State ex rel. Alton R. Co. v. Public Service Com'n

• Decision Date: 30 October 1941
• Docket Number: 37585
• Parties: State of Missouri at the relation of Alton Railroad Company, Appellant, v. Public Service Commission
• Court: Missouri Supreme Court

155 S.W.2d 149

348 Mo. 780

State of Missouri at the relation of Alton Railroad Company, Appellant, v. Public Service Commission

No. 37585

Supreme Court of Missouri

October 30, 1941

Appeal from Cole Circuit Court; Hon. Sam C. Blair, Judge.

Affirmed.

Charles M. Miller for appellant.

(1) Under proper construction of the amended order, the petition for rehearing was filed before the effective date of the order, and that under proper construction of the amended order, relator and appellant really had until Feb. 24, 1940 to file its petition for rehearing with the Commission, and having filed it on Feb. 12, 1940, it was within time, and the trial court erred in ruling otherwise. Secs. 5601, 5689, R S. 1939. (2) Section 655, Revised Statutes of Missouri, 1939 which, in computing time, excludes the first day and includes the last, and also provides that where the last day for doing an act, falls on Sunday, the doing of the act on Monday, is within time. Sec. 5690, R. S. 1939; Welch v. Welch, 238 N.W. 81; Burgess v. Magers, 24 S.W.2d 1042; Stulz v. Cameron, 162 S.W. 221. (3) Under Sec. 5601, Revised Statutes of Missouri, 1939, the Commission was without power to make any order effective, or start the time running for the filing of a petition for rehearing, until a copy of the order has been served on the parties involved, and in this case, the order was not served on the Alton Railroad Company until Feb. 3, 1940, Secs. 5600, 5689, R. S. 1939. (4) Because the Commission acted upon the petition for rehearing when it overruled it on Feb. 21, 1940, thus construing under the amended order, at least inferentially, that the petition for rehearing had been filed in time, when filed on Feb. 12, 1940, and the trial court erred in not so holding. (5) Because the position of respondent is purely technical, and it in no event, should be permitted to deny appellant a judicial review on the merits, and especially where appellant has exercised due diligence, and the Commission acted upon the petition for rehearing without any question as to it having been filed in time.

James H. Linton, General Counsel, and Lester G. Seacat, Assistant Counsel, for respondent.

(1) Appellant failed and neglected to file a petition or application for a rehearing with the Public Service Commission of Missouri in Commission Case No. 7867, before the "Report and Order on Application to Amend Order" issued by the Commission in said case on February 2, 1940, became effective, and as a result, said report and order became final and conclusive and could not be reviewed nor set aside by said circuit court, and no cause or action accrued thereon in the Circuit Court of Cole County, Missouri, irrespective of the filing therein of the petition for writ of certiorari. Secs. 5689, 5690, R. S. 1939; State ex rel. Kansas City, Independence & Fairmount Stage Lines Co. v. Pub. Serv. Comm., 63 S.W.2d 88, 333 Mo. 544; State ex rel. Toedebusch Transfer, Inc. v. Pub. Serv. Comm., 144 S.W.2d 836; State ex rel. Case v. Seehorn, 283 Mo. 508, 223 S.W. 664. (2) Appellant's petition for writ of certiorari, upon its face, showed that said court could not then acquire jurisdiction to review said report and order of the Commission. Secs. 5689, 5690, R. S. 1939; State ex rel. Kansas City, Independence & Fairmount Stage Lines Co. v. Pub. Serv. Comm., 63 S.W.2d 88, 333 Mo. 544; State ex rel. Toedebusch Transfer, Inc. v. Pub. Serv. Comm., 144 S.W.2d 836; State ex rel. Case v. Seehorn, 283 Mo. 508, 223 S.W. 664. (3) The proper and reasonable construction of the report and order issued on February 2, 1940, is that it became effective at the very beginning of the day, February 12, 1940, and that all parts thereof became effective at the same time. State ex rel. Independence & Fairmount Stage Lines Co. v. Pub. Serv. Comm., 63 S.W.2d 88, 333 Mo. 544; State ex rel. Toedebusch Transfer, Inc. v. Pub. Serv. Comm., 144 S.W.2d 836; Whitaker v. Mutual Life Ins. Co. of N. Y., 114 S.W. 53, 133 Mo.App. 664; Acme Life Ins. Co. v. White, 99 S.W.2d 1059. (4) The provisions of Section 655, Revised Statutes of Missouri, 1939, providing for the exclusion of the first day and the inclusion of the last day, in computing time, and the suggestion in said section that where the last day for doing an act falls on Sunday, the doing of the act on Monday, would be timely, did not have the effect of extending the time for filing the application for rehearing with the Commission, nor postpone the effective date of the order of the Commission beyond February 12, 1940. State ex rel. Independence & Fairmount Stage Lines Co. v. Pub. Serv. Comm., 63 S.W.2d 88, 333 Mo. 544; State ex rel. Toedebusch Transfer, Inc. v. Pub. Serv. Comm., 144 S.W.2d 836; Whitaker v. Mutual Life Ins. Co. of N. Y., 114 S.W. 53, 133 Mo.App. 664; Acme Life Ins. Co. v. White, 99 S.W.2d 1059. (5) The report and order of the Commission became effective February 12, 1940, without regard to the fact that appellant did not receive a certified copy thereof until February 3, 1940, because, when a certified copy of said report and order was mailed to appellant on February 2, 1940, with postage prepaid, said report and order was served upon appellant within the contemplation of the statute, Section 5601, R. S. 1939. Isaak v. Journey, 13 P.2d 247, 52 Idaho 274; Griffin v. Board of County Comrs. of Walworth County, 104 N.W. 1117, 20 S.D. 142. (6) The fact that the Public Service Commission, by its order of February 21, 1940, denied appellant's petition for rehearing raises no inference that the Commission regarded said petition for rehearing as having been filed in time. However, irrespective of whether the Commission did, or did not, regard it as having been filed in time, the mere act of denying the same and making an order to that effect, did not change the date of the filing, nor could it abrogate the requirements of the statute. Sec. 5689, R. S. 1939; State ex rel. Kansas City, Independence & Fairmount Stage Lines Co. v. Pub. Serv. Comm., 63 S.W.2d 88. (7) One who has failed to file an application for rehearing within the time prescribed by law has not exercised due diligence. Due diligence is the diligence due from one as a reasonable and prudent man under the circumstances. Perry v. City of Cedar Falls, 54 N.W. 225, 87 Iowa 315; Jones v. McGuirk, 51 Ill. 382, 99 Am. Dec. 556; Nixon v. Wehrich, 20 Ill. 600; Dillman v. Nadelhoffer, 43 N.E. 378, 160 Ill. 121. (8) The construction of the subway in question has been delayed more than nine years since the Commission found conditions at the crossing made the subway advisable. The history of this matter shows that appellant has had most of the issues arising out of said proposed subway reviewed by the Circuit Court and by the Supreme Court of Missouri, and that those courts upheld the order of the Commission requiring the construction of said subway. State ex rel. Alton Ry. Co. v. Pub. Serv. Comm., 70 S.W.2d 61. (9) The order and judgment of the Circuit Court of Cole County, Missouri, sustaining respondent's motion to quash the writ of certiorari, quashing said writ and dismissing relator's petition should be affirmed for the further reason, that appellant failed to object to said action and ruling of the court, failed to save an exception to such action, ruling, order and judgment of said court, and failed to have "Relator's Bill of Exceptions," as the same was actually signed, settled, allowed and filed in the circuit court, show an exception saved to the action, ruling, order or judgment of said circuit court; and as a result appellant has failed to preserve the matter for review by this court. Leahy v. Mercantile Trust Co., 296 Mo. 561, 247 S.W. 396; Coffey v. Carthage, 200 Mo. l. c. 629; Godfrey v. Godfrey, 228 Mo. 513; Shohoney v. Railroad, 231 Mo. l. c. 152; Interstate Ry. Co. v. Railroad, 251 Mo. l. c. 717; Graves v. Dakessian, 132 S.W.2d 972.

Dalton, C. Hyde and Bradley, CC., concur.

OPINION

DALTON

On March 19, 1940, appellant filed its petition in the Circuit Court of Cole County for a writ of certiorari, pursuant to Sec. 5690, R. S. 1939, Mo. Stat. Ann., sec. 5234, p. 6661, to review a report and order of respondent. The writ was duly issued, served and return made. The return shows that on February 2, 1940, respondent entered a report and order upon an application to amend a prior report and order of respondent, as entered on June 11, 1932, requiring appellant to do the actual work of constructing an underpass or subway on Sterling avenue in Jackson County, at a point where Sterling avenue intersects and crosses appellant's tracks, and to bear 50 per cent of the cost of construction. On motion of respondent, the circuit court quashed the writ of certiorari and dismissed relator's petition. Relator appealed. The amount involved gives this court jurisdiction.

We are concerned only with the effective date of the order and subsequent proceeding in order to determine whether appellant filed its motion for a rehearing before the commission, within the time prescribed by statute, so as to authorize the circuit court, thereafter, to review the proceeding on certiorari. Accordingly we shall omit from the final report and order the findings of fact, the reasons stated by the commission, and all signatures. We shall set out only a part of the concluding portion of the "Report and Order upon Application to Amend Order," as follows:

"It is, therefore,

"Ordered 1. That the order of the Commission issued in this case on June 11, 1932, be and the same is hereby amended by striking out all of the paragraphs designated Ordered: 1, Ordered: 2, and Ordered: 3, and substituting new paragraphs in lieu thereof and by adding new paragraphs thereto which will make the amended order read as follows:

"Ordered 1. . . .;...