Thompson v. Georgia Power Co.

Decision Date01 March 1946
Docket Number31143.
Citation37 S.E.2d 622,73 Ga.App. 587
PartiesTHOMPSON, Commissioner of Revenue, v. GEORGIA POWER CO.
CourtGeorgia Court of Appeals

Rehearing Denied March 26, 1946.

SYLLABUS BY THE COURT.

1. Where it clearly appears to have been the intention of the legislature to cover the entire subject of registration and licensing of motor vehicles, in so far as the same provided for the levying of annual license fees, by a subsequent amendatory act, which amendatory act purported to contain all the laws relative to levying said fees and fixing the amount to be paid on each motor vehicle, definitions contained in the former act, but not carried forward into the latter act, are not mandatory and controlling in construing the provisions of the latter act to determine whether or not a certain type of vehicle comes within the registration and licensing provisions of the latter act.

(a) In construing the act approved December 24, 1937, to determine whether or not a trackless trolley comes within the registration and licensing provisions of that act, the definitions of 'vehicle' and 'motor vehicle' contained in the act approved August 23, 1927, are not mandatory and controlling, where these terms are not defined in the latter act, but in construing the latter act, these terms will be given their ordinary signification.

(b) A trackless trolley is not a motor bus, within the ordinary signification of that term as used in the act of December 24 1937.

2. If a statute levying taxes is not clear and positive in its terms or if it is open to different interpretations through indefiniteness of its provisions, it is to be construed most strongly against the State and in favor of the citizen or subject, and its provisions are not to be extended, by implication, beyond the clear import of the language used.

3. A trackless trolley, when operated over fixed and definite routes as a part of an electric street railroad system operated under a franchise granted by the State, is not a motor bus within the provisions of the act approved December 24, 1937, requiring the registration and licensing of motor busses used as common carriers of passengers for hire.

4. The error, if any, in allowing the amendment to the affidavit of illegality, was harmless, since it appeared that the judgment would have been the same whether the amendment had been allowed or not, and the allowance of the amendment had no substantial bearing on the case.

5. The findings of fact by the trial judge, who tried the case without the intervention of a jury by agreement of the parties, is supported by evidence, no error of law appears, and the court did not err in overruling the motion for a new trial.

Statement of facts by SUTTON, Presiding Judge:

J. Eugene Cook, as Commissioner of Revenue of the State of Georgia, issued an execution against the Georgia Power Company for vehicle license fees, interest, and penalty allegedly due the State of Georgia on certain trackless trolleys, which were described in an exhibit attached to the execution and made a part thereof, for the years 1938 through 1944. This execution was duly levied on certain trackless trolleys of the defendant in fi. fa. which filed an affidavit of illegality to the execution and levy, alleging that the execution issued and was proceeding illegally and that the trackless trolleys were not subject to said tax, because (1) they were not 'motor busses' nor were they, during the time for which the annual fees were demanded, operated as motor busses; (2) they were not subject to the tax because they were operated as street cars and, under the provisions of law, were classified as street cars and not as motor busses; (3) because it was not the intent of the legislature to classify trackless trolleys as motor busses or motor vehicles so as to make them subject to said tax; (4) because there was no provision of law for license fees on trackless trolley busses; (5) because the trackless trolleys were operated as a part of the defendant's electric street railroad business; and (6) because the defendant, in operating said trackless trolleys, operates an electric street railroad company.

The plaintiff in fi. fa. traversed the grounds of illegality set up by the defendant and for further answer thereto, set out that the allegations of the affidavit of illegality were untrue.

By stipulation and agreement of the parties, the case was submitted to the judge, without the intervention of a jury, for his decision on all matters of law and of fact, subject to the condition that the judge in his judgment make his findings of fact separately from his conclusions of law.

On the trial before the judge, the defendant in fi. fa. amended its affidavit of illegality by adding two grounds, (1) that the defendant in fi. fa. was not subject to the penalty claimed in the execution for the reason that the law under which the penalty was claimed specifically referred to 'automobiles, trucks and trailers' and that this excluded trackless trolleys, which were classed as street cars; and (2) that under the provisions of the law under which the execution issued, the first effective date for the collection of such license fees was April 1, 1944. The court overruled the objections of the plaintiff in fi. fa., that the amendment set out new grounds of illegality which existed and were known to the defendant in fi. fa. at the time the original affidavit of illegality issued and there was no jurat attached as required by Code, § 39-1005, and allowed the amendment. The plaintiff in fi. fa. excepted pendente lite, and assigned error thereon in the bill of exceptions in this case.

On the trial of the case, it was stipulated and agreed by the parties, in part, as follows: 'The trackless trolleys involved in this case are vehicles each having a passenger-seating capacity of more than eight persons. In each vehicle there is an electric motor or electric motors. Electricity from an outside source is transmitted to said electric motor or motors in said vehicle through two overhead wires, one of which conducts the electricity to the motor or motors and the other acts as a negative return. The electric current collecting equipment on the top side of each trackless trolley consists of (1) trolley poles, (2) trolley shoes, containing renewable carbon inserts, (3) trolley bases. Two trolley poles extend from the top of each trackless trolley to the overhead electric wires and contact is maintained because of springs attached to each trolley pole pressing the same upwards to the overhead wires. * * * The electric motors contained in the trackless trolleys can not propel the vehicle without the benefit of electricity, and there [is] no means of supplying electricity to the electric motors from within the trackless trolleys themselves * * *. The trolley shoes are mounted on a swivel. The trolley poles are also mounted on swivel bases. The trolley poles on the top of said trackless trolleys are 18 feet in length and the swivel shoes and the swivel bases at the ends of the trolley poles permit the trackless trolley to maneuver to either side of the overhead electric wires. The maneuverability is approximately 12 feet to each side of the wires or a total maneuverable distance of 24 feet. * * * Each vehicle is mounted on pneumatic rubber tired wheels. Said trackless trolleys do not operate upon rails but their routes are limited to and co-extensive with overhead electric wires. * * * The overhead electric wires are supported and maintained by poles, supports, guy wires and other superstructures which extend along and over said streets and highways. * * * Trackless trolleys do not contain any engine or motor which uses internal combustible fuel. * * * The trackless trolleys involved in this case are used as common carriers of passengers for hire upon the public streets or public highways in Fulton and DeKalb Counties, Georgia, over routes of 50 miles or less and said trackless trolleys are owned by Georgia Power Company, a street railway company organized under the laws of the State of Georgia, and * * * are operated by the Georgia Power Company under the jurisdiction of the Georgia Public Service Commission. * * *'

There was other evidence as to the construction and operation of the trackless trolleys, their routes of travel, and the manner in which they were or could be operated. The charter of the Georgia Power Company and various amendments thereto, under which it was allowed to do business in this State, were introduced in evidence; the franchise granted by the City of Atlanta, various ordinances of the Mayor and General Council of the City of Atlanta, petitions of the Georgia Power Company to the Commissioners of Roads and Revenues of Fulton and DeKalb Counties, to the Municipality of North Atlanta, and to the Georgia Public Service Commission with respect to the operation by the Georgia Power Company of an electric street railway system and the substitution of trackless trolleys for street cars on certain designated streets and roads, were introduced in evidence.

After the introduction of evidence and argument of counsel thereon the trial judge entered his findings of fact and of law, separately, as required by the stipulation and agreement of counsel submitting the issues to him for determination without the intervention of a jury, finding, in part, as a finding of fact that a trackless trolley was not a motor bus within the meaning of that term as used in the registration and licensing laws of this State, and finding, in part, as a conclusion of law, that the trackless trolleys, as they were operated by the defendant in fi. fa. under the facts disclosed by the record in this case, were not subject to the registration and...

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