Union Elec. Co. v. Clark

CourtUnited States State Supreme Court of Missouri
Citation511 S.W.2d 822
Docket NumberNo. 58064,No. 2,58064,2
PartiesUNION ELECTRIC COMPANY, a corporation, Appellant, H. W. Freeman Construction Company et al., Intervenors-Appellants, v. William R. CLARK et al., Respondents, The City of St. Louis, St. Louis County, Laclede Gas Company, et al., Intervenors-Respondents
Decision Date22 July 1974

William H. Ferrell, Keefe, Schlafly, Griesedieck & Ferrell, William E. Jaudes, St. Louis, for plaintiff-appellant Union Electric Co.

Jeremiah D. Finnegan, Gen. Counsel, Michael F. Pfaff, Asst. Gen. Counsel, Jefferson City, for defendant-respondent Missouri Public Service Commission.

Richard L. Eckhart, M. E. Stokes, St. Louis, Cullen Coil, Jefferson City, for intervenor-defendant-respondent, Laclede Gas Co.; Carson, Inglish, Monaco & Coil, Jefferson City, of counsel.

STOCKARD, Commissioner.

This is a suit for a declaratory judgment by which plaintiff-appellant Union Electric Company (hereinafter referred to as Union Electric) and several plaintiff-intervenors sought to have General Order 51 adopted by the Missouri Public Service Commission (hereafter referred to as the Commission) declared to be void and of no effect. The trial court dismissed the petition, and this appeal followed. We have appellate jurisdiction because St. Louis County is a party defendant-respondent as an intervenor, and the notice of appeal was filed prior to January 1, 1972.

In view of the result we reach it is unnecessary to set out in detail the substance of General Order 51, or to determine the effect of a motion filed by Union Electric with the Commission, and the effect of a separate suit filed by Union Electric in the Circuit Court of Cole County. It is sufficient to state that General Order 51 prohibits all gas and electric utilities under the jurisdiction of the Commission from soliciting business by making certain cash payments and furnishing order considerations to builders and developers, except as provided in the General Order.

On August 2, 1971, Union Electric filed its petition in this case in the circuit court of the City of St. Louis in which it sought an order staying the effective date of General Order 51 pending a determination by that court of the validity of the order, and in which it also requested a determination that the General Order was void. As previously noted the petition was dismissed. The determinative issue on this appeal is whether Union Electric may challenge the validity of General Order 51 in a proceeding filed in the Circuit Court of the City of St. Louis for a declaratory judgment pursuant to Rule 100, V.A.M.R. (§ 536.100, RSMo 1969, V.A.M.S.), or whether the exclusive procedure is that set forth in § 386.510, RSMo 1969, V.A.M.S.

In its parts material to this case § 386.510 provides:

'Within thirty days after the application for a rehearing is denied, or, if the application is granted, then within thirty days after the rendition of the decision on rehearing, the applicant may apply to the circuit court of the county where the hearing was held or in which the commission has its principal office for a writ of certiorari or review (herein referred to as a writ of review) for the purpose of having the reasonableness or lawfulness of the original order or decision or the order or decision on rehearing inquired into or determined. * * * No new or additional evidence may be introduced upon the hearing in the circuit court but the cause shall be heard by the court without the intervention of a jury on the evidence and exhibits introduced before the commission and certified to by it.

* * * Upon the hearing the circuit court shall enter judgment either affirming or setting aside the order of the commission under review. * * * The court may, in its discretion, remand any cause which is reversed by it to the commission for further action. No court in this state, except the circuit courts to the extent herein specified and the supreme court or the court of appeals on appeal, shall have jurisdiction to review, reverse, correct or annul any order or decision of the commission or to suspend or delay the executing or operation thereof, or to enjoin, restrain or interfere with the commission in the performance of its official duties.' (Italics added).

In its petition in this case Union Electric alleges that General Order 51 is void because (1) it was adopted without a prior hearing with notice to interested parties; (2) it impaired plaintiff's obligations previously entered into under contracts; and (3) it frustrates plaintiff's right to enter into additional similar contracts. General Order 51, whether it be called a rule or an order, is clearly within the term 'original order or decision' as used in § 386.510. Plaintiff's challenge to the General Order is that it is unlawful for the reasons stated. Therefore, the challenge that Union Electric makes in its petition for a declaratory judgment is within the scope of review provided for by § 386.510.

In its reply brief Union Electric asserts that no evidence was heard by the Commission before promulgating General Order 51, and that § 386.510 cannot be applicable because it provides that 'the cause shall be heard by the court without the intervention of a jury on the evidence and exhibits introduced before the commission and certified to by it.' However, if the General Order is unlawful for that reason, the court is empowered by § 386.510 to set aside the order of the Commission, or in its discretion, remand the cause for 'further action' which could include the taking of evidence. The promulgation of the General Order without evidence may result in the order being unlawful, an issue we specifically do not decide, but it does not make inappropriate the review authorized and contemplated by § 386.510.

We conclude that § 386.510 authorizes and permits the review of the alleged lawfulness of General Order 51. The remaining issue is whether the review procedure provided for in § 386.510 is exclusive to any other procedure, and particularly to the procedure provided for in Rule 100.

For purposes of this opinion we will agree that the Commission meets the definition of...

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13 cases
  • State ex rel. Laclede Gas Co. v. Public Service Commission, KDC
    • United States
    • Court of Appeal of Missouri (US)
    • May 5, 1980
    ...party, and can only affirm the action taken by the P.S.C. or remand for further proceedings by the P.S.C., see Union Electric Company v. Clark, 511 S.W.2d 822 (Mo.1974); State ex rel. Fee Fee Trunk Sewer, Inc. v. Public Service Commission, 522 S.W.2d 67 (Mo.App.1975); State ex rel. Detroit-......
  • State v. Public Serv. Comm'n of the State of Mo
    • United States
    • Court of Appeal of Missouri (US)
    • December 26, 2001
    ...536.150. In interpreting the implicated statutes as we do, we are aware of the Missouri Supreme Court's decision in Union Electric Co. v. Clark, 511 S.W.2d 822 (Mo. 1974). There, the Court, faced with the issue of whether the validity of a PSC regulatory rule was subject to review by the de......
  • Conoco, Inc. v. State Dept. of Health of State of Okl.
    • United States
    • Supreme Court of Oklahoma
    • July 27, 1982
    ...See Carpenter v. Carpenter, Okl., 645 P.2d 476, 481 [1982].44 Marley v. Cannon, Okl., 618 P.2d 401 [1980].45 See Union Electric Co. v. Clark, 511 S.W.2d 822 [Mo.1974]; State ex rel. Goldberg v. Darnold, 604 S.W.2d 826 [Mo.App.1980]; State ex rel. Southwestern Bell Telephone Co. v. Public Se......
  • State ex rel. Glendinning Companies of Connecticut, Inc. v. Letz, KCD
    • United States
    • Court of Appeal of Missouri (US)
    • October 29, 1979
    ...recent case of Jefferson Lines, Inc. v. Missouri Public Service Commission, 581 S.W.2d 124 (Mo.App.1979), or with Union Electric Company v. Clark, 511 S.W.2d 822 (Mo.1974), both cases involving Public Service Commission rules, wherein the courts noted that § 386.510, RSMo 1978, in each case......
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