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

Decision Date13 March 1950
Docket NumberNo. 41616,No. 1,41616,1
Citation360 Mo. 339,228 S.W.2d 738
PartiesSTATE ex rel. KANSAS CITY et al. v. PUBLIC SERVICE COMMISSION et al
CourtMissouri Supreme Court

Henry McKay Cary, Tyre W. Burton, Jefferson City, Chas. H. Mayer, St. Joseph, and John Mohler, St. Louis, of counsel, attorneys for appellants.

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

Frazier Baker, City Counselor, Fulton, L. A. Warden City Counselor, Trenton, attorneys for respondents.

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

ASCHEMEYER, Commissioner.

This is an appeal by the Public Service Commission of Missouri and the Southwestern Bell Telephone Company from a judgment of the Circuit Court of Cole County reversing and setting aside a Report and Order of the Public Service Commission entered on February 25, 1949. The Order of the Commission approved, in part, a schedule of rates previously filed by the Telephone Company under which the rates of the Telephone Company were increased annually in the amount of approximately $3,228,000.00. The respondents are the City of Kansas City, the City of St. Louis, and various other Cities of Missouri which had been permitted to intervene in the proceeding before the Public Service Commission and had filed applications for writs of review in the Circuit Court of Cole County, or had intervened in the case on review.

The judgment involved in this appeal contained the following recitals: that when the Commission entered its Order of February 25, 1949, the original case reviewing the Order of the Public Service Commission of January 18, 1949, was still pending in the Circuit Court with no final judgment in effect and while there was still time to file a motion for a new trial and take an appeal; that jurisdiction could not be regained by the Commission until that case was legally remanded to it; that it could not be remanded until the time for filing a motion for a new trial had expired and thirty days had elapsed from the entry of the judgment; that a timely motion for a new trial was filed by St. Louis County which subsequently took an appeal to the Supreme Court; and that the Commission never regained jurisdiction of the case but jurisdiction is now lodged in the Supreme Court on appeal.

The 'original case' referred to in the judgment involved a review of the Order of the Commission entered on January 18, 1949. In that case, the trial court entered a judgment on February 21, 1949, reversing the Commission's Order of January 18, 1949, and remanding the case to the Commission for further proceedings. This judgment is involved in State ex rel. The County of St. Louis, Missouri v. Public Service Commission, Mo.Sup., 228 S.W.2d 1. The facts relating to the Commission's Order of January 18, 1949, and the subsequent suit to review such Order are set out fully in the opinion in that case and need not be repeated here.

On February 22, 1949, the Commission received by mail the following communication from the Circuit Court of Cole County, omitting names of addressees:

'Guy M. Sone

Clerk Circuit Court of Cole County

'Jefferson City, Mo.

February 21, 1949.

'To (names omitted)

'Gentlemen:

'On this date Judge Sam C. Blair entered the following order in the case of State of Missouri, at the relation of Kansas City, v. Public Service Commission, et al., No. 11,834:

"Motion for immediate reversal or for stay and suspension of order of Public Service Commission again considered. Court finds original report and order of January 18th, 1949, was a nullity owing to its lack of a showing that a majority of the Commission adequately concurred in the same; that the said report and order had no validity until January 31st, 1949, when Commissioner Wilson filed her separate concurring opinion; that relator, and others interested, was not allowed a reasonable time within which to file and present a motion for a rehearing directed at the order as supplemented by the separate concurring opinion of Commissioner Wilson; that relator, and others interested, had the right to file such a motion for a rehearing under Section 5689, R.S.Mo.1939, and was entitled to do so; that the action of the Commission in this case denied relator, and others interested, this right; that such of the Commission was arbitrary, unreasonable and capricious; that the order is therefore unlawful for the reasons above; that the order should be and same is reversed and remanded to the Commission for further proceedings consistent herewith. Counsel for relator and intervenors will, under rules of this court, prepare and supply clerk with appropriate form or order.'

'Judge Blair also dictated into the record a statement of his views in this matter.

'The above for your information.

'Very truly yours,

'Guy M. Sone,

'Clerk of the Circuit Court of Cole County, Missouri.'

On February 23, 1949, the Commission entered an Order cancelling all rate schedules authorized by its Order of January 18, 1949, and re-establishing the schedule of rates previously on file. On February 25, 1949, the Commission issued a new Report and Order to become effective March 10, 1949, approving most of the schedule of rates filed by the Telephone Company on September 30, 1947, on a temporary and experimental basis. This Report and Order differed in certain particulars (which need not be noted) from the previous Report and Order entered on January 18, 1949. Motions for rehearing before the Commission were filed by various cities, all of which were overruled, and thereafter applications for writs of review were filed in the trial court. The City of Kansas City filed a motion for immediate reversal of the Order of the Commission on the ground that the Commission had no jurisdiction to make the Order of February 25, 1949, because the case was then pending in the Circuit Court which had exclusive jurisdiction. This motion was sustained on May 21, 1949, and the trial court entered the judgment, previously described, reversing the Commission's Order of February 25, 1949. The Company filed its motion for a new trial, and thereafter this appeal was taken.

For convenience, we shall refer to the Commission's Order of January 18, 1949, as the First Order; the Order of February 25, 1949, as the Second Order; and the suit to review the First Order as the original suit.

The basic question presented is whether the Commission had the authority or jurisdiction to enter its Second Order, or whether it had been deprived of such authority by the original suit which vested jurisdiction in the trial court. The original suit had resulted in a judgment reversing the First Order and remanding the case to the Commission. Respondents argue that this judgment was not effective to revest the Commission with power to issue the Second Order because the judgment had not become final and no mandate remanding the case had been issued by the trial court.

The Public Service Commission is not a court and it has no judicial power. The orders which it issues are not judgments. or adjudications. It has been described as an 'administrative arm' of the Legislature. In approving or fixing rates of public utilities which come under its supervision, it exercises a legislative power. Its orders operate prospectively and determine rates to be charged in the future. Missouri Southern Ry. Co. v. Public Service Commission, 279 Mo. 484, 214 S.W. 379, 380; Marty v. Kansas City Light & Power Co., 303 Mo. 233, 259 S.W. 793, 796; Prentis v. Atlantic Coast Line, 211 U.S. 210, 226, 29 S.Ct. 67, 53 L.Ed. 150, 158; Midland Realty Co. v. Kansas City Power & Light Co., 300 U.S. 109, 114, 57 S.Ct. 345, 81 L.Ed. 540, 544, affirming Kansas City Power & Light Co. v. Midland Realty Co., 338 Mo. 1141, 93 S.W.2d 954. The Second Order of the Commission issued in this case was to become effective on March 10, 1949. It operated prospectively and established rates to be charged in the future. It was a new, separate, and distinct order. While it avoided the procedural defects inherent in the First Order (which were the basis of the trial court's judgment that the First Order was unlawful), it was, in no sense, an attempt...

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