Georgia Public Service Commission v. Taylor , 172 Ga. 100 ( 1931 )

Atkinson, J.

1. “Injunction is an available remedy to enjoin 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, ante, 65.

2. “The motor-carrier act of 1929 is applicable alone to common carriers by automotor-veh'icles, and does not apply to private carriers of goods in such vehicles for hire 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, supra.

3. “Where a motor-vehicle operator is in fact an existing private carrier, the legislature can not 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. Hari-ison, supra.

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 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. 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 ofEers 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.” McIntyre v. Harrison, supra.

5. The evidence in this case, being substantially as indicated in the statement of facts, demanded a finding that the plaintiff was a private and not a common carrier. McIntyre v. Harrison, supra, and cit.; Steele v. McTyer, 31 Ala. 667 (70 Am. D. 516); Ingate v. Christie, 3 Car. & K. 61; The Cape Charles, 198 Fed. 346; The Dan, 40 Fed. 691; The Pawnee, 205 Fed. 333; Faucher v. Wilson, 68 N. H. 338 (39 L. R. A. 431, 38 Atl. 1002); Electric Supply Stores v. Gaywood, 100 L. T. N. S. 855; Watkins v. Cottell, 1 K. B. 10, 114 L. T. N. S. 333; Chattock v. Bellamy, 64 L. J. Q. B. N. S. 250. Consequently the motor-carrier act of 1929, supra, was not applicable to the business in question.

6. The judge did not err in granting the temporary injunction.

7. Having held that the act was inapplicable to the business in question, it becomes unnecessary to rule upon questions other than those dealt with in the foregoing notes.

Judgment affirmed.

All the Justices concur, except Bussell, G. J., and Gilbert, J., who dissent, and Beck, P. J., absent for providential cause.