State ex rel. Smithco Transport Co. v. Public Service Commission, No. 46690

CourtUnited States State Supreme Court of Missouri
Writing for the CourtWESTHUES; DALTON, C. J., HOLLINGSWORTH, EAGER, STORCKMAN, and LEEDY, JJ., and STONE; HYDE; PER CURIAM
Citation316 S.W.2d 6
PartiesSTATE 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.
Docket NumberNo. 46690
Decision Date14 July 1958

Page 6

316 S.W.2d 6
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.
No. 46690.
Supreme Court of Missouri, En Banc.
July 14, 1958.
Rehearing Denied Sept. 8, 1958.

Page 8

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.

WESTHUES, Judge.

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.

Page 9

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.

'2. Any exemptions whatsoever under any and all existing laws applying to agricultural products in the possession or under the control of the individual producer, shall apply similarly and completely to such products delivered by its former [farmer] members, in the possession or under the control of the association.'

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.

Page 10

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): 'Appellant has limited its contention of lack of jurisdiction on the part of the Missouri Public Service Commission to those vehicles while being used exclusively in making the described hauls of fluid milk from the farm via its Lebanon plant to St. Louis in the Federal Marketing Area. While the record is silent as to who hauls the milk from the farm or dairy farm to the co-operative, it is apparent from the record that appellant does not perform that service but rather it is the second hauler, who after the milk has been delivered to the co-operative at Lebanon and there tested, weighed, intermingled and cooled, and possibly a part thereof held back for processing into cheese or butter, transports the milk from the co-operative at Lebanon to the Federal Marketing Area. It is this separate second haul by appellant that is in question here.' And the opinion, on the same page, made reference to a rule, applicable to the present case, made by the Public Service...

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8 practice notes
  • State ex rel. Hand v. Bilyeu, R-1
    • United States
    • Court of Appeal of Missouri (US)
    • April 4, 1961
    ...77 S.W.2d 508. 4 In re Allen's Estate, 307 Mo. 674, 271 S.W. 755; State ex rel. Smithco Transport Co. v. Public Service Commission, Mo., 316 S.W.2d 6. 5 State ex rel. Cairo Bridge Commission v. Mitchell, 352 Mo. 1136, 181 S.W.2d 496; In re McArthur's Estate, 240 Mo.App. 435, 207 S.W.2d 546.......
  • Laughlin v. Forgrave, No. 52919
    • United States
    • United States State Supreme Court of Missouri
    • September 9, 1968
    ...v. Mitchell, 352 Mo. 1136, 1143, 181 S.W.2d 496, 499; State ex rel. Smithco Transport Co. v. Public Service Commission, Mo.Sup., 316 S.W.2d 6, 12--13; City of St. Louis v. Carpenter, Mo.Sup., 341 S.W.2d 786, 788--789, 87 A.L.R.2d I would follow said rule of construction and would conclude t......
  • Southwestern Bell Tel. Co. v. Newingham, No. 8373
    • United States
    • Court of Appeal of Missouri (US)
    • January 20, 1965
    ...p. 801 et seq.; Crawford, Statutory Construction, Sec. 227-231, pp. 420-435; State ex rel. Smithco Trans. Co. v. Public Serv. Comm., Mo., 316 S.W.2d 6(6); In re Dugan, Mo.App., 309 S.W.2d 137, 143; State ex rel. Spink v. Kemp, 365 Mo. 368, 283 S.W.2d 502,...
  • ITT Canteen Corp. v. Spradling, No. 58786
    • United States
    • Missouri Supreme Court
    • July 14, 1975
    ...Surety Ins. Corp. v. State Tax Comm., 348 Mo. 171, 153 S.W.2d 43 (1941); State ex rel. Smithco Transport Co. v. Public Service Comm., 316 S.W.2d 6 (Mo. banc 1958); State ex rel. Wright v. Carter, 319 S.W.2d 596 (Mo. banc 1958); Collier v. Roth, 468 S.W.2d 57 (Mo.App.1971). And the Court sho......
  • Request a trial to view additional results
8 cases
  • State ex rel. Hand v. Bilyeu, R-1
    • United States
    • Court of Appeal of Missouri (US)
    • April 4, 1961
    ...77 S.W.2d 508. 4 In re Allen's Estate, 307 Mo. 674, 271 S.W. 755; State ex rel. Smithco Transport Co. v. Public Service Commission, Mo., 316 S.W.2d 6. 5 State ex rel. Cairo Bridge Commission v. Mitchell, 352 Mo. 1136, 181 S.W.2d 496; In re McArthur's Estate, 240 Mo.App. 435, 207 S.W.2d 546.......
  • Laughlin v. Forgrave, No. 52919
    • United States
    • United States State Supreme Court of Missouri
    • September 9, 1968
    ...v. Mitchell, 352 Mo. 1136, 1143, 181 S.W.2d 496, 499; State ex rel. Smithco Transport Co. v. Public Service Commission, Mo.Sup., 316 S.W.2d 6, 12--13; City of St. Louis v. Carpenter, Mo.Sup., 341 S.W.2d 786, 788--789, 87 A.L.R.2d I would follow said rule of construction and would conclude t......
  • Southwestern Bell Tel. Co. v. Newingham, No. 8373
    • United States
    • Court of Appeal of Missouri (US)
    • January 20, 1965
    ...p. 801 et seq.; Crawford, Statutory Construction, Sec. 227-231, pp. 420-435; State ex rel. Smithco Trans. Co. v. Public Serv. Comm., Mo., 316 S.W.2d 6(6); In re Dugan, Mo.App., 309 S.W.2d 137, 143; State ex rel. Spink v. Kemp, 365 Mo. 368, 283 S.W.2d 502,...
  • ITT Canteen Corp. v. Spradling, No. 58786
    • United States
    • Missouri Supreme Court
    • July 14, 1975
    ...Surety Ins. Corp. v. State Tax Comm., 348 Mo. 171, 153 S.W.2d 43 (1941); State ex rel. Smithco Transport Co. v. Public Service Comm., 316 S.W.2d 6 (Mo. banc 1958); State ex rel. Wright v. Carter, 319 S.W.2d 596 (Mo. banc 1958); Collier v. Roth, 468 S.W.2d 57 (Mo.App.1971). And the Court sho......
  • Request a trial to view additional results

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