196 S.W.2d 866 | Ky. Ct. App. | 1946
Affirming.
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
We quote also for ready reference the applicable part of the definition referred to, KRS
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. secs. 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,
Cf. Strand Amusement Co. v. Commonwealth,
The argument with respect to this rule of constitutional construction is premised 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 17 they made a contract to carry Louisville newspapers to Bowling Green and had regularly done so. Before June 13 they had acquired three small *73 planes, one capable of carrying two and the others three passengers each. They had employed two licensed pilots, and one of the partners is also a pilot. While the parties testified unequivocally that they had operated the lines regularly and continuously from March 15, 1944, they conceded that there had been interruptions in their schedules and they had often flown without passengers. It appears that they kept few if any substantial records before May, and the evidence is vague as to that prior period. But it is fairly well shown that they had afterwards established ticket offices or made arrangements for the sale of tickets at their stations and had kept adequate records. These records show that on some days no passengers were carried and probably that trips were omitted altogether. But they were holding themselves out for service. Their operations in and out of Ashland during this period were less regular than on the other lines. It is pretty well shown, however, that the omissions generally were when the plane had been delayed because of weather conditions and advice had been received by telephone to Lexington that there would be no passengers out of Ashland. The airport facilities in that city were hazardous in bad weather since the port was small in area, had sod runways and the visibility is often poor because of its proximity to the Ohio River. On June 12 and 13, the day set in the "grandfather clause," the appellees operated a leased plane from Owensboro to Ashland via the cities on their two routes, and also via Danville and Covington. It appears that one of their planes was being "checked" and not available for operation. It so happened that not a single passenger was carried on that day. This is what the appellant says was only a token operation. If that were all in the record their claims would be substantial, but, as indicated, there is much more.
The term "grandfather clause" is the popular designation of provisions in the constitutions of some of the southern states that exempt from property and literacy restrictions on suffrage all descendants of men who voted before 1867. Webster's New International Dictionary. In initial regulatory statutes they satisfy "the dictates of fairness by affording sanction for enterprises theretofore established." United States v. Maher,
We think the appellees clearly manifested their right when consideration is given to the fact that they were pioneering and blazing a new trail, or rather a new system of transportation, under the handicaps of war by a method that was in a stage of development. It was experimental, for previous to that day people generally had not become accustomed to that mode of travel, especially for relatively short distances. It was a new business locally. It may be of significance that the term "common carrier" as used in the "grandfather clause" also includes carriers who "seek to operate." A fairly consistent pattern of operations was shown. It can not be said that the services were incidental, sporadic or infrequent. Temporary interruptions or limited facilities do not avail to neutralize or nullify what would otherwise surely be regarded as bona fide operations as a common carrier on regular schedules on June 13, 1944. Between that day and the time of the hearing by the Aeronautics Commission (November, 1944) the applicant, Blue Grass Air Lines, had increased their equipment, were seeking to acquire additional planes from the war surplus, and otherwise had proven their ability and purpose to furnish adequate and efficient service. No question was raised as to their compliance with other requisite conditions. *75
The federal law, 49 U.S.C.A. sec. 481 (e) provides for the issuance of a certificate of public convenience and necessity to any air carrier which could show that for a certain period before the effective date of the act it had "continuously operated as such (except as to interruptions of service over which the applicant or its predecessor in interest had no control)" unless the service was shown to be inadequate and inefficient. The federal Board has given a liberal construction and application of this provision in several decisions and these carry some persuasion if citation of authority be desired. See Marquette Lines, Inc., Docket No. 7 — 401(e)-1; and Inland Airlines, Inc., Docket No. 26-401(e)-1, Vol. 1, Reports of Civil Aeronautics Authority.
The Legislature entrusted to the Commission which it created the power to determine whether an applicant shall have a certificate authorizing it to engage in the public transportation of passengers and goods by air. It limited the courts on review to determine only if a factual decision of the Commission is supported by substantial evidence. We are of the opinion that the decision of this case by the Commission is so supported, and that the judgment should be, and it is, affirmed.