State ex rel. Philipp Transit Lines, Inc. v. Public Service Commission, KCD

• Decision Date: 05 May 1975
• Docket Number: No. KCD,KCD
• Citation: State ex rel. Philipp Transit Lines, Inc. v. Public Service Commission, 523 S.W.2d 353 (Mo. App. 1975)
• Parties: The STATE of Missouri ex rel. PHILIPP TRANSIT LINES, INC., et al., Appellants, v. The PUBLIC SERVICE COMMISSION of the State of Missouri, Respondent. 27051.
• Court: Missouri Court of Appeals

Page 353

523 S.W.2d 353

The STATE of Missouri ex rel. PHILIPP TRANSIT LINES, INC. et al., Appellants, v.The PUBLIC SERVICE COMMISSION of the State of Missouri, Respondent.

No. KCD 27051.

Missouri Court of Appeals, Kansas City District.

May 5, 1975.

Tom B. Kretsinger, Warren H. Sapp, Kretsinger & Sapp, Kansas City, for appellants.

Michael F. Pfaff, Commission Counsel, Thomas A. Hughes, Asst. Commission Counsel, Jefferson City, for respondent.

Before SOMERVILLE, P.J., PRITCHARD, C.J., and TURNAGE, J.

TURNAGE, Judge.

Philipp Transit Lines, Inc., (Transit) and Philipp Transfer Lines, Inc., (Transfer), appeal from a judgment of the circuit court affirming an order made by the Missouri Public Service Commission(Commission).The question presented is whether or not Transit and Transfer are authorized to establish through routes and joint rates for the transportation of property under Section 390.116 RSMo 1969, V.A.M.S. (all statutory references are to RSMo 1969, V.A.M.S.) without specific approval of such through routes by the Commission.This court finds Transit and Transfer were authorized and reverses the judgment of the circuit court.

Transfer and Transit filed joint rates with the Commission for the transportation of property between Kansas City and St. Louis with an interchange at Marthasville, Missouri.Transit holds authority from the Public Service Commission through a certificate of convenience for the transportation of property between Kansas City and Washington, Missouri, and Transfer holds authority through a certificate of convenience issued by the Commission for the transportation of property between Treloar and St. Louis.A common point on the established routes of Transit and Transfer is Marthasville.The rates filed called for the transfer of property being transported at Marthasville with Transit or Transfer relinquishing control at that point and transferring control to the other carrier.

After the filing of these rates by Transit and Transfer, five carriers holding a single line regular route authority from the Commission to transport property between St. Louis and Kansas City filed a petition with the Commission asking the Commission to suspend the rate schedule filed by Transit and Transfer.The petition further requested the Commission to investigate the alleged violation by Transit and Transfer of Rule 35 of the Commission's general order No. 33--E.

A hearing was held before an examiner of the Commission at which the only evidence adduced bore on the alleged violations of Rule 35.At this hearing Paul Philipp, the president of Transit, admitted a number of violations of the requirement that transfer of property being transported be carried out between Transit and Transfer at Marthasville, Missouri.According to Mr. Philipp, the transfer of the property between Transit and Transfer was accomplished by a strictly paper transaction in Washington, Missouri, without any actual physical transfer being accomplished at Marthasville as required by Commission rules and regulations.

The Commission made its report and order in which the rates filed by Transit and Transfer were suspended; Transit and Transfer were ordered to cease and desist in providing through service until such time as they were specifically authorized by the Commission to do so; and the authority held by Transit and Transfer to operate as common carriers was suspended for a period of fifteen days because of violations found by the Commission of its rules and regulations.

After motion for re-hearing and for oral argument, the Commission heard arguments and thereafter amended its report and order.As finally adopted by the Commission, the report and order ordered the suspension of the rates filed, ordered Transfer and Transit to cease and desist from providing through service at joint rates until such service was specifically authorized by the Commission, and ordered the general counsel of the Commission to institute suit in a court of competent jurisdiction against Transit and Transfer and/or Paul Philipp, to seek penalties and/or sanctions for violation of the rules and regulations of the Commission.On appeal to the circuit court the order finally made was affirmed.

Transit and Transfer contend § 390.116 authorized them to establish through routes and joint rates without specific approval from the Commission.The Commission contends its Rule 35 prohibits through routes and the joint rates without specific Commission approval.

§ 390.116 provides:

'1.Common carriers of property may establish reasonable through routes and joint rates, charges and classifications with other such carriers or with common carriers by railroad or express; and common carriers of passengers may establish reasonable through routes and joint rates, fares or charges with other such carriers or with common carriers by railroad.In case of such joint rates, fares, charges or classifications, it shall be the duty of the carriers, parties thereto, to establish just and reasonable regulations and practices in connection therewith, and just, reasonable and equitable divisions thereof as between the carriers participating therein which shall not unduly prefer or prejudice any of such participating carriers.

'2.The commission may, whenever deemed by it to be necessary or desirable in the public interest, after hearing, upon complaint or upon its own motion, order the establishment of just and reasonable through routes and joint rates, fares charges, regulations or practices, applicable to transportation of passengers or property by common carriers.'

Rule 35 provides:

'Every common carrier to the extent it is authorized by this Commission to engage in the transportation of property between points in Missouri over regular routes, is hereby authorized to establish joint service at joint through rates between any point in Missouri on its route and any point in Missouri on the regular route of another common carrier; provided, there is no authorized single line common carrier regular route service between such points.'

It is readily apparent that Rule 35 follows the statute except for the last clause which provides that such through routes and joint rates may only be established when there is no authorized single line common carrier regular route between the points being serviced.

Rule 35 was originally adopted by the Commission to be effective on July 20, 1943.§ 390.116 was passed by the General Assembly in 1951.Since the passage of this statute, Rule 35 has been readopted and promulgated by the Commission three times.

It is axiomatic that rules of the Commission must be consistent with and subject to statutes adopted by the General Assembly.This court stated in State ex rel. Springfield Warehouse & Transfer Company v. Public Service Commission, 240 Mo.App. 1147, 225 S.W.2d 792, 794(2)(1949):

'It has no power to adopt a rule, or follow a practice, which results in nullifying the expressed will of the Legislature.It cannot, under the theory of 'construction' of a statute, proceed in a manner contrary to the plain terms of the statute; and the fact that such a rule has been in existence for a long period of time does not give it legal effect or make its legality persuasive on the court, except in cases where the statute may fairly be said to be ambiguous.'

In this case§ 390.116 is not ambiguous and the Commission does not contend otherwise.The Commission contends that Rule 35 is merely the Commission's interpretation or definition of § 390.116(1) in that such rule merely provides that joint through routes are not deemed reasonable by the Commission where single line common carrier service between such points is already authorized.It is obvious the statute gives the Commission no power to determine whether or not the through routes established by the carriers are reasonable.The power to establish through routes is vested in the carriers.The power of the Commission in this regard is limited to the situation when the carriers fail to do so.

This Section is abundantly clear and needs no construction to give carriers the right to establish...