Straube v. Bowling Green Gas Co., 41307

• Decision Date: 13 February 1950
• Docket Number: No. 41307,No. 1,41307,1
• Citation: 227 S.W.2d 666,360 Mo. 132
• Parties: , 18 A.L.R.2d 1335 STRAUBE et al. v. BOWLING GREEN GAS CO
• Court: Missouri Supreme Court

Page 666

227 S.W.2d 666

360 Mo. 132, 18 A.L.R.2d 1335

STRAUBE et al. v. BOWLING GREEN GAS CO.

No. 41307.

Supreme Court of Missouri, Division No. 1.

Feb. 13, 1950.

Motion for Rehearing or to Transfer to Court en Banc Denied

March 13, 1950.

Long & McIlroy, Bowling Green, Rendlen, White & Rendlen, Hannibal, for appellants, William L. Hungate, Troy, of counsel.

John H. Haley, James D. Clemens, Bowling Green, for respondent.

DALTON, Judge.

Action in equity by which plaintiffs seek to determine the ownership of and recover an interest in certain funds received by the defendant. The trial court sustained a motion to dismiss and plaintiffs have appealed.

Respondent is a distributor of natural gas within the City of Bowling Green, Missouri. Appellants are some of respondent's customers and the users of natural gas in said city. As representatives of such class, appellants have instituted this action for themselves and for all others similarly situated to compel respondent to pay to its customers their alleged respective proportional interest in two mentioned funds. One fund is the amount received by respondent from the registry of the United States Circuit Court of Appeals of the Eighth Circuit upon the affirmance of a rate reduction order of the Federal Power Commission and the other is the alleged excess amount collected by respondent from its customers after the rate reduction order was in effect as to respondent's purchases of gas and before a new rate had been established to respondent's customers. Appellants asked a 'decree and judgment permanently restraining and enjoining defendant from directly or indirectly claiming or asserting any rights to either of said funds,' determining defendant's indebtedness to plaintiffs 'and ordering and directing defendant to deliver and pay over to plaintiffs and the persons comprising the class which plaintiffs represent, the several amounts so found to be due each.'

Respondent at all times collected for gas sold to its customers at a rate established and approved by the Public Service Commission of Missouri, but during the period in question respondent had been buying gas from the Panhandle Eastern Pipe Line Company, a corporation, and paying therefor at a fixed rate undiminished by the rate reduction order of the Federal Power Commission. The excess so collected above the new rate was deposited by the Pipe Line Company in the registry of the Federal Court pending the disposition of that litigation. At the close of the litigation, the rate reduction order of the Federal Power Commission was affirmed and a refund was made to respondent of the total excess amount which had been collected by the Panhandle Eastern Pipe Line Company from respondent.

Appellants alleged 'that under an appropriate order of said Unites States Circuit Court of Appeals for the Eighth Circuit, the defendant was permitted to drawn down the sum of Twenty-three Thousand Five Hundred Twenty-nine and 1/100 Dollars ($23,529.01) which was the amount allocated to defendant for the impoundment period October, 1942, through September, 1945, after filing a due and proper undertaking by the terms of which defendant was to pay to the ultimate consumers, being defendant's customers, including plaintiffs, any amounts which a court of competent jurisdiction might determine to be due.' Appellants' claim to this fund is based on the theory that the reduction in the cost of gas to respondent should be passed on to respondent's customers, the ultimate consumers of the gas.

The petition is in two counts and concerns the two funds, one in the sum of $23,529.01, mentioned supra, and the other in the sum of $536.34, which, as stated, represents the alleged excess collected by respondent from its customers for gas at the established rate, after the refund and reduction order were in effect and before respondent, with the approval of the Public Service Commission of Missouri, reduced its rate to its customers. The subsequent rate reduction by respondent to its customers was based upon the fact that respondent was then purchasing gas from the Pipe Line Company at the reduced rate. Appellants further alleged that respondent was under the regulation and control of the Public Service Commission of Missouri and 'earned not less than the maximum return upon the investment as allowed and fixed by the Public Service Commission of Missouri, not including the amount impounded by the U. S. Circuit Court of Appeals for the Eighth Circuit.' Appellants contend that respondent's retention of the funds mentioned constitutes an unjust enrichment of respondent at the expense of its customers and that the customers are entitled to their respective proportional interest in the funds. The trial court sustained a motion to dismiss the petition and assigned as grounds therefor that the court was 'without jurisdiction to determine reasonable rates or to order repayment of moneys received in accordance with rates fixed by the Public Service Commission of Missouri.'

The petition appears to confuse matters within the jurisdiction of the Public Service Commission of Missouri under Article 4, Chapter 35, Sec. 5644 et seq., R.S.1939, Mo.R.S.A., with matters within the jurisdiction of the circuit court, because appellants not only prayed the court to determine the respective interests of the appellants as a class and as individuals in and to the respective funds, but also prayed for an order requiring respondent to produce its books, records and accounts so that the interest of the appellants and of all of the others in the class with appellants in the fund could be established and determined and so that the investment and the earnings of respondent could be determined. We think the record requires a decision as to whether or not appellants stated a claim upon which relief could be granted for the determination of property rights and for relief in equity, matters within the jurisdiction of the circuit court.

Appellants say that the action is 'purely and simply a matter of unjust enrichment'; that it 'does not involve reasonableness of rate nor return of any money collected under the rate by respondent from its own funds'; that 'the rate had long since been charged and collected in full by respondent'; and that 'at the outset the rate for the respondent was fixed by the Public Service Commission in the regular statutory manner.' There is no contention that respondent at any time collected any amount in excess of the rate filed with and approved by the Public Service Commission of Missouri. The pleadings admit that, during the entire period in question, respondent charged, and appellants paid for the natural gas used by them, no more and no less than that provided by the rate schedules so filed and approved. Appellants do not complain of these rate schedules nor seek a modification thereof, but appellants contend that, if respondent retains the two funds mentioned it will receive a sum in excess of the maximum return upon which the rate was based. The question presented concerns only the property rights, if any of the appellants and the other customers of respondent in the particular funds described in the petition. Jurisdiction to determine these rights was vested in the circuit court. Art. 5, Secs. 1, 14, Const.Mo.1945, Mo.R.S.A. The Public Service Commission of Missouri has no jurisdiction of such a controversy.

'The Public Service Commission is an administrative body only, and not a court, and hence the commission has no power to exercise or perform a judicial function, or to promulgate an order requiring a pecuniary reparation or refund.' State ex rel. Laundry, Inc., v. Public Service Commission, 327 Mo. 93, 34 S.W.2d 37, 46; May Dept. Stores Co. v. Union Electric Light & Power Co., 341 Mo. 299, 107 S.W.2d 41, 57; State ex rel. Rutledge v. Public Service Commission, 316 Mo. 233, 289 S.W. 785, 787. 'The commission 'has no power to declare or enforce any principle of law or equity' * * * and as a result it cannot determine damages or award pecuniary relief.' American Petroleum Exchange v. Public Service Commission, Mo.Sup., 172 S.W.2d 952, 955.

While the circuit court dismissed for want of jurisdiction, the judgment of dismissal is presented for review on this appeal and we may reverse or affirm or give such judgment as such court ought to have given. Sec. 140(c) of the General Code for Civil Procedure, Laws 1943, p. 395, Mo.R.S.A. Sec. 847.140(c) provides: 'The appellate court shall examine the transcript on appeal and, subject to the provision of subsections (a) and (b) of this section, award a new trial or partial new trial, reverse or affirm the judgment or order of the trial court, or give such judgment as such court ought to have given, as to the appellate court shall seem agreeable to law. Unless justice requires otherwise the court shall dispose finally of the case on appeal and no new trial shall be ordered as to issues in which no error appears.'

Appellants' theory of unjust enrichment is based on the facts stated, to wit, that respondent was paying a fixed rate for gas purchased from the Panhandle Eastern Pipe Line Company and was selling the gas to its customers at a rate fixed and approved by the Public Service Commission of Missouri; that the cost of gas to respondent was taken into consideration by the Public Service Commission of Missouri in fixing the reasonable rate at which respondent should sell gas to its customers; that respondent was prohibited by law from collecting or receiving any money in excess of the established rate, Sec. 5645, R.S.1939, Mo.R.S.A.; that, if respondent charged its customers any sum in excess of the established rate, the customers could recover it (May Dept. Stores Co. v. Union Electric Light & Power Co., supra); that respondent had charged and collected from its customers the maximum rate fixed by the Public Service Commission; that, thereafter, respondent received the rate reduction in...