Tift v. Atlantic Coast Line Railroad

Hines, J.

(After stating the foregoing facts.)

Any railroad company owning or operating a railroad in this State, whether chartered under the laws of this State or any other State or States, is authorized and empowered, among other things, “to build and maintain such additional depots, tracks, and terminal facilities as may be necessary for the proper accommodation of the business of the company;” and it is authorized to acquire, by purchase or gift, and to hold such real estate as may be necessary for such purposes; and if the same can not be acquired by purchase or gift, it is authorized to acquire the same by condemnation. This right of condemnation, however, can not be exercised until the railroad commission of this State shall first approve the taking of the property or right of way designated for the public use or uses desired. Georgia Laws 1914, page 144; 2 Park’s Code, § 2599(a) et seq.

This proceeding was brought by Tift, as the owner of abutting, improved real estate, to set aside as null and void an order of the Public Service Commission, approving the condemnation by the railroad company of a portion of a public alley in, the City of Tifton as a right of way for the extension of one of its spur or industrial tracks which was already built and operated upon a portion of said alley. The plaintiff asserts that this order of the commission is null and void, because it approves the condemnation of said alley for a private use and not for a public one. This contention presents the only question in this case of pith and moment. Under the statute above dealt with, the Public Service Commission can only approve the condemnation by a railroad company of land for a public use. The commission is without authority to approve such condemnation for a private use. So the paramount question is whether the commission has approved the condemnation for a private purpose, and whether the railroad company is undertaking to condemn this alley for such purpose. All the authorities concur in holding that the question of public use is ultimately a judicial one. Parham v. Justices, 9 Ga. 341 (4); Loughbridge v. Harris, 42 Ga. 500; 20 C. J. 549, § 38. The courts have never been able to formulate an exact definition of what is a public use. Nolan v. Central Ga. Power Co., 134 Ga. 201, 208 (67 S. E. 656). Often the line of demarkation between a private use and a public use is difficult of location. To fix such boundary often demands the use of the most accurate judicial microscope. A comprehensive definition of a public use, which excludes all irrelevant matter and includes all pertinent elements, is probably impossible. Without attempting such a comprehensive definition, we have to decide when a spur or industrial track is one of public use. The public nature of such a track does not depend upon the number of people that it accommodates, but rests upon "the fact that everybody who has occasion to use it may lawfully and of right do so. The fact that such a track is also designed to serve a private use, while important in determining the character of the use, is not conclusive against its public nature. If the track is opened to the public, to be used on equal terms by all who may at any time have occasion to use it, so that ail persons who have occasion to do so can demand that they be served without discrimination, not merely by permission, and if the track is subject to governmental control under general laws, and in the same manner as are the main lines of a railroad, then the use is a public one. Harrold v. Americus, 142 Ga. 686 (83 S. E. 534); Bradley v. L. & A. M. Ry. Co., 147 Ga. 22 (92 S. E. 539); Railroad Commission v. L. & N. R. Co., 148 Ga. 443 (96 S. E. 855); Union Lime Co. v. Chicago & N. W. Ry. Co., 233 U. S. 211 (34 Sup. Ct. 522, 58 L. ed. 924). Whenever such spur or industrial track is owned and operated by a common carrier as a part of its system and under its public obligation, it is a public track and not a private one. It is devoted to a public and not a private use. Missouri Pac. Ry. Co. v. Nebraska, 217 U. S. 196 (30 Sup. Ct. 461, 54 L. ed. 727, 18 Ann. Cas. 989). The fact that a track may, for the time being, benefit only one individual, or a few individuals, does not necessarily negative the public character of the use. Railroad Com. v. L. & N. R. Co., Union Lime Co. v. Chicago & N. W. Ry. Co., supra.

It is not essential, to make the use of a spur or industrial track a public one, that its use should be open to all the public. The facility or instrumentality of transportation may be limited in its use. Such track may be used for the delivery of freight in car-load lots, and the fact that the use of such a track may be denied to shippers of freight in less than car-load lots would not destroy the public character of the track. If such a track is open to all members of the public who may wish to ship goods in car-load lots over such a track, such track is one of public use. If such a track is intended to be used and can only be used by industries located thereon, in receiving inbound freight and in shipping outbound freight, such track does not lose its character of one devoted to public use by reason of the fact that the carrier does not deliver to drays goods shipped over it, or receive from drays goods intended for outbound shipment over it. The evidence before the commission authorized the finding that the extension of this spur or industrial track was of public service. It will serve a number of industries located on it. It will serve all patrons who desire to ship freight in car-load lots to such industries, and all patrons who should desire to receive outbound freight shipped in car-load lots from these industries. When complete, it will constitute an integral part of the railroad system. It will be subject to public regulation under State and Federal laws. It is competent for the State, acting through its Public Service Commission, to provide for this extension of the transportation facilities of the railroad company, so as to meet the demands of trade; and it may impress upon this extension of the carrier’s line, thus furnished under the authority of the State, a public character regardless of the number served by it at the beginning. The fact that the Public Service Commission found that the extension of this track would serve a public use is of itself high and persuasive evidence of that fact. So we are of the opinion that there was evidence before the commission authorizing its finding, and that the extension of this track would serve the public, and that the attack upon this order, on the ground that it was unsupported by the evidence, is without foundation.

But it is insisted by counsel for the plaintiff, that before the railroad can extend this track it must procure the permission and consent of the city; that in granting its permission the city has the right to fix the conditions of the grant, which it has done; and that, whatever might have been the evidence before the commission as to the public use to which this track would be devoted, the use is fixed by the ordinance granting the city’s consent to the extension of this track, and that the use to which this track can be put under said ordinance is a private and not a public use. It is true, as a general rule, that a railroad company must obtain the written consent of the municipal authorities before it can lay a track on any street of a city in this State. Civil Code (1910), § 2585; Southern-Cotton Oil Co. v. Bull, 116 Ga. 776 (43 S. E. 52); Athens Terminal Co. v. Athens Foundry & Machine Works, 129 Ga. 393 (58 S. E. 891); Harrold v. Americus, supra. Whether such consent worild have to be given before a railroad company could lay a track in a public alley of a city, which it has succeeded in condemning as a right of way for the construction of such track, is at least doubtful. But conceding that in such a case such consent is essential, and conceding further that the city ordinance is not broad enough to permit the extension of said track for public use, will the lack of such consent prevent the railroad company from condemning such alley for such right of way on which to lay a track for the public service ? In other words, is such consent a condition precedent to the condemnation of such alley for such right of way? We do not think that the grant of such consent is essential to the right of condemnation. If the condemnation of the alley is necessary in order to permit the railroad company to construct such extension, then its condemnation is but one step towards the accomplishment of this purpose. If the present ordinance is not broad enough to confer on the railroad company the right to make this extension in this alley, that fact might prevent the company from making such extension; but the lack of such consent will not prevent it from proceeding to condemn the right of way in said alley for this extension. If the present ordinance does not grant such consent, the railroad company would be in no worse fix than if it did not have the consent of the municipality to lay said track in said alley. Conceding that it has not such consent under such ordinance, then it may hereafter obtain from the city the necessary consent for this extension in this alley, and it is immaterial when it is secured. Anyway, the lack of such consent does not prevent the railroad from exercising the right of eminent domain in condemning the alley as a right of way for the extension of its track in said alley. Metropolitan City Ry. Co. v. Chicago &c. Ry. Co., 87 Ill. 317; Chicago & W. I. R. Co. v. Dunbar, 100 Ill. 110; Suburban R. Co. v. Metropolitan W. S. R. Co., 193 Ill. 217 (61 N. E. 1090); Union Pac. R. Co. v. Colorado Postal Tel.-Cable Co., 30 Colo. 133 (69 Pac. 564, 97 Am. St. R. 106); Dowie v. C. W. & N. S. Ry. Co., 214 Ill. 49 (73 N. E. 354); Memphis & S. L. R. Co. v. Union Ry. Co., 116 Tenn. 500 (95 S. W. 1019); Cal. So. R. v. Kimball, 61 Cal. 90; Matter of Gilbert Elevated Ry. Co., 70 N. Y. 361; Lewis on Eminent Domain (3d ed.), § 607; Bridwell v. Gate City Terminal Co., 127 Ga. 520 (9) (56 S. E. 624).

We do not, however, think that the ordinance of the City of Tifton, granting to the railway company its consent to the extension of this track along this alley, creates a private use. The ordinance provides that the right of way in said street is granted for such ordinary use as the public may make of such privilege, and that said track is not to be used generally as a dray track. Properly construed, this ordinance provides that the railroad company may use this extension in the ordinary way in which industrial tracks are used to serve the public, and especially recognizes the right of the public to use this extension. The provision that it shall not be used generally as a dray track does not otherwise limit the public use thereof; it only limits such public use in one particular. This particular is that the public can not generally use it as a dray track. Even such public use is not entirely prohibited. So we are of the opinion that under this ordinance the use of this extended track was not limited to private use, but on the contrary contemplates its use by the public. So the contention of the plaintiff that this ordinance confines this track to private use is not well founded; and the attack on the order of the Public Service Commission on this ground is without merit.

It is next urged that the plaintiff has been denied due process of law in the rendition of this judgment by the Public Service Commission, for the reason that that body received and considered, in reaching its conclusion in this matter, after the conclusion of the introduction of evidence on the hearing and without the consent and knowledge of the plaintiff, a petition of certain citizens of the City of Tifton, favoring the'approval of the condemnation of this alley for the purpose of this extension. After the close of the introduction of evidence a petition was filed with the secretary, protesting against the approval by the commission of the condemnation of this alley. Thereafter about 400 citizens of the City of Tifton filed with the secretary a petition in favor of the approval of the condemnation proceedings by the commission. Counsel for the plaintiff earnestly insists that the reception and consideration of this latter petition by the commission denied to his client due process of law. Is this position well taken? In City of Atlanta v. Georgia Ry. & Power Co., 149 Ga. 411 (100 S. E. 442), this court passed upon the validity of an order of the railroad commission fixing rates 'which might be charged by the Georgia Railway & Power Company. In fixing said rates a formal hearing was had, and after the conclusion of the evidence the matter was reserved for decision. In reaching a decision the commissioners took under consideration a document which had not been introduced in evidence. In a suit to declare void the order of the commission fixing such rates, one of the grounds of attack thereon was the consideration by that body of such evidence. In that case this court held that “the fact that the railroad commission may have acted in part upon information not formally introduced in evidence before it would not render void its order fixing a schedule of rates to be applied in the future.” Again in Mutual Light & Water Co. v. Brunswick, 158 Ga. 677 (124 S. E. 178), this court held that an order lowering the rates of a public service utility could not be reviewed by the superior court upon writ of certiorari, because the act of rate-making was legislative or quasi legislative in character. It is now fairly well settled that “The necessity or expediency of taking property for public use are legislative questions upon which the owner is not entitled to a hearing under the due-process clause of the fourteenth amendment.” Boom Co. v. Patterson, 98 U. S. 403 (25 L. ed. 206); Bragg v. Weaver, 251 U. S. 57 (40 Sup. Ct. 62, 64 L. ed. 135); Joslin Co. v. Providence, 262 U. S. 668 (43 Sup. Ct. 684, 67 L. ed. 1167); Georgia v. Chattanooga, 264 U. S. 472 (44 Sup. Ct. 369, 68 L. ed. 796); North Laramie Land Co. v. Hoffman, 268 U. S. 276 (45 Sup. Ct. 491, 69 L. ed. 953). It follows that the attack upon this order of the commission, on the ground that the plaintiff was denied due process, is without merit.

The plaintiff next contends that under par. 18 of § 402 of the transportation act, which is now subsection 18 of § 1 of the interstate commerce act, a railroad company can not exercise the right of condemning this alley for the extension of said track before it has' obtained permission from the Interstate Commerce Commission for such extension. By said subsection it is provided that “No carrier by railroad subject to this act shall undertake the extension of its line of railroad, or the construction of a new line of railroad or extension thereof, . . until there shall first have been obtained from the commission a certificate that the present or future public convenience and necessity require or will require the construction or operation or construction and operation of such additional or extended line of railroad or the operation thereof.” By par. 22 of § 402 of the transportation act it is declared that the authority conferred upon the Interstate Commerce Commission by par. 18 of said section “shall not extend to the construction or abandonment of spur, industrial, team, switching, or side-tracks, located or to be located wholly within one state.” Transportation Act of 1920, 41 Stat. 456, c. 91 § 402, par. 22, U. S. Comp. St. Supp. 1923, § 8563. The spur or industrial track in question in this case is wholly within the State of Georgia, and is for a public purpose. By the transportation act it is not within the jurisdiction of the Interstate Commerce Commission, but is within the jurisdiction of the Public Service Commission of this State. Railroad Commission v. Southern Pac. Co., 264 U. S. 331 (44 Sup. Ct. 376, 68 L. ed. 713). The claim that jurisdiction over this track is vested in the Interstate Commerce Commission is in the teeth of the transportation act of 1920. Western & A. R. v. Georgia Pub. Serv. Com., 267 U. S. 493 (45 Sup. Ct. 409, 69 L. ed. 753).

In denying a permanent injunction and in revoking. a temporary restraining order previously granted, the trial judge granted a supersedeas pending the final determination by this court of the case. The case was on final hearing, and the decree revoked a temporary restraining order and denied to the plaintiff the permanent injunction which he sought. The defendants excepted to the granting of such supersedeas, upon the ground that the judge was without power to grant the same. There are three methods of obtaining a supersedeas in this State. The first and most common one is that provided for in the Civil Code (1910), § 6165. This method is applicable where a judgment has been rendered in favor of one party against the other, such as a money judgment, a judgment for the recovery of property, or for specific performance, or some judgment determining the case or where there is an execution which may proceed against property. Mass. Bonding Co. v. Realty Trust Co., 139 Ga. 180, 186 (77 S. E. 86). This method is not applicable to the present case, because no such judgment was rendered in favor of the defendants against the plaintiff.

The second method is that provided in the Civil Code (1910), § 5502. This method is applicable in cases-in which injunctions are granted or dissolved. In such a case either party may sue out a writ of error to this court from a decision against him, upon complying with the law applicable to the same; but no such writ of error shall have the effect to establish or deny any injunction independently of the order of the judge, who shall, on rendering the decision, or granting the writ of error, make such order and require such bond as may be necessary to preserve and protect the rights of the parties until the judgment of this court can be had in the case. It is unnecessary to decide whether this method of obtaining a supersedeas is applicable to the case in hand. If applicable, the judge below had authority to grant the supersedeas complained of by the defendants. If inapplicable, then we are to determine whether there is any other method under which the judge was authorized to grant a supersedeas. The third method is that provided in the Civil Code (1910), § 4850. This section confers upon the judges of the superior courts authority to grant writs of supersedeas; and confers such authority in all cases where the first and second methods above referred to do not apply. Gustoso Mfg. Co. v. Ray, 117 Ga. 565 (43 S. E. 984); Montgomery v. King, 125 Ga. 388 (54 S. E. 135); Mass. Bonding Co. v. Realty Trust Co., supra; Brandon v. Brandon, 154 Ga. 661 (115 S. E. 115). In the case last cited it was ruled that it is against the policy of the law to permit the status to be changed until the final determination of the case in the court of last resort. It is left, however, in the sound, legal discretion. of the judge to grant or refuse a supersedeas under this third method, and, in granting a supersedeas, to fix the terms on which it will be granted. West v. Shackelford, 138 Ga. 163 (74 S. E. 1079).

Applying the principles above ruled, the trial judge did not err in declining to grant an injunction as prayed by the plaintiff, in dismissing his suit, and in granting a supersedeas.

Judgments affirmed on both bills of exceptions.

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