State ex rel. Southwestern Bell Tel. Co. v. Public Service Commission

• Citation: 592 S.W.2d 184
• Decision Date: 29 October 1979
• Docket Number: No. KCD,KCD
• Parties: STATE ex rel. SOUTHWESTERN BELL TELEPHONE COMPANY, a corporation, Relator-Respondent, v. PUBLIC SERVICE COMMISSION of the State of Missouri, Respondent-Appellant, and William M. Barvick, Public Counsel of the State of Missouri, Intervenor-Respondent-Appellant. SOUTHWESTERN BELL TELEPHONE COMPANY, a corporation, Plaintiff-Respondent, v. James P. MULVANEY, Chairman, Hugh A. Sprague, Stephen B. Jones and Leah B. McCartney, Members of the Missouri Public Service Commission, Defendants-Appellants, and William M. Barvick, Public Counsel of the State of Missouri, Intervenor-Appellant. 30609.
• Court: Court of Appeal of Missouri (US)

Page 184

592 S.W.2d 184

STATE ex rel. SOUTHWESTERN BELL TELEPHONE COMPANY, a corporation, Relator-Respondent, v. PUBLIC SERVICE COMMISSION of the State of Missouri,

Respondent-Appellant,

and

William M. Barvick, Public Counsel of the State of Missouri,

Intervenor-Respondent-Appellant.

SOUTHWESTERN BELL TELEPHONE COMPANY, a corporation, Plaintiff-Respondent, v. James P. MULVANEY, Chairman, Hugh A. Sprague, Stephen B.

Jones and Leah B. McCartney, Members of the

Missouri Public Service Commission,

Defendants-Appellants,

and

William M. Barvick, Public Counsel of the State of Missouri,

Intervenor-Appellant.

No. KCD 30609.

Missouri Court of Appeals, Western District.

Oct. 29, 1979.

Motion for Rehearing and/or Transfer Denied Dec. 31, 1979.

Application to Transfer Denied Feb. 11, 1980.

Paul W. Phillips, Gary W. Duffy, Jefferson City, for respondent-appellant Public Service Commission.

William M. Barvick, Public Counsel, James M. Fischer, Asst. Public Counsel, Jefferson City, for Intervenor-Respondent-Appellant.

Robert M. Lynch, John W. Kelly, Jr., Cynthia A. Barton, Glen A. Glass, St. Louis, for relator-respondent Southwestern Bell.

Before DIXON, P. J., and TURNAGE and KENNEDY, JJ.

DIXON, Presiding Judge.

The Public Service Commission and the Public Counsel as intervenor have appealed from separate judgments rendered by the Circuit Court of Cole County, in both of which the respondent Southwestern Bell Telephone Company was the moving party. The first judgment was in a declaratory judgment action brought by Southwestern Bell as plaintiff. The second judgment was in a proceeding for review of a Commission order in which Southwestern Bell was the petitioner. Both of the lower court proceedings were attempts by Southwestern Bell to invalidate the Public Service Commission rule 4 CSR 240-2.090(1) permitting the use of written interrogatories in proceedings before the Commission. The threshold issue is a procedural one relating to the propriety of the remedy sought by Southwestern Bell.

In the underlying Public Service Commission proceeding, which relates to the reclassification of telephone exchanges of Southwestern Bell in connection with a proposed tariff, the Public Counsel propounded to Southwestern Bell written interrogatories pursuant to the Commission rule 4 CSR 240-2.090(1). After protest by Southwestern Bell of this procedure before the Commission, the Commission entered an order requiring and compelling Southwestern Bell to comply with the request for interrogatories. That order was made effective on the day it was entered. Southwestern Bell promptly filed a motion for rehearing which was overruled by the Commission in an order effective on the day of its entry. Southwestern Bell sought review of that order pursuant to § 386.510 RSMo ¹ in the Circuit Court of Cole County.

Simultaneously, Southwestern Bell filed an action for injunction and for declaratory judgment asserting the invalidity of the Commission's rule respecting interrogatories. Southwestern Bell asserts its right to declaratory relief under § 536.050 RSMo.

The circuit court consolidated the writ of review proceedings and the declaratory judgment action for the purposes of the hearing. The circuit court entered a judgment declaring that the Public Service Commission had no authority and was without jurisdiction to compel answers to written interrogatories in commission proceedings. The circuit court also enjoined the commission from enforcement of its order compelling Southwestern Bell's response to interrogatories. The judgment in the writ of review proceedings was declared by the court to be "controlled" by the order in the declaratory judgment action. The Public Counsel as intervenor and the Public Service Commission filed separate appeals.

The position of the appellants, Public Counsel and the Public Service Commission, is common with respect to the procedural issue. Both insist that under the decision of this court in Jefferson Lines, Inc. v. Missouri Public Service Commission, 581 S.W.2d 124 (Mo.App.1979) and that of the Supreme Court of Missouri in Union Electric Company v. Clark, 511 S.W.2d 822 (Mo.1974), Southwestern Bell has sought relief by means of an improper remedy. Southwestern Bell concedes that Jefferson is controlling and makes an unabashed attack upon the correctness of that decision. The effect of Southwestern Bell's attack upon Jefferson is to question the validity of Clark. Southwestern Bell's attack centers upon § 536.050 RSMo of Chapter 536 RSMo, the Administrative Procedure Act. It contends that the legislature intended for § 536.050 RSMo to provide a method for direct attack in the courts by way of declaratory judgment when the issues involve a "rule" of an agency, including the Public Service Commission, without first resorting to any form of administrative review and without regard to whether the agency in question has a separate method of judicial review.

In Clark, the Supreme Court was considering a declaratory judgment action filed in St. Louis by an electric utility asserting a claim that General Order 51 of the Public Service Commission, regulating on a statewide basis promotional payments by electric utilities, was invalid. The circuit court dismissed the petition. The utility appealed to the Supreme Court of Missouri contending that the circuit court should not have dismissed its petition. The Supreme Court reviewed the statute and the rules implementing judicial review of administrative action and held that the circuit court was without jurisdiction to determine the matter by way of declaratory relief. It found that the exclusive method of review of such an order of the Public Service Commission was by way of § 386.510 RSMo. In its analysis of the question, the Supreme Court referred to Rule 100.03, pointing out that, although the rule provided for review of rules of an agency, Rule 100.03 in specific terms excluded such review when there was another method of review provided by law. Finding that there was such a method of review by way of § 386.510 RSMo, the court held that the action of the circuit court was proper. Necessary to that decision was a determination by the Supreme Court that a statewide rule of the Public Service Commission, addressed to all affected utilities, was a final order or determination within the meaning of § 386.510 RSMo.

This court was then confronted in Jefferson, supra, with a rule of the Public Service Commission which made certain provisions for the use of equipment by bus line operators on a statewide basis. Jefferson arose from the Circuit Court of Jackson County by way of appeal from a declaratory judgment action with the Commission asserting that the venue of the cause was inappropriate and the circuit court was without jurisdiction to enter declaratory relief in such a proceeding. This court, relying upon Clark, held that the proper method of review was by way of a proceeding under § 386.510 RSMo.

There seems to be no basis for a distinction between the Order in Clark, the Rule in Jefferson, and the rule respecting...