DocketNumber: No. 7143
Citation Numbers: 171 Ga. 175
Judges: Atkinson, Bussell, From, Hines, Questions, Rulings, Who
Filed Date: 9/15/1930
Status: Precedential
Modified Date: 1/12/2023
In McGregor v. Clark, 155 Ga. 377, this court said: “A repeal by implication takes place 'only in so far as a statute is clearly repugnant to a former statute, and so irreconcilably inconsistent with it that the two can not stand together, or is manifestly intended to cover the subject-matter of the former and operate as a substitute for it, that such a repeal will be held to result.’ ” This rule is stated in various forms in the following cases. Erwin v. Moore, 15 Ga. 361; Jones v. Central Railroad &c. Co., 21 Ga. 104; Miller v. Southwestern Railroad Co., 55 Ga. 143; Pausch v. Guerrard, 67 Ga. 319; Kennedy v. McCardel, 88 Ga. 454 (14 S. E. 710); Gress Lumber Co. v. Goody, 99 Ga. 775 (27 S. E. 169); Butner v. Boifeuillet, 100 Ga. 743 (28 S. E. 464); Crovatt v. Mason, 101 Ga. 246 (28 S. E. 891); Western & Atlantic R. Co. v. Atlanta, 113 Ga. 537 (38 S. E. 996, 54 L. R. A. 294); Horn v. State, 114 Ga. 509 (40 S. E. 768); Edalgo v. Southern Ry. Co., 129 Ga. 258 (58 S. E. 846); Gray v. McLendon, 134 Ga. 224 (67 S. E. 859); Verdery v. Walton, 137 Ga. 213 (73 S. E. 390); Jones v. Stokes, 145 Ga. 745 (89 S. E. 1078); Brackett v. Arp, 156 Ga. 160 (118 S. E. 651); Friedman v. Mizell, 164 Ga. 1 (137 S. E. 400). In Horn v. State, supra, it was said: "The rule as to repeal by implication is, in such cases, so far as we can ascertain from the authorities, that when the legislature intends to revise a former act or charter or to deal exhaustively with the subject of all or a part of the original act, and a portion of the original act is left out, such omitted portion is repealed by implication.” In the light of the foregoing, the first question propounded by the Court of Appeals will be answered.
In section 10 of the act of 1879 (Ga. L. 1878-9, p. 125), creating the Railroad Commission of this State, it is declared: “That if any railroad company doing business in this State shall, in violation of any rule or regulation provided by the commissioners aforesaid, inflict any wrong or injury on any person, such person shall have a right of action and recovery for such wrong or injury in the
The Civil Code (1910), § 2640, provides for liability of a railroad company for damages produced by “violation of any rule or regulation” made by the railroad commissioners. Eates and tariffs “fixed by” the board of railroad commissioners come within the meaning of the words “rule or regulation” above mentioned. Parmelee v. Savannah, Florida & Western Railway, 78 Ga. 239 (2 S. E. 686). A charge for freight in excess of the rates and tariff fixed by the commission is such violation of the rules of the commission as will give a statutory right of action under that section of the Code. This applies also to rules and regulations of the Georgia Public Service Commission, that body being the successor to the former board of Eailroad Commissioners of Georgia, and having in virtue of the act of 1922 (Ga. L. 1922, p. 143) succeeded to all its powers and duties. Fstes v. Perry, supra. The rates and tariffs which a railroad company may charge are no longer the subject of contract between such companies and their patrons, but are fixed by the rules and regulations of the commissioners, and the statute gives the right of action against the companies for charging intrastate freight rates in excess of those fixed by the commission.
The Civil Code, § 2666, imposes statutory liabilities against common carriers for positive acts “forbidden or declared to be unlawful;” also where such carriers "omit to do any act, matter, or thing required to be done either by any law of the State of Georgia, by this section, or by an order of the commission.” The only liability having relation to an “order of the commission” is for omission to perform such order or mere nonfeasance. This does not include liability for the positive acts of charging and collecting freight
The language of § 2640, in relation to limitation of actions based on excessive freight charges, is “that all suits under this article shall be brought within twelve months after the commission of the alleged wrong, or injury.” This limitation is a part of the statute that provides for the liability. It can not be taken out of the statute by construction. This comports with the ruling in Parmelee v. Savannah, Florida & Western Railway, supra, in which it was held: “Under § 719(j) of the Code [§ 2640 of the Code of 1910], it is a condition precedent to the bringing of a suit for the recovery of amounts paid for freight to a railroad companjr, in excess of the sum allowed by the railroad commission, that the suit should be brought within twelve months from the time the right of action accrues.” A request is made to- review and overrule the decision in that case; but this court, being satisfied with the ruling there made, declines to overrule it. That which' is stated above finds support also in the decision in Kansas City Southern Ry. Co. v. Wolf, 261 U. S. 133 (43 Sup. Ct. 259, 67 L. ed 571) involving the limitation fixed by § 16 of the interstate-commerce act, wdrich provides that “All complaints for the recovery of damages shall be filed with the commission within two years from the time the cause of action accrues, and not after.” The Supreme Court, quoting from Phillips Co. v. Grand Trunk Western Ry. Co., 236 U. S. 662 (35 Sup. Ct. 444, 59 L. ed. 774), said: “Under such a statute the lapse of time not only bars the remedy but destroys the liability. . . For when it appeared that the complaint had not been filed within the time required by the statute, it was evidence, as matter of law, that the plaintiff had no cause of action.” Under proper construction, the limitation expressed in the Civil Code (1910), § 2640, requires that all suits against railroad companies for the recovery of freight charges paid on intrastate shipments, in excess of the rates and tariffs fixed by the Georgia Public Service Commission, shall be brought within twelve months after the commission of the wrong.
Questions 1 and S answered in negativej 2 and 4 in affirmative.