State ex rel. Beaufort Transfer Co. v. Public Service Commission

• Citation: 593 S.W.2d 241
• Decision Date: 31 December 1979
• Docket Number: No. KCD,KCD
• Parties: STATE ex rel. BEAUFORT TRANSFER COMPANY, Relator-Appellant, v. PUBLIC SERVICE COMMISSION of the State of Missouri Respondent-Respondent. 30593.
• Court: Court of Appeal of Missouri (US)

Page 241

593 S.W.2d 241

STATE ex rel. BEAUFORT TRANSFER COMPANY, Relator-Appellant, v. PUBLIC SERVICE COMMISSION of the State of Missouri

Respondent-Respondent.

No. KCD 30593.

Missouri Court of Appeals, Western District.

Dec. 31, 1979.

John E. Burruss, Jr., Hendren & Andrae, Jefferson City, for relator-appellant.

Herman W. Huber, Jefferson City, for intervenors St. Louis-Kansas City Express, Inc., and Overnite Transp. Co., respondent P.S.C. adopted intervenors' brief for their own.

Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.

MANFORD, Judge.

This is a direct appeal from ruling and judgment by the circuit court upon two writs of review. The two cases were consolidated by agreement of the parties before the trial court.

Appellant has not technically complied with Rule 84.04(d) as the points relied upon in appellant's brief do not state briefly and concisely what rulings or actions by the trial court were allegedly erroneous and should be reviewed. However, this appears to be a case of first impression and is a matter of administrative review. The arguments of the parties and the documents of record are sufficient to permit a review of the issues raised; and upon the belief that justice warrants review, this court proceeds herein pursuant to Rule 84.08.

Although there was oral argument before this court, the record of this case contains no testimony by witnesses; rather, it is limited to the pleadings, applications, orders and other written documents pertaining to issues as drawn.

Before considering the facts and points raised on appeal, it is necessary to identify the parties herein. There is no brief on file separate and distinct on behalf of respondent, Public Service Commission. The record shows respondent, in writing, notified this court, under date of May 22, 1979, that respondent, by reference, adopted the brief of intervenors as its own. ¹ This case involves appellant, (Beaufort Transfer Company), St. Louis-Kansas City Express, Inc. and Overnite Transportation Company. These three parties are common carriers authorized to do business in Missouri. Respondent is the Missouri Public Service Commission.

On November 10, 1977, St. Louis-Kansas City Express, Inc. (hereinafter referred to as SKX) and Overnite Transportation Company (hereinafter referred to as Overnite) filed an application with the respondent, Public Service Commission (hereinafter referred to as the P.S.C.) for approval of transfer of all operating authority held by SKX to Overnite. SKX was the then holder of Certificate of Public Convenience and Necessity and Interstate Permit No. T-7. The application for transfer was made pursuant to § 390.111 ² and the published rules promulgated by the P.S.C. relative to transfers.

What gave cause to the application was that SKX and Overnite had entered into a sale/purchase agreement where, as purchaser, Overnite acquired the entire operation, both interstate and intrastate, of SKX.

Attached to the application to transfer was a copy of the sale/purchase agreement and Overnite's financial statement, corporate articles and certification to do business in Missouri. Within the body of the application was the declaration that the applicants had pending a request for approval of the sale and transfer of interstate authority before the Interstate Commerce Commission. The application also declared that when the applicants received I.C.C. approval, said approval would be filed with the P.S.C.

On November 15, 1977, appellant petitioned to intervene and to protest in the pending transfer application proceedings of SKX and Overnite. The petition, in summary, alleged that the approval of the transfer would deprive appellant of business and would interfere with appellant's ability to render transportation services, then being performed by appellant; ³ that SKX had failed to perform any service to a number of points within the area authorized to be served by SKX; that SKX had abandoned, discontinued and failed to service the areas designated under the certificate of authority; that since abandonment had occurred, a transfer of such authority would be inconsistent with the public interest and that by reason of the alleged abandonment, the certificate of authority of SKX should be amended, altered, suspended or revoked. The petition went further in requesting that SKX be required to show that it was a qualified carrier under and pursuant to Chapter 390, RSMo 1969. The petition prayed for a hearing before the P.S.C. on the allegations set forth in the petition.

On November 21, 1977, intervenors filed a motion to deny intervention and protest. On November 22, 1977, a petition to intervene was filed by Orscheln Brothers Truck Lines, Inc. and Waller Truck Company, Inc. On December 15, 1977, intervenors filed a motion to deny the second petition to intervene. On December 21, 1977, by a transmittal letter, intervenors advised respondent of Overnite's I.C.C. authorization to lease and temporarily control SKX. Subsequently, a copy of the I.C.C. order was filed with the respondent.

On December 29, 1977, respondent issued an order approving intervenor's application to transfer and denied the petitions to intervene filed by appellant, Orscheln and Waller. No hearing was held relative to the petitions to intervene.

This was the order of events relative to appellant's petition to intervene. ⁴ Simultaneously, with the petition to intervene, appellant filed a second action in the nature of a complaint against SKX with respondent. ⁵

This complaint, in summary, alleged appellant was authorized to service many of the same areas as SKX; that appellant was granted temporary authority to serve such areas and that appellant had requested the granting of permanent authority to service these areas. The complaint continued by alleging SKX had abandoned service to the prescribed areas; that appellant had expended large sums of money, effort and time in providing service to said areas and that by virtue of the failure of SKX to service said areas, the authority of SKX had become dormant and the authority of SKX should be cancelled and revoked pursuant to § 390.106.

On November 17, 1977, appellant filed a motion to consolidate the case upon petition to intervene and the case upon complaint. SKX filed a reply to the motion to consolidate. On November 23, 1977, a petition to intervene on behalf of appellant in the complaint case was filed by Orscheln and Waller.

A copy of appellant's complaint was served upon SKX by respondent with directions from respondent to SKX to answer the complaint or satisfy the allegations contained in the complaint within 30 days. ⁶

On December 15, 1977, SKX filed its answer to the complaint denying the allegations of the complaint but admitting to a curtailment of services for a limited period of time. It was stated that this curtailment was the result of labor problems, financial difficulties, the resignation of the general manager and the ill health of the company president.

The answer also stated SKX had handled all claims and correspondence, maintained proper insurance filings, participated in tariffs and to the knowledge of SKX, had maintained a good standing with the P.S.C.

Respondent P.S.C., on December 29, 1977, issued two orders. Both orders were issued without hearing. The first order approved the transfer application of intervenors and denied the petition to intervene of appellant, Orscheln and Waller. The second order denied appellant's complaint and the petition to intervene in the complaint case by Orscheln and Waller.

Appellant filed a motion for rehearing on both cases and that motion was denied by respondent on January 16, 1978. Appellant then filed two writs of review in the circuit court of Cole County. ⁷ Orscheln and Waller did not join in the writs of review and are not parties to this appeal.

The circuit court entertained oral arguments on the writs. The arguments are not set forth on the record, but the record reflects the following entry under date of August 9, 1978 "Parties appear by their respective attorneys. Cases argued. Taken under advisement."

The circuit court then entered its judgment under date of October 26, 1978, finding all issues in favor of respondent and against appellant. The court, in its judgment, found that the procedure for sale and transfer of a certificate issued by the Public Service Commission is governed by § 390.111 and that the sole question is the determination by the Commission as to whether or not the transferee, in all respects, is qualified to conduct the business of a carrier. The court further concluded that the P.S.C., upon the application and documents, found the transferee was qualified. The court further concluded that the sole responsibility of transferring certificates is within the discretion of the P.S.C. and the statute does not create any interest or right in competing carriers and does not require or necessitate a hearing. The court found the order of the P.S.C., in approving the transfer upon intervenors' application, was a proper exercise of discretion of the P.S.C. and that appellant had no standing to intervene and was not entitled, as a matter of right, to a hearing on its petition to intervene.

The court made further finding relating to the writ of review upon the case based on complaint. The court concluded the statute applicable to the question is § 386.330. The court found that the procedure set forth in § 386.330 was followed by the Commission, that the complaint was without merit, that appellant was not entitled to any hearing as a matter of law, that appellant was not an aggrieved party and that the Commission (respondent herein) did not abuse its discretion.

Appellant first filed its brief and then filed a reply brief. Between the two briefs, appellant alleges error in that the refusal to allow appellant to intervene and protest the transfer of the certificate by way of dismissal of its petition...