McIntyre v. Harrison

157 S.E. 499, 172 Ga. 65, 1931 Ga. LEXIS 29

Opinions

Hines, J.

The plaintiffs seek to enjoin the Comptroller-general from collecting from them the tax imposed by section 31 of the act of August 29, 1929, which amended the general tax act of 1927, upon the ground that they do not fall within the provisions of said section, for the reason that they have not been granted a certificate of public convenience and necessity, permitting them to engage in the transportation of passengers or freight, or both, between fixed termini; and they further seek to enjoin the Georgia Public Service Commission from enforcing against them the provisions of the motor-carrier act of 1929, upon the ground that said act applies only to common carriers and not to private carriers, within which latter class they fall; and upon the further ground that if said act is held applicable to private carriers, it is unconstitutional and void, because it violates the due-process clauses of the State and Federal constitutions; and article 1, section 3, paragraph 1, of the constitution of this State, which declares. that “ Private property shall not be taken or damaged for public purposes, without just and adequate compensation being first paid;” and article 1, section 3, paragraph 2, which provides that “No .. . retroactive law, or law impairing the obligation of contracts, . . shall be passed;” and article 1, section 10, paragraph 1, of the Federal constitution, which declares that “No State . . shall pass any . . law impairing the obligation of contracts.”

We are met at the outset by the proposition, urged by the defendants, that the injunction prayed for by the plaintiffs was properly denied, for the reason that it does not appear that there has been any interference with the personal or property rights of the plaintiffs. Has a court of equity the power to enjoin the Public Service Commission from attempting to regulate and control the business of a class of carriers over which it has not been given the specific power of regulation and control, unless the parties complaining can show interference with their personal or property rights, other than the attempt of the commission to regulate and control the business of such class, and the threats to prosecute the plaintiffs, their agents and servants, for failure to comply with the' provisions of this act? The commission undertook to regulate common carriers by motor-vehicles who were engaged in the business of carrying passengers and goods for hire over the public highways of this State, under the law as it existed prior to the passage of the motor-carrier act of 1929. Certain persons engaged in this business filed their petition to enjoin the commission from exercising jurisdiction over such business, upon the ground that the commission had not been given power to regulate and control the business of common carriers by motor-vehicles. This court sustained this contention, and reversed the judgment of the court below declining to enjoin the commission from exercising this jurisdiction. Estes v. Perry, 167 Ga. 902 (147 S. E. 370). It was not made to appear in any way in that case that the personal or property rights of the complaining plaintiffs were in any way affected or injured otherwise than by .the attempt by the commission to exercise jurisdiction over their business. It may be said that the question whether injunction will lie to restrain the commission from undertaking to regulate a business over which the power of regulation had not been conferred on that body was not expressly decided in that case. This power, however, was necessarily assumed in that case.

But, independently oil that case, will injunctive relief be granted to restrain the commission from exercising control and regulation over a business, where the power to do so has not been conferred by law upon that body ? It is the right of every citizen of the United States to engage in any lawful calling, business, or profession which' lie may choose, subject only to such restrictions or regulations as are lawfully imposed upon persons engaging therein. The interest, or, as it is sometimes termed, the estate, acquired in such business or profession, that is, the right to continue their prosecution, is often of great value to the possessors, and can not be arbitrarily taken from them any more than their real or personal property can be thus taken; and no control or regulation thereoE can be imposed which is not authorized by law. Riley v. Wright, 151 Ga. 609, 613 (107 S. E. 857); Dent v. West Virginia, 129 U. S. 114 (9 Sup. Ct. 231, 32 L. ed. 623); Ex Parte Garland, 71 U. S. 333 (18 L. ed. 366); Ex Parte Robinson, 86 U. S. 505 (22 L. ed. 205). Any attempt to deprive a party of such right, which is of the nature of a property right, or to control or regulate the same in any manner not authorized by law, will be enjoined by a court of equity. Riley v. Wright, supra.

Where the commission actually promulgates rules which they propose and threaten to enforce, the question as to their power Ruder the law and the constitution to do this may be raigecl .and reviewed by the courts. Long v. Railroad Commission, 145 Ga. 353, 355 (89 S. E. 328). Equitable jurisdiction exists to restrain criminal prosecutions under unconstitutional enactments, where the prevention of such prosecutions is essential to safeguard the right of property. Tyson &c. Inc. v. Banton, 273 U. S. 418 (47 Sup. Ct. 426, 71 L. ed. 718, 58 A. L. R. 1236). Equity will likewise enjoin an unconstitutional enforcement of a constitutional statute. The plaintiffs in this case contend that they are private carriers and not public carriers, and that for this reason they are not subject to the provisions of the motor-carrier act of 1929. If the plaintiffs are private carriers, we shall undertake later in this opinion to show that they are not subject to regulation by the commission under this act. The defendants insist that the plaintiffs, whether they are common carriers or not, operate trucks in which they transport goods over the public roads of the State, and that as such operators of trucks they come under the motor-carrier act of 1929, and are subject to its provisions and to the rules and regulations promulgated by the commission for the enforcement of these’ provisions. The defendants further contend that the taxes, charges, regulations, and duties imposed by the motor-carrier act of 1929 are applicable to the plaintiffs in this case, as they are carriers of freight for hire over the public highways of this State; and they admit that they are endeavoring to compel intervenors to comply with said statute and pay the taxes, fees, and charges required under said statute. They deny, however, the allegations of plaintiffs that they are endeavoring to compel them to become common carriers, or to be regulated as such. In the 12th paragraph of their petition the plaintiffs allege that the defendants, their agents, officers, and employees have notified and threatened them that if they do not fully comply with the terms of said act and said rules and regulations, and pay the taxes and license charges provided thereby and become common carriers of freight and public utilities, they will be subjected to criminal prosecutions, and their property seized, levied upon, and sold to pay said taxes, fees, and charges. Plaintiffs further allege that the defendants are seeking to have them pay said taxes and charges, and to compel them to submit to said acts and rules and regulations by reason of said threats, or else to give up their businesses and lose their investments therein. The defendants in their answer neither admit nor deny the allega tions of this paragraph of the petition and the conclusions therein set up; hut they insist that plaintiffs are subject to the motor-carrier act of 1929.

If plaintiffs arc private carriers, then they are not subject to the motor-carrier act of 1929, as we shall undertake hereinafter to show; and in that event they would not be liable to control and regulation by the commission under that act. On the contrary, if they are common carriers, as the defendants insist, then they would be subject to control and regulation , by the commission under that act; but they would not be subject to that act if they were not common carriers. If the plaintiffs do not come within the provisions of the motor-carrier act by reason of the fact that they are private carriers, then they would be entitled to have the commission enjoined from exercising control and regulation of their business. In that case the attempt of the commission to subject them to its control and regulation would be such an interference with their business and their rights of property as would entitle them to injunctive relief. The operator of automobiles for hire, who is a private carrier suing to enjoin the commission from enforcing orders against him, is without remedy at law, and can enjoin such action on the part of that body. Bell v. Harlan, 20 F. (2d) 271. By parity of reasoning, such private carrier would be entitled to injunctive relief against the commission from undertaking to exercise control and regulation of his business under the motor-carrier act. If the private carrier would be entitled to injunctive relief as against the commission for enforcing regulatory orders against him under this act, he would be equally entitled to such relief to stop the commission from attempting to subject him to the provisions of this act, when it is the declared purpose of the commission to enforce the act and its rules and regulations against such private carrier. Section 15 of this act applies only to proceedings to review" final orders of the commission in matters in which the commission has pow"er and authority thereunder to act. It provides only for review of such final orders in matters over which the commission has jurisdiction.

But it is insisted that the majority of this court held to the contrary of what we now hold, in Bowden v. Georgia Public Service Commission, 170 Ga. 505 (153 S. E. 42). The facts of the present case differentiate it from that case. In the present case the facts show interference with plaintiffs’ rights. Besides, in that case the commission had not undertaken to require plaintiffs to comply with any particular provisions of the act. In this case the contrary is true. The defendants admit that they are undertaking and intending to require the plaintiffs to comply with the provisions of the motor-carrier act and with the various rules and regulations promulgated by that body to carry these provisions into effect. They deny that they are endeavoring to compel the plaintiffs to become common carriers, or to regulate them as public utilities; but they allege that the plaintiffs are common carriers. It necessarily follows from the above admission and denial, the former to the effect that the commission is endeavoring to enforce against the plaintiffs the provisions of the motor-carrier act and of their rules adopted to carry the same into effect, and the latter in effect that they are not endeavoring to regulate them as public utilities, that that body is endeavoring to control and regulate them as private carriers or private utilities. As we have seen, the plaintiffs allege that the commission, its agents, officers, and employees have notified them that if they do not fully comply with the terms of said act and the rules and regulations of the commission to carry the same into effect, and pay the taxes and license charges provided thereby, and submit to the control and regulation of that body, and become regulated as common carriers and public utilities, and become common carriers and public utilities, the plaintiffs, their officers, agents, and employees will be subjected to criminal prosecutions, arrests, and fines or imprisonment, and their property seized, levied upon, and sold to pay said taxes, fees, and charges. In their answer to this paragraph of the petition the members of the commission say that they can neither admit nor deny the above allegations, and the conclusions reached therein, but assert that the plaintiffs are subject to the motor-carrier act of 1929. These allegations are peculiarly within the knowledge of the members of the commission; and as they are not denied by them in their answer, they will be taken as true. Civil Code (1910), § 5637. Allegations in reference to a matter peculiarly within the knowledge of the defendants must be expressly denied, or they will be taken as admitted. Raleigh &c. R. Co. v. Pullman Co., 122 Ga. 700 (50 S. E. 1008). A mere statement that defendants can neither admit nor deny an allegation, without giving the reason therefor, is no answer, and is air admission under this section. Southern Bell Telephone &c. Co. v. Shamos, 12 Ga. App. 463 (77 S. E. 312); Moore v. Calvert Mortgage &c. Co., 13 Ga. App. 54 (78 S. E. 1097); Horne v. Peacock, 122 Ga. 45 (49 S. E. 722). So the allegations of this paragraph of the petition, other than the one that the commission is insisting that they become common carriers oí freight, must be taken as true. It thus appears that the commission is undertaking to control and regulate the businesses of the plaintiffs, whether they are common carriers or public utilities or not; and if they are without authority to do so, their attempt to control and regulate the businesses of the plaintiffs is without authority of law and is unlawful.

It can hardly be questioned that if the commission is transcending its authority in this matter, by attempting to enforce against the plaintiffs the provisions of this act and the rules and regulations adopted by it to put the same into effect, and is threatening to subject the plaintiffs, their officers, agents, and employees to the penalties provided by that act, a court of equity will enjoin the commission from so doing as an unwarrantable exercise of its power. The petition in this ease is not based upon a mere apprehension that the commission will do the things complained of; and does not fall within the ruling made in Cathcart Van & Storage Co. v. Atlanta, 169 Ga. 791 (151 S. E. 489). The plaintiffs were justified in taking the commission at its word that it would enforce and was attempting to enforce against them the provisions of this act, and its rules and regulations adopted to carry the same into effect. The present action is not a declaratory one, and does not fall within the ruling made in Southern Railway v. State, 116 Ga. 276 (2) (42 S. E. 508). Furthermore, the plaintiffs are seeking to enjoin the comptroller-general from undertaking to collect the tax imposed by section 31 of the act of August 29, 1929, which amended the general tax act of 1927, upon the ground that they are not liable to this tax under the facts of this case. Injunction will lie at the instance of any taxpayer, who has not estopped himself, to enjoin the sale of his property for the collection of an unauthorized tax. Green v. Hutchinson, 128 Ga. 379 (57 S. E. 353); Bibb National Bank v. Macon, 148 Ga. 478 (97 S. E. 72); Fulton Trading Co. v. Baggett, 161 Ga. 699 (131 S. E. 358). Injunction will lie to enjoin the collection of an unlawful tax under a city ordinance, the city having caused the arrest of the employee of the taxpayer on a penal charge of violating the ordinance, and threatening to rearrest him for such act of soliciting trade, and also to proceed by the issuing of executions against the employer for the amount of the tax. City of Albany v. Newark Shoe Co., 152 Ga. 557 (2) (110 S. E. 283). In that case execution had not been issued or levied, but only threatened. In the present case the comptroller-general admits that he intends to issue executions against the various plaintiffs for this tax, and that he will do so if not restrained.

By the great weight of authority, several taxpayers affected in a similar manner by an illegal tax or license fee may join in a proceeding in equity to restrain the enforcement of the tax and for such other relief as the nature of the case presented may require, provided it is common to all of them. Vanover v. Davis, 27 Ga. 354; Hewin v. Atlanta, 121 Ga. 723 (49 S. E. 765, 67 L. R. A. 795, 2 Ann. Cas. 296); Fairley v. Duluth, 150 Minn. 374, 185 N. W. 390, 32 A. L. R. 1258, 1266, and cit.) Injunction will lie to enjoin the collection of a tax under a statute which does not authorize its imposition, when the proceeding is brought by a number of persons against whom it is sought to enforce the tax, upon the eqrritable principle of avoidance of a multiplicity of actions. Vanover v. Davis, supra; Hewin v. Atlanta, supra; 26 R. C. L. 461, 462 (§ 416); Fairley v. Duluth, supra; Sherman v. Benford, 10 R. I. 559; Carlton v. Newman, 77 N. H. 408 (1 Atl. 194). Counsel for the comptroller-general insist that where the question involved is whether certain individuals belong to a class who are taxed, it is a question of fact for decision by the officer in charge of the collection of such tax, and not by the courts. They rely upon Bohler v. Schneider, 49 Ga. 196, and Decker v. McGowan, 59 Ga. 806. These two cases have been modified by the later decisions of this court. In Southwestern R. Co. v. Wright, 68 Ga. 311 (Aff. 116 U. S. 231, 6 Sup. Ct. 375, 29 L. ed. 626), it was held: “Where any ministerial officer of this State is attempting to collect money out of a person, natural or artificial, under the forms of law, but without any valid law to authorize the process he uses and calls an execution for taxes, it is the duty of the courts, in a proper case made, to arrest the proceeding in some of the modes known to the law, and afford relief to the party justly complaining.” The remedy by illegality is purely statutory, and is only available under circumstances provided by law. State v. Sallade, 111 Ga. 702 (36 S. E. 922). This remedy is confined to executions based upon judgments rendered by courts. Manning v. Phillips, 65 Ga. 54-9. Where no remedy is provided by statute, injunction is the proper remedy. Goldsmith v. Georgia R. Co., 62 Ga. 485; City of Atlanta v. Jacobs, 125 Ga. 523 (54 S. E. 534). The decisions relied on by counsel were reviewed and modified by this court in Webb v. Newsome, 138 Ga. 342 (75 S. E. 106), in which it was held that an equitable petition for injunction is an available remedy to resist the collection of a tax not authorized by law. This ruling was again followed in Goolsby v. Board of Drainage Comrs., 156 Ga. 213 (6 b) (119 S. E. 644). So we are of the opinion that injunction was the proper remedy to resist the enforcement by the comptroller-general of this tax, especially where such proceeding would prevent a multiplicity of suits. We are likewise o£ the opinion that injunction was the proper remedy to prevent the commission from undertaking to exercise jurisdiction over the business of the plaintiffs as private carriers, if such they be.

Are the plaintiffs liable for the tax imposed by section 31 of the act of August 29, 1929, which amends the general tax act of August 25, 1927, by adding thereto paragraph 114? This paragraph provides “There shall be collected by the comptroller-general from every auto transportation company, association, or individual, as defined hereinafter, to which has been granted a certificate of public convenience and necessity, which it or they are hereby required to obtain from the Public Service Commission of this State, permitting him, it, or them to engage in the transportation of passengers or freight, or both, between fixed termini, an occupation tax on a mileage basis of one quarter (1/4) cent per mile on all buses with a capacity of 10 passengers or less, and a mileage tax of one half (1/2) cent per mile on all buses with a capacity of not more than 20 passengers nor less than 10 passengers, and a mileage tax of three quarters (3/4) cent per mile on all buses with a capacity of more than 20 passengers; and a mileage tax of three quarters (3/4) cent per mile on all trucks with a loaded capacity of less than 5,500 pounds, and a tax of two (2) cents per mile on all trucks with a loaded capacity of 5,500 pounds or more, coming within the terms of this act, for every mile traveled by the motor- vehicles of such auto transportation company, association, or individual, over the public highways of %his State.” Ga. Laws 1929, pp. 58, 74. Are the plaintiffs liable to the payment of this tax? The doctrine is general that statutes levying taxes should be construed most strongly against the government and in favor of the citizen. Ansley v. Wilson, 50 Ga. 422; Johnson v. Christie, 64 Ga. 120; First M. E. Church v. Atlanta, 76 Ga. 183; Adair v. Ellis, 83 Ga. 467 (10 S. E. 117); Stewart v. Atlanta Beef Co., 93 Ga. 12, 19 (18 S. E. 981, 44 Am. St. R. 119). Applying this principle in the construction of the above provision of this act, it seems to be clear that the plaintiffs are not liable to this tax. In the first place, this tax is to be collected by the comptroller-general from “every auto transportation company, association, or individual, . . to which has been granted a certificate of public convenience and necessity.” None of these plaintiffs have been granted certificates of public convenience and necessity. Under the express terms of this statute this tax can only be collected from those to whom such certificate has been granted. In the second place, this tax can be collected only from auto transportation companies, associations, or individuals engaged in the transportation of passengers or freight, or both, between fixed termini. Statutes levying taxes on the inhabitants of this State will not be extended by implication. The plaintiffs were not engaged in transporting passengers or freight between fixed termini. These things being so, the plaintiffs are not liable to this tax. State v. McLemore, 155 Tenn. 59 (290 S. W. 386).

The plaintiffs contend that the motor-carrier act of 1929 is applicable alone to common carriers; and that as they are private carriers of goods for hire, over some of the public highways of this State, this act does not apply to them, and does not subject them to the supervision and control of the Public Service Commission of this State. So one of the questions for decision is this: Does this act apply to private carriers of goods for hire over the public highways of this State, outside of the incorporate limits of cities and towns therein, or is it applicable alone to common carriers of goods for hire over the public highways of this State? The caption of this statute is in part as follows: “An act to regulate the business of transporting for hire persons and property by motor-vehicles on the public highways of this State; to define motor- carriers, and. to subject them to the jurisdiction and regulatory powers ol: the Georgia Public Service Commission, also to the laws applicable to common carriers of goods and carriers of passengers; to prohibit the operation of vehicles by motor-carriers unless they obtain a certificate of public necessity and convenience.” The second section of this act defines a motor-carrier as follows: “The term ‘motor-carrier’ means every corporation or person owning, controlling, operating, or managing any motor-propelled vehicle (and the lessees, or receivers, or trustees thereof, appointed by any coxirt whatsoever) used in the business of transporting persons or property for hire over any public highway in this State, and not operated exclusively within the incorporated limits of any city or town.” The act makes some exceptions to this definition, to which it is unnecessary to refer for the purposes of this case. The above language of the caption of this act, the above definition of a “motor-carrier,” and section 3 of this act are very broad. Standing alone they might be held to embrace both common and private carriers, and to confer upon the Public Service Commission the power to regulate the business of any person engaged in the transportation of persons or property, either or both, for hire by motor-vehicles On any public highway in this State. But other provisions of this statute lead us. to the conclusion that it was not intended to embrace private carriers, and that its operation must be confined to common carriers alone. We will now consider some of these provisions.

Section 4 (a) of this act provides that no carrier shall, after the act goes into effect, operate withoxxt first obtaining from the Public Service Commission, after a hearing under its provisions, a certificate of public necessity and convenience, pursuant to a finding to the effect that the public interest requires such operation. Clearly this is a requirement which applies to common carriers and not to private carriers. The test whether such a certificate shall be granted is whether or not the applicant therefor is rendering public service, and whether such service is necessary. If the service to be rendered is a private and not a public service, no such certificate should be granted. A private carrier renders no public service, but private service. Abbott v. Public Utilities Comm., 48 R. I. 196 (136 Atl. 490); Mooney v. Tuckerman, 50 R. I. 37 (144 Atl. 891). Such a requirement is exacted of a common carrier, and is purely incidental to that status. The requirement does not apply to a private carrier as sucli, but to him only in his imposed statutory character of common carrier. Apart from that signification, so far as he is concerned, it does not exist. Frost &c. Co. v. R. Com. of Cal., 271 U. S. 583 (46 Sup. Ct. 605, 70 L. ed. 1101, 47 A. L. R. 457, 460). A private carrier engaged in transportation by motor-vehicle for certain persons or concerns, under contracts with them, is not subject to such requirement. The object and purpose of granting certificates of public convenience and necessity for the operation of motorbus lines is to subserve the convenience and necessity of the traveling public. Bartonville Bus Line v. Eagle Motor Coach Line, 326 Ill. 200 (157 N. E. 175). Casual service such as heretofore has been rendered under private contract is not the proper subject-matter of a certificate of public convenience and necessity. Lake Shore &c. Co. v. Commission, 115 Ohio St. 311 (154 N. E. 239). Persons hauling freight upon special independent contracts need not obtain certificate of public convenience and necessity. Carlsen v. Cooney, 123 Wash. 441 (212 Pac. 575); Davis v. Metcalf, 131 Wash. 141 (229 Pac. 2); Spokane Northwest Auto Freight v. Tedrow, 144 Wash. 481 (258 Pac. 31).

Section 5 of this act provides that “No certificate shall be issued or continued in operation unless the holder thereof shall give bond, with adequate security, for the protection, in case of passenger vehicles, of the passengers.and baggage carried, and of the public, against injury proximately caused by the negligence of such motor-carrier, its servants or agents, and, in cases of vehicles transporting freight, to secure the owner or person entitled to recover therefor against loss or damage to such freight for which the motor-carrier may be legally liable, and for the protection of the public against injury proximately caused by the negligence of such motor-carrier, its servants or agents.” Under the presumption that the legislature intends to keep within its power, a statute which provides for auto transportation companies to furnish insurance or bond to satisfy a recovery for injuries'to passengers or damage to property must be construed as applicable to common carriers alone. Bell v. Harlan, 20 F. (2d) 271. Imposing the obligation of furnishing an indemnity bond for damage to the property carried has, so far as a private carrier is concerned, no relation to public safety or order in the use of motor-vehicles upon the highways. Michigan Pub. Utilities Com. v. Duke, 266 U. S. 570 (45 Sup. Ct. 191, 69 L. ed. 445, 36 A. L. R. 1105). Such a requirement is a regulation under the police power, which can only be imposed on a public carrier as distinguished from a private carrier. Smallwood v. Jeter, 42 Idaho, 169 (244 Pac. 149).

By section 6 of this act it is made the duty of the commission to prescribe just and reasonable rates, fares, and charges for transportation by motor carriers of passengers, baggage, and property, and for all services rendered by motor carriers in connection therewith. This provision can only be constitutionally required in ease of public carriers. It is a power incident to the regulation of public carriers alone. “Unless the business in question is one which is public in character, it is not one which it would be due process of law to regulate to the extent of fixing its rates. And unless in the particular instance the business is being conducted upon a public basis, regulations to that extent of what is still a private affair would be equally improper.” “The business must be one in which the public has an interest, and at the same time one in which the proprietor has committed himself to the public.” Beale & Wyman on Railroad Rate Regulation, § 189; Humbird v. Com., 39 Idaho, 509 (228 Pac. 271); Story v. Richardson, 186 Cal. 162 (198 Pac. 1057, 18 A. L. R. 750); Interstate Commerce Com. v. Union Pacific Railroad Co., 222 U. S. 541 (32 Sup. Ct. 108, 56 L. ed. 308). A private carrier can make his own rates and choose his. own customers. Edgar Lumber Co. v. Cornie, 95 Ark. 449 130 S. W. 452); Piedmont Mfg. Co. v. Columbia R. Co., 19 S. C. 353; Brown v. Adams Express Co., 15 W. Va. 812, 820.

Section 12 of this act empowers the commission to fix and prescribe schedules for motor carriers operated thereunder. Evidently this provision is one which can be applied only to common carriers operating upon fixed routes and between definite termini. It would be practically impossible to prescribe schedules for private carriers. Other provisions of this act show clearly that it was not intended to. apply to private carriers. Furthermore, the history of this legislation confirms this construction. As we have seen, the commission undertook, under the act of 1907, to regulate common carriers who were engaged in the transportation of passengers or goods on the public highways of this State by motor-vehicles, and the commission was enjoined from so doing, upon the ground of lack of authority so to do. Estes v. Perry, supra. Thereupon the legislature passed the motor-carrier act of 1929. It is a familiar principle of law, that, in the construction of a statute, we must look to the old law, the evil, and remedy. The old law was that the commission was without authority to regulate motor-carriers who were engaged in the transportation of passengers or goods over the highways of this State. The evil was that such common carriers of passengers or goods should be regulated in the interest of the public welfare. To remedy this evil the legislature passed this act for the purpose of putting such common carriers under the jurisdiction and control of the Public Service Commission. So we are of the 'opinion that the motor-carrier act of 1929 was not intended to confer on the Public Service Commission the power to control and regulate the business of private carriers who are engaged in the transportation of goods or passengers by means of motor-vehicles.

But it is insisted by counsel that the State lias, by virtue of its control over its highways, the power to prescribe the conditions upon which persons may prosecute the business of transporting for hire property by motor-propelled vehicles, irrespective of whether such business is transacted by a private carrier or a public carrier. The State can prohibit the owners or operators of motor-vehicles from transporting passengers or property for hire therein over the highways of this State. The conduct of the business of a motor-carrier of passengers or property for hire over the highways of this State is a mere privilege, and not a natural or inherent right of the individual conducting such business. Being a privilege, it can be given or withheld. If the State determines that the use of the highways for private purposes in the usual and ordinary manner shall be preferred over their use by carriers for hire, there is nothing in the constitution of the United States or of this State which prohibits such action. The power to exclude altogether generally implies the lesser power to grant the right to use the public highways upon terms and conditions imposed by the legislature. Schlesinger v. Atlanta, 161 Ga. 148 (129 S. E. 861). As a general rule, the State, having the power to deny a privilege altogether, may grant it upon such conditions, not requiring relinquishment of constitutional rights, as it sees fit to impose. Frost v. Railroad Com., supra. While this is true, the legislature can not by its fiat convert a private carrier into a common carrier. A private carrier can not be converted against his will into a common carrier by legislative enactment. 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. Producers Trans. Co. v. Railroad Com., 251 U. S. 228 (40 Sup. Ct. 131, 64 L. ed. 239); Charles Wolff Packing Co. v. Court of Industrial Relations, 262 U. S. 522 (43 Sup. Ct. 630, 67 L. ed. 1103, 27 A. L. R. 1280); Michigan Public Utilities Com. v. Duke, supra; Frost v. Railroad Com., supra; Purple Truck Garage Co. v. Campbell, 119 Ore. 484 (250 Pac. 213, 51 A. L. R. 816); Mooney v. Tuckerman, supra; Smallwood v. Jeter, supra; State v. Nelson, 65 Utah, 457 (238 Pac. 237, 42 A. L. R. 849); Hissem v. Guran, 112 Ohio St. 59 (146 N. E. 808); State v. Vaughan, 97 W. Va. 562 (125 S. E. 583); State v. Smith, 31 Ariz. 297 (252 Pac. 1011) ; 42 C. J. 648. A private carrier would be unconstitutionally deprived of his property without due process of law by the State requiring him to become a public carrier in order to secure a permit to use the public highways for transportation purposes. Frost v. Railroad Com., supra. It would likewise be taking his property for public use without just compensation. Michigan Public Utilities Co. v. Duke, supra; Producers Trans. Co. v. Railroad Com., supra; Charles Wolff Packing Co. v. Court of Industrial Relations, supra.

But it is insisted that the motor-carrier act does not compel a private carrier to become a public carrier. It does not do so in express terms; but if the act is held to be applicable to private carriers, it does so by clear and necessary implication. If a private carrier falls within the provisions of this act, he can not transport by motor-vehicle over the public .highways of this State passengers or freight for hire without complying with its terms. Failure to do so would necessarily exclude him from operating upon the public highways of this State. Compliance with the provisions of the act is made a condition with which the auto carrier must comply before he can use the public highways for the transportation of persons or property for hire. It is urged that the act with which we are dealing undertakes to regulate the use of the public highways; and that the legislature can do this without violating the due-process clauses of the Federal or State constitutions. The trouble with this contention is that this act is not one intended to regulate the use of the public highways by motor-vehicles. On the contrary its caption expressly declares that it is intended “to regulate the business of transporting for hire persons and property by motor-vehicles on the highways of this State.” Again, the third section of this act declares that “The commission is hereby vested with power to regulate the business of any person engaged in the transportation of persons or property, either or both, for hire by motor-vehicle over any public highway in this State.” So it is clear that the purpose of this act is to regulate the business of transporting persons or property for hire over the public highways of this State; and is not intended to regulate the use of the public highways by auto carriers engaged in the transportation of persons or property for hire over such highways. If this act were made applicable to private carriers, it would amount to the exercise of the power to regulate the use of the public highways, so as, in effect, to compel private carriers to become public carriers. This the legislature can not do. A constitutional power can not be used by way of condition to obtain an unconstitutional result. The State can not use its most characteristic powers to reach unconstitutional results. W. U. T. Co. v. Kansas, 216 U. S. 1 (30 Sup. Ct. 190, 54 L. ed. 355); Pullman Co. v. Kansas, 216 U. S. 56 (30 Sup. Ct. 232, 54 L. ed. 378); Sioux Remedy Co. v. Cope, 235 U. S. 197 (35 Sup. Ct. 57, 59 L. ed. 193) ; Missouri v. Duncan, 265 U. S. 17 (44 Sup. Ct. 427, 68 L. ed. 881); Frost v. Railroad Commission, supra. So to adopt the construction contended for by counsel for the commission, that is, that this act applies to both private and common carriers, would render it unconstitutional and void, so far as private carriers are concerned. In Georgia Public Service Commission v. Saye & Davis Transfer Co., 170 Ga. 873 (154 S. E. 439), this court did not hold that private carriers were subject to regulation under the motor-carrier act of 1929. That was the individual view of the Chief Justice as expressed in the opinion written by him; but four of the Justices concurred only in the result reached in that case. This concurrence was based upon the fact that in the opinion of tírese Justices the carrier was a common carrier, and not a private carrier. Justice Gilbert concurred specially upon the same ground, and upon the further ground that the State had the power to regulate its public high ways. Tlie writer specially reserved for future consideration the questions involved in this case; and, as he understood, three of his associates took the same view. So a majority concurred only in the result reached, that is, that the carrier in the case cited was subject to regulation, because it was a common carrier. The question whether the State, under its power to regulate its public highways, could impose conditions which would have the effect of forcing private carriers to become public carriers, was not considered in that case, and was not decided by the majority of this court.

The commission further contends that the plaintiffs, under the facts disclosed by the record, are common carriers, and for this reason are subject to its control and regulation. In order to pass upon the soundness of this contention, we must determine what are common carriers and what are private carriers. “One who pursues the business constantly or continuously for any period of time, or any distance of transportation, is a common carrier, and as such is bound to use extraordinary diligence. In cases of loss, the presumption of law is against him, and no excuse avails him unless it was occasioned by the act of God or the public enemies of the State.” Civil Code (1910), § 2712. A common carrier is one that undertakes to carry, and holds himself out as ready to receive for carriage, goods for hire, which he is accustomed to carry, for all people indifferently, so long as he has room. “The undertaking must be general, and for all people indifferently. The undertaking may be evidenced by the carrier’s own notice, .or practically by a series of acts, by his own habitual continuance in his line of business. He must thus assume to be the servant of the public; he must undertake for all people.” “One of the obligations of a common carrier, as we have seen, is to carry the goods of any person offering to pay his hire. With certain specific limitations, this is the rule. If he refuses to carry, he is liable to be sued, and to respond in damages to the person aggrieved; and this is perhaps the safest test of his character.” Fish v. Chapman, 2 Ga. 349, 352 (46 Am. D. 393). Parsons says: “We take a common carrier to be one who offers to carry goods for any person, between certain termini or on a certain route; and he is bound to carry for all who tender to him goods and the price of carriage, and insures those goods against all loss but that arising from the act of God or the public enemy; and has a lien on the goods for the price of carriage. These are es sentíais; and though any or all of them may certainly be modified, and as we think may be controlled, by express agreement, yet if either of these elements is wanting from the relation of the parties, without any such agreement, then we say the carrier is not a common carrier, either by land or by water.” 1 Parsons on Shipping & Admiralty, 245. Whether a person is a common, carrier or not depends upon the facts; and where there is a question whether the carrier is a private or common carrier, it is to be determined by the facts relating to, first, whether the business is public business or employment, and whether the service is to be rendered' to all indifferently; and second, whether one has held himself out as so engaged, so as to make him liable for a refusal to accept the employment offered. Along these lines may go the question whether the contracts under which the business is accepted are made on the basis of private or public carriage. This last, however, is only a circumstance which may be looked to in arriving at a conclusion on the above two mentioned questions. Campbell v. A. B. C. Storage & Van Co., 187 Mo. App. 565 (174 S. W. 140). The liability of common carriers is upon contracts implied by law. No one can become bound by such contracts unless he has either consented to be bound in that character, or has so acted as to justify the belief that he intends to be so bound. Without actual consent or conduct from which it can be presumed, no one can become liable as a common carrier any more than upon any other character of contract. The law applicable to them is extremely rigorous. It is founded in public policy, and not in abstract justice. Varble v. Bigley, 14 Bush (Ky.), 698 (29 Am. R. 435). The law applicable to common carriers being peculiarly rigorous, it ought not to be extended to persons who have neither expressly assumed that character nor by their conduct and from the nature of the business justified the belief on the part of the public that they intended to assume it. 4 R. C. L. 546; 10 C. J. 41.

A private carrier is one who, without being engaged in the business of carrying as a public employment, undertakes to deliver goods in a particular case for hire or reward. He may carry or not as he deems best. He is but a private individual, and is invested, like other private persons, with the right to make his own contracts. 10 C. J. 38 (§ 4) A. If a carrier does not deal with the public indiscriminately as a matter of routine, but in effect makes an individual bargain in each case, this course of business tends to show that the service is upon a private basis. Campbell v. A. B. C. Storage & Van Co., supra. The making of separate contracts is considered in determining whether a person is a private or a public carrier, but is not conclusive, since contracts might be made simply to escape the duties of a common carrier by subterfuge. The courts, however, can not assume, in determining the status of a person as a common carrier, that separate contracts for transportation were merely a subterfuge, Weaver v. Public Service Com., 40 Wyo. 462 (278 Pac. 542). An automobile haulage contractor holding himself out as ready to carry goods to any destination, and inviting the patronage of the public generally, but who reserves to himself the right of accepting or rejecting their oilers of goods for carriage, 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, is not a common carrier. Belfast Ropework Co. Ltd. v. Bushell, 1 K. B. 210, 23 Com. Cas. 162, 118 L. T. N. S. 310, 34 Times L. B. 156, 8 B. R. C. 783. The courts do not seem to have been able to establish some simple test by which it can be determined without difficulty whether a man is a common or a private carrier. Some courts hold that the main criterion as to whether one is a common carrier is whether he holds himself out as ready to serve every one of the public alike to the limit of his capacity, and within the sphere of the business carried on by him. Gerhard v. Cattaraugus Tanning Co., 241 N. Y. 413 (150 N. E. 500); Weaver v. Public Service Com., supra. 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 offers 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.

The holding that the motor-carrier act of 1929 does not confer upon the commission the power to control and regulate private carriers renders it unnecessary to consider the constitutional attacks upon it if it did in fact embrace private carriers. For this reason we do not pass upon any of the constitutional questions raised, otherwise than is done above.

Tlie order of the court below is a general denial of the injunction. It does not appear that the judge put his judgment upon a finding that the plaintiffs were common carriers or upon the theory that the motor-carrier act applied to both common and private carriers alike. In this state of the record, the matter being of grave importance to the plaintiffs) and as we have to reverse the judgment for failure of the court below to enjoin the comptroller-general from enforcing against the plaintiffs the tax imposed by section 31 of the act of August 89, 1989, we are of the opinion that the case should be remanded to the court below for further consideration, in view of the construction which we have placed upon the motor-carrier act, and for a specific finding upon the question whether the court finds that the plaintiffs, under such evidence as may be introduced upon another hearing, are common carriers or not.

Judgment reversed.

Atkinson and Hill, JJ., concur. Beck, P. J., and Gilbert, J., dissent. Bussell, C. J., does not participate in the decision.