The State ex rel. Kansas City Power & Light Co. v. Public Service Commission of the State

• Decision Date: 25 August 1925
• Docket Number: 26009
• Parties: THE STATE ex rel. KANSAS CITY POWER & LIGHT COMPANY, Appellant, v. PUBLIC SERVICE COMMISSION OF THE STATE OF MISSOURI, MERRILL E. OTIS et al., Commissioners
• Court: Missouri Supreme Court

275 S.W. 940

310 Mo. 313

THE STATE ex rel. KANSAS CITY POWER & LIGHT COMPANY, Appellant, v. PUBLIC SERVICE COMMISSION OF THE STATE OF MISSOURI, MERRILL E. OTIS et al., Commissioners

No. 26009

Supreme Court of Missouri

August 25, 1925

Motion for Rehearing Denied July 18, 1925.

Motion of Respondent to Set Aside Order Overruling Motion for Rehearing Denied A

Appeal from Cole Circuit Court; Hon. Henry J. Westhues Judge.

Reversed (with directions).

John H Lucas, Ludwick Graves and Busby, Sparrow & Patterson for appellant.

(1) This court will review the judgment of the circuit court the same as in an equity suit by a trial de novo without being bound by the findings of the Commission or the court. R. S. 1919, sec. 10522; Railroad v. Pub. Serv Comm., 266 Mo. 340; Lusk v. Atkinson, 268 Mo. 118; State ex rel. v. Pub. Serv. Comm., 271 Mo. 155; State ex rel. v. Pub. Serv. Comm., 287 Mo. 531. (2) The appellant had the right to adopt the rules in controversy, effective on September 1, 1922, in the management of its property, and the Public Service Commission had and has no right or jurisdiction under the Public Service Commission Act, or otherwise, to supervise or regulate such rules. State ex rel. Tel. Co. v. Pub. Serv. Comm., 43 S.Ct. 546; Chicago, M. & St. P. Ry. Co. v. Wisconsin, 35 S.Ct. 873; People v. Stevens, 197 N.Y. 1. (3) The reasonableness or lawfulness of the original order or decision, or the order or decision of the Commission on motion for rehearing, may be reviewed in the circuit court and this court. R. S. 1919, sec. 10522. (4) If the rules adopted by the appellant were just, equitable, reasonable and lawful rules, the Commission should have permitted the filing of the same. R. S. 1919, sec. 10478, subsec. 12. (5) The gist of the Commission's decision and the real question before this court is whether the benefits resulting from the rules and the necessity for the rules adopted by the company equal the cost of the installation. (6) It appears not only by a preponderance but by the overwhelming weight of the disinterested evidence that the costs of installation under the rules adopted by the company are negligible and of no consequence when compared with the great benefits and urgent necessities of the rules. (7) The appellant should have the right to seal the box. Von Schlanbusch v. Lucerne Co. G. & E. Co., P. U. R. 1924 E, 1. (8) It appears from the overwhelming weight of the disinterested evidence that the rules adopted by the appellant are just, equitable, reasonable and lawful, and the appellant has the right to require compliance with the rules as a condition of extending service. Birmingham Ry. Co. v. Littleton, 77 So. 565; State v. Butte Electric Co., 115 P. 44; Gould v. Edison Elec. Co., 60 N.Y.S. 559; Zimmerman v. San Juan Light Co., 4 Porto Rico Fed. 169; Tisner v. New York Edison Co., 156 N.Y.S. 28; Benson v. Am. Illum. Co., 102 N.Y.S. 206; Electric Conduits Co. v. Pub. Serv. Elec. Co., P. U. R. 1921 D, 703. (9) The judgment of the circuit court should be reversed and the case remanded with directions to enter a judgment setting aside the report and order of the Commission. R. S. 1919, sec. 10522; Railroad v. Pub. Serv. Comm., 266 Mo. 346.

Louis H. Breuer, General Counsel, and Douglas D. McDonald, Assistant Counsel, for respondents; Henry S. Conrad, Hale Houts and L. E. Durham of counsel.

(1) While it is true that Commission cases are "tried and determined as suits in equity," nevertheless the orders of the Commission are prima-facie valid and presumed to be reasonable. The burden is upon the relator to prove by clear and satisfactory evidence that the ruling is unlawful and arbitrary. Secs. 10533 to 10535, R. S. 1919; State ex inf. v. Gas Co., 254 Mo. 515; State ex rel. Harrisonville v. Commission, 391 Mo. 454, 457; State ex rel. Case v. Commission, 249 S.W. 960; State ex rel. Capital City Water Co. v. Commission, 252 S.W. 448. (2) The Commission had jurisdiction: (a) Relator invoked the jurisdiction of the Commission by asking leave to file the rule with the Commission. (b) The Commission has jurisdiction to pass upon the reasonableness of rules and regulations of a public utility affecting the service rendered by it to the public. Section 10478, R. S. 1919; State ex inf. v. Gas Co., 254 Mo. 534; State ex rel. Sedalia v. Commission, 275 Mo. 206; Southwest Mo. Railroad v. Commission, 281 Mo. 52; State ex rel. M., K. & T. Ry. v. Commission, 277 Mo. 175; State ex rel. v. Water Co., 103 S.E. 340; B. & O. Ry. v. Pitcairn Coal Co., 215 U.S. 418. (3) The duty of the Commission to approve reasonable service rules is conceded. The ground of the Commission's refusal to approve rules in question was that they were unreasonable and arbitrary. (4) The gist of the Commission's decision and the real question before the court is not whether the benefits from and necessity for the rules equal the cost of installation, but whether the benefits to complainants and other consumers and the necessity from the standpoint of complainants and other consumers equal the cost of installation. (5) Added cost of from five to six dollars in installation, with a total yearly added expenditure to complainants of eighteen to twenty thousand dollars, and to all consumers in Kansas City of forty thousand dollars, is not negligible, either in itself or as compared with any benefit from or necessity of the rules in question. The rules were of no great benefit to relator and of less to individual consumers. (6) If there is reason or necessity for a box which can be sealed and if one can be obtained which can be effectively sealed by relator and against the customers, then relator should furnish that box. (7) Whatever benefits the box insisted upon by relator or any similar box may have over the boxes of ordinary construction otherwise furnished preponderate so largely in favor of relator, relator's business and all consumers alike, that in no event should new individual customers be required to install such special boxes, but relator should be left to its remedy of applying to the Commission for permission to install the same and the charge the expense thereof to its capital account. Commission v. Light Co., 1 Mo. P. S. C. 130; In re Louisiana Water Co., 5 Mo. P. S. C. 577; In re Lexington Water Co., 9 Mo. P. S. C. 145; In re Perry Light & Power Co., P. U. R. 1922 E, 269; In re Pawhuska Oil & Gas Co., P. U. R. 1917 D, 947; Pub. Serv. Comm. v. Water Utility, P. U. R. 1915 E, 874; In re Saline Elec. Co., P. U. R. 1918 F, 231. (8) The rules in question as adopted and enforced by relator are clearly arbitrary, unreasonable, unjust and unlawful. 20 C. J. 333; Tisner v. N. Y. Edison Co., 126 N.E. 729; Electric Conduits Co. v. Pub. Serv. Elec. Co., P. U. R. 1921 D, 703. Also decisions cited under Point 7.

Woodson, J. Graves, C. J., concurs; Blair and White, JJ., concur in the result; Walker, J., dissents in a separate opinion; Ragland, J., dissents; Atwood, J., not sitting.

OPINION

WOODSON

This proceeding was instituted before the Public Service Commission by complainant, and had for its purpose the prevention of the promulgation and enforcement of certain rules and regulations proposed by the Kansas City Power & Light Company, called the relator or appellant, regarding the kind and character of fuse and switch box which prospective consumers of electricity in Kansas City should install as a condition precedent to being supplied with an electric current by the Power Company.

It may be proper to state that a fuse or switch box is the covering or enclosure for switches installed on the premises of consumers for the purpose of cutting off and turning on current coming from the service wires of the utility and before it enters the meter installed for the measuring of the current used by the consumer. The fuse is a piece of soft lead which fits into the switch, which is so designed as to automatically melt and sever the connection in case the service wires become charged with an unusual and dangerous current of electricity. In Kansas City the meters are owned by the relator. They are in all cases installed so as to connect with fuse or switch boxes.

Prior to the promulgation and enforcement of the rules and regulations of relator in question, consumers in Kansas City customarily supplied metal meter boxes of ordinary construction. They were required to so do as a measure of fire protection by the city authorities, and such practice, it appears, was also required by the insurance underwriters. Moreover, as was undisputed, this box of ordinary construction so used fully met the requirements of the city and the underwriters.

The McCanles-Miller Realty Company, together with other companies and persons, filed a complaint with the Public Service Commission, wherein the rules of relator here in question were charged to be unreasonable and oppressive, in that by reason of the promulgation and enforcement of the rule complainants and other consumers were required to purchase and install a particular box which was manufactured under patent, and the selling price of which was extortionate and excessive over and above the cost of the ordinary boxes which were adequate for the consumers' needs, to the extent of $ 2.50 per box as against 50 cents per box; and in that in addition the effect of the rules and their enforcement was to require the use of a separate box for each consumer in an apartment house, whereas formerly one large box had been sufficient; and in that the cost of installation was greater; and in that the benefits of the new box over and above the old box, if any, inured to relator and not to the individual consumer; and in that the rules and the manner of enforcement was unreasonable, unjust and discriminatory; and in that they necessitated an...