Gross v. Commonwealth

• Court: Court of Appeals of Kentucky
• Citation: 75 S.W.2d 558,256 Ky. 19
• Parties: GROSS v. COMMONWEALTH.
• Decision Date: 26 October 1934

75 S.W.2d 558

256 Ky. 19

GROSS
v.
COMMONWEALTH.

Court of Appeals of Kentucky

October 26, 1934

Appeal from Circuit Court, Harlan County.

Suit by the Commonwealth of Kentucky against C. P. Gross. Judgment for plaintiff, and defendant appeals.

Affirmed. [75 S.W.2d 559]

Pope & Baker, of Harlan, for appellant.

Bailey P. Wootton, Atty. Gen., and David C. Walls, Asst. Atty. Gen., for the Commonwealth.

PERRY, Justice.

This is an appeal from a judgment of the Harlan circuit court, upholding the constitutionality of chapter 104, art. 4, § 8, of the Acts of 1932. The sole question therein presented and decided was the constitutionality of the act. The appealed case thus decided in the Harlan circuit court was tried upon an appeal thereto from the Harlan county court upon an agreed statement of facts filed in the record, upon which it was tried in both the lower courts to test the constitutionality of this attacked section of the 1932 Acts, which also appears as section 2739j-76 in the 1933 Supplement to Baldwin's Kentucky Statutes Service.

The stipulation of facts upon which the case was tried below is as follows:

"It is agreed by the plaintiff, Commonwealth of Kentucky, and by the defendant, C. P. Gross, that there has been duly issued a warrant charging the defendant with violating section 2739j-76, Kentucky Statutes, in this, to-wit; that the defendant, C. P. Gross, is operating a taxi automobile upon the highways of this state without obtaining the proper insurance upon his passengers and procuring an indemnity bond as is provided in the above section, and it is the purpose of this stipulation that this case be appealed to the circuit court of Harlan county and thence to the Kentucky Court of Appeals and there to test out the constitutionality of section 2739j-76. It is agreed by and between the plaintiff and the defendant that the defendant is violating the above mentioned section in not having posted the bond or taken out the insurance as is provided in the above act."

Upon submission of the case to the trial court for judgment upon the appellant's special plea made of unconstitutionality of the act to the warrant and upon the agreed statement of facts, supra, the lower court held the act constitutional and this appeal results. By the above-quoted agreed stipulation of facts, the appellant admits his continued violation of the criticized provision of said 1932 act, in that he admits his operation of a taxi for hire upon the state highways without having posted the bond or procured the insurance required under the attacked provision of said act, reading in part as follows:

"No certificate or permit shall be issued until there has been filed with and accepted by the Commission a good and sufficient indemnity bond or insurance policy issued by some surety or insurance company or other insurance carrier, duly authorized to transact business as such with this State, which shall provide by such terms, conditions and provisions and in such penal sums or maximum amounts as said Commission may deem necessary for the reasonable protection of the patrons of the operator of the motor vehicle for hire and of the public in the collection of damages for which the operator may be liable by reason of the operation of any motor vehicle for hire. ***" (Italics ours.) [75 S.W.2d 560] The appellant attacks the constitutionality of this quoted provision of section 2739j-76 of the Statutes Supplement 1933, chapter 104, article 4, § 8, of the Acts of 1932, for the reason, he contends, that it constitutes an invalid delegation by the Legislature to the tax commission of its authority to legislate in violation of the provisions of the Constitution; that under the provisions of the Constitution, it is without power to delegate the wide, unbridled authority to a subordinate commission, which is here attempted, he asserts, in this act in delegating to the tax commission the undefined and unlimited authority to fix the insurance to be carried by taxi owners "in such penal sums or maximum amounts as said Commission may deem necessary," etc.; that such power given the commission is without check, balance, or limitation upon its exercise and in effect gives it the power to make law rather than merely to administer the law; that under the attacked provision, the commission is given an unlimited, arbitrary power in the thereby licensed, capricious exercise of which it might require of taxi owners seeking a permit of it a bond or insurance in a maximum amount of five million as well as five thousand dollars; that the delegation of such power to the commission is a violation of section 2 of the Bill of Rights, declaring that "absolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic" and forbids "the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another." Further, appellant insists that the attacked statute is unconstitutional for the reason that the Legislature cannot delegate, as he contends is by the provisions of this act attempted, to a board or a commission a discretion to grant, refuse, or revoke a license to carry on an ordinarily lawful business or profession, without prescribing definite rules or standards for the guidance of the officials to whom is given the discharge or exercise of such discretionary power.

The appellant contends that the applicable rule of law for the determination of the validity of the attacked measure is as announced by the learned annotator in 12 A. L. R. at page 1436 thereof as representing the majority rule and as also that accepted and announced as such by this court, which is to the effect that: "A statute or ordinance which vests arbitrary discretion with respect to an ordinarily lawful business, profession, appliance, etc., in public officials, without prescribing a uniform rule of action, or, in other words, which authorizes the issuing or withholding of licenses, permits, approvals, etc., according as the designated officials arbitrarily choose, without reference to all of the class to which the statute or ordinance under consideration was intended to apply, and without being controlled or guided by any definite rule or specified conditions to which all similarly situated might knowingly conform,--is unconstitutional and void."

We entertain no dissent from this statement of constitutional law as being a proper statement of the majority rule as well as being that applied in proper instance by this court. However, we do not agree that because of our...