existence. These are such as are supposed best calculated to effect the object for which it was created. Darmouth College vs. Woodward, (6 Cond. Rep. IT. S. 543.) In Doe ex dem. Carr vs. The Georgia Railroad and Banking Company, (1 Kelly, 533,) this Court held, that in the construction of Statutes, made in favor of corporations or particular persons, and in derogation of common right, care should be taken not to extend them beyond their express words or their clear import. The defendant in erroralleges that the ordinance of the city of Macon of the 12th February, 1849, which imposed toll on any licensed dray crossing the Macon bridge, with a load or part of a load from either railroad depot, to deliver to wagons or to a railroad depot, or with cotton or other loading from wagons to deliver to a railroad depot, is illegal and void, and that the plaintiffs in error were collecting tolls from him illegally under that ordinance. It is said, the complainant below does not allege he is engaged in the business of draying corn and cotton across the bridge, but that he causes the same to be carried across the Ocmulgee River on the bridge, for the accommodation of his customers. The ordinance, it will be perceived, only levies toll on licensed drays crossing the bridge with cotton and other loading, and the question very naturally arises, that if the complainant is not, either by himself or agents, engaged in the business of transporting cotton and other loading across the bridge at Macon, with licensed drays, how his rights are affected by the ordinance of 1849, which expressely imposes the toll on such vehicles and none other?

The complainant alleges, that the defendants are collecting toll from him under the ordinance of 1849, illegally, for the corn and cotton which he causes to be transported across the bridge for the benefit of his customers. Taking into view the ordinance, and that the complaint is that tolls are exacted from the complainant under it, for causing corn and cotton to be transported across the bridge; the conclusion is irresistible to our minds, that the complainant causes the corn and cotton to be carried across the bridge on licensed drays, a business which is not authorized by the charter, either expressly or as necessarily incidental thereto.

The company have, by their charter, the exclusive right of transportation and conveyance of persons, produce, merchandise and all other things over their railroad, from Atlanta to Macon: but the charter is silent as to the right of conveying either persons or produce through the city of Macon, and across the bridge, for the accommodation of their customers or any body else, with licensed drays or any other conveyance.

The ordinance of 12th February,...