Atlantic & Birmingham Railway Co. v. Mayor of Cordele , 125 Ga. 373 ( 1906 )

Lumpkin, J.'

(After stating the facts.) 1. It is unnecessary to enter into a discussion of the general principles involved in this case, further than to refer to the case of Macon R. Co. v. Macon, 112 Ga. 782. This was not an effort to condemn the tracks of the plaintiff as a nuisance, or to have them removed altogether as such, but to require them to be shifted a few feet from the position in which they had been laid down originally along the street. It was insisted that the City of Cordele was without power to make such a requirement. By its charter, however, it was provided that: “The mayor and city council shall have power and authority to open, lay out, widen, straighten, or otherwise change the streets and alleys of said city, and shall have power to lay off, vacate, close up, open, alter, curb, pave, drain, and repair the roads, streets, bridges, sidewalks, alleys, crosswalks, drains, and gutters for the use of the public or any citizen of the city.” (Acts 1888, p. 215.) It also contained a general welfare clause authorizing the mayor and city council “to pass all such ordinances and regulations for the government of said city, for the suppression of disorderly conduct, the protection of life and property, the maintenance of the public peace and the protection of the public health, which are not repugnant to the constitution and laws of this State or of the United States, as they may see proper to do, and to prescribe and enforce penalties for the violation of the same.” These broad powers are sufficient to come within the ruling in the case of the Macon Street Railroad Company, above cited. It is not essential to decide at present whether or not the city could remove the tracks and charge the expense to the railroad company, or, if so, in what manner they could collect the charge.

The presiding judge had before him issues as to whether the municipal authorities were proceeding to act unreasonably and arbitrarily, or whether the proposed change was really necessary for the convenience and welfare of the public; or was required for the benefit, not of the public, but of the other corporation, the Seaboard Air-Line Railroad Company; also as to the effect which such change' would have upon the plaintiff’s business and property. He stated in his order refusing the injunction, as an integral part thereof, that he granted it after an inspection and observation of the tracks and surroundings. Counsel for plaintiff insisted in their briefs that this was error. What the judge saw we have no means of knowings nor how far this affected him in rendering the judgment. It does not appear that this was done with the consent of the parties or their counsel. The plaintiff introduced more evidence ■ than the defendant, but that introduced by the latter, plus the judge’s personal observation, appears to have had the greater weight. We do not mean to say that the mere fact that the judge may have seen the premises involved before him in litigation, or may have known them, will either disqualify him or be a reason for reversing his judgment. But where a personal inspection is made a part of the trial and expressly enters into the judgment rendered, we think this is error unless authorized by consent of parties. Harrison v. Cotton States Life Insurance Co., 78 Ga. 716; Overstreet v. Sylvania Water Co., 124 Ga. 235. It is true that there is no specific assignment of error based upon this statement in the judgment; but as the judge has expressly stated, in effect, that he was, in part at least, influenced by his own personal observation, it is difficult for this court to determine whether he erred or not, considering what he had before him. This would not, however, necessitate a ruling that an injunction should be granted; but, under the facts stated, the judgment refusing an injunction is reversed and direction given that the case be reheard under the law and upon the evidence which may be produced.

Judgment reversed, with direction.

All the Justices concur.