Southeastern Greyhound Lines v. Georgia Public Service Commission

• Decision Date: 16 September 1935
• Docket Number: 10620.
• Citation: 181 S.E. 834,181 Ga. 75
• Parties: SOUTHEASTERN GREYHOUND LINES v. GEORGIA PUBLIC SERVICE COMMISSION et al.
• Court: Georgia Supreme Court

181 S.E. 834

181 Ga. 75

SOUTHEASTERN GREYHOUND LINES v. GEORGIA PUBLIC SERVICE COMMISSION et al.

No. 10620.

Supreme Court of Georgia

September 16, 1935

Syllabus by the Court.

The Court of Appeals certified to this court the following question: "Where a certificate of public convenience and necessity has been granted by the Georgia Public-Service Commission to a motor common carrier, under and subject to the provisions of the motor common-carrier act of 1931 (Laws 1931, p. 199), to operate a passenger, baggage, and express service by motor vehicles over a specific route between named cities in this State; and thereafter, by order of the commission, after a hearing had pursuant to a rule nisi issued by the public-service commission, calling upon such motor common carrier to show cause why such certificate of public convenience and necessity should not be revoked and canceled because of the carrier's failure 'to operate passenger bus service under said certificate of public convenience and necessity,' such certificate is revoked and canceled because, in the opinion of the commission, the evidence adduced before them at such hearing showed that such motor common carrier had abandoned the passenger service along the route in question, has the motor common carrier whose certificate of public convenience has thus been revoked and canceled by the public-service commission, the right to review such judgment or order of the public-service commission by the writ of certiorari in the superior court having jurisdiction?" The question is answered in the negative.

Certified Question from Court of Appeals.

Proceeding between the Southeastern Greyhound Lines and the Georgia Public Service Commission and others. To review the judgment the first-named party brought error to the Court of Appeals which certifies a question.

Question answered.

RUSSELL C.J., and BELL, J., dissenting.

Edgar Chambers, Jr., and Haas, Gambrell & Gardner, all of Atlanta, R. W. Keenon, of Lexington, Ky. and N. F. Culpepper, of Greenville, for plaintiff in error.

M. J. Yeomans, Atty. Gen., J. J. E. Anderson and Geo. L. Goode, Asst. Attys. Gen., Arthur Heyman, Heyman & Heyman, and John A. Boykin, Sol. Gen., for defendants in error.

GILBERT Justice.

The Court of Appeals certified to this court the question quoted in the headnote above. It may be urged that under the act of 1931 (Ga. Laws 1931, p. 199) the right of review by certiorari may be invoked in such a case under section 16 which provides: "In all respects in which the Commission has power and authority under this Act, proceedings may be instituted, complaints made and filed with it, process issued, hearings held, opinions, orders, and decisions made and filed; and any final order may be reviewed in any court of competent jurisdiction of this State under the conditions and subject to the limitations as now prescribed by law as relates to the Georgia Public Service Commission." It must be observed that there is no provision in that language for an unconditional review, but that it is to be under the conditions and subject to the limitations as now prescribed by law as relates to the Georgia Public Service Commission. By this nothing is added to any right that might already exist to review by certiorari a finding of the Public Service Commission. The precise question has not heretofore been before this court, and for a survey of the decisions of other jurisdictions many cases have been examined, but, to recall the words of Omar Khayyam, we came out by the same door through which we entered. "The adjudications respecting the cases wherein the function exercised is of such a character that a certiorari will or will not lie are very numerous and not always harmonious." Throop on Public Officers, p. 765, § 802. The decisions of other jurisdictions do not afford much help, because they are governed by express statutory provisions as to review or appeal, and in a few cases the matter is determined by constitutional provision. We are to determine whether in this state, "subject to the limitations as now prescribed by law as relates to the Georgia Public Service Commission," the writ will lie. It is provided in article 6, § 4, par. 5 of the Constitution that the superior courts "shall have power to correct errors in inferior judicatories by writ of certiorari, which shall only issue on the sanction of the Judge," etc. Code of 1933, § 2-3205. It is not apprehended that any one will contend that by its mere creation the Public Service Commission became an inferior judicatory or court. But by statute the issuance of the writ became broadened, so that now "The writ of certiorari shall lie for the correction of errors committed by justices of the peace, corporation courts or councils, or any inferior judicatory, or any person exercising judicial powers, including the ordinary, except in cases touching the probate of wills, granting letters testamentary and of administration; also from the Supreme Court to the Court of Appeals as provided by section 2-3009." Code of 1933, § 19-101. (Italics ours.) From the question propounded by the Court of Appeals, we understand that the answer sought, as to the applicability of the writ, is as to a proceeding wherein the Public Service Commission has revoked a certificate of public convenience and necessity because, in the opinion of the commission, a motor common carrier has abandoned passenger service along a certain highway. If, therefore, in the hearing, pursuant to which the certificate was revoked, the commission was "exercising judicial powers," it would seem that it would lie. But if the Public Service Commission, in the circumstances suggested, was not exercising judicial powers, certiorari would not lie to review the finding of the commission. "The writ of certiorari lies to correct errors or restrain excesses of jurisdiction of inferior courts and officers acting judicially only. It will, therefore, not be issued to officers whose functions and duties are ministerial, executive or legislative and not judicial." Mechem on Public Offices and Officers, p. 666, § 1001. "The fact that a public agent exercises judgment or discretion in the performance of his duty does not make his action or his functions judicial." Id. p. 668, § 1005. See, also, Daniels v. Commissioners of Pilotage, 147 Ga. 295, 93 S.E. 887; City of Atlanta v. Blackman Health Resort, Inc., 153 Ga. 499, 113 S.E. 545; Bryant v. Board of Education of Colquitt County, 156 Ga. 688 (1, a), 119 S.E. 601. It is well settled that, in determining the nature of the action of public agents, the organic law and the constitutional divisions of authority, legislative, executive, and judicial, must be kept in mind. Unquestionably the jurisdiction of the commission over the highways of the state is regulatory, and was delegated by the General Assembly in the lawful exercise of its powers. Stephens v. Central of Georgia Ry. Co., 138 Ga. 625, 628, 75 S.E. 1041, 42 L.R.A. (N. S.) 541, Ann.Cas. 1913E, 609, in which Justice Hill furnishes an interesting discussion of such control. In McKinney v. Patton, 176 Ga. 719, 721, 169 S.E. 16, 17, in quoting from the provisions of the motor common carrier's act as to what must be considered in determining whether a certificate of public convenience and necessity should be granted, the court said: "By these and other provisions it appears that the statutes under consideration are regulatory in nature, and that all persons proposing to conduct the business of a motor carrier as defined thereby must submit themselves to the jurisdiction and control of the Public Service Commission." Section 3 of the Act of 1931 (page 200) provides: "The Commission is hereby vested with power to regulate the business of any person engaged in the transportation as a common carrier of persons or property, either or both, for hire, by motor-vehicle on any public highway in this State." The highways belong to the state. Stephenson v. Binford, 287 U.S. 251 (1), 53 S.Ct. 181, 77 L.Ed. 288, 87 A.L.R. 721. Users of them, even when engaged exclusively in interstate commerce, are subject to regulation by the state to insure safety, convenience, and the conservation of the highways. Aero Mayflower Transit Co. v. Georgia Public Service Commission, 179 Ga. 431, 439, 176 S.E. 487, affirmed by United States Supreme Court, 295 U.S. 285, 55 S.Ct. 709, 79 L.Ed. 1439. It is generally held that in the exercise of public functions subordinate boards or tribunals, though not created as courts, may at times exercise powers which are judicial and at other times powers which are administrative, executive, or political. A judge of a court of general jurisdiction may sometimes act only in a ministerial capacity. It is necessary to consider the nature of the act to determine whether or not judicial powers are exercised. "It is difficult, if not impossible, precisely to define what are judicial or quasi-judicial acts, and there is considerable conflict in the decisions in regard thereto, in connection with the law as to the right to a writ of certiorari. It is clear, however, that it is the nature of the act to be performed rather than the office, board, or body which performs it, that determines whether or not it is the discharge of a judicial or a quasi-judicial function." 11 C.J. 121, § 68. See, also, Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 227, 29 S.Ct. 67, 53 L.Ed. 150. Before making such an examination in the present case, it may be well to set forth definitions of "judicial powers" or "judicial action." "To adjudicate upon, and protect the rights and interests of individual citizens, and to that end to construe and apply the laws, is the peculiar province of the judicial department." Cooley on Constitutional Limitations,...