Com. Air Transport, Inc. v. Stuart

• Decision Date: 11 October 1946
• Parties: COMMONWEALTH AIR TRANSPORT, Inc., v. STUART et al.
• Court: Kentucky Court of Appeals

196 S.W.2d 866

303 Ky. 69

COMMONWEALTH AIR TRANSPORT, Inc., v. STUART et al.

Court of Appeals of Kentucky

October 11, 1946

Appeal from Circuit Court, Franklin County; W. B. Ardery, Judge.

John Ewing Stuart and others, partners doing business as Blue Grass Lines, applied to the Kentucky Aeronautics Commission for certificates of convenience and necessity to operate intrastate air transport lines. The applications were opposed by Commonwealth Air Transport, Incorporated, and others. From a judgment confirming the issuance of the certificates Commonwealth Air Transport, Inc., appeals.

Affirmed.

Stephens L. Blakely, of Covington, for appellant.

G. S Milam, of Russellville, and M. J. Sternberg, Asst. Atty Gen., for appellees.

STANLEY Commissioner.

The appeal is from a judgment confirming the issuance by the Kentucky Aeronautics Commission to J. E. Stuart et al partners doing business as the Blue Grass Air Lines, of certificates of convenience and necessity for the operation of intrastate air transport lines (1) between Paducah and Louisville, via Madisonville and Owensboro, and (2) between Bowling Green and Ashland, via Louisville and Lexington. KRS 183.540. After a hearing, in which a number of protestants and competitive applicants were heard, the Commission determined that the Blue Grass was entitled to the certificates under the 'grandfather clause' of the Act of 1944 (Chapter 147), establishing and completing the system of state supervision, regulation and control of intrastate common carriers by air. KRS 183.010, 183.530 et seq. The provision is a part of KRS 183.540, dealing with the granting of authority to engage in the business and is as follows: 'Provided, however, if it appears from the application that the applicant is engaged as a common carrier, as defined in KRS 183.010(4), in the transportation of persons, property or mail, and is operating on regular schedules over the route or routes served on June 13, 1944, the commission shall forthwith issue to said applicant a certificate of public convenience and necessity authorizing said applicant to engage in transportation by air of persons or property or both, in intrastate commerce between all of the points in the state of Kentucky from which the applicant is operating on June 13, 1944.'

We quote also for ready reference the applicable part of the definition referred to, KRS 183.010(4), namely: 'When used in KRS 183.530 to 183.620: (a) The term 'common carrier' shall include all carriers for hire or compensation by air who operate, or seek to operate, over fixed routes or between fixed termini within the State of Kentucky.'

The grounds of the appellant's protest have been sifted to two, namely: (1) The appellees did not establish their eligibility under the 'grandfather clause' and (2) that clause is or would be unconstitutional if made applicable to the state of facts proven.

We dispose first of the argument of the appellees that the appellant may not challenge the constitutionality of the provision because it is not affected by it and because it had invoked the benefits of the act itself. We differ with the appellees. The appellant had protested the granting of the certificates to the appellees as a prospective competitor. In substitution by assignment, it had applied to the Civil Aeronautics Board under the Federal Air Commerce Act of 1926, 49 U.S.C.A. §§ 171-184, for authority to engage in interstate air commerce covering parts of the same routes, and its rights would be injuriously affected if the appellees should succeed when under a valid law they ought not to do so.

It is to be observed that the challenge does not go to the constitutionality of the provision as a statutory rule but only as being violative of the equal protection provisions of the federal and state constitutions by discriminatory enforcement, i. e., if it be applied to the particular state of facts. This contention is within the principle thus stated in the leading case of Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 1073, 30 L.Ed. 220: 'Though the law itself be fair on its face, and impartial in appliance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the constitution.'

Cf. Strand Amusement Co. v. Commonwealth, 241 Ky. 48, 43 S.W.2d 321.

The argument with respect to this rule of constitutional construction is premissed upon the contention that the appellees were not in fact engaged as a common carrier on June 13, 1944, and proved only a 'token' engagement over these lines on that day, and did not transport a single passenger or article of property. We think the premise fails. In our opinion, there is no straining or stretching of the facts or of the law in order to bring the appellees within the letter and the spirit of the 'grandfather clause'. So the constitutional question goes out.

The Blue Grass had also sought a certificate to serve Covington and Danville, but the Commission found they had not established their right under the 'grandfather clause' to do so. The vagueness of their proof with respect to those operations tends to confuse the evidence with respect to the lines for which certificates were given and which only are involved in this case.

We give a brief summary. The partnership began between two young brothers, into which their father later entered in order to afford better financing. As early as July, 1943, they had applied to the Federal Civil Aeronautics Authority for a license to engage in interstate commercial aviation in and out of their home city of Russellville. In January, 1944 they had purchased an airplane with the view of entering the business. In March and April of that year they made contracts for the use of airports and their facilities at Louisville, Paducah and Ashland and paid fees under them. On March 15 they established and published schedules or time tables in several newspapers and solicited patronage. On April...