Marty v. Kansas City Light & Power Company
| Decision Date | 07 March 1924 |
| Docket Number | 23852 |
| Citation | 259 S.W. 793,303 Mo. 233 |
| Parties | J. G. MARTY, CHARLES W. SCARRITT and W. E. MINOR v. KANSAS CITY LIGHT & POWER COMPANY, Appellant |
| Court | Missouri Supreme Court |
Rehearing Denied March 7, 1924.
Appeal from Jackson Circuit Court; Hon. Thomas B. Buckner Judge.
Reversed.
John H. Lucas, William C. Lucas and Ludwick Graves for appellant.
The filing of the schedules of June 19, 1917, effective August 1 1917, established and fixed the only legal rates that the appellant might charge and they remained in full force and effect until abrogated on a hearing by the Commission. Sec. 88, pp. 622-23, Laws 1913; Sec. 10497, R. S. 1919, par. 2; Laws 1913, p. 638, sec. 105(a). For power of Commission to stay increased rates, see Secs. 10491, 10478, 10479, R. S. 1919. For penalty for noncompliance, see Sec. 83, p. 619, Laws 1913; Sec. 10492, R. S. 1919. For defense in case of excessive charges, see Sec. 85, p. 620, Laws 1913; R. S. 1919, sec. 10494; Sec. 88, par. 2, pp. 622-623, Laws 1913; R. S. 1919, sec. 10497, sub-sec. 2; Lusk v. P. S. Com., 268 Mo. 109; Suburban Water Co. v. Borough of Oakmont, Pub. U. Rep. Ann. 1920 (F) l. c. 813. All orders of Commission are prima-facie lawful and reasonable. Sec. 123, p. 647, Laws 1913; R. S. 1919, sec. 10534. "There can be no legal rate except the last tariff rate." Suburban Water Co. v. Borough of Oakmont, Pub. Utility Rep. Ann. 1920 F. l. c. 813; Harrison Electric Company v. Citizens' Ice & Storage Co., 232 S.W. 932, 149 Ark. 502; Burwind White Coal & Mining Company v. Chicago & Erie Railroad Co., 235 U.S. 371, 376, 59 Law Ed. 276.
Lathrop, Morrow, Fox & Moore and Scarritt, Jones, Seddon & North for respondents.
(1) There is nothing before this court for determination except the question as to whether the plaintiffs, upon the pleadings and the evidence adduced, made a case on any possible theory. In other words, the only question here is whether or not defendant's demurrer to the evidence should have been sustained. The trial court's findings upon the facts are conclusive, and the presumption is that the trial court properly applied the law to the facts, no declarations of law being properly or timely requested. Daudt v. Keen, 124 Mo. 111; Bank v. Marbee, 198 Mo. 465; Baumhoff v. Railway Co., 171 Mo. 125; Butler Co. v. Boatmen's Bank, 143 Mo. 23. (2) Plaintiffs made a complete case both under the statute and the common law. The common law, as well as the statute, recognizes the right and affords the remedy to consumers to recover any loss or damage suffered by them by reason of the exaction of any unlawful or unreasonable rate by a public service corporation, that is, the right to recover the excess charged and collected over and above a reasonable rate. Reagan v. Farmers Loan & Trust Co., 154 U.S. 362; Abilene Cotton Oil Co. v. Railway Co., 38 Tex. Civ. App. 366; Texas & P. Ry. Co. v. Abilene Cotton Oil Co., 204 U.S. 426; W. U. Tel. Co. v. Call Publishing Co., 181 U.S. 92; State ex rel. v. Railway Co., 265 Mo. 646, 690. (3) The mere filing of the heat tariff on July 19, 1917, did not conclusively establish the same as a lawful rate. The rate schedule in question, with August 1, 1918 named therein as its effective date, was assailed by the city of Kansas City and by the heat consumers immediately upon their receiving knowledge of such tariff, and, upon a hearing, the Public Service Commission found and declared that the steam heat rate named therein was an unreasonable and unlawful rate. The primafacie lawfulness of this rate was, therefore, overthrown. It never was, in fact, a lawful rate. The mere filing of a tariff is not an approval of the same by the Commission. Ind. Brewing Co. v. Railway Co., 4 Mo. P. S. C. 623. The steam heat tariff was void because it violated the terms of Sec. 10477, R. S. 1919. Ark. Fuel Co. v. Railroad Co., 16 I. C. C. 95; Poor Grain Co. v. Railroad Co., 12 I. C. C. 418; Coomes v. Railway Co., 13 I. C. C. 192; Re New York Steam Co., P. U. R. 1918 B, 866; Parlin & O. Co. v. Railroad, P. U. R. 1915 A, 460; Meeker v. Lehigh Railroad Co., 236 U.S. 412; Texas & P. Ry. Co. v. Oil Co., 204 U.S. 426. (4) Appellant cannot successfully assert that the decision of the Commission in Cause No. 1353 was confiscatory or unconstitutional. (a) The alleged defense that the Public Service Commission fixed steam heat rates in Cause No. 1353 (5 Mo. P. S. C. 664-683) which were unreasonable and confiscatory, is clearly an attempt to collaterally attack that decision of the Commission. This is not permissible. The Public Utilities Act provides for a direct attack upon or review of any decision or order of the Commission, but expressly forbids a collateral attack. Sec. 10522, R. S. 1919; Sec. 10526, R. S. 1919. (b) Not only does the statute forbid a collateral attack upon a decision of the Commission, but the established general law is, that where the statute provides a complete, legal remedy, that remedy is exclusive. This question has been often raised in the matter of reviewing or attacking decisions of Public Service Commissions, and in every such case, the decision of the court has been to the effect that the statutory remedy prescribed for a court review of the decisions of Public Service Commissions is exclusive, and if not taken advantage of, the decisions of the Commission cannot be assailed in a collateral proceeding. Willapa Power Company v. Public Service Commission, 188 P. 464; State ex rel. v. O. R. & N. Company, 68 Wash. 160; State ex rel. v. Railroad Co., 68 Wash. 257; City of Chicago v. O'Connell, 278 Ill. 591; Denver & S. P. Ry. Co. v. Engelwood, 161 P. 161; Fletcher Paper Co. v. Railway Co., 164 N.W. 528; Detroit & M. Ry. Co. v. Fletcher Paper Co., 248 U.S. 30; Marin Munic. Water Dist. v. Water Co., 173 P. 473. (c) If it were a proper and tenable issue whether or not the steam-heat rates fixed by the Public Service Commission in Cause No. 1353 were confiscatory, it would be a question of fact, and the burden of proof to show the confiscatory character of the rates fixed would be upon the party (appellant) asserting that the same were confiscatory. In this case, a law case, not an equity case, the court, sitting as a jury, found "the issues herein in favor of plaintiffs and against defendant." That finding is conclusive on this issue, if it was a tenable issue, and it is not within the province of this court to weigh the evidence or to decide anew this question of fact. We may add that the evidence adduced by the defendant (appellant) was not sufficient in kind or character to have warranted a finding that the rates fixed by the Public Service Commission in Cause No. 1353 were confiscatory. To maintain, even in a proper, direct proceeding, that rates which have been fixed by competent authority, are confiscatory, and to overthrow the presumptive correctness and legality of rates so fixed, the evidence must be complete, definite, clear and unquestionable. Missouri Rate Cases, 230 U.S. 474; Allen v. Railway Co., 230 U.S. 553; Wood v. Vandalia Railroad Co., 231 U.S. 1; L. & N. Railroad Co. v. Railroad Comm., 208 F. 35.
The respondents (plaintiffs) brought this suit against appellant, a public service company engaged in furnishing heat, light and electric current to consumers in Kansas City, to recover the amount of alleged excess charges paid by certain consumers for steam heat furnished during the period from August 1, 1917, to March 1, 1918. The petition contains 104 counts. The plaintiffs sue as assignees of the several claims of the respective consumers named in the various counts. Plaintiffs were given judgment on each of the several counts, and in the aggregate sum of $ 26,829.59.
Preliminary to a statement of the issues made upon the pleadings, and otherwise, a brief outline may be given. Prior to August 1, 1917, the defendant was charging and collecting from consumers, for heat furnished, compensation based upon rates contained in its schedule on file with the Public Service Commission, and in force as such. On June 23, 1917, the defendant filed with the Public Service Commission a new schedule, materially increasing the rates for heat, and to take effect on and after August 1, 1917, and that rate, no order suspending it having been made by the Commission, went into effect on August 1st. On September 13, 1917, a formal complaint against the new rates was filed by Kansas City, and shortly after Mary B. Case and a large number of other consumers, by an intervening petition, joined in the complaint, the ground of which was that the rates were excessive and unjust. The defendant company appeared and answered. The Commission thereupon ordered and entered upon an investigation, under Commission Case No. 1353.
On February 11, 1918, the Commission stated its findings and conclusions upon the evidence before it, and entered its order wherein it held that the rates and prices then being charged by the defendant company for steam heating were "unjust and unreasonable, and that said rates and prices are unreasonably high." The Commission thereupon further, by said order, set forth as just and reasonable to be charged for said service, a schedule of monthly rates and prices somewhat lower, and ordered that the defendant company should not after March 1, 1918, charge in excess of the rates so fixed. The defendant company did not bring a statutory proceeding to review the order, or otherwise proceed to annul it. The plaintiffs in the instant case sue to recover the amount of the difference between what was actually paid by the consumers under the company's schedule, in the period from August 1, 1917, to March 1 1918, and the amount they would have been required to pay during the same period measured by the schedule put...
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