State ex rel. St. Louis Public Service Co. v. Public Service Commission, 44777

• Citation: 291 S.W.2d 95,365 Mo. 1032
• Decision Date: 11 June 1956
• Docket Number: No. 44777,44777
• Parties: STATE of Missouri, at the relation of STLOUIS PUBLIC SERVICE COMPANY, a Corporation, Appellant, v. PUBLIC SERVICE COMMISSION of the State of Missouri and Tyre W. Burton, Henry McKay Cary, Charles L. Henson, E. L. McClintock, and M. J. McQueen, as Members of said Public Service Commission, Respondents, and City of Shrewsbury, a Municipal Corporation, Intervener-Respondent.
• Court: United States State Supreme Court of Missouri

Page 95

291 S.W.2d 95

365 Mo. 1032

STATE of Missouri, at the relation of STLOUIS PUBLIC SERVICE COMPANY, a Corporation, Appellant, v. PUBLIC SERVICE COMMISSION of the State of Missouri and Tyre W. Burton, Henry McKay Cary, Charles L. Henson, E. L McClintock, and M. J. McQueen, as Members of said Public Service Commission, Respondents and City of Shrewsbury, a Municipal Corporation, Intervener-Respondent.

No. 44777.

Supreme Court of Missouri, En Banc.

June 11, 1956.

Gaylord C. Burke, St. Louis, Attorney for appellant.

Glenn D. Evans, Gen. Counsel, Frank J. Iuen, Asst. Gen. Counsel, Jefferson City, for Public Service Commission and Type W. Burton, et al.

June R. Rose, Jefferson City, for intervenor-respondent, City of Shrewsbury, a Municipal Corp.

COIL, Commissioner.

This appeal is to review an order of the Public Service Commission (hereinafter called Commission) denying the application by the St. Louis Public Service Company (hereinafter called Company) to abandon its Mackenzie-Shrewsbury bus line. That line came into existence as the result of two prior Commission orders. A 1951 order in case No. 12,137 pertained to the Mackenzie 'leg' and a 1953 order in case No. 12,550 dealt with the Shrewsbury 'leg.' While the Commission's reports and orders in those prior cases are not a part of the instant record, we take judicial notice of them because the instant case and the two prior cases are so related and interdependent as to make it necessary to refer to those prior cases for a proper understanding of the present case.

In case No. 12,137, as a result of a hearing on the complaint of some 530 persons alleging lack of adequate public transportation to serve a St. Louis and St. Louis County area in the vicinity of Watson and Mackenize Roads, the Commission found that that area was 'in need of and entitled to reasonable public transportation service and that the St. Louis Public Service Company should render such service' and ordered the Company on or before June 17, 1951, to establish reasonable motorbus service over Watson Road for a distance of .72 of a mile between the points of intersection of Watson and Jamieson and Watson and Mackenzie. As a result of that order, the Company inaugurated a shuttle service between the points directed and at all times herein mentioned has continued to operate the Mackenzie 'leg.'

In case No. 12,550, on application of the City of Shrewsbury, a hearing on June 18, 1953, resulted in Commission findings 'that public convenience and necessity requires the establishment of service over the route proposed,' that such service should be rendered by the St. Louis Public Service Company, and an order that the Company inaugurate and operate passenger bus service over the route therein described; provided, that if such service was to be a 'shuttle service' it should be rendered at not less than 30-minute headways in each direction, but that if the service was to be rendered by the extension of an existing line, the Company would conform its headways and service to those in existence on the line extended; and, provided further, that the service ordered was to continue 'for an experimental period of 90 days and thereafter until this Commission shall otherwise order, and during the said period the said St. Louis Public Service Company shall make a written report at least every 30 days to this Commission and to the Mayors of Shrewsbury and Webster Groves showing the revenues and expenses of this operation exclusive of administration and depreciation expenses.' Jurisdiction was retained to permit the Company to be heard after the expiration of the 90-day experiment on the proposition of a discontinuation of the service ordered.

As a result of that unappealed order, the Company chose to extend the Mackenzie service over the Shrewsbury route directed and thus in compliance with Commission's order, rendered that service on the same headways and schedules as those then in existence on the Mackenzie 'leg.' Consequently, since January 9, 1954, there has been in existence the 2.95-miles-long Mackenzie-Shrewsbury bus line over this route: From Watson Road and Mackenzie Road, east on Watson Road to Chippewa Street, thence continuing east on Chippewa Street to Jamieson Avenue, northwardly on Jamieson Avenue to Lansdowne Avenue, west on Landsdowne Avenue to Murdoch Cut-off, thence continuing west on Murdoch Cut-off and Murdoch Avenue to Laclede Station Road, northwardly on Laclede Station Road to Big Bend Boulevard, southwestwardly on Big Bend Boulevard to Lockwood Avenue, westwardly on Lockwood Avenue to Bompart Avenue, southwardly on Bompart Avenue to Big Bend Boulevard, northeastwardly on Big Bend Boulevard to Lockwood Avenue, thence returning over the same route.

The seven-days-a-week service rendered included: Sunday service on 30-minute headways from 1:15 p. m. to 7:15 p. m., Saturday service on 3o-minute headways from 5:45 a. m. to 7:30 p. m., and Monday through Friday service on 30-minute headways from 5:45 a. m. to 7:30 p. m., except for 15-minute headways from 6:15 a. m. to 8:45 a. m. and from 4:45 p. m. to 6:15 p. m.

The Company's application in the instant case, filed May 19, 1954, after the service had been rendered for more than 120 days, alleged that the operation demonstrated that there was no public need for the entire Mackenzie-Shrewsbury bus line; that, because of operating losses sustained and being sustained, the continued operation of the line was an unreasonable burden on the Company's entire transit system; and that, because the Company was not making a fair return on its property used in public service, continued operation of the line amounted to a confiscation of the Company's property in violation of federal and state constitutional provisions. The prayer of the application asked authority to abandon the Mackenzie-Shrewsbury line 'and for such other and further relief as may be meet and proper under the circumstances * * *.'

We first note the Company's contention that the Commission's instant report and order do not conform to the requirements of Section 536.090 of the Administrative Procedure Act (all section references are to RSMo 1949, V.A.M.S.) in that the report does not include separately stated findings of fact and conclusions of law or a concise statement of the findings on which the Commission based its order. Section 536.090 does, as the Company contends, require that the order in a case like the instant one shall contain or be accompanied by separately stated findings of fact and conclusions of law, including a concise statement of the findings on which the Commission based its order. The report contains the words, near its beginning, that 'From the record made in this proceeding we find the following facts: * * *.' Interspersed among those findings, however, is a general review of the evidence adduced. Thereafter, the report proceeds under the heading 'Conclusions,' which contains the Commission's observations but which includes the findings of the essential facts upon which the Commission based its order. Those conclusions included whatever conclusion of law was necessary (if there was any conclusion of law necessary in this particular proceeding as distinguished from a conclusion in the nature of one of mixed law and fact). For our purposes, the decisive matter is that we have no difficulty in determining from the Commission's report and order the findings upon which that order was based, and, consequently, we hold that the report and order in this case, considered as a whole, are sufficient for our review and that no purpose would be served by remanding to the Commission for a more formal and literal compliance with the provisions of Section 536.090.

As a matter of fact, the Company does not dispute or object to the finding of any evidentiary fact made by the Commission for, indeed, the essential evidentiary facts so found were undisputed and were substantially the facts presented by the Company to support its application. Company's basic contentions are that there was no finding or conclusion by the Commission that public convenience and necessity required the continued operation of the bus service, and that there could not have been any such lawful or reasonable conclusion or finding based upon the evidentiary facts found by the Commission. As we shall later demonstrate, those contentions are untenable under the particular issues presented by this appeal.

The view we take of this appeal makes it unnecessary for us to set forth a resume of the evidence. It is sufficient for our purposes to summarize the Commission's ultimate factual conclusions, based, as we have said, upon essentially undisputed evidence. Although the Commission did not set forth its findings and conclusions in the form in which we now summarize them, yet there is no doubt that these were the Commission's essential conclusions, and that each of them substantially appears in the Commission's report and order.

The Commission made these findings and reached these conclusions: (1) that the application before it raised no issue (and obviously not) involving the matter of Company's system-wide rates including the question of zone fares for the Mackenzie-Shrewsbury line; (2) that the Mackenzie-Shrewsbury line operated at a loss during the period January 9, 1954 (its inauguration) to May 31, 1954, and that the loss...