Black v. Utter

• Decision Date: 13 November 1945
• Citation: 300 Ky. 803
• Parties: Black et al. v. Utter et al. (two cases).
• Court: United States State Supreme Court — District of Kentucky

300 Ky. 803

Black et al. v. Utter et al. (two cases).

Court of Appeals of Kentucky.

November 13, 1945.

1. Action. — Courts have a discretion in exercising power to adjudge in declaratory judgment cases. Civil Code of Practice, sec. 639a — 6.

2. Action. — A court will not take jurisdiction to render a declaratory judgment where another statutory remedy has been especially provided for character of case presented, nor where purpose is to affect proceedings which may be taken or pending before a public board which is vested with full power to act in the premises. Civil Code of Practice, sec. 639a — 1 to 639a — 12.

3. Action. — Chancellor properly declined to take jurisdiction of action to declare rights of parties relating to competitive operation of busses on ground that Division of Motor Transportation was vested with exclusive power to determine questions presented and chancellor was only vested with power to review determination of Division. KRS 281.180 et seq.; Civil Code of Practice, sec. 639a — 1 to 639a — 12.

Appeal from Franklin Circuit Court.

A.T.W. Manning for appellants.

James Park for appellees.

Before Wm. B. Ardery, Judge.

OPINION OF THE COURT BY MORRIS, COMMISSIONER.

Affirming.

The appeals are from two judgments of the Franklin circuit court in separate actions, in each of which the parties were the same, Black being plaintiff below in each case. Black, by procedure under Declaratory Judgment Act, Civil Code 639a — 1-12, sought to have the court declare his and appellees' rights, and the duty of the Director of Motor Transportation, in matters relating to competitive operation of busses, over Highway 80, and other highways between Manchester and Hyden, and London and Manchester.

Briefly, Black operating between the two points under an unquestioned certificate, though charged with a violation of its restrictive terms as to one of the named operations, contends that during the time Short Ways was an incorporation it held certificate (issued in 1942) for operation between Manchester and Hyden, but that it lost its rights because of failure to operate within a period of 60 days, KRS sec. 281.190(3). Straight Creek Bus Co. v. Saylor, 299 Ky. 309, 185 S.W. 2d 253. In 1943 Short Ways, Inc., was dissolved, and the stock-holders formed a partnership operating under the name "Short Ways Lines." Soon after dissolution its certificate was transferred to the partnership; the transfer was approved by the then Director of Motor Transportation, and renewed from time to time, with frequent stays of operation because the holder failed to get operating orders from O.D.T., a government agency. Black had filed petition with the Kentucky Division, in December of 1944, to cancel Short Ways' certificate.

Black, under these circumstances, asked the court in his petition to declare that Short Ways had lost all rights to operate because of failure to begin business within 60 days of the permit; to hold that the corporation had no right to transfer its certificate to partnership, and if they had the right it had nothing to transfer, and that the transfer was invalid because of lack of notice and hearing, KRS sec. 281.110. The partnership contended to the contrary, first, that the ruling in the Straight Creek case, supra, did not apply; that the stays of operation kept the certificate alive; that the transfer by the corporation was legal and effective, it having time under the laws of the State of its incorporation to wind up its affairs and transfer its assets. They also plead estoppel against Black, because of renewal of its...