State ex rel. Centropolis Transfer Co. v. Public Service Commission, 25527
| Decision Date | 04 October 1971 |
| Docket Number | No. 25527,25527 |
| Citation | 472 S.W.2d 24 |
| Parties | STATE of Missouri ex rel. CENTROPOLIS TRANSFER CO., Inc., Relator-Respondent, v. PUBLIC SERVICE COMMISSION of Missouri, Respondent, and Steel Haulers, Inc., Intervenor-Appellant. |
| Court | Missouri Court of Appeals |
Robert L. Hawkins, Jr., Victor Tell Neff, Graham & Hawkins, Jefferson City, for relator-respondent, Centropolis Transfer Co., Inc.
Frank W. Taylor, Jr., Kansas City, for intervenor-appellant Steel Haulers, Inc. DIXON, Commissioner.
Initiated as an application for contract carrier authority before the Missouri Public Service Commission, this case reaches us as an appeal from a judgment entered in review proceedings filed in the Circuit Court of Cole County, Missouri. Steel Haulers, Inc., the applicant before the Public Service Commission, is the appellant here. Respondent is Centropolis Transfer, Inc., an intervenor protestant before the Public Service Commission. A review of the proceedings below will demonstrate that a capitulation of the evidence before the Public Service Commission is not necessary to a determination of this appeal. The Commission filed a separate appeal, later dismissed, and although nominally a party, did not participate in this appeal.
Steel Haulers, Inc. filed its application requesting authority to operate as a contract carrier with named concerns and from St. Louis, Kansas City, and other points in Missouri to all points in Missouri, irrespective of whether or not such points were on the route of regularly certificated common carriers. A large number of certificated common carriers intervened in the proceedings and presented evidence before the Public Service Commission adverse to Steel Haulers' application.
The Commission issued its 'report and order' authorizing the requested authority with some reduction in the number of points and shippers to be served, but making such authority broad enough to permit such contract service to and from points on the routes of regularly certificated common carriers. This 'report and order' was approved by two commissioners, one commissioner dissented, and two did not participate. A timely motion for rehearing was filed by Centropolis Transfer, and it was overruled by the three commissioners who participated in the original decision; and again, two of the commissioners did not participate.
A writ of review was issued by the Circuit Court of Cole County on the petition of Centropolis Transfer Co., Inc. Steel Haulers, Inc. appeared in support of the Commission's order. Other protestants likewise appeared in support of Centropolis but have not participated in this appeal. The Circuit Court entered a judgment declaring the order of the Public Service Commission a 'nullity and unlawful,' set the order aside, and remanded the cause to the Public Service Commission.
Respondent, in its printed brief in this court, has filed a motion to dismiss this appeal on the grounds that the judgment referred to above is not a final judgment and, therefore, is not appealable. This was ordered taken with the case, and we now must consider the effect of the judgment of the Circuit Court with respect to its finality in order to rule that motion.
The provision for circuit court review of orders of the Public Service Commission is found in section 386.510 () which provides that such review shall be for the 'purpose of having the reasonableness or lawfulness' of the administrative action determined. This statutory provision is broadened by the application of the provisions of the V.A.M.S. Missouri Constitution, Article 5, Section 22, setting forth the scope of review of administrative action pursuant to a hearing required by law. Wood v. Wagner Electric Corporation, 355 Mo. 670, 197 S.W.2d 647. Kansas City v. Rooney, 363 Mo. 902, 254 S.W.2d 626. This constitutional provision provides for review both as to whether such action is 'authorized by law' and whether the action is 'supported by competent and substantial evidence upon the whole record.' Thus, the duty incumbent upon the reviewing circuit court is dual in nature, at least to the extent that a determination of competent and substantial evidence is a determination of a separate question as contrasted with the phrase 'authorized by law.' Maag v. Public Service Commission, Mo.App., 384 S.W.2d 801, 806. State ex rel. Kansas City Transit, Inc. v Public Service Commission, Mo., 406 S.W.2d 5.
The case last cited is a clear exposition of the dual nature of review to which we are alluding. In that case, Judge Finch for the Supreme Court en banc first considered the question of whether or not there was statutory authority for the order in question and then considered (l.c. 11) the evidentiary support for the order, determining that there was competent and substantial evidence upon the whole record to support the order.
In its motion for rehearing before the Commission, and in its petition for review, Centropolis attacked the order of the Commission making a variety of contentions. These may be broadly characterized in two categories. First, that 'the report and order' was not lawful, and here Centropolis relies primarily upon a claim that it did not represent the action of the majority of the commissioners since only two commissioners concurred. In a second category of claimed error, Centropolis attacks the various findings and conclusions of the 'report and order' as not being supported by competent and substantial evidence on the whole record. Thus, the motion for rehearing and the petition for review raised questions covering the entire scope of judicial review.
The court's conclusions of law were responsive to the issue raised by Centropolis that the 'report and order' was not 'authorized by law.' The court plainly stated in its conclusions of law that it believed that the order of the Commission was unlawful under the provisions of section 386.130 because the court considered that the statute required concurrence of no less than three commissioners. The court expressly refused to undertake a review to examine the contentions of Centropolis as to whether the findings and conclusions of the Commission's order were supported by competent and substantial evidence upon the whole record, the court noting that it had not 'reviewed the proceedings before the Public Service Commission in this case upon its merits.' 1
Thus analyzed, we believe this record squarely presents a single question. Was the circuit court judgment 'final and appealable?'
Section 386.540 provides for appeal from the judgment of the circuit court in proceedings for review under section 386.510 and provides in paragraph 4:
The general laws relating to appeals to the supreme court and the various courts of appeals in this state shall, so far as applicable and not in conflict with the provision of this chapter, apply to appeals taken under the provisions of this chapter.
The right of appeal thus referred to is purely statutory. Collier v. Smith, Mo.App., 292 S.W.2d 627. (Cases cited in footnote 1, page 629.)
Therefore, to the extent applicable and not in conflict with the review statutes, we consider the relevant statutes and cases to determine finality and, therefore, appellate jurisdiction in this court. Section 512.020 provides that a party aggrieved may take an appeal from '* * * any final judgment in the case. * * *' A judgment (defined by section 511.020 as 'the final determination of the right of the parties in the action'), to be final and appealable must dispose of all the parties and of all issues in the cause and must leave nothing for future determination. Coonis v. Rogers, Mo.App., 413 S.W.2d 310, 313, and cases therein cited.
We look then to what the final determination of this controversy must be considering not only the scope of review, but also the issues raised...
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