specially concurring. I am of the opinion that Saye & Davis Transfer Company is a common carrier. They were so incorporated, and they are transporting goods for hire on the public highways of the State. The fact that they are restricting themselves at any given time to a limited number of persons, with whom they make individual contracts, does not make them private carriers. The character of transportation is the same as if they were common carriers. The charter itself announces to the world that the company is a common carrier, and the world is authorized to infer that their transportation facilities are being offered to every one as far as their facilities will permit. In Terminal Taxicab Co. v. District of Columbia, 241 U. S. 252 (36 Sup. Ct. 583, 60 L. ed. 984, Ann. Cas. 1916D, 765), the Supreme Court said: “In determining whether a corporation is or is not a common carrier, the important thing is what it actually does, and not what its charter says it may do.” This case concerned the business of a taxicab *881company, and in the opinion it was said: “No carrier serves all the public. His customers are limited by place, requirements, ability to pay, and other facts. But the public generally is free to go to hotels if it can afford to, as it is free to travel by rail, and through the hotel door to call on the plaintiff for a taxicab. We should hesitate to believe that either its contract or its public duty allowed it arbitrarily to refuse to carry a guest upon demand. We certainly may assume that in its own interest it does not attempt to do so. The service affects so considerable a fraction of the public that it is public in the same sense in which any other may be called so. German Alliance Ins. Co. v. Kansas, 233 U. S. 389 [supra]. The public does not mean everybody all the time. See Peck v. Tribune Co., 214 U. S. 185, 190 [29 Sup. Ct. 554, 53 L. ed. 960, 16 Ann. Cas. 1075].” And compare Cushing v. White, 101 Wash. 172 (172 Pac. 229); Independent Truck Co. v. Wright, 275 Pac. 726. Civil Code (1910), §§ 2711, 2712, 2729.
Section 2'(c) of the motor-carrier act (Ga. Laws 1929, p. 295) provides: “The term ‘motor carrier’ means every corporation or person . . operating . . any motor-propelled vehicle . . 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.” According to the terms of this act it applies to “motor carriers” whether they are common or private carriers. The motor-carrier act does not undertake to compel a private carrier to become a common carrier in order to use the public highway for purposes of transportation. In this particular it differs from the California act, as construed by the Supreme Court of California. Frost Trucking Co. v. Railroad Commission, 70 Cal. Dec. 464. Except in the caption of the act, it contains no reference to liabilities of a common carrier, and reference in the caption is not sufficient to constitute binding legislation. The company, even if not a common carrier, is not strictly a private carrier, as are vehicles operated upon the public highways, not for hire, but for the convenience and benefit purely of the owners. Motor-vehicles operated for hire, as in the present instance, are affected with the public interest and come within the police powers of the State. They are dependent upon collecting hire from some of the public, and are using the public highway. Munn v. Illinois, 94 U. S. 113 (24 L. ed. 77); Lottery Case, 188 *882U. S. 321 (supra); Hammond Packing Co. v. Montana, 233 U. S. 331 (supra); German Alliance Insurance Co. v. Kansas, supra; Pipe-Line Cases, 234 U. S. 548 (34 Sup. Ct. 956, 58 L. ed. 1459). The police power of the State has been properly termed a law of self-preservation. It is inherent in sovereignty. The State being sovereign, its powers must exist to protect the lives and safety of the people and the property of the citizen. A motor-vehicle using the public highway of the State for hire is engaged in business on the public highway. This court has held: "Individuals do not have the inherent right to conduct their private business in the streets of a city, and the State or city can prohibit the owners or operators of jitneys and buses from transporting passengers for hire in such vehicles upon the streets of a city.” Schlesinger v. Atlanta, 161 Ga. 148 (129 S. E. 86.1). "The contention most pressed is that the act unreasonably and arbitrarily discriminates against those engaged in operating motor vehicles for hire, in favor of persons operating such vehicles for their private ends, and in favor of street-cars and motor-omnibuses. If the State determines that the use of streets for private purposes in the usual and ordinary manner shall be preferred over their use by common carriers for hire, there is nothing in the fourteenth amendment to prevent. The streets belong to the public and are primarily for the use of the public in the ordinary way. Their use for the purposes of gain is special and extraordinary, and, generally at least, may be prohibited or conditioned as the legislature deems proper.” Packard v. Banton, 264 U. S. 140, 144 (44 Sup. Ct. 257, 68 L. ed. 596).
In so far as the questions here involved are concerned, there is no difference between the status of a city street and a public road or highway. In the Schlesinger case this court quoted as follows from A. & W. P. R. Co. v. A., B. & A. R. Co., 125 Ga. 529, 545 (54 S. E. 736), as follows: "A street is a highway in a city or town, used by the public for the purpose of travel, either by means of vehicles, or on foot.” In the same case it was further stated: “Streets and highways are not intended to furnish places of business to individual members of the public. An individual can not maintain a place of business on a ¡oublie road.” In Cottle v. Wilkes, 141 Ga. 499 (81 S. E. 214) this court affirmed a judgment enjoining the hauling of large sawmill logs on two-wheel carts over public roads and bridges, whereby the roads were cut into ditches and *883gullies and the bridges broken.. It will be noted that the use, and not the abuse, of the roads and bridges was restrained.” Too much space would be required to quote all that was said in the opinion in that case. It will be sufficient to quote the summing up, as follows : “The streets of a city belong to the public, and are primarily for the use of the public in the ordinary way. The ordinary use of the streets, as we have seen above, is for travel; and to this may be added transportation of goods by their. owners to and from their residences or places of business. Transportation of travelers or goods by common carriers for hire does not fall within the ordinary way in which streets are used. Their use for the purpose of gain is special and extraordinary, and may be prohibited or conditioned as the legislature or municipality deems proper. The conduct of the business of a carrier of passengers for hire over the streets of a city 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; and may be. given to members of one class and denied to those of another class. If the State or city determines that the use of the streets for private purposes in the usual and ordinary manner shall be preferred over their use by common carriers for hire, there is nothing in the constitution of the United States or this State which prohibits such action. This principle seems bottomed on sorrnd reasoning, and is well settled by a great majority of the courts of last resort in this country.” In support of the above, numerous authorities were cited; and the court went on to say: “The due-process, and equal-protection clauses of our Federal and State constitutions are applicable' to rights alone, and have no reference to mere privileges which may be bestowed or withheld by the State or municipality.”
The effect of the growing business of operating motor-vehicles for hire on the public ^highways must be apparent to every man of ordinary sense. Courts can not be blind to those things which are apparent to every citizen. The construction and maintenance of the public highways is of vast importance to the happiness and prosperity of all. Upon our public highways are expended immense sums of money, time, and labor, all of Which must be supplied by the general public. The congestion, to say nothing of pure accidents and negligence, is exacting a toll of human lives and destruction of property that is appalling. It constitutes an increasing menace. *884The size and weight of such motor-vehicles constitutes an extra burden on the wear and tear of highways, and adds to the dangers. It is unthinkable that the sovereign State can not lay its hand on the traffic for the purpose of regulation, control, or even prohibition where regulations are not obeyed. Such is a necessity for the public safety and because of the heavy burden of construction and maintenance. The State’s constitutional power to tax and to regulate private operations of automobiles using the public highways is in this day nowhere denied. The State may require owners, as well as chauffeurs, to obtain a license, and requirement of insurance by all to respond for damage to person and property may soon follow. Packard v. Banton, supra. It is no wide stretch to hold that if an operator of a motor-vehicle on public highways charges hire from any one, the State may exercise its inherent power to regulate the hire, so that it shall be reasonable. Rutledge Co-op. Ass’n v. Baughman, 153 Md. 297 (138 Atl. 29); Barbour v. Walker, 126 Okla. 227 (259 Pac. 552).
The views above expressed are not in conflict with the Frost case, supra. To my mind, a wrong impression widely exists as to what was actually ruled in the Frost case. The fundamental proposition there ruled was that a State can not, by legislation, convert a private carrier into a common carrier against the latter’s consent, without complying with the constitutional requirements. There were three dissents in that case, filed by Justices Holmes, McReynolds, and Brandéis. Mr. Justice Holmes, in the opinion filed by him, said, in part: “The point before us seems to me well within the legislative power. We all know what serious problems the automobile has introduced.' The difficulties of keeping the streets reasonably clear for travel and for traffic are very great. If a State speaking through its legislature should think that, in order to make its highway most useful, the business traffic upon them must be controlled, I suppose that no one would doubt that it constitutionally could, as, I presume, most States or cities do, exercise some such control. The only question is how far it can go. I see nothing to prevent its going to the point of requiring a license and bringing the whole business under the control of a railroad commission so far as to determine the number, character, and conduct of transportation companies and so to prevent the streets from being made useless and dangerous by the number and lawlessness of those who *885seek to use them.” Although this is a dissenting opinion, its logic seems unassailable.
In 26 Columbia Law Keview, No. 8, beginning on p. 954, will be found an elaborate and instructive discussion of “Motor-Carrier Eegulation: Federal, State, and Municipal.” The authors begin with the statement: “The amazing' rise of the automobile as a universal mode of transportation has brought with it a host of problems which the State has been called upon to face,” and on p. 962 there are stated conclusions which the authors have reached, after a consideration of numerous authorities, which are well worth quoting. They are as follows: “It has been quite generally believed, however, that private carriers can not be required to obtain certificates of convenience and necessity. This impression is based upon a misapprehension of the recent Supreme Court decisions, and has no basis in fact. Private and public motor-carriers both differ from other carriers and service corporations, in that they employ, as an integral part of their operation, facilities furnished and maintained by the public. Both present the problems of crowded highways and disastrous competition.' It is submitted that, within the bounds of the practical capacity of the commissions to act, private carriers, equally with public ones, should be required to obtain certificates of convenience and necessity. Eegulation by means of such certificates is reasonably devised to protect the public from the abusive use of the roads, from the evils incident to unregulated competition, and from the physical dangers involved in motor-carrier operation.- The following conclusions concerning the regulation of private carriers seem justified by the Supreme Court decisions.
Private carriers can not, by legislative command, be converted into public carriers; that is, the entire system of traditional common-carrier duties, including such obligations as continuity and 'equality of service, can not be imposed.
Where a statutory provision for the certification of private carriers is not severable from other provisions improperly imposing common-carrier obligations, as described above, such a provision is invalid.
Private carriers may be subjected to regulation appropriate to their status.
There is no Supreme Court decision holding that private *886carriers may not appropriately be certified. The dissenting opinion in the Frost case insists that they may; the majority opinion points in the same direction.”