Opinion
18544.
ARGUED APRIL 14, 1954.
DECIDED MAY 10, 1954.
Injunction. Before Judge Pharr. Fulton Superior Court. January 19, 1954.
Spence Grayson, Martin Sack, Eugene Cook, Attorney-General, Dudley Cook, Deputy Assistant Attorney-General, for plaintiffs in error.
Moise, Post Gardner, Harris, Chance McCracken, contra.
1. The provision of Code § 68-609 declaring that the Public Service Commission must consider the five matters therein enumerated is advisory only and, irrespective of what the evidence might be upon the subjects there mentioned, the commission may grant or deny a Class "B" certificate without offending the law.
2. The 1950 amendment of the foregoing section is expressly limited to certificates over fixed routes, and has no application to Class "B" certificates.
3. It was error in the present case for the trial judge to enjoin the holder of a Class "B" certificate from operating thereunder, upon the theory that the evidence failed to show inadequacy of existing transportation service.
ARGUED APRIL 14, 1954 — DECIDED MAY 10, 1954.
Petroleum Carrier Corporation, which was the holder of a Class "B" certificate, authorizing it to transport petroleum products in bulk in tank trucks in this State, applied to the Georgia Public Service Commission for an additional certificate of public convenience and necessity, authorizing the transportation of asphalt and asphalt emulsion between all points in Georgia. The defendant in error, Davis Transportation Company, which was a holder of a Class "B" certificate, authorizing it to transport asphalt and asphalt emulsion in tank trucks from Savannah to all points in Georgia, appeared before the commission and opposed the granting of the application, but it was granted by the commission. The defendant in error then filed a petition in equity in Fulton Superior Court against the commission and Petroleum Carrier Corporation, seeking to have the certificate declared void and to enjoin the carrier from operating under it.
The allegations of the petition as amended, which set out an entire copy of the evidence and testimony at the original hearing before the commission, in substance, are: that, under Code (Ann. Supp.) § 68-609, a finding was demanded against the issuance of the certificate, since the petitioner and other carriers were furnishing adequate service and had a surplus of equipment, and there was no inadequacy of service; that the grant of the certificate would affect petitioner financially, and that he was at all times ready, willing, and able to transport asphalt emulsion and to meet all demands for its transportation; that no notice was served upon him or given him that there was inadequacy of service; and that he was given no opportunity to remedy any inadequacy or supply any additional service, as required by Code (Ann. Supp.) § 68-609.
General and special demurrers were filed by both defendants, and their answer denied the material allegations and further alleged that the commission, in its discretion, determined that the certificate should be granted. One of the special demurrers was that the amended portion of the Code section, amended in 1950 (Code, Ann. Supp., § 68-609; Ga. L. 1950, p. 186), does not apply to Class "B" certificates operating over no fixed routes.
The case was submitted upon stipulations of the parties and the verified pleadings. An affidavit, submitted by the Chairman of the commission, was offered but excluded. All demurrers were overruled, and the court further ruled: that, even if the 1950 amendment to Code § 68-609 is not applicable to Class "B" certificates, nevertheless the law requires that the commission must consider whether existing transportation service of all kinds is adequate to meet the reasonable public needs; that the evidence before the commission disclosed "adequate and perhaps a surplus of transportation facilities and an ability to increase same if necessary to supply reasonable public needs"; and that there was " no evidence that transportation of all kinds was inadequate to meet the reasonable public needs," the commission failing to consider one of the essential elements necessary to authorize it to issue an additional certificate.
An interlocutory injunction was granted in favor of the petitioner against the defendant, Petroleum Carrier Corporation, enjoining it from operating under or through the certificate, and the exception here is to this judgment.
Code § 68-609 requires that the commission, in determining whether a certificate of public convenience and necessity shall be granted, "must consider the following: (1) whether existing transportation service of all kinds is adequate to meet the reasonable public needs." The judgment excepted to is based upon a finding by the trial judge that the evidence before the commission failed to show that existing transportation service was inadequate, and therefore the Public Service Commission was without authority to grant the certificate here involved. We think that the trial judge erred in thus construing the quoted provision of the Code section as being mandatory in limiting the power of the commission to those cases only where the evidence showed inadequate existing transportation service. The General Assembly obviously concurred in our view in this respect, else there would have been no need for the enactment of the 1950 amendment (Ga. L. 1950, p. 186). By that amendment the General Assembly provides: "No certificate or authority shall be granted . . . when the public convenience and necessity with respect to such route is being adequately served. . ." And it is further provided that no certificate or authority is to be granted to an applicant unless and until it shall be proved to the satisfaction of the commission that the service rendered over the said route is unsatisfactory to the public needs. A mere reading of the 1950 amendment discloses that it is expressly limited to certificates over fixed routes and is inapplicable to Class "B" certificates, which is the type here involved.
Each of the five specific subjects set forth in Code § 68-609, which the law says the commission must consider, is intended for the guidance of the commission and to define the fields in which the commission shall give consideration, but is, after all, merely advisory, irrespective of what the evidence might disclose in respect to each of the five subjects. The commission, as respects Class "B" certificates, is free to exercise its own judgment and to grant or deny the applications for such certificates.
The wisdom of the law as above construed is demonstrated by the facts in the present case. It appears in the bill of exceptions that the parties stipulated before the commission that this plaintiff in error, at the time the certificate here involved was issued, was, and had been for a number of years, the holder of a Class "B" certificate, authorizing it to transport petroleum and petroleum products in bulk in tank trucks; and that, while asphalt and asphalt emulsion are petroleum products, the commission erroneously, on October 17, 1949, ruled that the plaintiff in error's certificate did not authorize transportation of asphalt and asphalt emulsion. This court in Georgia Public Service Commission v. Smith Transfer Co., 207 Ga. 658 ( 63 S.E.2d 653) held that it was arbitrary and capricious for the Public Service Commission to undertake to construe a certificate that it had issued in a way to exclude therefrom products which the terms of the certificate clearly embraced. With this background before it, the Public Service Commission was merely correcting its own error when it issued the certificate here involved, which expressly authorized the transportation of products that the previous certificate of the plaintiff in error in fact embraced.
For the foregoing reasons, irrespective of whether or not the trial judge correctly analysed the evidence, it was error to grant the injunction.
Judgment reversed. All the Justices concur.