State ex rel. Fee Fee Trunk Sewer, Inc. v. Public Service Commission of Missouri

• Decision Date: 31 March 1975
• Docket Number: No. KCD,KCD
• Citation: 522 S.W.2d 67
• Parties: STATE ex rel. FEE FEE TRUNK SEWER, INC., a corporation, Relator-Respondent, v. PUBLIC SERVICE COMMISSION OF MISSOURI, Respondent-Appellant. STATE ex rel. ST. LOUIS COUNTY, Missouri, and the Home Builders Association of Greater St. Louis, Relators-Respondents, v. PUBLIC SERVICE COMMISSION OF MISSOURI, Respondent-Appellant. 26857.
• Court: Missouri Court of Appeals

Page 67

522 S.W.2d 67

STATE ex rel. FEE FEE TRUNK SEWER, INC., a corporation, Relator-Respondent, v. PUBLIC SERVICE COMMISSION OF MISSOURI, Respondent-Appellant.

STATE ex rel. ST. LOUIS COUNTY, Missouri, and the Home

Builders Association of Greater St. Louis, Relators-Respondents, v. PUBLIC SERVICE COMMISSION OF MISSOURI, Respondent-Appellant.

No. KCD 26857.

Missouri Court of Appeals, Kansas City District.

March 31, 1975.

Harry Wiggins, Gen. Counsel, David L. Smith, Asst. Gen. Counsel, Paul W. Phillips, Asst. Gen. Counsel, Jefferson City, for respondent-appellant.

Russell A. Grantham, Bridgeton, Herman W. Huber, Jefferson City, for Fee Fee Trunk Sewer, Inc., relator-respondent.

George F. Gunn, Jr., St. Louis County Counselor, Clayton, for relator St. Louis County.

Arthur R. Tucker, Lewis, Rice, Tucker, Allen & Chubb, St. Louis, for Home Builders Association of Greater St. Louis, relator-respondent.

Before SWOFFORD, P.J., and WELBORN and HIGGINS, Special Judges.

ANDREW JACKSON HIGGINS, Special Judge.

Appeal by Public Service Commission of Missouri from judgment upon review which remanded this cause 'for further proceedings' with respect to rates to be charged by Fee Fee Trunk Sewer, Inc.

A chronicle of the proceedings below will demonstrate that a detailed statement from the nearly 2,000 pages of testimony and numerous exhibits in evidence before the Commission is not necessary to the determination of this appeal.

On February 16, 1971, Fee Fee Trunk Sewer, Inc., filed with the Public Service Commission a schedule of proposed rates for sewer service effective March 8, 1971, which, if approved, would raise such charges to residential customers from $28.50 to $60.00 annually.

On March 11, 1971, the Commission, pursuant to Section 393.150(1), RSMo 1969, V.A.M.S., suspended the proposed rates to July 16, 1971, and ordered Fee Fee to present its evidence in support of the proposed rates at a hearing to commence May 3, 1971. St. Louis County and Home Builders Association of Greater St. Louis intervened and participated throughout this proceeding.

On May 3, 1971, Fee Fee submitted its prepared testimony and petitioned for 'interim rate relief' pending final determination of the proposed rate increase. The hearing was continued to a date to be fixed.

On May 12, 1971, the Commission denied the petition for interim relief, ordered the Commission staff to file its prepared testimony by September 15, 1971, and set the matter for further hearing on September 27, 1971.

On July 2, 1971, the Commission, pursuant to Section 393.150(2), RSMo 1969, V.A.M.S., further suspended the proposed rates to January 16, 1972.

On September 13, 1971, the Commission ordered a prehearing conference for September 20, 1971, for purposes of formulating and simplifying the issues. At the conference the Commission staff proposed certain adjustments to Fee Fee's financial statements as a result of the staff's audit and investigation of Fee Fee's records through December 31, 1970. All adjustments were stipulated except two which pertained to Fee Fee's balance sheet and two which pertained to its income statement for twelve months adjusted to the December 31, 1970, 'operating level.'

On September 27 and 28, 1971, the hearing resumed, Fee Fee's witnesses were cross-examined by the Commission staff and the intervenors, and the hearing was continued to October 12, 1971.

On October 12, 13 and 14, the hearing was again resumed and continued to October 26, 1971, at which time testimony of public witnesses was taken in Clayton, Missouri.

On January 14, 1972, Fee Fee filed written consent to extension of the second suspension period under Section 393.150(2), supra, from January 16, 1972, 'to allow the Commission time to complete its report and order * * * and allow approximately ten days from date of issue to the effective date * * * with the understanding said decision and report and order will be issued on or about January 19, 1972, with an effective date of February 1, 1972.'

On January 20, 1972, a majority of the Commission, with one commissioner not participating and one commissioner dissenting, issued its Report and Order, effective January 31, 1972, by which Fee Fee's proposed commercial rates were approved, its proposed and suspended tariffs for residential customers were determined to be unreasonable and canceled, and Fee Fee was ordered to file new tariffs for residential customers of $3.50 monthly, $21.00 semianually.

On January 28, 1972, Fee Fee, Home Builders Association, and County filed Motions for Rehearing.

On February 1, 1972, the Commission granted a rehearing as requested by Fee Fee, Home Builders Association, and County; and approved increased tariffs filed by Fee Fee pursuant to the Report and Order of January 20, 1972, effective February 1, 1972.

On February 1, 1972, Fee Fee petitioned for Writ of Review which was issued March 1, 1972, and quashed March 22, 1973, 'for the reason that it was prematurely issued.'

On February 3, 1972, the Commission ordered a prehearing conference for February 9, 1972, at which the rehearing was set for February 18, 1972.

On February 18, 1972, the rehearing was commenced, and it was concluded May 1, 1972. The record of the prior hearings was incorporated and additional evidence was adduced through cross-examination of some of Fee Fee's witnesses and from Commission staff witnesses.

On May 25, 1972, a majority of the Commission, with one commissioner not participating and one commissioner concurring in part and dissenting in part, issued its Interim Report and Order, effective June 1, 1972, by which Fee Fee's proposed commercial rates were again approved, its proposed and suspended tariffs for residential customers were again canceled, its rates for residential customers filed January 27, 1972, and approved by the Commission February 1, 1972, were canceled, and Fee Fee was ordered to file new tariffs for residential customers of $3.00 monthly to commence with billings commencing July 1, 1972, all 'with the proviso that a final Report and Order will fix a proper return and rates upon traditional rate-making concepts when the Staff has completed its original cost study, as such then seems advisable. Suffice it to be said that at this time, the rate of return on the value of the property used in the public service is certainly to be considered in setting just and reasonable rates, and we desire to do so when the original cost study is completed.'

On May 30 and 31, 1972, Fee Fee, Home Builders Association, and County filed Motions for Rehearing.

On June 6, 1972, the Motions for Rehearing were denied.

On June 9, 1972, Fee Fee filed its Second Petition for Writ of Review under Section 386.510, RSMo 1969, V.A.M.S., to be directed to the Public Service Commission 'to certify * * * the entire record * * * for the purpose of having the reasonableness and lawfulness of its Interim Report and Order dated May 25, 1972 * * * and its original report and order dated January 20, 1972 * * * inquired into and determined, and * * * that if * * * said orders and decisions * * * be unlawful or unreasonable, enter * * * judgment reversing and setting aside said orders and decisions and find that the rates originally filed February 16, 1971, became effective by operation of law in accordance with Sec. 393.150 * * *.'

On June 14, 1972, Home Builders Association and County jointly filed a similar petition for writ of review.

On June 9, 1972, the circuit court issued its Writ of Review ordering the Commission to certify its entire record in this proceeding 'to the end that this Court may adjudge upon the regularity of said proceedings and determine the reasonableness and lawfulness of said reports and orders and to the further end that this Court will make such further and other orders herein as right and justice may require.'

On June 27, 1972, on motion of Fee Fee under Section 386.520, RSMo 1969, V.A.M.S., the court granted Fee Fee '20 days from the date * * * to file * * * a suspending bond * * * in the sum of Eighty-Four Thousand Dollars ($84,000.00) and an additional bond of Eighty-four Thousand Dollars ($84,000.00), or the equivalent of subsequent billings to residential customers in excess of the rate ordered by the Interim Report and Order of Respondent, dated May 25, 1972, prior to the next billing period or periods, during the pendency of this appeal, conditioned according to law, and with the General Insurance Company of America, a Washington Corporation, as surety thereon. * * * that upon the filing and approval of the aforesaid suspending bond within the time stated and certification by a duly authorized officer of Relator that the terms of this order will be complied with, the INTERIM REPORT AND ORDER of the Public Service Commission dated May 25, 1972 is stayed and suspended, pending final disposition of this case by such further orders of this court as may be appropriate under the circumstances and law. * * * that all monies collected from Relator's residential customers, in excess of the Three Dollar ($3.00) per month rate ordered by the INTERIM REPORT AND ORDER, dated May 25, 1972, on all billing periods commencing on and after July 1, 1972, during the pendency of this appeal, shall be deposited in a separate interest bearing account * * *; said funds are not to be commingled with other funds of Relator and shall not be withdrawn from said fund or account except on order of this Court. * * * that Relator shall file with this Court a verified list of all residential customers of Relator, showing * * * the amounts billed in excess of the charge ordered by the INTERIM REPORT AND ORDER of Respondent, dated May 25, 1972, covering each billing period for sewer service due on and after July 1, 1972, and Relator shall make verified monthly reports to this Court, on or before August 10, 1972, and the 10th day of each succeeding month thereafter, during the pendency of this appeal, of the...