State ex rel. Bolivar Telephone Co. v. Public Service Commission

357 S.W.2d 96, 1962 Mo. LEXIS 717
CourtSupreme Court of Missouri
DecidedApril 9, 1962
DocketNo. 48869
StatusPublished
Cited by3 cases

This text of 357 S.W.2d 96 (State ex rel. Bolivar Telephone Co. v. Public Service Commission) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Bolivar Telephone Co. v. Public Service Commission, 357 S.W.2d 96, 1962 Mo. LEXIS 717 (Mo. 1962).

Opinion

BARRETT, Commissioner.

This is an appeal by the Bolivar Telephone Company from a judgment affirming an order of the Public Service Commission. The Bolivar Telephone Company is a private utility and under a certificate of public convenience and necessity furnishes telephone service to the city of Bolivar, population 3482 in 1950, and a surrounding rural area comprising approximately one third of Polk County. Its rates and the [97]*97territorial area served are shown by area maps on file with the commission. There were once two telephone companies in this area but in 1949 an ice storm all hut destroyed the two systems and they were consolidated and the present company formed. Since 1957, largely through loans from the Rural Electrification Administration, the company has furnished dial-operated telephone service to its patrons. The company also has telephone exchanges at Morrisville and Pleasant Hope in the southern section of Polk County. In the eastern one third of Polk County, adjoining the area serviced by the Bolivar Telephone Company, are the communities of Halfway, Polk and Goodson. The villages of Halfway and Polk have customer-owned mutual telephone systems. Since abandoning its mutual service 17 years ago, the Goodson community has no telephone service of any kind. These three villages are the centers of agricultural areas and, of course, all have a community of interest with the county seat, Bolivar. The village of Goodson, 15 miles from Bolivar, consists of a store, a post office and a grade school. Halfway, 10 miles from Bolivar, has two stores, a filling station, two churches and a high school. Polk, 11 miles from Bolivar, has a grade school, a farmers’ exchange, a garage and a filling station. Together these three districts comprise an area approximately 8 miles wide and 18 miles long, north and south. The population of these communities is not made to appear, it is estimated by counsel for the commission that there are approximately “500 potential” telephone subscribers for modern dial service in the area. In any event, 375 residents of these communities filed a complaint requesting the Public Service Commission to make an order compelling the Bolivar Telephone Company to file a revised “service area map” including these communities in its service boundaries, thereby furnishing dial telephone service to the villages of Polk, Halfway, Goodson and their surrounding rural areas at rates paid by Bolivar area residents. The commission made a detailed finding of facts, but the crux of the matter is that the commission has ordered the Bolivar Telephone Company to construct, at a cost of more than $300,000, exchanges at Polk and Halfway and to furnish nontoll dial telephone service to these three areas at rates to be fixed, upon application, by the commission after the installation and operation of the facilities.

The parties have briefed and argued the question whether the commission has jurisdiction and authority under the statutes, particularly Ch. 386, R.S.Mo. 1959, V.A.M.S., to compel a private utility to furnish telephone service to an area outside its certificated franchise area, or outside a territory not embraced “within its profession of service.” The appellant company contends that the present order, in requiring service “beyond its voluntary undertaking and profession of service,” is a taking of its property without due process and is therefore unconstitutional. It also contends that the order is based upon incorrect or unsupported findings of fact, or upon evidentiary matters not included in the record before the commission, and for that reason violates due process. The respondent makes an eloquent plea for the desirability of rural telephone service to “areas unable to support a (modern) telephone system” and consequently for the power and authority of the commission to compel the service. These are all very important problems indeed; they are problems of such magnitude that it is not desirable to consider them until a particular case compels the decision. It is doubtful that the appellant has in fact presented a question of constitutional law. State ex rel. Harline v. Public Service Commission, (Mo.) 332 S.W.2d 940; Southern Bell Telephone & Telegraph Co. v. Town of Calhoun, 4 Cir., 287 F. 381. The parties have cited no recent Missouri cases dealing with the commission’s jurisdiction to compel a private utility to provide service outside its franchised or professed service areas. Cases, excluding railroad cases, dealing with the subject in a very limited general way are State ex rel. Ozark Power & Water Co. v. Public Service Commission, 287 Mo. 522, 229 S.W. 782; State ex rel. St. Louis County [98]*98Gas Co. v. Public Service Commission, 315 Mo. 312, 286 S.W. 84; State ex rel. Harline v. Public Service Commission, (Mo.App.) 343 S.W.2d 177; California Water & Telephone Co. v. Public Utilities Commission, 51 Cal.2d 478, 334 P.2d 887; Yucaipa Water Co. No. 1 v. Public Utilities Commission, 54 Cal.2d 823, 9 Cal.Rptr. 239, 357 P.2d 295; Nicoma Park Telephone Co. v. State, 198 Okl. 441, 180 P.2d 626. In 31 A.L.R. 333 there is an annotation: “Power of public service commission to require public utility to extend gas service into new territory,” and in 56 A.L.R.2d 413, there is an annotation : “Duty of mutual association, nonprofit organization, or co-operative to furnish utilities services.” Tempting as these problems may be their resoultion is not necessary to a disposition of this appeal and their determination is put aside for a case compelling the decision. The commission’s order in this case is not based upon or supported by competent and substantial evidence in certain very important respects and for that reason alone this judgment must be reversed. State ex rel. Rice v. Public Service Commission, 359 Mo. 109, 114, 220 S W.2d 61, 64; State ex rel. Hotel Continental v. Burton, (Mo.) 334 S.W.2d 75, 78.

As stated at the outset, the commission has ordered the Bolivar Telephone Company to immediately construct and operate two new toll-free dial telephone exchanges at Polk and Halfway, at a cost of over $300,-000. Profession of service aside, these are areas in which it has no franchise and in which it has not previously operated telephone exchanges or provided general telephone service. Further the order is that every ninety days the company submit progress reports and after the facilities have been placed in operation apply to the commission to the end that “fair and reasonable rates” may be established. But the company: is “ordered to undertake and carry out the construction of facilities for providing dial telephone service to the Complainants herein on a non-toll basis throughout the area in which the Complainants reside and desire telephone' service.” The order part of the. commission’s “Report and Order” does not indicate just how this rather extensive $300,000 project is to be financed, and, of course, it is not claimed that the commission has the control or direction of any funds that might be devoted to this purpose. There is no evidence in this record as to the value of the Bolivar Telephone Company or as to the nature, extent or availability of its financial resources.

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Bluebook (online)
357 S.W.2d 96, 1962 Mo. LEXIS 717, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-bolivar-telephone-co-v-public-service-commission-mo-1962.