Estes v. Perry

• Citation: 147 S.E. 370,167 Ga. 902
• Decision Date: 23 February 1929
• Docket Number: 6589.
• Parties: ESTES et al. v. PERRY et al.
• Court: Georgia Supreme Court

147 S.E. 370

167 Ga. 902

ESTES et al. v. PERRY et al.

No. 6589.

Supreme Court of Georgia

February 23, 1929

Syllabus by the Court.

The Georgia Public Service Commission succeeding, in virtue of the act of 1922 (Ga. L. 1922, p. 143), to the powers and authority of the Railroad Commission of Georgia, has not jurisdiction, under the provisions of sections 5 and 6 of the act of 1907 (Ga. L. 1907, p. 72), to regulate and control the business of common carriers other than classes of common carrier corporations specifically mentioned in those sections, and the powers so conferred do not extend to regulation of persons operating motorbusses on the highways of the state.

Error from Superior Court, Fulton County; John D. Humphries, Judge.

Action by N. B. Estes and others against J. A. Perry and others. Judgment for defendants, and plaintiffs bring error. Reversed.

Paul L Lindsay, of Atlanta, for plaintiffs in error.

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

ATKINSON J.

Sixteen natural persons and one corporation instituted a joint action against the members of the Georgia Public Service Commission to enjoin that body from exercising jurisdiction over the businesses, conducted separately by the several plaintiffs of operating over the public highways in the state, and between different towns and cities and over separate definite routes, certain lines of "motorbus" for the purpose of carrying passengers and goods for hire. The plaintiffs allege that the law defining the powers of the Public Service Commission does not confer jurisdiction to regulate their several businesses; that they do not hold themselves out as ready, willing, and able to transport any person who may present himself, or any goods that may be offered; but that each reserves and exercises the right of individual contract and of acceptance of only such persons and only such goods as he elects to transport. The foregoing states the case as made by the pleadings and evidence. The defendants did not introduce evidence. The exception is to a judgment refusing a temporary injunction.

It is declared in article 4, section 2, paragraph 1, of the Constitution of this state (Civil Code 1910, § 6463): "The power and authority of regulating railroad freights and passenger tariffs, preventing unjust discriminations, and requiring reasonable and just rates of freight and passenger tariffs are hereby conferred upon the General Assembly, whose duty it shall be to pass laws, from time to time, to regulate freight and passenger tariffs, to prohibit unjust discriminations on the various railroads of this State, and to prohibit said roads from charging other than just and reasonable rates, and enforce the same by adequate penalties." In 1879 the Legislature provided means for carrying this provision of the Constitution into effect, by creating the Railroad Commission of Georgia, and prescribing its powers and duties. Ga. Laws 1878-79, p. 125. In sections 3-10 of this act certain visitatorial powers were conferred upon the Railroad Commissioners over "railroad corporations." In section 12 it was declared: "That the terms 'railroad corporation,' or 'railroad company,' contained in this act shall be deemed and taken to mean all corporations, companies or individuals now owning or operating, or which may hereafter own or operate any railroad, in whole or in part, in this state, and the provisions of this act shall apply to all persons, firms and companies, and to all associations of persons, whether incorporated or otherwise, that shall do business as common carriers upon any of the lines of railroad in this state (street railways excepted), the same as to railroad corporations hereinbefore mentioned." This is contained in section 2642 of the Civil Code of 1910.

Thus far the jurisdiction of the commission over the businesses to be controlled was clearly limited to those of persons doing "business as common carriers upon any of the lines of railroad in this state (street railways excepted)." These, of course, would not extend to operators of motorbusses traversing the public highways. The law as embodied in the act of 1879 was amended (Acts 1908, p. 67; Acts 1919, p. 94), but these amendments did not purport to confer jurisdiction over any business which was not comprehended by the act of 1879. The first act extending the jurisdiction as declared by the original act of 1879 was the act approved October 21, 1891 (Ga. Laws 1890-91, vol. 1, p. 151). By this act the visitatorial powers of the commissioners were extended to all companies or persons owning, controlling, or operating lines of express or telegraph. The operation of motorbusses palpably would not fall under this provision. The act was again amended (Ga. Laws 1905, p. 120), but this did not purport to extend the jurisdiction of the commissioners over persons, where it had not been conferred by the previous acts.

The next amendment was the act of 1907 (Ga. Laws 1907, p. 72). This act, among other things, related to extension of the jurisdiction of the Railroad Commission, and will be referred to presently. The act was subsequently amended by the act approved August 21, 1922 (Ga. Laws 1922, p. 143). This act changed the name to Georgia Public Service Commission, and conferred upon that body all the powers and jurisdiction theretofore devolving on the Railroad Commission of Georgia. It remains to be seen whether the act of 1907 extended the jurisdiction so far as to include jurisdiction over operators of motorbusses such as the plaintiffs in this case. The caption of the act includes the statements: "To revise enlarge and more clearly define the powers, duties and rights of said commission; *** to extend its powers and jurisdiction over docks and wharves, terminal companies, cotton compress companies, *** railway terminals or terminal stations; over telephone or telegraphic companies *** operating any public telephone service; *** over street railroads; *** over gas and electric light and power companies, *** operating public gas plants, electric light and power plants furnishing power to the public." In part section 5 follows: "The powers and duties heretofore conferred by law upon the Railroad Commission are hereby extended and enlarged, so that its authority and control shall extend to street railroads and street railroad corporations, companies or persons owning, leasing or operating street railroads in this state; *** over docks and wharves and corporations, companies or persons owning, leasing or operating the same; over terminals or terminal stations and corporations, companies or persons owning, leasing or operating such; cotton compress corporations or associations, and persons or companies owning, leasing or operating the same; and over telegraph...