Macon & Birmingham Railroad v. Gibson , 85 Ga. 1 ( 1890 )

Bleckley, Chief Justice.

The Macon and Birmingham Railroad Company was incorporated by an act of the General Assembly passed in December, 1888. Acts of 1888, p. 164. The act provided, amongst other things, “ that said company shall have power and authority to survey, lay out and construct, maintain and equip a railroad from the city of Macon, in the county of Bibb, or from some point on the present line of the Georgia, Southern and Florida railroad, through the county of Bibb and through the following counties or such of them as said railroad company may deem fit, to wit, Houston, Crawford, Monroe, Upson, Pike, Meriwether, Troup and Heard, to some point on the State line of Alabama, by the most direct and practicable route, to be judged of by them, aud in the direction of the city of Birmingham, Alabama.” Part of the statute law of this State in force when this act of incorporation was passed were two sections (1651,1682) of the code, as follows : “Persons are either natural .or artificial. The latter are the creatures of the law, and except so far as the'law forbids it, subject to be changed, modified or destroyed, at the will of their creator ; they are called corporations:” “In all cases of private charters hereafter granted, the State reserves the right to withdraw the franchise, unless such right is expressly negatived in the charter.” There is no such negative in the charter of this company. These provisions of the code have been construed by the Supreme Court of the United States in Railroad Company v. Georgia, 98 U. S. 359. That court, adjudicating upon a charter granted in 1863, said: “These provisions of the code became, in substance, a part of the charter. Railroad Company v. Maine, 96 U. S. 499. It is quite too narrow a definition of the word ‘franchise/ used in this statute, to hold it as meaning only the right to be a corporation. The word is generic, covering all the rights granted by the legislature. As the greater power includes every less power which is a part of it, the right to withdraw a franchise must authorize a withdrawal of every or any right or privilege which is a part of the franchise. So it was held in The Central Railroad & Banking Co. v. Georgia, 54 Ga. 401, and so it must be held now, especially in view of the statutory provision of the code, that private corporations are subject to be changed, modified or destroyed at the will of their creator.” The constitution of 1877 declares that no law making irrevocable grants of special privileges or immunities shall be passed; and that no grant of special privileges or immunities shall be revoked except in such manner as to work no injustice to the corporators or creditors of the corporation. Code, §§5025, 5026. The company proceeded under its charter to locate its line of railroad through Upson county, but before it constructed any part of the same in that county, the General Assembly amended the charter by an act approved November 7th, 1889. Acts of 1889, p. 386. This amendment provided that, if the railroad runs through Upson county, and within five miles of the town of Thomaston, it shall run into and through the corporate limits of that town, or within one mile of the court-house, provided it shall not eost the company any more from where the road -crosses the five mile limit on the east of the town to the “Rogers property” than any other route within that limit; the cost is to be determined by two competent disinterested civil engineers, one to be selected by the company, and the other by the mayor of Thomaston, to locate the route proposed by the company within the five mile limit, and the route within the town or within one mile of the court-house, on a way which is equitable and just both to the company and the town ; these engineers are to estimate the cost of building such line, and if they fail to agree, they are to appoint a third disinterested competent civil engineer who shall decide and determine the matter; in estimating the cost of the respective routes, the safety and permanency of the road-beds, and keeping up the same, -are to be considered; whatever amount the estimate shows it will cost more to go through the corporate limits, or within one mile of the court-house, than the route proposed by the company within the five mile limit, shall be paid by the town of Thomaston, or the citizens thereof; upon refusal to pay the same, the company is released from building the road through the corporate limits, or within one mile of the court-house; a sum equal to such extra eost, if any, is to be paid into some solvent national bank of this State when the road is built from the city of Macou to the five mile limit, subject to be checked out by the company when the road is built through the five mile limit. The* company refuses to accept this amendment or to comply with its terms. The citizens of Thomaston, or some of them, offer to comply on. their part, and insist upon compliance by the company. This difference gives rise to the present controversy.

1. The first question is, whether the State, through the legislature, could engraft this amendment upon the charter without the consent of the company, inasmuch as the original charter granted power and authority to construct and maintain a railroad through the county of Upson by the most direct and practical route, to be judged of by the company, with no condition whatever. The amendment certainly withdraws a portion of this broad franchise on certain conditions. As modified by the amendment, the charter still allows the company to select its own route at will through the county, if in so doing it should not bring the road within five miles of Thomaston. By bearing away from that town so as not to approach within the five mile limit, the company can render this amendment wholly inapplicable to its operations. This being done, the charter will be the same-with the amendment as without it. Only by approaching as near to Thomas-ton as five miles in locating and constructing its line, will any affirmative duty whatever devolve upon the company by virtue of the amendment. If such an alteration as this in the charter of a corporation cannot be made, it is difficult to imagine any material alteration that could be made; and of course, if the reserved power of changing, modifying and destroying will not embrace material alterations, the reservation is useless and worthless. No part of the company’s line in Upson county being yet constructed, none of the company’s property is taken or destroyed by the amendment. A portion of the franchise to locate the line at will is withdrawn, and the amendment takes away nothing else; it simply resumes what the State could have withheld in granting the charter if the legislature had been so disposed. For this reason, if not for others, such cases as Detroit v. Detroit Company, 43 Mich. 140, are without application to the question before us. The authorities more directly in point are such as Tomlinson v. Jessup, 15 Wall. 454; Miller v. State, Id. 478; and Railroad v. Georgia, supra. Where an attempt is made to deprive a corporation of its property by amending its charter, doubtless the observations of Cooley, J., in Detroit v. Detroit Company, 43 Mich. supra, ought to be recognized as sound. He says: “But for the provision in the constitution of the United States which forbids impairing the obligation of contracts, the power to amend and repeal corporate charters would be ample without being expressly reserved. The reservation of the right leaves the State where any sovereignty would be if unrestained by express constitutional limitations, and with the powers which it would then possess. It might therefore do what it would be admissible for any constitutional government to do when not thus restrained, but it could not do what would be inconsistent with constitutional principles. And it cannot be necessary at this day to enter upon a discussion in denial of the right of the government to take from either individuals or corporations any property which they may have rightfully acquired. In the most arbitrary times such an act was recognized as pure tyranny, and it has been foi’bidden in England ever since Magna Charta, and in this country always. It is immaterial in what way the property was lawfully acquired; whether by labor in the ordinary avocations of life, by gift or descent; or by making profitable use of a franchise granted by the State; it is enough that it has become private property, and is then protected by the ‘law oí the land.’ ” No constitutional principles are infringed by exercising a reserved power to revoke special privileges or immunities, unless the provision of our own constitution is violated which forbids doing it in such manner as to work injustice to the corporators or creditors of the corporation. Whether the mode adopted by the legislature in a given instance is just in this respect or not, whilst primarily a legislative question, may, if palpably decided wrong, become a judicial question. But there is not the slightest' indication of injustice in the amendment which we are considering. We see not why the legislature, had it thought proper, could not have passed such an amendment, and made it a part of the charter, by simply enacting that if the company brought its road within five miles of Thomas-ton, it should locate and construct its line through the town, wholly irrespective of the comparative cost of two or more routes. To require this to be done on the further condition that any increased cost should be provided for and paid by others, was giving the company a gratuitous, rather than a necessary, measure of justice. But for the voluntary grant from the legislature, the company would have no right to construct and use over the lands of the citizens of Upson any railroad whatever; and permission to do so, attended with an express reservation of a right to revoke or modify the permission, was no pledge to the company that it might build its road where it pleased, notwithstanding the legislature might please to order otherwise. The charter was as much qualified by the terms of the code above quoted as if these sections of the code had been incorporated in the charter itself. For the corporation to complain-that the legislature did what it reserved the right to do, and did it before any portion of the line had been constructed in Upson county, seems to us wholly without reason. The company should have been prepared at the beginning, and kept itself prepared, for such a mild and moderate exercise, of the State’s reserved power.

2. Nor is the right of the State so to amend or modify the charter abridged or in any manner affected by ex-ecutory contracts entered into by the company with third persons before the amending act was passed. The Macon Construction Company, in dealing with the railroad company, was bound to take notice of the general law of the State, under which the right and power were reserved which have been exercised. A tenant at will cannot make contracts with reference to the; estate which will limit the power of the landlord to» terminate the estate by means compatible with its legal! nature. So a corporation in the possession of franchises held at the will of the State cannot hinder the-resumption or modification of those franchises by entering into executory contracts with third persons. Nor can that effect be wrought by like contracts between the parties immediately contracting with the corporation and subcontractors under them. On no contract whatsoever does the amendment now in question have any direct- effect. Its only effect upon contracts is incidental, and if they cannot be performed consistently with the alteration in the charter made by the amending statute, their performance, in so far as thus hindered or obstructed, will be excused, the rule of law being that performance of contracts when rendered impossible by act of law stands excused. Bishop on Contracts, 594, Jones v. Judd, 4 Comst. 411; Heine v. Meyer, 61 N. Y. 171; Cordes v. Miller, 39 Mich. 581 ; Knoxville v. Bird, 12 Lea, 121; R. R. Co. v. Green, 9 Heisk. 588; Odlin v. Ins. Co., 2 Wash. C. C. 312; Gray v. Sims, 3 lb. 276; Presbyterian Church v. New York, 5 Cow. 538; Baylies v. Fettyplace, 7 Mass. 325; Melville v. DeWolf, 4 E. & B. 844; Reid v. Hoskins, Ib. 979; Touteng v. Hubbard, 8 B. & P. 291; Baily v. DeCrespigny, L. R. 4 Q. B. 180 ; Newby v. Sharpe, L. R. 8 Chan. Div. 39 ; Coke Lit. 206a; Com. Dig. Condition, D(1), D(7), L(13); Abbot on Shipping, 596. Under these authorities, if the Macon Construction Company, or a subcontractor under it, was under a stipulation to complete the railway by a given time, and if time was of the essence of the contract, a valid excuse for failing so to do would be furnished by this subsequent legislation, if that legislation has rendered or should render it impossible to complete the work by the stipulated time. In so far as this or any other ex-ecutory contract has been rendered less valuable or profitable to the parties concerned by the legislation in question, that is a consequence which should have been foreseen as possible and which must be accepted by the parties as an incident of the exercise by the legislature of Its rightful legislative power. Surely it cannot rationally be contended that because the alteration of charters with respect to the latitude of the franchises granted may or does operate unfavorably upon executory contracts made by or under the corporations, the charters must remain unaltered in this respect and the reserved power in the legislature be reduced to a power in name only.

3. All the provisions introduced by the amending act into the original charter are added to the first section of the charter in the form of a proviso to the same, the initial words of the new.matter being, “ Provided,farther.” It’is contended that because the original charter grants to the corporation the right to locate and construct the road where the company pleases, and this amendment by way of proviso limits or qualifies that right as to a portion of the line, the proviso is repugnant to the purview of the charter and is therefore void. Also, that as the whole amendment comes in under the form of a proviso, the whole amendment is void. It is clear, however, that there is no such repugnance in the proviso to the main purpose of the charter as that the two cannot stand together. The amendment operates by way of limitation or restriction upon some of the general terms of the charter, and that such is a proper function of a proviso is laid down by the authorities. Minis v. U. S , 15 Pet. 423; Potter’s Dwarris on Statutes, 118; Sedgwick’s Stat. and Con. Law, 49; Endlich on Statutes, §§184, 185; Savings Institution v. Makin, 23 Me. 360. Eor extreme cases in which provisos have been upheld in the charters of corporations, see Dugan v. Bridge Co., 27 Pa. St. 303; Mason v. Boon Co., 3 Wal. Jr. 252. But here the charter is not rendered inconsistent and destructive of itself by the introduction of this amendment. The matter of the amendment consists of a saving or exception which might have been introduced originally into the charter in the form of a proviso or any other form, and we see no reason why an amending act passed by a subsequent legislature, or at a subsequent session of the same legislature, could not modify or repeal anything whatsoever in the act amended, and in any form the legislature might choose to adopt. All repealing acts, for instance, might take the form of provisos. Why not ? The most that could be said of such repealing acts would be that they were an abuse of the pure and proper proviso, abuses of which are common occurrences in legislation. See CoodeonLcg-’ islative Expressions 50; Georgia Railroad v. Smith, 128 U. S 174. In so far as an act passed by a subsequent legislature, or at a subsequent session of the same legislature, is inconsistent with a prior act on the same subject, a repeal of the prior act is effected; and it seems to us to make no difference that the later act may in whole or in part consist of a proviso. The rule, so far as we know, is universal that where there is an irreconcilable conflict between two statutes, the later of the two must prevail and the former give way.

4. Another charge urged against the amending act is that it is unconstitutional, for the reason that it contains matter different from what is expressed in the title. The title is in these words: “An act to amend an act entitled an act to incorporate the Macon and Birmingham Railroad Company, approved December 26, 1888, so as to require said railroad to run into and through the town of Thomaston, in the county of Upson, aud for other purposes.” The body of the act requires that, on the conditions mentioned, the railroad shall run into and through the corporate limits of Thomaston, “or within one mile of the court-house.” The objection urged is that this alternative requirement is not expressed or indicated in the title. Doubtless the legislature thought that to locate a railroad within a mile of the court-house was, for all substantial purposes, the same as bringing it into and through the town. The corporate limits and the actual limits of the town may not be coextensive, and whether they are or not, the reasonable purpose and object of the act, as indicated in the title, might be accomplished without keeping the body of the act exactly within the letter of its title. The meaning of the constitutional requirement is that the title and the act must correspond, not literally, but substantially; and this correspondence is to be determined in view of the subject-matter to which the legislation relates. We are satisfied that the title of this amending act is reasonably sufficient to cover all the contents of the amendment. The body of the act requires that the railroad shall run into and through the corporate limits of the town, unless, on certain conditions, it shall be located within one mile of the courtliouse, and outside of the corporate limits. The civil engineers therein provided for must locate it within those limits, or so near thereto as to be within one mile of the court-house. When the title of an act indicates that a thing is to be or may be done, it is no variance from it for the body of the act to provide that the thing shall be done, or not done, on some condition. Here, one of the conditions on which the road is to run into and through the corporate limits of Thomaston is that the engineers, in the exercise of the discretion with which they are entrusted, shall not locate it elsewhere within a mile of the court-house. For the purposes of the act, the town may be considered as extending a mile from the court-house, whether the corporate limits have that extent or not.

5. Another objection urged to the amendment is that it seeks to enable the town of Thomaston, in its corporate capacity, to apply corporate money or revenue to the construction of a railroad. We think it has no such purpose, but that where the act says that the increased cost “shall be paid by said town of Thomaston, or the citizens thereof,” it means that the town is to act as’ a community, not as a corporation, and that “town” and “citizens” both mean the people of the town. The payment is to be voluntary, not compulsory. The corporation is not to raise the funds as public revenue, but the people are to contribute the same freely and voluntarily. If they fail to do this, the amendment is to be without any ultimate ’effect on the location of the road. No tax or tribute whatever is laid, or to be laid by virtue of this act, upon property or persons within the town Neither the raising nor the expenditure of public money is contemplated. Piivate means alone are to be used, and if from that source the requisite fund is not raised in due time, the railroad company will be at liberty to proceed as though the amending act had not been passed.

6. We come now to the question whether the citizens of Thomaston .can, by petition in the nature of a bill in equity, invoke judicial aid for the purpose of restraining the company from violating this amendment to its charter, and compelling it to co-operate with them in administering the provisions of the amendment. No doubt the general rule is that the State alone will be heard to complain of a corporation for not conforming to the terms of its charter in matters affecting the public interest; or at all events, that the attorney-general must be a party to the suit, either as plaintiff or defendant. Green’s Brice’s Ultra Vires, 595, 602. But here the immediate interest involved,- and sought to be protected, is not that of the general public, but the special and peculiar interest of the town of Thomaston. The object of the legislature in preventing the construction of this railroad within five miles of the town, unless it should pass within one mile of the court-house, was to preserve that town from decline and decay in consequence of having a railroad in the vicinity, but not near enough to hinder some rival or competing town from springing up. The general public might or might not have an interest in the measure, but it is certain that the citizens of Thomaston have a vital and peculiar interest therein. The amending act contemplates that that interest shall be respected, and provides means for its protection upon the assumption that the company will conform to. the terms of the act. These terms create a legal obligation on the part of the company, and it seems to us that a corresponding right in the citizens as a community to have that obligation enforced, is created by the act. The refusal of the company to perform its . legal duties to the citizens of Thomaston is a wrong to . them, and the wrong is of such a nature as to admit of no adequate and appropriate remedy save a proceeding to compel a specific performance by the company of the requirements of tbe act. As we have already said, the company can relieve itself and remain free from any duty to the citizens of Thomaston by not constructing its road within five miles of that town, but it cannot come within five miles with its work arid not comply with the act. To do so would be a violation of its charter and a special and particular injury to the citizens of the town, who are no less entitled to the provisions of the amended charter made for their special benefit, than the company is to the provisions of the original charter unrepealed, which were máde for its benefit. The citizens have as much right to complain of the company for denying them their dues under the charter as the company has, or would have, to complain of any citizen for denying it the enjoyment of any of its chartered rights. It is a mistake to suppose that corporations are created alone for their own benefit, or that their privileges are more sacred than their duties. We see not why a local and special duty may-not be enforced at the instance and by the suit of the local and special body of citizens recogqized in the charter as immediately interested in some of its provisions.

7. A further question is whether some of the citizens of Thomaston, suing in behalf of themselves and all their fellow-citizens of the town, will be sufficient as parties plaintiff in this proceeding, or whether all the citizens must join as such plaintiffs. The interest being common to all as a community, and the citizens being numerous (of which fact we can take judicial notice from public statistics), .we think the case is provided for by a well-recognized rule which has long prevailed in equity, and that some, as representatives of the class, may sue for all. Story’s Eq.,Pl. §94 et seq.; Mitf. Eq. Pl. marg. p. 167 et seq.; Spence Eq. Jur. 656; 1 Daniell Ch. Pr. 2-34, 237; Pomeroy Rem. & Rem. Rights, §388 et seq.; Hawes on Parties, §92; 1 Pomeroy Eq. Jurisprudence, §§251, 255, 269, 274; Phillips v. Hudson, L. R. 2 Ch. 243; Comrs., etc. v. Glasse, L. R. 7 Ch. 456; Smith v. Swormspedt, 16 How. 302. It is true that as only two of the citizens have become parties, it is rather a small representation of the whole community ; but considering the publicity of the case and of the interest involved in it, and the fact that the suit is located in Hpson county and will be tried (if tried at all) at the county town, which is the town whose citizens are interested, there can be no cause to apprehend that the two plaintiffs on the face of the petition will be disposed, -or if so disposed, allowed to misrepresent the community in whose behalf they have brought this suit. No doubt it is somewhat discretionary with a court of equity as to how many representatives of a class will, or ought to be, regarded as a fair representation of the whole class in the'given instance. We simply rule that this is a proper case for some of the citizens to represent all, and that the number of representatives, though the smallest that could be recognized, is not, as matter of absolute law, insufficient.

8. One of the errors assigned is that the judge erred in holding that the superior court of Hpson county has jurisdiction of the case; but it nowhere affirmatively appears, in the bill of exceptions or the transcript of the record, that any question was raised as to the jurisdiction. From the assignment of error it might be implied that some such question arose and was decided; but we have no information, or intimation, as to the ground or grounds suggested- and insisted upon as objections to the jurisdiction. In the argument here, non-residence in the county of Hpson of the two corporation defendants (that is, the railroad company and the construction company) was, we believe, the ground mentioned; but this is a ground which can be waived, and which was waived, inasmuch as these companies appeared and answered without at the same time filing or presenting this objection to the jurisdiction. It is needless to add more on this topic.

9. With respect to the character and scope of the in- ' junction granted, we see nothing to disapprove except that we think any interference with the mandamus proceeding was needless, and under the circumstances, improper. For the protection of the citizens of Thomas-ton it is quite sufficient that the railroad company be restrained from constructing its proposed line anywhere within five miles of the town without conforming to the amended charter. No amount of preparation by securing the right of way or otherwise, will violate the charter or harm the town; and inasmuch as the company must wait for future developments to ascertain that it cannot lawfully construct its line on the location which it has chosen, there is good reason for not interfering with its preparation to use that route if, by reason of failure on the part of the citizens of Thomaston to perform some of the conditions devolving upon them, the route already chosen should be the one ultimately adopted. It should he borne in mind that any action whatever by the citizens is optional and voluntary. The amended charter seeks to apply compulsion to the company, but none whatever to the citizens. We think the company should be left free to secure the right of way, if it should think proper to do so, along the line of its choice, irrespective of what the citizens may or may not hereafter do. The company may not choose to avail itself of this privilege whilst the genei’al controversy remains in an unsettled state ; bnt whether exercised or not, the privilege should be accorded, as no violation of the charter is, or will he, involved in it. The duty of the company to yield up the line of its choice and adopt another is wholly conditional upon the will and conduct of the people of Thomaston. At least, this will be so provided the cost of the line by or through the town exceeds the cost of that around the town. It is not always that people continue in a will" ing mind to raise money and deposit it in bank, or, with, ever so good a will, that they can command the means if the amout to be forthcoming should be very considerable. We think the injunction should be modified so as not to extend to the mandamus proceedings, and we direct accordingly.

10. A court of equity, or a court of law in the exer cise of equitable functions, may, and should, always impose just terms as a condition to its interference by interlocutory injunction in behalf of suitors. The granting and continuing of an injunction is not matter of strict right in the parties, but .of sound discretion in the judge of the court. In the exercise of such discretion, it seems highly inexpedient to hold one of the parties to the litigation absolutely bound, whilst the other party remains perfectly free. This would have the appearance of subjecting the former to the will, or even the caprice of the latter. In view of tne fact that the citizens of Thomaston may, after the cost of the two routes is'estimated in the manner pointed out by the amended charter, elect ultimately not to advance and deposit the money requisite to defray the excess of cost of the town line over that of the country line, it seems to us reasonable that upon this excess (if any) being ascertained, the plaintifis in this petition should be required, as a condition of the continuance of the injunction after that time, to give bond and security to insure a deposit of the money, according to the amended charter, as soon as the railroad shall be built to the five mile limit. This bond should be in double the amount of the excess of cost ascertained by the estimate of the engineers, and should be payable to the railroad company with a condition to deposit in bank, conformably to tlie amended charter, a sum equivalent to such excess ; or, on failure so to do, to answer to the company for all damages which it may sustain by reason of this injunction having been granted and continued in force. We direct that the judge of the Flint ckcuit, or some other judge should he be disqualified, pass an order requiring such bond and security to be given ; and that upon failure to comply with its terms, the injunction be dissolved. Judgment affirmed, with direction.