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

• Decision Date: 14 June 1977
• Docket Number: No. 59730,59730
• Citation: 552 S.W.2d 696
• Parties: STATE of Missouri ex rel. PHILIPP TRANSIT LINES, INC., Appellant, v. PUBLIC SERVICE COMMISSION of the State of Missouri et al., Respondents.
• Court: Missouri Supreme Court

Page 696

552 S.W.2d 696

STATE of Missouri ex rel. PHILIPP TRANSIT LINES, INC., Appellant, v. PUBLIC SERVICE COMMISSION of the State of Missouri et al Respondents.

No. 59730.

Supreme Court of Missouri, En Banc.

June 14, 1977 Respondents' Motion for Rehearing Denied July 11, 1977.

Warren H. Sapp, Kansas City, for appellant.

Leland B. Curtis, General Counsel, Roger M. Baron, Counsel, Missouri Public Service Commission, Jefferson City, for respondent.

John T. Martin, Kansas City, amicus curiae, for Kansas City Star.

Stanley P. Christopher, III, Kansas City, amicus curiae, for Jackson County.

FINCH, Judge.

This case involves the question of whether the Public Service Commission of Missouri (PSC) may decide a case by a report and order adopted by notational voting ¹ or whether the report and order must be acted upon at a public meeting of which notice has been given.

On February 19, 1974, PSC issued an order to show cause why the authority of Philipp Transit Lines, Inc., (Philipp) to provide certain service should not be suspended or revoked and penalties sought because of allegedly illegal hauls. At issue was whether Philipp was authorized to conduct direct motor carrier operations between St. Louis and Kansas City.

Following a formal hearing, a member of the PSC who had conducted the hearing prepared a proposed report and order. That report and order was circulated to other members of the PSC for notation thereon of their approval or disapproval. Four of the commissioners indicated approval of the proposed report and order on the notational voting sheet. The fifth commissioner was marked absent and did not vote. No meeting of the PSC was held to vote on the report and order. Instead, it was considered adopted on the basis of the notational voting. The order was printed and on July 1, 1974, was mailed to all parties of record with an effective date of July 11, 1974. ²

On petition for review, the circuit court affirmed the order directing Philipp to cease service between St. Louis and Kansas City and the order directing the General Counsel to seek penalties. The order suspending Philipp's intrastate authority for 30 days was reversed.

Both parties appealed to the Missouri Court of Appeals, Kansas City District, which reversed and remanded, directing the circuit court to remand to the PSC which, after reconsideration of the case, was directed to adopt a report and order in a public meeting after notice pursuant to the provisions of the Open Meetings Law, ch. 610, RSMo Supp.1973, commonly referred to as the "Sunshine Law".

Thereafter, on application of PSC, we ordered the case transferred to this court in accordance with Mo. Const. art. V, § 10, and we now decide it as though here on direct appeal. We reverse and remand with directions.

Philipp, in arguing that when voting on the proposed report and order in this case the PSC members were required to assemble in a meeting at which they cast their votes thereon, relies on two statutory provisions. The first of these is § 386.130. ³

Chapter 386 governs the creation and organization of the PSC. It was enacted originally in 1913. Section 386.130, relied on by Philipp as governing the disposition of this case, covers organization of the PSC, authorizes meetings thereof and defines what is a quorum for the transaction of business. It is unchanged from the form in which it was enacted in 1913. 1913 Mo.Laws, p. 564, § 12.

Philipp argues that § 386.130 makes the commission a collegial body which is required to hold meetings at which it makes the final decisions as a body. That its language so requires, says Philipp, is clear because the section was taken from a New York statute which, at the time it was borrowed, had been construed by the New York courts as requiring that an order disposing of a case be adopted at a meeting of the commission at which a quorum was present.

The New York statute from which the predecessor of § 386.130 is said to have been taken was 1907 N. Y. Laws, ch. 429, § 11. Comparison of the two sections, set out side by side, shows that they are almost identical.

There are only two differences in the two sections. Missouri added the sentence at the beginning which provides that the commission shall organize promptly. That did not alter the meaning of the portion borrowed from the New York statute. The other difference is in the third sentence of § 386.130 wherein the word "the" precedes the word "commission" whereas in the corresponding sentence in § 11 of the New York statute the word "commission" is preceded by the word "either". This difference is accounted for by the fact that in New York there was a commission for each of two districts whereas in Missouri there is a commission for the entire state. See 1907 N. Y. Laws, ch. 429, §§ 3 and 4.

The identity of the two statutes supports the contention of Philipp that § 386.130 was borrowed from the New York statute. PSC does not contend otherwise in its brief. That this frequently occurred was recognized by this court in Burnside v. Wand, 170 Mo. 531, 71 S.W. 337 (banc 1902). The court considered in that case the source of a Missouri statute pertaining to actions on bonds for the breach of any condition other than the payment of money. In concluding that the Missouri statute was borrowed from New York, the court said, 71 S.W. at 350:

" * * * But there are such differences apparent between our statute and the English statutes as to arrest, at once, the attention, and to force the inquiry whether our statute is made up of the statute of Anne and William, with such changes as suggested themselves to the minds of our legislators, or whether our statute is borrowed from the statutes of some other state. Induced by this thought, the mind is at once prompted to look to the statutes of the state of New York, principally because so large a part of our statute laws have been borrowed from that state. The result of such an inquiry is that the laws of New York are found to be almost identical with our statutes. The phraseology of both statutes compels the conviction that our statute, passed for the first time in 1835 (Rev.St.1835, p. 430), was borrowed from the New York statutes of 1829. * * * "

We conclude and hold that what is now § 386.130 was borrowed from 1907 N. Y. Laws, ch. 429, § 11. That occurred in 1913. At that time, § 11 of the N. Y. law had been construed in People v. Whitridge, 144 App.Div. 486, 129 N.Y.S. 295, 298 (1911), aff'd, 204 N.Y. 646, 97 N.E. 1112 (1912), as follows:

" * * * The statute provides that:

'A majority of the commissioners shall constitute a quorum for the transaction of any business, for the performance of any duty, or for the exercise of any power of the commission, and may hold meetings at any time or place within the state.' Section 11.

"The body is not composed of five individuals authorized to act independently, for the act provides that 'there shall be a Public Service Commission for each district.' Section 4.

"And, while individual commissioners may hold 'investigations, inquiries and hearings' (section 11), the final act must be that of the commission as a body at a meeting attended by a quorum, and it is only for the violation of an order of the commission as such a body that a penalty can be imposed. In order that there should have been a valid order, it was necessary that it should appear that it had been adopted by the commission, acting at least by a majority, and at a stated meeting, or a meeting properly called and of which all the commissioners had been notified and had had an opportunity to be present. 10 Cyc. p. 323. No attempt was made to supply this proof. Although the commission is a most important and powerful one, it appeared that no minutes are kept of its proceedings; at least, none were produced, although an opportunity was given plaintiffs to produce them, if they existed. Thus, as the case was finally presented, there was absolutely no legal evidence, or any evidence at all, that the commission had ever adopted the order which defendant is charged with having violated."

One of the well established rules of statutory construction is that when a state borrows a statute from another state and enacts it into law, the borrowing state also adopts the interpretation placed thereon prior to the time of enactment in the borrowing state by the courts of the state from which the statute was taken. This rule was stated in Burnside, 170 Mo. 531, 71 S.W. at 350, thus:

"* * * It is a rule of law that when a statute is borrowed from another state the decisions of the state from which the statute is borrowed, interpreting such statute, are borrowed also. For it is presumed that the legislature adopting the statute of a sister state knew of the interpretation placed upon the statute by the courts of such sister state, and intended that a like interpretation should be put upon the statute after it became a part of the laws of the adopting state. When we adopt the New York statutes we therefore adopted the interpreting decisions of that state also."

This doctrine was reaffirmed in State v. Anderson, 515 S.W.2d 534, 539 (Mo.banc 1974):

"* * * The rule is well established that when the legislature enacts into law a statute which they take from the laws of another state, they adopt the interpretation placed thereon by the courts of that state prior to the time the statute is enacted by Missouri. This rule was expressed in General Box Co. v. Missouri Utilities Co., 331 Mo. 845, 55 S.W.2d 442, 447 (1932) as follows:

'It should be noted that this construction of the Nebraska statute was placed thereon by the highest court of that state prior to its adoption here, and the law is well settled that, when one state adopts a statute of another state which the courts of that state have construed, then such construction will be held to have been adopted along with the statute. Schott v. Continental Auto Ins. Underwriters, 326 Mo. 92, 31 S.W.2d 7, 11; State...