State ex rel. and to Use of Missouri Pac. R. Co. v. State Public Service Commission

• Decision Date: 25 March 1931
• Docket Number: 30538
• Citation: 37 S.W.2d 576,327 Mo. 249
• Parties: The State at Relation and to Use of Missouri Pacific Railroad Company and Missouri Pacific Transportation Company v. Public Service Commission of Missouri, Appellant
• Court: Missouri Supreme Court

37 S.W.2d 576

327 Mo. 249

The State at Relation and to Use of Missouri Pacific Railroad Company and Missouri Pacific Transportation Company v. Public Service Commission of Missouri, Appellant

No. 30538

Supreme Court of Missouri

March 25, 1931

Appeal from Cole Circuit Court; Hon. H. J. Westhues, Judge.

Reversed and remanded (with directions).

D. D McDonald and J. P. Painter for appellant; Crouch & Crouch for Brown Bros. Bus Line, Inc., defendant.

(1) All orders of the commission are prima-facie lawful and reasonable. Secs. 10534, 10535, R. S. 1919; State v Public Service Commission, 297 S.W. 47; State ex rel. v. Busby, 274 S.W. 1067; C. B. & Q. Railroad Co. v. Public Service Commission, 266 Mo. 333, 181 S.W 61; State v. Public Service Commission, 291 S.W. 788. (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. 10535, R. S. 1919; State v. Public Service Commission, 23 S.W.2d 115; Bartonville Bus Line v. Motor Coach Co., 326 Ill. 200, 157 N.E. 175. (3) Order denying application for a certificate of public convenience and necessity for the operation of a motor-bus line is one falling within 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. 4, 8, 11, Laws 1927, pp. 404, 408 and 409; State v. Public Service Commission, 23 S.W.2d 115; Superior Motor Bus Co. v. Community Motor Bus Co., 150 N.E. 668; Monongahela West P. S. Co. v. State Road Comm., 139 S.E. 744. (4) Applicant for a certificate as motor carrier having shown it was not rendering motor carrier service December 1, 1926, there is no presumption that the service is necessary to public convenience. Sec. 11, Laws 1927, p. 409; State v. Public Service Commission, 23 S.W.2d 115. (5) It is the policy of the Motor Bus Act that public convenience and necessity be served by existing utilities and save the economic waste that follows unregulated and useless duplication of service. Sec. 4, Laws 1927, p. 404; Sec. 8, Laws 1927, p. 408; State v. Public Service Commission, 23 S.W.2d 115; State ex rel. v. Atkinson, 275 Mo. 325; Pond on Public Utilities (3 Ed.) 778, sec. 731; State ex rel. Krakenberger v. Department of Public Works, 141 Wash. 168, 250 P. 1088; Red Star Transportation Co. v. Red Dot Coach Lines, 220 Ky. 424, 295 S.W. 419. (6) Respondents have 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 or unlawful. Sec. 10535, R. S. 1919; State ex rel. v. Public Service Commission, 271 Mo. 155; State ex rel. Ozark Power & Water Co. v. Public Service Commission, 287 Mo. 522.

Edward J. White, Otto & Potter, and Thos. J. Cole for respondents.

(1) The orders of the commission should not be presumed to be prima-facie lawful and reasonable where, as here, they have been reversed as unreasonable and unlawful by the circuit court and the case has been brought to this court by an appeal of the commission. State ex rel. Pugh v. Public Service Commission (Mo. Sup.), 10 S.W.2d 948; C. B. & Q. Railroad Co. v. P. S. C., 266 Mo. 333; Lusk v. Atkinson, 268 Mo. 109. (2) The action of the circuit court in holding the order issued by the commission unreasonable is presumed to be proper and the burden is on appellant to show otherwise if it can. Groff v. Longsdon, 239 S.W. 1087; Mastin v. Ireland (Mo.), 8 S.W.2d 900; Palmer v. Transfer Co., 209 S.W. 882. (3) The order of the commission denying the application is unreasonable. Laws 1927, p. 402 et seq.; Egyptian Transportation System, Inc. v. Railroad Co., 321 Ill. 580, 152 N.E. 510, P. U. R. 1929 E. (4) In holding that the Missouri Pacific could not take off local passenger trains 212 and 215, which respondent was compelled to operate at a loss, the commission, in effect, denied the respondent the benefit of its property without due process of law; and then to hold that it could not recoup its loss, which it was compelled to suffer as a result of losing its local passenger business to buses which operated on the highways that it had been taxed to help build, by installing its own passenger motor service, the commission aggravated this injury. Mississippi Railroad Commission v. Railroad Co., 244 U.S. 388; Frisco Ry. Co. v. Public Service Com., 254 U.S. 535; Northern Pacific Ry. Co. v. North Dakota, 236 U.S. 604; Southwestern Tel. Co. v. Danaher, 238 U.S. 482. (5) The holding of the commission that the respondent could not remove passenger trains which were operating at a loss and recoup this loss by operating motor buses on the public highway, was unlawful in that it denied respondent the benefit of its property without due process of law, in violation of the Fourteenth Amendment and of Section 30 of Article II of the Constitution of Missouri. Mississippi Railroad Commission v. Railroad Co., 244 U.S. 388; Frisco Ry. Co. v. Public Service Com., 254 U.S. 535; Northern Pacific Ry. Co. v. North Dakota, 236 U.S. 604; Southwestern Tel. Co. v. Danaher, 238 U.S. 482.

Cooley, C. Davis, C., concurs; Westhues, C., not sitting.

OPINION

COOLEY

Appeal by the Public Service Commission of Missouri, hereinafter referred to as the commission, from the judgment of the Circuit Court of Cole County setting aside an order of the commission refusing a joint application of respondents (applicants) for permission to withdraw certain trains and install motor bus service.

Applicant railroad company operates a line of railroad extending from Joplin, Missouri, northward to Pleasant Hill, Missouri, where it connects with the company's main line running westward into Kansas City. Applicant transportation company is a Delaware corporation, authorized to do business in Missouri, with a paid-up capital stock of $ 100,000, and though a separate corporate entity is referred to as a subsidiary of the railroad company, being owned by stockholders and officers of the railroad company.

Applicants presented to the commission a joint application for permission for the railroad company to withdraw from service its trains Nos. 212 and 215, operating between Joplin and Pleasant Hill, which have been operating at a loss, and for a certificate of convenience and necessity to the transportation company to operate as a motor bus carrier between Joplin and Kansas City, Missouri, over State highways Nos. 71 and 66, for the purpose, as stated in the application, of taking care of the passenger business then and theretofore handled by said two trains. Highways Nos. 71 and 66 are coincident from their junction at Carthage southwestward to Joplin, and for convenience the whole route will be referred to as 71. The highway practically parallels the railroad from Joplin to Harrisonville, some ten miles south of Pleasant Hill. From Harrisonville it runs northwestward to Kansas City, not paralleling the railroad and touching only one town on the railroad, viz., Dodson, near Kansas City. The application names two other towns, Peculiar and Belton, through which it proposes to operate between Kansas City and Harrisonville. One witness for applicants said at the hearing that the transportation company was not asking to give service between Harrisonville and Kansas City except at Dodson, which is on a Missouri Pacific line. Another testified: "We are asking to put on two buses that will . . . serve the immediate towns between Harrisonville and Dodson."

Train 212 operates from Joplin to Pleasant Hill and from the latter point it constitutes part of train No. 47 on the main line into Kansas City. No. 212 is a local train leaving Joplin at 5:30 A. M., and reaching Kansas City at 11:30 A. M. Train 215 is operated from Kansas City to Pleasant Hill as part of main-line train No. 48 and from Pleasant Hill to Joplin as train 215. It leaves Kansas City at 5:30 P. M. It stops only at the larger places, reaching Joplin at 10:50 P. M.

Illustrative of the relative train and proposed bus schedules, applicants propose to substitute for train 215 a bus service leaving Kansas City at three P. M., and another leaving there at five P. M. The bus line now serving that part of the route has buses leaving Kansas City at 10:15 A. M., two P. M. and four P. M., eight A. M. 5:15 P. M. and 11:30 P. M., the three first named daily and the others daily except Sundays and holidays.

At the hearing before the commission applicants stated that the application for permission to the railroad company to withdraw the trains was contingent upon the granting of the application for certificate of convenience and necessity to the transportation company to install the bus service, and that if such certificate was not granted the application for permission to discontinue the trains should be considered withdrawn "so far as this hearing is concerned."

After a full hearing the commission found that public convenience and necessity did not require the granting of a certificate to the transportation company and denied the application of both applicants. Upon certiorari the circuit court set aside the order of the commission "as being unreasonable" and remanded the cause to the commission for further proceedings. It was shown at the hearing and not controverted that the transportation company was able and willing to render adequate and efficient service as a motor bus carrier if granted a certificate.

The city of Pleasant Hill filed a petition signed by seventy-nine residents protesting the abandonment of the trains and the granting of the requested certificate.

The transportation company's application for a certificate was protested by the...