Atlantic Log & Export Co. v. Central of Ga. Ry. Co. , 171 Ga. 175 ( 1930 )

Atkinson, J.

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subject of all or a part of the original act, and a portion of the original act is left out, such omitted portion is repealed by implication.”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 county where the same was done, in any court having jurisdiction thereof; and the damages to be recovered shall be the same as in actions between individuals, except that in cases of willful violation of law such railroad companies shall be liable to exemplary damages; provided, that all suits under this act shall be brought within twelve months after the commission of the alleged wrong or injury.” This law was carried into the several codes and appears in exactly the same language in the Civil Code of 1910 as § 2640. The provisions of section 2666 in the Civil Code of 1910 originated in section 9 of the act of 1907 (Ga. L. 1907, p. 72), and appeared in the Civil Code of 1910 as follows: “In case a common carrier or other corporation or company mentioned in this section shall do, cause to be done, or permit to be done any act, matter, or thing prohibited, forbidden, or declared to be unlawful, or shall 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, such common carrier or other corporation or company shall be liable to the persons or corporations affected thereby for all loss, damage, or injury caused thereby or resulting therefrom; and in ease of recovery, if the jury shall find that such act or omission was willful, it may fix' a reasonable counsel’s or attorney’s fee, which fee shall be taxed and collected as part of the costs of the case. An action to recover for such loss, damage, or injury may be brought in any court of competent jurisdiction, by any such person or corporation.” The caption of this act is: “An act to increase the membership of the Eailroad Commission of Georgia, and and to prescribe the qualifications for membership; to authorize the designation of a chairman thereof by the Governor, and to prescribe his duties and compensation; to revise, enlarge, and more clearly define the powers, duties, and rights of said commission; to authorize it to employ rate and other experts, and to fix their pay; to increase the printing fund, and the salary of the secretary of the commission; to employ a stenographer and fix his pay; to extend its powers and jurisdiction over docks and wharves, terminal companies, cotton compress companies, corporations or persons owning, leasing, or operating railway terminals or terminal stations, over-telephone or telegraphic companies or corporations or persons owning, leasing, or operating any public telephone service in this State, and over street-railroads and street-railroad corporations, eompanies, or persons owning, leasing, or operating street-railroads in this State, over gas and electric light and power companies, corporations, or persons owning, leasing, or operating public gas plants, electric light and power plants furnishing power to the public; to fix the domicile of the Railroad Commission, and prescribe what courts of this State have jurisdiction over proceedings instituted against it; to prescribe and fix penalties and punishments for failure or refusal to observe any order, rule, or regulation of the Railroad Commission, and to prescribe the form of procedure for enforcing the same; to repeal sections 2195 and 2196 of the Code of Georgia, 1895, touching penalties and procedures to enforce the same for a violation of the orders, rules, and regulations of the commission; to repeal sections 3 and 4 of the act approved August 23, 1905, prescribing certain penalties and forms, of procedure for enforcing same; and for other purposes.” It will be perceived that there is no mention in the above caption of repeal of section 10 of the act of 1879 (Civil Code, § 2640). In section 9 of the act of 1907 (Civil Code, § 2666) there is no reference to repeal of section 10 of the act of 1879 (Civil Code § 2640), nor is there such reference in any portion of the act; but in section 10 of said act of 1907 there is express repeal of sections 2195 and 2196 of the Civil Code of 1895, relating to penalties and procedure for enforcement thereof for violations of orders, rules, and regulations of the commission. If there had been an intention to repeal section 10 of the act of 1879, an expression to that effect was opportune and would have been most appropriate. Again, while retention of section 10 of the act of 1879 in the Code of 1910, after the act of 1907, may not have revived the former if it had been repealed by the latter, yet such' retention in the Code is entitled to some weight on the question of intent to repeal by implication. The language of the Civil Code, § 2666, referring to “a common carrier or other corporation or company mentioned in this section,” is broader than the language of § 2640, “any railroad company doing business in this State.” See Estes v. Perry, 167 Ga. 902 (147 S. E. 370). There are other differences in the two statutes. The right of action under § 2640 is predicated on violation of any rule or regulation of the commissioners. The right of action under § 2666 is predicated on the doing, causing, or permitting to be done “any act, matter, or thing prohibited, forbidden, or declared to be unlawful," or omission 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.” Section 2640 provides for exemplary damages, while section 2666 does not make reference to exemplary damages. Section 2640 does not provide for recovery of attorney’s fees, but there is such a provision in section 2666. Section 2640 provides a limitation of twelve months for bringing suits thereunder, while section 2666 does not contain such provision. Considering the origin and substance of the two sections of the Code, they are not so repugnant or of such character as to show a legislative intent to repeal section 2640 by implication.

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 in excess of the rates and tariffs fixed by the commission. Consequently section 2666 does not confer the right on a shipper to bring an action against a railroad company for the recovery of freight charges paid on intrastate shipments in excess of the rates and tariff fixed by the Georgia Public-Service Commission.

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.

All the Justices concur, except Bussell, G. Jand Hines, J., who dissent from the rulings on questions 2 and Jt.