State ex rel. Kansas City, Independence & Fairmount Stage Lines Co. v. Public Service Com'n

• Decision Date: 12 August 1933
• Docket Number: 31028
• Parties: State ex rel. Kansas City, Independence and Fairmount Stage Lines Company v. Public Service Commission, Milton R. Stahl, Chairman; David P. Janes, Secretary; Almon Ing, S. M. Hutchison, J. H. Porter, J. Fred Hull, Members of said Commission, and Kansas City Public Service Company, a Corporation, Appellants
• Court: Missouri Supreme Court

63 S.W.2d 88

333 Mo. 544

State ex rel. Kansas City, Independence and Fairmount Stage Lines Company v. Public Service Commission, Milton R. Stahl, Chairman; David P. Janes, Secretary; Almon Ing, S. M. Hutchison, J. H. Porter, J. Fred Hull, Members of said Commission, and Kansas City Public Service Company, a Corporation, Appellants

No. 31028

Supreme Court of Missouri

August 12, 1933

Respondent's Motion for Rehearing Overruled September 4 1933.

Appeal from Jackson Circuit Court; Hon. Denton Dunn, Judge.

Reversed and remanded (with directions).

Otto & Potter and Watson, Gage, Ess, Groner & Barnett for Kansas City Public Service Company; Robert W. Otto, Powell C. Groner and John R. Moberly of counsel.

(1) The circuit court on review exercises a special limited jurisdiction created and conferred by statute, and its authority and jurisdiction are dependent upon strict compliance with all statutory requirements; and evidence must appear in the record showing such compliance. Secs. 10521 10522, R. S. 1919, now Secs. 5233, 5234, R. S. 1929; State ex rel. Case v. Seehorn, 283 Mo. 522; State ex rel. St. Louis v. Public Serv. Comm., 34 S.W.2d 511. (a) Failure on the part of respondent to file its motion for rehearing with the commission before the effective date of the commission's order denying a certificate prevented the circuit court's acquiring jurisdiction. The circuit court erred in overruling and denying Service Company's supplemental motion to quash the writ of review based on respondent's failure to file its motion for rehearing in time. Secs. 10521, 10522, R. S. 1919, now Secs 5233, 5234, R. S. 1929; Sec. 7058, R. S. 1919, now Sec. 655, R. S. 1929; State ex rel. Case v. Seehorn, 283 Mo. 522; Spring v. Griefing, 315 Mo. 531; State v. Schenk, 238 Mo. 452; Scharff v. McGaugh, 205 Mo. 354; Graham v. DeGuire, 154 Mo. 88; Gray v. Worst, 129 Mo. 131; Huhn v. Lang, 122 Mo. 605; State v. Harris, 121 Mo. 445; Hahn v. Dierkes, 37 Mo. 574; Littleton v. Christy's Admr., 11 Mo. 390; McCray Lumber Co. v. Standard Const. Co., 285 S.W. 108; Natl. Bank of Commerce v. Mechanics' American Natl. Bank, 148 Mo.App. 15; Natl. Bank of Commerce v. German American Bank, 148 Mo.App. 21; Becker v. Lafayette County Court, 138 Mo.App. 249; Lieberman v. Findlay, 84 Mo.App. 387; Knight Bros. v. Mersman, 66 Mo.App. 220; Deere Mansur & Co. v. Hucht & Fierling, 32 Mo.App. 158; Bailey v. Lubke, 8 Mo.App. 61. (b) Failure on the part of respondent to file its application for judicial review within thirty days after the date of the commission's order overruling its motion for rehearing prevented the circuit court's acquiring jurisdiction. There is no authority for a second or supplemental motion for rehearing before the commission, and such an attempted motion cannot suspend the running of the time in which to move for judicial review. The circuit court erred in overruling and denying Service Company's motion to quash based on respondent's failure to apply for certiorari and review within the time prescribed by law. Secs. 10521, 10522, R. S. 1919, now Secs. 5233, 5234, R. S. 1929; State ex rel. Case v. Seehorn, 283 Mo. 522; John H. Morse v. United States, 270 U.S. 151; Gypsy Oil Co. v. Escoe, 275 U.S. 498, 72 L.Ed. 399; Mirrielees v. Ry. Co., 163 Mo. 489, 63 S.W. 718; Mt. Vernon Bank v. Porter, 148 Mo. 183, 49 S.W. 982. (2) The circuit court erred in holding and deciding that the commission had no jurisdiction over respondent's operations and service. Respondent does not fall within the exception of Section 1 of the Motor Bus Act of 1929 (R. S. 1929, sec. 5264), and the circuit court erred in holding that it is within said exception. The commission had authority in law, and was justified by the evidence, in taking jurisdiction of respondents application and denying respondent a certificate of convenience and necessity and authority to issue stock. Motor Bus Act of 1927, sec. 1; Laws 1927, p. 402; R. S. 1929, sec. 5264; Laws 1931, pp. 304, 306; Sec. 5174, R. S. 1929; State ex rel. St. Louis Pub. Serv. Co. v. Pub. Serv. Comm., 34 S.W.2d 486. (3) The circuit court, even if this were a case in which it had acquired jurisdiction in due course, exceeded its authority and jurisdiction on review and erred in so doing. The circuit court is limited by statute to a determination of the reasonableness and lawfulness of the order or decision of the commission, and must either affirm or reverse the order or decision under review. The orders of the commission are presumed to be lawful and reasonable and the burden of proof to show same unlawful or unreasonable is placed by statute upon the party adverse to the commission; and the court erred in not holding that respondent had failed to sustain the burden of proof, erred in disregarding the evidence and basing its judgment and decision on matters outside the record made before the commission, and erred in seeking to direct and dictate the findings and decision of the commission. Sec. 10522, R. S. 1919, now Sec. 5234, R. S. 1929; Secs. 10534, 10535, R. S. 1919, now Secs. 5246, 5247, R. S. 1929; State ex rel. Henson v. Pub. Serv. Comm., 31 S.W.2d 209; State ex rel. Detroit-Chicago Motor Bus Co. v. Pub. Serv. Comm., 23 S.W.2d 117; State ex rel. Pugh v. Pub. Serv. Comm., 10 S.W.2d 952; State ex rel. Rutledge v. Pub. Serv. Comm., 316 Mo. 240; State ex rel. Kansas City v. Pub. Serv. Comm., 301 Mo. 197; State ex rel. Harrisonville v. Pub. Serv. Comm., 291 Mo. 457; State ex rel. Ozark P. & W. Co. v. Pub. Serv. Comm., 287 Mo. 533; Railroad Co. v. Pub. Serv. Comm., 266 Mo. 346; State ex rel. Railroad Co. v. Pub. Serv. Comm., 297 S.W. 49; State ex rel. St. Joseph v. Busby, 274 S.W. 1071; State ex rel. Bell Tel. Co. v. Pub. Serv. Comm., 233 S.W. 430; Ry. Co. v. State of Oklahoma, 258 P. 874. (4) The granting or refusal of a certificate of convenience and necessity is discretionary with the Public Service Commission -- an administrative arm of the Legislature -- giving due consideration to service already being rendered by established carriers, the likelihood of the proposed service being permanent and dependable, and the effect of such service upon existing transportation services; and the circuit court erred in attempting by its opinion, judgment and decision to usurp the functions of the Public Service Commission and to substitute its judgment and discretion for that vested by law in the commission. Secs. 5264, 5265, 5267, R. S. 1929; State ex rel. Mo. Pac. Railroad Co. v. Pub. Serv. Comm., 37 S.W.2d 579; State ex rel. Henson v. Pub. Serv. Comm., 31 S.W.2d 209; State ex rel. Detroit-Chicago Motor Bus Co. v. Pub. Serv. Comm., 23 S.W.2d 117; State ex rel. St. Joseph v. Busby, 274 S.W. 1071; Re Chicago & Joliet Transportation Co., P. U. R. 1928-E, 505; Re Samoset Co., 131 A. 692; Cooper Bus Co. v. Pub. Util. Comm. of Ohio, 158 N.E. 543; Granville & Nework Motor Service v. Pub. Util. Comm., 162 N.E. 397; Modeste v. Connecticut Co., 117 A. 494; Pirie v. Pub. Util. Comm., 209 P. 640; Stolting v. Kuykendall, 230 P. 405; State ex rel. Byram v. Dept. Pub. Wks., 257 P. 636. (5) The circuit court erred in that its opinion, order, judgment and decision shows on its face that the court had no correct conception of the issues between the parties which were before it for review, and from the language used by the court in its opinion it is obvious that said decision was not the result of calm judgment and was based upon extraneous and collateral matters rather than upon the evidence and the law applicable to the entire case. (6) The judgment of the circuit court is void and of no effect as being indefinite, contradictory and stated in the alternative to the effect that the Public Service Commission was without jurisdiction of respondent's application, and further, if it had jurisdiction, its findings as to respondent were unlawful, unreasonable and contrary to fact and the commission should have granted respondent a certificate, the cause then being remanded to the commission for action not inconsistent with said indefinite, contradictory and alternative statements of the court's position and decision. The court thereby erred in seeking to deprive the commission of all discretion and authority and substitute the court's discretion and judgment for that of the commission. State ex rel. Rutledge v. Pub. Serv. Comm., 316 Mo. 240; State ex rel. Henson v. Pub. Serv. Comm., 31 S.W.2d 210; State ex rel. Detroit-Chicago Motor Bus Co. v. Pub. Serv. Comm., 23 S.W.2d 117; Railroad Co. v. Pub. Serv. Comm., 266 Mo. 346; State ex rel. Byram v. Dept. Pub. Wks., 257 P. 636.

D. D. McDonald, General Counsel, and G. C. Murrell, Assistant Counsel, for Public Service Commission.

(1) The Public Service Commission Law should be liberally construed with a view to the public welfare, efficient facilities and substantial justice between the patrons and public utilities. Sec. 5251, R. S. 1929; State ex rel. v. Public Serv Comm., 259 Mo. 704; State ex rel. v. Public Serv. Comm., 254 Mo. 515. (2) The trial court found that the commission had no jurisdiction over the operations of respondent and reversed the order of the commission dismissing the application of the respondent for a certificate of convenience and necessity. If the order of the commission can be sustained upon any theory, the trial court is not authorized to set it aside. State ex rel. St. Joseph v. Busby, 274 S.W. 1067. (3) Applicant for a certificate of convenience and necessity for the operation of a motor bus line has the burden of showing that the order of the Public Service Commission refusing it a certificate of convenience and necessity is unreasonable or unlawful. Secs. 5247, 5267, R. S. 1929; State v. Public Serv. Comm., 23 S.W.2d 115; Bartonville Bus Line v. Eagle Motor Coach Co., 326 Ill. 200, 157 N.E. 175; State ex...