State ex rel. Henson v. Brown

• Decision Date: 04 September 1930
• Docket Number: No. 29830.,29830.
• Citation: 31 S.W.2d 208
• Parties: THE STATE at Relation and to Use of OBE HENSON v. T.J. BROWN ET AL., MEMBERS OF PUBLIC SERVICE COMMISSION, Appellants.
• Court: Missouri Supreme Court

31 S.W.2d 208

THE STATE at Relation and to Use of OBE HENSON v. T.J. BROWN ET AL., MEMBERS OF PUBLIC SERVICE COMMISSION, Appellants.

No. 29830.

Supreme Court of Missouri.

Division One, September 4, 1930.

Appeal from Cole Circuit Court. — Hon. Henry J. Westhues, Judge.

REVERSED AND REMANDED (with directions).

D.D. McDonald and J.P. Painter for appellants.

(1) The circuit court on review of an order of the Public Service Commission may affirm or reverse, but may not by a new or modified order substitute its judgment for that of the commission. Sec. 10522, R.S. 1919; State v. Public Service Commission, 308 Mo. 359, 272 S.W. 957; State v. Public Service Commission, 316 Mo. 233, 289 S.W. 785; Queens Gas Company v. McCall, 245 U.S. 345. (2) It is not the policy of the Missouri Bus Law, now a part of the Public Service Commission Law, to promote competition between motor carriers. It is the policy of the Missouri Bus Law to require public convenience and necessity to be served by existing utilities. Laws 1927, p. 404, sec. 4, and sec. 8, p. 408; State ex rel. v. Atkinson, 275 Mo. 325; Scioto Valley Ry. & P. Co. v. Pub. Utilities Com., 154 N.E. 320, P.U.R. 1927C 186; Egyptian Transportation System v. Railroad Co., 321 Ill. 580, P.U.R. 1926E 275; Bartonville Bus Line v. Eagle Motor Coach Line, 326 Ill. 200, P.U.R. 1927E 333; Abbott v. Public Utilities Com., 136 Atl. 490, P.U.R. 1927C 436; Frost v. Railroad Commission, 271 U.S. 591. (3) The commission may, in issuing a certificate of public convenience and necessity for the operation of a bus company, limit the right of the company to operate so as to avoid unreasonable competition with existing transportation facilities. Laws 1927, p. 404, sec. 4; Anderson v. Public Service Commission, 88 Pa. Sup. Ct. 306; In re Flaugh & Henneous, 6 Pa. P.S.C. 784, P.U.R. 1924D 862. (4) Applicant was not operating as required by Section 11 of the Missouri Bus Law, on the first day of December, 1926; hence no presumption that such operation is necessary to public convenience. Laws 1927, p. 409, sec. 11; Westhoven v. Ohio Public Utilities Commission, 147 N.E. 759, P.U.R. 1925E 218; In re Ayres-Whiteside Transportation Company, 30 Cal. R.C.R. 95.

Omer E. Brown for respondent.

(1) Where the Public Service Commission puts a number of separable and distinct orders under one head and no wise depending on each other, the court may affirm the reasonable and set aside the unreasonable one. State v. Public Service Commission, 272 S W. 963. (2) An order of the Commission which is confiscatory and unreasonable cannot be sustained. State ex rel. Water Co. v. Public Service Commission, 252 S.W. 446. (3) The circuit court has jurisdiction to reverse, correct or annul any order or decision of the Commission. Sec. 10522, R.S. 1919. (4) Where operator had owned a line for thirty days before December 1, 1926, but had been in operation nine years, a certificate was granted without requiring application to prove public convenience and necessity. Re William, P.U.R. 1928B, 675. (5) In the absence of any evidence to the contrary the Commission presumes a carrier operating on December 1, 1926, was operating in good faith. Re Yelloway, P.U.R. 1928A, 1217. All carriers established before December 1, 1926, and furnishing dependable and satisfactory service on that date, are entitled to a certificate of public convenience and necessity by virtue of their operation. McDavid Silver Coach Co., case 5385, 1927 P.U.R.; In re Steele, Case No. 5456, P.U.R. 1928B, 674; Re Purple Swan Safety Coach Lines, Case 5373, 1928B P.U.R.

FRANK, J.

This is an appeal from a judgment of the Circuit Court of Cole County setting aside a part of an order made by the Public Service Commission.

On February 15, 1928, respondent filed with the Commission an application for a certificate of convenience and necessity to operate a motor vehicle for the transportation of passengers for hire over a proposed route leading from the town of Chadwick over a county road to Sparta. From Sparta over State Highway No. 14 to Ozark, and from Ozark over State Highway No. 65 through Galloway to Springfield.

This bus line has been continuously operated over the proposed route for a period of fourteen years, during which time its ownership passed from hand to hand, finally passing into the hands of respondent who makes the present application for a certificate of convenience and necessity.

Section 11 of the Public Service Commission Act relating to motor bus regulation (Laws 1927, p. 409) provides as follows:

"Every motor carrier actually operating in good faith, rendering satisfactory and dependable service by motor vehicles that come under the provisions of this act on the first day of December, 1926, shall be presumed to be necessary to public convenience and such motor carriers shall in the absence of evidence overcoming such presumption receive a certificate for routes established by them."

Respondent invokes this statute and contends that he is entitled to a certificate of convenience and necessity because the undisputed evidence heard by the Commission showed that on December 1, 1926, he was the owner of and was in good faith operating the bus line in question, rendering satisfactory and dependable service.

We do not so read the record. Respondent emphatically stated several times during the course of his testimony that he was not the owner and operator of this bus line on December 1, 1926. In addition to this, he testified that he had been operating the line for himself only four or five months prior to the hearing which occurred in March, 1928. Respondent relies on the testimony of witness Jernigan, a former owner of the line who sold it to respondent. Prior to selling the line to respondent, he had sold it to another party and took back a mortgage to secure the purchase price. He foreclosed this mortgage and got the line back before selling it to respondent. Jernigan testified that respondent began operating the line for himself in November (meaning November, 1926). Respondent relies on this testimony to support his contention that he owned and operated the line on December 1, 1926. Respondent overlooks the further testimony of this witness:

"Q. I believe you gave the date you foreclosed the mortgage? A. I think it was the first day of January we fixed the papers up.

"Q. How did Mr. Henson begin the operation of something he received from you if you didn't foreclose the mortgage until January? A. Well, Bonner was supposed to take this up and he (meaning respondent) was driving for them or under them, but I don't know what kind of a deal they made... .

"Q. You did not have any interest you could turn over to Mr. Henson until you foreclosed the mortgage, did you? A. No."

True the evidence shows that respondent was driving the bus on December 1, 1926, but he was driving it for the then owner and he expressly so states in his testimony. The evidence is conclusive that respondent was not the owner and operator of the bus line on December 1, 1926, therefore the statute does not give rise to any presumption in his favor, but the burden was on him to prove that the proposed operation of this bus line was necessary for public convenience.

As bearing on the question of necessity and public convenience, the evidence showed that the St. Louis-San Francisco Railway parallels this proposed bus line and runs a train one round trip each day from Chadwick to Springfield. In addition to this, it was shown that four licensed bus lines...