State ex rel. Electric Company v. Atkinson

• Decision Date: 15 July 1918
• Citation: 204 S.W. 897,275 Mo. 325
• Parties: THE STATE ex rel. ELECTRIC COMPANY OF MISSOURI, Intervener and Appellant, v. JOHN M. ATKINSON et al
• Court: Missouri Supreme Court

204 S.W. 897

275 Mo. 325

THE STATE ex rel. ELECTRIC COMPANY OF MISSOURI, Intervener and Appellant, v. JOHN M. ATKINSON et al

Supreme Court of Missouri

July 15, 1918

Appeal from Cole Circuit Court. -- Hon. J. G. Slate; Judge.

Affirmed.

Schnurmacher & Rassieur and Perry S. Rader for intervener and appellant.

(1) The order of the Public Service Commission must be supported by substantial evidence; and if there is no subtantial evidence to support its orders and findings that the construction of a competing plant and the exercise of a franchise granted to it by the city are necessary and convenient for the public service, a certificate of convenience and necessity cannot issue. Laws 1913, p. 610, sec. 72; State ex rel. Wabash Railroad Co. v. Public Service Com., 196 S.W. 369; Potter v. Board of Public Utility Commissioners, 98 A. (N. J.) 30; West Jersey Railroad Co. v. Board of Public Utilities Commissioners, 87 N. J. L. 178; State v. Florida East Coast Ry. Co., 67 So. 910; State v. Great Northern Ry. Co., 130 Minn. 57; Erie Railroad Co. v. Board of Public Utility Commissioners, 87 N. J. L. 441. No judgment for plaintiff of a trial court which is not supported by substantial evidence can stand; and certainly there is nothing in the Public Service Act that requires a higher consideration of the orders of the Public Service Commission at the hands of this court than it accords to judgments of courts of general jurisdiction. (a) If this case is to be considered by this court as the judgments of circuit courts in law cases are treated, then the order of the Commission cannot stand unless it is supported by substantial evidence for the judgment for plaintiff of a circuit court in a law case cannot stand, unless the finding of the court sitting as a jury, or the verdict of the jury, is supported by substantial evidence. Cole v. Armour, 154 Mo. 333; State ex rel. v. Elliott, 157 Mo. 609; Uhrich v Osborn, 106 Mo.App. 492; Colonial Trust Co. v McMillan, 188 Mo. 567; Hethcock v. Crawford County, 200 Mo. 176. (b) If the order of the Commission is to be tried and determined as an equity suit is considered by this court on appeal, as we believe the statute (Laws 1911, p. 642, sec. 111) requires, the order of the Commission cannot stand unless it is supported by substantial evidence, nor does it have any presumption of correctness, since the ultimate responsibility for the order rests upon this court. Hoeller v. Haffner, 155 Mo. 589; Southern Com. Sav. Bank v. Slattery, 166 Mo. 448; Fitzpatrick v. Weber, 168 Mo. 562; Rumsey Mfg. Co. v. Kaime, 173 Mo. 551; Lusk v. Atkinson, 268 Mo. 118. (2) A duplication of plants is not the remedy for excessive rates. Full and ample power is vested in the Public Service Commission to "determine and prescribe just and reasonable rates and charges thereafter to be in force for the service to be furnished, notwithstanding that a higher rate or charge has heretofore been authorized by statute," and it is made the imperative duty of the Commission, upon its own motion or upon complaint, after a hearing, to determine and prescribe just and reasonable rates. And where there is an existing plant, with ample facilities to fully meet every reasonable demand for service, and it is doing so, with no complaint of any kind, competition and duplication of plants are not the remedy for excessive rates, but such duplication means turmoil and cut-throat competition and loss of property, which must be borne by one or the other of the companies and in the end by the consumers themselves. Laws 1913, p. 605, sec. 69, sub-sec. 5; Weld v. Gas & Electric Light Commissioners, 197 Mass. 556; In re Amsterdam J. & G. Railroad Co., 33 N.Y.S. 1009, 86 Hun. 578; In Matter of Wood, 99 A.D. 349; Pond's Public Utilities, p. 10; Pond on Public Utilities (1913), secs. 547, 548; In Matter of Kings, Queens & Suffolk Railroad Co., 6 App.Div. (N. Y.) 245; Calumet Service Co. v. Chilton, 148 Wis. 334, 365.

A. Z. Patterson and James D. Lindsay for John M. Atkinson et al., respondents; Amandus Brackman, Wilfred Jones and I. R. Kelso for applicant.

Application of Western Power & Light Company. (1) The petition or application filed by the Western Power & Light Company with the Public Service Commission, was sufficient to authorize the Commission to grant the certificate of convenience and necessity. That it was in strict compliance with the provisions of the Public Service Act is not questioned. (2) The county court of St. Louis County could not bind the city of Maplewood in its capacity as a city of the third class, in its exercise of the police powers given to it, in its right and power to establish and open up new streets, alleys and public grounds, and in its undoubted right by franchise to determine what company, if any, may occupy such new public streets, alleys and grounds. The Public Service Commission law does not, in any respect, deny to cities of the third class the right to enter into contracts for public lighting, but on the contrary, recognizes this right. Babbitt v. Albion Elec. Lgt. & Power Co., P. U. Rep. Ann. 1915 F. p. 648. (3) Appellant asserts "that there is no basis, either in the law or the evidence, for the certificate of public convenience and necessity." We will not indulge in a lengthy discussion of monopoly and competition for the very good reason that most of the cases which have been decided, where companies have been denied certificates of necessity, are cases where a new company is incorporated and desires to enter the field against a company already on the ground and operating under valid and statutory franchises, and any discussion found in those cases would not be controlling in a case like the one now under consideration. In the cases where the question of monopoly and regulation are discussed, all of the elements of ruinous competition are present, to some exent at least, while in the present case, every element of ruinous competition is lacking. If the appellant company had a valid and statutory franchise in the City of Maplewood, and was doing business in a limited field, and its facilities were sufficient to supply lights to the entire community at reasonable rates, and a new company desired to enter the field for the purpose of competing solely for the business of Maplewood, then it is clear that the field would not be large enough to sustain two systems of supply profitably, and the new company as well as the old company would both be compelled to go into bankruptcy, if permitted to compete, resulting ulimately, injuriously to the public; then, the Public Service Commission would deny to the new company a certificate of public convenience and necessity to exercise its franchise; but in a case like the one now under consideration, the Commission cannot find any of the necessary elements of ruinous competition.

BLAIR J. Faris, J., dissenting, and Bond, C. J., not sitting.

OPINION

In Banc.

BLAIR, J.

In Division Commissioner Roy filed an opinion as follows:

"On February 14, 1916, the Public Service Commission granted to the Western Power & Light Company, a corporation of St. Louis County, a certificate of public convenience and necessity to construct, maintain and operate an electric light and power system in the city of Maplewood in said county, under a franchise granted by said city. The Electric Company of Missouri, appellant herein, was an intervener in that proceeding; and, after such certificate was ordered to issue, it proceeded by certiorari in the circuit court of Cole County to have the order of the Commission reviewed. The circuit court affirmed that order, and the cause is here on appeal.

"The city of Maplewood was incorporated as such in 1908. It is about eight or nine blocks wide from east to west, the streets and blocks being more artistic than regular in their direction and form. The eastern half is more compactly improved than the part further west, there being no appreciable difference in that respect between the eastern half and the adjoining portion of the city of St. Louis. The boundary between the two cities does not follow a street, but runs diagonally through lots and blocks. The population of Maplewood is about 6500.

"Before Maplewood was incorporated, and as early as 1892, the appellant, at first under a different name, began, and has since continued, to furnish the citizens of that county including what is now the city of Maplewood, with electric light and power. So far as the evidence shows, the appellant has never owned a generating plant. The evidence does show that it procures its electricity from the Union Electric Light & Power Company, and that it furnishes to the latter company a different kind of electric current from Keokuk, the latter current not being used in Maplewood. Just what the relations are between appellant and the Union Company does not appear.

"The appellant, through a holding company, owns the gas business which furnishes gas to Maplewood and to the portions of the city of St. Louis adjoining Maplewood. It also owns a subway system.

"It is conceded that appellant never obtained any franchise from the city of Maplewood to do business in that city, but that it is continuing to operate under its original county franchise.

"At the time of the granting of the certificate to the Western Company by the Commission, the appellant was furnishing to the citizens of Maplewood and of other cities and rural districts in said county light at the maximum rate of twelve cents per kilowatt hour. Just across the line in St. Louis, the Union Electric Light & Power Company, from which appellant gets its current, was furnishing it at a maximum of nine cents. There was a similar difference in the rates on gas in favor of St. Louis, it being furnished by appellant on...