State ex rel. Gulf Transport Co. v. Public Service Com'n of State, V-K

• Decision Date: 29 March 1983
• Docket Number: No. WD,V-K,WD
• Citation: 658 S.W.2d 448
• Parties: STATE of Missouri, ex rel. GULF TRANSPORT COMPANY, Relator-Appellant, v. PUBLIC SERVICE COMMISSION OF the STATE of Missouri, Respondent, and Mid-American Coaches, Inc., Greyhound Lines, Inc., Continental Trailways, Inc., Midwest Buslines, Inc., American Buslines, Inc.,Bus Lines, Inc., and Vandalia Bus Lines, Inc., Intervenors-Respondents. 32885.
• Court: Missouri Court of Appeals

Page 448

658 S.W.2d 448

STATE of Missouri, ex rel. GULF TRANSPORT COMPANY, Relator-Appellant, v. PUBLIC SERVICE COMMISSION OF the STATE of Missouri, Respondent, and Mid-American Coaches, Inc., Greyhound Lines, Inc.,

Continental Trailways, Inc., Midwest Buslines, Inc.,

American Buslines, Inc., V-K Bus Lines, Inc., and Vandalia

Bus Lines, Inc., Intervenors-Respondents.

No. WD 32885.

Missouri Court of Appeals,

Western District.

March 29, 1983.

Motion for Rehearing and/or Transfer to

Supreme Court Denied May 31, 1983.

Application for Transfer

Sustained June 30, 1983.

Case Retransferred Oct. 11, 1983.

Court of Appeals Opinion

Readopted Oct. 14, 1983.

William H. Curtis and Gene S. Martin, Jr. of Morrison, Hecker, Curtis, Kuder & Parrish, Kansas City, and John H. Doeringer, Chicago, Ill., for relator-appellant.

Kent M. Ragsdale and Thomas R. Parker, Jefferson City, for respondent Public Service Com'n of Missouri.

W.R. England, III, Jefferson City, for intervenor-respondent Mid-American Coaches, Inc.

Elvin S. Douglas, Jr. of Crouch, Crouch, Spangler & Douglas, Harrisonville, for intervenors-respondents, Greyhound Lines, Inc., Continental Trailways, Inc., Midwest Buslines, Inc. and American Buslines, Inc.

Donald K. Anderson, Jr. of Latourette & Weyerich, St. Louis, for intervenors-respondents V-K Bus Lines, Inc. and Vandalia Bus Lines, Inc.

Before SOMERVILLE, C.J., and SHANGLER, PRITCHARD, WASSERSTROM, MANFORD, KENNEDY and LOWENSTEIN, JJ.

MANFORD, Judge.

This appeal is taken from a circuit court judgment affirming the report and order of the Missouri Public Service Commission which denied relator's application for a certificate of public convenience and necessity. Jurisdiction for purposes of this appeal is vested in this court by § 386.540, RSMo 1978. The judgment is reversed with directions.

Three points are presented which in summary charge the circuit court erred in affirming the report and order of the Commission because (1) the "policy" authorizing charter rights only in conjunction with regular route operations as expressed and applied by the Commission in its order denying appellant's application is unreasonable and unlawful because there are no facts in the record justifying the application of such a "policy" and such a "policy" is contrary to § 390.051, RSMo 1978 and this court's interpretation of § 390.051, RSMo 1978; (2) the Public Service Commission's refusal to grant appellant's application for irregular route authority was unreasonable as a matter of law because the Commission's conclusion that no need was demonstrated is not supported in the record and the Commission, in considering need, refused to give weight to the quality of appellant's service being offered and the preference of charter bus customers; and (3) the findings of fact and conclusions of law of the Commission were unreasonable and unlawful as a matter of law because (a) the record does not show any substantial impact upon protestants' charter business in St. Louis, St. Charles and Jefferson counties which would occur from competition there with appellant; (b) the record does not support any need for protestants' regular routes throughout Missouri to be subsidized by their charter revenues and profits, if any, from St. Louis, St. Charles and Jefferson counties; (c) there is no factual or legal justification for requiring charter bus customers in St. Louis, St. Charles and Jefferson counties to subsidize the regular routes of protestants.

For purposes of this opinion, the parties are identified as follows: Gulf Transport Co. is the relator-appellant and is hereinafter referred to as relator. The Missouri Public Service Commission is co-respondent and is hereinafter referred to as the P.S.C. There were seven intervenors: Greyhound Lines, Continental Trailways, Midwest Buslines, American Buslines, (Midwest and American are subsidiaries of Continental), V-K Bus Lines, Vandalia Bus Lines and Mid-American Coaches. Intervenors protested the application and are hereinafter referred to as protestants. Protestants entered this cause pursuant to § 390.051, RSMo 1978.

The record reveals the following pertinent facts. On February 20, 1980, relator filed an application for a certificate of public convenience and necessity seeking irregular route authority for the transportation of passengers from points of origin in St. Louis, St. Charles, and Jefferson counties in Missouri to all points in the state.

A hearing on relator's application was held on April 1 and 2, 1980 by a hearing examiner for the P.S.C. to determine the propriety of irregular route market entry by relator. The P.S.C. rendered its report and order on August 20, 1980 denying relator's application. On September 23, 1980, relator's application for rehearing was overruled by the P.S.C. Upon relator's petition, a writ of review was issued by the circuit court on October 14, 1980. The circuit court affirmed the P.S.C. order on May 20, 1981. This appeal followed.

Relator is a Mississippi corporation which operates as a regular route common carrier of passengers by motor vehicle in the states of Alabama, Mississippi, Tennessee, Kentucky, Illinois, Indiana, and within an extremely limited area of Missouri. Relator commenced business in 1936. Relator's only regular route authority in Missouri consists of a one mile stretch from the bus terminal in St. Louis to the Mississippi River Bridge. Relator possesses interstate operating authority from the Interstate Commerce Commission (I.C.C.) and has charter bus rights ancillary to the interstate authority. This I.C.C. authority permits relator to operate charter bus operations from St. Louis throughout the continental United States and all provinces of Canada. This I.C.C. authority also allows relator to provide charter service from St. Louis and its commercial zone ¹ to points in Missouri where the interstate nature of the movements has been established by inclusion of tour points outside of Missouri. As a result, relator must, for example, take charters from St. Louis, Missouri to Kansas City, Kansas for overnight lodging to preserve the interstate character of the charter even though activities on the Missouri side were the principal focus of the trip. Relator provides this service, in part, by maintaining personnel, an office and a garage facility in St. Louis to conduct its business. Relator's application was filed as a request for intrastate operating authority because it has received numerous requests for intrastate charter tours as a result of its substantial interstate charter business. Relator seeks operating authority in order to accommodate this demand. Other facts pertaining to the issues herein will be developed and discussed as applicable within the remainder of this opinion.

The principal statutory provisions applicable herein are subsections 5. and 6. of § 390.051, RSMo 1978, which read as follows:

"5. If the Commission shall find from the evidence that public convenience and necessity will be promoted or that there is public need for the creation of the service proposed, or any part thereof, and that the applicant is qualified properly to perform the service proposed and to conform to the provisions of Section 390.111 to 390.176 and the requirements rules and regulations of the Commission established thereunder, a certificate therefor shall be issued."

6. In determining whether a certificate should be issued, the Commission shall give reasonable consideration to the transportation service being furnished by any common carrier by rail or motor vehicle and the effect which the proposed transportation service may have upon such carriers; provided, that the issuance of a certificate of convenience and necessity to one carrier shall not prohibit the granting of such certificate to another carrier over the same route if in the opinion of the Commission the public convenience and necessity will be promoted by so doing."

Review of the report and order of the P.S.C. is limited to the determination of whether the report and order are lawful and reasonable. State ex rel. Utility Consumers Council of Missouri, Inc. v. Public Service Commission, 585 S.W.2d 41 (Mo. banc 1979); Empire Dist. Elec. Co. v. Cox, 588 S.W.2d 263 (Mo.App.1979). The lawfulness of an order of the P.S.C. depends on whether there exists statutory authority for its issuance. State ex rel. City of Cape Girardeau v. Public Service Commission, 567 S.W.2d 450 (Mo.App.1978). Decisions of administrative agencies based upon their interpretation of the law is a matter of independent judgment for a reviewing court and will be corrected where erroneous. Daily Record Co. v. James, 629 S.W.2d 348 (Mo. banc 1982).

The reasonableness of a report and order of the P.S.C. depends on whether the report and order are supported by competent and substantial evidence upon the whole record. State ex rel. Beaufort Transfer Co. v. Public Service Commission of Missouri, 610 S.W.2d 96 (Mo.App.1980). Findings by the P.S.C. are considered prima facie correct and a party challenging them bears the burden of showing such findings are not reasonable or lawful. State ex rel. Inman Freight System, Inc. v. Public Service Commission, 600 S.W.2d 650 (Mo.App.1980). Upon review, this court is prohibited from substituting its judgment for that of the P.S.C., but it is entitled to determine whether the P.S.C. could have reasonably made its findings and reached the results announced in its findings and order by consideration of all the evidence presented. State ex rel. Oliver v. Public Service Commission, 542 S.W.2d 595 (Mo.App.1976).

The points presented by relator can be reduced to three simply worded questions which are stated prior to the full consideration of the applicable facts and circumstances specific to this case: (1) Was the P.S.C.'s cross-subsidization policy supported by statutory authority? (2) Was a public need demonstrated for requested charter bus service? and (3) Would...