Though we do not find the language of section 393.190.1 to be ambiguous, if we were to so find, our conclusion that the seller need not be the party to apply for the Commission's approval is consistent with and gives effect to the purpose of section 393.190.1. SeeState ex rel. Fee Fee Trunk Sewer, Inc. v. Litz , 596 S.W.2d 466, 468 (Mo. App. E.D. 1980) ("The obvious purpose of this provision is to ensure the continuation of adequate service to the public served by the utility."). That is, the provision's purpose is to prevent a regulated utility from selling assets, which are necessary or useful to the service provided, to a buyer who is unwilling or unable to provide adequate service.
The agreements also purported to control how proceeds of the sale would be distributed. While the parties to the Application claimed that the Commission could not control the disposition of the proceeds pursuant to the holding of State ex rel. Fee Fee Trunk Sewer v. Litz, 596 S.W.2d 466, 468 (Mo.App. 1980), they asked the Commission to approve an application predicated on contracts that purported to dictate the distribution of the proceeds. In the proposed distribution, Greg Williams, as a creditor to Osage Water, individual owner of assets to be sold under Agreement B, and as a principal of Hurricane Deck would receive the bulk of the proceeds.
Therefore, this appeal does not meet the criteria for a "collateral attack." See State ex rel. Fee Trunk Sewer, Inc. v. Litz, 596 S.W.2d 466, 468 (Mo. App. E.D. 1980) (A judgment favorable to plaintiff property owners in the underlying action would not result in rendering the order of the Commission ineffective and thus it did not constitute a collateral attack upon the order of the Commission; additionally, plaintiffs did not seek to have order of Commission modified, amended or declared void.) Evidentiary Challenges
Thus, pursuant to ยง 393.190.1, their proposed merger required the approval of the PSC. State ex rel. Fee Fee Trunk Sewer,Inc. v. Litz , 596 S.W.2d 466, 468 (Mo.App. 1980). Section 393.190.1 reads, in pertinent part:
The Commission does not exercise judicial power or authority, State ex rel. C.R.I. P.R. Co. v. Public Service Comm'n, 441 S.W.2d 742, 748[6] (Mo.App. 1969); State ex rel. Fee Fee Trunk Sewer, Inc. v. Litz, 596 S.W.2d 466, 468 (Mo.App. 1980), and it cannot enter a money judgment, Wilshire Const. Co. v. Union Elec. Co., supra; State ex rel. Fee Fee Trunk Sewer, Inc. v. Litz, supra. In fixing rates the Commission exercises a legislative function.
Plaintiffs, in their first point on appeal, relate several procedural defects which, they argue, nullify the trial court's dismissal of the action. In the first sub-point, the plaintiffs argue that the trial court erred in sustaining defendant Fee Fee's Motion to Dismiss because it was bound by the decision of the court of appeals in Fee Fee Trunk Sewer, Inc. v. Litz, 596 S.W.2d 466 (Mo.App. 1980). This prior determination, they assert, held that the appellants had set forth a proper cause of action against Fee Fee.