State ex rel. Safety Ambulance Service, Inc. v. Kinder

• Decision Date: 14 November 1977
• Docket Number: No. 59714,59714
• Citation: 557 S.W.2d 242
• Parties: STATE of Missouri ex rel. SAFETY AMBULANCE SERVICE, INC., a corporation, Relator, v. The Honorable Byron L. KINDER, Judge of the Circuit Court of Cole County, Missouri, Respondent.
• Court: Missouri Supreme Court

Page 242

557 S.W.2d 242

STATE of Missouri ex rel. SAFETY AMBULANCE SERVICE, INC., a corporation, Relator, v. The Honorable Byron L. KINDER, Judge of the Circuit Court of Cole County, Missouri, Respondent.

No. 59714.

Supreme Court of Missouri, En Banc.

Nov. 14, 1977.

William L. Hess, Kansas City, for relator.

Harvey M. Tettlebaum, Jefferson City, for amicus curiae State of Missouri.

William E. Stoner, Springfield, for respondent.

ORIGINAL ACTION FOR PROHIBITION

RENDLEN, Judge.

Prohibition to direct respondent Circuit Judge of Cole County, to quash the writ of mandamus issued July 1, 1976, in State ex rel. Safety Ambulance Company, Inc. v. Missouri Division of Health, et al., No. 28182 ¹ and desist from enforcing the same against the Missouri Division of Health.

The principal question for determination is whether Missouri's recently enacted ambulance licensing law, Sections 190.100 through 190.195, ² effective July 1, 1974, implicitly permits issuance of licenses to those ambulance operators in business prior to the effective date of the Act, without a hearing to determine the "public convenience and necessity." Such provisions, not uncommon in the law, allowing special dispensation to going businesses when statutory changes occur are known colloquially as "grandfather" clauses.

Relator, Safety Ambulance Service, Inc. (hereinafter Safety), owned and operated an ambulance service in the Springfield-Greene County area for about thirteen years prior to the effective date of the Act. Continuing operations during 1974, Safety applied to the Missouri Division of Health and was issued a license in January, 1975, on the Division's administrative determination that Safety had been in business on the effective date of the Licensing Law and was entitled to the benefits of the "grandfather" provision implicit therein. About nine months later Al Miller, d/b/a Action Emergency Ambulance (hereinafter Miller) of Greene County, was issued a "grandfather" license by the Division. Safety promptly petitioned the Circuit Court of Cole County, in Case No. 28182, for mandamus and review of the Division's issuance of Miller's license, contesting the fact of Miller's operation prior to July 1, 1974 and his entitlement to protection of the "grandfather" provision. ³ By Count I, Safety sought mandamus to require that respondent, Division of Health, withdraw Miller's license and require notice, hearing and finding of public convenience and necessity, prior to issuance of any new license. By Count II, Safety sought injunction to restrain Miller from operating an ambulance service in Greene County under the "void" license and by Count III a review of the Division's ruling under Chapter 536, RSMo 1969, and for suspension of "any purported power granted by said license."

The court, proceeding on Count I, issued its alternative writ of mandamus to the Division of Health, return was made to which Safety replied, the cause was set and without Miller or his counsel present, evidence was adduced and the matter taken under advisement January 16, 1976. Miller, though not a party to Count I had previously moved to dismiss Counts I, II and III, but that motion does not appear to have been ruled. On January 13, Miller's motion for a legislative continuance was sustained as to Counts II and III, but denied as to Count I because, according to the court, Miller had not "pleaded to" and was "not a party" to the action on that Count. At the January 16 hearing, Safety presented evidence concerning Miller's application plus evidence pointing up the paucity and conflicting nature of the information on which the "license officer" acted when determining Miller was doing business on the effective date of the Licensing Law. On June 15, 1976, the City of Springfield which also operated an ambulance service in the area, was permitted to intervene, and on that date the court issued its peremptory writ, finding Safety was "an interested party pursuant to Chapter 190" and that "this court having heard the evidence thus finds from the evidence that the acting (sic) of respondents in issuing a State Ambulance License to Al Miller d/b/a Action Emergency Ambulance for the territory of Green (sic) County, without notice, hearing, and finding of public convenience and necessity was beyond the scope of their ministerial duties and duties as licensing agents for the Missouri Division of Health, and in excess of Statutatory (sic) power granted to them as licensing agents and officers."

Miller's license was voided and the Division was ordered to conduct a hearing as to the public convenience and necessity on Miller's application.

From this it is not clear if the court ruled the hearing was required because (1) there is no implied grandfather provision in the statute; or (2) there is a grandfather provision but from the evidence Miller was shown not to have been operating an ambulance service on July 1, 1974.

Ten days later, Miller moved to amend the writ, and without further notice or hearing the court on July 1, issued its amended peremptory writ of mandamus, finding that respondent, Division of Health, acted in excess of its authority by granting the license to Miller and then, quite beyond the scope of the pleadings and evidence, voided the licenses of relator, the intervenor City of Springfield, and the Lester E. Cox Medical Center of Springfield. (The Cox Medical Center was neither a party nor otherwise involved in that action.) The Division was ordered to immediately schedule hearings as to public convenience and necessity for the four named licensees (now presumably mere license applicants). Though again the court did not make clear why the hearings to determine "convenience and necessity" were required, it was uncontroverted that Safety had continuously operated many years prior to the effective date of the Act and if the statute permitted grandfather licensing, Safety qualified. From this we conclude the basis for the court's decision was its interpretation of the Act as not containing an implied grandfather provision.

Complaining of the court's action, Safety petitioned this Court for prohibition to require respondent to quash its amended writ and to desist from enforcing the same against the Division of Health. Our provisional rule issued.

The question is raised whether prohibition lies or is relator's remedy appeal? By the peremptory writ respondent disposed of the issues in Count I but those of Counts II and III remained, requiring further proceedings to determine the question of the injunction and restraining orders as to Miller. The order was not appealable as respondent did not designate it a final judgment for that purpose. Rule 81.06. Further, when as here the action of the court sought to be prohibited is neither complete nor self-executing, see State ex rel. Templeton v. Seehorn, 208 S.W.2d 789 (Mo.App.1947), prohibition may be invoked to restrain the enforcement of such orders if beyond or in excess of the authority of a judge and to keep a court within the compass of its jurisdiction. State ex rel. Vogel v. Campbell, 505 S.W.2d 54, 58 (Mo.banc 1974). Respondent, by mandamus, attempted to void the Division's prior action awarding Safety its license when the issue as to that action was neither raised nor suggested in pleadings or proof. The issue was not before the court for adjudication, thus its ruling, reaching beyond the issues, was coram non judice and void to the extent it purports to revoke Safety's license and require a hearing by the Division of Health Services. Bayer v. Associated Underwriters, Inc., 402 S.W.2d 11, 13 (Mo.App.1966). We find the trial court exceeded its jurisdiction in the particulars described above and for this reason as well as those hereinafter discussed, prohibition lies and our provisional rule will be made absolute.

Respondent's order of July 1 1976, affecting the four named licensees, stems from his erroneous conclusion that the Ambulance Licensing Law contains no implied grandfather clause. While the Licensing Law, §§ 190.100 through 190.195 contains no express grandfather clause, we conclude such provision is implicit in the Act and we discern no legislative intent to require hearings to determine public convenience and necessity for ambulance services in operation on July 1, 1974. Conversely we determine that provisions requiring such hearings do extend to "proposed" ambulance services commencing business after the effective date of the Act.

Section 190.125.1 requires that "The license officer shall, upon receipt of an application for an ambulance license . . . cause such investigation as he deems necessary to be made of the applicant and of his proposed operations." (Emphasis added.) Subsection 2 provides: "The license officer shall issue a license hereunder for a specified ambulance, to be valid for a period of one year, . . . when he finds, upon proper notice and hearing: (1) that the public convenience and necessity require the proposed ambulance service;" (Emphasis added.) The use of the term proposed in both subsections indicates such hearings and findings are required only as to prospective ambulance businesses not then in service. ⁴ This interpretation is reinforced by the terms of § 190.170, which delineate procedures for hearings, investigations, notices and appeals. Subsection 190.170.4 provides:

"A hearing shall be afforded any applicant seeking a license, the issuance of which requires a finding concerning the public convenience and necessity. Notification by regular mail of each hearing shall be sent to all interested parties including ambulance operators already licensed for service in the area affected by the applicant. Notification shall be mailed at least ten days prior to the hearing." (Emphasis added.)

The emphasized language in effect states that issuance of licenses in some situations does not require findings concerning public convenience and necessity, and that hearings are...