dissenting. As to the right of petitioners to writ of injunction, it is sufficient to say that under the facts the court did not err in refusing an injunction, for the reason stated in Bowden v. Georgia Public Service Commission, 170 Ga. 505 (supra). Due to the public importance, however, of reaching a decision by this court on the main question here involved, I pass to the merits. The main question is whether the State, through its legislative department, may regulate the business of private carriers for hire by motor-vehicles on the public highways. There is no dispute on the question that the business of common carriers by motor-vehicles may be so regulated. So common carriers are not included in this discussion. Nor is there any question of interstate commerce. It has been decided by the Supreme Court of the United States in Frost &c. Co. v. Railroad Commission of California, 271 U. S. 583 (supra), that a State can not constitutionally require a private carrier to become a common carrier; so for present purposes that question need not be considered.
It is insisted that the effect of the motor-carrier act of 1989 is to make it necessary for a private carrier to become a public carrier in order to avail itself of the privilege of transporting persons and goods on the public highways for hire. Or, stated in *86another way, it is contended that the motor-vehicle act of 1929 impliedly requires a private carrier to become a public carrier in order to transport by motor-vehicle for hire. If that construction of the act is required, then it follows that the act, to that extent, falls under the decision in the Frost case, and is invalid. I do not so construe the act. Under the terms of the act of 1929, the Public Service Commission is not required to apply the same, nor all of the regulations, to private motor-carriers for hire, as to common carriers by motor-vehicles. Even if such should be the case, this fact would not be equivalent to requiring private carriers to become common carriers for the privilege of using the public highways. A private carrier is converted into a common carrier when he pursues the business of a common carrier. Does the law or do the rules of the commission require this P One looks in vain for any such provision, express or by implication, in either, and none is pointed out. The act nowhere requires carriers of persons or property to serve all people who apply. The act nowhere expressly refers to common carriers as such, nor does it so refer to private carriers as such. Upon the contrary the act applies to all motor-vehicle carriers doing the business of transporting for hire. “The term ‘motor-carrier’ means every corporation or person owning, controlling, operating, or managing airy motor-propelled vehicle (and the lessees, or receivers, or trustees thereof, appointed by any court 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; provided, that the term ‘motor-carrier’ as used in this act shall not include, and this act shall not apply to” vehicles employed in certain designated services. Ga. Laws 1929, p. 295, § 2 (c).
Thus we come to the real important question, as stated above, whether the State may regulate private motor-carriers doing business on the public highways. It is agreed by every one that the settled test of that question is whether the business is affected with a public interest. If so, it falls within the police power of the State, and may be constitutionally regulated, provided always that the regulation is reasonable and not arbitrary. That is the test of constitutionality. If the business is not affected with a public interest, then it does not fall within the regulatory powers of the State. In Munn v. Illinois, 94 U. S. 113 (24 L. ed. 77), a case *87decided in 1876, it was declared, in the first headnote: “Under the powers inherent in every sovereignty, a government may regulate the conduct of its citizens toward each other, and, when necessary for .the public good, the manner in which each shall use his own property.” And in the second headnote: “It has, in the exercise of these powers, been customary in England from time immemorial, and in this country from its first colonization, to regulate ferries, innkeepers, &c., and, in so doing, to fix a maximum of charge to be made for services rendered, accommodations furnished, and articles sold.” Chief Justice Waite, speaking for the court, said: “This brings us to inquire as to the principles upon which this power of regulation rests, in order that we may determine what is within and what is without its operative effect. Looking, then, to the common law, from whence came the right which the constitution protects, we find that when private property is ‘affected with a public interest, it ceases to be juris privati only/ This was said by Lord Chief Justice Hale more than two hundred years ago, in his treatise DePortibus Maris, 1 Harg. Law Tracts, 78, and has been accepted without objection as an essential element in the law of property ever since. Property does become* clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created. He may withdraw his grant by discontinuing the use; but so long as he maintains the use, he must submit to the control.” In that case two Justices dissented, but for more than fifty years the decision has been followed and approved by. the Supreme Court of the United States, and presumably by a-11 of the States of the Union.
In 9 Eose’s Notes on United States Eeports, revised edition of complete citations, will be found more than fifty pages of annotations. These include cases where regulation of the widest variety of business activities was held to be lawful. .The author of these annotations, at p. 510, observes: “The profession was not slow tq realize the importance of the decision in Munn v. Illinois. Within a few weeks after the opinion^ was handed down, a leading law periodical ventured the prophecy that it would ‘take rank in the *88reports with the well known Dartmouth College case/” The truth of the observation is evidenced by the practically unanimous acceptation of the principles stated by the courts of this country. At the time that Lord Hale wrote and at the time that Chief Justice Waite wrote in the above-mentioned case, there were no automobiles, few paved roads in the sense that we speak of'modern paved roads; and consequently the problems now confronting us, if they existed at all, remained in the dreams of the scientific mind. The feature of monopoly entered largely into the determination of whether a business was affected with a public interest in olden times, but invention and commercial enterprise have immensely complicated life and increased its problems. It is manifest that other factors must now be considered, and it would seem that anything should be taken into consideration which enters into the general welfare of the public. We therefore must look to the effect of the business upon other businesses .already established and already largely affecting the life of the community. We necessarily look to the terms of the act of the General Assembly; for the power to declare public policy originates with the legislative department. The question is not made, in the record as to whether the legislature has power to determine whether a business is affected with' a public interest, nor how far such a declaration is reviewable by the courts. Without deciding that question, it may be rémarked that the act of .1929 is, by necessary implication, a declaration by the General Assembly that the business expressly named in the act is affected with a public interest.
To begin with, the act expressly applies only to operators of motor-vehicles for the carrying on of business, and therefore it is a business that the State seeks to regulate. It is a business carried on for hire for the purpose of earning money profits. Moreover, it is a business carried on through instrumentalities which are admittedly of potent danger, because of the weight and size of the vehicles and the speed at which they operate. It is carried on, not on rights of way purchased, owned, and maintained by such private carriers, but, upon the contrary, on the public highways, owned, constructed, and maintained by the State, paid for by taxes levied upon the public generally, including railway companies, with whom such private carriers are in competition. No ad valorem taxes can be collected on the property value of the rights of way from users of *89highways, as is the case of railroad rights of way. This amounts in actuality to a subsidy to such operators of trucks and buses. It is a matter of common knowledge that the business carried on by these private motor-carriers has affected the business of railway companies. If the public were not concerned with the successful operation of the railways, the effect of motor-vehicle competition would be of no importance in the present discussion; but the effect necessarily is of very great public importance. It will be very generally agreed that railway transportation is indispensable, both in times of peace and of Avar. Next to real estate, the railways are by far the largest taxpayers. I do not here consider taxes paid on gasoline, because the amount paid by private motor-vehicles used for the business of transportation for hire is unknown. In the United States as a whole, the railway companies pay in taxes almost live hundred millions of dollars per year (more than a million dollars per day), Avhich is nearly one fourth of their net earnings. It is estimated by Professor William Z. Ripley, a recognized authority, that the railAvays in the United States support railway employees and their families numbering about eight million people, and, in turn, the., money expended, by these families permeates every avenue of trade. These employees also in turn pay a Arery large sum in taxes, Federal, State, county, municipal, and school taxes. Another large sum goes for house-rent, for investments in real estate, and into every other channel to which the average wage-earner contributes; so it would seem impossible to state the limit beyond which these resources do not extend. The railroad companies in 1929 paid in taxes, in the State of Georgia, including State, county, municipal, school, and Federal tax on income derived from operations within the State, more than four and one half millions of dollars.
There was a time in the earlier history of this country Avhen railroads were unregulated by the government, Federal or State. During that period the great evil to the railroads, and, indirectly to the public, was cut-throat competition, issuing free passes to favored persons, the practice of allowing unfair rates of freight charges, of favoring one person or business over another, and one city over another. Public opinion and the public interest finally forced the now universally approved State and Federal regulation of common carriers by rail, so as to prevent these evils. The entrance of the business of transportation for hire by motor-vehicles has brought *90about new complications, new problems, and the necessity for further examination of legal principles applicable to carriers, both common and private. Motor-vehicle competition, whether it be by common or private carrier, has already reached a point of intense public interest. The State of Georgia through its legislative department has, by the motor-vehicle act of 1929 sought to somewhat remedy or lessen the rapidly growing evils flowing therefrom. If there were no other importance underlying the motor-vehicle transportation business and showing the public interest, the matter of competition would be sufficient,- not only competition between the motor-vehicle lines and the railways, but competition as between motor-lines themselves, — a competition that, unless regulated, will inevitably become a cut-throat competition, if it has not already done so. Such competition, as demonstrated by experience, is ruinous alike to both the railways and the motor-vehicles. Opposition to fair regulation would thus seem not only unwise, but blind and suicidal on the part of the motor-operator. Such cut-throat competition with the railways is wholly unfair competition, because the State, exercising its police power, frequently lays its hand upon a railway and forbids the tearing up of an unprofitable section of its tracks, denying to the railroad the privilege of ceasing to operate parts of its system which have become unprofitable. It also exercises the power of controlling railroad schedules and its stopping-places. Whenever a railroad station has ceased to pay the amount of the cost of its maintenance, the railroad can not of its own will discontinue such station, but must obtain the consent of the sovereign State through its appointed agency.
On the other hand, the operators of private motor-vehicles, unless State regulated, can choose their own routes, make their own schedules, charge their own fares, parallel the profitable portions of the railroad trackage, and refuse to operate where the railroad can not profitably run. Private motor-vehicle transportation carriers, unless regulated by the State, may perform all of the service of a common carrier, derive all of its benefits, and be subject to substantially none of the penalties and burdens. They can use the State’s highways, and for such privilege pay only on the basis that a private citizen operates his own automobile for his own purposes without gain. Should this court declare that the State of Georgia is impotent, under the constitution, to put its regulatory hand on *91the private motor-vehicle carrier for hire, it is not difficult to foresee a time when the State’s public highways will become so congested with such carriers that the private person not operating for hire will to a large extent be crowded oil the highway. The dangers of travel will have so increased that in effect the public paved highways will become a congested right of way for the unregulated business of motor-vehicle transportation. Then other highways would necessarily be required. Who will build them? Certainly it will not be done by operators of such motor-vehicles if they can not even be regulated. It will be done over again by the State, by continued general taxation, both for new pavement and for new rights of way; and this in the face of adjudications by this court and others that the State may prohibit altogether the use of streets and highways by motor-vehicles for purposes of transportation business. Schlesinger v. Atlanta, 161 Ga. 148 (supra). It is conceded in the majority opinion, based oar the Schlesinger case, that “the power to exclude altogether geaaerally implies the lesser power to grant the right to use the piablic highways upon terms aaid coaaditioaas imposed by the legislature.” That seems to be unimpeachable logic. Aird it must not be overlooked that iar thus breaking down the railways in this State, the Western & Atlantic Eailroad, the State’s own property, must share the eoanmoai fate, and by the time of the expiration of the present lease of the State’s road the present lessee will have forand the lease unprofitable, and it may be difficult or impossible to obtain other lessees. If the busiaress of transporting for hire by private motor-vehicles on the State’s highways does not fall within the police power of the State, it would be remarkable indeed, iaa view of the numerous other lines of business which, uaader the decisions of this court and other courts as well, have been subjected to such power; for instance, agriculture, attorneys at law, auctioneers, banking, barbers, brokers, building and loan asociations, carriers, carpet-beating by steaan power, corporations, dentists, detectives, druggists, employment agencies, factors,' ferries, garages and garage keepers, hackmen, hawkers and peddlers, junk dealers, innkeepers, insurance, laundries, livery-stable keepers, mining, pawnbrokers, physicians, pilots, plumbers, railroads, sale of securities, secondhand dealers, slaughter-houses, street-railroads, telegraphs and telephones, ticket-brokers, warehousemen, and wharfingers. 12 C. J. 924, § 482.
*92A statute prohibiting an owner from changing the manufacturers’ number on motor-vehicles, does not deprive the owner of due process. People v. Johnson, 288 Ill. 442 (123 N. E. 543, 4 A. L. R. 1535). Nor is a statute requiring vendors of gasoline to collect State tax from purchasers. Pierce Oil Co. v. Hopkins, 264 U. S. 137 (44 Sup. Ct. 251, 68 L. ed. 593). The State may regulate the sale of cottonseed (Bazemore v. State, 121 Ga. 619, 49 S. E. 701), and even the hours within which seed-cotton may be hauled: The business of life insurance in some respects falls within the police power of the State. Leonard v. American Life & Annuity Co., 139 Ga. 274 (2) (77 S. E. 41). “Within reasonable limits, statutes and ordinances may be enacted for the protection of persons and property on the public highways, as, for example, bjr regulating the use of vehicles on streets and other highways, requiring the registration of, and the payment of a license fee for, vehicles used on the highways, regulating the speed of street-cars, automobiles, and other vehicles, requiring the removal of obstructions from the streets, and forbidding the opening of streets without a permit.” 12 C. J. 917, § 426. These complainants deny the State’s power to exercise any regulation whatever. “The Supreme Court of the United States has expressly declared that the fourteenth amendment — broad and comprehensive as it is — was not designed to interfere with the police powers of the States. Barbier v. Connolly, 113 U. S. 27 (5 Sup. Ct. 357, 28 L. ed. 923).” Cassidy v. Wiley, 141 Ga. 339 (80 S. E. 1046, 51 L. R. A. (N. S.) 128). All courts everywhere uphold the right of a State, under its police power, to regulate the rate of interest charged, and to provide civil and criminal penalties for the exaction of usurious rates. The legislature has power, within its discretion, to determine what means are necessary to insure protection to the public. The only qualification is that such regulation must be reasonable and not arbitrary, nor palpably foreign to the legitimate purposes of such legislation. This principle is so well settled that citation of authority is unnecessary. Money-lenders, of course, are not common carriers, and moreover they may make contracts with such persons only as they choose, and on such varying terms as may be agreed upon by' the parties; but the legislature may regulate the rate without violating the constitutional guaranties of due process and equal protection of the law§.
*93This court recently dealt with a case similar to this. Georgia Public Service Commission v. Saye & Davis Transfer Co., 170 Ga. 873 (supra). Chief Justice Russell wrote the opinion, and, among other things, stated that the complainant was subject to the regulatory control of the Public Service Commission, whether it Avas a common carrier or a private carrier, because in either event the business was affected with a public interest. Among the authorities cited Avas Rutledge Co-op. Asso. v. Baughman, 153 Md. 297 (138 Atl. 29, 56 A. L. R. 1042); also Barbour v. Walker, 126 Old. 227 (259 Pac. 552, 56 A. L. R. 1049), which dealt Avith an Oklahoma statute similar to the Georgia act, and where that court declared: “A private motor-carrier operating over the public highways of the State, though without regular or fixed time schedules between fixed points in the transportation of commodities for hire under separate contracts with several principal business concerns located and doing business in one of such points, is a cmotor-carrier’ Avithin the meaning of chapter 113, S. L. 1923, and is subject to control and regulation by the provisions of law therein provided.” All of the Justices concurred in the result reached by the Chief Justice. Mr. Justice Hines based his concurrence on the ground that the applicant was a common carrier. It has been repeatedly held by the courts, that, in the exercise of the police power, a State may regulate the charges of a public utility, even though in so doing such regulation may result in nullifying a contract, without violating the United States constitution forbidding a State to impair the validity of a contract. Union Dry Goods Co. v. Georgia Public Service Commission, 248 U. S. 375 (39 Sup. Ct. 117, 63 L. ed. 309, 9 A. L. R. 1420). If it were otherwise, the police power of the State could be practically destroyed by the simple deA'ice of making contracts. Leonard v. American Life & Annuity Co., 139 Ga. 276 (77 S. E. 41); Washington v. Atlantic Coast Line R. Co., 136 Ga. 644 (71 S. E. 1066, 38 L. R. A. (N. S.) 867); King v. State, 136 Ga. 709, 716 (71 S. E. 1093); 6 R. C. L. 347, § 341.
The parts of the State and Federal constitutions with AA'hich the act is said to be in conflict are set out in the majority opinion and the statement of the case. It Avou’id uselessly consume space to repeat them here. To my mind none of the provisions of the constitutions amount to a barrier to the full and complete control of the business of operating motor-vehicles for hire, whether by private *94carriers or common carriers, whether they strictly confine themselves to paved highways, or, as they contend, occasionally go off into unpaved roads and lanes. Every one knows that it is on the main paved highways that such carriers will find profitable business, and tliat the travel on unfrequented streets and lanes constitutes no considerable part of their transportation business. In a special concurrence in Georgia Public Service Commission v. Saye & Davis Co., supra, the writer expressed his views on this question, including the view that the actual ruling made in Frost v. Railroad Com., 271 U. S. 583 (supra), went only to the extent of holding that a State can not constitutionally compel a private carrier to become a common carrier.
Before closing, it should be mentioned that for some reason the petitioners have made the comptroller-general of the State a defendant and sought to enjoin him from collecting the tax provided in the motor-vehicle act of 1929. That act expressly declares that the tax is only to be levied on and paid by such motor-carriers as have obtained from the public service commission a certificate of’ convenience and necessity as provided in the act. These petitioners have not obtained that certificate, and this entire proceeding is brought to avoid the necessity of ever obtaining them. It is plain that the comptroller-general can levy and collect the tax only when these certificates have been obtained, and under the pleadings and the evidence there is nothing to indicate that the comptroller-general has the slightest thought of attempting to collect that tax before petitioners have obtained certificates from the public service commission. Therefore it is obvious -that the case should have been dismissed as to the comptroller-general.
I am authorized to say that Presiding Justice Beck concurs in the views herein expressed.
Russell, C. J.I have carefully considered the bill of exceptions and the record, as well as the majority and minority opinions prepared by Justices Hines and Gilbert respectively. The commanding logic and reasoning of both opinions have captivated my fancy and commanded my highest admiration, but yet I am not prepared to concur in the views of either. I adhere to the opinion which I announced in Georgia Public Service Commission v. Saye & Davis Transfer Co., 170 Ga. 873 (supra), in which it was held: “In the use of public highways in this State which are the property of *95the State, the power of regulation is vested in the General Assembly, and that body may authorize the public-service commission to prescribe the conditions upon which a public highway may be used by a carrier in the transportation of goods, provided such regulation does not tend to create a monopoly or require the carrier to change his status in violation of the due-process clause of the fourteenth amendment to the IT. S. constitution.” In the third headnote we held: “Under the principles stated in the first headnote, it is immaterial, and therefore unnecessary to decide, whether the carrier is private or common. In either event, the business is affected with a public interest, and therefore within the power of the public-service commission for regulation by prescribing the terms upon which the business of such carrier may be conducted upon the public highways of the State.” It is said by Mr. Justice Hines that he expresses the opinion that under the facts in that case Saye & Davis Transfer Company were common carriers, and this may be true, but the report of the case does not evidence that Mr. Justice Hines went further than to say that his concurrence was based upon the fact that “Saye & Davis Transfer Co. were expressly chartered for the purpose of carrying on a public business, consisting of transporting freight and passengers over the public highways of this State. This company was not chartered to do business as a private carrier, and having been incorporated as a public carrier, this company is subject to the jurisdiction of the public-service commission of Georgia for all purposes expressed in the motor-carrier act of 1929. With the light before me and that expressed in the opinion upon the question, I do not pass upon the question whether the State can regulate the rates of private carriers. I leave this question open for future consideration, when it arises in a proper case. I am clearly of the opinion, however, that the legislature can regulate both classes of carriers in the use of the public highways of this State. Whether the power extends to the regulation of the rates of private carriers, the routes they shall occupy, and other terms on which they do business, I leave open.” Judge Gilbert, in his special concurrence, starts his opinion by saying: “I am of the opinion that Saye & Davis Transfer Company is a common carrier.” So far as the record shows, Associate-Justices Beck, Atkinson, and Hill expressed no opinion further than that they concurred in the result. To concur in the result, from my own experience, may *96moan that they go no further than that, because the eoncurrant in a case agrees to nothing more than the result reached, as expressed in the h'eaduote. It may he that in my own case I have sometimes concurred, when concentrating on some important principles involved in some case which I was about to read to the court in private consultation, when I really would not clearly catch and apprehend all that had been said in the opinion, and at some time or other a similar reason may have influenced other members of the Supreme Court, even when its personnel was not the same as it now exists. So far as the legislative branch of the threefold government in Georgia can prescribe rules of practice and procedure to the judicial department, supposed to be independent, the Code, § 6202, declares: “No decision shall be delivered ore tenus; but the same shall be announced by a written synopsis of the points decided, which shall be delivered during the term at which the decision was made. And no decision shall be published in the reports until the said decision shall have been revised by each of the judges presiding in the case.” And so I apprehend, as there was no special concurrence or entry of any kind as to the syllabus, that the concurrence only in the result must be confined to the opinion delivered by me in the Saye & Davis case, supra.
In confirmation of my opinion, the dissent to the judgment rendered for three of the other Justices is dissented from, based upon the authorities relied upon by me in stating that the highway commission is empowered to regulate the business of transportation upon the public highways of this State by reason of the fact that the business affects the public interest — everybody is concerned. Prior to the decision in Public Service Commission v. Saye & Davis, supra, I joined Judge Hines in dissenting from the opinion of the majority in Bowden v. Public Service Commission, 170 Ga. 505 (supra). I was of the opinion that the court erred in failing to exercise equity jurisdiction and to grant an interlocutory injunction against the enforcement of the motor-carrier act of 1929. I adhere to my dissent in that case, as I do to my opinion in the Saye & Davis case. Both' of the opinions referred to quote approvingly from the case of Schlesinger v. Atlanta, 161 Ga. 148 (supra), and concede the proposition that the State has the power to prohibit the use of a public highway to its citizens, regardless of the question whether or not a monopoly might thereby be *97created. I dissented in the Schlesinger case, and I likewise dissented in a subsequent case involving the same point, that of Nance v. Savannah, 162 Ga. 395 (133 S. E. 744). Subsequent observation and reflection has strengthened the views I entertained when I dissented in both of these cases. I still dissent “quoties toties,” and so it is at least not a six-judge case, though the division in the court was five to one. In so far as the Schlesinger case is cited as authority, it still can not bind me as controlling authority. Prohibition and regulation are very far from being synonymous terms. Nor is prohibition a species of regulation. When a sovereign State determines absolutely to prohibit any business, it is absolutely futile to talk about regulating a business which has been absolutely eradicated, outlawed, and extirpated. So that I did not concur in the thought that the State can prohibit the use of the public highways to any person engaged in a lawful business which is complying with all the restrictions and regulations imposed by the government. Nor can I concede that the question is pertinent in this case. Construing the motor-carrier act as I do, I am still prepared to hold that the public-service commission has the right to regulate the business of people engaged in hauling commodities for hire, whether the person is engaged in the business as a common carrier for hire (who is bound to accept freight from everybody who may offer to pay the rate fixed by the public-service commission, and to safely deliver it at its destination at his peril, because no excuse will avail him for not delivering it, except the act of God or other providential causes which may be deemed to be such, or the act of the public enemy) or as a private carrier. • The term private carrier defines, in my opinion, one who hauls only for a clientele, limited and selected by himself, under a special contract from which the public are excluded. The word “carrier” denominates one who is in the habit, or accustomed to carrying, whether the word “carrier” follows a common carrier or a private carrier. Therefore a private carrier is one who is accustomed as his business to carry. It matters not whether he is a common carrier or a private carrier. However, if he is accustomed to carrying as a business, it is my opinion, as expressed in the case of Bays & Davis, that he is within the jurisdiction of the public-service commission, because he is as much in the business of carrying as a common carrier, though the fact that he is a private *98carrier may relieve him from the obligation to deliver required of a common carrier which we have already mentioned.
I am of the opinion that the General Assembly desired both of the classes to which we have referred to be under the jurisdiction of the public-service commission. The caption of the act speaks for itself; but I do not believe that the General Assembly ever intended to require a license of public service and convenience, and fee or tax to be paid therefor, in case of one who only occasionally uses his own machine which was’ ordinarily not engaged in transportation of articles for any one except for his own use. The word “carrier,” as applied to one who operates a motor-vehicle, imports and implies continuous transportation. The word is not appropriate to convey the thought of sporadic and occasional use of a machine as a mere matter of occasional convenience rendered by one friend to another. If a minister of the gospel who happened to own an automobile should, as a mere kindness, agree to bring the furniture and other personal effects of a very poor old woman from Atlanta to Macon, by borrowing a trailer and hauling these effects to Macon, he could not well be classified as a carrier, either common or private, within the terms of the motor-carrier act. Even if he be classified as a private carrier, he would not be required to take out a certificate of public service and convenience. And so if I should get a neighbor who was going home from Atlanta, and who had a truck for the purpose of hauling his own logs to a sawmill, or his own hay to his barns, or his own cotton to the gin when in the seed, or when baled to convey it to wheresoever he wished for the purpose of storage and sale, and I should get him, know-his truck would be empty on his return, to bring back to me a purchase of lumber or hardware, it is not my opinion he could be called a carrier and subject to the provisions of the motor-carrier act and subjected to the penalties imposed upon carriers who are required to take out a certificate of public service and convenience, and to pay a heavy license tax therefor. The motor-carrier act was never intended to include those who might occasionally use vehicles that could be used for sueli transportation as v^s not in any way affected with a public interest. In Saye & Davis, supra, I attempted to point out that the public interest was a criterion of the liability of a carrier, whether common or private, to the provisions of the motor-carrier act, and cited authorities in sup*99port of my position. Naturally I can not agree with the views of Judge Hines at this point. I can agree with him that the evidence in the case at bar may make McIntyre a common carrier, because apparently he never refused to haul for any one who would make a contract with him to haul. He was a common carrier, except he was endeavoring by contract to escape the rule of liability imposed upon a common carrier, and the device adopted was unsuccessful; but if a carrier declined to haul for only a few customers, or for only one, then his business might be more profitable than that of many a common carrier, and he would be subject, as a private carrier, to the same license of public service and convenience, and the payment of the charges, as imposed by the public-service commission, and in his continuous carrying, although for only a private clientele, he would have to furnish to the public-service commission, and be governed thereby, the fixed schedule, termini, etc., prescribed for common carriers.
Nor can I concur in the learned opinion of Mr. Justice Hines, for the reason that only one question was presented for determination by the bill of exceptions, which was, whether the evidence adduced before his honor, Judge Moore, authorized the grant of injunctive relief. The lower court did not pass upon the demurrers, and therefore there was no judgment in the lower court upon a majority of the subjects with which the opinions in this case deal. It may be that under the powers conferred upon this court as to giving directions as to the final disposition of a case, the law on a certain proposition may be declared, although that question was not before the lower court for solution; but as I understand the rule, this court can not authoritatively determine any question which the lower court has not tried; and for that reason statements made by the court upon propositions not directly involved in the review are generally called obiter dicta. It appears from the record that Judge Moore did not pass upon the demurrers, though they were filed and presented, and he based his decision entirely upon the evidence before him, and refused to assist the petitioners by means of granting an interlocutory injunction. If there is any inference to be drawn from the failure of the court to enter an order as to the demurrers and proceed to the merits of the case, it must be inferred that he was of the opinion that the demurrers were not good, and that tacitly he overruled the demurrers; for *100if lie had sustained the demurrers, that would have been an end of the case. For this reason, I am of the opinion it is at least very doubtful whether the court can now proceed to decide questions upon which the lower court did not pass. For the same reason, I can not affirm the ruling of the court upon the reasons presented in the well-considered opinion of Mr. Justice Gilbert, in which Beck, P. J., concurs, because this opinion is also bottomed upon the Schlesinger case, supra, and answers the argument of Judge Hines, which is that in cases of a common carrier, as well as private carriers, the application of the motor-carrier act is proper in any transportation which is affected by a public interest. I am of the opinion that the judge of the superior court, in his ruling as to the interlocutory injunction, was correct. I am further of the opinion that no ruling was invoked as to other matters dealt with in the opinions. Were I to east my vote for affirmance, the only result would be to cause an equal division of the court, and thereby cause the judgment of the lower court to be affirmed by operation of law. For that reason, there would be no decision bjr the court, though the opinions written in the case should by law be published, and opportunity thus afforded whereby the public would be beneficially informed. The publication at least might be very suggestive to the General Assembly, and produce legislation which would solve the conflicting views of the court upon the subject of carriers using motor-trucks. But the publication of the different views entertained by the members of the court does not speed or promote the adjudication of legal issues; and so I prefer, for myself, to abstain from participation in the final judgment, and to be regarded as not participating in the judgment.