Southern Railway Co. v. Georgia Public Service Commission

127 S.E.2d 12, 218 Ga. 157, 1962 Ga. LEXIS 458

• Court: Supreme Court of Georgia
• Decided: June 12, 1962
• Docket: 21674
• Status: Published

Opinions

Head, Presiding Justice.

1. The law of Georgia recognizes the right to judicial review of orders of the Georgia Public Service Commission. Georgia Power Co. v. Georgia Public Service Commission, 211 Ga. 223 (85 SE2d 14). Where, as in the present case, judicial review is timely sought, the penalty provisions of the Georgia law (Code Ann. § 93-416) apply only to subsequent violations after the order of the commission has been “judicially established to be a lawful order.” Wadley Southern R. Co. v. Georgia, 235 U. S. 651, 669 (35 SC 214, 59 LE 405).

2. The Georgia Public Service Commission has power to prevent unjust discriminations and to require railroad companies in the conduct of their intrastate business to afford equal facilities in the transportation and delivery of freight. Code §§ 93-307, 93-309; Augusta Brokerage Co. v. Central of Ga. R. Co., 121 Ga. 48 (48 SE 714); Wadley Southern R. Co. v. State, 137 Ga. 497, 508 (73 SE 741). Switching or side tracks located wholly within one State “are left within State control” under the Interstate Commerce Act (49 U.S.C.A. § 1 (22) ). Interstate Commerce Commission v. Oregon-Washington Railroad & Navigation Co., 288 U. S. 14, 40 (53 SC 266, 77 LE 588).

3. The evidence, while not without conflict, is ample to support the finding by the commission that discrimination by the railroads against the complainant existed. “Neither the trial court, nor this court on review, will substitute its own discretion and judgment for that of the Public Service Commission where it has exercised its discretion in a matter over which it has jurisdiction, and neither court will interfere with a valid order of the Public Service Commission unless it be clearly shown that the order is unreasonable, arbitrary, or capricious.” Atlanta Motor Lines, Inc. v. Georgia Public Service Commission, 211 Ga. 698 (88 SE2d 387). A like rule applies in the Federal courts as to orders of the Interstate Commerce Commission. The New England Divisions Case, 261 U. S. 184, 204 (43 SC 270, 67 LE 605). By neither the pleadings nor the evidence is it “clearly shown” that the order of the commission is unreasonable, arbitrary, or capricious.

4. The statutes creating the Georgia Public Service Commission, and the order of the commission in the present case, are not in violation of either the Federal or State Constitution, as an unlawful interference with the liberty of contract, or a taking of property without due process of law. Railroad Commission of Ga. v. Louisville & Nashville R. Co., 140 Ga. 817 (80 SE 327); Union Dry Goods Co. v. Georgia Public Service Corp., 142 Ga. 841 (83 SE 946); Louisville & Nashville R. Co. v. Mottley, 219 U. S. 467 (31 SC 265, 55 LE 297); Chicago, Burlington & Quincy Railroad Co. v. McGuire, 219 U. S. 549 (31 SC 259, 55 LE 328); Union Dry Goods Co. v. Georgia Public Service Corp., 248 U. S. 372 (39 SC 117, 63 LE 309).

Argued May 15, 1962 Decided June 12, 1962 Rehearing denied July 11, 1962.

5. The railroads were without authority to suspend the voluntary service, or any part thereof, to Solvay’s plant, provided under the terms of the 1902 contract, until after notice and a hearing by the Georgia Public Service Commission. In Western & Atlantic Railroad v. Georgia Public Service Commission, 267 U. S. 493, 496 (45 SC 409, 69 LE 753), in a unanimous opinion delivered by Mr. Chief Justice Taft, it was stated, with reference to the validity of Rule 14 of the Georgia Public Service Commission, in part as follows: “Rule 14 is a reasonable rule and the Commission was fully justified in refusing to sanction a discontinuance of service until a petition had been filed with the Commission and a showing made. . . It is said that the requirement of the continuance of the service deprived the Company of its property without due process of law, in violation of the Fourteenth Amendment, because the service rendered by the side-track was much greater in out-of-pocket cost than the compensation. This can not be sustained. The service has been rendered for years. It was a voluntary arrangement, and under its statutory powers (§ 2664, Georgia Code, 1910 [now § 93-308]) Was made irrevocable by the Public Service Commission under Rule 14, except by consent of the Commission. The spur track was for a public purpose. Union Lime Co. v. C. & N. W. Ry. Co., 233 U. S. 211. The requirement that such a service should not be discontinued without notice and hearing was clearly within the police power of the State. Chicago & Northwestern R. R. Co. v. Ochs, 249 U. S. 416; Lake Erie & Western R. R. Co. v. Cameron, 249 U. S. 422; Railroad Commission v. L. & N. R. R. Co., 148 Ga. 442.”

6. The trial court did not err in denying an interlocutory injunction.

Judgment affirmed.

All the Justices concur, except Duckworth, C. J., and Grice, J., who dissent. Charles J. Bloch, Edgar A. Neely, Jr., Greene, Neely, Buckley & DeRieuw, for plaintiff in error. Eugene Cook, Attorney General, Paul Rodgers, Assistant Attorney General, contra. David E. Wells, Richard D. Sanborn, Douglas W. Matthews, Reid W. Harris, Conyers, Fendig, Dickey & Harris, for party at interest not party to record.