State ex rel. Missouri Power & Light Co. v. Riley

• Decision Date: 31 January 1977
• Docket Number: No. KCD,No. 1,R,1,KCD
• Citation: 546 S.W.2d 792
• Parties: STATE ex rel. MISSOURI POWER & LIGHT COMPANY, a corporation, Relator, v. The Honorable James T. RILEY, Judge of the Circuit Court of Cole County, Missouri, Nineteenth Judicial Circuit, Divisionespondent. 28848.
• Court: Missouri Court of Appeals

Page 792

546 S.W.2d 792

STATE ex rel. MISSOURI POWER & LIGHT COMPANY, a corporation, Relator, v. The Honorable James T. RILEY, Judge of the Circuit Court of Cole County, Missouri, Nineteenth Judicial Circuit, Division No. 1, Respondent.

No. KCD 28848.

Missouri Court of Appeals, Kansas City District.

Jan. 31, 1977.

J. Steve Weber, Norman G. Curtwright, Jefferson City, for Missouri Power & Light Company, relator.

Dale E. Sporleder, Jefferson City, Howard F. Sachs, Kansas City (Spencer, Fane, Britt & Browne, Kansas City, of counsel), for relator.

Stanley P. Christopher, Deputy Counselor, Russell D. Jacobson, Associate Counselor, Kansas City, Jackson County, for amicus curiae, Jackson County.

William M. Barvick, Jefferson City, for respondent.

Paul W. Phillips, Asst. Gen. Counsel, for amicus curiae, Missouri Public Service Commission.

Before PRITCHARD, C.J., and SHANGLER, DIXON, SWOFFORD, WASSERSTROM, SOMERVILLE and TURNAGE, JJ.

SWOFFORD, Judge.

In January of 1975, the relator, Missouri Power and Light Company (MPL) filed with the Missouri Public Service Commission (Commission) two revised tariffs for the purpose of increasing rates for gas and electric service supplied to its customers. Various hearings and proceedings ensued before the Commission which resulted in orders on December 5, 1975 (to be effective December 17, 1975) disapproving the tariffs, as filed, but permitting MPL an increase in both its electric and gas rates.

Throughout the course of these proceedings, William M. Barvick actively participated as Public Counsel, and duly filed Motions for Rehearing before the Commission on December 16, 1975, which were denied on December 23, 1975. Thereafter and on January 21, 1976, the Public Counsel filed a Petition for Review in the Circuit Court of Cole County, Missouri, and that court's Writ of Review issued. In February, 1976, MPL, upon motion, was permitted to intervene in the review proceedings and filed a Motion to Dismiss Appeal upon the sole ground that Public Counsel of the State of Missouri 'lacks authority to appeal an order or decision of the Public Service Commission.' This motion to dismiss was overruled and this proceeding followed and a preliminary rule in prohibition issued.

In this court, Jackson County, Missouri and the Commission were permitted to file briefs amicus curiae in which both supported the standing of Public Counsel to appeal the Commission's decisions and urged that the preliminary rule in prohibition be discharged.

It is thus apparent that this proceeding does not involve the propriety of the Commission's approval of rate increase for MPL, but rather, the sole and only issue here is whether or not the Public Counsel of Missouri had authority, under the law, to process an appeal or initiate a review proceeding in the circuit court of Cole County to test the validity and propriety of those orders.

Any resolution of this issue requires a recall of the basic and underlying principles of the need for governmental regulation of public service utilities. Historically, such controls were initially imposed by the legislatures as a result of an inevitable recognition that the operation of public utilities necessarily affected the public's interest and welfare. Some form of governmental control was required--control that on the one hand, would not stifle fee enterprise or force such utilities out of profitable operations or suppress capital investment, and on the other hand, would protect the consumer-public. In short, the legislation was intended to create a quasi-judicial administrative forum to weigh the legitimate interest of the utilities with that of the consumer-public so as to maintain the essential services and operations at fair and reasonable levels and rates.

When the Missouri Public Service Commission was created by the Legislature in 1913, the office of General Counsel was established (Laws 1913, p. 562), and his duties were initially confined to represent and appear for it in all actions and proceedings in support of its orders and decisions. Ten years later, Laws 1923, p. 330, the duties of the General Counsel were expanded by the following:

'In addition to the foregoing duties, it is hereby expressly made the duty of the general counsel to represent the public in all rate hearings before the Commission at its office, and he shall, upon request, give to the public and any municipality advice and opinions as to their rights under the public service commission law and the legal methods and procedure for obtaining same.'

This statute has remained unchanged since its enactment in 1913 and the 1923 amendment. Section 386.080, RSMo 1969.

The General Counsel thus was given two areas of responsibility: First, a duty to act as attorney for the Commission, including the defense of the Commission's rulings and decisions; and second, the duty to represent the public in proceedings before the Commission. While these duties were not always inconsistent, it is readily apparent that occasions were likely to arise where the inconsistency would be violent and insuperable. For example, the General Counsel could not consistently appeal from a Commission decision which he was duty bound to defend.

This conflict was made pointedly apparent in the case of State ex rel. McKittrick v. Missouri Public Service Commission, 352 Mo. 29, 175 S.W.2d 857 (banc 1943). In that case, the court held that the Attorney General did not have the right to appeal from a Commission decision since he did not have the right to intervene in the proceeding before the Commission on behalf of the general public whose interests were there exclusively represented, under authority of the statute, by the General Counsel. The dilemma thus presented was that, although the General Counsel was possessed by statutory mandate with the duty to represent the public, he was shackled, in many instances from offering effective representation by reason of his first priority to support the Commission's decision. And, under McKittrick, the Attorney General was precluded from assuming the role of public representative because that duty was imposed by statute upon the General Counsel.

During the years when utility rates were low and sources of energy were thought to be plentiful there was generally little public or legislative concern regarding the interests of the broad class of public consumers with reference to utility regulation or the adequacy of their representation in proceedings before the Commission or the courts which affected the rates charged and the services afforded them.

With the combination of energy shortages, inflation and soaring utility rates, public interest and concern became increasingly apparent. It was obvious that some form of active and effective consumer participation in the regulation of public utilities was essential.

'* * * (T)o provide for improved accountability in performance of service to the citizens of the state', the General Assembly passed the Omnibus State Reorganization Act in 1974. Senate Bill No. 1 of the 1st Extraordinary Session of the 77th General Assembly, Appendix B, Vol. 3A, 1976 Pocket Parts, VAMS (hereinafter referred to as OSRA).

Section 4(5) of OSRA provides:

'(5). The powers, duties and functions vested in the general counsel to the public service commission, chapter 386 RSMo and others, are transferred by type II transfer ¹ to the department of consumer affairs regulation and licensing. The general counsel ² shall be appointed by the director of the department and all other employees of the office, except the general counsel and his secretary, shall be selected by the counsel in accord with chapter 36 RSMo. Funding for the general counsel's office shall be by general revenue.'

and Section 4(6) of OSRA provides:

'(6). The public service commission is authorized to employ such staff as they deem necessary for the functions heretofore performed by the general counsel other than those powers, duties and functions relating to representation of the public before the public service commission.' (Emphasis supplied)

There is no real dispute between the parties here that these sections of the OSRA effectively transferred from the General Counsel to the Public Counsel the obligation and responsibility of the former to the latter to represent the public before the Commission. However, the relator strongly urges that those 'powers, duties and functions' do not include the right of Public Counsel to appeal or seek review from the Commission's orders allowing the MPL rate increases.

Section 386.500(1), RSMo 1969, provides that,

'After an order or decision has been made by the Commission any corporation or person or public utility interested therein shall have the right to apply for a rehearing in respect to any matter determined therein, * * *.' (Emphasis supplied)

and that such application for a rehearing (and its denial) are conditions precedent to the right of judicial review.

Section 386.510, RSMo 1969, provides the procedural methods for filing of a petition for review in the circuit court, after the Commission acts upon a motion for rehearing.

In reviewing the effect of these statutes the court in State ex rel. McKittrick v. Missouri Public Service Commission, supra, stated at l.c. 860:

'* * * It is evident that the foregoing provisions contemplate the party appplying for a rehearing, writ of review or an appeal shall be a party to the record, interested and aggrieved * * *.' (Emphasis supplied)

The right and duty of the Public Counsel to appear in behalf of the public (here the consumers of the gas and electric services afforded by MPL) at the proceedings before the Commission as a party of record is not questioned. Neither is any claim made that he failed to properly follow the statutory procedures to obtain judicial review of the Commission's orders permitting rate increases. As previously noted, the sole claim of MPL is that he lacked statutory...