State ex rel. Crown Coach Co. v. Public Service Com'n

• Decision Date: 31 January 1944
• Citation: 179 S.W.2d 123,238 Mo.App. 287
• Parties: State of Missouri, ex rel., Crown Coach Company, a Corporation, et al., Appellants, v. Public Service Commission of Missouri, Respondent
• Court: Kansas Court of Appeals

179 S.W.2d 123

238 Mo.App. 287

State of Missouri, ex rel., Crown Coach Company, a Corporation, et al., Appellants, v. Public Service Commission of Missouri, Respondent

Court of Appeals of Missouri, Kansas City

January 31, 1944

Appeal from the Cole County Circuit Court; Hon. Sam C. Blair, Judge.

Affirmed.

June R. Rose, C. J. Quimby, James P. Aylward, Ralph M Russell and L. M. Crouch, Jr. for appellants.

The application, proof and finding of the Commission was based entirely upon an alleged additional transportation need arising by reason of a temporary war condition. The Commission had no jurisdiction to entertain or grant authority for a permanent certificate of convenience and necessity based on a temporary need. Sec. 5724, R. S. Mo 1939; Newham v. Kenton, 79 Mo. 382. On every segment of the route applied for, except between Carthage and Springfield, there were in existence two certificates of convenience and necessity issued by the Commission. Under the law the Commission had no authority to issue three certificates over the same route. Secs. 5724, 5725, R. S. Mo 1939; State ex rel. Electric Co. of Mo. v. Atkinson et al., 275 Mo. 325, 204 S.W. 897; State ex rel. Pitcairn v. Pub. Serv. Comm., 232 Mo.App. 535, 111 S.W.2d 222; Pond on Public Utilities (3 Ed.), sec. 239, p. 778. Statutes relating to the same subject must be construed together. Whalen v. Buchanan Co., 342 Mo. 33, 111 S.W.2d 177; State ex rel. McDowell v. Smith, 334 Mo. 653, 67 S.W.2d 50; State ex rel. Central Surety Co. v. State Tax Comm., 348 Mo. 171, 153 S.W.2d 43. If the meaning is plain the language of the statute must be given effect without regard to result of construction or wisdom of law as construed. Gendron v. Dwight Chapin & Co., 225 Mo.App. 466, 37 S.W.2d 486; State ex rel. Gorman v. Offutt, 223 Mo.App. 1172, 26 S.W.2d 830; Sleyster v. Donzelot & Son, 223 Mo.App. 1166, 25 S.W.2d 147. Plain non-technical words are to be construed in their natural and ordinary meaning. Berry-Kofron Dental Laboratory Co. v. Smith, 345 Mo. 922, 137 S.W.2d 452; Kinyon v. Kinyon, 230 Mo.App. 623, 71 S.W.2d 78. The order of the Commission was unlawful in that it issued a permanent certificate upon a finding of only a temporary need. Sec. 5724, R. S. Mo. 1939; State ex rel. Ringo v. Pub. Serv. Comm., 234 Mo.App. 549, 132 S.W.2d 1080. The order of the Commission was unlawful because the order shows upon its face that the Commission did not give consideration to existing transportation nor the possible effects upon existing transportation and the Commission did not find that public convenience and necessity would be promoted by the granting of the authority. Sec. 5724, R. S. Mo. 1939; State ex rel. Pitcairn v. Pub. Serv. Comm., 232 Mo.App. 535, 111 S.W.2d 222; State ex rel. Alton Transp. Co. v. Pub. Serv. Comm., 330 Mo. 1, 49 S.W.2d 614. State ex rel. Interstate Transit Lines v. Pub. Serv. Comm., 234 Mo.App. 554, 132 S.W.2d 1082; State ex rel. Potashnick Truck Service v. Pub. Serv. Comm., 129 S.W.2d 69. The Commission erroneously and illegally construed and applied Sec. 5725, R. S. Mo. 1939. Sec. 5725, R. S. Mo. 1939. The Commission unlawfully held that it did not have authority to issue a temporary certificate. Sec. 5724, R. S. Mo. 1939; State ex rel. Pitcairn v. Pub. Serv. Comm., 232 Mo.App. 535, 111 S.W.2d 222; State ex rel. Interstate Transit Lines v. Pub. Serv. Comm., 234 Mo.App. 554, 132 S.W.2d 1082. All-American under the undisputed evidence had no seats available for use and was at the time of the application operating contrary to the expressed policy of the Office of Defense Transportation and removed one of its schedules after this case was heard in accordance with the orders of the Office of Defense Transportation and the granting of authority to All-American to do that which it could not do and had no means of doing was both unlawful and unreasonable to a point that it was arbitrary, capricious and unwarranted. If All-American were able to perform any service that it claimed it could perform, it being an interstate carrier, the matter should have been determined by the Office of Defense Transportation and the Commission in substituting its judgment for that of the Office of Defense Transportation, acted both illegally and unreasonably to a point where its actions were arbitrary, capricious and unwarranted. The Commission in accepting hearsay and opinion evidence and rejecting the records of Greyhound acted unreasonably to a point that it was arbitrary, capricious and unwarranted. Under the evidence it was admitted that no additional service was needed between Carthage, Webb City, Carterville and Joplin, yet the Commission granted a certificate in face of such admission in the record over this segment of the route and since the order is not separable this cause should be reversed and remanded. The Commission, by Senate Bill No. 24, passed by the Sixty-second General Assembly and signed by the Governor, effective on June 17, 1943, now has specific legislative authority to grant temporary certificates and since such law now exists this cause in equity and good conscience should be reversed and remanded to the Commission in order that the Commission may issue a temporary authority. State ex rel. Gaines v. Canada, 344 Mo. 1238, 131 S.W.2d 217; Lober v. Kansas City, 74 S.W.2d 815.

John P. Randolph, General Counsel, Lester G. Seacat, Assistant Counsel, Public Service Commission, D. D. McDonald, Barak T. Mattingly and Douglas H. Jones for respondent.

(1) The Commission had jurisdiction to issue a certificate of convenience. The statute gives the Commission discretion to do so. Its order contained all necessary findings. Sec. 5724 R. S. Mo. 1939. As technical rules of pleading are not applicable to the Commission, its order was complete and proper. State ex rel. M. K. & T. Ry. v. Pub. Serv. Comm., 277 Mo. 175, 210 S.W. 386; State ex rel. K. C. Terminal v. Pub. Serv. Comm., 308 Mo. 359, 272 S.W. 957. (2) Commission has power to issue two or more certificates over the same route. The statute gives the Commission power to grant additional certificates to other carriers over the same route, if in its discretion public convenience will be promoted. Sec. 5724, R. S. Mo. 1939. The Commission has unlimited discretion to grant additional certificates. State ex rel. Pitcairn v. Pub. Serv. Comm., 111 S.W.2d 228; State ex rel. Electric Co. v. Atkinson, 275 Mo. 325, 204 S.W. 897; State ex rel. City of Sikeston v. Pub. Serv. Comm., 82 S.W.2d 105; State ex rel. Union Electric Light & Power Co. v. P. S. C., 62 S.W.2d 742; State v. Long-Bell Lbr. Co., 12 S.W.2d 64, l. c. 80; Secs. 652, 653, 5707, 5736, R. S. Mo. 1939. (3) The issuance of the certificate by the Commission was lawful, as it was based on a finding of present need. Sec. 5724, R. S. Mo. 1939; Bouvier's Law Dictionary. (4) The Commission's order is lawful, it considered: (a) Effect on other transportation; (b) existing transportation; and (c) found that public convenience and necessity justified the granting of the certificate. The statute provides that a certificate shall be issued if public convenience will be promoted. Sec. 5724, R. S. Mo. 1939. As order was based on public convenience, it is valid. State ex rel. Pitcairn v. Pub. Serv. Comm., 111 S.W.2d 222, 225; State ex rel. Alton Transp. Co. v. Pub. Serv. Comm., 49 S.W.2d 614, 617; State ex rel. Interstate Transit Lines v. Pub. Serv. Comm., 132 S.W.2d 1082, 1086; State ex rel. Potashnick Truck Service v. Pub. Serv. Comm., 129 S.W.2d 69, 73. Such point was waived, as it was not set forth in motion for rehearing. State ex rel. K. C. Power Co. v. Pub. Serv. Comm., 335 Mo. 1248, 76 S.W.2d 343. Presumption court found necessary facts. Robinson v. Hamilton, 132 F.2d 285. Technical rules of pleading are not binding on Commission; and therefore appellants' objection to order as not setting out in haec verbae certain legal conclusions is not well taken. State ex rel. M. K. & T. Railway v. Pub. Serv. Comm., 277 Mo. 175, 210 S.W. 386; State ex rel. K. C. Terminal v. Pub. Serv. Comm., 308 Mo. 359, 272 S.W. 957; State ex rel. City of St. Louis v. Pub. Serv. Comm., 335 Mo. 448, 73 S.W.2d 393; State ex rel. Pub. Serv. Comm. v. Padberg, 346 Mo. 1133, 145 S.W.2d 150; State ex rel. Carrollton v. Pub. Serv. Comm. (Mo.), 63 S.W.2d 26; State ex rel. Pub. Serv. Comm. v. Shain, 342 Mo. 867, 119 S.W. 220. (5) The Commission correctly and legally applied Section 5725, R. S. Mo. 1939, as its order contained all necessary findings. See authorities cited under other points. (6) The certificate was correctly granted, as it was found that public necessity demanded additional service. The Commission must consider present, not future, needs. State ex rel. Campbell Iron Co. v. Pub. Serv. Comm., 296 S.W. 998. (7) The Commission considered the present service as authorized by the statute and decisions. See authorities cited under other points. State ex rel. Campbell Iron Co. v. P. S. C., supra; State ex rel. Barrett v. Bank, 297 Mo. 397, 249 S.W. 619; State ex rel. Long-Bell, 12 S.W.2d 64, 80. (8) The Commission's order does not infringe upon the office of defense transportation. This issue was before the Commission and was duly considered by it. Its discretion cannot be attacked on appeal. See authorities cited under other points. (9, 10) Additional service needed by Carthage, Webb City and Joplin. Commission may grant certificate if any part thereof will benefit public. Sec. 5724, R. S. Mo. 1939. Public Service Law is to be liberal construed. Sec. 5707, R. S. Mo. 1939; State ex rel. v. Pub. Serv. Comm., 259 Mo. 704; State ex inf. v. K. C. Gas Co., 254 Mo. 515; Secs. 1228, 5690, 5707, 5736, R. S. Mo. 1939; 5 C. J. S. 802, 26 C. J. S. 706. No vested rights are created in the appellants. Appellate courts do not...