State ex rel. Orscheln Bros. Truck Lines v. Public Service Com'n

• Citation: 110 S.W.2d 364,232 Mo.App. 605
• Parties: STATE OF MISSOURI EX REL. ORSCHELN BROTHERS TRUCK LINES, APPELLANT, v. PUBLIC SERVICE COMMISSION OF MISSOURI, RESPONDENT
• Decision Date: 27 November 1937
• Court: Court of Appeals of Kansas

110 S.W.2d 364

232 Mo.App. 605

STATE OF MISSOURI EX REL. ORSCHELN BROTHERS TRUCK LINES, APPELLANT, v. PUBLIC SERVICE COMMISSION OF MISSOURI, RESPONDENT

Court of Appeals of Missouri, Kansas City

November 27, 1937

Appeal from Circuit Court of Cole County.--Hon. Nike G. Sevier Judge.

JUDGMENT AFFIRMED.

Judgment affirmed.

Frank E. Atwood and D. D. McDonald for appellant.

James P. Boyd and Daniel C. Rogers for respondent.

CAMPBELL C. Sperry, C., concurs.

OPINION

CAMPBELL, C.

This proceeding was commenced before the Public Service Commission of Missouri against Orscheln Brothers Truck Lines, Inc., by the filing of the complaint of Anderson Motor Service Company, Inc., and Brashear Truck Company, Inc. The substance of the complaint was that Orscheln Brothers Truck Lines, Inc., were transporting through freight from Kansas City to St. Louis and from St. Louis to Kansas City over U.S. Highway No. 40 without having obtained authority of the Public Service Commission to do so.

The prayer was that the commission issue an order directing that the said Orscheln Brothers Truck Lines, Inc., cease and desist from said operations. The answer of the Orscheln Brothers Truck Lines, Inc., challenged the power of the commission to determine the matters in controversy; alleged that any attempt by the Public Service Commission to exercise jurisdiction in the matter was in contravention of Article 3 of the Constitution of Missouri for the reason that said commission had no authority to exercise judicial power; that said Orscheln Brothers Truck Lines, Inc., was the holder of a certificate of convenience and necessity No. T-403 which authorized it to perform the services complained of; and that the matters complained of were before the commission in case No. T-2110 and it was therein decided that it had authority to receive and transport property between the cities of St. Louis and Kansas City.

The complaint was heard and sustained by the commission and the said Orscheln Brothers Truck Lines ordered to refrain from transporting through freight between St. Louis and Kansas City directly over highway No. 40, and that it should confine its operations between those two points to the routes otherwise authorized.

In due time and in the proper form the proceeding was lodged in the circuit court of Cole county by the said Orscheln Brothers Truck Lines, Inc. Upon the hearing in the circuit court the order of the commission was affirmed and the Orscheln Brothers Truck Lines, Inc., hereinafter called appellant, appealed.

The evidence on behalf of the complainants was to the effect that each of them held a certificate of convenience and necessity authorizing the transportation of freight by motor from Kansas City to St. Louis and from the latter city to the former over U.S. Highway No. 40.

In making its defense the appellant introduced in evidence various certificates of convenience and necessity authorizing it to operate as a freight-carrying motor carrier.

The first certificate obtained by appellant was T-403. That certificate entitled it to operate as a freight-carrying motor carrier over a regular route described as follows:

"Moberly over U.S. State Highway No. 63 to junction with State Highway Number 22, thence over State Highway No. 22 to junction with U.S. State Highway No. 54 at Mexico, thence over U.S. State Highway No. 54 to junction with U.S. State Highway No. 40 at Kingdom City, thence over U.S. State Highway No. 40 to St. Louis and return. . . . Moberly over U.S. State Highway No. 63 to Jefferson City and return. Moberly over State Highway No. 24 to junction with State Highway No. 20 at Huntsville, thence over State Highway No. 20 to junction with State Highway No. 5 at Glasgow, thence over State Highway No. 5 to junction with U.S. State Highway No. 40, thence over U.S. State Highway No. 40 to Boonville, thence over U.S. State Highway No. 40 from Boonville to Kansas City, with authority to pick up and discharge property at Moberly, Clark, Sturgeon, Centralia, Mexico, St. Louis, Kirksville, La Plata, Atlanta, Macon, Jacksonville, Cairo, Columbia, . . . Boonville and Kansas City."

Thereafter the present complainants filed with the commission a complaint (case No. T-2110) against the appellant, charging they were authorized motor carriers of property between St. Louis and Kansas City and that the present appellant had not obtained authority to render such service. The complaint was heard and findings of fact made, no part of which is material in the instant proceeding except the following:

"A further review of the evidence directed specifically to the question at issue herein conclusively shows that respondent (appellant here) should have been authorized to transport property from St. Louis to Kansas City and from Kansas City to St. Louis over the routes specifically described in the certificate (T-403) heretofore issued. It is further shown that respondent should have been authorized to serve the points along its several routes specifically named in its certificate both to and from St. Louis and Kansas City."

The complaint was dismissed by the commission.

In case No. T-2719 the commission ordered that the authority granted to Vernon A. Worts under certificate T-553 be transferred to appellant and merged under certificate T-403. The authority under certificate T-553 was as follows:

"Regular Route No. 1: Bunceton over County Road to State Highway No. 5, thence over State Highway No. 5 to junction with U.S. State Highway No. 40, thence over U.S. State Highway No. 40 to Kansas City and return, with authority to pick up and discharge property at Bunceton, Speed, Billingsville, Belle Air, Pilot Grove and Kansas City.

"Regular Route No. 2: Bunceton over County Road to junction with State Highway No. 5, thence over State Highway No. 5 to junction with U.S. State Highway No. 50, thence over U.S. State Highway No. 50 to Smithton to pick up cream products for delivery at St. Louis.

"Regular Route No. 3: Bunceton over County Road to junction with State Highway No. 5, thence over State Highway No. 5 to junction with U.S. State Highway No. 40, thence over U.S. State Highway No. 40 to St. Louis and return, with authority to pick up and discharge property in Bunceton destined for Boonville and to pick up property in Boonville destined for Bunceton.

"Irregular Route: Trade territory contiguous to Bunceton, and from this territory to all points in Missouri and from all points in Missouri to this territory; subject to the limitations contained in the Missouri Bus and Truck Law of 1931 concerning the operation of a motor truck as a common carrier for hire over an irregular route."

In June, 1933, appellant filed application with the...