State ex rel. Motor Serv. V. Pub. Serv. Comm.

• Decision Date: 02 October 1936
• Docket Number: No. 34151.,34151.
• Citation: 97 S.W.2d 116
• Parties: STATE OF MISSOURI at the relation of ANDERSON MOTOR SERVICE COMPANY, INC., v. PUBLIC SERVICE COMMISSION, Defendant, R.G. HICKS, ROY BULLARD and SILAS THOMAS, a Partnership, Doing Business as HICKS TRUCK COMPANY, Appellants.
• Court: Missouri Supreme Court

97 S.W.2d 116

STATE OF MISSOURI at the relation of ANDERSON MOTOR SERVICE COMPANY, INC., v. PUBLIC SERVICE COMMISSION, Defendant, R.G. HICKS, ROY BULLARD and SILAS THOMAS, a Partnership, Doing Business as HICKS TRUCK COMPANY, Appellants.

No. 34151.

Supreme Court of Missouri.

Court en Banc, October 2, 1936.^*

Appeal from Cole Circuit Court. — Hon. Nike G. Sevier, Judge.

AFFIRMED.

James P. Aylward, George V. Aylward and Terence M. O'Brien for appellants.

(1) Under the due process clauses of the Federal and Missouri Constitutions and under Section 5234, Revised Statutes 1929, the Fifth Amendment to the Constitution of the United States of America, Section 10 of Article II of the Constitution of the State of Missouri, and Section 30 of Article II of the Constitution of the State of Missouri, appellants were entitled to notice of the review proceeding and to be made parties to it. Appellants were parties to the proceeding before the commission and the statute provides that all such parties "shall have the right to appear in the review proceeding." Sec. 5234, R.S. 1929. The word "appear" means "come into court as a party to the proceeding." Bouvier's Law Dictionary (Rawles' 3rd Rev.) 212; Schroeder v. Lahrman, 26 Minn. 88, 1 N.W. 802; Boehmer v. Big Rock Creek Irr. Dist., 117 Cal. 28, 48 Pac. 911; Glasgow v. State, 41 Kan. 335, 21 Pac. 254; Murphy v. Williams, 1 Ark. 384; Childers v. Lahann, 18 N.M. 490, 138 Pac. 203; In re Puget Sound Engineering Co., 270 Fed. 354; Thorn v. Browne, 257 Fed. 523. The United States Supreme Court and this court have interpreted language similar to "shall have the right" as giving a right which must be accorded the person to whom it is given. Hopt v. Utah, 110 U.S. 579, 28 L. Ed. 265; Art. VI, U.S. Const.; Art. II, Sec. 22, Mo. Const.; State v. Sanders, 243 S.W. 772; State ex rel. Stevens v. Wurdeman, 295 Mo. 566, 246 S.W. 189; State ex rel. Carpenter v. St. Louis, 318 Mo. 907, 2 S.W. (2d) 727. The statute should be given a constitutional construction. Linder v. United States, 268 U.S. 5, 69 L. Ed. 819, 45 Sup. Ct. 229, 39 A.L.R. 229; Federal Trade Comm. v. American Tobacco Co., 264 U.S. 298, 68 L. Ed. 696, 44 Sup. Ct. 336; Grenada Co. Supervisors v. Brogden, 112 U.S. 261, 28 L. Ed. 704, 5 Sup. Ct. 125; State ex rel. Carpenter v. St. Louis, 318 Mo. 907. Holding that the statute did not require notice or making appellants parties would make it unconstitutional because the due process clauses of the Federal and State Constitutions require, before a person's rights are passed upon, notice, an opportunity to present his side of the controversy and a right to appeal from an adverse decision, if his opponent has that right. McDonald v. Mabee, 243 U.S. 90, 61 L. Ed. 608, 37 Sup. Ct. 343; Truax v. Corrigan, 257 U.S. 312, 66 L. Ed. 254, 42 Sup. Ct. 124; Barber Asphalt Paving Co. v. Ridge, 169 Mo. 384; Ex parte Nelson, 251 Mo. 106; State ex rel. Dushek v. Watland, 201 N.W. 680, 39 A.L.R. 1169; Cotting v. Goddard, 183 U.S. 79, 46 L. Ed. 92, 22 Sup. Ct. 30. (2) It was apparent upon the face of the record that the appellants were not made parties to the review proceeding or notified of its pendency. State ex rel. Am. Lead & Baryta Co. v. Dearing, 184 Mo. 26; Norman v. Penn. Fire Ins. Co., 237 Mo. 584, 141 S.W. 620; Norman v. Conn. Fire Ins. Co., 237 Mo. 585, 141 S.W. 618; Schell v. Leland, 45 Mo. 294; State ex rel. Case v. Seehorn, 283 Mo. 522, 223 S.W. 668; Bell v. Brinkman, 123 Mo. 278, 27 S.W. 374; Harris v. Hunt, 97 Mo. 574; McCoy v. Zane, 65 Mo. 15; Dougherty v. Matthews, 35 Mo. 528; City of Kansas v. Ford, 99 Mo. 94.

June R. Rose and Don Purteet for respondent.

The trial court committed no error in overruling appellants' motion to set aside its judgment. The ruling of the trial court was not without, or in excess of its jurisdiction or in violation of Section 5234, Revised Statutes 1929. Neither did the ruling militate against or contravene the provisions of the Fifth Amendment to the Constitution of the United States or Section 10 of Article II of the Constitution of the State of Missouri, or Section 30 of Article II of the Constitution of Missouri; Fifth Amend. U.S. Const.; Sec. 10, Art. II, Mo. Const.; Sec. 30, Art. II, Mo. Const.; Brown v. Powers, 146 Iowa, 729. Section 5234, supra, contains no provision or requirement that appellants be made parties to the review proceedings or notified of its pendency. Section 5234, supra, is in nowise in conflict with the provisions of the Federal and State Constitution, above designated. The law governing the writ of certiorari, both statutory and common, does not and did not require respondent to notify appellants of their intention to sue out the writ. Brown v. Powers, supra. Where a writ of certiorari comes into play in a court of record the court is the only necessary respondent in a proceeding to review its order; 11 C.J., sec. 120, p. 143; Baker v. Shasta County, 71 Cal. 583. There is, and should be, no difference when the writ is required to review the proceeding and record of a state tribunal, board, or commission. "The entire proceeding is leveled at the tribunal, board, or officer alleged to have exceeded the jurisdiction or authority conferred by law, and ordinarily these are to be deemed proper parties defendant of record." Todd v. Crisman, 123 Iowa, 702. The officer or tribunal whose action is to be reviewed by certiorari, and in whose possession the record of such action remains, is a necessary party defendant to such proceeding. State v. Chickasha Cotton Oil Co., 146 Pac. 433. The persons or bodies whose action is to be reviewed, and in whose hands the record remains are the proper parties defendant. Crawford v. Scio, 22 Mich. 405. In the case at bar the proceeding to review the judgment and record of the Public Service Commission was purely a statutory proceeding, by certiorari, to review. Sec. 5234, supra. It has been held that the statutory proceedings, by certiorari, to review a judgment of a lower court, are essentially a part of the original proceeding, regardless of the particular form thereof, and, being statutory, all parties have notice in advance and have the burden of ascertaining the status of their case in all stages. Brown v. Powers, 146 Iowa, 729; Davis v. Preston, 129 Iowa, 670.

Sam O. Hargus, General Counsel, and James P. Boyd, Assistant Counsel, for Public Service Commission.

In the early days of the Public Service Commission Act, to be exact on July 2, 1914, less than fourteen months after the effective date of said Act, the Supreme Court of Missouri en Banc had under construction certain sections of the Public Service Commission Act, found in the case of State ex rel. Mo. Southern Railroad Co. v. Public Service Commission of Missouri, 259 Mo. 704, which case was concurred in by all members of Court en Banc. In that case LAMM, C.J., speaking for the court, at pages 714 and 715 makes this statement: "II. Of other statutes and other sections in pari materia with said Section 47. A correct perspective of the question in judgment cannot be had without reference to other statutes and other sections of the Public Utilities Act in pari materia with Section 47. Attend to that feature." Appellants in the present cause have selected one sentence from Section 5234, Revised Statutes 1929 (Sec. 111 of original Act), and quote the same as the foundation for their statement that there was an irregularity apparent upon the face of the judgment sought to be set aside in this cause. The sentence reads: "The commission and each party to the action or proceeding before the commission shall have the right to appear in the review proceeding." We call the court's attention to the fact that in the same section the Legislature of Missouri deemed it sufficient to provide that the writ of certiorari should be directed to the Public Service Commission of Missouri, directing the commission to certify its record in the case to the court wherein the writ of certiorari is sued out. It is further provided that no additional evidence may be introduced upon the hearing in the circuit court, but the cause shall be heard by the court without intervention of jury on the evidence and exhibits introduced before the commission and certified to by it. There is no other statute in this State prescribing the method of the court proceeding for review except Section 5234. There are other sections of the act, however, that should be considered along with Section 5234 and the complaint made by appellants in this cause.

COOLEY, C.

Appeal by Hicks Truck Company, a partnership composed of R.G. Hicks, Roy Bullard and Silas Thomas, hereinafter referred to as Hicks Truck Company or appellants, from an order of the Circuit Court of Cole County overruling a motion of appellants to set aside a judgment of said circuit court for alleged irregularity apparent of record.

Hicks Truck Company claimed to have had a valuable, going business hauling freight by truck between St. Louis and Kansas City and intermediate points over State Highway No. 40, when, in 1931, the Motor Bus Act (Secs. 5264 to 5281, inclusive, R.S. 1929, 9 Mo. Stat. Ann., pp. 6679 et seq.) was amended so as, among other things, to require a permit from the Public Service Commission (hereinafter called the commission) in order to continue such business. On July 28, 1932, Hicks Truck Company filed with the commission an application for such permit. Anderson Motor Service Company, a competitor, opposed said application. Other competitors were by the commission allowed to and did intervene and oppose the application. After a hearing, as provided by statute, the commission granted the application. Anderson Motor Service Company, within the time allowed by statute, filed with the commission a motion for rehearing which the commission overruled. Of all these proceedings before the commission Hicks Truck Company had due notice, as provided by statute. Thereafter, and within the time fixed by the...