On Motion for Rehearing.
The appellee railroad insists that the earlier version of the statute giving the PSC approval power of condemnation for improvements (former Code Ann. § 94-321) proves the PSC’s power is limited simply to a determination whether the designated use of the property is for public or private use, because it provided the railroad’s “right of condemnation under this section shall not be exercised until the [PSC] . . . shall first approve the taking of the property or right-of-way designated for public use or uses desired.”
The appellee railroad divines that the lawmakers meant to say the PSC “shall . . . approve the taking of the property or right-of-way [if it is] designated for public use or uses desired.” Such a construction of the language is too far away from syntactical reality to be seriously considered, but since the railroad insists upon it, we do so here with the comment that if ever there was any chance to think the lawmakers meant to say what the railroad imagines, the lawmakers removed it in the present statute, which says, simply and finally, that the railroad’s “right of condemnation under this section [for purposes of improvements under § 46-8-120] shall not be exercised until the *421commission . . . first approves the taking of the property.”
Decided June 2, 1986 Rehearing denied June 19, 1986 Michael J. Bowers, Attorney General, H. Perry Michael, First Assistant Attorney General, Jim 0. Llewellyn, Senior Assistant Attorney General, H. Jeff Lanier, Assistant Attorney General, for appellants. Earle B. May, Jr., Benjamin M. Garland, for appellee.The fact that some cases may have involved the important issue of whether the taking was for public use, certainly is not a fact which forever limits the PSC to such an undertaking, nor has any case said so.
The appellee has not shown the evidence before the PSC demanded approval of this condemnation, and that the PSC acted arbitrarily and capriciously in denying it. Indeed, the PSC considered the evidence carefully and the cases cited by the appellee prove that we, the courts, are not at liberty to substitute our judgment for theirs. Concept Capital Corp. v. DeKalb County, 255 Ga. 452 (339 SE2d 704); City of Atlanta v. Heirs of Champion, 244 Ga. 620, 621 (261 SE2d 343); Coffee v. Atkinson County, 236 Ga. 248 (223 SE2d 648); Sweat v. Ga. Power Co., 235 Ga. 281 (219 SE2d 384); Department of Transp. v. Livaditis, 129 Ga. App. 358 (199 SE2d 573).
Motion for rehearing denied.