State ex rel. Smithco Transport Co. v. Public Service Commission
| Decision Date | 14 July 1958 |
| Docket Number | No. 46690,46690 |
| Parties | STATE of Missouri ex rel. SMITHCO TRANSPORT COMPANY, a corporation, Appellant, v. PUBLIC SERVICE COMMISSION of the State of Missouri and Tyre W. Burton, E. L. McClintock, Charles L. Henson, M. J. McQueen, and D. D. McDonald, as members of said Public Service Commission, Respondents. |
| Court | Missouri Supreme Court |
Kyle D. Williams, Jefferson City, Neale, Newman, Bradshaw, Freeman & Neale, Flavius B. Freeman, Donald J. Hoy, Jean Paul Bradshaw, Springfield, for appellant.
Glenn D. Evans, Gen. Counsel, Thomas J. Downey, Asst. Gen. Counsel, Jefferson City, for respondents.
Henry Andrae, Hendren & Andrae, Jefferson City, for protestant Dairyland Transp. Corp.
William W. Beckett, Alfred J. Hoffman, Marvin O. Young, Columbia, amici curiae for Missouri Farmers Ass'n, Inc.
Laurance M. Hyde, Jr., St. Louis, for Frisco Transportation Co.
The State Public Service Commission denied Smithco Transport Company a certificate of convenience and necessity for an intrastate freight carrier between various points in Missouri. The primary purpose for which a permit was sought was the transportation of milk and other dairy products from the plant of Sanitary Milk Producers, a farmers' co-operative, at Lebanon, Missouri, to St. Louis, Missouri. The case was heard by two members of the Commission. One of these members dissented from the order of the Commission denying a certificate or permit. The Circuit Court of Cole County affirmed the order. On appeal to the Kansas City Court of Appeals, the ruling of the Cole County Circuit Court was affirmed. 307 S.W.2d 361. The Court of Appeals transferred the case to this court.
The view we have taken of this case renders unnecessary our ruling on many questions that were considered at length by the Kansas City Court of Appeals. For example, the question of whether the federal authorities under the Agricultural Marketing Agreement Act, 7 U.S.C.A. Sec. 601 et seq. had pre-empted the field so as to prevent the Public Service Commission from taking jurisdiction of this case. See opinion of Court of Appeals, 307 S.W.2d loc. cit. 370-374(1)(2)(3)(4, 5).
The point on which we rule this case was considered by the Court of Appeals beginning at page 374(6) of 307 S.W.2d. It is whether the transportation of milk and dairy products by the cooperative from its Lebanon plant to the St. Louis market is embraced within the exemptions contained in the statutes as not requiring a certificate of convenience and necessity.
Before we consider that point, we shall relate some of the incidents giving rise to this litigation. Sanitary Milk Producers is a farmers' co-operative having a membership of over 5000 located in the states of Illinois and Missouri. A majority of its members are dairy farmers in southwest Missouri. It has a plant at Lebanon where it receives milk in large quantities from the producers. The milk is chilled and then immediately taken in tanks to the St. Louis market where it is sold to distributors. These distributors process the milk, bottle it, and retail it to customers. The applicant for a certificate of convenience and necessity, Smithco Transport Company, by contract with Sanitary, transports the milk in large tanks to the St. Louis markets. Smithco, the record shows, hauled exclusively for Sanitary. All tanks and equipment were kept at the plant of Sanitary and were ever ready at a moment's notice to haul the milk. It was in evidence that it was necessary to deliver the milk promptly so as to comply with the health regulations concerning 'Grade A Milk.' Smithco had previously obtained an interstate permit to haul milk.
A number of protestants appeared before the Public Service Commission objecting to granting Smithco a certificate. The principal objector was Dairyland Transportation Corporation, a holder of an intrastate certificate to haul milk and other products. Its specialty was the transportation of dairy products.
Smithco began hauling Sanitary's milk in 1955 after a dispute over labor trouble interfered with the prompt delivery of milk. After Smithco began hauling milk, its trucks were being stopped on their way to market because Smithco did not have a certificate of convenience and necessity. Prosecution was threatened. Smithco applied to this court for a writ of prohibition to enjoin the prosecution. Dairyland Transportation Corporation, the main objector in this case, filed a brief in this court in opposition to granting the writ. This court denied the writ.
In June, 1955, Smithco filed its application with the Public Service Commission for a permit to haul milk and other dairy products. In the Court of Appeals, Smithco contended that the Public Service Commission did not have jurisdiction for the reason that the hauling of milk and dairy products was exempt by virtue of the statutes. Protestant Dairyland suggested that Smithco was estopped to question jurisdiction because it had filed an application with the Commission. The Court of Appeals ruled, and we think correctly so, that the question of jurisdiction was a live issue in the case on appeal. See 307 S.W.2d loc. cit. 374(6).
The statutes (all references are to RSMo 1949, V.A.M.S., unless otherwise noted) involved in this case are Secs. 390.030 and 274.300. (Sec. 390.030 is numbered in V.A.M.S. as 390.031.) Sec. 390.030 reads in part as follows:
'Vehicles exempted
'The provisions of sections 390.011 to 390.176 shall not apply to:
* * *
* * *
'4. Motor vehicles while being used exclusively to transport:
'(1) Stocker and feeder livestock from farm to farm, or from market to farm;
'(2) Farm or dairy products including livestock from a farm or dairy to a creamery, warehouse or other original storage or market; * * *.'
Sec. 274.300 reads:
'Provisions of law in conflict not applicable--exemptions
'1. Any provisions of law which are in conflict with this chapter shall be construed as not applying to the associations herein provided for.
Sec. 274.300 was not considered in the opinion of the Court of Appeals. In fact, it was not mentioned. Secs. 390.030 and 274.300 were not referred to in the findings of fact and conclusions of law by the Public Service Commission.
The Missouri Farmers Association, Inc., filed a brief in this court as amici curiae. The only point made in this brief is the claim that the Public Service Commission did not have jurisdiction of this case because Sec. 274.300, supra, extended the exemptions contained in 390.030, supra, to farmers' co-operatives.
The Court of Appeals, in its opinion, referred to the contention of appellant as to jurisdiction of the Public Service Commission and stated, 307 S.W.2d loc. cit. 376(7): And the opinion, on the same page, made reference to a rule, applicable to the present case, made by the Public Service Commission. Note the following: 'Respondent Public Service Commission also refers to its interpretation of the Missouri Bus and Truck Law of 1931 promulgated by it on November 27, 1933, as being its long accepted and correct one; namely: 'As to when the status of goods being transported ceases to be farm-to-market, the 'rule of thumb' adopted by the Commission is that goods are entitled to one free haul, for example, when cream is transported from the farm to the creamery or milk station and then picked up and carried by another carrier or for another owner to its ultimate destination, the second haul is not exempt.'' It is our opinion that both the Public Service Commission, in adopting the 'rule of thumb,' as it was called, and the Court of Appeals, in its opinion, failed to give due consideration to Sec. 274.300, supra.
These statutes, that is, Secs. 390.030 and 274.300, supra, do nothing more than preserve the right of the farmer to transport his product to market. It is within the memory of the older generation, and the courts may take judicial notice thereof, that before the construction of the high type roads and before the advent of cars and transport trucks, the farmer would haul his product to market by horse-drawn wagons,--or often on foot. The dairy farmer of those days would generally deliver milk to his customers in towns and cities before daybreak. Those, too, were the days when many city folks harbored a cow or milk goat to provide the family needs. Then, too, it was not infrequent that dairies would be found within cities of considerable size so as to be near the market.
Conditions have changed. Today, we have mass production and mass transportation. The cows and goats have disappeared from the towns and cities. Dealing in dairy products has become big business. Much of the freight formerly hauled by the railroads is now transported over hard surface highways by transportation...
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