176 S.E. 487 (Ga. 1934), 10070, Aero Mayflower Transit Co. v. Georgia Public Service Commission

Docket Nº:10070.
Citation:176 S.E. 487, 179 Ga. 431
Opinion Judge:ATKINSON, Justice. GILBERT, Justice.
Attorney:Watkins, Asbill & Watkins, of Atlanta, and on motion for rehearing Watkins, Grant & Watkins, of Atlanta, for plaintiff in error. M. J. Yeomans, Atty. Gen., and B. D. Murphy, Jno. T. Goree, and J. J. E. Anderson, Asst. Attys. Gen., for defendants in error.
Case Date:September 15, 1934
Court:Supreme Court of Georgia

Page 487

176 S.E. 487 (Ga. 1934)

179 Ga. 431




No. 10070.

Supreme Court of Georgia

September 15, 1934

Judgment Adhered to After Rehearing September 27, 1934.

Syllabus by the Court.

1. "An automobile-haulage contractor holding himself out as ready to carry goods to any destination, and inviting the patronage of the public generally, but who reserves to himself the right of accepting or rejecting their offers of goods for carriage, 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, is not a common carrier." McIntyre v. Harrison, 172 Ga. 65, 84, 157 S.E. 499. See Georgia Public Service Commission v. Taylor, 172 Ga. 100, 157 S.E. 515.

(a) Accordingly, where it is alleged that the petitioner operates motortrucks over the highways as an interstate contract hauler, doing the business of hauling household and office furniture only for persons with whom it desires to contract, publishes no rates, and operates over no fixed routes, the petition will be held on demurrer to allege that the petitioner is not a common carrier.

(b) The Motor Common-Carriers Act approved August 27, 1931 (Ga. Laws 1931, p. 199 et seq.), having reference to motor common carriers, is inapplicable to the instant case, and no ruling will be made upon the assignments of error relating to constitutionality of that act.

2. Section 18 of the Motor-Carrier Act approved March 31, 1931 (Ga. L. Ex. Sess. 1931, pp. 99, 108), considered in connection with sections 4 (a) and 21, provides a charge, not as a privilege tax for carrying on interstate business, but for the use of the public highways of the state, and, properly construed, manifests a legislative intent and expressly allocates the fees of $25 for each motor vehicle therein provided for (a) to the cost of administration and enforcing the provisions of the act, and (b) the cost of building, maintenance, and repair of the highways of the state.

(a) The prescribed fee applies indiscriminately whether the carrier be engaged in intrastate or interstate traffic, or whether it be a common carrier or private carrier.

(b) The mere fact that the prescribed fee is a flat sum does not make it unreasonable. Interstate Transit, Incorporated, v. Lindsey, 283 U.S. 183, 51 S.Ct. 380, 75 L.Ed. 953; American Transit Co. v. Philadelphia (D. C.) 18 F. (2d) 991 (2). In the instant case the small fee of $25 for each truck is not an unreasonable charge for the use of the highways for the period specified in the act.

(c) The provision of the act in question is not discriminatory.

3. Section 18 of the Motor-Carrier Act approved March 31, 1931 (Laws 1931 [Ex. Sess.], p. 108), construed as indicated in the preceding note, does not, as applied to motor vehicles engaged exclusively in interstate commerce, violate the commerce clause of the Federal Constitution for any reason alleged.

4. Section 18 of the Motor-Carrier Act approved March 31, 1931, does not violate the equal-protection and due-process clauses of the Federal Constitution for any reason assigned.

5. The hauling of farm products by motor vehicles as referred to in paragraph 16 of the petition, and the requirements as to giving bond as therein mentioned, are proper matters for classification; and the exemptions based on such classification do not render the act unconstitutional.

6. The court did not err in dismissing the petition on demurrer.

Error from Superior Court, Fulton County; E. D. Thomas, Judge.

Petition by the Aero Mayflower Transit Company against the Georgia Public Service Commission and another. To review a judgment dismissing the petition on demurrer, petitioner brings error.


The Aero Mayflower Transit Company, a foreign corporation, as owner and operator solely in interstate commerce of a large number of motor vehicles, instituted an action against the Georgia Public Service Commission and the comptroller general of this state, attacking the validity and constitutionality of the "Motor-Carrier Act" approved March 31, 1931 (Ga. L. Ex. Sess. 1931, p. 99 et seq.), and the "Motor Common-Carriers Act" approved August 27, 1931 (Ga. L. 1931, p. 199 et seq.), and particularly section 18 of each act. Among the allegations of the petition are the following: "That plaintiff is engaged solely in interstate commerce into, through, and from the State of Georgia, in the course of which it operates motor vehicles commonly called trucks, and transports only house and office furniture for its patrons from States outside the State of Georgia, to points in the State of Georgia, from points in the State to points in States outside of Georgia, and from points outside of Georgia through Georgia to points in other States. That plaintiff operates many of its motor vehicles empty through the State of Georgia; that plaintiff owns all of the motor vehicles used in the business, and its equipment consists of 50 vehicles of 3-ton rated net carrying capacity, 4 vehicles of 2-ton rated net carrying capacity, and 16 vehicles of 1 1/2-ton rated net carrying capacity. That all the motor vehicles of plaintiff are equipped with pneumatic tires. * * * The plaintiff is incorporated for the purpose of transporting for pay goods of such persons as it may desire to contract with, and under its charter it is authorized to do that kind of business, and plaintiff is engaged solely in interstate commerce as to its operations within the State of Georgia. Transportation is not offered by plaintiff to the general public or to any other persons than those with whom it contracts; and plaintiff is not a common carrier of goods, but is a contract carrier for hire under the provisions of the Motor-Carrier Act of 1931 as contained in Georgia Laws, Extraordinary Session 1931, pp. 99 through 114, and the Motor Common-Carriers Act of 1931 (Georgia Laws 1931, pp. 199 to 213) has no application to plaintiff; but defendants contend that the latter act is applicable to plaintiff." Other allegations set forth amounts collected through registration and license fees for the years 1931, 1932, and 1933, and charged that the amount so collected "had been expended by November 9, 1933, in administering the regulations of said acts," and that under the present budget for 1933 practically all the funds collected from the registration and license fees will be expended "in administering the acts for the balance of the year 1933."

The petition as amended contained also the following: "That in the operation of its interstate business for the balance of the year 1933, plaintiff will send into, through, or from the State of Georgia in interstate commerce at least 12 motor vehicles which have not heretofore during the year 1933 operated within the State of Georgia; that defendants

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will collect registration fees of $25 upon each of said vehicles to be operated by plaintiff in interstate commerce within the State of Georgia for the balance of the year 1933, unless defendants are enjoined in this proceeding; that based on past experience, and because of the satisfactory service rendered by plaintiff, it will operate in interstate commerce into, through, and out of the State of Georgia during the year 1934 at least 60 different motor vehicles, upon each of which vehicles defendants will collect a registration fee of $25...

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