State ex rel. Chicago, R. I. & P. R. Co. v. Public Service Commission

• Decision Date: 12 February 1962
• Docket Number: No. 48797,48797
• Citation: 355 S.W.2d 45
• Parties: STATE of Missouri ex rel. CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, Appellant, v. PUBLIC SERVICE COMMISSION of the State of Missouri, Respondent.
• Court: Missouri Supreme Court

Page 45

355 S.W.2d 45

STATE of Missouri ex rel. CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, Appellant, v. PUBLIC SERVICE COMMISSION of the State of Missouri, Respondent.

No. 48797.

Supreme Court of Missouri, En Banc.

Feb. 12, 1962.

Rehearing Denied March 12, 1962.

Glenn D. Evans, Gen. Counsel, Thomas J. Downey, Asst. Gen., Counsel, Missouri Public Service Commission, Jefferson City, for respondent.

O. L. Houts, Chicago, Morris E. Osburn, Jefferson City, Hale Houts, Hogsett, Houts, James, Randall & Hogsett, Kansas City, for appellant Chicago, R. I. and P. Ry. Co.

DALTON, Judge.

This is an appeal from the order and judgment of the Circuit Court of Cole County affirming an order of the Public Service Commission of Missouri as entered on May 26, 1960, in Commission Case No. 13386.

This Court has jurisdiction of the appeal because the issues presented directly concern the construction of an opinion and decision of this Court on a prior appeal of the cause, its enforcement and the sufficiency of this Court's mandate for that purpose. Adams v. Adams, 350 Mo. 152, 165 S.W.2d 676; Morrison v. Caspersen, Mo.Sup., 339 S.W.2d 790; Shull v. Boyd, 251 Mo. 452, 158 S.W. 313, 320; State ex rel. Barker v. Assurance Company of America, 251 Mo. 278, 158 S.W. 640, 648; 14 Am.Jur., 373, Courts, Sec. 174.

On May 4, 1956, appellant Chicago, Rock Island and Pacific Railroad Company, hereinafter referred to as Rock Island, applied to the respondent Public Service Commission of Missouri, hereinafter referred to as Commission, for authority to discontinue its Trains 23 and 24 between Kansas City and Eldon, Missouri. The relief requested was denied and, upon review by this Court, this Court, on April 14, 1958, held that the Commission's order denying the company's application for discontinuance of the mentioned trains was unreasonable and arbitrary. This Court reversed a judgment of the Circuit Court affirming the order of the Commission and remanded the cause with directions to the trial court to remand the cause to the Commission for its further consideration. State of Missouri ex rel. Chicago, Rock Island & Pacific Railroad Company v. Public Service Commission, Mo.Sup., 312 S.W.2d 791, 805.

In the closing portion of that opinion this Court said: 'The demand for passenger service in the area served by these trains is declining and there is no hope for its improvement. The resort area surrounding the Lake of the Ozarks affords practically no demand for passenger service on trains. It is reasonable to assume that the demand for such service will become even less than it ws when this case was decided by the commission in October, 1956. A reconsideration of the matter in the light of developments subsequent to that time, if the commission, in its discretion, should deem such a course advisable, might prove of value in any future determination of the problem. However that may be, the foregoing facts convince us the losses being sustained by the company in the operation of Trains 23 and 24, as of October, 1956, were so patently disproportionate to the public convenience and necessity then or thereafter to be served by them as to render the order that they be continued unreasonable and arbitrary within the meaning of the public service commission statutes.'

After remand, the Commission held a hearing on June 10, 1958, and, on July 17, 1958, it again denied Rock Island's application and ordered rehabilitation of the service. Later, the order of July 17 was set aside by the Commission on motion for rehearing, and a new hearing was held on September 17 and 18, 1958, after full notice to the various interested parties, attorneys and organizations. Following that hearing and, on December 29, 1958, the Commission entered its Report and Order, again denying the application and ordering rehabilitation. On certiorari and Circuit Court of Cole County set aside that Report and Order and, thereafter, declined to enter a stay of its judgment pending on appeal. The Commission and various intervenors appealed from the Court's judgment.

In this connection it should be pointed our that in the original application filed by Rock Island on May 4, 1956, requesting authority to discontinue Trains No. 23 and 24 between Kansas City and Eldon, Missouri, Rock Island offered certain 'substitute service' with reference to handling of baby chicks in the event its request for discontinuance of said trains was sustained. It further appears that, in the course of the subsequent hearings on June 10, 1958, and again on September 17, 1958, Rock Island again tendered the mentioned 'substitute service' in the event that its request with reference to the discontinuance of said trains was sustained. However, as stated, the offer was rejected by the Commission and, in each of its Reports and Orders, Rock Island's application to discontinue the mentioned trains was denied.

When this second Report and Order of the Commission, dated December 29, 1958, reached this Court for review, this Court reviewed the record presented and, in an opinion handed down on April 11, 1960, said: 'If the former order of the Commission was unreasonable and arbitrary the present one is doubly so. * * * The facts being substantially the same, our prior opinion is the law of the case. * * * And our prior opinion controls here. There remains now no room for any further discretion to be exercised by the Commission on these facts, despite the usual rule of deference recognized in such cases * * * The Circuit Court here set the order aside, without remand.' 335 S.W.2d 182, 190, 191.

The opinion then quoted from State ex rel. Byers Transportation Co., Inc. v. Public Service Commission, Mo.App., 180 S.W.2d 259, as follows: "If, upon another hearing, additional testimony was introduced proving a substantially different set of facts, then the Commission, could, and should, make its findings and order based upon the new facts and conditions. But if there was no substantial difference, then the Commission could not re-enter the same order which a court of competent jurisdiction had declared unlawful and unreasonable."

The opinion of this Court then concluded, as follows:

'Under these circumstances, we modify the judgment of the Circuit Court in this, to-wit: that the Report and Order of the Commission be and it is set aside; the cause is remanded to the Commission so that it may enter an order in conformity with the opinion, but not for the purpose of a further hearing; and therein the Commission may make suitable provisions requiring the furnishing of the substituted service for the handling of shipments of chickens as heretofore tendered in these proceedings. As so modified the judgment is affirmed.' (Italics ours.)

On Motion for Reargument a 'Per Curiam' order was entered on May 9, 1960, as follows:

'The Commission has filed a motion for rehearing. We find nothing essentially meritorious in it, and it is overruled. Respondent has filed a motion seeking a modification of our opinion; specifically, it asks that the judgment of the Circuit Court be affirmed and that all provisions for remand to the Commission be eliminated. The motion is based upon the following asserted facts: that after the end of the 1959 baby chick season the Post Office Department completely changed the method of handling the parcel post shipments; that they are now transported by Star Route on trucks to points on the Missouri Pacific, the St. Louis-San Francisco Railway, and perhaps elsewhere; that in any event no mail shipments are now delivered to Respondent, that its previous offer of substituted service has been rendered entirely unnecessary, and that no further order of the Commission is necessary. It states, however, that some express shipments of chicks are still being handled by it in ventilated trucks, and it concedes that this is a 'common carrier duty.' It asserts: that this service as now rendered by it is adequate and that there are no complaints; that the Commission would have no jurisdiction to interfere in the parcel post movements; and that there is no occasion for a remand or for any order of the Commission.

'The Commission has filed suggestions in opposition to this motion and it asserts that the services now being rendered on the chick shipments are wholly unsatisfactory to the hatcheries; it attaches a document showing specific and substantial complaints by various hatcheries. We are not in position to determine whether the dissatisfaction involves the parcel post shipments alone, or all truck shipments. The Commission also questions that the Post Office Department has voluntarily occupied the parcel post field with the truck shipments. In these circumstances the order of remand will stand; this, for the purpose of making such order, if any, as may seem proper in connection with the chick shipments as indicated in our original opinion, and in the light of subsequent developments. This need not involve any interference with the Post Office Department. The motion to modify is overruled.' (All italics ours.) (335 S.W.2d 182, 191-192.)

The foregoing 'Per Curiam' order, as stated, was made on May 9, 1960, and thereafter, on May 25, 1960, this Court's mandate, as mailed to the Circuit Court of Cole County, was in part in the following form:

'* * * the court * * * doth order and adjudge that the judgment of the Circuit Court of Cole County heretofore rendered herein be, and the same is hereby modified as follows: that the Report and Order of the Public Service Commission of the State of Missouri be and it is set aside; the causes is remanded to the Commission so that it may enter an order in conformity with this opinion, but not for the purpose of a further hearing; and as so modified the judgment of the Circuit Court of Cole County is affirmed, and stand in full force and effect; * * *.' (Italics ours.)

It will be noted that the mandate followed the closing paragraph of the opinion and...