O.C.G.A. § 46-7-7 (2019)

Annotations

Editor’s notes. - Ga. L. 2000, p. 951, § 13-1, not codified by the General Assembly, provides that the 2000 Act which amended this Code section becomes fully effective July 1, 2001, but authorizes administrative action commencing April 28, 2000, for purposes of appointing certain officials, adopting rules and regulations, employing personnel, and preparing for and phasing in full implementation; provided, however, that the Governor may by executive order extend the date for full implementation of the Act to no later than July 1, 2003. In accordance with an executive order issued June 29, 2001, by the Governor, the amendment of this Code section by Ga. L. 2000, p. 951, became fully effective July 1, 2001.

JUDICIAL DECISIONS Principles generally accepted as elements of proof of public convenience and necessity. - In determining whether the public interest requires the service and whether the certificate shall be granted, the commission is directed by statute to consider the five subjects set out in former Code 1933, § 68-609 (see O.C.G.A. § 46-7-7). While these provisions are only directory or advisory, and it is not mandatory that each be proved before the commission is authorized to grant a certificate, this court recognizes that this is a pronouncement by the General Assembly of principles of law generally accepted as elements of proof of public convenience and necessity. Tamiami Trail Tours,

Inc. v. Georgia Pub. Serv. Comm’n, 213 Ga. 418, 99 S.E.2d 225 (1957). Provisions of this section are advisory. - Each of the five specific subjects set forth in former Code 1933, § 68-609 (see O.C.G.A. § 46-7-7), 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 merely advisory, irrespective of what the evidence might disclose in respect to each of the five subjects. Petroleum Carrier Corp. v. Davis, 210 Ga. 568, 81 S.E.2d 805 (1954). Provisions not applicable to grant or denial of Class ‘‘B’’ certificates. - The provi-

sions of former Code 1933, § 68-609 (see O.C.G.A. § 46-7-7) declaring that the commission must consider whether existing transportation service of all kinds is adequate to meet the reasonable public needs, the volume of existing traffic over such route, and whether such traffic and that reasonably to be anticipated in the future can support already existing transportation agencies and also the applicant, the effect on existing transportation revenues and service of all kinds, and particularly whether the granting of such certificate will or may seriously impair essential existing public service, 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. Petroleum Carrier Corp. v. Davis, 210 Ga. 568, 81 S.E.2d 805 (1954); Woodside Transf. & Storage Co. v. Georgia Pub. Serv. Comm’n, 212 Ga. 625, 94 S.E.2d 706 (1956). The 1950 amendment to former Code 1933, § 68-609 (see O.C.G.A. § 46-7-7)was expressly limited to certificates over fixed routes, and has no application to Class ‘‘B’’ certificates. Petroleum Carrier Corp. v. Davis, 210 Ga. 568, 81 S.E.2d 805 (1954); Woodside Transf. & Storage Co. v. Georgia Pub. Serv. Comm’n, 212 Ga. 625, 94 S.E.2d 706 (1956). Use of term ‘‘public.’’ - The use of the term ‘‘public’’ in O.C.G.A. § 46-7-7 is intended to distinguish private carriage operations which require no certificate of public convenience and necessity. Georgia Messenger Serv., Inc. v. Georgia Pub. Serv. Comm’n, 194 Ga. App. 340, 390 S.E.2d 283, cert. vacated, 260 Ga. 470, 397 S.E.2d 709 (1990). Primary concern is public interest and welfare and grant of certificate is discretionary. - In the hearing on an application for a certificate, the commission merely conducts an investigation of fact, authorized by statute, in the determination of which the primary concern is the public interest and welfare. Whether or not it grants an application for a certificate is purely a matter of discretion and not one of absolute right. Tamiami Trail Tours, Inc. v. Georgia Pub. Serv. Comm’n, 213 Ga. 418, 99 S.E.2d 225 (1957). Five factors enumerated to be considered by commission. - O.C.G.A. § 46-7-7 enumerates five factors, among others, that the

Public Service Commission must consider in determining whether a certificate of public convenience and necessity should be granted. RTC Transp., Inc. v. Georgia Pub. Serv. Comm’n, 165 Ga. App. 539, 301 S.E.2d 896 (1983). Public interest comprehends much more than five elements contained in this section. - Both former Code 1933, § 68-504, which related to ‘‘motor contract carriers’’ and former Code 1933, § 68-609 (see O.C.G.A. § 46-7-7), which related to ‘‘motor common carriers’’ require the procurement of a certificate of public convenience and necessity from the commission after a hearing pursuant to findings by the commission to the effect that ‘‘the public interest requires such operation.’’ The public interest, while embracing the five elements, comprehends much more. J. & M. Transp. Co. v. Georgia Pub. Serv. Comm’n, 217 Ga. 296, 122 S.E.2d 227 (1961) (decided prior to 1996 amendment). No error to refuse injunction where evidence supports discretion of commission. - Where it appears that the commission had evidence authorizing it in the exercise of its discretion to issue the certificate applied for, the trial judge did not err in refusing to enjoin the commission or the applicant. J. & M. Transp. Co. v. Georgia Pub. Serv. Comm’n, 217 Ga. 296, 122 S.E.2d 227 (1961). Commission free to exercise its judgment to grant or deny applications. - The commission, as respects Class ‘‘B’’ certificates, is free to exercise its own judgment and to grant or deny the applications for such certificates. Petroleum Carrier Corp. v. Davis, 210 Ga. 568, 81 S.E.2d 805 (1954). Error for trial judge to enjoin certificate holder from operating. - It was error 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. Petroleum Carrier Corp. v. Davis, 210 Ga. 568, 81 S.E.2d 805 (1954). No interference with order of commission unless showing of unreasonableness. - Neither the trial court, nor a court on review, will substitute its own discretion and judgment for that of the commission where it has exercised its discretion in a matter over which it has jurisdiction, and will not inter-

fere with a valid order of the commission unless it be clearly shown that the order is unreasonable, arbitrary or capricious. Brown Transp. Corp. v. Pilcher, 222 Ga. 276, 149 S.E.2d 670 (1966). Commission’s order supported by some evidence will not be overturned on appeal. - Where the record reflects that the Public Service Commission’s order denying the requested certificates is supported by some evidence and is not unreasonable, arbitrary, or capricious, the Court of Appeals will not substitute its own decision for that of the commission. RTC Transp., Inc. v. Georgia Pub. Serv. Comm’n, 165 Ga. App. 539, 301 S.E.2d 896 (1983). Applicability of decisions of Supreme Court construing this section to § 46-7-53. - The provisions of former Code 1933, § 68-504 were in all respects the same as the provisions of former Code 1933, § 68-609 (see O.C.G.A. § 46-7-7) with respect to the enumerated five elements that the commission must consider. Therefore, the decisions of the Supreme Court dealing with former Code 1933, § 68-609 (see O.C.G.A. § 46-7-7), were directly applicable and controlling on the construction of former Code 1933, § 68-504. Both sections add to the five enumerated considerations the following: ‘‘among other things.’’ This quoted provision cannot be ignored, and its proper recognition required a construction that the commission’s judgment need not rest upon any or all of the five fields enumerated. J. & M. Transp. Co. v. Georgia Pub. Serv. Comm’n, 217 Ga. 296, 122 S.E.2d 227 (1961). So long as certificate remained unrevoked, commission could authorize its transfer. - The question of public convenience and necessity having been determined by the commission at the time the certificate was issued, the commission would not be required on an application for transfer to consider that question again before granting a transfer of the certificate. Tamiami Trail Tours, Inc. v. Georgia Pub. Serv. Comm’n, 213 Ga. 418, 99 S.E.2d 225 (1957). When existing certificate holder not entitled to notice and opportunity required by this section. - Where the proposed route was not the same as that used by a certificate

holder, that company was not entitled to notice and opportunity to remedy inadequate service as required by former Code 1933, § 68-609 (see O.C.G.A. § 46-7-7). Tamiami Trail Tours, Inc. v. Georgia Pub. Serv. Comm’n, 213 Ga. 418, 99 S.E.2d 225 (1957). Existing certificate holder must have opportunity to improve service. - A competing motor carrier certificate cannot be granted until after the existing certificate holder has had an opportunity to improve service. Statesboro Tel. Co. v. Georgia Pub. Serv. Comm’n, 235 Ga. 179, 219 S.E.2d 127 (1975). ‘‘Route’’ defined. - The word ‘‘route,’’ as used in former Code 1933, U 68-609 (see O.C.G.A. § 46-7-7), means the particular highway or road, or series of highways or roads, over which a carrier is authorized by the commission to operate its vehicles between terminal points. Tamiami Trail Tours, Inc. v. Georgia Pub. Serv. Comm’n, 213 Ga. 418, 99 S.E.2d 225 (1957). ‘‘Route’’ and ‘‘highway’’ distinguished. - A ‘‘route’’ is a direction of travel from one place to another. It may be over one or more named or numbered highways or paths. A ‘‘highway’’ is a road for travel, and may be a portion of one or more different routes. When numbered or named as a highway running from one point to another, it becomes a route. Brown Transp. Corp. v. Pilcher, 222 Ga. 276, 149 S.E.2d 670 (1966). When two routes can be same route. - Two routes cannot be the same unless the highways, the certificates of convenience and necessity, and the terminal points are the same. Brown Transp. Corp. v. Pilcher, 222 Ga. 276, 149 S.E.2d 670 (1966). Certificate amendment based on need expressed by single shipper. - Certificate amendment, which was sought on the basis of a need expressed by a single shipper, was properly granted, where the evidence established that the proposed service would serve a useful public purpose and be responsive to a public demand or need. Georgia Messenger Serv., Inc. v. Georgia Pub. Serv. Comm’n, 194 Ga. App. 340, 390 S.E.2d 283, cert. vacated, 260 Ga. 470, 397 S.E.2d 709 (1990). Cited in Georgia Pub. Serv. Comm’n v. Smith Transf. Co., 207 Ga. 658, 63 S.E.2d 653 (1951).

RESEARCH REFERENCES Am. Jur. 2d. - 13 Am. Jur. 2d, Carriers, § 130 et seq. C.J.S. - 60 C.J.S., Motor Vehicles, §§ 174, 187 et seq., 192 et seq. ALR. - State regulation of carriers by motor vehicle as affected by interstate com-

merce clause, 47 ALR 230; 49 ALR 1203; 62 ALR 52; 85 ALR 1136; 109 ALR 1245; 135 ALR 1358. When granting or refusing certificate of necessity or convenience for operation of motorbuses justified, 67 ALR 957.