Tift v. Atlantic Coast Line R. Co.
| Decision Date | 18 December 1925 |
| Docket Number | 5036,5037. |
| Citation | 131 S.E. 46,161 Ga. 432 |
| Parties | TIFT v. ATLANTIC COAST LINE R. CO. ET AL. ATLANTIC COAST LINE R. CO. ET AL. v. TIFT. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Any railroad company owning or operating a railroad in this state is authorized to build and maintain such additional depots tracks, and terminal facilities as may be necessary for the proper accommodation of its business, and to this end is authorized to acquire by purchase or gift and to hold such real estate as may be necessary for such purposes, and, if the same cannot be acquired by purchase or gift, it is authorized to acquire the same by condemnation; but, before the right of condemnation can be exercised, the Public Service Commission must first approve the taking of the property or right of way designated for the public use or uses desired.
Whether a spur or industrial track is one of "public use" does not depend upon the number of people whom it accommodates, but rests upon the fact that every one who has occasion to use it may of right do so; and, if such track is opened to the public, to be used on equal terms by all who may at any time have occasion to use it, so all persons can demand that they be served without discrimination, and not by permission merely, and if such track is subject to governmental control under general laws, and in the same manner as are the main lines of a railroad, then the use is a public one.
(a) It is not essential, in order to make the use of a spur or industrial track a public one, that its use should be opened to all the public; but a facility or instrumentality of transportation may be limited in its use.
As a general rule, a railroad company must obtain the written consent of the municipal authorities before it can lay a track on a street of any city in this state; but the lack of such permission does not prevent a railroad company from exercising the right of eminent domain to condemn a municipal alley as a right of way for the extension of one of its tracks in such alley for public use. Such consent is not a condition precedent to the preparatory step of condemning a right of way on which to lay such track.
(a) The ordinance of the city of Tifton, granting to the railroad company a right of way for the industrial track for the use of the public upon the alley in that city upon which the company is seeking to lay the same, gives such consent; and the provision in said ordinance that this track shall not be used generally as a dray track does not make such track a private one for private use, but expressly declares that it is one for public use, subject to the above limitation.
The necessity or expediency of taking property for public use is a legislative question upon which the owner is not entitled to a hearing under the due process clause of the Fourteenth Amendment and the same clause of the Constitution of this state.
Under section 402, par. 22, of the Transportation Act of 1920 (U S. Comp. St. Ann. Supp. 1923, § 8563), the provision of paragraph 18 of said section, which requires a carrier by railroad, subject to said act, to procure from the Interstate Commerce Commission a certificate of its present or future public convenience and necessity, before undertaking the extension of its line of railroad or the construction of a new line, does not extend to the construction of spur industrial, team, switching, or side tracks located wholly within this state. The track involved in this litigation is a spur or industrial track.
In rendering a final decree in an equity case, and in dissolving thereby a temporary restraining order, the judge of the superior court is authorized to grant a supersedeas in his sound discretion, and upon such reasonable terms as he may fix.
Error from Superior Court, Fulton County; Geo. L. Bell, Judge.
Petition by T. W. Tift against the Atlantic Coast Line Railroad Company and another. Judgment for defendants, and plaintiff brings error, and defendants assign cross-error. Affirmed on both bills of exceptions.
Granting of supersedeas held discretionary and on reasonable terms fixed by judge.
T. W Tift filed his petition against the Georgia Public Service Commission, hereinafter called the commission, and the Atlantic Coast Line Railroad Company, hereinafter called the railroad company; and made these allegations: The railroad company, desiring to extend one of its tracks along one of the alleys of the city of Tifton, applied to the governing authorities of said city, and succeeded in having passed an ordinance granting to it a permanent easement and right of way on which to construct and operate what was designated in the ordinance as an industrial track upon and through said alley and across certain streets in the city, such extension to extend to and include Central avenue in said city. Said ordinance provided that the track so extended should not be used generally as a dray track, but should be used by the railroad and the public for unloading freight from cars on said tracks direct to the premises of adjoining property owners, and for loading into said cars direct from such premises. Thereafter the railroad company applied to the commission, under the act of August 17, 1914 (Laws 1914, p. 144), for authority to condemn said alley for a right of way. Plaintiff was given notice of said application, and filed his response thereto. He participated in the hearing in opposition to the grant of said authority to the railroad company. The commission granted to the railroad company said authority, holding "that the purpose for which the additional track and terminal facilities is sought is a public one." Plaintiff owns certain described property abutting upon said alley, and as such has an existing title and right in said alley, which cannot be taken from him except by a constitutional hearing. There are buildings on some of said described property, and the reasonable value of his lands and improvements is $84,000. If said alley is taken by the defendant for use as a track, whether public or private, it will damage plaintiff in the sum of $25,000. The hearing before the commission was concluded on the afternoon of June 26, 1925, and announcement was made by the commission that the testimony was closed. After argument had, the commission took the matter under advisement. After the testimony was closed, and without notice to the plaintiff, the commission received from the railroad company, or some one acting in its behalf, a petition signed by some 500 people asking the commission to grant the application of the railroad company. Said petition was considered by some or all of the members of the commission, and in so doing it denied plaintiff due process of law, in consequence of which the order of the commission granting such authority is null and void. The railroad company is threatening to file a proceeding to condemn plaintiff's property, and will do so immediately, unless restrained.
The railroad company, being a foreign corporation, has no right of condemnation under the laws of Georgia, except under the above act of 1914, which only authorizes the commission to approve the taking of property for right of way for public use or uses. The city of Tifton by its ordinance refused to grant permission to the railroad company to lay tracks for public purposes. To permit the railroad company to take plaintiff's property for the purpose sought would be to permit it to take private property for private purposes, denying to plaintiff due process of law and the equal protection of the law, contrary to the Fourteenth Amendment to the Constitution of the United States and the like provision in the Constitution of the state of Georgia (art. 1, § 1, par. 2). The city of Tifton and the commission has no authority to grant any permit to the railroad company to use the alley in front of plaintiff's property and thus damage his property, because the use sought to be made of said property by the railroad company is one of which the Interstate Commerce Commission has sole jurisdiction, and the law of Georgia authorizing the city council and the commission to grant a permit to condemn said property is contrary to the commerce clause of the federal Constitution. For this reason the said order of the commission is null and void. The railroad company cannot make said extension without obtaining from the Interstate Commerce Commission a certificate that the present or future public convenience and necessity require or will require the construction of such extension. The cost of such construction will be in excess of $50,000, and no earnings that could be received therefrom would be sufficient to pay the cost of operation and a fair return on the investment. In the hearing before the commission the evidence disclosed that said track could not reasonably be used to accommodate more than 25 cars annually. For this reason the finding of the commission that it was necessary and convenient to extend said track was without evidence to support it. If the use of said extended track is private, it is contrary to the Constitutions of the state of Georgia and of the United States; and, if a public one, it is contrary to the Transportation Act of 1920 (U. S. Comp. St. Ann. Supp. 1923, § 10071 1/4 et seq). The plaintiff prayed that the order of the commission granting the railroad company authority for said condemnation be held to be null and void; that the commission be enjoined from certifying to the railroad company said order and in aiding the railroad company in any way in the use thereof; that the railroad company be enjoined from condemning said property for said purpose; and that the plaintiff have such other relief as it may be entitled to at law and in equity.
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