State ex rel. Conner v. Public Service Commission

703 S.W.2d 577, 1986 Mo. App. LEXIS 3471, 1986 WL 1167020
CourtMissouri Court of Appeals
DecidedJanuary 14, 1986
DocketNo. WD 36936
StatusPublished
Cited by4 cases

This text of 703 S.W.2d 577 (State ex rel. Conner v. Public Service Commission) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Conner v. Public Service Commission, 703 S.W.2d 577, 1986 Mo. App. LEXIS 3471, 1986 WL 1167020 (Mo. Ct. App. 1986).

Opinion

BERREY, Judge.

This is an appeal from a judgment of the Circuit Court of Cole County affirming the orders of the Missouri Public Service Commission (PSC) denying appellant’s application to operate over irregular routes as a common carrier in vehicles licensed for a gross weight of 9,000 pounds or less. Judgment affirmed.

Richard L. Conner, d/b/a Conner’s Express, a sole proprietorship in Lebanon, Missouri, runs a “pony express carrier” which transports general commodities in statutorily exempt vehicles under § 390.-030, RSMo 1978 that are licensed for a gross weight of 6,000 pounds or less. On April 2, 1982, and as amended September 20, 1982, appellant made application with the PSC seeking authorization to transport general commodities (except Class A and B explosives, household goods, commodities in bulk and those requiring special equipment) over irregular routes in motor vehicles licensed for a gross weight of 9,000 pounds or less. Without regard to the location of any points or places on the routes of a regular common carrier, the appellant desires certification to transport (1) radially between Kansas City and St. Louis and fifty cities,1 (2) radially between Lebanon and Sedalia and Washington, Missouri; (3) from Lebanon to Boonville, Columbia, Eldon, Fenton, Joplin, Mexico, Mob-erly, Ozark, Steelville, Sullivan and Webb City; and (4) from Springfield to Boonville, Cuba and Moberly. Protests to appellant’s application were filed and evidence was presented at a hearing by the following intervenors: Highway Transportation Co., Inc.; Marshall Trucking; Webster Express; Beaufort Transfer Company; and H & S Motor Freight, Inc.

As part of appellant’s case, thirteen shippers from St. Louis, Kansas City, Lebanon and Springfield testified in support of the request for certification. After four days of testimony was heard on the issue, the PSC on September 30, 1983, rendered a report and order denying appellant’s application. On January 19, 1984, the PSC, however, granted appellant’s application for reconsideration. In the PSC’s second examination of the issue, the PSC reweighed the evidence in view of this court’s decision in State ex rel. Gulf Transport Co. v. Public Service Commission, 658 S.W.2d 448 (Mo.App.1983) which found “the potential benefits yielded by competition” were integral factors in the decision [579]*579to grant motor carrier authorization. On April 16, 1984, the PSC again denied appellant’s application. On appeal to the Circuit Court of Cole County, the court affirmed the PSC’s reports and orders. The present appeal ensued. Additional facts will be explored to aid in the resolution of the issues presented.

Appellant first contends the PSC unlawfully established a new policy of granting motor carrier authority only where the evidence establishes reduced costs and more efficient or better quality service that is contrary to the statutory framework for such authorization set forth in § 390.051, RSMo 1978. This point is ruled against the appellant.

As a preliminary matter, judicial review is restricted to whether the PSC’s reports and orders are lawful and reasonable. State ex rel. Ashcroft v. Public Service Commission, 674 S.W.2d 660, 662 (Mo.App.1984). “[(Questions of “lawfulness” turn on whether the Commission’s orders or decisions are statutorily authorized and questions of “reasonableness” turn on whether there is competent and substantial evidence upon the whole record to support them.” State ex rel. Marco Sales v. Public Service Commission, 685 S.W.2d 216, 218 (Mo.App.1984) (citing State ex rel. Ozark Elec. Corp. v. Public Service Commission, 527 S.W.2d 390, 392 (Mo.App.1975).

Like Gulf Transport, supra, this case centers on § 390.051(5) and (6) which state:

5. If the commission shall find from the evidence that public convenience and necessity will be promoted or that there is public need for the creation of the service, proposed, or any part thereof, and that the applicant is qualified properly to perform the service proposed and to conform to the provisions of sections 390.011 to 390.176 and the requirements, rules and regulations of the commission established thereunder, a certificate therefor shall be issued.
6. In determining whether a certificate should be issued, the commission shall give reasonable consideration to the transportation service being furnished by any common carrier by rail or motor vehicle and the effect which the proposed transportation service may have upon such carrier; provided, that the issuance of a certificate of convenience and necessity to one carrier shall not prohibit the granting of such certificate to another carrier over the same route if in the opinion of the commission the public convenience and necessity will be promoted by so doing.

A brief discussion of the major decisional law surrounding the above sections is needed. In State ex rel. Beaufort Transfer Co. v. Clark, 504 S.W.2d 216, 219 (Mo.App.1973), this court found that the evidence must demonstrate “that the additional service would be an improvement justifying its cost and that the inconvenience of the public occasioned by the lack of a carrier is sufficiently great to amount to a necessity.” Although a subordinate interest, adverse consequences to existing carriers due to the certification of additional carriers is balanced against this “public need.” State ex rel. Churchill Trk. Lines v. Public Service Commission, 555 S.W.2d 328, 335 (Mo.App.1977); State ex rel. Twehous Excavating Company, Inc., v. Public Service Commission, 617 S.W.2d 104, 106 (Mo.App.1981). Finally, in Gulf Transport, supra, at 456-57, this court added another weight to the balancing act: potential benefits accruing to the public from additional competition. It is significant that this balancing process is solely within the “commission’s discretionary exercise of its expertise in the field of transportation.” Churchill, supra, at 335; State ex rel. Inman Freight v. Public Service Commission, 600 S.W.2d 650, 655 (Mo.App.1980).

Appellant asserts the PSC’s “new evidentiary standard” is incompatible with the above statutory requirement of “public need” and is incongruous with the decisional framework specified in Gulf Transport, supra.

[580]*580Appellant points in the PSC’s order of April 16, 1984:

An applicant seeking to provide service where existing service exists should provide evidence of any increased efficiency, decreased cost or better quality service expected from the proposed service.

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703 S.W.2d 577, 1986 Mo. App. LEXIS 3471, 1986 WL 1167020, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-conner-v-public-service-commission-moctapp-1986.