Opinion
30320.
DECIDED FEBRUARY 16, 1944.
Damages; from McDuffie superior court — Judge Perryman. September 18, 1943.
Bussey, Fulcher Hardin, T. Reuben Burnside, Stevens Stevens, for plaintiffs in error. Randall Evans Jr., Jack D. Evans, Hull, Barrett, Willingham Towill, contra.
1. It is permissible, in a proper case of facts, in the same petition, to allege negligence based on a violation of a regulation of the Public Service Commission, the violation of a municipal ordinance, the violation of a State law, as well as acts of negligence based on the common law. The court did not err in overruling the general demurrer to the petition as amended.
2. ( a) The constitution confers, on appeal, exclusive jurisdictional authority in the Court of Appeals, to pass upon the constitutionality of a regulation of the Public Service Commission based upon the legislative act creating such body. Such regulation has the effect of law, but is not, under our constitution, a "State law" within the meaning of the constitution, which gives exclusive jurisdiction on appeal to the Supreme Court to pass upon the constitutionality of a State law.
( b) This court has previously held that a regulation of the Public Service Commission, such as is now before us, is not unconstitutional. The court did not err in overruling the demurrer, or in overruling the objections to the amendment and the motion to strike it, for any of the reasons assigned.
DECIDED FEBRUARY 16, 1944.
On May 11, 1943, Claude Adams May filed suit in the superior court of McDuffie County against Reliable Transfer Company, its driver, James Hardaway, its insurance carrier, Liberty Mutual Insurance Company (and also against General Accident Fire Life Insurance Company, as its alleged insurance carrier, who was dismissed), and George A. Rheman Company Inc., and its driver. Clinton Tompkins Ouzts, its insurance carrier. American Fidelity and Casualty Company, and S. A. Blanchard, for injuries received on November 28, 1942, while he was riding as a patient in the ambulance of S. A. Blanchard when it collided with a truck of George A. Rheman Company Inc. at the intersection of State Highway No. 78 (Hill Street) and State Highway No. 17 (Jackson Street) in Thomson, Georgia. One of the causes of the collision was alleged to have been the negligence of Reliable Transfer Company, in that it had one of its trucks parked at the intersection in such way as to obscure the view of the driver of both of the colliding vehicles.
The allegations of the petition were as follows: "That early on the morning of November 28, 1942, and before daylight, Claude A. May was attacked with a sudden illness which, on the advice of his physician, necessitated his being immediately carried to the hospital at Washington, Georgia, for emergency treatment; and S. A. Blanchard, who was engaged in furnishing ambulance service to patrons in McDuffie and the surrounding counties, was called; that said S. A. Blanchard sent his ambulance to plaintiff's home, in the charge of said S. A. Blanchard's agent and employee, to wit, Gordon Dunn; that plaintiff was placed in the ambulance by Gordon Dunn and another employee of the said S. A. Blanchard, to wit, Carl Gallahar; that said Gordon Dunn proceeded to drive the ambulance towards Thomson, which was about three miles or less from plaintiff's home, and Thomson being between plaintiff's home and Washington, Georgia; that Carl Gallahar sat down in the back part of the ambulance where plaintiff was riding; that the lawful rate of speed inside the city limits of Thomson is 20 miles per hour; that plaintiff attaches hereto a copy of the ordinance of the City of Thomson as to the lawful speed limit; and especially pleads and relies on same; that the city ordinance of Thomson provides that all automobiles on Jackson Street in said city shall have the right of way over automobiles on intersecting streets, and that it is the duty of automobiles on streets which cross or intersect Jackson Street to slow down or stop in order that automobiles on Jackson Street may proceed to have the preference of the right of way, and that plaintiff especially relies on and pleads said ordinance; that as the ambulance reached Jackson Street, the driver proceeded to turn on his siren alarm, but as he approached the intersection of Hill Street, which is the Augusta highway, commonly called "the traffic-light intersection," he was driving said ambulance at a speed in excess of the speed which is allowed by the city ordinance of Thomson, as above specified; that is, he was driving in excess of 20 miles per hour; that as the ambulance approached the traffic-light intersection at Hill Street a large truck, owned by the Reliable Transfer Company, was standing in the street at said intersection in such a manner that it was headed toward Atlanta opposite and near to Johnson's filling station, and was standing about 12 feet from the curb so that it was partly in the street, and at the time said truck was under the control and operation of James Hardaway, the agent and employee of the Reliable Transfer Company; that said truck was a large one with a body about 40 feet in length, coupled with the front part of the truck, and about 12 feet in height; that it was standing in such a manner as to form a partial blockade of vision of the Augusta highway as respected a driver approaching from Augusta on Hill Street; that as the ambulance approached the traffic light, said light was not operating, it being customary to have it turned off during the hours from midnight until dawn; that as the ambulance approached the traffic-light intersection, another vehicle, being a large gasoline truck, owned by the defendant, George A. Rheman Company Inc., driven by its agent and employee, Clinton Tompkins Ouzts, approached from the direction of Augusta along Hill Street; that said truck was traveling at a rapid rate of speed of approximately 65 to 70 miles per hour, in excess of the State speed law; that as said ambulance and said gasoline truck approached said intersection, the vision of the driver of each vehicle was partially obscured as to the traffic on the approaches from Augusta and Jackson Street, that is, the ambulance driver could not see clearly as to whether any traffic was approaching on Hill Street, and the gasoline-truck driver could not see clearly as to whether any traffic was approaching from Jackson Street; that nevertheless each driver proceeded across the intersection, that is attempted to cross, and a collision of the ambulance and gasoline truck resulted; that the gasoline truck struck the ambulance with such force that it was turned over several times, and Carl Gallahar was killed, and this plaintiff was seriously, painfully, and permanently injured. Plaintiff alleges that S. A. Blanchard is responsible for the acts of negligence on the part of Gordon Dunn, that the George A. Rheman Company Inc., is responsible for the acts of negligence of Clinton Tompkins Ouzts, and the Reliable Transfer Company is responsible for the acts of negligence of James Hardaway; and he alleges that each of these parties acted as agents for their employers in this case, and that the acts of negligence were committed while acting within the scope of their employment, and in pursuance thereof; that the George A. Rheman Company Inc. and Clinton Ouzts committed the following acts of negligence which are acts of negligence proximately causing the collision and plaintiff's injuries, to wit: (a) In driving his truck at a rate of speed in excess of the city ordinance as to speed limits, and in excess of the limit allowed by the law of Georgia, and at a rate of speed that was too great to be reasonable and safe, having regard for the character of the intersection; (b) in proceeding to try to negotiate said intersection without being able to see to his left-hand side, and without knowing that the street to his left was clear of approaching traffic; (c) in trying to negotiate said intersection when the siren on the ambulance was making enough noise as a warning for him to hear, and which he did hear unless his hearing was impaired or unless he had the glasses of the cab closed so tightly that he could not hear, or unless he was asleep or partly asleep; (d) in failing to observe the law of the City of Thomson with regard to allowing traffic on Jackson Street to have the preference, or right of way over traffic on other streets which cross or intersect Jackson Street; and in failing to slow his truck down, or bring it to a complete stop if necessary, to allow the ambulance to have the right of way; (e) in failing to apply his emergency brakes and slow the speed of his truck down, after he did observe the approaching ambulance, so as to soften the force of the blow; that Gordon Dunn, acting as the agent and employee of S. A. Blanchard and in the scope of his employment, owed more diligence to protect said Claude May from injury than slight diligence, that the said Claude May was a paying passenger, and he was entitled to ordinary diligence, and that said Gordon Dunn committed the following acts of ordinary negligence which proximately caused the collision and plaintiff's injuries to wit: (a) he drove the ambulance inside the city limits of Thomson on Jackson Street in excess of 20 miles per hour in violation of the city speed limit; (b) he proceeded to attempt to cross said intersection when the way and road to his right-hand side was not clear, and when he did not know whether traffic was approaching from Augusta or not."
It was further alleged that James Hardaway, acting as agent and employee of the Reliable Transfer Company, committed the following acts of negligence which proximately caused the collision and plaintiff's injuries, to wit: "(a) In leaving a large truck 40 feet long and 12 feet high parked at the intersection of two public streets and highways in such manner as to obstruct the view of traffic drivers from Augusta on Hill Street towards the intersection; (b) in leaving said truck parked approximately 12 feet from the curb on towards the center of the street, so that it was parked nearer to the left-hand side of the street in the direction that it was headed than to the right-hand side of the curb."
The plaintiff alleged that all of the acts charged as negligence in the foregoing paragraphs and subsections thereof were actually committed by the parties named therein; that Jackson Street was a public highway, leading from Athens by Washington to Thomson, Wrens (or Stapleton), and to Jacksonville; that Hill Street was a public highway leading from Augusta to Atlanta; that the intersection of said streets is where the collision in this case occurred, and was inside the City of Thomson; that the negligence of the Reliable Transfer Company and James Hardaway, the negligence of S. A. Blanchard and Gordon Dunn, and the negligence of George A. Rheman Company Inc. and Clinton Tompkins Ouzts, was the proximate cause of the collision and of the plaintiff's injuries; that the negligence of all of said parties combined to bring about the collision and the plaintiff's injuries; and that by reason of the foregoing allegations the plaintiff was injured and damaged in the sum alleged.
The defendant demurred on the ground that the petition set out no cause of action. On May 15, 1943, before this demurrer was passed on, the plaintiff amended his petition. The amendment was allowed subject to demurrer. The allegations of the amendment are substantially as follows: "That rule 19 of the rules and regulations issued by the Georgia Public Service Commission on safety for motor carriers, as authorized by the laws of Georgia, provides: `No motor vehicle, except in case of emergency, shall be stopped, its speed suddenly decreased, nor its course of direction changed, unless the driver thereof shall have exercised due caution to ascertain that such acts can be performed without endangering other users of the highway.' That rule 35 of the rules and regulations issued by Georgia Public Service Commission on safety for motor carriers, as authorized by the laws of Georgia, provides: Whenever any motor vehicle is parked or stopped on the highway within a business or residence district of a municipality, whether attended or unattended, during the times mentioned in rule 34, at least one white or amber light shall be displayed on the traffic side of the motor vehicle, visible from a distance of 500 feet to the front of the motor vehicle, and at least one red light visible from a distance of 500 feet to the rear; provided, that headlights, if used, shall be dimmed or depressed.' That the truck of Reliable Transfer Company did not have the lights provided for in the foregoing rule 35; and that had said truck been lighted as aforesaid, Gordon Dunn and Clinton Tompkins Ouzts could have seen said lights before they reached the intersection, and that said failure to have said lights burning was negligence on the part of said James Hardaway and the Reliable Transfer Company, against S. A. Blanchard and against the George A. Rheman Company and Clinton Tompkins Ouzts, and said negligence was one of the proximate causes of the collision; that the collision happened in the nighttime, when it was dark; that the Reliable Transfer Company truck was not stopped in an emergency, but was stopped without the driver thereof, to wit, James Hardaway, exercising caution to ascertain that such stopping would not endanger other users of the highway, and the Blanchard ambulance and the Rheman truck in particular, and in fact said stopping of said truck as it was stopped and at the place where it was stopped, did endanger users of the highway and the Blanchard ambulance and its occupants and the Rheman truck and its occupants in particular; and said act was negligence on the part of Reliable Transfer Company and James Hardaway, and was one of the proximate causes of the collision; that said collision took place at an intersection inside the city limits of Thomson, but not at a place where traffic is obliged to move in one direction only; and that the said Reliable Transfer Company's truck was not parked as near to the right side of the highway as practicable, but was about 12 feet from the right side of the highway; and if said truck had been parked near to the right side of the highway, or within one or two feet of same, then the said Gordon Dunn and Clinton Ouzts could have seen each other sooner than they did, and may have thus been enabled to avoid the collision; and the said act of Reliable Transfer Company and James Hardaway in failing to have said truck parked as near to the right-hand side of the highway as practicable was negligence proximately causing the collision. Plaintiff alleges, on information and belief, that the headlights on the Reliable Transfer Company's truck were in use and were lighted; and were not dimmed and repressed as provided for in rule 35 aforementioned, and that said lights tended to blind Clinton Ouzts, and tended to prevent his knowing that the Blanchard ambulance was approaching the intersection from the direction of Wrens, on Jackson Street; and had he seen and known the Blanchard truck was coming earlier, this would have helped him to avoid colliding with the Blanchard ambulance; and plaintiff alleges that this act of negligence on the part of Reliable Transfer Company was negligence proximately causing the collision; Clinton Ouzts was not familiar with the lay of the land at the traffic intersection where the collision occurred, and the act of Reliable Transfer Company in placing its truck in a position where it prevented Clinton Ouzts from having a clear, unobstructed view to his left and down Jackson Street was negligence on the part of James Hardaway and the Reliable Transfer Company; and had he been able to see down Jackson Street and to see the approaching Blanchard ambulance, though otherwise negligent, the said Ouzts still could have applied his brakes and swerved to the right or left so as to avoid colliding with said ambulance; and said negligence on the part of Reliable Transfer Company was negligence proximately causing the collision; that the truck of Reliable Transfer Company was headed in the direction of Augusta, in a northeasterly direction, at the time of the collision, instead of in the direction as alleged in the 11th paragraph of the original petition; that the negligence named in this amendment, as well as the negligence named in the original petition, and each and every act of negligence, all combined to form the proximate cause of the collision, and the collision was the result of the combined negligence of all parties charged with negligence in this amendment and in the original petition."
After the amendment was allowed the defendants renewed their demurrer to the petition as amended, and demurred to, objected to, and moved to strike the amendment; paragraph two of the demurrer, objections, and motion to strike being as follows: "Defendants demur, object to, and move to strike from said amendment all reference to the rules and regulations of the Georgia Public Service Commission upon the ground that the rules and regulations of the Georgia Public Service Commission can not supersede the laws of Georgia of force and applicable to the operation of motor vehicles; and further that so much of the motor common-carrier act of 1931 (Georgia Laws of 1931, page 199 et sequitur), as set forth in the Code of Georgia for 1933, Sec. 68-603, Sec. 68-627, and Sec. 68-629, is unconstitutional being in violation of art. 3, sec. 1, par. 1, of the constitution of the State of Georgia (Code of Georgia for 1933, Sec. 2-1201), in that said parts of said law attempt to delegate to the Georgia Public Service Commission the power to legislate, and all rules and regulations issued pursuant to said law are void." Paragraphs three and four were as follows: "3. Defendants demur, object to, and move to strike said amendment in its entirety because it appears from the petition and the amendment that the alleged acts of negligence against defendants, set forth in said amendment, were not the proximate cause of the collision and alleged resulting injuries. 4. Defendants renew their demurrer, with the proffered amendment, because said petition with the amendment fails to state a cause of action against defendants."
The demurrer to the petition as amended and the objections to the amendment and the motion to strike the amendment were overruled.
1. We will first discuss the question as to whether the court erred in overruling the defendants' general demurrer. As to this question the allegations of fact in the petition are very similar to the allegations of fact in Williams v. Grier, 196 Ga. 327 ( 26 S.E.2d 698). Since the facts in the Williams case were discussed specifically and at length in that opinion, we have set out somewhat in detail the allegations of fact in the instant case. It is contended by counsel for the defendants that the Williams case is to be differentiated from the instant case, in that, (a) in paragraph 9 of the Williams case, habitual careless and negligent parking at a street intersection was shown; (b) the truck obstructed the view; (c) the streets were heavily used both day and night; (d) motor vehicles were frequently driven at high rates of speed thereon; (e) the defendants knew that the streets were so used, or by the exercise of due prudence and care should have known thereof. It is contended that no such use of the street is set out in the instant case, and therefore no "foreseeability" is chargeable to the operators of the vehicles in the instant case, as was alleged in the Williams case. Boiled down, this contention on the part of the defendants is to the effect that the present petition does not allege such facts of negligence as could have been anticipated by them, and therefore no liability is shown. In support of this view counsel cite the following from the Williams case (page 338): "Counsel rely on Andrews v. Kinsel, 114 Ga. 390 (2) ( 40 S.E. 300, 88 Am. St. Rep. 25), in which it was held in effect that where there has intervened between the defendant's negligence and the injury an independent illegal act of a third person producing the injury, and without which it would not have occurred, such independent criminal act should be treated as the proximate cause, insulting and excluding the negligence of the defendant. But even this rule would not apply if the defendant `had reasonable grounds for apprehending that [such criminal act] would be committed.' Henderson v. Dade Coal Co., 100 Ga. 568 ( 28 S.E. 251, 40 L.R.A. 95); Hulsey v. Hightower, 44 Ga. App. 455 (4) ( 161 S.E. 664). See also Bozeman v. Blue's Truck Line [ 62 Ga. App. 7, 11]; 30 Am. Jur. 729, § 71; Restatement of the Law of Torts, 1196-1202, §§ 447, 448, 449. We have already stated that the allegations in the instant case were sufficient to show that the defendants should have anticipated or foreseen that some such injury might occur as a result of their own negligence in illegally parking the bakery truck; and this conclusion will stand even though it may appear that the negro driver was violating a criminal statute as to speed at a street intersection on the occasion in question. The more especially is this true in view of the averments in paragraph 9 as to heavy traffic and frequent high rates of speed at this intersection, which, it was alleged, were well known to the defendants, or should have been known to them. Fulton Ice Coal Co. v. Pece, 29 Ga. App. 507 (2 a) (116 S.E. 57)." While it may be true that the conclusions drawn from the facts in the Williams case may be different from those in the instant case, after a careful comparison of the petitions we are convinced that in so far as the doctrine termed "foreseeability" is concerned, the facts in the instant case are equally as strong as those in the Williams case. It is true that in so many words the knowledge of the dangerous results of the situation may not be as specifically pleaded as a conclusion, yet these features in the instant case are sufficiently pleaded to withstand a general demurrer. The petition (paragraph 33) alleged as follows: "That Jackson Street is a public highway, leading from Athens by Washington to Thomson, Wrens (or Stapleton), and to Jacksonville; and that Hill Street is a public highway leading from Augusta to Atlanta; and that the intersection of said streets is where the collision in this case occurred, and is inside the City of Thomson." It will be noted that the intersecting highways were designated and the cities and towns traversed were designated, and it was also alleged that the intersection of such highways was in an incorporated town. The character and nature of the motor vehicles involved in the collision were also alleged. These allegations are sufficient, if proved, to carry the case to a jury.
In the instant case the petition charged the defendants, at the time of the collision, with having violated the ordinances of the City of Thomson, the regulations of the Public Service Commission, and the laws of Georgia, as well as with negligence under the common law. This is permissible. Williams v. Grier, supra. Since we have set out the allegations of negligence, we will not repeat them here. The petition also charged that the driver of the gasoline truck which collided with the ambulance, as well as the driver of the ambulance, were guilty of negligence per se. On this point the court ruled in the Williams case as follows: "But the defendants themselves were violating a municipal ordinance; and this being true, it was incumbent upon them to anticipate that others, like themselves, might disobey traffic laws and regulations. Central Railroad Banking Co. v. Smith, 78 Ga. 694 (4) ( 3 S.E. 397); Davis v. Whitcomb, 30 Ga. App. 497 (8) ( 118 S.E. 488)." Therefore it would seem that from any viewpoint the instant case is controlled by the principles in the Williams case. Under the facts alleged, the contention that the instant case should be differentiated from the Williams case because in that case it was alleged positively that the view was blockaded, whereas in the instant case the allegations of fact only show a "partial" blockade of vision, or circumstances which "tended" to blockade the vision, is without merit. It must not be overlooked that the allegations of fact and the conclusions drawn therefrom in the instant case are to the effect that the negligence of all parties defendant, including the defendants here, combined to produce the proximate cause of the injury. See Atlanta, Birmingham and Coast Railroad Co. v. Loftin, 67 Ga. App. 601, 606 ( 21 S.E.2d 290). Therefore it follows, and we conclude as a matter of law, that when the allegations of the petition are construed most strongly against the pleader, they set forth a cause of action, and the court did not err in overruling the general demurrer.
2. We come next to consider whether the court committed reversible error in overruling the demurrer, the objections to, and the motion to strike paragraphs 1, 2, and 3 of the amendment. (a) It is contended that rule 19 of the Public Service Commission relative to stopping, increasing the speed of, or changing the course of vehicles, if valid, is for the benefit of vehicles following, and not applicable to vehicles on intersecting highways. It is contended that it does not appear from the petition just where the truck of the defendants was parked, and it does not affirmatively appear that the ambulance in which the plaintiff was riding was following the truck of Reliable Transfer Company; and that rule 35 of the Public Service Commission is not applicable because no one here involved under the allegations of the petition is of the class for whose benefit this regulation was made. While these contentions are true as abstract principles of law, we can not agree with able counsel for the defendants that they are applicable under the facts of the instant case. We are of the opinion that the petition sufficiently located the truck to invoke these rules, and if the evidence sustained such allegations, this would be a sufficient basis for recovery. (b) It is urgently contended by the defendants that the Code, §§ 68-603, 68-627, and 68-629 are unconstitutional and in violation of art. 3, sec. 1, par. 1 of the constitution of the State of Georgia (Code, § 2-1201), in that such sections attempt to delegate to the Public Service Commission the power to legislate, and that all rules and regulations pursuant to such laws are void. Counsel contends that this specific question has not been passed on by the Supreme Court of Georgia. Numerous decisions are cited, dealing with the question as to just how far, under the provisions of the State Constitution, the legislature can go in delegating its authority to a commission without violating such constitutional provision. The question before us is not so much the problem of how far the legislature may go in that field, but rather what authority this court has to determine as to the constitutionality of a rule passed by a commission to which such authority has been delegated. In Maner v. Dykes, 52 Ga. App. 715 ( 184 S.E. 438), a rule of the Public Service Commission was attacked. The point was there made that the rule "was [such] an unlawful delegation of authority upon the part of the legislature of the State of Georgia to the public Service Commission of the State of Georgia, and was therefore in conflict and violation of the provisions of article, 3, in conflict and violation of the provisions of article 3, section 1, paragraph 1, of the constitution of the State of Georgia, which provides: The legislative power of the State shall be vested in a General Assembly, which shall consist of a senate and house of Representatives.'" At that time this court, being of the opinion that the question thus raised involved a constitutional authority to deal, with which this court was without constitutional authority to deal, transferred the case to the Supreme Court. That court, in Maner v. Dykes, 183 Ga. 118 ( 187 S.E. 699), remanded the case to this court. In the opinion the Supreme Court gives us a clear and concise opinion as to the authority of the Court of Appeals to pass on the constitutionally of rules of the several commissions of this State and of city ordinances. The Supreme Court there expressly overruled the decision in Forbes v. Savannah, 160 Ga. 701 (2) ( 128 S.E. 806), and in so doing said: "In Forbes v. Savannah, . . this court in a full-bench decision held that `a municipal ordinance passed in pursuance of legislative authority has the force of law, when it does not violate the constitution of this State or the United States, or the laws of the land ( Bearden v. City of Madison, 73 Ga. 184), and is a law of this State,' and the Supreme Court, under the constitutional amendment of 1916, supra, has jurisdiction of a case in which the constitutionality of such an ordinance is attacked. Subsequently, in Thompson v. Atlanta, 176 Ga. 489 ( 168 S.E. 312), Elliott v. Augusta, 177 Ga. 680 ( 170 S.E. 787), and Stafford v. Valdosta, 178 Ga. 224 ( 172 S.E. 461), all full-bench decisions, a contrary ruling was made by this court." The Forbes decision was overruled on the ground that it erroneously held that a municipal ordinance "is a law of this State," and that the Supreme Court and not the Court of Appeals had authority to pass upon its constitutionality. Further quoting from the Supreme Court decision in the Maner case, it was stated: "Under the constitutional amendment of 1916, defining the jurisdiction of the Supreme Court and the Court of Appeals of this State (Ga. L. 1916, p. 19, Code, §§ 2-3005, 2-3009), the Court of Appeals has jurisdiction to decide questions of law that involve application, in a general sense, of unquestioned and unambiguous provisions of the constitution to a given set of facts, and that do not involve construction of some constitutional provision directly in question and doubtful either under its own terms or under decisions of the Supreme Court of the State or of the United States, and that do not involve the constitutionally of any law of the State or of the United States or any treaty. Gulf Paving Co. v. Atlanta, 149 Ga. 114 ( 99 S.E. 374); Dennard v. State, 176 Ga. 361 ( 168 S.E. 310). The rule of the Public Service Commission is not a `law of the State' within the meaning of that term as used in the provisions of the constitution defining the jurisdiction of the Supreme Court. This court has recognized the distinction between laws of the State and rules and regulations having the effect of laws. In Georgia Railroad v. Smith, 70 Ga. 694, 699, involving the constitutionality of an act of the legislature granting power to the Railroad Commission of this State to promulgate rules and regulations as to fair and reasonable rates to be charged by railroads, this court said: `The difference between the power to pass a law and the power to adopt rules and regulations to carry into effect a law already passed is apparent and strikingly great, and this we understand to be the distinction recognized by all the courts as the true rule in determining whether or not in such a cases a legislative power is granted.' It will be thus seen that the basic distinction which is applied in determining the constitutionally of such acts is whether the legislature delegates power to enact laws or merely power to make rules and regulations which have the force and effect of laws. It follows that rules and regulations of such commissions are not laws in the legal sense of the term." After the case had been remanded to the court of Appeals by the Supreme Court, this court, in Maner v. Dykes, 55 Ga. App. 436, 438 ( 190 S.E. 189), on the question before it decided in part: "( a) Such rule of the Public Commissions was not beyond its authority to promulgate (Code, §§ 68-603, 68-627, 68-629), and was not an unlawful delegation of authority on the part of the legislature of this State to the Public Service Commission. Neither was said rule in conflict with and a violation of the provisions of article 3, section 1, paragraph 1 of the constitution of this State, which provides that `The legislative power of the State shall be vested in a General Assembly, which shall consist of a Senate and House of Representatives.' Code, § 2-1201; Southern Ry. Co. v. Melton, 133 Ga. 277 ( 65 S.E. 665). ( b) The Public Service Commission is given authority to regulate the business of carrying freight for hire over the highways of this State. Code, § 68-603. The above rule of the commission was made and adopted by it pursuant to and in accordance with the provisions of the motor common-carrier act of 1931 (Ga. L. 1931, 199; Code, § 68-601, et seq.). This law is full and comprehensive in its terms, and leaves to the commission the working out of the details, which the commission has done by the passage of rules in compliance therewith." To our minds that clearly settles the issue adversely to the contentions of the defendants. We can not be impressed with the contention of counsel for defendants that the constitutional question has been raised here for determination that the legislative act creating the Public Service Commission is a violation of the constitutional provisions above set forth, any more in the instant case than in the Maner case, supra. Here, as there, we are dealing with the alleged unconstitutionality of a rule or regulation passed by the Public Service Commission, and not a law of the State, and as we would be in dealing with a city ordinance if that were before us and not with the constitutionality of the legislative act creating the charter. It seems to be well settled, both by the decisions of the Supreme Court and this court, that the Court of Appeals has authority to pass upon the constitutionality of an ordinance of a municipality, or of a regulation of the Public Service Commission. In Maner v. Dykes (55 Ga. App.), supra, we have passed adversely upon the contentions of the defendants in the instant case. We are requested to certify this particular question to the Supreme Court. Since in our opinion the Supreme Court has already held that the constitution of Georgia confers exclusive jurisdiction on this court to pass upon the constitutionality of a regulation of the Public Service Commission, on appeal, and since this court has passed upon the identical question in Maner v. Dykes, supra, and since we are of the same opinion now as then, we must decline to certify the question. From what we have said above, it follows that the court did not err in the judgment excepted to, for any reasons assigned.
Judgment affirmed. Broyles, C. J., and MacIntyre, J., concur.