
    DEAN v. GEORGIA PUBLIC SERVICE COMMISSION et al.
    
    No. 13883.
    January 16, 1942.
    Rehearing denied February 12, 1942.
    
      
      Edgar Watlcins & Allan Watlcim, for plaintiff.
    
      Linton 8. Johnson, assistant attorney-general, Howell & Post, and R. J. Reynolds Jr., for defendants.
   Atkinson, Presiding Justice.

The exception being to a refusal by the judge to enjoin the Georgia Public-Service Commission from interfering with the petitioner’s operation as a motor common carrier over a designated highway in the State of Georgia, he having made to the Interstate-Commerce Commission the application contemplated by 49 H. S. C. A. Supp. § 306(a), and the evidence being in conflict as to whether on June 1, 1935, the petitioner was a bona fide operator as a common carrier by motor vehicle over this route, the refusal by the judge to grant a temporary injunction was not an abuse of discretion.

The foregoing represents the views of the majority of the court. The minority view is as follows: (a) When the Interstate-Commerce Commission set aside the certificate of public convenience and necessity and referred the case to a joint board that had power to recommend, such action left the application pending and made continuance of operation upon the part of Dean lawful until final action by the Interstate Commerce Commission (b) The effect of such an order of the Georgia Public-Service Commission, as is shown by the statement of facts to have been issued in the instant case, is not regulation with a view to safety of the highway. It determines, not the manner of use, but the persons by whom the highway may be used, prohibiting such use to some persons while permitting it to others for the same purpose and in the same manner. It follows that the order of the Georgia Public-Service Commission vacating its former order is a regulation, not of the use of the Georgia highways, but of interstate commerce. Buck v. Kuykendall, 267 U. S. 307 (45 Sup. Ct. 324, 69 L. ed. 623). A differerent ruling is not required by the decisions in McDonald v. Thompson, 305 U. S. 263 (59 Sup. Ct. 176, 83 L. ed. 164), Eichholz v. Public-Service Commission, 306 U. S. 268 (59 Sup. Ct. 532, 83 L. ed. 641), and similar cases where the regulation was with a view to safety of the highways, and where State Public Commissions were held to have police power.

Judgment affirmed.

All the Justices concur, except Atkinson, P. J., dissenting.  