State v. Public Service Commission

• Decision Date: 06 June 1939
• Docket Number: No. 25020.,25020.
• Citation: 129 S.W.2d 69
• Parties: STATE ex rel. POTASHNICK TRUCK SERVICE, Inc., v. PUBLIC SERVICE COMMISSION.
• Court: Missouri Court of Appeals

129 S.W.2d 69

STATE ex rel. POTASHNICK TRUCK SERVICE, Inc., v. PUBLIC SERVICE COMMISSION.

No. 25020.

St. Louis Court of Appeals. Missouri.

June 6, 1939.

Appeal from Circuit Court, Cape Girardeau County; Frank Kelly, Judge.

"Not to be published in State Reports."

Certiorari proceeding by the State of Missouri, at the relation of the Potashnick Truck Service, Incorporated, against the Public Service Commission of the State of Missouri to review an order of the Commission denying an application for a certificate of convenience and necessity. From a judgment affirming the order of the Commission, the relator appeals.

Affirmed.

D. D. McDonald, of Jefferson City, and Roger A. Bailey, of Sikeston, for appellant.

James H. Linton, Gen. Counsel, and Daniel C. Rogers, Asst. Counsel, both of Jefferson City, for respondent.

BENNICK, Commissioner.

This is an appeal by Potashnick Truck Service, Inc., a motor carrier of freight, from the judgment of the Circuit Court of Cape Girardeau County affirming an order and decision of the Public Service Commission denying to appellant its application for a certificate of convenience and necessity whereby it might be authorized to operate as a common carrier over regular routes extending between the City of Cape Girardeau and the following one hundred twenty-seven towns and villages situated generally in southeast Missouri:

Aid, Alfalfa, Arab, Ardeola, Arnold, Ash Hill, Austinville, Bakerville, Barnhart, Beck, Belmont, Bessville, Biehle, Bismarck, Blomeyer, Boekerton, Bonne Terre, Buck Donic, Bufordville, Cantwell, Carlston, Chaonia, Coldwater, Como, Concord, Cotton Plant, Daisy, Danby, Delta, Denton, Desloge, De Soto, Deventer, Dimmitville, Dixie Park, Dongola, Doniphan, Dorena, Dudley, Egypt Mills, Ellisville, Elvins, Europa, Fagus, Farmington, Fisk, Flat River, Fords Store, Fredericktown, Freidheim, Fuget, Gatey's Corner, Gordonville, Grassy, Gravel Hill, Greenbrier, Greenville, Halifax, Harviel, Haywood, Henderson Mound, Herculaneum, Hermondale, Hilderbrand, Imperial, Johnson Mill, Kimmswick, Kinder, Kinzer, Leadwood, Leadington, Leopold, Leora, Lewistown, Libertyville, Lowndes, Luxemberg, McGee, Manley, Marquand, Mattesse, Mayfield, Mehlville, Mine La Motte, Mingo, Mill Creek, Naylor, New Survey, Nyssa, Oak Ridge, Octa, Oriole, Ozora, Painton, Patton, Peach Orchard, Pevely, Poplar Bluff, Puxico, Pyleton, Rafton, Randol, Red Onion, Ristine, St. Francois, Sand Ridge, Sauk, Sargent, Scopus, Schrum, Sedgewickville, Seneca, Silva, Smith's Landing, Stein Corner, Stewart, Sturdivant, Taskee, Tilsit, Uniontown, Valles Mines, Vincent's Store, Wappapello, Whiting, Williamsville, Zalma, and Zeta.

It appears that prior to the time of the making of the application in question there had been issued to appellant a certificate of convenience and necessity by which it was authorized to operate as a motor carrier over four regular routes which traversed many of the principal highways and served many of the larger towns and cities in southeast Missouri in the territory lying between the City of St. Louis and the Arkansas line. In addition it was shown that appellant owned a controlling interest in the Bryant Truck Lines, the Dexter Daily Truck Service, Inc., and the F. & F. Transportation Company, three motor carriers operating southwardly from St. Louis through the same general territory as was served by appellant, and that one E. N. Potashnick, the general manager of appellant company, was likewise the general manager of the three subsidiary companies.

On February 27, 1937, appellant filed with the Commission its application wherein it sought authority to extend its operations by establishing regular routes for the purpose of serving as a common carrier of freight between Cape Girardeau and the points heretofore enumerated, representing in its application that it was then operating intrastate over the major part of the routes sought; that it could add the proposed service without undue expense to itself; that shippers in Cape Girardeau did not then have regular scheduled motor carrier service to the towns and cities which appellant was seeking to serve; that the granting to appellant of the certificate of convenience and necessity prayed for would be beneficial to the shippers of Cape Girardeau in developing their trade territory; and that regular service such as appellant proposed to establish would be superior to the irregular route service which the territory then enjoyed.

Upon the filing of such application the Commission caused due and proper notice to be served upon the common carriers then operating in the territory proposed to be served by appellant, which common carriers so operating consisted of four railroad companies and of at least eighteen motor carriers holding certificates of convenience and necessity by which they were permitted to serve as irregular route carriers between different points throughout the territory.

The case was set down for a hearing before the Commission in Cape Girardeau on May 18, 1937, at which time two of the interested railroad companies, the Missouri Pacific Railroad Company and the St. Louis-San Francisco Railway Company, appeared as protestants along with eleven of the motor carriers engaged in operations throughout the territory. The two railroad companies that for some reason did not appear in protest were the Missouri-Illinois Railroad Company and the St. Louis Southwestern Railway Company.

The testimony in appellant's case was given by three of its officers and employees, who explained in some detail the proposed additional service and urged its convenience and necessity to the public to be served, and by four business men from Cape Girardeau, whose companies, as appeared from the cross-examination of the witnesses, either sold commodities to or rendered services for appellant, and therefore stood in reasonable expectation of securing a substantial increase in their business dealings with appellant in the event that its operations out of Cape Girardeau should be increased in line with its proposed extension of service.

Save for the four witnesses from Cape Girardeau, no person appeared on behalf of the appellant from any of the points to be affected by the proposed service, while in the case of the protestants, not only did they themselves strenuously oppose the application by referring the Commission to the existing services being rendered by them under authority previously granted by the Commission, but, in addition, some eight citizens appeared from diverse points in the territory, who testified in general to the satisfactory service then being rendered their communities by the motor carriers already authorized to operate throughout the area.

At the conclusion of the hearing the Commission took the case under advisement, and thereafter issued its order and decision denying to appellant the authority which it sought.

Prior to the effective date of the order appellant filed its application for a rehearing, and, upon the same being overruled, it filed in the Circuit Court of Cape Girardeau County its petition for a writ of certiorari or review of the order to the end that the court might inquire into and determine the reasonableness and lawfulness of the same. The writ was thereafter issued by the court; return was made by the Commission in obedience thereto; and following the submission of the case upon the evidence and exhibits introduced before the Commission and certified to by it, the court entered its judgment affirming the order under review. Appellant thereupon prayed for and was allowed an appeal to this court, wherein the appeal has been perfected in accordance with the procedure that the law provides.

By Section 5268(a), as enacted Laws 1931, p. 307, Mo.St.Ann. § 5268(a), p. 6684 it is declared to be unlawful for any motor carrier to operate or furnish service as a common...