State ex rel. Doniphan Tel. Co. v. Public Service Commission
| Decision Date | 08 July 1963 |
| Docket Number | No. 49617,No. 1,49617,1 |
| Citation | 369 S.W.2d 572 |
| Parties | STATE ex rel. DONIPHAN TELEPHONE COMPANY, Appellant, v. PUBLIC SERVICE COMMISSION of Missouri, Respondent |
| Court | Missouri Supreme Court |
Forrest C. Donnell, St. Louis, for Doniphan Telephone Co.
J. B. Schnapp, of Schnapp & Cooper, Fredericktown, for Roscoe Myers and forty eight petitioners.
Glenn D. Evans, General Counsel, Thomas J. Downey, Asst. General Counsel, Missouri Public Service Commission, for respondent.
This is an appeal from a judgment of the Circuit Court of Cole County which affirmed certain orders of the Public Service Commission of Missouri (hereinafter referred to as the 'Commission') relating to the matter of providing telephone service in an area consisting of the south three miles of Madison County, Missouri, hereinafter referred to as the 'Three-Mile Strip.' The orders provided that the service should be furnished by Southwestern Bell Telephone Company (hereinafter referred to as 'Bell'). The Doniphan Telephone Company (hereinafter referred to as 'Doniphan') appealed to the circuit court, and has appealed to this court from that court's judgment of affirmance.
On July 1, 1951, the Commission granted a Certificate of Convenience and Necessity to Doniphan to engage in rendering telephone service, among other places, to the town of Greenville and the territory adjacent thereto. In 1957, Doniphan made a visual survey of the three-mile strip and on November 21, 1957, filed a map with the Commission whereby it purported to add the three-mile strip to the area served by the Greenville exchange. Doniphan has never furnished any service to the three-mile strip, nor has it offered to furnish service, and the nearest line it has to this strip is 19 miles away.
This proceeding was commenced on January 4, 1960, by the filing with the Commission of a petition by W. R. Meyers and forty-eight other residents of the three-mile strip in which they stated that they had no telephone service, and desired that such service be furnished by the Fredericktown exchange of Bell because most of their business was transacted in Fredericktown. Doniphan and Bell were notified of the filing of this petition and the matter was set for formal hearing, at which both of said companies appeared and participated. The evidence of the petitioners at the hearing tended to prove that Fredericktown was the county seat of the county in which they resided; that substantially all of their business was transacted there; that they obtained medical and ambulance service, as well as fire protection and law enforcement protection from Fredericktown, and that they did not desire to be served by Doniphan because, in that event, every call to Fredericktown would be a long distance call. It was also shown that Bell had lines running to within 100 yards of the three-mile strip and was furnishing service to the three-mile strip by means of five pay stations located therein and connected with its Flat River exchange; that Bell has a cable circuit located about four miles from the three-mile strip which contains 50 pairs of wire which are not in use and are connected with the Fredericktown exchange.
It was the contention of Doniphan before the Commission, and is here, that the filing of the map on November 21, 1957, extended its certificate of convenience and necessity to include the three-mile strip; that it has pending before the Federal Communications Commission a petition seeking to have that Commission require Bell and American Telephone and Telegraph Company to make certain physical connections which would enable it to put into effect what is referred to as its Comprehensive Plan; that it also has made application to the Rural Electrification Administration for a $1,000,000 loan; that if the order is obtained from the Federal Communications Commission, and the loan is obtained from the Rural Electrification Administration, it proposes to increase its exchanges from six to twelve and construct an additional 250 miles of line; and in that event, at some future time, would furnish service to the residents of the three-mile strip; that such service would not be furnished from the Greenville exchange but from a new exchange to be established in the one-store village of Clubb. Doniphan's president testified that the Company would be very reluctant to furnish telephone service to petitioners under existing rules and conditions because 'it would be a losing proposition to us at the very best' and would be a heavy burden upon the subscribers who would be required to make large contruction contributions.
Bell opposed the petitioners' application at the hearings before the Commission but did not appeal from the Commission's order.
The Commission entered a preliminary order on August 10, 1960, in which Bell was directed to make a survey of the area referred to as the three-mile strip 'to determine the number of people who would actually become subscribers to their service under their current extension rules and to determine, in general, the feasibility of rendering service to such subscribers,' and to report such findings to the Commission 'on or before the 14th day of October, 1960.'
Thereafter, on February 20, 1961, another hearing was held and a supplemental order entered on May 19, 1961, which was, in part, as follows: 'That the Southwestern Bell Telephone Company be and is hereby directed to make use of its present unused facilities located along Highway 67, or in the Marquand area, in the southern part of Madison County and provide facilities in connection therewith to render telephone service to the Complainants therein located in the Three-Mile Strip and furnish toll and Fredericktown Exchange service to said Complainants under the same conditions and rates that are now in effect throughout the Fredericktown Rural Exchange area.'
The Commission filed a motion to transfer this cause to the Kansas City Court of Appeals and that motion was ordered taken with the case. Doniphan, in its jurisdictional statement, says we have jurisdiction because of certain constitutional questions it has raised. Art. 5, Sec. 3, Constitution of Missouri 1945, V.A.M.S., states that the 'supreme court shall have exclusive appellate jurisdiction in all cases involving the construction of the Constitution of the United States or of this state * * *.'
Doniphan's first constitutional contention is that by its order directing Bell to furnish telephone service to the residents of the three-mile strip, the Commission deprived Doniphan of its property without due process of law and...
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