State ex rel. Detroit-Chicago Motor Bus Co. v. Public Service Commission

• Citation: 23 S.W.2d 115,324 Mo. 270
• Decision Date: 30 December 1929
• Docket Number: 29831
• Parties: The State at Relation and to Use of Detroit-Chicago Motor Bus Company (Ni-Sun Lines) v. Public Service Commission, Appellant
• Court: Missouri Supreme Court

23 S.W.2d 115

324 Mo. 270

The State at Relation and to Use of Detroit-Chicago Motor Bus Company (Ni-Sun Lines) v. Public Service Commission, Appellant

No. 29831

Supreme Court of Missouri

December 30, 1929

Appeal from Cole Circuit Court; Hon. Henry J. Westhues Judge.

Reversed and remanded (with directions).

D D. McDonald and J. P. Painter for appellants.

(1) Courts, on reviewing orders of the Public Service Commission cannot replace its orders with others of their own, or even modify them, since the court cannot substitute its judgment for that of the commission. State v. Pub. Serv. Com., 308 Mo. 359, 272 S.W. 957; Queens Gas Co. v. McCall, 245 U.S. 345. (2) The circuit court is limited on review to affirmance or reversal of order of the Public Service Commission, and cannot make a new order, nor consider evidence not before the commission. Sec. 10522, R. S. 1919; State v. Pub. Serv. Com., 316 Mo. 233, 289 S.W. 785; State v. Pub. Serv. Com., 272 S.W. 957. (3) The test is: Is the order of the commission unreasonable or unlawful? Secs. 10534, 10534, R. S. 1919; State v. Pub. Serv. Com., 297 S.W. 47; State ex rel. v. Busby, 274 S.W. 1067; C. B. & Q. Railroad Co. v. Pub. Serv. Com., 266 Mo. 333, 181 S.W. 61. (4) It is not the policy of the Motor Transportation Act, to promote competition between motor carriers. It is the policy of the statute that public convenience and necessity be served by existing utilities. Laws 1927, p. 404, sec. 4; Laws 1927, p. 408, sec. 8; State ex rel. v. Atkinson, 275 Mo. 325; Egyptian Transportation System v. Railroad Co., 321 Ill. 580; Bartonville Bus Line v. Eagle Motor Coach Line, 326 Ill. 200; Law of Public Utilities by Pond (3 Ed.) 923; 1 Guiding Principles of Public Service Regulation by Spurr, 1; Red Dot Coach Line, 295 S.W. 419. (5) All order of the commission are prima-facie lawful and reasonable. Sec. 10534, R. S. 1919; State v. Pub. Serv. Com., 291 S.W. 788. (6) Applicant was not operating in good faith, rendering satisfactory and dependable service by motor vehicles on the first day of December, 1926, and no presumption obtains that the service shall be presumed to be necessary to public convenience. Laws 1927, p. 409, sec. 11; Westhoven v. Ohio Public Utilities Com., 147 N.E. 749.

Oliver T. Remmers, Ernest A. Green and Charles C. Madison for respondent.

(1) The Public Service Commission is merely an administrative body and is not vested with legislative or judicial functions. 10 C. J. 54; C. B. & Q. Railroad v. Pub. Serv. Com., 266 Mo. 340. (2) The Supreme Court or the Circuit Court will, as in equity cases, accept, modify or reject the findings of the Public Service Commission, and make such findings as the law and the evidence may warrant. C. B. & Q. Railroad Co. v. Pub. Serv. Com., 266 Mo. 341; Norwalk v. Construct. Co., 89 Conn. 537, 5 A. L. R. 78; People ex rel. Joline v. Wilcox, 198 N.Y. 433. (3) The Supreme Court or Circuit Court is not bound by the findings of the Public Service Commission, but may determine for itself questions of fact from the evidence before the commission. State v. Pub. Serv. Com., 291 S.W. 788. (4) Where through bus service will be beneficial to the traveling public, such through service shall be permitted. Laws 1927, sec. 4, p. 405. (5) Applicant was, on December 1, 1926, rendering dependable and satisfactory service, comparable with that given to the traveling public by other bus lines on and prior to that date, and therefore entitled to a permit, and the circuit court properly so found upon this record. Laws 1927, sec. 11, p. 409.

OPINION

Ragland, J.

On November 3, 1927, respondent, proposing to establish, maintain and operate twenty motor busses for the carriage of passengers and baggage as a common carrier by motor for hire between the cities of St. Louis and Kansas City, Missouri, over Missouri-United States Highway No. 40, applied to the Public Service Commission for a certificate of convenience and necessity. Notice of the filing of the application and of the date of the hearing thereon was duly given every common carrier that was operating in the territory proposed to be served by respondent: protests were filed by one of the motor carriers and by each of the carriers by rail: a hearing was had November 17, 1927. After hearing the evidence on the part of both the applicant and the protestants, the commission found "that the necessity for passenger transportation between St. Louis and Kansas City is adequately served by the rail and motor carriers now operating between said cities," and denied the application. Respondent (relator below) thereupon obtained a writ of certiorari from the Circuit Court of Cole County; that court upon a review of the proceedings had before the Public Service Commission reversed its order and remanded the cause with instructions to the commission to issue a certificate of convenience and necessity. The cause comes to this court on the commission's appeal.

On and prior to November 3, 1927, respondent was operating as a motor carrier from Detroit to Chicago, from Chicago to St. Louis and from St. Louis to Kansas City, Kansas. The certificate it seeks, however, is for purely intrastate business -- the carrying of passengers and baggage by motor between St. Louis and Kansas City. And that carriage is to be limited to through carriage: it does not propose to do any local business between the termini of the proposed route, nor to accept passengers for intermediate points or to take them on at such points.

For a while respondent charged a fare of $ 3 for carrying a passenger from St. Louis to Kansas City or from Kansas City to St. Louis: subsequently it raised the fare to $ 3.50, then to $ 4, and finally to $ 4.50. This last it averred in its application is the reasonable fare, and it asks the commission to put its approval on it as such. The fare between St. Louis and Kansas City by rail is $ 10.04; the fare authorized by the commission to be charged by certificated motor carriers operating between the two cities, and which they do charge, is $ 7. Respondent's manager stated at the hearing that his company then operated, and proposed to continue to operate, two busses out of Kansas City daily and two out of St. Louis daily, one leaving each terminus at nine o'clock in the morning and arriving at the other terminus at 6:30 P. M., another leaving each terminus at eight P. M. and arriving at the other at 5:30 A. M. The evidence taken at the hearing discloses that five railroad companies, the Wabash, the Missouri Pacific, the Rock Island, the Chicago & Alton and the Burlington, operate twelve passenger trains each way daily between St. Louis and Kansas City; and that two motor carriers, the Yelloway, Inc., and the Purple Swan Safety Coach Line, operate between the two cities ten busses each way daily. Passengers on the vehicles of all these carriers, so far as appears, are carried directly from one of said cities to the other without change or transfer. Several of the passenger trains leave the termini at approximately the same time as respondent's busses and accomplish the passage in an hour or more less time. The schedules of the two authorized motor carriers were not shown. Whether they require an appreciably longer time than respondent for making the trip from one city to the other, owing to the stops at intermediate points to receive or discharge passengers, is left dark.

It further appears from the evidence that the railroad companies operating passenger trains between St. Louis and Kansas City can with their present equipment and facilities easily carry many more passengers than they do now; that since the completion of the state hard-surfaced roads there has been a great falling off of their business, particularly as to passengers carried in coaches, which the companies attribute...