State ex rel. McKittrick v. Missouri Public Service Com'n

Decision Date18 November 1943
Docket Number38733
Citation175 S.W.2d 857,352 Mo. 29
PartiesState of Missouri at the Relation of Roy McKittrick, Attorney General, Appellant, v. Missouri Public Service Commission, Laclede Power & Light Company, and Union Electric Company of Missouri
CourtMissouri Supreme Court

Appeal from Cole Circuit Court; Hon. Frank Hollingsworth Special Judge.

Affirmed.

Roy McKittrick, Attorney General, Lawrence L Bradley and John S. Phillips, Assistant Attorneys General, for appellant.

(1) Appellant has not filed an abstract of the record in this case, as we feel it is not necessary. Sec. 5693, R.S. 1939. (2) The Attorney General of the State of Missouri has authority to enter into a matter of this kind on behalf of the general public of the State. State v. Zachritz, 65 S.W. 999, 166 Mo. 307; United States v. San Jacinto Tin Co., 125 U.S. 273, 8 S.Ct. 850, 31 L.Ed. 747; State v. Ohio Oil Co., 150 Ind. 21, 49 N.E. 809; Sec. 5693, R.S. 1939. (3) One utility company may not charge customers two different rates for the same type of service and the Public Service Commission has no right to authorize a utility so to do. May Dept. Stores Co. v. Union Electric, 107 S.W.2d 41, 341 Mo. 299; Texas P. & L Co. v. Konsal, 170 S.W.2d 278; 51 C.J., p. 7, sec. 16, p. 29, sec. 61; Sec. 5645, R.S. 1939. (4) There must be some benefit shown either to the consumers of current of either the Union Electric Company or the Laclede Power and Light Company, but no such benefit has been shown. Central P. & L. Co., 12 Mo. P.S.C. 614.

John P. Randolph for Public Service Commission of Missouri, Joseph H. Grand for Laclede Power & Light Company; Jones, Hocker, Gladney & Grand of counsel, and Robert J. Keefe for Union Electric Company of Missouri; John A. Woodbridge and Igoe, Carroll, Keefe & Coburn for respondents.

(1) There is no constitutional or statutory provision authorizing or requiring the Attorney General to intervene in proceedings of this kind and the State of Missouri does not have the character of interest as confers upon relator the right to apply for a rehearing and to file a petition for review. Secs. 5689-90, R.S. 1939; Walker v. Georgia Ry. & Power Co., 92 S.E. 57; People ex rel. Lowe v. Marquette Natl. Fire Ins. Co., 184 N.E. 800, 351 Ill. 516. (2) The State's interest in the subject matter of the order complained of has been placed under the protection of the Public Service Commission. There is, therefore, no occasion for relator's attempt to protect the general public. Kings County, Wash., v. Seattle School District No. 1, 278 F. 46; Walker v. Georgia Ry. & Power Co., 92 S.E. 57. (3) Relator has no right to represent Laclede's customers. State ex inf. Crow, v. Atchison, T. & S.F. Ry. Co., 176 Mo. 687; State ex inf. Crow v. Mo. Pac. Ry. Co., 176 Mo. 718; State ex rel. Barker v. C. & A. Railroad Co., 265 Mo. 646; State ex inf. McAllister v. Albany Drain. District, 290 Mo. 33. (4) The fact that the Public Service Commission permitted relator to participate in the hearings on the application did not change his status and make him an interested party in the legal sense. Ohio Contract Carriers Assn., Inc., v. Public Utilities Co., 42 N.E. 758; Page v. Commonwealth, etc., 160 S.E. 33. (5) The judgment below was proper and should be affirmed because the application for rehearing and the petition for review contain no allegations showing that the order complained of is unlawful, unjust and unreasonable. Secs. 5689-90, 5703, R.S. 1939; State ex rel. Kansas City P. & L. Co. v. Public Serv. Comm., 335 Mo. 1248; State ex rel. Potashnick Truck Service, Inc., v. Public Serv. Commission, 129 S.W.2d 69. (6) It is not unlawful to establish different rates where there is a substantial difference in the facilities from which the respective services are furnished. In the Matter of Richard H. Kramer, 3 Mo. P.S.C.R. 434; In re Kinloch Long Distance Tel. Co., 12 Mo. P.S.C.R. 400; Western Union Tele. Co. v. Call Pub. Co., 181 U.S. 92; Alabama Power Co. v. Patterson, 138 So. 421; State ex rel. Laundry, Inc., v. Public Service Comm., 327 Mo. 93, 34 S.W.2d 37. (7) The order does not establish any new rates for Laclede's and Union's customers; it merely continues lawful rates already in effect. State ex rel. Gas & Elec. Co. v. Trimble, 307 Mo. 536; State ex rel. Public Serv. Comm. v. Shain, 342 Mo. 867. (8) It is not required that necessity for the sale be shown or that the customers will benefit therefrom. In re Union Electric Light & Power Co., 13 Mo. P.S.C. 507; State ex rel. St. Louis v. Public Serv. Comm., 335 Mo. 448. (9) Relator's economic views and conception of the wisdom or expediency of the order cannot be substituted for those of the Commission. State ex rel. Kansas City P. & L. Co. v. Public Serv. Comm., 335 Mo. 1248. (10) Relator's fear that St. Louis may lose revenue does not establish or tend to establish that the order complained of is unlawful, unjust and unreasonable. Grafton County Electric v. State, 77 N.H. 539, 94 A. 193. (11) Upon the record of the proceedings before the Commission it affirmatively appears that the order complained of is lawful, just and reasonable and in the public interest. In the Matter of Kinloch Long Distance Tel. Co., 12 Mo. P.S.C. 400; In the Matter of Pacific Gas & Electric Co., P.U.R. 1923C, 535; In the Matter of Richard H. Kramer, 3 Mo. P.S.C. 434; In the Matter of Kansas City Electric Light Co., 5 Mo. P.S.C. 20; Grafton County Electric v. State, 77 N.H. 539, 94 A. 193; Alabama Power Co. v. Patterson, 138 So. 421; May Dept. Stores Co. v. Union Electric L. & P., 341 Mo. 299; State ex rel. Laundry, Inc., v. Public Serv. Comm., 327 Mo. 93, 34 S.W.2d 37.

Ellison, J. All concur except Gantt, J., absent.

OPINION
ELLISON

The Attorney General appeals from a judgment of the circuit court of Cole county affirming an order of the respondent Missouri Public Service Commission, which order sustained a joint application of the Laclede Power & Light Company, The Laclede Gas Light Company and the Phoenix Light, Heat & Power Company for authority to sell to the respondent Union Electric Company of Missouri, the property, rights and franchises now used by the first named company in St. Louis, except certain property owned by the second named company, all for the base consideration of $ 8,600,000, further authorization being asked for the leasing of the excepted property to the same vendee. The procedure in such actions, when contested, is governed by Art. 6, Chap. 35, R.S. 1939 and Mo., R.S.A. [1] The first named applicant will hereafter be called "Laclede Electric"; the second, "Laclede Gas"; the third, "Phoenix"; the vendee, "Union Electric"; and the Public Service Commission, the "Commission." We must sketch the facts before stating the issues on this appeal.

Laclede Electric generates and sells about 15% of the electricity consumed in St. Louis. Most of its 40,000 customers are located in a downtown district. The current is distributed through lines leased from Laclede Gas and Phoenix, and under a franchise which exempts the utility from payment of a certain city tax of 5% on receipts from sales of electricity. For that or some other reason the rates charged by Laclede Electric on some classes of service are lower than those collected by Union Electric, which company does have to pay the city tax, and supplies 85% of the electricity used in St. Louis and environs. Upon authorization of the purchase of the property, Union Electric would switch over current from its own generating sources and supply the present Laclede Electric customers. It would eventually retire all the property purchased except one 20,000 kilowatt turbine. The rest would be worth only salvage value. But complete integration of the two properties could not be effected for an indefinite time, depending largely upon the availability of required materials and manpower, and economic conditions.

The Commission in its order assigned the following reasons for approving the application: (1) the merger would ultimately result in the integration of the two public utility enterprises and the elimination of wasteful competition, which would benefit the public; (2) it would afford an opportunity for reducing the cost of furnishing electric service by eliminating duplicate facilities and organizations; (3) it would promote public safety by relieving congestion on public trafficways through the removal of duplicated distribution facilities therefrom; (4) it would improve the financial stability of the system, since the Laclede Electric is not in as favorable position as the Union Electric in that regard; (5) it would give better assurance to present customers of Laclede Electric of uninterrupted service, because Union Electric's system has large and more diversified facilities for service.

Sec. 4 of the Commission's order approving the sale provided (italics ours): "That the rates of the Laclede Power & Light Company in effect at the time of the transfer of the properties herein authorized shall be continued in effect by Union Electric Company of Missouri to those who are customers of the Laclede Power & Light Company at the time of the transfer and who elect to continue to receive service at the same premises through facilities acquired from the Laclede Power & Light Company and under the same conditions of service unless and until such rates be cancelled or changed in whole or in part, either prior to, at or after the time of such transfer, by Order of this Commission, after notice and opportunity for hearing" (or until rates are changed on the initiative of the Union Electric and approved by the Commission).

At the hearing before the Commission, counsel for the four companies involved appeared and participated. And the following parties appeared as interveners: the Attorney...

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