State ex rel. and to Use of Kansas City Power & Light Co. v. Buzard

• Decision Date: 01 March 1943
• Docket Number: 38242
• Citation: 168 S.W.2d 1044,350 Mo. 763
• Parties: State of Missouri at the Relation and to the Use of Kansas City Power & Light Company, a Corporation, Relator, v. Paul A. Buzard, Judge of the Circuit Court of Jackson County, Missouri, at Kansas City, Division No. 8, and Presiding Judge of the Circuit Court of Jackson County, Missouri, at Kansas City
• Court: Missouri Supreme Court

168 S.W.2d 1044

350 Mo. 763

State of Missouri at the Relation and to the Use of Kansas City Power & Light Company, a Corporation, Relator, v. Paul A. Buzard, Judge of the Circuit Court of Jackson County, Missouri, at Kansas City, Division No. 8, and Presiding Judge of the Circuit Court of Jackson County, Missouri, at Kansas City

No. 38242

Supreme Court of Missouri

March 1, 1943

Provisional rule made absolute.

Ludwick Graves and James H. Ottman for relator Johnson, Lucas, Graves & Fane of counsel.

(1) The determination of the question of the proper classification of a consumer of an electric public utility under any duly filed and established rate of such public utility, including such matters of maximum or assessed demands, energy consumption connected load, power factor, availability of service, and otherwise, is a matter which has been committed to the jurisdiction of the Public Service Commission of Missouri under the Public Service Commission Act. Secs. 5578 (13), 5645-5647, inclusive, and 5686, R. S. 1939; State ex rel The Laundry, Inc., and Overland Laundry Co. v. Public Serv. Comm., 327 Mo. 93, 34 S.W.2d 37. (2) Where the "gist and gravamen of the complaint" is within the purview of the Public Service Commission Law, the Public Service Commission has exclusive jurisdiction and the courts do not have concurrent jurisdiction. The facts and circumstances constituting the "gist and gravamen of the complaint" must be first determined by the Public Service Commission before any action at law or in equity will lie in the courts pertaining thereto or arising therefrom. State ex rel. The Laundry, Inc., v. Public Service Comm., 327 Mo. 93, 34 S.W.2d 37; State ex rel. Cirese v. Ridge, 345 Mo. 1096, 138 S.W.2d 1012; State ex rel. Lambert v. Padberg, 145 S.W.2d 123; State ex rel. Public Service Comm. v. Padberg, 145 S.W.2d 150; State ex rel. Public Service Comm. v. Blair, 146 S.W.2d 865; Mo. Power & L. Co. v. Lewis Co. R. E. Coop. Assn., 149 S.W.2d 881. (3) In a petition in a court action, where the "gist and gravamen of the complaint" is within the purview of the Public Service Commission Law, and subject to the original exclusive jurisdiction of the Public Service Commission, and there is no showing or allegation that the Public Service Commission has first passed upon such questions for its determination, then it is without the jurisdiction of a court to entertain said action. Sonken-Galamba Corp. v. Mo. Pac. R. Co., 225 Mo.App. 1066, 40 S.W.2d 524.

Edgar Shook, David R. Hardy and J. H. Greene, Jr., for respondent; Sebree, Shook & Gisler of counsel.

(1) The statute creating the Public Service Commission of Missouri has not vested and, under the Constitution of Missouri, could not vest in the Public Service Commission jurisdiction to determine an action by a consumer to recover money from a public utility paid for electricity furnished under an established schedule of rates in excess of rates in another established schedule under which the utility is claimed to have been obliged to serve the customer. State ex rel. Empire Dist. El. Co. v. Public Service Comm., 339 Mo. 1188, 100 S.W.2d 509; Public Serv. Comm. v. St. Louis-S. F. Ry. Co., 301 Mo. 157, 256 S.W. 226; State ex rel. Kansas City Term. Ry. Co. v. Public Serv. Comm., 308 Mo. 359, 272 S.W. 957; State ex rel. The Laundry, Inc., v. Public Serv. Comm., 327 Mo. 93, 34 S.W.2d 37; State ex rel. Cirese v. Ridge, 345 Mo. 1096, 138 S.W.2d 1012; State ex rel. Public Serv. Comm. v. Padberg, 345 Mo. 1133, 145 S.W.2d 150; Missouri Power & L. Co. v. Lewis Co. R. E. Coop. Assn., 235 Mo.App. 1056, 149 S.W.2d 881; State ex rel. Lambert v. Padberg, 346 Mo. 1082, 145 S.W.2d 123; State ex rel. Public Serv. Comm. v. Blair, 347 Mo. 220, 146 S.W.2d 865; Sonken-Galamba Corp. v. Mo. Pac. R. Co., 225 Mo.App. 1066, 40 S.W.2d 524; Lusk v. Atkinson, 268 Mo. 109, 186 S.W. 703; State ex rel. Mo. Pac. R. Co. v. Public Service Comm., 303 Mo. 212, 259 S.W. 445. (2) The courts have exclusive original jurisdiction over actions to recover overcharges for electricity when the sole question is which of two or more lawful, published and existing, scheduled rates was applicable and no question of rate legislation is involved. Rhodes-Burford Home F. Co. v. Union Electric L. & P. Co., 2 Mo. P. S. C. 656; Star Theatre v. City of Hannibal, 12 Mo. P. S. C. 34; State ex rel. Laundry, Inc., v. Public Serv. Comm., 327 Mo. 93, 34 S.W.2d 37; State ex rel. Mo. Pac. Railroad Co. v. Public Serv. Comm., 303 Mo. 212, 259 S.W. 445; Oak Grove Home Tel. Co. v. Round Prairie Tel. Co. 209 S.W. 552; May Department Stores Co. v. Union Electric L. & P. Co., 341 Mo. 299, 107 S.W.2d 41; Sonken-Galamba Corp. v. Mo. Pac. Railroad Co., 225 Mo.App. 1066, 40 S.W.2d 524; Central States P. & L. Corp. v. Thompson, 177 Okla. 310, 58 P.2d 868; James v. Oklahoma Nat. Gas Co., 181 Okla. 54, 72 P.2d 495; Gorham Bros. Co. v. Ann Arbor Railroad Co., 228 Mich. 273, 200 N.W. 287; Madregano v. Wisconsin Gas & Electric Co., 181 Wis. 611, 195 N.W. 861; Benwood-McMechan Water Co. v. City of Wheeling, 121 W.Va. 373, 4 S.E.2d 300; Morrison Cafeteria v. Louisiana Public Serv. Comm., 181 La. 932, 160 So. 634; Pennsylvania Railroad Co. v. Puritan Coal Mining Co., 237 U.S. 121, 59 L.Ed. 867; Great Northern Ry. Co. v. Merchants' Elevator Co., 259 U.S. 285, 66 L.Ed. 943; Gimbel Bros. v. Barrett, 215 F. 1004, 218 F. 880; Barrett v. Gimbel Bros., 226 F. 623; Kansas City So. Ry. Co. v. Wolf, 272 F. 681, 261 U.S. 133, 67 L.Ed. 571; National Elevator Co. v. Chicago, M. & St. P. Railway Co., 246 F. 588; Collins Co. v. Davis, 283 F. 837.

Tipton, J. All concur except Gantt, J., absent.

OPINION

TIPTON

This is an original action in prohibition. Relator challenges the jurisdiction of the circuit court in the case of Puritan Compressed Gas Corporation v. Kansas City Power and Light Company.

In that case, Counts I and II of the petition seek recovery of overpayments for electricity served by relator to plaintiff by a separate wire under relator's published schedule -- "General Light and Power Rate" -- in excess of charges for electricity for lighting, had it been furnished in combination with electricity for power, under relator's published schedule -- "Primary Power (Off Peak) Other Than 13,200 Volts Untransformed and Unregulated Service" -- to which plaintiff pleads it was entitled.

Counts III and IV seek recovery of overpayments for electric power supplied to plaintiff under defendant's published schedule -- "Primary Power (Off Peak) Other Than 13,200 Volts Untransformed and Unregulated Service" -- in excess of charges for electric power, had it been furnished under relator's published schedule -- "Commercial Power (Off Peak) 13,200 Volts Untransformed Power Service (Where Available)," -- to which plaintiff pleads it was entitled.

In other words, the petition alleges there were two schedules of rates filed and published with the approval of the Public Service Commission; the plaintiff was charged and paid the higher rate, when it should have been served under the lower rate; and it was entitled to reparation or rebate from the relator. The amount demanded in the petition is the difference between what it paid under the higher rate and what it claims it should have paid under the lower rate.

The relator contends the question of availability and applicability of rates and service is a matter exclusively conferred upon the Public Service Commission, and, since the petition nisi failed to allege the rates and service in question were found by the Public Service Commission to be available and applicable to the plaintiff, the respondent is without jurisdiction.

The relator does not contend the Public Service Commission has jurisdiction to promulgate an order requiring a pecuniary reparation or refund. To this statement we agree. State ex rel. Laundry, Inc. et al. v. Public Service Commission et al., 327 Mo. 93, 34 S.W.2d 37. Relator, however, does contend that in the first instance, the Public Service Commission must first determine which of the two published rates and service is applicable to the plaintiff and after that fact has been determined by that body, then the plaintiff could bring an action in the courts for the money or damage prayed for in the petition.

We have repeatedly held it is the exclusive jurisdiction of the Public Service Commission, in the first instance, to decide all matters placed within the Commission's jurisdiction by the Public Service Act. State ex rel. Cirese v. Ridge, 345 Mo. 1096, 138 S.W.2d 1012; State ex rel. Public Service Commission et al. v. Padberg, 346 Mo. 1133, 145 S.W.2d 150; State ex rel. Public Service Commission v. Blair, 347 Mo. 220, 146 S.W.2d 865.

We agree with the respondent that the Public Service Commission is a body of limited jurisdiction and has only such powers as are expressly conferred upon it by the Statutes and powers reasonably incidental thereto. State ex rel. Empire District Electric Co. v. Public Service Commission et al., 339 Mo. 1188, 100 S.W.2d 509; Public Service Commission v. St. Louis-San Francisco Ry. Co., 301 Mo. 157, 256 S.W. 226.

Relator contends that Sections 5686, 5645, and 5646, R. S. (Mo.) 1939, gives the Public Service Commission jurisdiction to determine the proper classification that the plaintiff was entitled to with reference to the two rates in question.

Section 5686 provides:

"Complaint may be made . . . by any corporation or person . . . by petition or complaint in writing, setting forth any act or thing done or omitted to be done by any . . . public utility, including any rule, regulation or charge heretofore established or fixed by or for any corporation, person or public utility, in violation, or claimed to be in violation, of any provision of law, or of any rule or...