Supplemental Brief — Georgia Railway & Power Co. v. Mayor of College Park

| | APR 24 1923

} ‘ Mi Pp STANSBURY

CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1922.

No. 464.

GEORGIA RAILWAY & POWER CO. ET AL... PLaixtiers

iN Error anp Perirroners IN CERTIORARI.

vs.

THE MAYOR AND COUNCIL OF THE CITY OF COL-

LEGE PARK, Derenpanr ix Error axp ResponNpENT

IN CERTIORARI.

SUPPLEMENTAL BRIEF OF DEFENDANT IN ERROR

AND RESPONDENT IN CERTIORARI.

This court recognizes that State appellate courts differ in

their decisions as to the effect upon second appeal, of a

judgment on first appeal in the same case; some adopting

the rule of “law of the ease,” which is merely a practice

generally to refuse to reopen what has been decided, and

others, the stricter rule of res adjudicata, And this court

deems the highest court of the State the final judge in this

matter.

King vs. West Virginia, 216 U. S., 92.

a REELECTION} OE

Reve"

PEE Se PLE OE NAR A Cen

9

-

The Georgia law as to the existence of contract and the

nature thereof, is similar to that obtaining in other juris

dictions,

Seranton vs. Public Service Commission, 268 Pa, St.

192.

Collingsdale vs, Philadelphia Rapid Transit Co., 274

Pa. St., 124, holding

that act requiring approval of municipal contracts by utility

commission did not relate to contract made prior to its

enactment.

And the Georgia State court view has the support of a Fed:

eral court in that State.

Mercantile Trust Co. vs. College Park R. Co. (N.D.

Ga.), 1OL Fed., 347.

A public-utility corporation is not only subject to the con

ditions upon which its special franchises are granted, bit

is also subject to the obligations of its charter, and mus

discharge the publie duties which, where in the value of it

business, such as supplying reasonably adequate facilities,

even though by doing so, some pecuniary loss may result.

Missouri Pac. R, Co. vs. Kansas, 216 U7. 8., 262, 27

Northern Pac. R. Co. vs. North Dakota, 256 U. %.

OSD, OOD.

Hocking Valley R. Co. vs. Public Utilities Com., *

Oh. St., 9, and eases cited.

Assuming there is no valid contract, the College Park line

being a part of a system of street railways and operated #

such (Record, p. 59), the question whether the rate, or trans

fer orders, or service orders, are confiscatory or otherwix

3

arbitrary within the inhibition of the 14th Amendment,

js not to be determined alone with reference to the College

Park line, but with respect to the entire system; and it was

not and is not contended that the system earnings are un-

remunerative.

Puget Sound Traction Co, vs. Reynolds. 244 U. S.,

238, distinguishing principle of

Northern Pae. R. Co. vs. North Dakota, 236 U. S.,

a8,

and of the subsequent decisions following that case, which

are cited by plaintiffs in error in their brief, pages 40, 52.

See also Distriet of Columbia rvs. Capital Traction Co., 41

App. D. @., 115.

Plaintiffs in error complain only of transfer orders with

respect to transfers issued to passengers boarding ears in Col-

lege Park for use on lines other than the College Park

line, If any Tine is without compensation for service ren-

dered on such transfers, is not the College Park line? Its

contract is not impaired,

Detroit United Railway vs. Detroit, 248 U. S., 429,

436,

Furthermore, the contract creates no obligation respecting

the expense, if any, which the transfer orders entail, and there

is, therefore, no impairment of the obligation of the contract,

See Grand Trunk Western R. Co, vs. R. R. Com.,

221 U.S., 400,

The plaintiffs in error cannot surrender their franchise

and cease operation,

Columbus Railway Co. vs. Columbus, 249 U. S., 399.

hon, Oi

4

They operate not only under the consent franchise of the

municipality, but also under franchises from the State (Ree.

ord, pp. 128, 183), and they cannot surrender either to the

municipality or the State Railroad Commission, but only

to the State in such manner as the Legislature of the State

may prescribe.

Railroad Commission vs, Macon Railway & Light Co,

151 Ga., 256.

Respectfully submitted,

GEO. P. WHITMAN,

Attorney for Defendant in Error

and Respondent in Certiorari.

(9220)