Georgia Public Service Commission v. Taylor

• Citation: 157 S.E. 515,172 Ga. 100
• Decision Date: 11 February 1931
• Docket Number: 7718.
• Parties: GEORGIA PUBLIC SERVICE COMMISSION et al. v. TAYLOR.
• Court: Georgia Supreme Court

157 S.E. 515

172 Ga. 100

GEORGIA PUBLIC SERVICE COMMISSION et al. v. TAYLOR.

No. 7718.

Supreme Court of Georgia

February 11, 1931

Rehearing Denied Feb. 28, 1931.

Syllabus by Editorial Staff.

Public Service Commission may be enjoined from regulating business over which power of regulation has not been conferred.

Motor-Carrier Act applies alone to common carriers by automotor vehicles and not to private carriers of goods for hire (Laws 1929, p 293).

Private carriers for hire are not subjected to control or regulation of Public Service Commission (Laws 1929, p. 293).

Private carrier cannot be compelled by Legislature to become public or common carrier to be subject to regulations applicable to common carriers (Laws 1929, p. 293).

Whether person is common or private carrier depends on facts relating to public service and whether one has so held himself out as to be liable for refusal to accept employment offered.

Carrier is not rendered common carrier by inviting all persons to employ him, if reserving right of accepting or rejecting offers.

Person operating company transporting goods for hire under private contract without fixed route or schedule held "private not common carrier," and not subject to regulation (Laws 1929, p. 293).

Error from Superior Court, Fulton County; Edgar E. Pomeroy, Judge.

Action by E. S. Taylor against the Georgia Public Service Commission and others. Judgment for plaintiff, and defendants bring error.

Affirmed.

GILBERT J., dissenting in part, and RUSSELL, C.J., dissenting.

Public Service Commission may be enjoined from regulating business over which it has acquired no power of regulation. Laws 1929 p. 293, and p. 300, § 15.

E. S. Taylor formerly operated a "dray line business" under the name of Taylor Transfer Company by employment of animal power and wagons. The use of such equipment was later abandoned and automobile trucks were substituted, the business being carried on in all other respects as before. The business was to ""transport personal property for many persons, firms, and corporations on long-term contracts for compensation, principally within the limits of the City of Macon and occasionally *** over different highways outside of the limits of the City of Macon to different points along said highways *** within the State of Georgia," using in such instances "the paved highways, the public highway not paved and also *** private roads"; and occasionally to contract with individuals for "the hauling of a load of household furniture." The consideration for the transportation in the latter instance would be "fixed by agreement between the parties *** before the hauling is done, each *** transaction consisting of a special contract." He refused to transport a large portion of the property offered to him outside his first-mentioned contracts and refused any property unless the party offering it would agree to pay the price he charged and unless it was "convenient" to the business of his "regular customers in Macon." All contracts for transportation would be made by Taylor individually and he had no agents with authority to contract. The amount of charges for hauling would depend "upon the nature of the commodity to be hauled, the quantity, the distance over which it is to be hauled, the condition of the highways, and the weather." He did not operate "on any fixed route or routes, nor between any fixed termini, nor on any fixed schedule or schedules, nor" did he "guarantee as to time of delivery." The stationery used by him carried the name "Taylor Transfer Company" and the words "freight delivery, moving furniture and long distance hauling." In a given instance a request was made for a price for hauling a load of furniture from Valdosta to Atlanta Georgia and was stated to be $105 and that the furniture "was insured while in transit." Taylor operated five trucks, and 99 per cent. of the hauling done was for merchants and manufacturers in Macon under long-term special contracts as mentioned above. The net profits from hauling under special contract outside the city of Macon for the year 1929 was $839.42 and if "forced to become a common carrier and operate under said Motor Carrier Act of 1929 [Laws 1929, p. 293], the expenses incident to complying with the conditions and terms of said Act and the taxes imposed by said Act will amount to more than $1000.00." In order to make records of trips outside of the city of Macon and keep books and make reports to the Georgia Public Service Commission as required by the said act of 1929, the expense would amount to more than the profits of the business, and if forced to operate under the act the effect will be to drive the trucks from the highways of the state and partially destroy the business.

While the nature and character of Taylor's business was as indicated above, the Public Service Commission of Georgia notified him that he "must pay the fees and licenses and charges as prescribed in said Motor Carrier Act of 1929, and post a bond and make daily, monthly and annual reports to said Georgia Public Service Commission, and *** submit to the fixing of rates" and that he could not "continue to make private contracts" with his customers. After receiving such notice Taylor instituted an action against the Public Service Commission and the individual members of that body seeking to enjoin them from enforcing the provisions of the said Motor Carrier Act against him, and particularly from arresting him or interfering with his business. In paragraph 7 of the petition it was alleged: "Your petitioner shows that the Georgia Public Service Commission has served notice upon him that they were contending that your petitioner must operate under the 'Motor Carrier Act' passed by the Legislature of 1929 and subject to their jurisdiction; having threatened your petitioner with prosecution in the criminal courts in this State unless he complies with said law." This was admitted in the answer. There was no demurrer to the petition. After hearing evidence substantially as stated above, at an interlocutory hearing the judge granted a temporary injunction as prayed. The defendants excepted.

S. J. Smith, Jr., of Commerce, for plaintiffs in error.

E. W. Maynard and Edward F. Taylor, both of Macon, for defendant in error.

Syllabus OPINION.

ATKINSON J.

1. "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." McIntyre v. Harrison, 171 Ga. --(1), 157 S.E. 499.

2. "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." McIntyre v. Harrison, 171 Ga. -- (3), 157 S.E. 499.

3. "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." McIntyre v. Harrison, 171 Ga. --(4), 157 S.E. 499.

4. "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...