The State ex rel. Campbell Iron Co. v. Public Service Commission of Missouri

• Decision Date: 27 June 1927
• Docket Number: 27845
• Parties: The State ex rel. Campbell Iron Company et al. v. Public Service Commission of Missouri
• Court: Missouri Supreme Court

296 S.W. 998

317 Mo. 724

The State ex rel. Campbell Iron Company et al. v. Public Service Commission of Missouri

No. 27845

Supreme Court of Missouri

June 27, 1927

Motion for Rehearing Overruled July 11, 1927.

Writ quashed.

Frank Y. Gladney for relators; Jos. R. Markham of counsel.

(1) The Public Service Commission is a statutory agency and all its powers are derived from the statute. Any and all orders unauthorized by the statute are void. Sec. 10434, R. S. 1919; State ex rel. Telephone Co. v. Public Service Commission, 233 S.W. 428; State ex rel. Terminal Co v. Public Service Commission, 272 S.W. 960. (2) The two extension orders are void, for that each of them was made in a proceeding over which the Commission had no jurisdiction by reason of the appeal pending in this court. Sec. 10525, R. S 1919; Donnell v. Wright, 199 Mo. 304; Exchange Bank v. Allen, 68 Mo. 474; Burgess v O'Donoghue, 90 Mo. 299; State ex rel. Patton v Gates, 143 Mo. 63; State ex rel. v. Guinotte, 156 Mo. 513; Ryans v. Boogher, 169 Mo. 685; Rodney v. Gibbs, 184 Mo. 11; In re Grading Bledsoe Hill, 222 Mo. 604; Reed v. Bright, 232 Mo. 399. (3) The two extension orders are void for the reason that each of them is made to take effect "from and after" the date of entry, which necessarily denies and precludes the right of review in court, in violation of the statute, and of the requirements of due process of law. Secs. 10521, 10522, R. S. 1919; State ex rel. Rhodes v. Public Service Commissions, 194 S.W. 296; State ex rel. v. Public Service Commission, 191 S.W. 414; State v. Guerringer, 178 S.W. 65; Roller v. Holly, 176 U.S. 398.

D. D. McDonald and J. P. Painter for Public Service Commission; J. W. Jamison, E. W. Clausen and E. J. Bean for Southwestern Bell Telephone Company.

(1) The Public Service Commission has a right to enter a trial order and at the end of this trial period either extend the rates or make such modification of the rates as the facts developed may warrant. State ex rel. Washington University v. Public Service Comm., 308 Mo. 347; State ex rel. v. Public Service Comm., 269 Mo. 525; State ex rel. Case v. Public Service Comm., 298 Mo. 333; Bush Elec. Co. v. City of Galveston, 262 U.S. 443. (2) The order authorizing the Telephone Company to make increased charges for exchange service was in nowise suspended by the writ of review prosecuted therefrom by the city of St. Louis. Section 10523, Revised Statutes 1919, provides that "pendency of a writ of review shall not of itself stay or suspend the operation of the order or decision of the Commission," etc. (a) The Public Service Commission in making rates was in the exercise of administrative or legislative power and not in the use of judicial power. Missouri Southern Ry. Co. v. P. S. C., 279 Mo. 484; Lusk v. Atkinson, 268 Mo. 109; State v. Public Service Comm., 270 Mo. 574. (b) The exercise of the judicial power began with the review proceedings prosecuted by the city of St. Louis in the circuit court. City of Macon v. Public Service Comm., 266 Mo. 490; State ex rel. v. Wilmington W.R. Co., 29 S.E. 336. (c) An appeal from the circuit court without supersedeas did not stay the judgment appealed from or stay the order of the Commission, which since its rendition has been in full force and effect. Sec. 10523, R. S. 1919; Rodney v. Gibbs, 184 Mo. 14; Bobb v. Taylor, 193 S.W. 800; Vantine v. Butler, 250 Mo. 450. (3) The supplemental extension orders of which complaint is here made, and the original order fixing rates for a test period of thirteen months, are all a part of the same proceeding. A similar provision was approved by the court in the case of State ex rel. Case v. Public Service Commission, 298 Mo. 333. Said extension orders were made in response to motions duly filed by the Telephone Company and heard by the Commission, and the effect of such orders was to continue the case for further hearing, and in the meantime to preserve the status as to rates the same as fixed in the original order and pursuant to reservations of jurisdiction for such purposes as were made therein. Said extension orders were within the power of the Commission, are regular upon their face and not subject to attack as here made by relators. (4) It appears that the rates charged for telephone service prior to July 1, 1925, have been adjudged unreasonable and confiscatory, and the rates now charged have been adjudged reasonable and just, and any order to re-establish the rates in force prior to July 1, 1925, is and would be illegal and void as in contravention of the Constitution of Missouri and the Fifth and Fourteenth Amendments to the Constitution of the United States. Hackworth v. Mo. S. Ry. Co., 227 S.W. 1032; Hutchinson v. Tel. Co., 200 P. 301.

OPINION

Gantt, J.

Relators state the case as follows:

"This case is an original proceeding in this court. Relators applied for a writ of certiorari addressed to the Public Service Commission. The application of the writ was filed last December. The court issued the writ February 15 1927. Respondent made its return thereto March 15, 1927. On March 23, 1927, relators filed a motion for judgment on the pleadings.

"The case is to be considered, therefore, on the record made up of the relators' application and the return; as the return does not deny any of the allegations of the application, those allegations are to be taken as true.

"The object of the proceeding is to have the court review and quash the record of two orders made by the Commission affecting telephone rates in the city of St. Louis. These orders were entered, respectively, on July 23, 1926, and October 29, 1926, and for the sake of convenience in identifying them are referred to in this discussion and argument as First Extension Order and Second Extension Order. The facts and circumstances under which they were issued may be shortly stated.

"In November, 1924, there was pending before the Public Service Commission a proceeding entitled as follows: 'In the Matter of the Application of the Kinloch Long Distance Telephone Company of Missouri, Kinloch Telephone Company, The Suburban Telephone Company, Sedalia Home Telephone Company, and Kinloch Building Company to sell all their property, assets and rights of every nature and description to the Southwestern Bell Telephone Company; and the Application of the Southwestern Bell Telephone Company for permission to purchase the same; Case No. 3270.'

"On November 15, 1924, The Telephone Company filed with the Commission in that proceeding a paper entitled, 'Supplemental Petition of the Southwestern Bell Telephone Company,' by which the Telephone Company prayed the Commission to abrogate the then existing rates for telephone service at the exchange of the Telephone Company in the city of St. Louis. In said petition the Telephone Company set out the existing rates and alongside therewith the increased or proposed rates which it prayed the Commission to authorize and sanction.

"The city of St. Louis by leave intervened and filed a written opposition to the increase.

"On the issue thus made the Commission instituted an inquiry, heard evidence of the contending parties, investigated the facts by its own employees and experts, set the whole matter down for a final hearing, and thereafter, on June 6, 1925, entered the following order:

"'This cause being at issue upon application and answer filed herein, and having been duly heard and submitted by the parties, and such investigation of matters and things involved having been had and the Commission on the date hereof having filed its report containing its findings of fact and conclusions thereon, which said report is made a part hereof;

"'Now, upon the evidence in this case, and after due deliberation, it is:

"Ordered: 1. That the Commission finds that the Southwestern Bell Telephone Company's proposed schedule of rates in its St. Louis exchange are just and reasonable and should be permitted to become effective, beginning July 1, 1925, for a trial period of thirteen months.

"'Ordered: 2. That any and all increases of telephone rates provided for in said schedule referred to and authorized herein shall, at the end of said thirteen months' period, cease and expire, without further notice or order; and the rates and charges of said Southwestern Bell Telephone Company for furnishing telephone service in said St. Louis exchange shall then be reduced and restored by said company to the rates now on file and charged by it for such service: Provided, however, that the Commission may hereafter by further order continue in effect such increases in rates and charges for another and further period, or otherwise change or modify such rates and charges.

"'Ordered: 3. That said Southwestern Bell Telephone Company be required to keep full and accurate account of the revenues and expenses of operating its exchange at St. Louis, and file a full and complete report thereof with this Commission, on or before July 31, 1926, for the year ended June 30, 1926; that said report shall be in addition to any other reports now required by law; and that the Commission fully retains jurisdiction of the parties and subject-matter of this case to continue, change or modify the rates for telephone service charged by said company in its St. Louis exchange, upon the expiration of said thirteen months' period, or at any other time upon the evidence as said Southwestern Bell Telephone Company or any interested parties may offer.

"'Ordered 4. That this order take effect on the 18th day of June, 1925, and that the secretary of the Commission forthwith serve copy of this report and order on the parties interested herein, and that said parties be required to notify the Commission, on or before the effective date of this order, in the...