Union Elec. Co. v. Public Service Commission

• Decision Date: 29 October 1979
• Docket Number: No. WD,WD
• Citation: 591 S.W.2d 134
• Parties: UNION ELECTRIC COMPANY, ACF Industries, Inc., et al., and ABEX Corporation, et al., Appellants, v. PUBLIC SERVICE COMMISSION of the State of Missouri and Commissioner Alberta Slavin, Respondents. 30791.
• Court: Missouri Court of Appeals

Page 134

591 S.W.2d 134

UNION ELECTRIC COMPANY, ACF Industries, Inc., et al., and ABEX Corporation, et al., Appellants, v. PUBLIC SERVICE COMMISSION of the State of Missouri and Commissioner Alberta Slavin, Respondents.

No. WD 30791.

Missouri Court of Appeals, Western District.

Oct. 29, 1979.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Dec. 3, 1979.

Application to Transfer Denied Jan. 15, 1980.

William E. Jaudes and Paul A. Agathen, St. Louis, for Union Electric co.

Robert C. Johnson, St. Louis, for ACF Industries, Inc.

David F. Crossen, Clayton, for ABEX Corp.

Paul W. Phillips, Jefferson City, for Public Service Com'n.

James S. Haines, Jr., Jefferson City, for Com'r Alberta Slavin.

Before WASSERSTROM, C. J., and SHANGLER, PRITCHARD, DIXON, SWOFFORD, SOMERVILLE and TURNAGE, JJ.

TURNAGE, Judge.

Union Electric and several industrial intervenors filed a petition for writ of prohibition in the Circuit Court of Cole County seeking to prohibit Alberta Slavin, a member of the Public Service Commission, from participating in a certain proceeding involving the rate design for Union Electric. The same parties sought to prohibit the Public Service Commission from allowing Slavin to participate. The court on final hearing denied both petitions and entered summary judgment ¹ in favor of Slavin and the Commission by quashing the preliminary rule previously issued. Union Electric and the industrial intervenors have appealed. Reversed and remanded.

The facts were largely stipulated and the only contested issue in the circuit court was the authority of the court to issue a writ of prohibition against Slavin or the Commission absent any statutory provision for the disqualification of a member of the Commission.

The parties stipulated that Union Electric had filed an application for a rate increase with the Commission in 1972. An intervenor-party in that case was a consumer oriented corporation in St. Louis known as Utility Consumers Council of Missouri, Inc., known by the acronym UCCM. Slavin was one of the three incorporators of UCCM, a member of the board of directors, the registered agent at her home address, and president for seven years. The petition on behalf of UCCM to intervene in the rate case was signed by Slavin.

After a settlement had been reached in the rate case, a cost of service study was discussed with Slavin participating in some of the meetings. A cost of service study was launched by Union Electric to determine the cost to Union Electric for delivery of its electric service to the various classes of consumers, i. e. residential, commercial and industrial. This study would in turn form the basis for an allocation of the rate increase among the various classes of consumers. The interest of UCCM in the cost of service study was made apparent by Slavin in her statements that residential users were paying too much for their service and that a greater proportion of the rates should be paid by other users, particularly industrial.

In 1974 the Commission ordered that the cost of service study be thereafter handled in a new docket designated as No. 18177. UCCM and Slavin individually were both parties in No. 18177, and, in fact, both filed a motion for extension of time in that proceeding. Later a joint memo regarding data collection procedures for the cost of service study in No. 18177 was filed by Union Electric and UCCM.

In June, 1977, Slavin resigned as president and as a member of UCCM. On July 8, 1977, Slavin was appointed as a member of the Public Service Commission by the Governor. She resigned on August 22, 1977, but was again appointed to the Commission on November 22, 1977, and took the oath of office on November 23, 1977. The registered office of UCCM continued to be listed at Slavin's home address in St. Louis until January, 1978, although she was not active in the organization after her resignation from it in June, 1977.

In January, 1978, Union Electric filed its cost of service study in No. 18177 and the Commission ordered that case closed out and opened case number EO78-163. The Commission ordered that all parties to No. 18177 be declared to be parties to No. EO78-163. Slavin was shown in the order to be a member of the Commission but absent.

In June, 1978, Union Electric and the industrial intervenors filed a motion with the Commission asking that Slavin be disqualified from participating in case No. EO78-163. Slavin wrote a letter in response to the motion stating the motions to disqualify her were without merit and refusing to disqualify herself. The Commission entered an order finding it did not have jurisdiction to determine whether or not a member of the Commission was disqualified from participating in a case. Slavin did not participate in that order.

In July, 1978, UCCM filed a motion to request hearings to be held in the service area of Union Electric in case No. EO78-163. This suit for prohibition against Slavin and the Commission was filed on July 13, 1978. The petition alleged Slavin should be disqualified because of her interest, bias and prejudice as shown by her previous participation in this case and in other cases involving Union Electric and because of her public statements on the merits of those cases.

A hearing was held on the petition for prohibition with the only evidence, in addition to that stipulated, relating to the nature of the cost of service study and brief testimony by Slavin in which she denied any ill will toward Union Electric or any of the industrial intervenors in the prohibition suit.

The trial court entered findings of fact and conclusions of law and concluded that because there is no statutory provision for the disqualification of a member of the Commission, the court was without power or authority to order a member of the Commission to refrain from participating in any case pending before the Commission. The court indicated the view that although it could not prohibit a member of the Commission from participating in advance, that the interest, bias or prejudice of a member would be a proper subject of inquiry in any appeal from a decision by the Commission and if it were shown that any party did not receive a fair and impartial hearing before the Commission relief could be granted at that time. The court dissolved the preliminary rule in prohibition issued against Slavin and the Commission and entered summary judgment pursuant to motions previously filed.

On this appeal Union Electric and the intervenors contend they will be denied due process if Slavin is not prohibited from participating in a case in which she is actually a party. Slavin contends prohibition will not lie to remove her in advance of a hearing but the matters complained of may only be considered on appeal after the Commission has entered an order in the pending case.

It is true, of course, that the Public Service Commission is an administrative body created by statute and has only such powers as are expressly conferred by statute and reasonably incidental thereto. State ex rel. Harline v. Public Service Commission, 343 S.W.2d 177, 181(5) (Mo.App.1960). However, the courts in this state have held officials occupying quasi-judicial positions to the same high standard as apply to judicial officers by insisting that such officials be free of any interest in the matter to be considered by them. Thus, in King's Lake Drainage & Levee Dist. v. Jamison, 176 Mo. 557, 75 S.W. 679 (1903) the report of commissioners appointed by the county court to establish a drainage district was challenged because one of the three commissioners had an interest in a tract of land subject to overflow which was excluded from the district. The commissioner's wife was the owner of this tract and although the commissioner only had a marital interest the court held this was sufficient to violate the common law rule that no man is to be a judge in his own cause. The court expressly rejected a contention that such rule applied only to judicial officers and should not apply to quasi-judicial officers by stating such contention was not in harmony with the analogous decisions in this state and was not in line with the greater weight of authority in England and this country. The court carefully reviewed this well established rule and quoted liberally from Judge Cooley's work on Constitutional Limitations (6th Ed.). The court quoted from Judge Cooley that a legislative act which would undertake to make a judge qualified to decide his own controversy would be void because it would be the creation of an arbitrary and irresponsible authority unknown to constitutional government. The court further quoted that the rule applies in all cases where judicial functions are to be exercised and it is not left to the discretion of the judge, or to his sense of decency, to decide whether or not he shall act. The court further quoted from Cooley that it is the responsibility of the power which created the court to provide another judge or tribunal so that a judge may not in any event be placed in a position in which he can judge his own cause. The court held the commissioner whose wife owned the tract involved in the drainage area was not qualified to act, and even though he was only one of three, affirmed an order setting aside the report of the commissioners.

Much the same reasoning was applied by the Supreme Court of Ohio in Forest Hills Utility Co. v. Public Util. Com'n of Ohio, 39 Ohio St.2d 1, 313 N.E.2d 801 (1974) when it held a member of the Public Utility...