Opinion
21350.
ARGUED SEPTEMBER 13, 1961.
DECIDED OCTOBER 5, 1961.
Injunction, etc. Fulton Superior Court. Before Judge Whitman.
Watkins Daniell, Paul M. Daniell, Clyde W. Carver, for plaintiff in error.
Eugene Cook, Attorney-General, Ariel V. Conlin, Assistant Attorney-General, Sheldon C. Dorough, Deputy Assistant Attorney-General, James M. Collier, contra.
Where it appears that there was evidence before the Georgia Public Service Commission to support its conclusions that "the public interest requires such operation" it will not be enjoined from issuing a certificate of public convenience and necessity to an applicant to transport specified articles within a defined territory.
ARGUED SEPTEMBER 13, 1961 — DECIDED OCTOBER 5, 1961.
After a hearing before the Georgia Public Service Commission on an application of Denver E. Short, Jr., for a certificate of public convenience and necessity to operate as a Class "E" motor contract carrier of certain specified commodities over no fixed route, J. M. Transportation Co., Inc., the holder of a Class "B" certificate, which operates in most of the territory in which Short sought to be issued a certificate, and who objected to the issuance of the certificate to Short on the grounds that much of its equipment was idle and the lack of sufficient business had caused it to lay off about one-third of its employees, the issuance of another application in the area would impair its operations because of loss of business, and the existing transportation in the area was adequate, filed an equitable petition seeking to enjoin the commission from issuing the certificate and Short from operating under the certificate in the area where Short's operation would duplicate the petitioner's operations. The petition alleged that after a hearing the commission had acted favorably on Short's application but as yet the certificate had not been issued; and that the commission had acted arbitrarily, capriciously and contrary to law and abused its discretion without evidence to support it in acting favorably on Short's application insofar as it duplicates petitioner's authority. After a hearing in which both sides presented evidence, the lower court refused to grant an interlocutory injunction, and the exception is to that judgment.
The evidence was, in substance, the same as that presented before the commission at the time of its hearing on the matter, and the sole question presented is whether or not in considering such evidence the commission acted arbitrarily, capriciously and contrary to law in issuing the certificate. In brief, there was some evidence showing that the businesses which the applicant would serve were seasonable, requiring deliveries of farming equipment and supplies to many farming areas in which heavy transportation equipment of motor common carriers could not operate because of unsafe bridges on many country roads; that the services of the applicant were immediately available to them for delivery to farmers because his business was close to theirs; and that these businesses had been using the services of the applicant under other contract arrangements, and there would be no loss to other carriers as these businesses had not been using other motor common carriers or the objecting carriers in delivering to their customers and using Short's services in their business operations. There was other evidence showing that the transportation, other than the above, was adequate in the area.
The broad discretion conferred upon the Public Service Commission by Code Ann. Ch. 68-5 (Ga. L. 1931, Ex. Sess., p. 99; 1931, p. 199; 1933, p. 198; 1937, p. 727; 1939, p. 207; 1943, p. 179) is essential to a proper administration of that law, and courts will not interfere with orders of the commission unless it is shown that they were not rendered in the exercise of discretion but rather are arbitrary, unreasonable and capricious. Hudspeth v. Hall, 113 Ga. 4 ( 38 S.E. 358, 84 ASR 200); Ga. Public Service Comm. v. Ga. Power Co., 182 Ga. 706 ( 186 S.E. 839); Ga. Public Service Comm. v. Smith Transfer Co., 207 Ga. 658 ( 63 S.E.2d 653); Atlanta Motor Lines v. Ga. Public Service Comm., 211 Ga. 698 ( 88 S.E.2d 387).
The provisions of Code Ann. § 68-504(f) (Ga. L. 1931, Ex. Sess., p. 99; 1931, p. 199; Code of 1933), are in all respects the same as the provisions of Code Ann. § 68-609 (Ga. L. 1931, p. 199; 1950, p. 186) with respect to the enumerated five elements that the commission must consider. Therefore, the decisions of this court in Petroleum Carrier Corp. v. Davis, 210 Ga. 568 ( 81 S.E.2d 805); Woodside Transfer c. Co. v. Ga. Public Service Comm., 212 Ga. 625 ( 94 S.E.2d 706); and Tamiami Trail Tours, Inc. v. Ga. Public Service Comm., 213 Ga. 418 ( 99 S.E.2d 225); all dealing with Code Ann. § 68-609, supra, are directly applicable and controlling on the construction of Code Ann. § 68-504(f), supra. Both sections add to the five enumerated considerations the following: "among other things." This quoted provision can not be ignored, and its proper recognition requires a construction that the commission's judgment need not rest upon any or all of the five fields enumerated. Both Code Ann. § 68-504, which relates to "motor carriers" and Code Ann. § 68-609, which relates to "motor common carriers" require the procurement of a certificate of public convenience and necessity from the Public Service Commission after a hearing pursuant to findings by the commission to the effect that "the public interest requires such operation." The public interest, while embracing the five elements above discussed, yet comprehends much more. And when, as in this case, it appears that the commission had evidence authorizing it in the exercise of its discretion to issue the certificate applied for to operate a Class "E" motor contract carrier of specified commodities within a defined territory, the trial judge did not err in refusing to enjoin the commission or the applicant as prayed.
Judgment affirmed. All the Justices concur.