State v. Atkinson

• Decision Date: 10 April 1917
• Docket Number: No. 19349.,19349.
• Citation: 195 S.W. 741,271 Mo. 28
• Parties: STATE ex rel. COLUMBIA TELEPHONE CO. v. ATKINSON et al., Members of Public Service Commission.
• Court: Missouri Supreme Court

195 S.W. 741

271 Mo. 28

STATE ex rel. COLUMBIA TELEPHONE CO. v. ATKINSON et al., Members of Public Service Commission.

No. 19349.

Supreme Court of Missouri, Division No. 2.

April 10, 1917.

On Motion for Rehearing, May 29, 1917.

Appeal from Circuit Court, Cole County; J. G. Slate, Judge.

Certiorari by the State, on the relation of the Columbia Telephone Company, against John M. Atkinson and others, members of the Public Service Commission, to review two actions which were consolidated and tried together. From an order of the circuit court affirming the orders of the commission in all respects, the petitioner appeals. Judgment of the circuit court reversed, and case remanded, with directions to set aside one order of the commission, and to affirm the orders of the commission in all other respects.

This proceeding was instituted on the 20th day of May, 1915, in the circuit court of Cole county, to review on certiorari the action of respondents in two cases, one of which was known as case No. 69, entitled "J. Ben Sims v. Columbia Telephone Company"; the other was known as No. 282, entitled "In the Matter of the Valuation of the Telephone Exchange Rural Lines and Long-Distance Toll Lines of the Columbia Telephone Company." These cases were consolidated and tried as one before the commission.

Case No. 69, filed before the commission, was sworn to by J. Ben Sims, and signed by 31 other residents of the city of Columbia, making complaints against the telephone company as follows:

(1) That the rates of the Columbia Telephone Company were excessive as compared with other university towns and towns of like population; (2) that where one or more boarders or roomers were in the house of a subscriber an additional charge was made; (3) that where an extension telephone was put in by the company an additional charge of 50 cents per month was made; (4) that the Telephone Company should furnish free all telephones used by the city and the public schools, which it failed to do; (5)— (a) that a charge was made for installing telephones; (b) that a charge was made to the residence in which a telephone was installed when one tenant moved out and another moved in; (6) that the telephone company refused to place telephones lower than three and a half feet from the floor for the reason that, if telephone users could sit down, they would use the telephone more than if they had to stand up.

Case No. 282, filed before the commission, was signed by 49 citizens of Columbia, requesting the Public Service Commission to investigate the Columbia Telephone plant, and place a valuation thereon, on the ground that the petitioners believed the rates charged in the city of Columbia were too high; a reduction of rates was asked. Case No. 282 will be treated as a part of complaint (1) in case 69.

After hearing the cases the commission found against the complainants in favor of the telephone company as to complaints (1), (3), (4), and (6). The commission found against the company on complaint (2), holding that the rule of the company classifying as boarding houses private residences having two or more boarders or roomers, and charging them an additional rate of 50 cents per month, was an unreasonable discrimination; the commission also found against the company on complaint (5) — (a) and (b), holding (a) that the installation charge was unreasonable. This charge was $3, which the company required to be deposited on the installation of the telephone. (b) The commission ordered the discontinuance of the charge of 50 cents for making the change where one tenant moved out and another moved in and used the same telephone.

On account of the rulings against the company in the matters mentioned, it filed its petition for review in the circuit court. The circuit court, upon hearing the case, affirmed the orders of the commission in all respects. From this order of the circuit court the petitioner telephone company appealed to this court. In addition to the rulings of the commission against the company in matters suggested on complaints (2) and (5) — (a) and (b), the company complained in its motion for rehearing before the commission, and in its petition for review, and in its motion for new trial in the circuit court, that the rulings of the commission, in its valuation of the property, were erroneous.

W. M. Williams, of Boonville, and McBaine & Clark, of Columbia (Hugh Dabbs, of Joplin, of counsel), for appellant. Alex Z. Patterson and James D. Lindsay, both of Jefferson City (N. T. Gentry, of Columbia, of counsel), for respondents.

WHITE, C. (after stating the facts as above).

I. A large volume of evidence was taken before the commission regarding the value of the company's plant, and upon the hearing that value was fixed at the sum of $182,000, "for the purpose of determining reasonable and just rates." Although the commission decided in favor of the company that the rates fixed by it for the city of Columbia were reasonable and just, and dismissed the complaint as to that, the appellant assigns as error the action of the circuit court in affirming that ruling in so far as it assessed the value of the plant, and now asks the court to review the matter of valuation, and determine, as an independent proposition, whether the value fixed was reasonable, and whether the commission took into consideration in fixing such value all the factors which should have been considered.

The complaints ruled against the company, (2) and (5), are mere matters of regulation and classification, and must be determined without regard to the value of the company's property. The only purpose of ascertaining the value, as mentioned in the complaint in No. 282, was to find out whether the rates were reasonable and to secure a reduction of rates. While the statute, authorizing the commission to ascertain the value of the property of such companies, stands by itself as a separate provision of the Public Service Commission Act, we cannot see that the commission would be required, as a mere matter of curiosity independent of any purpose it might serve, to go to the labor and expense of ascertaining the value of any such property. Such action, when taken by the commission, is for some definite purpose; usually for the purpose of fixing rates, although it might be done when the commission has before it for consideration the propriety of allowing the issuance of stocks and bonds, or of any other acts of a corporation over which the commission has supervision. The commission found the rates reasonable as fixed by the company, and this court can see no good purpose which can be served by inquiring into the facts or grounds upon which the conclusion was reached.

The company has no right to complain; the ultimate finding on the point at issue was favorable to it, although some subordinate facts were found against its contention.

II. Appellant, however, bases its right to have this matter reviewed because of an apprehension of future trouble that the value so fixed might give it. It calls attention to the language of the Public Service Commission Act (section 101, p. 635, Sess. Acts 1913):

"The findings of the commission so made and filed, when properly certified under the seal of the commission, shall be admissible in evidence in any action, proceeding or hearing before the commission or any court in which the commission, the state or any officer, department, or institution thereof, or any county, city, municipality or other body politic and the telegraph corporation or telephone corporation affected may be interested whether arising under the provisions of this act or otherwise, and such findings when so introduced shall be conclusive evidence of the facts therein stated as of the date therein stated under conditions then existing."

The very terms and provisions of section 101 make it fairly plain that there is no sufficient reason why this court should review the matter of the valuation fixed by the Public Service Commission. The more so, since no present relief whatever is sought which in any manner can be affected by such valuation. The question of the correctness of this valuation is, upon the facts before us, a mere moot question. When the timely raised question of the constitutionality of that part of section 101, and the question of its continuously conclusive effect upon valuations fixed by the commission, shall come before us as live questions in a pending case we will examine them.

III. Complaint (5) relates (a) to an installation charge of $3; (b) to an alleged removal charge of 50 cents. These charges were decided by the commission to be unreasonable. The first, (a), is called an installation fee, but appellant's counsel in their brief insist that it is not an installation fee, but is merely a cash deposit required to secure the payment of bills. If the service is continued until the end of the year, the subscriber is given credit for the amount on the last two months of the year. If service is discontinued before the end of the year, the deposit is forfeited as being in the nature of an additional charge for short-time service. It is therefore merely a pledge which the subscriber puts up to secure his payments. The company, by requiring this advance payment, secures additional working capital on which it pays no interest. Whether that is the purpose of the requirement or not, that is the effect. It disregards the principle that a pledgee is always liable to the pledgor for the profit which he receives from the thing pledged. Houton v. Holliday, 6 N. C. 111, 5 Am. Dec. 522; Gilson v. Martin, 49 Vt. 474; Hunsaker v. Sturgis, 29 Cal. 143; Geron v. Geron, 15 Ala. 558, 50 Am. Dec. 143. In giving credit for this amount at the end of the year, it seems that the regulation does not add interest to the amount so credited and used by the company for the year.

The commission in passing upon this complaint held that the company had a right to adopt reasonable...