157 S.E. 499 (Ga. 1931), 7887, McIntyre v. Harrison

Docket Nº:7887.
Citation:157 S.E. 499, 172 Ga. 65
Opinion Judge:HINES, J.
Party Name:McINTYRE et al. v. HARRISON, Comptroller General, et al.
Attorney:J. Ira Harrelson, of Atlanta, for plaintiffs in error. Robt. B. Troutman and Robt. S. Sams, both of Atlanta, Geo. M. Napier, Atty. Gen., T. R. Gress, Asst. Atty. Gen. (S. J. Smith, Jr., of Commerce, T. M. Cunningham, of Savannah, and Little, Powell, Reid & Goldstein, of Atlanta, on motion for reh...
Judge Panel:GILBERT, J., and BECK, P.J., dissenting. ATKINSON and HILL, JJ., concur. BECK, P.J., and GILBERT, J., dissent. RUSSELL, C.J., does not participate in the decision. GILBERT, J. (dissenting).
Case Date:February 10, 1931
Court:Supreme Court of Georgia
 
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Page 499

157 S.E. 499 (Ga. 1931)

172 Ga. 65

McINTYRE et al.

v.

HARRISON, Comptroller General, et al.

No. 7887.

Supreme Court of Georgia

February 10, 1931

Rehearing Denied Feb. 28, 1931.

Syllabus by the Court.

Public Service Commission may be enjoined from regulating business over which it has acquired no power of regulation; collection of unauthorized tax may be enjoined in proceeding by number of persons against whom it is sought to be enforced to avoid multiplicity of actions (Laws 1929, p. 293, and p. 300, § 15).

Injunction is an available remedy to restrain the Georgia Public Service Commission from undertaking to regulate a business over which the power of regulation has not been conferred upon that body. Injunction will lie to prevent the collection of a tax under a statute which does not authorize its imposition, when the proceeding is brought by a number of persons against whom it is sought to be enforced, upon the equitable principle of avoidance of a multiplicity of actions.

Occupation tax on auto transportation companies can be collected only from companies or individuals granted certificates of public convenience to engage in transportation between fixed termini; statutes levying taxes should be construed most strongly against government (Laws 1927, p. 57, § 2, par. 114, as added by Laws 1929, p. 74, § 31).

The tax imposed under section 31 of the act of August 29, 1929, which amends the general tax act of August 25, 1927, can be collected only from auto transportation companies, associations, or individuals to which have been granted certificates of public convenience and necessity, permitting them to engage in the transportation of passengers or freight, or both, between fixed termini. Statutes levying taxes should be construed most strongly against the government and in favor of the citizen.

Motor-Carrier Act applies only to common carriers by automotor vehicles, not to private carriers for hire; private carriers are not subject to control or regulation of Public Service Commission (Laws 1929, p. 293; p. 294, § 2; p. 296, § § 3, 4a; p. 297, § 5; p. 298, § 6; p. 299, § 12).

The Motor-Carrier Act of 1929 is applicable alone to common carriers by automotor vehicles, and does not apply to private carriers of goods for hire in such vehicles over the public highways of this state; and such private carriers are not thereby subjected to the control or regulation of the Public Service Commission of this state.

Legislature cannot convert private carrier into common carrier to be subject to regulations applicable to common carriers; Motor-Carrier Act regulating business of transportation for hire is not act regulating use of public highways by motor vehicles; constitutional power cannot be used by way of condition to obtain unconstitutional result (Laws 1929, p. 293).

While the state can prohibit the owners or operators of motor vehicles from transporting passengers or property for hire over the highways of this state, and can exercise the lesser power to grant such right to use the public highways upon reasonable terms and conditions imposed by the Legislature, the Legislature cannot by its fiat convert a private carrier into a common carrier; and where a motor-vehicle operator is in fact an existing private carrier, the Legislature cannot by its edict compel him to become a public or common carrier, so as to subject him to regulations which are applicable alone to common carriers.

(a) The Motor-Carrier Act of 1929 is not an act to regulate the use of the public highways by motor vehicles, but is expressly declared to be an act to regulate the business of transportation of persons or property over the public highways for hire by motor vehicles.

(b) If this act were made applicable to private carriers, it would amount to the exercise of the power to regulate the use of the public highways so as, in effect, to compel private carriers to become public carriers; and this the Legislature cannot do. A constitutional power cannot be used by way of condition to obtain an unconstitutional result.

"Common carrier" is one holding himself out as ready to receive goods for carriage for all people indifferently; undertaking of common carrier to carry goods for all people indifferently may be evidenced by carrier's own notice or practically by series of acts in business; whether person is common or private carrier depends on facts relating to public business, and whether one has so held himself out as so engaged as to make him liable for refusal to accept employment offered; that carrier invites all persons to employ him does not render him common carrier if reserving right to accept or reject offers within discretion.

A common carrier is one that undertakes to carry, and holds himself out as ready to receive for carriage, goods for hire, which he is accustomed to carry, for all people indifferently so long as he has room. Such undertaking may be evidenced by the carrier's own notice, or practically by a series of acts, by his own habitual continuance in his line of business.

(a) Whether a person is a common carrier or a private carrier depends upon the facts; and where there is a question whether the carrier is a private or a common carrier, it is to be determined by the facts relating to, first, whether it is public business or employment, and whether the service is to be rendered to all indifferently; and, second, whether one has so held himself out as so engaged as to make him liable for a refusal to accept the employment offered.

(b) The mere fact that a carrier invites all and sundry persons to employ him does not render him a common carrier, if he reserves the right of accepting or rejecting their offers of goods for carriage, whether his vehicles are full or empty, being guided in his decision by the attractiveness or otherwise of the particular offer, and not by his ability or inability to carry, having regard to his other engagements.

Under the above holding that the Motor-Carrier Act of 1929 does not confer upon the commission power to regulate private carriers, we do not deal more fully with the attacks upon this act based upon the theory that such power is conferred upon that body.

The order of the court denying an injunction being general, and it not appearing that the judge passed upon the question whether under the facts the plaintiffs were common carriers or not, or based his judgment upon a finding of fact that they were common carriers, or upon the theory that the Motor-Carrier Act applies to both common and private carriers alike, and as we have to reverse the judgment for the failure of the court below to enjoin the Comptroller General from enforcing against the plaintiffs the tax imposed by section 31 of the Act of August 29, 1929, the case is remanded to the court below for further consideration, in view of the construction which we have placed upon the Motor-Carrier Act.

Additional Syllabus by Editorial Staff.

Allegations in reference to matter peculiarly within knowledge of defendants must be expressly denied, or will be taken as admitted (Civ. Code 1910, § 5637).

"Private carrier" is one undertaking to deliver goods in particular case for hire or reward without being engaged in business of carrying as public employment.

Error from Superior Court, Fulton County; Virlyn B. Moore, Judge.

Suit by R. L. McIntyre and others against W. B. Harrison, Comptroller General, and others. Judgment for defendants, and plaintiffs bring error.

Reversed.

GILBERT, J., and BECK, P.J., dissenting.

J. Ira Harrelson, of Atlanta, for plaintiffs in error.

Robt. B. Troutman and Robt. S. Sams, both

of Atlanta, Geo. M. Napier, Atty. Gen., T. R. Gress, Asst. Atty. Gen. (S. J. Smith, Jr., of Commerce, T. M. Cunningham, of Savannah, and Little, Powell, Reid & Goldstein, of Atlanta, on motion for rehearing), for defendants in error.

HINES, J.

The plaintiffs seek to enjoin the Comptroller General from collecting from them the tax imposed by section 31 of the act of

Page 501

August 29, 1929 (Laws 1929, p. 74), which amended the General Tax Act of 1927 (Laws 1927, p. 57, § 2), upon the ground that they do not fall within the provisions of sad section, for the reason that they have not been granted a certificate of public convenience and necessity, permitting them to engage in the transportation of passengers or freight, or both, between fixed termini; and they further seek to enjoin the Georgia Public Service Commission from enforcing against them the provisions of the Motor-Carrier Act of 1929, upon the ground that said act applies only to common carriers and not to private carriers, within which latter class they fall; and upon the further ground that if said act is held applicable to private carriers, it is unconstitutional and void, because it violates the due process clauses of the State and Federal Constitutions; and article 1, section 3, paragraph 1, of the Constitution of this state, which declares that, "private property shall not be taken, or damaged, for public purposes, without just and adequate compensation being first paid"; and article 1, section 3, paragraph 2, which provides that, "No *** retroactive law, or law impairing the obligation of contracts, *** shall be passed"; and article 1, section 10, paragraph 1, of the Federal Constitution, which declares that, "No State shall *** pass any *** law impairing the Obligation of Contracts."

1. We are met at the outset by the proposition, urged by the defendants, that the injunction prayed for by the plaintiffs was properly denied, for the reason that it does not appear that there has been any interference with the personal or property...

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