Straight Creek Bus, Inc. v. Saylor , 299 Ky. 309 ( 1944 )

I cannot agree with the majority of the Court that order No. 21 issued by the Director of the Office of Defense Transportation (hereinafter referred to as ODT) is not in conflict with KRS 281.190. The federal order prohibits any one who has obtained a certificate of convenience and necessity under our statute from operating a bus until a permit is received from ODT. This federal order does not provide a time limit within which it will grant or refuse such permit after an application is made to ODT for it, and this fact brings it in conflict with KRS 281.190, subsec. 3, which automatically voids the state certificate if the holder fails to begin operations thereunder within 60 days after it is issued. If the operator obeys the state law, he runs afoul the federal law; and if he obeys the federal law, he runs afoul the state law. Of necessity this makes a conflict between the state and federal laws. 11 Am, Jur., sec 175, pp. 872, 873; Southern R. Co. v. Reid, 32 S. Ct. 140, 222 U.S. 424, 56 L. Ed. 257; State ex rel, Atwood v. Johnson, 170 Wis. 218, 175 N.W. 589, 7 A.L.R. 1617. Such conflict would excuse appellee from complying with KRS 281.190, subsec. 3, Cinquegrano v. T. A. Clark Motors,69 R.I. 28, 30, A.2d 859; 3 Southerland Statutory Construction Sec. 2027. This conflict way be avoided by reading into our statute an exception that the 60 day limitation is not applicable until the ODT has issued its permit, which is permissible, as will be subsequently shown.

No criticism is hereby directed at ODT's order No. 21, as there is no doubt that it is a salutary and necessary war measure. But the Director of the Division of Motor Transportation of Kentucky should certainly not be required to cancel the state certificate when the federal permit is not issued within 60 days after the state certificate is issued. The purpose of KRS 281.190, subsec. 3 is to prevent delay on the part of an operator in making use of his certificate so that the public may receive the service to which it is entitled, but the majority opinion thwarts the statute and brings about the very thing the Legislature sought to prevent. Should the ODT grant its permit 61 days after the state issued a certificate, then under the ruling of the majority, the Director must cancel the certificate he issued and the public must wait while the would-be-operator goes to the expense and trouble of filing a new application upon which there must be a notice of at least 10 days before there can be a hearing, KRS 281.060. As a matter of practice the Director requires a 30 day notice.

Sight is not lost of the reasoning in the majority opinion that KRS 281.190, subsec. 3, contains no exception by the Legislature and the courts are without authority to read an exception into the statute. It seems to me this is answered by the rule that it is proper to imply an exception in a statute in order to obviate a construction which would be unjust, oppressive, unreasonable or absurd, and one that the Legislature never intended to include. Surely, if the Legislature of Kentucky had foreseen that a federal permit would have to be obtained before the state certificate could be put into effect, and that there was no time limit within which ODT had to act, the law makers would not have required the certificate to be automatically cancelled if not put into operation within 60 days after it was issued. 50 Am. Jur., sec 433, p 454; Church of Holy Trinity v. United States,12 S. Ct. 511, 143 U.S. 457, 36 L. Ed. 226.

The opinion of the majority will cause great confusion in Kentucky in issuing certificates of convenience and necessity and will practically nullify all future certificates issued by the state and will necessitate an applicant to first obtain a federal permit before incurring the trouble and expense of obtaining a useless and meaningless state certificate, all of which would be obviated by giving our statute a practical and common sense interpretation, and one which would carry out the intention of the Legislature. To further complicate the situation, it is not at all certain that ODT will grant a permit before the applicant first obtains a state certificate; and then if ODT does not act within 60 days, the state certificate becomes void under KRS 281.190, subsec. 3.