State ex rel. St. Louis County v. Public Service Com'n

• Decision Date: 13 March 1950
• Docket Number: No. 41479,No. 1,41479,1
• Citation: 360 Mo. 270,228 S.W.2d 1
• Parties: STATE ex rel. ST. LOUIS COUNTY v. PUBLIC SERVICE COMMISSION et al. (SOUTHWESTERN BELL TELEPHONE CO., Intervenor)
• Court: Missouri Supreme Court

Page 1

228 S.W.2d 1

360 Mo. 270

STATE ex rel. ST. LOUIS COUNTY v. PUBLIC SERVICE COMMISSION et al. (SOUTHWESTERN BELL TELEPHONE CO., Intervenor).

No. 41479.

Supreme Court of Missouri, Division No. 1.

March 13, 1950.

Erwin F. Vetter, County Counselor, Clayton, attorney for appellant.

Tyre W. Burton, Frank J. Iuen, Henry McKay Cary, Public Service Commission, Jefferson City, Chas. H. Mayer, St. Joseph, John Mohler, St. Louis, of counsel, for respondents.

VAN OSDOL, Commissioner.

Appeal by St. Louis County, relator, from a judgment of the Circuit Court of Cole County upon review reversing a Report and Order of the Public Service Commission of Missouri (and remanding the cause), in which Report and Order the rates of the respondent Southwestern Bell Telephone Company were experimentally increased by the Commission in an estimated amount of additional annual revenue in excess of $3,000,000.

The Report and Order was promulgated January 18, 1949. The Chairman Osburn and Commissioner Williams concurred in the Report and Order, and Commissioner Wilson concurred in the result but did not write a concurring opinion. Commissioners McClintock and Henson dissented. The Report and Order fixed February 1, 1949, as the effective date thereof. Relator-appellant St. Louis County, the City of Kansas City and others, who had intervened in the proceedings, filed timely motions for rehearing. Thereafter, on January 31, 1949, Commissioner Wilson filed a separate finding of facts and concurring opinion. In the concurring opinion, Commissioner Wilson expressed the view a different 'valuation formula' should be used in determining the rate base than that employed by Chairman Osburn and Commissioner Williams.

On February 1st, the effective date of the Report and Order, the Commission overruled all motions for rehearing including that filed by relator-appellant, St. Louis County.

In due time thereafter, Kansas City and other cities, intervenors, and relator-appellant St. Louis County filed application for writs of review in the Circuit Court of Cole County. February 5, 1949, Kansas City filed a motion for immediate reversal or stay and suspension of the Report and Order. February 15th, the several writs of review were ordered consolidated; and February 21st the Circuit Court sustained the motion of Kansas City theretofore filed on February 5th, and the court entered a judgment reversing the Report and Order, and the cause was 'remanded to the Public Service Commission for further proceedings consistent herewith.' On February 26th relator-appellant filed its 'Motion to Reconsider Judgment Denominated a 'Motion for New Trial," which motion was overruled March 26th, and thereafter, on April 2d, relator-appellant filed its notice of appeal.

The Circuit Court's findings and judgment of February 21st recited that the original Report and Order of January 18th was a nullity because it lacked a showing that a majority of the Commission adequately concurred therein; that the Report and Order had no validity until the separate concurring opinion of Commissioner Wilson was filed January 31st; and that the Report and Order as supplemented by the separate concurring opinion was unlawful because those interested were not allowed reasonable time to file motions for rehearing directed to the Report and Order as supplemented, inasmuch as the Report and Order was effective the following day, February 1st.

Relator, appellant herein, contends the Circuit Court erroneously remanded the cause. Appellant says the Report and Order of January 18th as supplemented on January 31st should have been declared completely void in the sense that the cause was thereby terminated. Appellant does not question the Circuit Court's reversal of the Report and Order. Appellant insists the Report and Order as supplemented shows there was no concurrence upon the 'valuation formula' by which the rate base was to be determined. This, says appellant, 'is fatal to the decision,' and the proceeding has been adjudicated, leaving nothing to be done except to commence another rate hearing independent of the record of the evidence introduced in the instant proceedings.

We cannot agree with appellant's contention. We bear in mind the Circuit Court did not review the proceedings on the merits, but held that the Report and Order of January 18th was a nullity, for want of the concurrence of the majority of the Commission; and that the Report and Order, considered as supplemented by Commissioner Wilson's concurring opinion of January 31st, was unlawful because the Report and Order was supplemented so near the effective date, February 1st, as to deprive those interested of the reasonable opportunity to prepare and file motions for rehearing. The Report and Order having been held to be a nullity and unlawful for the stated...