State ex rel. Alton Transp. Co. v. Public Service Commission

• Decision Date: 02 April 1932
• Docket Number: 30691
• Citation: 49 S.W.2d 614,330 Mo. 1
• Parties: State ex rel. the Alton Transportation Company v. Public Service Commission, Appellant
• Court: Missouri Supreme Court

49 S.W.2d 614

330 Mo. 1

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

No. 30691

Supreme Court of Missouri

April 2, 1932

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

Reversed and remanded (on directions).

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

(1) All orders of the Public Service Commission are prima facie lawful and reasonable. Secs. 5246, 5247, R. S. 1929; State ex rel. Detroit-Chicago Motor Bus Co. v. P. S C., 23 S.W.2d 115; State ex rel. v. Busby, 274 S.W. 1067; State v. P. S. C., 297 S.W. 47; State v. P. S. C., 291 S.W. 788; C. B. & Q. Railroad Co. v. P. S. C., 266 Mo. 333. (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 ex rel. Detroit-Chicago Motor Bus Co. v. P. S. C., 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 certificate of public convenience and necessity for the operation of a motor bus line is one falling within the discretionary power of the Public Service Commission, where it is based on the consideration that the transportation service being furnished by other carriers is sufficient. Secs. 5267, 5275, 5278, R. S. 1929; State ex rel. Detroit-Chicago Motor Bus Co. v. P. S. C., 23 S.W.2d 115; Superior Motor Bus Co. v. Community Motor Bus Co., 150 N.E. 668; Monongahela W. P. S. Co. v. State Road Comm., 139 S.E. 744. (4) It is the policy of the Public Service Commission Act that public convenience and necessity be served by existing utilities and save the economic waste that follows unregulated and useless duplication of service. Secs. 5265, 5275, R. S. 1929; State ex rel. Detroit-Chicago Motor Bus Co. v. P. S. C., 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. Dept. 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 failed to meet the burden of proof which is on the adverse party to show by satisfactory evidence that the Commission's order is unreasonable or unlawful. Sec. 5247, R. S. 1929; State ex rel. P. S. C., 271 Mo. 155, 167; State ex rel. Ozark Power & Water Co. v. P. S. C., 287 Mo. 533; State ex rel. Henson v. Pub. Serv. Comm., 31 S.W.2d 208.

Charles M. Miller for respondent.

The order of the Commission, refusing the Alton Transportation Company a certificate of convenience and necessity was unreasonable and unlawful. Because the facts of this case do not reasonably justify the asserted policy of the Commission with respect to a monopolistic bus franchise covering intrastate traffic between St. Louis and Kansas City, to the Pickwick-Greyhound Lines, Inc., on the great arterial highway, U.S. 40, and the invoking of such a policy by the Commission as a reason for denying the certificate prayed by the Alton Transportation Company is, we believe, unreasonable and unlawful. Mo. Motor Bus Act, secs. 5264 to 5281, inclusive, R. S. 1929; Anti-Monopoly Statutes, secs. 4937 and 8700 to 8744, inclusive, R. S. 1929; Sec. 17, Art. XII, of Mo. Constitution, prohibiting any railroad or other corporation from purchasing and consolidating paralleling or competing lines or having joint officers for the purpose of eliminating railroad competition in transportation. Fed. Transportation Act, 1920, Chap. 91, sec. 407, U.S. Code Title 49, page 229, providing that competition shall be preserved as fully as possible where railroads are consolidated into a certain number of systems. Sec. 7 of the Clayton Act, 38, U.S. Statutes L. 730; United States v. U. P. Railroad Co., 226 U.S. 88, which sustains the theory of competition in transportation. Sec. 2739 J-4, R. S. Ky. 1930, recognizing the fundamental of competition in bus operations. Because the Alton Railroad, through its subsidiary, the Alton Transportation Company, is entitled to a preferential right to operate a bus line on U.S. 40, which right was recognized by the Commission, but we believe the Commission unreasonably and unlawfully held, under the facts of this case, that the proposed bus route on U.S. 40, did not sufficiently parallel the line of the Chicago & Alton Railroad between Kansas City and St. Louis, to make the preferential right applicable to the facts of this case. 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. 1926 B, 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 the proposed bus line of the Alton Transportation Company on U.S. 40, and under the evidence, the order of the Commission was unreasonable.

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

OPINION

FERGUSON

This is an appeal by the Public Service Commission of Missouri (hereinafter referred to as the commission) from a judgment of the Circuit Court of Cole County setting aside an order of the commission refusing the application of The Alton Transportation Company for a certificate of convenience and necessity authorizing it to operate a motor bus line, as a common carrier, between St. Louis and Kansas City and intermediate points on Missouri-U.S. Highway No. 40. The applicant, Alton Transportation Company is a subsidiary of the Chicago & Alton Railroad Company, the entire stock of the transportation company, except qualifying shares, being owned by the Receivers of the railroad company. The transportation company "was organized for the purpose of conducting a motor carrier business in the states of Illinois and Missouri in co-ordination with the Chicago & Alton Railroad Company." By its application herein the transportation company sought permission to operate motor busses as a common carrier between St. Louis and Kansas City on Missouri-U.S Highway No. 40 serving all intermediate points thereon. The application states, that the Chicago & Alton Railroad is an "old, established steam carrier," operating between Kansas City, Missouri, and St. Louis, Missouri, "and intermediate cities, towns and villages" and that the commission had theretofore determined that "public convenience and necessity required the operation of a motor bus line on substantially the same route as herein set forth; that the Chicago & Alton Railroad is for a considerable distance, paralleled and intersected at numerous points by U.S. Highway No. 40; that the construction of U.S. Highway, No. 40 and the operation of motor busses thereon, has taken away from said railroad in the community which it has served as a pioneer carrier for a great number of years and helped to build up and sustain, and has large investments, a substantial part of its passenger traffic, making necessary, if the operation of motor busses is a public convenience and necessity on said highway, the operation of a motor bus line in coordination with said railroad as herein prayed, so that the community served will have sufficient, reliable, dependable, economical and permanent transportation service by rail and motor bus, at reasonable cost; that reasonable consideration to the transportation furnished by rail by the Chicago & Alton Railroad requires that if motor bus transportation on U.S. Highway, No. 40 between Kansas City, Missouri, and St. Louis, Missouri, and intermediate points is a public convenience and necessity, that your petitioner be given the right to furnish the same in coordination with said railroad service by rail." The application then asks that the transportation company be granted a certificate of public convenience and necessity to operate a motor bus line on Highway No. 40 as therein set out. At the hearing before the commission the granting of a certificate was protested by the Wabash Railway Company, the St. Louis Public Service Company, the Yelloway, Inc., and the Purple Swan Safety Coach Lines, Inc.

The Chicago & Alton Railroad enters Missouri at Louisiana and runs thence through Bowling Green and Vandalia to Mexico from which point a branch line runs south through Fulton to South Cedar City. From Mexico its railroad lines continue to Kansas City passing through Centralia, Higbee, Slater, Glasgow Marshfield, Higginsville, Odessa and other towns and villages. Its St. Louis and Kansas City trains are run over the Chicago-Burlington & Quincy tracks between Mexico and St. Louis. It runs two passenger trains each way between Kansas City and St. Louis daily. Missouri-U.S. Highway, No. 40 over which the Chicago & Alton Railroad Co., through its subsidiary, the applicant herein, seeks permission to operate motor busses, is the shortest and most direct cross-state highway connecting St. Louis and Kansas City, the distance between the two cities by this route being 258 miles. The cities of Wellston, St. Charles, Warrenton, Columbia, Boonville and Odessa and numerous other towns and villages are served by Highway No. 40. The Chicago & Alton Railroad does not directly contact and serve any of these towns and cities except at the town of McCredie in Callaway County, the branch line of the Chicago & Alton running south from Mexico to South Cedar City intersects the highway and at Odessa, about forty miles from and east of Kansas City the Chicago & Alton line from Louisiana, Missouri, through Mexico to Kansas City contacts the highway and from that point parallels the highway for some distance serving the territory between Odessa and Kansas City. The ...