Opinion
December 2, 1940.
Appellant having failed to comply with rules 15 and 30, of Appellate Court, touching the filing of printed abstract or abridgement of record, and in lieu thereof having also failed to file an agreed statement of cause of action as provided by rule 19, its appeal must be dismissed.
Appeal from Circuit Court of Cole County. — Hon. Nike G. Sevier, Judge.
APPEAL DISMISSED.
Carl E. Williamson for appellant.
(1) It is not necessary that a telephone company in existence prior to April 15, 1913, procure a certificate of public convenience and necessity for an extension of its lines. Section 96 of the Public Service Commission Act, enacted March 17, 1913 (Laws of Mo., 1913, p. 629, Section 5217, R.S. Mo., 1929); Doniphan Telephone Co. v. Neelyville Telephone Co. (2 Mo. P.S.C. Reports, p. 84). The term "telephone corporation" used in Section 96 of the Public Service Commission Act likewise includes companies and individuals. Sec. 2, Subsection 17, R.S. Mo., 1913, p. 559 (Section 5122, Subsection 17, R.S. Mo., 1929); Doniphan Telephone Co. v. Neelyville Telephone Co., (2 Mo. P.S.C. Reports, p. 84). The term "telephone corporation hereafter formed" expresses a clear intention of the Legislature to exclude those companies already formed from the necessity of obtaining certificates of convenience and necessity for extension of their lines, for no such exception was made in the case of railroads, street railroads, common carriers, or other public utilities, gas, electric or water corporations. Section 5174, R.S. Mo. 1929 (Sec. 53, P.S.C. Act, Laws of Mo., 1913, p. 591) provides as follows: Section 5193, R.S. Mo. 1929 (Sec. 72, P.S.C. Act, Laws of Mo., 1913, p. 610); Public Service Commission v. Kansas City Power Light Co., 325 Mo. 1217, 31 S.W.2d 67. (2) The Public Service Commission is purely an administrative agency of the Legislature and has only such powers as are conferred by statute. State ex rel. Laundry, Inc., v. Pub. Serv. Comm., 327 Mo. 93, 34 S.W.2d 37; Pub. Serv. Comm. v. Frisco R.R., 301 Mo. 157, 256 S.W. 226; State ex rel. Rutledge v. Pub. Serv. Comm., 316 Mo. 233, 289 S.W. 785. The Public Service Commission is a creature of the statute and can only exercise such powers as are expressly conferred on it and the limits of which are clearly defined. State ex rel. United Railway Co. of St. Louis v. Pub. Serv. Comm., 270 Mo. 429, 192 S.W. 958. The Commission has no power of legislation and may not repeal a statute, nor is it a part of the judiciary system of the State, but is a representative agency established by the Legislature for the performance of quasi-legislative and administrative functions. State ex rel. Mo. So. R.R. Co. v. Pub. Serv. Comm., 259 Mo. 704, 168 S.W. 1156; Lusk v. Atkinson, 268 Mo. 109, 186 S.W. 703. (3) Neither have the courts the power to ignore, disregard, or misinterpret the clear language of a statute. Lefman v. Schuler, 317 Mo. 671, 296 S.W. 808; Arnold v. Hanna, 315 Mo. 823, 290 S.W. 416; State ex rel. v. Kinsey, 314 Mo. 80, 282 S.W. 437; Keller v. State Social Security Comm., 137 S.W.2d 989. Though a law be actually unjust in its operation, the court is not authorized to declare it invalid, unless some express provision of the Constitution has been violated. Davis v. County, 318 Mo. 248, 300 S.W. 493; State v. Swaggerty, 302 Mo. 517, 102 S.W. 483, 120 A.S. 671; Court v. Griswold, 58 Mo. 175. The case of Keller v. State Social Security Commission ( 137 S.W.2d 989), sets out the rule for the construction of statutes (l.c. 990): "In construing this statute the following well established rule should be kept in mind: where the language of a statute is plain and unambiguous nothing contrary to the evident intent can be implied. State ex rel. Jacobsmeyer v. Thatcher, 338 Mo. 622, 92 S.W.2d 640. A statute should be so construed as to give effect to the legislative intent. State ex rel. Wabash R. Co. v. Shain, 341 Mo. 19, 106 S.W.2d 898. A statute that is clear in its terms and leaves no room for construction must be enforced as written. Dahlin v. Missouri Commission for Blind (Mo. App.), 262 S.W. 420. (4) The appellants followed the proper satutory procedure in filing rate schedules before the commission. Sec. 5209, R.S. Mo. 1929.
James H. Linton for respondent, Public Service Commission of Missouri.
John Mohler for intervenor, Southwestern Bell Telephone Company.
The appellants are not entitled to an exemption from the requirement for obtaining certificates of convenience and necessity under Section 5217, R.S. Mo. 1929, since: (1) The appellants were corporations "hereafter formed," i.e., formed after the enactment of said section. R.S. Mo. 1929, secs. 5122(17), 5217; Doniphan Tel. Co. v. Neelyville Tel. Co., 2 Mo. P.S.C. 84. (2) The appellants could not obtain the grandfather rights of any predecessor under said section, because said rights appertain to the operators, and not to the property, and are wholly personal, and not assignable. State ex rel. Henson v. Brown, 326 Mo. 230, 31 S.W.2d 208; Red Ball Transit Co. v. Public Utilities Comm., 112 Ohio St. 399, 147 N.E. 762; Westhoven v. Public Service Comm., 112 Ohio St. 411, 147 N.E. 759; Public Service Ry. Co. v. Board of Utility Com'rs, 97 N.J.L. 30, 116 A. 274; Gruber v. Commonwealth, 140 Va. 312, 125 S.E. 427; Plymouth Mut. Telph. Co. v. Plymouth Farmers Switchboard Co. (Ill.), P.U.R. 1917E 459; Re Westmoreland (Cal.), P.U.R. 1918C 318; Re Fuller, 15 Cal. R.C.R. 311; Re Lloyd, Dec. No. 5171 (Cal.); Public Service Comm. v. Chant, 8 P.U.R. (N.S.) 431 (P.); McDonald v. Thompson, 305 U.S. 263, 83 L.Ed. 164; Piedmont N. Ry. Co. v. Interstate Commerce Comm., 286 U.S. 299, 76 L.Ed. 1115; Doniphan Tel. Co. v. Neelyville Tel. Co., 2 Mo. P.S.C. 84; Public Service Comm. v. Kansas City Power Light Co., 325 Mo. 1226, 31 S.W.2d 67.
This is an appeal from the judgment of the Circuit Court of Cole County, Missouri, affirming the action of the Public Service Commission.
It appears that appellant on October 25, 1939, filed schedules containing certain rates and charges proposed as toll and charge rates for services between the towns of Doniphan, Piedmont, Greenville, Grandin, Naylor, Neelyville and Poplar Bluff, Missouri. Appellant claimed rights under what is termed "The Grandfather Clause." The Public Service Commission, after a hearing, ruled that plaintiffs withdraw the tariff's and dismissed the proceedings. An appeal was taken to the circuit court and after hearing had therein, said court upheld the orders and decrees of the Commission. Appellant, thereafter, appealed and cause was sent to the Supreme Court. Thereafter, and in the September Term of the Supreme Court of Missouri, that court transferred said cause to this court.
The appellant herein has failed to comply with rules 15 and 30 of this court, touching the filing herein of printed abstract or abridgment of the record in said cause. Further, in lieu of the above, no agreed statement of the cause of action, as provided by our rule 19, is filed.
For failure to comply with aforesaid rules of this court, the appeal is dismissed. All concur.