State ex rel. Alton Transp. Co. v. Public Service Com'n of Missouri

• Decision Date: 02 April 1932
• Docket Number: 30692
• Citation: 49 S.W.2d 619,329 Mo. 1139
• Parties: State ex rel. the Alton Transportation Company v. Public Service Commission of Missouri, Appellant
• Court: Missouri Supreme Court

49 S.W.2d 619

329 Mo. 1139

State ex rel. the Alton Transportation Company v. Public Service Commission of Missouri, Appellant

No. 30692

Supreme Court of Missouri

April 2, 1932

Appeal from Cole Circuit Court; Hon. W. S. Stillwell Judge.

Reversed and remanded (with directions).

D D. McDonald and J. P. Painter for appellant.

(1) All orders of the Commission are prima facie lawful and reasonable. Secs. 5246, 5247, R. S. 1929; State ex rel v. Busby, 274 S.W. 1067; State v. Pub. Serv. Comm., 297 S.W. 47; State v. Pub. Serv. Comm., 291 S.W. 788; C. B. & Q. Railroad Co. v. Pub. Serv. Comm., 181 S.W. 61. (2) Applicant for a certificate of convenience and necessity for the operation of a motor bus line has the burden of showing that the order of the Public Service Commission refusing it a certificate is unreasonable or unlawful. Sec. 5247, R. S. 1929; State v. Pub. Serv. Comm., 23 S.W.2d 115; Bartonville Bus Line v. Eagle Motor Coach Co., 326 Ill. 200, 157 N.E. 175; State ex rel. Railroad Co. v. Pub. Serv. Comm., 327 Mo. 249. (3) Order denying application for a certificate of convenience and necessity for a motor bus line is one falling within the discretionary power of the Public Service Commission, where it is based on consideration that the transportation service being furnished by other carriers is sufficient. Secs. 5267, 5275, 5278, R. S. 1929; State v. Pub. Serv. Comm., 23 S.W.2d 115; Superior Motor Bus Co. v. Community Motor Bus Co. (Ill.), 150 N.E. 668; Monongahela West P. S. Co. v. State Road Comm., 139 S.E. 744. (4) It is the policy of the Motor Bus Act, a part of the Public Service Commission Law, that public convenience and necessity be served by existing utilities and save the economic waste that follows unregulated and useless duplication of service. Sec. 5267, R. S. 1929; State v. Pub. Serv. Comm., 23 S.W.2d 115; State ex rel. v. Atkinson, 275 Mo. 325; Pond on Public Utilities (3 Ed.) sec. 731, p. 778; State ex rel. Krakenberger v. Department of Public Works, 141 Wash. 168, 250 P. 1088; Red Star Trans. Co. v. Red Dot Coach Lines, 220 Ky. 424, 295 S.W. 419. (5) Respondent in this case has not met the burden of proof which is on the adverse party to show by clear and satisfactory evidence that the Commission's order is unreasonable and unlawful. Sec. 5247, R. S. 1929; State ex rel. v. Public Service Comm., 271 Mo. 167; State ex rel. Ozark Power & Water Co. v. Pub. Serv. Comm., 287 Mo. 533; State ex rel. Henson v. Pub. Serv. Comm., 31 S.W.2d 208.

Charles M. Miller for respondent.

The restriction of the Commission, preventing the Alton Transportation Company from transporting passengers locally between Fulton and Jefferson City is unreasonable and unlawful. Because the majority report of the Commission misconceived and misconstrued Sec. 5267, R. S. 1929, as not authorizing or permitting the granting of a competitive bus line certificate to the Alton Transportation Company, a subsidiary of the Chicago & Alton Railroad, in view of the fact that the Greyhound Lines, Inc., had previously acquired by purchase, a certificate permitting the operation of busses between Fulton and Jefferson City, if the Greyhound Lines, Inc., were with such busses, adequately serving the traveling public between Fulton and Jefferson City. Because the majority report of the Commission did not give due consideration to the Alton Transportation Company as a subsidiary of the Chicago & Alton Railroad, an existing carrier. Because the Chicago & Alton Railroad, through its subsidiary, the Alton Transportation Company, has a perferential right to operate a bus line locally between Fulton and Jefferson City, on Route 54 highway paralleling the Chicago & Alton Railroad. B. & O. Railroad v. State Road Comm. of W. Va., 138 S.E. 744, and cases therein cited. Ray Motor Coach Co., Inc., P. U. R. 1926B, 548; Virginia & Trukee Ry. Co., P. U. R., 1928C, 203; Sou. Pac. Motor Co., P. U. R. 1929A, 193. Because the evidence disclosed that public convenience and necessity would be promoted by granting to the Alton Transportation Company the right to transport passengers locally on its proposed bus line between Fulton and Jefferson City.

Ferguson, C. Sturgis and Hyde, CC., concur.

OPINION

FERGUSON

Appeal by the Public Service Commission from a judgment of the Circuit Court of Cole County setting aside an order of the commission on the ground that same is "unreasonable and unlawful." On the 11th day of January, 1928, The Alton Transportation Company, a subsidiary of the Chicago & Alton Railroad Company, all the stock of the transportation company, except qualifying shares, being owned by the Receivers of the Railroad Company filed an application with the Public Service Commission for a certificate of public convenience and necessity authorizing it to operate as a motor carrier between Mexico and Jefferson City, Missouri, upon Missouri-U.S. Highway No. 54. The Chicago & Alton Railroad Company owns and operates a line of railroad, approximately fifty miles in length, running south from Mexico, Missouri, through Auxvasse, McCredie, Fulton Carrington, Guthrie, New Bloomfield, Hibernia, North Jefferson and Cedar City terminating at South Cedar City on the north side of the Missouri River opposite Jefferson City. Missouri-U.S. Highway No. 54 very closely parallels this line of railroad from Mexico to Jefferson City and Mexico, Auxvasse, McCredie, Fulton, New Bloomfield, Hibernia and Jefferson City are served by the highway. Applicant sought a certificate permitting it to operate a line of motor busses over this highway, as a common carrier, between Mexico and Jefferson City and all intermediate points. A hearing upon the application was had before the Commission on March 30, 1928, at which the granting of a certificate was opposed by the Greyhound Lines, Inc., a duly certified motor carrier corporation then operating a bus line over Highway No. 54 between Fulton and Jefferson City and serving the intermediate points. In 1927 Joseph A. Randazzo and Anna Randazzo applied for and the Commission granted them a certificate of public convenience and necessity to operate a motor bus line upon highway 54 between Fulton and Jefferson City and intermediate points. Pursuant to that authority the Randazzos began the operation of such line. Thereafter they sold the business to the Greyhound Lines, Inc., and on December 31, 1927, and before the filing of the application herein, the Randazzo certificate was transferred, with the consent and approval of the Commission, to the Greyhound Lines, Inc. No motor bus service whatsoever was in operation between Mexico and Fulton. The evidence on behalf of applicant was that the Chicago & Alton Railroad Company's line was the only railroad directly and immediately serving Fulton and the towns on Highway No. 54 between Mexico and Jefferson City; that it had been operating that line of railroad for more than forty years, affording that territory adequate transportation facilities by rail, had large investments in railroad property in the counties of Audrain and Callaway which this line traverses and had contributed to the progress and up-building of that section of the State; that the passenger business of the railroad company had decreased and its revenue from that source been greatly reduced in recent years due to increasing travel by private automobile and motor bus lines; that it was then operating two gasoline-motored passenger trains daily, each way, over its railroad between Mexico and South Cedar City where passengers were transferred by motor busses, operated by the Missouri Power & Light Company, of Jefferson City, under an arrangement with the railroad company, to Jefferson City and that it was operating an additional motor train, each way, daily between Mexico and Fulton, making three trains each way daily between Mexico and Fulton; that the operation of the proposed through line of motor busses between Mexico and Jefferson City supplementing their train service on the Mexico-Jefferson City line and connecting at Mexico with their main line trains going to Chicago, St. Louis and Kansas City would afford additional, convenient and needed through transportation facilities between Mexico and Jefferson City. The evidence offered by the protestant, Greyhound Lines, Inc., was that it operated three, well equipped, twenty-nine passenger seating capacity parlor motor busses, each way, between Fulton and Jefferson City daily; that it had purchased the franchise and business from the Randazzos of date of December 31, 1927, with the consent and approval of the Commission, and had thereupon placed a better type of motor busses in use on this line than had been theretofore operated; that a motor bus of the type used by it on this line cost $ 12,000; that since it had owned and operated this line, being January, February, and twenty days in March, 1928, next preceding the date of the hearing, its busses had carried an average of six passengers per trip; that the minimum cost of operation was twenty-five cents per mile and that for the period from January 1, to March 20, 1928, the receipts had averaged slightly more than twenty-one cents per mile; that its business ran upon regular schedules which were maintained and that its service adequately and sufficiently met the needs and convenience of the public desiring to travel by motor bus between Fulton and Jefferson City and intermediate points and there is no testimony to the contrary. All the evidence touching the operation of protestant bus line shows that it maintained ample, satisfactory and convenient motor carrier service sufficient to meet all requirements and demands of the territory served and that it was equipped to carry a much larger volume of passenger business than was carried. ...