State ex rel. Eldon Miller, Inc. v. Public Service Commission, No. 25508

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: HOWARD; As to both Monsanto and the Norfolk and Western Railway, the evidence did not run to a present need but pertained only to speculation as to what might, perhaps, maybe, develop in the future. Both companies testified to rather vague plans for
• Citation: 471 S.W.2d 483
• Decision Date: 07 June 1971
• Docket Number: No. 25508
• Parties: State ex rel. ELDON MILLER, INC., et al., Appellants, v. PUBLIC SERVICE COMMISSION et al., Respondents. . Missouri

Page 483

471 S.W.2d 483 State ex rel. ELDON MILLER, INC., et al., Appellants,
v.
PUBLIC SERVICE COMMISSION et al., Respondents. No. 25508. Kansas City Court of Appeals. Missouri. June 7, 1971.
Motion for Rehearing and/or Transfer to Supreme Court Denied
Oct. 4, 1971.

Page 484

Herman W. Huber, Jefferson City, for appellants, Eldon Miller, Inc. and Truck Transport, Inc.

Hendren & Andrae by John E. Burruss, Jr., Jefferson City, for appellants, Ruan Transport Corp. and Schwerman Trucking Co.

T. M. Tahan, St. Louis, and Thomas P. Rose, Jefferson City, for intervenor, Slay Transportation Co., Inc.

Jeremiah D. Finnegan, Gen. Counsel, Dale E. Sporleder, Asst. Gen. Counsel, Missouri Public Service Comm., Jefferson City, for respondent.

HOWARD, Judge.

This is an appeal from the action of the Missouri Public Service Commission granting a certificate of public convenience and necessity to Slay Transportation Company, Inc. The circuit court affirmed the action of the Commission and appellants have duly appealed to this court.

Applicant applied for a certificate authorizing irregular route intrastate transportation of all commodities in bulk between all points and places in the state of Missouri. Thirty-one truck lines intervened in opposition to the application. Twenty-nine of these opponents participated at the beginning of the hearing. The hearing of testimony covered several days and the transcript before the Commission consists of 1,154 pages. During the progress of the hearing, twenty-four amendments were made to the application. Each amendment restricted the requested authority in some manner, either as to commodity or location, or both. These amendments eliminated many of the protesting carriers. The Commission did not grant the unlimited authority requested; rather it granted common carrier, intrastate, irregular route authority to transport '(1) acids, chemicals and fertilizers in bulk, and raw materials used in the manufacture of acids, chemicals and fertilizers, in bulk, between all points and places in Missouri, and (2) commodities in bulk, and having a prior or subsequent haul by railroad, between railheads of the Norfolk and Western Railway, on the one hand, and all points in Missouri, * * *' This authority was expressly limited by the twenty-four amendments heretofore referred to, some of which were and some of which were not applicable to the authority as finally granted. Four protesting truck lines obtained review of the Commission's action by the circuit court and they are the appellants here. Slay Transportation Company intervened in the proceedings and stands in the position of respondent along with the Public Service Commission.

Slay Transportation Company is a common carrier with interstate authority to transport certain commodities in bulk throughout the United States. It also has substantial intrastate authority heretofore granted by the Missouri Public Service

Page 485

Commission. Under this authority applicant has performed extensive transportation services for Monsanto, both interstate and intrastate. The Commission described this present intrastate authority as follows:

'* * * As pertinent to this proceeding, Applicant's intrastate authority authorizes the transportation of: (1) acids, chemicals, paints, varnishes, resins and lacquers, in bulk, in specialized vehicles, from St. Louis, Missouri, and points and places in its commercial zone, to all points in Missouri, subject to minor specific exceptions; (2) lime and lime products from Mosher to St. Louis and its commercial zone; (3) denaturants, alcohols, acids, varnishes, paints, resins and lacquers, in bulk, in specialized vehicles from all points in Missouri to St. Louis and its commercial zone, excluding any transportation of gasoline, petroleum products and liquid fertilizer, (4) ammonium nitrate, urea, fertilizer, fertilizer materials and fertilizer ingredients, other than liquid, from the plant site of American Cyanamid Company at South River to all points in Missouri; and (5) printer's ink, in bulk, in tank vehicles, from Overland to all points in Missouri. * * *'

Applicant denied seeking any duplicating authority but it is apparent that the authority as granted herein would in substantial respect duplicate some of the authority presently held.

In support of this application, the testimony of Mr. Slay, the president of applicant, and witnesses from six supporting shippers were presented. Because the authority granted is more limited than the authority requested, the testimony of three of the shipper witnesses is not applicable to the issues presented on this appeal. Thus, the authority as granted was supported only by Monsanto Company, Missouri Farmers Association and the Norfolk and Western Railway. The testimony of Mr. Slay covers 215 pages of the transcript. He testified that he had been requested to apply for this broad authority by the Monsanto Company and by another company which is not interested in the limited authority granted. The balance of his testimony can be fairly summarized as follows: Mr. Slay did not have the slightest idea what commodities might be transported under the authority and if any commodities were transported, he had no idea where they would be shipped from or where they would be shipped to. His testimony gave no indication whatsoever as to what services might be performed by his company if the requested authority, or any part thereof, was granted.

The witness from Monsanto was in charge of its bulk transportation department. He testified that Monsanto had three manufacturing facilities in St. Louis, Missouri and its commercial zone, one at St. Peter's, Missouri (in St. Charles County), and one at Bonne Terre. It also had what were called 'Monsanto Agricultural Centers' at Charleston, Hunterville, Kennett and Portageville, all in the southeast corner of Missouri, and a rail-to-truck...