Georgia Railway & Power Co. v. City of Atlanta , 153 Ga. 335 ( 1922 )

Beck, P. J.

(After stating the foregoing facts.)

1. Relative to the duty and obligation of the Georgia Railway and Power Company and its lessor to pave, repair, and maintain the portion of the street between-its tracks and a certain distance on each side of its tracks, and the right of the City of Atlanta to enforce such obligation, are to be found certain statutes passed by -the General Assembly, from which we take the following pertinent extracts: In an act amending the charter of the City of Atlanta, approved September 3, 1881 (Georgia Laws 1880-1, p. 358 et seq.), are to be found the following provisions: “ Section 1. That the Mayor and General Council of the City of Atlanta shall have full power and authority, in their discretion, to grade, pave, macadamize, and otherwise improve, for travel and drainage, the streets and public lanes and alleys of said- city, and to construct sidewalks and pave the same, to put down curbing, cross-drains, crossings, and otherwise improve the same. . . Section 3. . . “that any street-railroad company having tracks running through the streets of said city shall be required to macadamize, or otherwise pave, as the commissioners of streets and sewers may direct, the width of its track, and for three feet on each side of every line of track now in use, or that may hereafter be constructed by such company; provided, that the law authorizing the assessment on the abutting-property owners of the whole cost of paving sidewalks (including cost of curbing) is in no way affected thereby.” . The power thus conferred upon the City of Atlanta to require street railways to pave a part of the streets was enlarged by the act of October 10, 1891, entitled an act to amend the charter of the City of Atlanta, etc. (Georgia Laws, 1890-1, vol. 2, p. 457), in the following particulars: Section 1. “ That the charter of the City of Atlanta and acts amendatory thereof be hereby amended so as to provide that from and after the passage of this act, whenever any street-railroad company lays a double track or line on any street in said city, and such street shall at the same time or thereafter be macadamized or otherwise paved, such street-railroad company shall only be required to macadamize or otherwise pave between the rails of each line of track and for four inches outside thereof, this being equivalent to paving, as now and hereafter required by law and charter of said city.” Sec. 2. “ That when the consent of said city is given to the laying of. street-railroad tracks in or on a street which, is unpaved and without pavement improvement, said city may prescribe and require that the tracks shall be so laid and such paving done between the tracks and for such space on each side thereof as will preserve the use, comfort, and safety of such street for the public.” Certain other statutes relating to the subject under consideration will also be quoted as we proceed with • this opinion.

So far as the statutory enactments deal with the question of the duty of the railway company to maintain the portion of the street between its tracks in a safe and proper condition, we must look to the provisions of such statutes and make application of them in view of all the facts in the case, including the contracts affecting the rights and duties of the railway company. But in ascertaining the full extent of the liability of the railway company in regard to the matters here involved, where the statutes and the contracts do not cover all phases of the question, we can take into consideration the inherent and implied duties of the railway company which oecupies with its tracks a portion of the streets of the city. In his work on Municipal Corporations Mr. Dillon says: “ When a railroad company has the power, by general grant of authority, to construct its tracks across or along a street, it is under the implied obligation to restore the street or highway, as nearly as possible, to its former condition, and so to construct and maintain its tracks that by reasonable care and diligence no danger will be occasioned to the public in the use of the street or highway, due regard being had to the necessity, and the right under the legislative authority, of the rails being there.” 3 Dill. Mun. Cor. § 1276. See, in this connection, also Maltby v. Chicago &c. Ry. Co., 52 Mich. 108 (17 N W. 717); Railway Co. v. State, 87 Tenn. 746 (11 S. W. 946). In the case of Reading v. Traction Company, 215 Pa. 250 (64 Atl. 446, 7 Ann. Cas. 380), the Supreme Court of Pennsylvania held: “A street-railway company is bound to keep in repair those portions of streets occupied by its right of way, even in the absence of any express contract or statutory direction to that effect.” And again, in the opinion, it is said:. “ Before the adoption of our present constitution street-railway companies were authorized to occupy streets without municipal consent; now they can be authorized to do so only with such consent; but, no matter how authorized, the authority under which streets are occupied, unless expressly relieving such companies from the duty of keeping in repair those portions of the streets occupied by their tracks, carries with it a liability on their part to do so. When street-railway companies occupy portions of streets, such portions are no longer in the free, unencumbered, and exclusive use of the public, but to the companies is given not only a concurrent but a superior right to use them, and with this right goes a corresponding responsibility. As between a street-railway company and a municipality whose streets are occupied by such a company, the duty no longer rests upon the municipality of keeping in repair those portions of the streets used by the company, but devolves upon the company acquiring the right to use them for its corporate purposes.” And in the notes to this decision it is said: “A municipal corporation may, by virtue of its general powers and its control over the streets, require a street-railway company to keep in repair the portion of the street embraced in its right of way, even in the absence of contractual stipulation, or statutory or charter provision to that effect. North Hudson County R. Co. v. Hoboken, 41 N. J. L. 71; Harrisburg v. Harrisburg Pass. R. Co., 1 Pearson (Pa.), 298; Memphis etc. R. Co. v. State, 87 Tenn. 746, 11 S. W. Rep. 946. See also Reading v. United Traction Co., 202 Pa. St. 571, 52 Atl. Rep. 106. It is the duty of the railway company, by reason of its occupancy of the street, to keep in repair the portion thereof occupied by its tracks, and the company is liable in damages for injuries caused by the nonrepair of that portion of the highway. Montgomery St. R. Co. v. Smith (Ala. 1905), 39 So. Rep. 757; Citizens St. R. Co. v. Marvil, 161 Ind. 506, 67 N. E. 921; McLaughlin v. Philadelphia Traction Co., 175 Pa. St. 565, 34 Atl. 863; Houston City St. Ry. Co. v. Medlenka, 17 Tex. Civ. App. 621, 43 S. W. 1028; Laredo Elec. etc. Co. v. Hamilton, 23 Tex. Civ. App. 480, 56 S. W. 998. In Laredo Elec. etc. Co. v. Hamilton, supra, the court approved the following proposition: c The duty of a street-railway company to repair the streets which it occupies, or, more definitely, that portion of the streets upon which its tracks are laid, is a general one, requiring no legislative act or direct agreement to support it, and such a company is bound to use reasonable care and diligence to keep the space which it actually occupies in a safe condition for ordinary travel, failing in which it must answer for the consequences.’ The space which it is the general duty of the railway company to keep in repair is that space between the tracks and outside the tracks as far as the ends of the cross-ties on which the tracks rest. Harrisburg v. Harrisburg Pass. R. Co., 1 Pearson (Pa.), 298; Laredo Elec. Co. v. Hamilton, 23 Tex. Civ. App. 480, 56 S. W. 998; Memphis etc. R. Co. v. State, 87 Tenn. 746, 11 S. W. 946.”

What is here ruled as to the implied obligation of the street-railway company to maintain and keep in repair the portion of.the street between its tracks finds support in other adjudicated eases and other text-books. See especially Elliott on Eoads and Streets (3d ed.), §§ 985 et seq., and the authorities there cited. In the case of State ex rel. Jacksonville v. St. Ry. Co., 29 Fla. 590 (10 So. 590), the Supreme Court of Florida said: “The authority of a general nature to regulate and control the streets, usually granted to municipal bodies, is generally deemed sufficient to clothe the municipal body with the right to grant or refuse, or otherwise to regulate, the use of the streets for street railways operated by horsepower. The general powers conferred upon municipal bodies by the act of the legislature, chapter 1688, Laws of Florida, as amended by the act of 1887, c. 3024, to regulate and control the construction, grading, and repairs of streets, pavements, and sidewalks, invested such bodies with authority to impose by ordinance upon street railways operated by horses, thereafter to be constructed, the duty to keep the portions of the streets between the tracks of said railways and two feet on each side in as good repair and condition as the city keeps the balance of the street, and of even grade with the street.” And we are of the opinion, after considering all of the authorities upon the subject and looking to the duties placed upon street-railway companies in regard to repaving the streets and keeping them in repair in the City of Atlanta, by legislative enactments conferring charter powers upon that municipalitjq that the municipality has the authority to compel the street railway to repair the portion of the street occupied by its tracks, when that part of the street becomes such as to render it unsafe for use by the public, where repairing it' will restore the street to a proper condition.

In the act of 1881 set forth above it is provided that any street-railway company having tracks running through the streets of the city shall be required to macadamize, or otherwise pave, as the commissioners etc. may direct, the width of its track and for three feet on each side of every line now in use or which may hereafter be constructed by such company. This gives the city the authority to require the street-railway company to pave that portion of the street. And when we consider the inherent and implied obligations and duties of the railway company, discussed and defined in the authorities which we have quoted above, and the duty of the city to keep its streets in a reasonably safe condition, the authority given in the statute to compel the company to pave the street includes, when considered in connection with the implied duties of the railway company, the authority to compel the railway company to repave or to repair the portion of the street between its tracks when that becomes unsafe. Burckhardt v. Atlanta, 103 Ga. 302 (30 S. E. 32).

And now we must consider whether or not that power and authority arising from the legislative enactments and the essential and implied duties of the railway company have been modified -by subsequent statutes or by contract. The rights of the city and the duties of the railway company relatively to the requirement of the ordinance in question in this case, requiring the railway company to repair, are not changed or. modified, so as to impair the authority of the city, by that part of the act of October 10, 1891, set forth above. Section 1 of that act prescribes the extent of the pavement which the street-railway company may be required to .make when such company lays a double track or line on any street in the city, in case such street is then or thereafter macadamized or otherwise paved. Section 2 provides for the case of laying railway tracks on a street which is unpaved and without pavement improvement, and .the power of the city to require the tracks to be laid in a certain manner. Section 3 authorizes the city to require contribution from the railway company in the cases there . stated. But in none of the sections is the power of the city to compel repairs in any way diminished.

Section 1 of the act of 1892 (Georgia Laws 1892, p. 135) reads as follows: Section 1. “ That the Mayor and General Council of the City of Atlanta are hereby authorized, upon the presentation of sufficient petition for the paving of any street or portion of street, to authorize its paving under the existing law, to pave or contract directly for the paving of the whole surface of the street or portion of the street indicated by such petition, and to require any street-railroad company having' or using tracks in such street or portion of street to pay for the paving of the space therein which such company or companies may be required to pave under the existing law, the object of this amendment being to allow the city to pave or contract for the paving of the whole surface of the street, without giving the street-railroad company the option of having the space to be paved'by it paved by itself or by a contractor at its instance; provided, that this section shall not apply to street-railroad companies where the paving required of such companies has been satisfactorily done in advance of the letting of the contracts for paving the whole surface of such streets.” And counsel for plaintiff in error in their brief contend that this act last referred to changed the previous laws with reference to street paving, and provided that thereafter “ all paving was to be constructed by the city, without giving the street-railway company the option of putting down the pavement itself, and that thereafter a portion of the cost of the pavement should be taxed against the street-railway companies.” We agree with this contention only to the extent that it provides that where the pavement was to be made in the manner and under the method there contemplated, the authority was given the city" to pave or contract for the paving of the whole surface of the street “without giving the street-railroad company the option of paving or having the space to be paved by it paved by itself or by a contractor at its instance.” It in nowise limited, modified, or diminished the right of the city to require pavement, as it then existed, but gave it additional authority in the case defined; and, moreover, it distinctly recognized that there is a certain space which the railway company could be required to pave “under the existing law.” Again, in an act approved December 10, 1897, entitled an act to amend the charter of the City of Atlanta (Georgia Laws 1897, p. 145), it is provided in section 3 thereof that “Any street-railroad company or street-railway company having tracks running through any street or portion of street which is to be paved or repaved by said city under the assessment plan, provided for by this charter or the general law of the State, shall be required to pay the whole cost of paving, repairing, or otherwise improving eleven feet in width of said street or portion of street, whether such company has one or more lines of track therein; and in case any street-railway or street-railroad company shall construct one or more lines of track in any street or portion of street already paved, it 'shall likewise pay for the paving of eleven feet in width of the street or portion of the street occupied by its tracks, according to the then value of such pavement, to be judged of by the Mayor and General Council. The material to be used in paving or otherwise improving streets shall be such as the Mayor and General Council shall select in each case.” This provision in the law amending the charter of Atlanta does not change or modify the general authority requiring the railway company to repave or repair, except in the case where the assessment plan is adopted; but it does not mean that the city may not require the railway company to repave or repair where no assessment plan was adopted. The adoption of the assessment plan is dependent upon the presentation of a petition. Suppose that the pavement of a portion of a street was completely out of repair, unfit for use, in such condition as to render it dangerous to those traveling over it in vehicles or on foot; would be municipality, which is liable for injuries incurred in consequence of the unsafe condition of the street, be required to wait until such petition was made? There can be only one answer to this question. Nor do we mean to intimate that counsel for the plaintiff in error are making a contention contrary to this; but they do make- the contention that this last act of 1891 provides when and prescribes the mode by which any charge for repairing a street pavement can be made or assessed against the street-railway company, that by such provisions and such charter powers the city can only charge the railway company for a part of the cost of repairing the street when the cost of paving, repaving, or otherwise improving the street is to be collected by the assessment plan, and that the city has no authority to proceed against the street-railway company in any other manner than that prescribed by the statute. To this contention we do not agree, as we have pointed out above. The last act cited prescribes how the street-railway company may be assessed and required to pay its part of the cost of the pavement under the assessment plan, but does not exempt it from the obligation to repair or repave when the pavement is not made under the assessment plan.

We will now pass to the consideration of the question as to whether the street-railway company is relieved of the duties and obligations imposed upon it by law in regard to repaving and repairing the portion of the street between its tracks, by contracts entered into between the city and the plaintiff in error or its lessors. The contracts relied upon by the plaintiff in error in defense of its resistance to the ordinance in question are set forth in the statement of facts. It appears that in the year 1902 the City of Atlanta and the Georgia Kailway and Electric Company entered into a contract, by virtue of which the railway company bound itself to pay into the city treasury within thirty days from the date of the contract the- sum of $50,000, which amount was paid according to the terms of the contract, and also to pay into the city treasury a certain percentage of its gross receipts; and in consideration of said payments and other matters set out and referred to in the contract the city, among other things, agreed that the payment of the percentage of gross receipts provided for should be in lieu of certain taxes, demands, and charges enumerated in a clause of the contract specifically enumerating the exemptions; to which the city agreed. Conceding that the provisions of this contract are made applicable to the Georgia Eailway and Power Company, the plaintiff in error, by virtue of a contract entered into between that company and the company contracting with the city, we must consider whether it has the effect of relieving the plaintiff in error of the duty to repair, as required by the ordinance in question in this case, under the laws existing at the time of the passage of the ordinance. That part of the contract now immediately under consideration reads as follows: “ The payment of percentage of gross receipts above provided for shall be in lieu of specific, occupation, license, excise, special franchise taxes not included in ad valorem taxes or charges by the City of Atlanta, and in full of all. money demands or charges whatever, except ad valorem taxes, paving charges as now provided by law, and bridge rentals; and whatever shall be at any time required, exacted or enacted on any of said accounts, or any account other than ad valorem taxes, paving charges, and bridge rentals, shall operate to reduce to that extent the amounts due from the percentage above provided for.” After a careful consideration of this clause of the contract we are of the opinion that it does not exempt the railway company from its obligation and duty to repair or repave and keep in proper condition the portion of the street between its tracks, as existed prior to the signing of the contract. The payment of the percentage of the gross receipts provided for in this contract was to be in lieu of “ specific, occupation, license, excise, special franchise taxes not included in ad valorem taxes or charges by the City of Atlanta, and in full of all money demands or charges whatever, except ad valorem taxes, paving-charges as now provided by law, and bridge rentals.” It will be seen by the language of this part of the clause under consideration that “ paving charges as now provided by law ” are excepted from the exemptions contracted for. Conceding that the word “ paving ” does not include “ repaving,” when used in the connection where the expression here occurs, we do not think that the expression, “ in full of all money demands or charges whatever ” (omitting the exception), abridges or affects the right of the city to enforce the performance by the railway company of its inherent or implied obligation to repair the portion of the street upon which its tracks are laid. The enforcement of this obligation is not a money demand or' charge. The fact that the city might’ in certain cases make these repairs or improvements and make charges against the railway company for them, and thereby bring its demand within this excepting clause, does not have the effect of divesting the city of its authority to compel the repaving or repairing under existing laws. And if this is a correct construction of this clause of the contract, then the remaining portion of the dause just quoted did not divest the'eity of its authority to compel the repairing of that portion of the street referred to in the ordinance.

On March 18, 1912, the City of Atlanta passed an ordinance, which was agreed to by the Georgia Railway and Power Company and the Georgia Railway and Electric Company on April 20, 1912. Treating this ordinance and any agreement thereto as a contract between the parties, we will consider whether it affected the obligations of the last-mentioned company to comply with the requirements of the ordinance in question and which is sought to be enforced by the mandamus proceedings. By section 1 (a) the contracting parties stipulated that the percentage payments of the gross receipts, as provided in the contract of 1902, were to continue, with the added stipulation that the Georgia Railway and Power Company should pay the percentage of gross receipts on all business done by it within the radius of seven miles from the center of the City of Atlanta, and that a like percentage of gross receipts should be maintained and preserved on all extensions on all lines made by the railway company within such radius. By section 1 (e) it was provided that the electric company and the power company, whenever paving was to be done by the city on any street upon which there were double tracks, should pay for 16 feet of such paving or repaving, and for 11 feet where there were single tracks. And this section, 1 (e), further provided that “with reference to repairs, the present law shall be continued, and the provisions of this section shall be enforceable only with reference to pavements upon streets where there is an assessment therefor.” The assessments to bear a specified proportion to the entire cost of the paving. If we have construed the contract of 1902 correctly, then this contract or ordinance did not affect or impair the right of the city to compel the street-railway company to repair the portion of the street upon which its tracks are laid. With reference to repairs, that contract provides expressly that the present laws shall continue, and makes the provisions of the section last referred to applicable upon streets where pavements are made on the assessment plan. But it is pointed out above that the assessment plan is not the only method by which paving or repaving can be done. -

Under the uncontroverted facts in the case, the repairing or repaving of the portion of the street in question was necessary to render it safe and practicable for use by the public. And that being true, under the law as we have construed it in the light of the statutes quoted or cited, and the law imposing certain implied duties and obligations upon the railway company, and under the contracts between the street-railway company and the municipality, the duty and obligation rested on the street-railway company to repair or repave the portion of the street in question. And further, where that duty or obligation is established, the city may by mandamus compel its performance. This doctrine has been stated by text-writers and ruled in courts of various jurisdictions. Elliott on Roads and Streets (3d ed.), § 986, and cases there cited. It follows from what we have said that the court did not err, under the uncontroverted evidence in the case, in directing the verdict excepted to and making the mandamus absolute.

Judgment affirmed.

All the Justices concur, except Atkinson and Hill, JJ., disqualified.