State ex rel. Kansas City Power & Light Co. v. Public Service Com'n of Missouri

• Decision Date: 16 November 1934
• Docket Number: 32769
• Parties: State of Missouri at the Relation of Kansas City Power & Light Company v. Public Service Commission et al., Appellants. State of Missouri at the Relation of Missouri Power & Light Company v. Public Service Commission et al., Appellants. State of Missouri at the Relation of Missouri Gas & Electric Service Company v. Public Service Commission et al., Appellants
• Court: Missouri Supreme Court

76 S.W.2d 343

335 Mo. 1248

State of Missouri at the Relation of Kansas City Power & Light Company v. Public Service Commission et al., Appellants.

State of Missouri at the Relation of Missouri Power & Light Company v. Public Service Commission et al., Appellants.

State of Missouri at the Relation of Missouri Gas & Electric Service Company v. Public Service Commission et al., Appellants

No. 32769

Supreme Court of Missouri

November 16, 1934

Rehearing Overruled November 16, 1934.

Appeal from Cole Circuit Court; Hon. W. S. Stillwell Judge.

Reversed and remanded (with directions).

D D. McDonald for Public Service Commission.

Chas H. Mayer and Mayer, Conkling & Sprague for St. Joseph Railway, Light, Heat & Power Company.

(1) The Public Service Commission had jurisdiction and the power to make the order. Sec. 5193, R. S. 1929; Pub. Serv. Comm. v. Kansas City P. & L. Co., 325 Mo. 1217. (2) The granting or withholding of a certificate of convenience and necessity is left to the reasonable discretion of the Public Service Commission. State ex rel. Alton Trans. Co. v. Pub. Serv. Comm., 49 S.W.2d 617; State ex rel. Alton Trans. Co. v. Pub. Serv. Comm., 49 S.W.2d 621; State ex rel. Motor Bus Co. v. Pub. Serv. Comm., 324 Mo. 275; State ex rel. Jenkins v. Brown, 323 Mo. 387. (3) The order of the commission was not unreasonable unless it was so arbitrary or capricious as to be beyond the exercise of a reasonable discretion. Sec. 5234, R. S. 1929; State ex rel. Ozark P. & W. Co. v. Pub. Serv. Comm., 287 Mo. 533; State ex rel. Alton Trans. Co. v. Pub. Serv. Comm., 49 S.W.2d 617; State v. Ry. Co., 130 Minn. 57, 153 N.W. 248; People v. McCall, 219 N.Y. 84, 113 N.E. 796. (4) No abuse of the commission's discretion is specifically set forth in the respondent Missouri Gas & Electric Service Company's petition for rehearing; nor is it anywhere alleged in said petition for rehearing, even in general terms, that the commission's order or decision was unlawful or unjust or unreasonable. Therefore, the Missouri Gas & Electric Service Company was not entitled to have such questions reviewed by the circuit court, and cannot urge or rely upon such grounds in this court. Sec. 5233, R. S. 1919; Lusk v. Pub. Serv. Comm., 277 Mo. 273; State ex rel. Telephone Co. v. Pub. Serv. Comm., 272 Mo. 643; State ex rel. Mo. Pac. Ry. Co. v. Atkinson, 269 Mo. 647. Respondents Missouri Power & Light Company and Kansas City Power & Light Company have no legal interest in the commission's order, and so were and are not entitled to have the question of the commission's abuse of discretion reviewed. Sec. 5233, R. S. 1929; State ex rel. v. Talty, 139 Mo. 391. (5) The determination of the commission in this case was supported by ample substantial evidence, and its order was not unlawful or unreasonable, and therefore is conclusive upon this court. State ex rel. Chicago, G. W. Railroad Co. v. Pub. Serv. Comm., 51 S.W.2d 76; State ex rel. St. Louis v. Pub. Serv. Comm., 47 S.W.2d 104; State ex rel. Harrisonville v. Pub. Serv. Comm., 291 Mo. 457.

Charles M. Blackmar and Ralph M. Jones for Great Lakes Pipe Line Company; Merservey, Michaels, Blackmar, Newkirk & Eager of counsel.

(1) The real party in interest in this litigation is the Great Lakes Pipe Line Company. It is the customer which seeks the service of electrical power. As far as this litigation is concerned the pipe line company occupies the position of the public. The power companies are only incidentally interested because to them the pipe line company is just another customer; that is to say, each power company can continue to serve the customers which it has served in the past and still function as a public utility, but the pipe line company cannot function to its required capacity without electric power at the Paradise Pumping Station. As an interstate common carrier it has its obligations to the public and these it will be unable to fully perform unless it obtains electrical power promptly. Act of Congress, June 29, 1906, chap. 3591, 34 Stat. 584; The Pipe Line Cases, 234 U.S. 548; Pond Public Utilities (4 Ed.), sec. 913, p. 1849; State ex rel. Electric Co. v. Atkinson, 275 Mo. 325. (2) The order of the Public Service Commission granting the certificate of convenience and necessity to the St. Joseph Railway, Light, Heat & Power Company to build a power line to Paradise, Missouri, is an administrative order within those powers especially committed to the Public Service Commission by the Legislature. Such an order should not be set aside by any court unless it clearly appears that the order of the Public Service Commission is unlawful, arbitrary and unreasonable. Sec. 5193, R. S. 1929; State ex rel. St. L. & S. F. Ry. Co. v. Pub. Serv. Comm., 53 S.W.2d 868; State ex rel. Alton Trans. Co. v. Pub. Serv. Comm., 49 S.W.2d 617; State ex rel. Motor Bus Co. v. Pub. Serv. Comm., 324 Mo. 275; State ex rel. Jenkins v. Brown, 19 S.W.2d 484; State ex rel. Detroit-Chicago Bus Co. v. Pub. Serv. Comm., 23 S.W.2d 117; State ex rel. Kirkwood v. Pub. Serv. Comm., 50 S.W.2d 117; State ex rel. St. Louis v. Pub. Serv. Comm., 47 S.W.2d 102; Kansas Gas & Elec. Co. v. Pub. Serv. Comm., 122 Kan. 468; Pirie v. Public. Util. Comm., 72 Colo. 65, 209 P. 640; Modeste v. Conn. Co., 97 Conn. 453, 117 A. 494; Hazelton Auto Bus Co. v. Pub. Serv. Comm., 100 Pa. S.Ct. 268. (3) The burden of proving the order of the Public Service Commission is unreasonable rests upon those power companies contesting the order of the commission. R. S. 1929, sec. 5247; State ex rel. St. L. & S. F. Ry. Co. v. Pub. Serv. Comm., 53 S.W.2d 870; State ex rel. Chicago, G. W. Railroad Co. v. Pub. Serv. Comm., 51 S.W.2d 76; State ex rel. St. Louis Water Co. v. Pub. Serv. Comm., 316 Mo. 846. (4) The Great Lakes Pipe Line Company, as the consumer, was entitled to know the engineering details by which the power company intended to serve it. The noncommittal attitude of the Missouri Gas & Electric Service Company upon this important point, coupled with its delay in tendering service to the pipe line company, was sufficient reason for the Public Service Commission denying its request for permission to serve the pipe line company at this point. Atlantic City Elec. Co. v. South Jersey P. & L. Co., P. U. R. 1928D, 407; Commonwealth Elec. Co. v. Morris & Somerset Elec. Co., P. U. R. 1923A, 511; Bartonville Bus Line v. Eagle Motor Coach Line, 326 Ill. 200; State ex rel. Electric Co. v. Atkinson, 275 Mo. 325.

Johnson, Lucas, Landon & Graves, Wm. C. Lucas, Thad B. Landon and Ludwick Graves for Kansas City Power & Light Company.

Ralph D. Stevenson, A. Z. Patterson and Noah W. Simpson for Missouri Gas & Electric Service Company.

Noah W. Simpson for Missouri Power & Light Company.

(1) The fundamental theory of the regulation of public utilities by the State through a utilities commission is to avoid competition which is now generally recognized as a needless economic waste and an entirely insufficient method of securing the necessary regulation and control. 51 C. J. 52; Pond, Public Utilities (3 Ed.), sec. 901; Idaho Power Co v. Blomquist, 26 Idaho 222, 141 P. 1083; McFayden v. Pub. Util. Consol. Corp., 50 Idaho 651, 229 P. 671, P. U. R. 1931E, 151; Kansas G. & Elec. Co. v. Pub. Serv. Comm., 122 Kan. 462, 251 P. 1097, P. U. R. 1927A, 562; Jackman v. Pub. Serv. Comm., 121 Kan. 141, 245 P. 1047; In re Ashmead, P. U. R. 1916D, 10; Public Serv. Comm. v. Kansas City P. & L. Co., 31 S.W.2d 67; State ex rel. Railroad Co. v. Pub. Serv. Comm., 327 Mo. 249, 37 S.W.2d 576; State ex rel. Electric Co. v. Atkinson, 275 Mo. 325, 204 S.W. 325; Egyptian Trans. System, Inc., v. Railroad Co., 321 Ill. 580, 152 N.E. 510; Illinois P. & L. Corp. v. Commerce Comm., 320 Ill. 427, 151 N.E. 236; Superior Bus Co. v. Community Bus Co., 320 Ill. 175, 150 N.E. 668; Chicago Bus Co. v. Chicago Stage Co., 287 Ill. 320, 122 N.E. 447; New York Cent. Railroad Co. v. Pub. Util. Comm., 123 Ohio St. 370, 175 N.E. 596. (a) Under this method the State through its commission takes the place of competition, and furnishes the regulation which competition cannot give, and at the same time avoids the expense of duplication in the investment and operation of competing public utilities. Authorities cited, supra. (b) As between two utilities with like ability to furnish like service, the company already serving a given field has a right to preference. Authorities cited, supra; In re Kansas City P. & L. Co., P. U. R. 1931A, 463; Raytown Chamber of Commerce v. Pub. Serv. Comm., 17 Mo. P. S. C. 606; In re Ozark Utilities Co., P. U. R. 1929D, 592; In re Western Natl. Gas Co., P. U. R. 1930A, 307. (2) The certificate of convenience and necessity section of the Public Service Commission Act (Sec. 5193, R. S. 1929) gives no power to the commission to grant such certificates unless it finds, upon the evidence before it, that the proposed construction of electrical extensions and the proposed exercise of the franchises therefor is necessary or convenient for the public service. Sec. 5193, R. S. 1929; In re Lawrence Park H. L. & P. Co., P. U. R. 1926B, 133. (3) Practice of merely "shading" existing rates as means of securing entrance into field served by another utility should have been condemned by the commission. Raytown Chamber of Commerce v. Pub. Serv. Comm., 17 Mo. P. S. C. 607; Vineland & L. Elec. Co. v. Electric Co., P. U. R. 1926D, 723; In re Beaver River P. & L. Co., P. U. R. 1915B, 281; In re Ora Elec. Corp., 2 Cal. 748; In re Joaquin, P. U. R. 1923B, 47; Greaves Tel. Co., P. U. R. 1923A, 804; In re Bayles, P. U. R. 1926A, 731; In re Holmes, P. U. R. 1927D, 68. (4) In any event, the respondents offered to duplicate the rate which had been agreed upon between St. Joseph Company and Pipe Line Company. (5) The commission committed error so...