State ex rel. v. Public Service Commission
| Decision Date | 06 December 1937 |
| Docket Number | No. 18684.,18684. |
| Citation | 111 S.W.2d 222 |
| Court | Missouri Court of Appeals |
| Parties | STATE OF MISSOURI EX REL. NORMAN B. PITCAIRN AND FRANK C. NICODEMUS, RECEIVERS OF WABASH RY. CO., APPELLANTS, v. PUBLIC SERVICE COMMISSION OF MISSOURI, RESPONDENT. |
Appeal from Circuit Court of Cole County. — Hon. Nike G. Sevier, Judge.
AFFIRMED.
Home Hall, R.W. Hedrick, J.H. Miller, N.S. Brown and Frank E. Atwood for appellants.
Jame P. Boyd and Daniel C. Rogers for respondent.
This is an appeal by the receivers of the Wabash Railway Company from the judgment of the circuit court of Cole county affirming the report and the order of the Public Service Commission in a case entitled, "In the Matter of the Application of Blue Motor Transit Lines, Inc., a Corporation, for a Certificate of Public Convenience and Necessity to extend its present route from Excelsior Springs, Missouri, to Kansas City, Missouri, over Missouri Highway No. 10 and U.S. Highway No. 69 and to operate over such extension as an intrastate motorbus carrier."
The Blue Motor Transit Lines, Inc., prior to April 20, 1932, was the holder of Certificate of Convenience and Necessity No. 4, operating as a motorbus carrier in Missouri between Moberly and Excelsior Springs, Missouri, over and along State Route No. 10 and United States Highway No. 24, and the holder of a permit authorizing interstate operation between Quincy. Illinois, and Kansas City, Kansas. On April 20, 1932, it filed an application with the Public Service Commission asking for a Certificate of Convenience and Necessity for the extension of its present route from Excelsior Springs, Missouri, to Kansas City, Missouri. It appears that such application was resisted by the receivers of the Wabash Railway Company; the Chicago, Rock Island & Pacific Railway Company; the Chicago, Milwaukee, St. Paul & Pacific Railway Company; the Kansas City, Clay County & St. Joseph Railway Company; the Kansas City, Clay County Auto Transit Company — other carriers in the territory, either along the line of the applicant's original route or along the line of the extension who, upon being notified of the application, appeared and protested the same.
At a hearing the commission had on May 5, 1932, at Jefferson City, Missouri, evidence was heard both for the applicant and for the protestants. Upon such hearing, the commission made an order denying the applicant the route extension prayed for. The case was reopened by the commission for further hearing on December 1, 1932, on its own motion; and the hearing was set for March 13, 1933, at Jefferson City, Missouri. At such second hearing, additional evidence was introduced by both the applicant and the protestants; and on April 1, 1933, the commission issued its report and order granting the route extension to the applicant without the right to carry passengers originating at Excelsior Springs and intermediate points into Kansas City or passengers originating at Kansas City, Missouri, and intermediate points into Excelsior Springs, the effective date of which order was extended from time to time until April 15, 1933. On April 12, 1933, the protestants the receivers of the Wabash Railway Company filed with the commission their petition for rehearing. On April 17, 1933, the commission made an order denying the petition for rehearing.
Such receivers of the Wabash Railway Company, thereupon, on May 16, 1933, filed their petition in the circuit court of Cole county, Missouri, for writ of review. On the hearing of such petition, the circuit court of Cole county, at its February term, 1934, affirmed the report and order of the commission. From such judgment of the circuit court the receivers appealed.
The appeal was granted to the Supreme Court. That court, upon an examination of the record, found that none of the constitutional grounds invoking its appellate jurisdiction affirmatively appeared therein and ordered the case transferred to this court.
Upon such case reaching this court, this court held that it had no jurisdiction of such class of cases and dismissed the appeal at its October term, 1936. Thereafter, the receivers of the Wabash Railway Company made application to the Supreme Court for its alternative writ of mandamus against the judges of this court requiring that the judgment of this court dismissing the appeal be set aside and the cause be reinstated on the docket and heard and determined, which writ was by the Supreme Court granted and thereafter was made permanent.
In compliance with such writ, this court and the judges thereof, at its March term, 1937, set aside its said judgment dismissing said appeal and reinstated the cause on the docket; and it has been heard at the present term of this court; and this opinion follows on such hearing.
It follows that all the points made and the exhaustive research shown by both the appellants and the respondent in their respective briefs touching the appellate jurisdiction of this court in this case amount to but "Love's Labor's Lost" and are of no avail. Any question of its appellate jurisdiction in this case is concluded by the action of the Supreme Court in certifying it to this court and granting its writ of mandamus and ordering us to proceed with and to hear and determine it. That this court has jurisdiction must be taken as settled. Nothing further need be said as to such points.
It appears from the record that, prior to February, 1932, the route now operated by the applicant between Moberly and Excelsior Springs had been operated by one William R. Manley. In February, 1932, Manley sold the line to the applicant. Upon such purchase, the applicant filed this application with the Public Service Commission for the proposed extension of the route. At the hearing on May 5, 1932, the applicant asked and obtained leave to amend its application so as to eliminate therefrom request for authority to transport passengers locally originating at Excelsior Springs and intervening points to Kansas City and originating at Kansas City and intervening points to Excelsior Springs.
The applicant is a Delaware corporation, licensed to do business in Missouri, with an authorized capital stock of $50,000, $10,000 of which has been paid up in cash and equipment. At the time of the filing of the application, the route in question from Moberly west paralleled the line of the Wabash Railway Company as far as Hardin, Missouri. At the time of the hearing on May 5, 1932, the Kansas City, Clay County & St. Joseph Railway Company was operating an interurban line between Excelsior Springs and Kansas City; and the Kansas City, Clay County Auto Transit Company, a subsidiary of the electric line, was operating busses between Excelsior Springs and Kansas City. During the time that Manley operated the line between Moberly and Excelsior Springs, through tickets were sold over his line and the interurban to Kansas City under a traffic arrangement between him and the interurban; and schedules and connections were maintained by his line and the interurban at Excelsior Springs. Passengers from all points east of Excelsior Springs destined for Kansas City, Missouri, who took the Manley line were required to transfer at Excelsior Springs and to take the interurban into Kansas City. Manley had been operating at a loss at the time that he sold; and the applicant, after acquiring the line, operated at a loss. At the time of filing the application herein and at the time of the original hearing, it appears that the territory served by the applicant by its existing route and also the territory to be served by its proposed route as extended were (in addition to the Kansas City, Clay County & St. Joseph Railway Company and the Kansas City, Clay County Auto Transit Company) served in part by five railroads — the Wabash Railway Company; the Chicago, Rock Island & Pacific Railway Company; the Chicago, Milwaukee, St. Paul & Pacific Railway Company; the Chicago, Burlington & Quincy Railroad Company; and the Atchison, Topeka & Santa Fe, some of which were protestants before the commission.
The commission on the first hearing denied the application. One of the principal grounds assigned by it for such denial was the damaging effect which the extension might have upon the operations of the Kansas City, Clay County & St. Joseph Railway Company which operated an electric line from Excelsior Springs to Kansas City. It was considered that the condition of that line was such that the loss from transferred passengers at Excelsior Springs would injure it.
The evidence shows that the operation of the applicant's line under the order made will not compete with the service of the Chicago, Burlington & Quincy Railroad Company between Kansas City and Liberty or with the operation of the Kansas City, Clay County Auto Transit Company or with the Chicago, Rock Island & Pacific Railway Company or with the Chicago, Milwaukee, St. Panl & Pacific Railway Company.
At the second hearing, the evidence shows that the applicant had, just prior to the hearing, temporarily ceased operating its original route by reason of its busses having been attached by creditors; but there is also evidence to show that arrangements had been made to finance and resume operation if the extension asked for should be granted. At the second hearing, the evidence shows that the Kansas City, Clay County & St. Joseph Railway Company had secured from the commission authority to abandon and had abandoned operation and that the transfer service formerly afforded by it to passengers from east of Excelsior Springs over the applicant's line destined for Kansas City had been discontinued.
Other evidence will be noted in the progress of the opinion.
At the second hearing, appearances were made by the applicant and by the receivers of the Wabash Railway Company; the Kansas City, Clay County & St. Joseph Railway Company; and the Kansas City, Clay County Auto Transit Company.
Upon the second hearing,...
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