ON MOTION FOR REHEARING.
In the motion for a rehearing in this case, .filed by the plaintiff in error, it is insisted that all of section 3 of the act of September 3, 1881, except the part quoted in the opinion, the same being an act to amend the charter of the City of Atlanta (Acts 1881, p. 359), must have been overlooked by the court. That section reads as follows: “That said Ma3ror and General Council shall also have full power and authority to assess one third of the cost of grading, paving, macadamizing, constructing side-drains, cross-drains, crossings, and otherwise improving the roadway or street proper, on the real estate abutting on each side of the street improved; Provided, that before any street, or portion of a street, shall be so improved, the persons owning real estate, which has *351at least one third of the fronting on the street, or portion of a street, the improvement of which is desired, shall, in writing, request the Commissioners of Streets of [and] Sewers to make such improvements, and said commissioners shall have approved the same, and shall foward the same, with their approval, to the Mayor and General Council, with a statement of- the character of the improvement proposed to be made, and an estimate of the cost of the same, and said Mayor and General Council shall by ordinance direct the said work to be done; and provided further, that any street-railroad company having tracks running through the streets of said city shall be required to macadamize, or otherwise pave, as the Commissioners of Streets and Sewers may direct, the width of its track, and for three feet on each side of every line of track now in use, or that may hereafter be constructed by such company; provided, that the law authorizing the assessment on the abutting-property owners of the whole cost of paving sidewalks (including cost of curbing) is in no way affected thereby.” Plaintiff in error contends that the provision of that section which follows the words “ and provided further,” beginning in the 16th line of the section, is a mere proviso in the strict sense of that word, and should not be considered as a grant of power, 'but that if it is a grant of power at all, it was merely annexed as a condition of the grant contained in the preceding portion of the section; and insists that, this being a mere proviso, it should be given effect only as such; quoting the language of Justice Story in the case of Minis v. U. S., 15 Peters, 445, which reads as follows: “ The office of a proviso is either to except something from the enacting clause, or to qualify or restrain its generality, or to exclude some possible ground of misinterpretation of it as extending to cases not intended by the legislature to be brought within its purview.”
Tested by this and other similar definitions of a proviso, we are of the opinion that the clause in the section containing the words referred to is, strictly speaking, not a proviso. It does not except anything from the enacting clause; nor does it qualify or restrict its generality; nor does it exclude any possible ground of misinterpretation of it. It is absolute and general in its character. It declares in general terms that “any street-railroad company having tracks running through the streets of said city *352shall be required to macadamize, or otherwise pave,” etc. There are two other clauses in section 3 which begin with the word “provided;” one of them precedes, the other follows the particular clause in section 3 under consideration. These last two clauses referred to are provisos, strictly, — not made so by the fact that each of them begins with the word “ provided,” but by the language employed; the first of them reading “provided, that before any street or portion of a street shall be so improved;” and this is followed in the same proviso with a statement limiting and defining certain steps that must be taken before an assessment can be imposed; and the last proviso is also clearly and strictly such, tending to exclude some possible ground of misinterpretation of the section. But that part of the section following the words “ and provided further,” contains no language, except the word “provided,” to show that it is a mere proviso in the strict sense of that word; and that word “ provided,” preceding the general and absolute language employed, may well be construed as equivalent to the phrase, “ it is enacted.” “ The question whether a proviso in the whole or in part relates to and qualifies, restrains, or operates upon the immediately preceding provision only of the statute, or whether it must be taken to extend in the whole or in part to all the preceding matters contained in the statute, must depend, I think, upon its words and import, and not upon the division into sections that may be made for convenience of reference in the printed copies of the statute. Remembering the slight importance that is to be attached to the mere arbitrary divisions of statutes by the legislature itself, this rule, it seems, must still, with proper limits and caution as to the application of it, he deemed a reasonable one.” Endlich on Interpretation of Statutes, 258. In the case of Georgia Railroad &c. Co. v. Smith, 128 U. S. 174, 181 (9 Sup. Ct. 47, 32 L. Ed. 377), it is said: “The difficulty attending the construction of the clause following this one arises from the doubt attached to the meaning of the term 'provided/ The general purpose of a proviso, as is well known, is to except the clause covered by it from the general provisions of a statute in some particular. But it is' often used in other senses. It is common practice in legislative proceedings, on the consideration of bills, for parties desirous of securing amendments to them, to precede their proposed amendments with the term ' provided, ’ so *353as to declare that, notwithstanding existing provisions, the one thus expressed is to prevail, thus having no greater signification than would be attached to the conjunction ' but ’ or ‘ and ’ in the same place, and simply serving to separate or distinguish the different paragraphs or sentences. Several illustrations are given by counsel of the use of the term in this sense, showing, in such cases, where an amendment has been made, though the provision following often has no relation to what precedes it.” Authorities might be multiplied authorizing this construction and showing that in making a proper construction of the language employed we are not bound nor restricted by a definition of the word “ proviso.” But if this were not true — if this is strictly a proviso, and does not contain the legislative grant of power which the language seems to confer, nevertheless we would still be of the opinion that the judgment of the court below should be affirmed. We do not think that the fact that the part of the street on which the tracks are laid has become so entirely useless and completely in disrepair as will render repavement necessary to meet the requirement that the street shall be repaired exempts the company from making the repairs ordered. Is the contention a sound one, that a street-railroad company, though bound to make repairs and to keep the part of the street on which its tracks are laid in good condition, could neglect making repairs until that part of the street was utterly unfit for use in its entirety, and then -for that reason could not be forced to repair, because repairing meant making it over, or repaving? If that were trjie, then a street-railroad company, by persisting in neglect to make repairs which it should make under the law, could carry its neglect to such an extent that it would gain exemption by the fact of continued neglect. To lay down such a proposition would be practically equivalent to holding that it would not be liable in case of 'gross continued neglect, but would be liable in case of less neglect. That a street-railway company is bound to perform the duty required of it by the ordinance in question here is in effect the meaning of numerous decisions cited in the opinion; and other decisions might be added, some from the same States as those from which the citations have been made, and others from other States. See 36 Cyc. 1403, relating to the duty to repair, etc., and the cases there cited. See also 2 Elliott on Boads and Streets (2d ed.), §§ 985 et seq.
*354In making the quotations from the cases decided by the Pennsylvania court we do not mean, of course, to adopt the entire doctrine of the Pennsylvania court on the subject of the special rights of street railways in streets where their tracks are laid, nor even in part adopt the doctrine that the construction of a street railway in a street imposes an additional servitude. The quotation was made because of the general language employed in the decisions and the general doctrine there stated that can be predicated upon other reasons. There are some courts that may take a different view as to the correct rule under the facts of this case; but we have made extensive search, and are of the opinion that the weight of authorities is with this court in the decision rendered. Some writers seem to think that the question is in doubt; but even if that were true, the doubt is to be resolved in'favor of the public. '
Motion for rehearing denied.