State ex rel. Kansas City v. Public Service Com'n

• Decision Date: 10 December 1951
• Docket Number: No. 1,No. 42491,42491,1
• Citation: 244 S.W.2d 110,362 Mo. 786
• Parties: STATE ex rel. KANSAS CITY et al. v. PUBLIC SERVICE COMMISSION et al
• Court: Missouri Supreme Court

Page 110

244 S.W.2d 110

362 Mo. 786

STATE ex rel. KANSAS CITY et al. v. PUBLIC SERVICE COMMISSION et al.

No. 42491.

Supreme Court of Missouri, Division No. 1.

Dec. 10, 1951.

Chas. H. Mayer, St. Joseph, for appellants, John Mohler and George E. Ashley, St. Louis, of counsel.

David M. Proctor, City Counselor, Jerome M. Joffee, Sp. Utilities and Legislative Counsel, Kansas City, for respondent, Kansas City.

James E. Crowe, City Counselor, Forrest G. Ferris, Jr., Associate City Counselor, St. Louis, for respondent, City of St. Louis.

Marvin E. Boisseau, City Counselor, St. Louis, for respondent, University City.

John Torrey Berger, City Atty., St. Louis, for respondent, City of Kirkwood.

John J. McAtee, County Counselor, Clayton, for respondent, St. Louis County.

L. A. Warden, City Counselor, Trenton, for respondent, City of Trenton.

Dalton Schreiber, City Atty., Clayton, for respondent, City of Clayton.

Tyre W. Burton, Gen. Counsel, Jefferson City, for respondent, Public Service Commission.

COIL, Commissioner.

Appeal from a judgment of the Circuit Court of Cole County ordering intervenor-appellant, Southwestern Bell Telephone Company, to make restitution to telephone subscribers in the total sum of approximately $370,000, which sum the court found had been unlawfully (in excess of applicable rates) collected from the subscribers during the period February 1, 1949 to and including March 9, 1949.

A review of the history of the proceedings giving rise to this appeal is necessary for an understanding of the issue here involved. All dates, unless otherwise indicated, are in 1949.

On January 18 the Public Service Commission (hereinafter sometimes referred to as commission) made an order, effective February 1, approving rate schedules which contemplated an increase in the gross intrastate revenue of Southwestern Bell Telephone Company (hereinafter sometimes referred to as company) of $3,228,000. The report and order was signed by two commissioners, one commissioner concurring in result; no concurring opinion was filed until a later date. Interested parties filed motions for rehearing. On January 31 the commissioner who had noted concurrence filed a separate concurring opinion. On February 1 the commission overruled all motions for rehearing.

Thereafter, applications for writs of review were filed in the Circuit Court of Cole County by various parties including Kansas City.

On February 5, at the same time it filed its application for a writ of review, Kansas City filed its motion for immediate reversal of, or for the stay and suspension of, the order of the commission.

On February 21 the circuit court rendered a judgment by which it sustained the motion of Kansas City for immediate reversal or stay and suspension in so far as the motion sought immediate reversal. The court reversed the order and remanded the cause to the commission for further proceedings. This judgment was based upon a finding by the circuit court that the commission's order of January 18 was a nullity and unlawful because the order when issued did not (until January 31 when the concurring opinion was filed) represent an order accompanied by findings of fact concurred in by not less than a majority of the five commissioners; and because the order as supplemented by the concurring opinion was unlawful in that it failed to give parties to the proceedings before the commission a reasonable time within which to file motions for rehearing prior to the time when the order became effective.

St. Louis County appealed from this judgment. Further reference will be made to this appeal.

On February 25 the commission made a new and separate order (identical with the order of January 18 except in one minor detail) effective March 10. Certain interested parties, after motions for rehearing filed before the commission had been overruled, applied to the Circuit Court of Cole County for writs of review.

On March 12, at the same time that it filed its application for a writ of review, Kansas City filed a motion for immediate reversal of the order of February 25.

On March 21 the court rendered a judgment reversing the report and order of February 25 after sustaining the motion of Kansas City for immediate reversal. The basis for sustaining the motion and for the pursuant judgment was that the commission had no jurisdiction to enter the order of February 25. The reasons: because at the time the order was issued exclusive jurisdiction of the proceedings was in the circuit court and because a pending appeal to this court by St. Louis County from the judgment of the circuit court reversing the order of January 18 and remanding the cause to the commission gave this court exclusive jurisdiction of the proceedings while the appeal was pending.

Intervenor-company appealed to this court from the judgment of the circuit court reversing the order of February 25. State ex rel. Kansas City v. Public Service Commission, 360 Mo. 339, 228 S.W.2d 738. As noted, St. Louis County had appealed from the judgment of the circuit court reversing the order of January 18 and remanding the cause to the commission for further proceedings. State ex rel. St. Louis County v. Public Service Commission, 360 Mo. 270, 228 S.W.2d 1.

In concurrent opinions, this court held in one case that the judgment of the circuit court reversing the order of January 18, and remanding the cause to the commission for further proceedings, was not such a final disposition as to constitute an appealable judgment. We therefore dismissed the appeal by St. Louis County. St. Louis County v. Public Service Commission, supra. We held in the other case that the Public Service Commission did have jurisdiction to enter its order of February 25 and we therefore reversed the judgment of the circuit court to the contrary and remanded the case to that court for further proceedings consistent with our opinion. State ex rel. Kansas City v. Public Service Commission, supra.

After the mandate of this court in the last mentioned case was filed in the circuit court, all parties who had theretofore filed petitions for review withdrew or dismissed them. The circuit court, finding that all parties who had theretofore opposed the order of the commission of February 25 had withdrawn all objections thereto, entered its judgment affirming that order of the commission. No appeal was taken, and thus the judgment affirming the commission's order of February 25 was final.

As part of the judgment of the trial court reversing the order of January 18 and remanding the cause for further proceedings, was the statement that the court retained jurisdiction to decide at a future date whether, under the circumstances of the case, the court had authority to order a refund of moneys collected by Southwestern Bell Telephone Company between February 1 (the effective date of the commission's order of January 18) and March 10 (the effective date of the commission's order of February 25) and, if so, whether a refund should be ordered.

On May 21 the trial court determined that it did have authority to make such an order and on December 21, 1950, after having heard arguments of counsel on September 29, 1949, the trial court entered the judgment from which the present appeal is taken. This judgment ordered the company, present intervenor-appellant, to make restitution, by refund or credit, of the moneys collected by it from telephone subscribers during the period February 1, 1949 to and including March 9, 1949, in excess of rates in effect prior to February 1, 1949, and imposing certain conditions, not important here, relating to the restitution so ordered.

Intervenor-appellant contends on this appeal that the judgment of restitution was in excess of the jurisdiction of the circuit court; that the court could proceed only in accordance with the statutes providing for review by the circuit court of orders of the Public Service Commission; that such statutes limit and define the court's jurisdiction in such review proceedings and confer no judicial authority to render a judgment for restitution. Respondents contend that the circuit court had the power and authority as part of its equity jurisdiction to order restitution. Involved in, but not decisive of, the issue on this appeal is the construction of sections of the Public Service Commission Law, particularly Secs. 386.510 and 386.520, Mo.R.S.1949.

Section 386.510 provides, inter alia, that the purpose of a writ of review is to have the reasonableness or lawfulness of an original order of the commission or of an order on rehearing determined; that the circuit court on review may enter one of four judgments, viz., affirm the order of the commission, reverse the order of the commission, reverse the order of the commission and remand the cause to the commission for any further action the commission may desire to take, or, in the event that the circuit court finds there is evidence which was properly proffered to the commission and rejected which should have been heard, then the court may reverse the order and remand the cause to the commission with specific directions to hear such evidence and make a new order based upon the evidence theretofore heard and upon the evidence which the commission is directed to receive; that the circuit court only to the extent specified shall have jurisdiction to reverse, correct, or annul any order or decision of the commission or to suspend or delay the execution or operation of any such order or decision; and that the trial of cases brought to review the orders of the Public Service Commission shall be tried and determined as suits in equity.

Paragraph 1 of Sec. 386.520 provides (1) that the issuance of a writ of review does not stay or suspend an order of the commission; (2) that the circuit court issuing a writ of review has discretionary power to stay or suspend the order of the commission, but only if the court, after a hearing held upon three days'...