Thompson v. Georgia Power Company , 73 Ga. App. 587 ( 1946 )

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.

DECIDED MARCH 1, 1946. REHEARING DENIED MARCH 26, 1946. 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 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 streetcars and, under the provisions of law, were classified as streetcars and not as motor busses; (3) it was not the intent of the legislature true to classify trackless trolleys as motor busses or motor vehicles so as to make them subject to said tax; (4) there was no provision of law for license fees on trackless trolley busses; (5) the trackless trolleys were operated as a part of the defendant's electric street-railroad business; and (6) the defendant, in operating said trackless trolleys, operates an electric street-railroad company.

The plaintiff fi. fa. traversed the grounds of illegality set up by the defendant, and for further answer, 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 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 streetcars; 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 that no jurat was attached as required by the Code, § 39-1005, and allowed the amendment. The plaintiff in fi. fa. excepted pendente lite, and in the bill of exceptions assigned error thereon.

On the trial, 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 rent 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; and also 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 streetcars on certain designated streets and roads.

After the introduction of evidence and argument of counsel, 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 licensing requirements of the act approved December 24, 1937 (Code, §§ 92-2901 et seq.), and that the commissioner of revenue was without lawful authority to issue the execution in this case, and that the execution was proceeding illegally.

The trial judge thereupon entered an order sustaining the affidavit of illegality and ordering the levy dismissed and the execution cancelled, to which order and judgment the plaintiff in execution excepted pendente lite, and in the bill of exceptions, assigned error thereon.

The plaintiff in execution filed a motion for a new trial, which was amended, and the exception here is to the judgment overruling the motion for a new trial as amended.

J. Eugene Cook resigned as commissioner of revenue of the State of Georgia, and was succeeded in office by M. E. Thompson, who was duly substituted as party plaintiff in the execution and in said proceedings. The execution involved in the present case issued under the provisions of the act approved December 24, 1937 (Ga. L. Ex. Sess. 1937-38, pp. 259 et seq.; Code (Ann. Supp.), §§ 92-2901 et seq.), which states in part: "For the purpose of this law, the following definitions shall apply: (A) Motor bus. Any passenger-carrying motor vehicle having a passenger-seating capacity of eight or more persons. . . The annual fees for the licensing of the operation of vehicles shall be as follows for each vehicle registered: . . (9) Motor busses. For each motor bus (used as a common or contract carrier for hire), the following: . ." The fee for each bus is determined by its factory weight.

It will be observed that this act does not define "vehicle" or "motor vehicle," and the plaintiff in fi. fa. earnestly insists that these terms as used in this act should be given the meaning provided in the act of 1927 (Ga. L. 1927, p. 227; Code, § 68-101), which states in part: "For the purpose of this law, the following definitions shall apply: ``Vehicle' — Any contrivance used for transportation of persons or property on public highways. ``Motor vehicle' — Any vehicle, except tractors, propelled by power other than muscular power, not operated exclusively upon tracks." The defendant in fi. fa. contends that, since the terms "vehicle" and "motor vehicle" are not defined in the act approved December 24, 1937, in construing this act, these terms should be given their usual, ordinary, and popular meaning, and that when this is done, the trackless trolleys in question are not within the provisions of that act. In considering this question, we quote from the well-prepared and able opinion filed by Judge Almand, who tried the case in the court below, without the intervention of a jury: "Conscientious and diligent counsel for the State argue with great ability and sincerity that, under the definition of a ``motor bus' in the acts of 1937-38, and of the words ``vehicle' and ``motor vehicle' in the act of 1927 (Code, § 68-101), it makes no difference how the passenger-carrying vehicle of more than eight persons is propelled, whether by its own power or from power received from outside sources, for as long as such vehicle does not run on tracks, it is a ``motor vehicle,' and therefore a ``motor bus.' These definitions, standing alone, do seem to justify the State's position, but when the legislative history and context of the licensing acts in regard to motor vehicles, their regulation as to the use of the public highways, and the statutory methods of taxation are examined, we find these statutes include only those vehicles operated or drawn by its own self-propelled power. We think that a brief review of the legislative history as to the licensing and regulation of automobiles or motor vehicles, as well as a review of the contemporaneous development and use of motor busses and trackless trolleys will demonstrate that the licensing and regulating statutes as are now contained in chapter 68-1 of the Code of 1933 only apply as to those vehicles that are capable of being operated generally over the public highways and roads of this State by reason of their own self-propelled mechanical power, and not to those vehicles whose orbit of operation is limited to the length of a trolley wire constructed and maintained under a franchise.

"The first comprehensive law dealing with the registration of automobiles was enacted in 1910 (Ga. L. 1910, p. 90). The act was entitled ``An act to regulate the running of automobiles, locomotives, and other vehicles and conveyances of like character, propelled by steam, gas, gasoline, electricity, or any power other than muscular power, upon the public and private roads of the State of Georgia.' Every vehicle paid the same registration fee, and there were no distinctions or differences made as to passenger cars, trucks, etc. Apparently at that time there were no such vehicles known as ``trucks, trailers, or busses.' In 1915 (Ga. L. Ex. Sess. 1915, p. 107) a new and comprehensive registration, regulation, and license act was passed, the caption being ``An act providing for the annual registration and identification of motor vehicles and motorcycles.' The term ``motor vehicles' was defined as ``all vehicles propelled by power other than muscular power except road rollers, traction engines, railroad and railway cars, and motor cars running only upon stationary rails or tracks.' There was a schedule of fees which each machine had to pay, which was rated upon the horsepower of the machine. This act also dealt with the regulation as to speed, and use of highways by motor vehicles. It will thus be seen that, whereas the act had formerly dealt with the term ``automobiles,' the growth of the motor car had been such that the word ``automobiles' included other types of machines, and they were all described as ``motor vehicles.' It is also observed that this act, like the act of 1910, dealt with motor vehicles that used the highways and public roads generally.

"In 1927 (Ga. L. 1927, p. 226) there was enacted another comprehensive motor vehicle act, which is now codified in chapter 68-1 of the Code of 1933. The title of this chapter is ``Motor Vehicles.' Part 1 deals with the licensing, registration, and operation of motor vehicles, and part 2 deals with the motor-vehicle transportation under three categories, namely: motor contract carriers, motor common carriers, and motor vehicles for hire, regulated. The caption of the act of 1927 is ``An act to amend an act known as the Georgia Motor Vehicle Law, approved November 30, 1915, and as amended by subsequent acts.' It will be seen from this act that it not only defines a ``vehicle' and ``motor vehicle,' but defines specific classes of motor vehicles which are subject to licensing and registration, namely, motorcycles, tractors, trailers, and trucks. License fees on passenger cars were based upon the weight of the machine. On non-passenger cars, the tax was graduated according to the tonnage capacity of such car. There is no mention in this act of the term ``motor bus.' Apparently, in 1927 the term ``motor bus' had not developed to an extent that it had a separate classification for registration and license purposes from that known as ``passenger-carrying motor vehicles.' This act dealt extensively with regulations of the use of the highways as to speed, rules of the road, etc., and the restrictions as to speed were regulated according to the weight of the vehicle and the character of the tires — whether metallic, solid, or pneumatic.

"At the regular session of the General Assembly in 1937 (Ga. L. 1937, p. 155) an act was passed ``To provide for the levy of a tax to be known as a maintenance tax to be paid by the owners of motor busses, trucks, and/or trailers, operating over the public roads of this State; to repeal chapter 92-29 of the Georgia Code of 1933.' This act defines a motor bus as ``any passenger-carrying motor vehicle, having a passenger-seating capacity of eight or more persons.'. . This act sets up a schedule of taxes on busses, trucks, trailers, . . graduated according to the weight of the vehicle. It provides for the method of registration in obtaining tags, and does not in any manner deal with the use of the highways as to speed, etc.

"At this same session, the legislature passed acts dealing with motor carriers and motor common carriers (pp. 727-30).

"At the 1935 session, the act of 1927 was amended so that all motor vehicles were required to pay a flat tax of $3.

"At the 1937-38 Extra Session (Ga. L. 1937-38 Ex. Sess. p. 259), the legislature passed an act which was entitled ``An act to amend title 68 of the Code of 1933 by striking all of section 68-211 of said title and chapter, which provides a schedule of annual fees for motor vehicles.' In the body of the act, section 1 repeals section 68-211 of the Code, which section provides a schedule of annual fees for vehicles; and section 2 repeals the maintenance tax act of the 1937 regular session. Section 3 is identical with section 2 of the previous 1937 maintenance tax act, in defining motor busses, trucks, and trailers, except for a part of the definition of a trailer that is not carried forward in this act. This act then fixes a licensing and registration schedule for passenger cars, trucks, trailers, etc., graduated according to the weight of the car. The act provides for registration and issuance of licenses, and there is a general repeal clause. There is nothing in this act that deals with the regulation and use of highways and apparently what this act does is to take from section 68-1 [68-2] of the Code all matters dealing with [the schedule of annual fees for the] registration and licensing of motor vehicles, repealing the maintenance act of 1937, and thereby putting into one comprehensive law [the fees to be collected for] the licensing and registration of all motor vehicles used on the public highways. Though the caption of the act says that it is an amendment to section 68-1 [68-2] of the Code, there is nothing in the body of the act which indicates that it was the purpose of the legislature to treat this act in its entirety as an amendment to section 68-1 [68-2] or to become a part of said chapter. It is apparent that there was no effort to carry forward into the act of 1937-38 all the definitions set forth in section 68-101, for the reason that it specifically picks out only three vehicles for classification, to wit:motor-busses, trucks, and trailers, and of these, trucks and trailers are defined in section 68-101. It is thus apparent, by the enactment of a comprehensive law dealing with [annual fees for] registration and licensing of motor vehicles, the legislature impliedly repealed any and all provisions of Chapter 68 that dealt with [annual fees for] registration and licensing of motor vehicles. Compare City of Atlanta v. Goodman,183 Ga. 834 (189 S.E. 829), and Horn v. State, 114 Ga. 509 (40 S.E. 768)."

While the act approved December 24, 1937 (Ga. L. Ex. Sess. 1937-38, p. 259; Code (Ann. Supp.), §§ 92-1901 et seq.), was entitled an amendatory act, it did not purport to be merely cumulative or auxiliary to the former act on the same subject, but it was a comprehensive act covering the entire subject of the levying of annual license fees for the registration and licensing of the operation of motor vehicles, and it was evidently intended by the legislature as a complete revision of and substitute for the former acts in so far as they dealt with fixing the annual license fees for the registration and licensing of the operation of motor vehicles. "It is a familiar and well-settled rule that a subsequent statute, revising the whole subject-matter of a former one, and evidently intended as a substitute for it, although it contains no express words to that effect, must operate to repeal the former one to the extent to which its provisions are revised and supplied. This is true, even though the subsequent statute contains no express words of repeal and is not repugnant to the former statute. The revising statute is in effect a legislative declaration that whatever is embraced in the new statute shall prevail, and whatever is excluded therefrom shall be discarded." 59 C. J. 921. "Thus, where a section which is expressly amendatory of another section of a statute purports to set out in full all it is intended to contain, any matter which was in the original section, but is not in the amendatory section, is repealed by the omission." 50 Am. Jur. 556. Since the act approved December 24, 1937 (Ga. L. Ex. Sess. 1937-38, p. 259), was a complete revision of and substitute for the earlier acts, in so far as they dealt with providing a schedule of fees for the licensing and registration of motor vehicles, it was, in effect, a legislative enactment that so much of the earlier act as was embraced in the new statute should prevail, and so much of the earlier act as was not embraced in it, in so far as it dealt with the collection of an annual fee for the registration and licensing of motor vehicles, should be discarded. "Where some parts of the revised statute are omitted in the new law, they are not, in general, to be regarded as left in operation, if it clearly appears to have been the intention of the legislature to cover the whole subject-matter by the revision." Hardy v.State, 25 Ga. App. 287, 288 (103 S.E. 267). The definitions of "vehicle" and "motor-vehicle," which were contained in the act approved August 23, 1927 (Ga. L. 1927, pp. 226-44; Code, § 68-101), were not included in the definitions set out in the act approved December 24, 1937 (Ga. L. Ex. Sess. 1937-38, p. 259); and for the purpose of construing the provisions of this act, these terms will be given their ordinary signification. Code, § 102-102. If a statute is plain and susceptible of but one construction, the courts have no authority to place a different construction on it, but must apply it according to its terms. State Revenue Commission v.Brandon, 184 Ga. 225 (190 S.E. 660). See also, Barnes v.Carter, 120 Ga. 895, 898 (48 S.E. 387); Fidelity CasualtyCo. v. Whitaker, 172 Ga. 663, 668 (158 S.E. 416);Goldstein v. State Revenue Commission, 50 Ga. App. 317 (3) (178 S.E. 164). However, if a statute levying taxes is not clear and positive as to its terms, or if it is open to various interpretations through indefiniteness of its provisions, it is to be construed most strongly against the government 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. Revenue laws are neither remedial statutes nor laws founded upon any permanent public policy, and are not, therefore, to be liberally construed; and whenever there is a just doubt, that doubt should absolve the taxpayer from his burden. Fulton MetalBed Mfg. Co. v. State Revenue Commission, 52 Ga. App. 159,161 (182 S.E. 803). See also Mayor c. of Savannah v.Hartridge, 8 Ga. 23; Case-Fowler Lumber Co. v. Winslett,168 Ga. 808 (149 S.E. 211); Mystyle Hosiery Shops v.Harrison, 171 Ga. 430 (155 S.E. 765); McIntyre v.Harrison, 172 Ga. 65 (157 S.E. 499); Davison v. F. W.Woolworth Co., 186 Ga. 663 (198 S.E. 738, 118 A.L.R. 1363);Warren v. Suttles, 190 Ga. 311, 314 (9 S.E.2d 172);Forrester v. Continental Gin Co., 67 Ga. App. 119, 127 (19 S.E.2d, 807). The act approved December 24, 1937 (Code, Ann. Supp., §§ 92-2901 et seq.), imposing the registration and licensing fee does not specifically refer to "trackless trolleys," and unless they come within the general definitions of that act and are to be classed as "Motor busses" as that term is defined in the act, they are not included within the provisions of the act. Since the act is one levying a tax, any just doubt as to whether or not the taxpayer is included within the provisions of the act should be resolved in favor of the taxpayer and against the State Revenue Commissioner, under the authorities cited above. A motor bus is defined by the act as "Any passenger-carrying motor-vehicle having a passenger-seating capacity of eight or more persons." Code (Ann. Supp.), § 92-2901, Hence, whether or not a trackless trolley is a motor bus within the meaning of the act, depends on whether it can be said to be a motor vehicle as that term is used in the act.

In 42 C. J. 609, a motor vehicle is defined as "a vehicle operated by power developed within itself and used for the purpose of carrying passengers or materials." Another definition is that a motor vehicle is "a vehicle moved by inanimate power of any description, generated or stored within it, and intended for the transportation of either goods or persons on common highways." American-LaFrance Fire Engine Co. Inc. v. Riordan, 6 Fed. 2d, 964. In the present case, the electricity which causes the movement of the trackless trolleys is neither generated nor stored within the trolleys, but is derived from outside sources by means of contact of the trolley poles with electric wires bringing the electricity from stationary plants which generate it. In the recent case of Georgia Power Co. v. Clark, 69 Ga. App. 273,276 (25 S.E.2d 91), this court said: "The word ``vehicle,' in general, lends itself to a variety of meanings. . . But to ascertain the meaning of the word in a given instance resort must be had to its context. It has been ruled, and we know of no holding to the contrary, that ``A vehicle is any carriage or conveyance used or capable of being used as a means of transportation on land. The word ``vehicle will not ordinarily include locomotives, cars, and streetcars, which run and are operated over and upon a permanent track or fixed way, and it will not be held to include them unless the context of the ordinance or statute clearly indicates an intention to do so.' Conder v. Griffith, 61 Ind. App. 218 (111 N.E. 816), and cit. Here the word ``vehicle' is used in an ordinance manifestly designed to regulate traffic, and to regulate it ``over any street or roadway' (italics ours) of the City of Atlanta. Street-cars are generally operated upon the streets of a city. In a more populous city they may to some extent traverse roadways beyond the city limits; but we think it may safely be said that normally upon roadways it is some vehicle other than a streetcar that is to be found. . . Indeed, we think that this court may take judicial cognizance of the fact that in speaking of a vehicle upon a roadway one does not, in the usual sense, have in mind a street-car, but another means of travel or transportation, such as an automobile, a bus, a truck, or a wagon. Considering the context here, we hold that the word ``vehicle' as used in the ordinance in question, does not include a streetcar."

The manifest purpose of the act of December 24, 1937, was to require each motor vehicle capable of operating generally over the highways and roadways of this State to be registered and a license obtained for its operation. When speaking of a motor vehicle on the highways and roadways of this State, one does not, in the usual sense, have in mind a trackless trolley whose power is derived from outside sources, and whose travel is limited to within a few feet on either side of previously constructed electric wires with which contact must be maintained at all times by such trackless trolley; but one has in mind other means of travel or transportation, such as automobiles, motorcycles, trucks, busses, or other vehicles which are capable of traveling generally over the highways and roadways of this State, and the motive power of which is either stored or generated within them.

The argument of counsel for the plaintiff in fi. fa., that, to hold that trackless trolleys are not within the provisions of the act approved December 24, 1937 as amended (Code, Ann. Supp., §§ 92-2901 et seq.), would render the act unconstitutional because of lack of uniformity upon the same class of subjects, is untenable. While all taxation shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax, this does not mean that the State can not make fair and reasonable classifications of property for taxation. There is a substantial difference between trackless trolleys, which operate on fixed and limited routes, the motive power of which is derived from sources outside the trolleys, and which may be operated only where over-head electric wires have been previously constructed, and motor busses the motive power of which is stored or generated within them, and which may be operated generally over the highways and roadways of this State.

It will be observed from a study of the various acts relative to the licensing and operation of automobiles and motor vehicles in this State, that the terms "motor vehicle" and "automobile," as used in our statute law, are practically synonymous. A passenger car, a truck, a tractor, or a motor bus are each a different kind of automobile and are each included within the general terms "motor vehicle" and "automobile." The word "automobile," which was generally used to designate this type of vehicle, comes from the Greek word "autos" meaning "self" and the Latin word "mobilis" meaning "mobile" or "capable of moving," and hence the word "automobile" literally means "self-moving" or "self-propelled," and a passenger car, a truck, a motor bus, and a tractor are each self-moving or self-propelled vehicles. However, a trackless trolley was not derived from automobile, nor is it a kind of automobile, but it is a distinct and different type of vehicle. The word "trolley" comes from the middle English word "trollen," old French "troller" which meant to roll or to wander about, and, while it had other meanings, came to refer to several types of small vehicles including those used in shops and mines which ran on overhead wires or rails. In this sense, it came to refer to streetcars which ran on rails and which drew their propelling power from overhead electric wires. "Trolleycar" and "streetcar" are thus synonymous terms and mean a vehicle operating on rails which draws its power from stationary plants by means of contact with electric wires constructed over, or sometimes under, the rails on which it operates. From streetcar came the trackless trolley. The power-propelling system is the same for each. A trackless trolley derives its power from stationary plants through contact with overhead electric wires, the main difference between a streetcar and a trackless trolley being that a streetcar operates only on rails, while a trackless trolley operates on pneumatic tires. While an automobile is self-propelled, in that it carries its source of power within itself, a trackless trolley is propelled by the use of power received from outside sources by means of contact with overhead electric wires. Hence, a trackless trolley is not an automobile or a motor vehicle within the generally accepted meaning of those terms.

The error, if any, in allowing the amendment to the affidavit of illegality without the affidavit required by the Code, § 39-1005, was harmless, since it appeared under the evidence that the trackless trolleys were not subject to the license fees for which the execution issued. The judgment in the cause would have been the same whether the amendment had been allowed or not, and, hence, the allowance of the amendment had no substantial bearing on the case. Marsh v. Hix, 110 Ga. 888 (36 S.E. 230). See also Ocmulgee Guano Company v. Price, 18 Ga. App. 206 (3) (89 S.E. 156).

The findings of fact by the trial judge, trying the case without the intervention of a jury, are supported by evidence, no error of law appears, and the judge did not err in overruling the motion for a new trial as amended.

Judgment affirmed. Parker, J., concurs, and Felton, J.,concurs specially.