State ex rel. Pitcairn v. Public Service Com'n

• Decision Date: 27 November 1937
• Parties: STATE OF MISSOURI AT THE RELATION OF NORMAN B. PITCAIRN AND FRANK C. NICODEMUS, RECEIVERS OF THE WABASH RAILWAY COMPANY, APPELLANTS, v. PUBLIC SERVICE COMMISSION OF MISSOURI, RESPONDENT
• Court: Kansas Court of Appeals

110 S.W.2d 367

232 Mo.App. 609

STATE OF MISSOURI AT THE RELATION OF NORMAN B. PITCAIRN AND FRANK C. NICODEMUS, RECEIVERS OF THE WABASH RAILWAY COMPANY, APPELLANTS, v. PUBLIC SERVICE COMMISSION OF MISSOURI, RESPONDENT

Court of Appeals of Missouri, Kansas City

November 27, 1937

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

AFFIRMED.

Judgment affirmed.

Honer Hall, R. W. Hedrick and J. H. Miller for appellants.

Nat S Brown and Frank E. Atwood of Counsel.

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

OPINION

SHAIN, P. J.

This is an appeal from the action of the Circuit Court of Cole County, Missouri, affirming the report and order of the Public Service Commission of Missouri, in case T-318 entitled: In the matter of the application of W. P. Sutton for a certificate of convenience and necessity to operate intrastate as a freight-carrying motor carrier over an irregular route.

This case is before us for review by the mandate of the Supreme Court of Missouri. In so far as this court is concerned, we enter an uncharted field in so far as any assumption of jurisdiction or declarations of law by this court touching the acts of the Public Service Commission are concerned. It follows that the most available light for our guidance is the conclusions reached and principles laid down by the Supreme Court during the many years that Court assumed exclusive jurisdiction in matters of final appeal from the findings and orders of the Commission.

Since the duty of review has been bestowed upon this Court, we have made somewhat diligent research as to the limitations upon the scope of our duty and find limitations prescribed by statute and court mandate. There is a limitation however that transcends statute and court mandate. We allude to our want of jurisdiction to pass upon constitutionality of legislative enactment.

This want of jurisdiction is a more manifest restriction of jurisdiction in public service questions for the reason that in our review, we are reviewing the actions of a body which is neither legislative nor court, but a committee created by legislative act to make findings of fact and orders that, if reasonable and within the powers conferred, may be enforced by the actions of courts. [A. T. & S. F. Ry. Co. v. Public Service Commission, 192 S.W. 460.]

An order of the Commission may be within its power and within the reason of the legislative act and a potent reason for the order being unreasonable and unjust might be by reason of the fact that the statute violates some constitutional right.

The preliminary remarks above are due to the fact that the only abstract of the record before us is one filed in the Supreme Court and therein is shown that a constitutional question was raised in the proceedings before the Commission. However, briefs have been filed in this court and there appears no direct constitutional question raised by the assignment of errors in the brief of appellant filed in this court. However, we desire that litigants may understand that an assignment of errors to the effect that the orders of the Commission are "unreasonable, unjust and unlawful" must be considered by this Court from the standpoint that the legislative act that gives authority, if so, for the order, is reasonable, just and lawful, regardless of any personal opinion the members of this court may have to the contrary.

STATEMENT OF PLEADINGS AND FACTS.

On December 9, 1936, the petitioner, W. P. Sutton, filed application with the Public Service Commission of Missouri for a certificate of convenience as a freight-carrying motor carrier over an irregular route.

Applicant designated his principal place of business as on his farm, three miles south of Columbia, Boone County, Missouri.

Applicant states that he operates one truck in the business and that he purposes to operate from his farm in Boone County, Missouri, post office R. 8, in Boone and surrounding counties.

Applicant further alleges that he has operated for the past two years and that he has a regular group of customers he has served during said two years and that he can obtain this business if granted permit.

It is shown that the Receivers of the Wabash Railway filed protest to aforesaid application, the nature of which will more clearly be shown by exceptions made that will be considered below.

At the hearing before the Commission the applicant testified in substance, that he had lived in Boone County all of his life and engaged in farming. He further testified that, for a little better than two years, practically, all of his time had been consumed in the transfer business with one truck. Further that he had operated in Boone and surrounding Counties; 95 percent of his business confined to Boone County and that 5 percent of his business called him out of Boone County. He testified that the commodities he hauled and intended to haul, are stock, fuel of all kinds, coal, lumber and some furniture, and that about 75 percent of his business was in hauling stock into town and from one farm to another; that when he hauled from farm to market, he brought back fuel, coal, lumber, roofing, fencing and such articles as were wanted; that he had hauled a load of furniture from Kansas City; that his purpose in asking for certificate as freight carrier over an irregular route is to operate regularly to bring back something to the farmers and that he had about fifty or sixty regular customers located in Boone County, Missouri, and that he has been serving his patrons satisfactorily and that he can be located at his home by telephone.

It further appears from the evidence that applicant had not engaged in hauling from town to town and that it was only when he had taken a load of stock into town he brought back merchandise that the farmers wanted.

It appears that the applicant filed a verified financial statement, also, a tariff schedule covering rates and testified that as based upon said rates, he had made a reasonable profit.

As to the applicant's petition to operate in the state he testified that his position is subject to call, "I pick up anywhere I might be called," further that he asks privilege of picking up in Boone County and transporting in the state with the privilege to go any place in Missouri and transport to Boone County. Applicant testified that his truck is in good condition; that he has no claim for damages; that trucking is his principle business; and that he is insured against public liability and able to take out insurance required by the Commission.

On cross-examination, applicant testified as follows:

I have not hauled anything from Columbia up to Centralia, Sturgeon, Thompson or any other points along the Wabash except I did haul one load of seed oats to Clark. Just one load.

"Q. Well, outside of the four or five times you mentioned, then, your operations have been confined to Boone County? A. Yes."

At the hearing before the Commission, applicant's petition was sustained and certificate of convenience and necessity was issued on the ground that the applicant under the evidence had shown that he had been operating in good faith and rendering satisfactory and good service on December 1st 1930, and entitled to...