State ex rel. Beaufort Transfer Co. v. Clark

• Decision Date: 31 December 1973
• Docket Number: No. 25819--20,25819--20
• Citation: 504 S.W.2d 216
• Parties: STATE of Missouri, ex rel. BEAUFORT TRANSFER CO., Relator-Appellant, v. William R. CLARK et al., Respondents.
• Court: Missouri Court of Appeals

Page 216

504 S.W.2d 216

STATE of Missouri, ex rel. BEAUFORT TRANSFER CO., Relator-Appellant, v. William R. CLARK et al., Respondents.

No. 25819--20.

Missouri Court of Appeals, Kansas City District.

Dec. 31, 1973.

Hendren & Andrae, Jefferson City, for relator-appellant.

Jeremiah D. Finnegan, Gen. Counsel, Missouri Public Service Comm., Richard T. Ciottone, Asst. Gen. Counsel, Jefferson City, for respondent.

Before SHANGLER, P.J., and DIXON, PRITCHARD, SWOFFORD and WASSERSTROM, JJ.

DIXON, Chief Judge.

These consolidated appeals arise from separate judgments entered in the Circuit Court of Cole County affirming the Missouri Public Service Commission's orders awarding Certificates of Public Convenience and Necessity for the intrastate motor carrier authority once held by Fisher Trucking Co. The appellant, Beaufort Transfer Co., and Philipp Transit Lines, Inc., each filed applications with the Commission seeking various portions of that authority, and it is from the granting of certain routes to Philipp and the denial of certain parts of the authority sought by Beaufort that Beaufort appeals.

Appellate review of adjudicative proceedings before the Public Service Commission is limited to a determination of the lawfulness and reasonableness of the Commission's action; lawfulness is determined from the statutory authority of the Commission to act while reasonableness depends on whether the decision is supported by competent and substantial evidence. Mo.Const. Art. V, Section 22, V.A.M.S. Maag v. Public Service Commission, 384 S.W.2d 801 (Mo.App.1964). It is conceded the Commission's action is within the scope of its statutory authority; it is contended that there is insufficient evidentiary support for the orders made. While the applicant has the burden of proving the need for the transportation authority sought, once such authority is granted, the burden of showing that the decision of the Commission was not based on competent and substantial evidence rests on the protestant. State ex rel. St. Louis-San Francisco Railway Co. v. Public Service Commission, 439 S.W.2d 556 (Mo.App.1969). This court is not authorized to weigh the evidence on appeal; the judgments of the Commission will be affirmed when the record clearly demonstrates that the Commission's orders were supported by substantial evidence.

First, Beaufort contends that the circuit court erred in affirming the respondent's order refusing to grant Beaufort the authority to transport general commodities, including fresh meat and packing house products, between St. Louis and Washington, Missouri. Beaufort sought this regular route authority; Philipp was serving those points under an existing permanent regular route certificate while Beaufort held a temporary grant of authority to transport meat only for that route issued after the Fisher organization discontinued service.

The Commission made clear findings in the record that there was no need for an additional regular route carrier between Washington and St. Louis. It is apparent from those findings that the Commission took cognizance of the existence of carrier service between those points by three other lines (Philipp, Sheer Transfer Company, and St. Louis, Washington, Union Express). Each such company engaged in the transportation of general commodities, including meat and meat products, under existing permanent authority.

In support of its application, Beaufort presented the testimony of its president, one shipper, and three consignees, all indicating that there was a need to expend the carrier service between Washington and St. Louis. However, philipp and other protestants offered the testimony of twelve witnesses--five representatives of the protesting truck lines and seven shippers and consignees--indicating that there was adequate carrier service over the routes sought by the applicant. Many referred specifically to the Washington-St. Louis route expressing concern that the addition of a carrier would result in the idling of equipment, decreased revenues for the existing haulers, and a deterioration of service. In addition, the protestants offered to call sixteen (16) other witnesses to testify; but Beaufort stipulated that their testimony would be cumulative.

The Public Service Commission is under a statutory obligation to consider the service provided by other carriers in passing on an application for a Certificate of Public Convenience and Necessity (Sec. 390.051 RSMo 1969, V.A.M.S.), and it must consider the effect which the proposed transportation service may have on the operation and revenues of existing carriers. See: State ex rel. Byers Transp. Co., Inc. v. Public Service Commission, 246 S.W.2d 825 (Mo.App.1952); State ex rel. Missouri Pacific Freight Company v. Public Service Commission, 288 S.W.2d 679 (Mo.App.1956), affirmed 295 S.W.2d 128 (Mo.1956). In view of the evidence indicating that three carriers were competing for business over the Washington-St. Louis route and that each actively solicited business and transported general commodities, including meat and meat products, between those points and the strong showing of concern that the addition of a carrier would adversely affect the existing truckers and the quality of service available, it may not be said that the decision of the Commission was unreasonable or lacked evidentiary support. Beaufort's first point is accordingly denied.

Second, Beaufort contends that the circuit court erred in affirming the Commission's decision awarding Philipp authority to transport fresh meat and packing house products between St. Louis and ten communities which were served by Beaufort under a permanent regular route authority at the time the Philipp application was made. The ten points were Belle, Bland, Canaan, Owensville, Rosebud, Gerald, Leslie, Beaufort, Union, and Jeffriesburg; and the appellant's argument is simply that adequate service was provided to those points and that the applicant failed to prove the need for additional service to those points. Again, the record must be reviewed and the Commission's decision affirmed if supported by substantial evidence of the need for duplicate service over those routes.

In support of its application, Philipp first offered testimony of its president indicating that his line was serving the twenty-six (26) points sought in its application, transporting meat and packing house products under a temporary authority from the Commission. That temporary authority was granted after the Fisher Trucking Co. ceased to provide service to those towns, and it...