State ex rel. Leonard Trucking Co., Inc. v. Division of Transp., Dept. of Economic Development, WD

• Decision Date: 11 February 1992
• Docket Number: No. WD,WD
• Citation: State ex rel. Leonard Trucking Co., Inc. v. Division of Transp., Dept. of Economic Development, 825 S.W.2d 19 (Mo. App. 1992)
• Parties: STATE of Missouri, ex rel., LEONARD TRUCKING COMPANY, INC., Respondent, v. DIVISION OF TRANSPORTATION, DEPARTMENT OF ECONOMIC DEVELOPMENT, Appellants. 44752.
• Court: Missouri Court of Appeals

Page 19

825 S.W.2d 19

STATE of Missouri, ex rel., LEONARD TRUCKING COMPANY, INC., Respondent, v. DIVISION OF TRANSPORTATION, DEPARTMENT OF ECONOMIC DEVELOPMENT, Appellants.

No. WD 44752.

Missouri Court of Appeals Western District.

Feb. 11, 1992.

David Eugene Woodside, Jefferson City, for appellants.

Stephen George Newman, Jefferson City, for respondent.

Before TURNAGE, P.J., and KENNEDY and BERREY, JJ.

KENNEDY, Judge.

Respondent Leonard Trucking Company held a Certificate of Public Convenience and Necessity from the Missouri Department of Transportation which authorized it to transport bulk commodities from one point to another within the State of Missouri over the public highways a distance no more than 150 miles.

Missouri Department of Transportation charged Leonard with exceeding its authority in transporting coal from a point "west of Nevada, Missouri" to Marshall, Missouri, over the public highways, a distance of 200 miles.

The Missouri Department of Transportation sustained the complaint after an evidentiary hearing, and issued its Report and Order directing Leonard to cease and desist its unlawful operation. The Report and Order authorized the Missouri Department of Transportation to commence an action in circuit court to recover a penalty from Leonard for past violations and to seek an injunction to restrain future violations.

Leonard appealed to the circuit court which reversed the Department and ordered the dismissal of the amended complaint.

The Department has appealed to this court. Our review is of the Department Order, not of the Circuit Court judgment. Evangelical Retirement Homes Inc. v. State Tax Comm'n, 669 S.W.2d 548 (Mo. banc 1984). The scope of our review, and the standard of our review, are the same as that of the circuit court. Review is limited to determining whether the Department's decision is supported by competent and substantial evidence on the whole record. See § 621.193, RSMo 1986; Carron v. Ste. Genevieve School Dist., 800 S.W.2d 64 (Mo.App.1990). The evidence must be reviewed in the light most favorable to the decision, together with all reasonable inferences which support it. Shell Oil Co. v. Director of Revenue, 732 S.W.2d 178 (Mo. banc 1987), appeal dismissed, 485 U.S. 983, 108 S.Ct. 1283, 99 L.Ed.2d 494 (1988).

Leonard says there are two essential points of the Department of Transportation's case which are not supported by the evidence--one, that the origination point of the hauls was within the State of Missouri, and, two, that the hauls were over the public highways.

Much of the debate between Leonard Trucking Company and the Department of Transportation is about the propriety of the administrative law judge's ordering and considering "additional information" (consisting of documents identified by affidavits) with respect to the actual location of the mines from which the coal was hauled. See 4 CSR 265-2.070(14). The order was made after the evidentiary hearing on October 24 and after the parties had, on December 7, orally argued the case.

We have concluded the Department's order is supported by competent and substantial evidence without the "additional information." It is therefore unnecessary for us to consider Leonard's attack upon the order calling for the additional information. We reverse the judgment of the circuit court and order the reinstatement of the Department's order.

The evidence that the mines were located in Missouri is not as direct and as clear as one could wish, but it is sufficient. The Department investigator, Mr. Lesko, talked with Mr. Leonard, president of Leonard Trucking Company, at the Leonard office in Higbee, Missouri. They had the map before them as they talked. The mines were located west of Nevada, Missouri, and west of Deerfield, Missouri. Lesko: "You go past Deerfield and it's kind of out in an open area.... If I recall, it was three to five miles west of Deerfield. He [Mr. Leonard] had to go to Deerfield, he said, to get to it." This testimony places the...