City of Acworth v. Western & Atlantic Railroad , 159 Ga. 610 ( 1925 )

Hines, J.

(After stating the foregoing facts.)

The general welfare clause of the charter of the City of Acworth is broad and comprehensive. Acts 1903", p. 413, §§ 1, 6, 8/ Under such authority, in the exercise of its police power, the City of Acworth could enact reasonable ordinances regulating the rate of speed at which cars propelled by steam may be run between certain points within its limits, and requiring the" railroad company to keep a watchman at certain street crossings over its line of railway. W. & A. R. v. Meigs, 74 Ga. 857 (2); W. & A. R. Co. v. Young, 81 Ga. 397 (3) (7 S. E. 912, 12 Am. St. R. 320); A. & B. R. Co. v. Montezuma, 122 Ga. 1 (2) (49 S. E. 738); N., C. & St. L. Ry. v. Peavler, 134 Ga. 618 (68 S. E. 432); Hall v. G. S. & F. R. Co., 144 Ga. 145 (3) (86 S. E. 316). While there are respectable authorities which hold that a municipality, under the general welfare clause in its charter, can not pass an ordinance requiring a railroad company to keep watchmen at street crossings over its line of railway within its limits, this court is now fully committed to the contrary doctrine, as is shown by its decisions above cited.

All municipal ordinances based on general powers in a charter must be reasonable. Mayor &c. of Savannah v. Cooper, 131 Ga. 670 (63 S. E. 138); Mayor &c. of Shellman v. Saxon, 134 Ga. 29, 32 (67 S. E. 438, 27 L. R. A., (N. S.) 452). In W. & A. R. Co. v. Young, supra, this court held, in dealing with an ordinance requiring' a watchman at a crossing, that “No unreasonable ordinance can be valid.” “Municipal ordinances must be reasonable. The limitations of the power of a city council in this regard are not to be measured by the more extensive powers of the State legislature.” Atlantic Postal &c. Co. v. Savannah, 133 Ga. 66 (65 S. E. 184). So it is now firmly and well established, that ordinances under general powers in municipal charters must be reasonable.

Generally the reasonableness of a municipal ordinance, based upon general powers in the charter of the municipality, is a question of law for the court to decide, unless its reasonableness depends upon the existence of particular facts which are in dispute. Metropolitan &c. R. Co. v. Johnson, 90 Ga. 500 (7) (16 S. E. 49); N., C. & St. L. Ry. v. Peavler, supra. While the above is the general rule, it sometimes becomes a question of fact whether, under a given situation or circumstances, an ordinance or its' administration is reasonable. The administration of an ordinance which can not, as a matter of law, be declared to be unreasonable, and which on its face is reasonable, may become unreasonable, and its enforcement improper at certain times or places or under certain circumstances. The operation of an ordinance, legally fair and reasonable upon its face, may become unreasonable, just as the operation of a statute, which is constitutional upon-its face, may be unconstitutional. So upon its face the Georgia blow-post law (Civil Code (1910), §§ 2675, 2677) was held by the Supreme Court of the United States not to be a direct burden upon interstate commerce', and to be constitutional in the absence of facts establishing such direct burden. Southern R. Co. v. King, 217 U. S. 524 (30 Sup. Ct. 594, 54 L. ed. 868). Yet, under certain circumstances and under a given state of facts tending to show such direct burden upon, interstate commerce, that court held our blow-post statute to be unconstitutional. S. A. L. Ry. v. Blackwell, 244 U. S. 310 (37 Sup. Ct. 640, 61 L. ed. ,L. R. A. 1917F, 1184). So we have the anomaly of a statute constitutional on its face and unconstitutional in its operation under certain facts. So in Central R. Co. v. B. & W. R. Co., 87 Ga. 386 (4), 391 (13 S. E. 520), this court held, .that the court could submit to the jury the question whether an ordinance, regulating the speed of trains within the whole area of the city, and which was reasonable in itself, was or was not reasonably applicable to a particular locality just inside the city limits. In Jackson v. S. A. L. Ry., 140 Ga. 277 (78 S. E. 1059), this court followed the foregoing ruling, and approved this instruction of the trial judge: “The court decides as a matter of law that such an ordinance would be reasonable, but whether it was reasonable and applicable to the time and place where it is alleged this injury occurred is for you to consider and determine along with the other evidence in the case.” So time, place, and circumstances may render the operation of an ordinance unreasonable, although the ordinance can be held as a matter of law to be in itself reasonable. See Galveston Electric Co. v. Galveston, 258 U. S. 388 (8) (42 Sup. Ct. 351).

Are the ordinances of September 15, 1923, and October 17, 1923, the former requiring the railroad company to maintain a watchman at all street-crossings over its railroad within 300 yards of its depot in the City of Acworth, and the latter making it unlawful for any railroad company or any engineer or other person in charge of any engine or locomotive, with or without cars attached, to run over said crossings unless,, a watchman is kept at each of said crossings, unreasonable? We can not say, as a matter of law, that these ordinances are unreasonable or unconstitutional in and of themselves, so far as the railroad company is concerned, looking at the ordinances alone, and in the absence of extrinsic facts showing their operation to be unreasonable or to have unconstitutional results. Thus pronouncing them valid on their faces, and reasonable in themselves, and as a matter of law, is their operation or administration unreasonable or unconstitutional, in the face of the extrinsic facts in this record ? What are these facts ? The first is the large expenditure of funds to pay the watchman at the crossings. If the public safety .requires the employment of watchmen at these crossings, the fact that the execution of this plan would involve expenditures so heavy as to impair the efficiency of the railroad as an agency of interstate commerce, or even cripple the company financially, would not render these ordinances violative of the commerce and due-process clauses of the Federal constitution. Erie Railroad Co. v. Public Utility Commrs., 254 U. S. 394 (5) (41 Sup. Ct. 169). The financial welfare of the company must yield to the public safety.

But there are facts in the record which authorized the trial judge to find, that the heavy expenditure necessary to employ these watchmen was unnecessary; and that the requirement of these ordinances, that the company should, employ these watchmen and incur this heavy expense, was unnecessary and useless. There was abundant evidence to justify the judge in finding and holding, that the installation and operation of the signaling device known as a wigwag at these crossings dispensed with the necessity of keeping watchmen there. This being so, the enforcement of these ordinances was unreasonable and unconstitutional, as the company could save large expenditures by the erection and operation of this device. If in the progress and improvement of railroad transportation me chanical devices for the safety of persons and property passing over crossings are devised, which are as efficient as human agencies and much more economical, it would be unconstitutionally depriving a railroad company of its property to compel it to employ human agents instead of such mechanical appliances. In such circumstances the company is entitled to supplant men with mechanism. Industrial revolution is forever furnishing 'examples of such changes. The hand-loom yielded to the power-loom, the spinning-wheel to the spinning-jenny, the stage-coach to the railroad, the errand-boy, bearing messages, to the telephone, writing with pen and ink to the typewriter, the message by post to messages by telegram, cablegram, wireless and radio, and the street-railway seems doomed by the jitney.

What we rule is this: that the trial judge was authorized to find, if such conclusion was not demanded by the evidence, that the wigwag signal was as efficient to protect people and property passing over these crossings as watchmen, that it furnished protection and safety at all hours of the day and night, which the employment of watchmen under these ordinances failed to do, and was much less expensive than the maintenance of watchmen at these crossings. This being so, these ordinances, although on their faces reasonable, are in their effect and administration unreasonable and unconstitutional, and the trial judge did not err in enjoining their enforcement.

We have no hesitation in holding, as a matter of law, that the ordinance of October 17, 1923, which prohibits the erection of “wigwag” signals at these crossings, and which declares these signals to be nuisances, is unreasonable and unconstitutional. This ordinance does not provide for any hearing on the question whether this device is a nuisance. It condemns without notice and opportunity to be heard. Eailroading is a lawful business, as strange as this may sound to some people. The installation of devices by railway companies for the safety and protection of persons and property, which pass over their crossings, is legitimate and commendable. The power, given to the city council of Acworth, “to declare what shall be a nuisance”.and to punish “persons who may create or continue nuisances,” does not authorize the council of this city to prohibit a lawful business or some legitimate agency used in the conduct of such business, without notice and an opportunity to be heard on the question whether the agency is in fact a nuisance. Some nuisances can be summarily suppressed. Such are nuisances declared to be such by the common law or by statute, or such as are nuisances per se. W. & A. R. Co. v. Atlanta, 113 Ga. 537 (38 S. E. 996, 54 L. R. A. 294); Rowland v. Morris, 152 Ga. 842 (111 S. E. 389); Griggs v. Macon, 154 Ga. 519 (114 S. E. 899). But when the city council of Acworth undertook to declare by ordinance this signal to be a nuisance, and to prohibit its installation and use, without notice and an opportunity to the railroad company to be heard, such ordinance was a mere brutum fulme?i, and the same was arbitrary, unreasonable, unconstitutional, and void.

So we are of the opinion, that the trial judge did not abuse his discretion in granting an interlocutory injunction in this case.

Judgment affirmed.

All the Justices concur, except