Main Line Hauling Co., Inc. v. Public Service Commission

• Citation: 577 S.W.2d 50
• Decision Date: 28 August 1978
• Docket Number: Nos. KCD29486,KCD29501,s. KCD29486
• Parties: MAIN LINE HAULING CO., INC., Respondent, v. PUBLIC SERVICE COMMISSION of the State of Missouri, Appellant, Orscheln Bros. Truck Lines, Inc., a corporation, Middlewest Freightways, Inc., a corporation, Anderson Motor Service, Inc., a corporation, and Churchill Truck Lines, Inc., a corporation, Intervenors-Appellants.
• Court: Court of Appeal of Missouri (US)

Page 50

577 S.W.2d 50

MAIN LINE HAULING CO., INC., Respondent, v. PUBLIC SERVICE COMMISSION of the State of Missouri, Appellant,

Orscheln Bros. Truck Lines, Inc., a corporation, Middlewest

Freightways, Inc., a corporation, Anderson Motor Service,

Inc., a corporation, and Churchill Truck Lines, Inc., a

corporation, Intervenors-Appellants.

Nos. KCD29486, KCD29501.

Missouri Court of Appeals, Kansas City District.

Aug. 28, 1978.

Motion for Rehearing and/or Transfer Denied Oct. 10, 1978.

Application to Transfer Denied Nov. 6, 1978.

Thomas A. Hughes, Arthur L. Conover, Jefferson City, for appellant.

Jeremiah D. Finnegan, Russell D. Jacobson, Kansas City, for respondent.

John E. Burruss, Jr., Jefferson City, for intervenors-appellants.

Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.

WASSERSTROM, Judge.

Main Line Hauling Co., Inc., petitioned the Circuit Court for a judgment declaring its right to "tack" three separate approved routes so that Main Line could provide through service from the furthest extremity of each route to the furthest extremity of each of the other routes. The Circuit Court granted declaratory relief of the nature prayed and enjoined the Commission against seeking sanctions against Main Line for instituting the proposed service. The Public Service Commission and four intervening competitor truck lines appeal. We reverse.

Main Line holds a certificate of public convenience and necessity giving it a route to transport commodities between St. Louis, Missouri, and Hy-Point Industrial and Research Park near Rolla, Missouri, another route between Kansas City, Missouri, and the Park, and still a third route between Springfield, Missouri, and the Park. Main Line claims that it is entitled to tack or join one of these authorities to another so that for example it may haul commodities directly from St. Louis to Kansas City via Rolla. It concedes that the Commission could have limited the certificate by express provision so as to specifically prohibit such tacking, but Main Line contends that in the absence of such an express limitation it does have the right to tack unless and until the Commission undertakes to impose a prohibition after due notice and hearing.

The intervenors hold authorities for regular through service between Kansas City and St. Louis. They and the Commission oppose Main Line's interpretation of its right to tack. Intervenors and the Commission say that under the statutes, a carrier can do only that which is specifically spelled out in its certificate, and absent a specific grant of authority to provide through service such authority does not exist. This constitutes their Point on Appeal as relates to the merits of the controversy in this case. They also present a preliminary point that the trial court erred in exercising jurisdiction in this matter at this time, because the doctrine of primary jurisdiction requires that the issue on the merits be presented to the Public Service Commission in the first instance.

I. The Doctrine of Primary Jurisdiction

This doctrine is based on a judicial policy of self-restraint and calls upon a court to defer to and give an administrative agency the first right to consider and act upon a matter which calls for factual analysis or the employment of special expertise within the scope of the agency's responsibility entrusted to it by the legislature. 2 Am.Jur.2d, Administrative Law, Sec. 788, p. 688 et seq.; 73 C.J.S. Public Administrative Bodies and Procedure § 40, p. 347; State ex rel. Cirese v. Ridge, 345 Mo. 1096, 138 S.W.2d 1012 (banc 1940). However, where there are no factual questions or issues requiring administrative expertise, but instead only questions of law which fall within the conventional competency of the courts, there is no reason for judicial deference to the administrative agency and the doctrine of primary jurisdiction has no application. 2 Am.Jur.2d, Administrative Law, Sec. 793, p. 696; 73 C.J.S. Public Administrative Bodies and Procedure, § 41, p. 351; Smith v. Thompson, 234 Mo.App. 1151, 137 S.W.2d 981 (1940). See also Klicker v. Northwest Airlines, Inc., 563 F.2d 1310 (9th Cir. 1977).

In the instant case, the substantive issue presently for consideration can be resolved as a pure question of law, as will be seen from Section II of this opinion. Therefore, the doctrine of primary jurisdiction did not preclude exercise of jurisdiction by the Circuit Court.

II. The Right to Tack

Section 390.051-1 (all statutory references are to RSMo 1969) provides that " * * * no person shall engage in the business of a common carrier in intrastate commerce on any public highway in this state unless there is in force with respect to such carrier a certificate issued by the commission authorizing such operations." Section 390.051-7 provides that it shall be unlawful for any common carrier, except one having a certificate authorizing such service to accept property for transportation between points on an authorized regular route. The Missouri Public Service Commission has construed those sections to mean that a carrier in this state holding authority for two separate routes running to a common point may not tack those authorities where no authority for such tacking has been specifically granted by the Commission's certificate. Re Healzer, 5 Mo.P.S.C. (N.S.) 129 (1954). See also Anderson Motor Service Co., et al. v. Orscheln Bros., 21 Mo.P.S.C. 368 (1934), affirmed State ex rel. Orscheln Bros. Truck Lines, Inc. v. Public Service Commission, 232 Mo.App. 605, 110 S.W.2d 364 (1937). ¹

The administrative agencies and courts of many states have reached the same result under comparable statutes. Most of these jurisdictions hold tacking may not be permitted except upon a hearing and a particularized finding in each individual case of public convenience and necessity for the joinder. As stated in McKenna v. Nigro, 150 Colo. 335, 372 P.2d 744, 747 (1962), "state courts have consistently held that before two or more separate authorities may be integrated into one authority providing an entirely new service, there must be a showing that public convenience and necessity demand the new integrated service." In support: Enid Transfer & Storage Co. v. State, 201 Okl. 274, 190 P.2d 150 (1947); Application of Calhoun, 51 Wyo. 448, 68 P.2d 591 (1937); Pennsylvania R. Co. v. Public Utilities Comm., 116 Ohio 80, 155 N.E. 694 (1927); Eastridge v. Southeastern Greyhound Lines, 280 Ky. 392, 133 S.W.2d 95 (1939); Central Truck Lines v. Railroad Comm., 118 Fla. 555, 160 So. 26 (1935); Central Truck Lines v. Railroad Comm., 158 Fla. 68, 27 So.2d 658 (1946). See also Michigan Exp., Inc. v. Michigan Public Service Comm., 333 Mich. 101, 52 N.W.2d 616 (1952); Murphy Motor Freight Lines, Inc. v. Witte Transportation Co., 260 Minn. 440, 110 N.W.2d 296 (1961); Santa Fe Trail Transportation Co. v. State, 468 P.2d 791 (Okl.1970). A typical statement of the reason for this rule appears in Pennsylvania R. Co. v. Public Utilities Comm., supra, at l.c. 697:

"An application to convert a local service, operated under two separate certificates, into a through service, is in effect, an application for a certificate of convenience and necessity to operate a new route, it being in effect an application to change one of the termini of each of the existing certificates and to convert two separate routes into one."

Some cases have countenanced a more liberal practice under which the administrative agency in its discretion may authorize tacking in a general category of cases on a blanket basis, without individual findings in each particular case; but these holdings likewise recognize that in the absence of the adoption of such a policy, there is no right to tack. Duff...