State ex rel. St. Louis-San Francisco R. Co. v. Public Service Commission

• Decision Date: 03 February 1969
• Docket Number: LOUIS-SAN,No. 24940,24940
• Citation: 439 S.W.2d 556
• Parties: STATE ex rel. ST.FRANCISCO RAILWAY CO., Appellant, v. PUBLIC SERVICE COMMISSION of Missouri et al., Respondents.
• Court: Missouri Court of Appeals

Page 556

439 S.W.2d 556

STATE ex rel. ST. LOUIS-SAN FRANCISCO RAILWAY CO., Appellant, v. PUBLIC SERVICE COMMISSION of Missouri et al., Respondents.

No. 24940.

Kansas City Court of Appeals, Missouri.

Feb. 3, 1969.

Rehearing Denied April 7,1969.

Ernest D. Grinnell, Jr. and W. Bruce Kopper, St. Louis, for appellant.

Hendren & Andrae by John H. Hendren, Jefferson City, for respondent Missouri Pac. Truck Lines, Inc.

HOWARD, Presiding Judge.

This is an appeal from a judgment of the Circuit Court of Cole County, Missouri, affirming an order of the Missouri Public Service Commission granting a Certificate of Public Convenience and Necessity to Missouri Pacific Truck Lines, Inc., hereinafter called Mo Pac, (formerly Missouri Pacific Freight Transport Company), a wholly owned subsidiary of the Missouri Pacific Railroad Company. The certificate granted by the Commission (as amended on motion for rehearing) is as follows:

'* * * to operate as a common carrier by motor vehicle as follows:

COMMON CARRIER, INTRASTATE, SPECIALIZED IRREGULAR ROUTE AUTHORITY:

Between all points and places in Washington, Crawford, St. Francois, Madison, Bollinger, Iron, Reynolds, Shannon, Dent, Phelps, Wayne, Carter, Butler, Howell and Oregon Counties, Missouri, in the specialized transportation of commodities, the transportation of which because of size or weight requires the use of special equipment, and related machinery parts and related materials and supplies when their transportation is incidental to and in conjunction with the transportation of commodities, the transportation of which because of size or weight requires the use of special equipment, when such commodities are used in prospecting, development, construction, maintenance and operations of mines, mills and smelters; also in the transportation of ores, concentrates and by-products thereof between all points and places in the above named counties.

RESTRICTION: No authority is granted in the transportation of commodities, the transportation of which because of size or weight requires the use of special equipment, between any point outside the above mentioned counties and points served by the St. Louis-San Francisco Railway Company located in the above mentioned counties either in single-line service or in joint-line service with other truck or rail carriers.

Such service to be authorized irrespective of the location of such points on the route of a regular route common carrier or between points on the route of two or more regular route common carriers where through or joint service has been authorized or established between such regular route common carriers.'

It is to be noted that this authority consists of two distinct types of transportation, one is the specialized transportation of commodities, the transportation of which because of size or weight requires the use of specialized equipment (together with related machinery parts and material and supplies transported incidentally to the main item to be transported) which is commonly referred to as 'heavy hauler' authority. The other is the transportation of 'ores, concentrates and by-products thereof.' This is an irregular route authority to, from and between all points in the fifteen counties named in the authority. The heavy hauler authority is limited to the transportation of commodities used in prospecting, development, construction, maintenance and operations of mines, mills and smelters within the area. Thus, we are dealing with a very limited authority.

The application for this authority was protested by the St. Louis-San Francisco Railway Company (hereinafter called Frisco) and by Dodds Truck Line, Inc., Main Line Hauling Co., Inc., Basin Truck Lines, Inc., Adams Trucking Company, J. J. Tune (a truck line), Truck Transport, Inc., and by some authorized heavy haulers who withdrew their protest before the hearing on the application was held. It appears that there were some 80-odd individuals who held dump truck authority in the area. None of these protested and none of them took advantage of the special provision in the Public Service Commission Report and Order allowing them to reopen the record before the effective date of the order. Of the protestants above enumerated only the Frisco, Dodds Truck Lines and J. J. Tune presented evidence, consisting of one witness for each such protestant. The other protestants participated in the hearing by attorney but did not produce any evidence. The evidence shows that in this 15-county area, there are large deposits of minerals and that there is presently considerable activity in prospecting for, locating and constructing mines, mills and smelters and related enterprises. There is some rail service in each of these 15 counties with the exception of Reynolds County which lies in the center. The protestant Frisco was, before and at the time of the hearing, constructing a new 30-mile rail line to Viburnum, Bixby and Buick in the northwestern part of Iron County, Missouri. The Frisco is the only protestant that has appealed from the order of the Commission.

At the time of the hearing, the evidence showed that there was being constructed or had recently been completed the mine, mill and smelter complexes at Viburnum, Bixby and Buick in Iron County, and mines and mills at Fletcher and Ellington in Reynolds County. A smelter was being constructed at Glover and what was referred to as the new Hanna mine at Pilot Knob, both in Iron County. Mention was also made of the Higdon mine and mill. This was referred to as being in the northwest corner of Bollinger County or the northeast corner of Madison County. However, later testimony indicated that at least a part, and perhaps all, of this installation was in Perry County which is outside the area covered by the certificate in question. In addition, a large mine at Pea Ridge in the northern part of Washington County had recently come into being. This last mine is served by a railroad spur of the Missouri Pacific Railroad Company. The evidence showed that there was additional prospecting going on generally in this area and there were various mineral deposits throughout the area. The testimony as to prospecting was of a very general nature because it appears that this information is highly confidential and that all of those involved desire to keep their activities secret from their competitors.

In its application Mo Pac sought authority to transport any and all commodities used in prospecting for minerals and the development, construction, maintenance and operation of mines, mills and smelters and all buildings and furnishings therein and appurtenances thereto, whether or not such transportation required specialized equipment. In addition, it sought authority to transport ores, concentrates and all by-products and finished products thereof. As heretofore pointed out, the authority granted is limited to heavy hauling and to ores, concentrates and by-products. The evidence adduced by Mo Pac concentrated on its ability to provide special equipment needed in connection with the heavy hauler authority actually granted and the hauling of concentrates from mill to smelter by large specialized dump tractor-trailer units. There was evidence from many construction contractors and suppliers of heavy equipment that they had need for heavy hauler transportation to transport the equipment used in clearing...