Opinion
Opinion delivered November 7, 1949.
1. — Public Service Commissions — Administrative Law and Procedure. Missouri Public Service Commission has no power except that granted by legislature and it cannot adopt a rule, or follow a practice, which results in nullifying the expressed will of the legislature, and it cannot, under the theory of construction of a statute, proceed in a manner contrary to the plain terms of the statute.
2. — Public Service Commissions — Administrative Law and Procedure. Fact that rule adopted by commission had been in existence for a long period of time, does not give it legal effect or make its legality persuasive on the court, except in cases where the statute may fairly be said to be ambiguous.
3. — Motor Carriers — Automobiles. Commission is required by terms of statute to transfer a certificate of convenience and necessity authorizing holder to operate as a freight carrier, after it has found that a sale of the business, rights or assets of certificate holder has been made, and that transferee is qualified to conduct the business of a motor carrier.
4. — Motor Carriers — Automobiles. Where certificate of public convenience and necessity authorized holder to transport for hire two classes of property and holder sold its rights to one of the two classes and part sold was readily ascertainable, identifiable and severable, commission after hearing having found that corporation which purchased such portion of business was fully qualified to carry on business of motor carrier, under statute commission could not refuse to transfer certificate, merely because transfer in its judgment would result in chaos in regulation of motor transportation.
5. — Motor Carriers — Automobiles. The legislature alone has power to declare the general law relating to regulation of motor transportation in Missouri.
Appeal from Circuit Court of Cole County. — Hon. Sam C. Blair, Judge.
AFFIRMED.
Tyre W. Burton and Frank J. Iuen for appellant.
The court, in reviewing an order of the Public Service Commission, is limited to the question of whether the order is reasonable and lawful, and the burden of proving that the action of the Commission is arbitrary, capricious and without reasonable basis is on the party adverse to the Commission. Section 5690, R.S. Mo. 1939; State ex rel. Anderson Motor Service Co. et al. v. Public Service Commission, et al., 134 S.W.2d 1069, l.c. 1076; 234 Mo. App. 470; State ex rel. Kansas City Power Light Co. v. Public Service Commission of Missouri et al., 76 S.W.2d 343, l.c. 350, 351, 335 Mo. 1248. The order of the Commission was not unlawful. Wisconsin Telephone Co. v. Public Service Commission, 287 N.W. 122, l.c. 131, 232 Wis. 274; Sturgeon v. Crosby Mortuary, 299 N.W. 378, l.c. 383, 140 Neb. 82; Surles v. Sweeney, 4 P. 469, l.c. 470, 11 Or. 21; 66 C.J. 34. The order of the Commission was not unreasonable. State ex rel. Missouri, Kansas Oklahoma Coach Lines, Inc., et al. v. Public Service Commission, 179 S.W.2d 132, l.c. 135, 238 Mo. 317; Missouri Valley Realty Co. v. Cupples Station Light, Heat Power Co. et al., 199 S.W. 151, l.c. 153; State ex rel. City of St. Joseph v. Busby et al., 274 S.W. 1067, l.c. 1071; State ex rel. Kansas City Power Light Co. v. Public Service Commission of Missouri et al., 76 S.W.2d 343, l.c. 350, 351, 335 Mo. 1248; 66 C.J. 56. The transfers of certificates of convenience and necessity issued by the Public Service Commission of Missouri are governed by the provisions of Section 5724 (c), R.S. Mo. 1939. Missouri Valley Realty Co. v. Cupples Station Light, Heat Power Co. et al., 199 S.W. 151, l.c. 153; Ex parte Williams, 139 S.W.2d 485, l.c. 491, 345 Mo. 1121. The provisions of Section 5724 (c), R.S. Mo. 1939, are directory and not mandatory. The words "may, must, and shall" are used interchangeably in the statutes without regard to the literal meaning, and the word "shall" is often construed to mean "may". Kansas City, Mo. v. J.I. Case Threshing Machine Co., et al., 87 S.W.2d 195, l.c. 205, 337 Mo. 913; State ex rel. Carpenter, et al. v. City of St. Louis et al., 2 S.W.2d 713, l.c. 727, 318 Mo. 870; 50 Am. Jr. 47, Sec. 24. It is the general rule that if a statute merely requires certain things to be done and nowhere prescribes the result that shall follow if things are not done, then the statute should be held to be directory. State ex rel. Hanlon v. City of Maplewood, 99 S.W.2d 139, l.c. 141, 142, 231 Mo. App. 739; In re Bank of Mt. Moriah's Liquidation, 49 S.W.2d 275, l.c. 276, 226 Mo. App. 1230; State ex inf. Attorney General ex rel. Lincoln v. Bird, 244 S.W. 938, l.c. 939, 295 Mo. 334; 50 Am. Jur. 49, Sec. 27. The prime object in construing a statute is to ascertain the legislative intent from a consideration of the statute as a whole, bearing in mind the object and the consequences that would result from construing it one way or the other. State ex rel. Hay et al. v. Flynn, 147 S.W.2d 210, l.c. 211, 235 Mo. App. 1003; 50 Am. Jr. 47, Sec. 24; 50 Am. Jur. 49, Sec. 26. It is known principle of administrative law that the interpretation of an ambiguous or uncertain statute by the executive department charged with its administration or enforcement, is entitled to the highest respect from the courts, especially when long continued and uniform, or contemporaneous with the first holdings of the statute. In re Berney's Estate, 126 S.W.2d 209, l.c. 217, 344 Mo. 135; Automobile Gasoline Co. v. City of St. Louis, 32 S.W.2d 281, l.c. 283, 326 Mo. 435; 42 Am. Jur. 392, 400. The Commission has for a long period of time refused to authorize partial transfers of certificates of convenience and necessity issued by it which would result in a splitting of the authority, and so have other Commissions. In re Banner Truck Lines, transfer Case No. T-2945; In re Minker Truck Line, transfer Case No. T-4495, 22 Mo. P.S.C. 309; Re Indianapolis S.E.R. Co., P.U.R. 1933A 293; Re Bacon Service Corp., 30 California R.C.R. 722; Re Welsh Co. E.J. Scannell, Inc., 25 M.C.C. 558; Re Cox Transp. Co.-Moore Flesher Hauling Co., 36 M.C.C. 515; In re Orr Truck Lines, transfer Case No. T-8530; In re Highway Transportation Co., transfer Case No. T-9425; In re Komo Truck Lines, transfer Case No. T-9712. The reenactment of this section (Section 5724 (c), R.S. Mo., 1939) in 1931 and its amendment in 1935 is persuasive evidence of legislative approval of the Commission's interpretation. Town Club of St. Louis v. United States, 68 F.2d 620.
Stone Smith, R. Jasper Smith and S.W. James, Jr. for respondent.
The court must reverse and remand an order of the Public Service Commission which is either unlawful or unreasonable. Section 5690, Revised Statutes of Missouri, 1939; State ex rel. Anderson Motor Service Co., et al. v. Public Service Commission, et al., 134 S.W. 2 1069, l.c. 1076 [8-9], 234 Mo. App. 470; (Affirmed 154 S.W. 2 777, 348 Mo. 613); State ex rel. Potashnick Truck Service v. Public Service Commission, 129 S.W. 2 69, l.c. 72 [1-5]; State ex rel. Kansas City Power Light Co., v. Public Service Commission, et al., 76 S.W. 2 343, l.c. 350-351 [1-4]; State ex rel. Interstate Transit Lines v. Public Service Commission, 132 S.W. 2 1082, l.c. 1086 [1-5], 234 Mo. App. 554. The report and order of the Commission in this case is unlawful for the reason that it is contrary to the express provisions of Section 5724(c), Revised Statutes of Missouri, 1939. Section 5724(c), Revised Statutes of Missouri, 1939; State ex rel. Gehrs v. Public Service Commission, 114 S.W.2d 161 l.c. 164-165 [1], 232 Mo. App. 1018. The report and order of the Commission in this case is unreasonable. State ex rel. Missouri, Kansas Oklahoma Coach Lines, Inc., et al. v. Public Service Commission, 179 S.W. 2 132, l.c. 135 [1-2], 238 Mo. 317; State ex rel. Shepherd et al. v. Public Service Commission, 142 S.W. 2 346, l.c. 347 [2]; State ex rel. Kansas City Power Light Co. v. Public Service Commission, 76 S.W. 2 343, l.c. 351 [1-4], 335 Mo. 1248. The transfer of Certificates of Convenience and Necessity issued by the Commission is governed solely by the provisions of Section 5724(c), Revised Statutes of Missouri, 1939. Section 5724(c), Revised Statutes of Missouri, 1939; State ex rel. Gehrs v. Public Service Commission, 114 S.W. 2 161, l.c. 164-165 [1], 232 Mo. App. 1018. Section 5724(c) does not delegate legislative authority to the Commission to make such transfers as provided therein, but authorizes the Commission to make such transfers under the express provisions of the statute. Missouri Valley Realty Co. v. Cupples Station Light, Heat Power Co., et al., 199 S.W. 151, l.c. 153; Ex parte Williams, 139 S.W. 2 485, l.c. 491 [12], [13], 345 Mo. 1121; Ex parte Lockhart, 171 S.W. 2 660, l.c. 664 [12], [13], 350 Mo. 1220. A Public Service Commission, being unknown at common law, derives its authority wholly from constitutional or statutory provisions. It possesses only such powers as are thereby conferred either expressly or by necessary or fair implication and such incidental powers as may be requisite to carry out those granted. State ex rel. Crown Coach Co. v. Public Service Commission, 185 S.W. 2 347, l.c. 357, [4], 239 Mo. App. 198; State ex rel. Pitcairn v. Public Service Commission, 111 S.W. 2 982, l.c. 984 [1], 232 Mo. App. 755; State ex rel. and to use of Kansas City Power Light Co. v. Buzard, 168 S.W. 2 1044, l.c. 1046 [3], 350 Mo. 763; State ex rel. City of St. Louis v. Public Service Commission, 73 S.W. 2 393, l.c. 399 [9], [10], 335 Mo. 448; State ex rel. Empire District Electric Co. v. Public Service Commission, 100 S.W. 2 509, l.c. 511, [1-2], 339 Mo. 1188. Neither convenience, expediency, nor necessity can be urged in support of an act of the Public Service Commission that is not clearly authorized by statute, since its power must be warranted by the letter of the law or such implication therefrom as is necessary to render power conferred therein effective. State ex rel. Kansas City v. Public Service Commission, 257 S.W. 462, l.c. 462-463 [1], 301 Mo. 179; City of Columbia v. State Public Service Commission, 43 S.W. 2 813, l.c. 815, 329 Mo. 38. The source of the Commission's power is the statute and not its own rules, and the rules of the Commission's power is the statute and not its own rules, and the rules of the Commission could not be invoked to support an order beyond Commission's statutory power. State ex rel. Empire District Electric Co. v. Public Service Commission, 100 S.W. 2 509, l.c. 513 [6], 339 Mo. 1188. The provisions of Section 5724(c), Revised Statutes of Missouri, 1939, relating to the transfer of that part of the certificate sought to be transferred, became mandatory upon the Commission having determined that a sale of that part of the business, rights and assets pertaining to that part of the certificate sought to be transferred had been made, and that the transferee was in all respects qualified under the Act. Section 5724(c), Revised Statutes of Missouri, 1939; State ex rel. Gehrs v. Public Service Commission, 114 S.W. 2 161, l.c. 164-165 [1], 232 Mo. App. 1018. The word "shall" when used in a statute is imperative where the public or persons have rights which ought to be exercised or enforced, but may be held directory only where no right or benefit depends on its imperative use, or permissive when necessary to accomplish the purpose of the legislative act or to sustain the constitutionality of a statute. State ex rel. Carpenter v. City of St. Louis, 2 S.W. 2 713, l.c. 727 [23], 318 Mo. 870; State ex rel. Hanlon, et al. v. City of Maplewood, et al., 99 S.W. 2 138, l.c. 141-142 [1-4], 231 Mo. App. 739. In the construction of statutes, unless plainly repugnant to the intent of the legislature, or the context of the same statute; "First, words and phrases shall be taken in their plain or ordinary or usual sense, but technical words and phrases having a peculiar and appropriate meaning in law shall be understood according to their technical import." Section 655, First Subdivision, Revised Statutes of Missouri, 1939. A primary rule of construction of statutes is to ascertain the lawmakers' intent from words used, if possible, giving language thereof, honestly and faithfully, its plain and rational meaning, and to promote the object of the statute. City of Flat River v. Mackley, 212 S.W. 2 462, l.c. 467 [5, 6]; American Bridge Co. v. Smith, 179 S.W. 2 12, l.c. 15 [4, 5], 352 Mo. 616, 157 A.L.R. 798, cert. den. 65 S.Ct. 37, 323 U.S. 712, 89 L.Ed. 573; Artophone Corpn. v. Coale, 133 S.W. 2 343, l.c. 347 [2-4], 345 Mo. 344; City of St. Louis v. Pope, 126 S.W. 2 1201, l.c. 1210-1211 [8, 9], 344 Mo. 479. The intention of the legislature with respect to the provision providing for transfer of a part of a certificate of convenience and necessity in Section 5724(c), Revised Statutes of Missouri, 1939, is clearly shown by the repeal of former Section 5267, Revised Statutes of Missouri, 1929, and re-enacting the provisions of this section in Section 5268(c), Revised Statutes of Missouri, 1929 (Laws of Missouri, 1931, pp. 308-309, Section 5268(c)), containing the provision for transfer of a part of such certificate not included in the former statute. Section 5267, Revised Statutes of Missouri, 1929; Section 5268(c), Revised Statutes of Missouri, 1929, as repealing former Section 5267, R.S. Mo., 1929, and re-enacting new Section 5268(c), Laws of Missouri, 1931, pp. 308-309, Sec. 5268(c); Section 5724(c), Revised Statutes of Missouri, 1939. The fact that the legislature has provided that no certificate shall ever be allowed a separate value in any such sale, transfer or assignment of business rights or assets will not operate to defeat the plain and unambiguous provisions for transfer of a certificate or a part thereof upon compliance with the other provisions of the Act. State ex rel. Gehrs v. Public Service Commission, 114 S.W. 2 161, l.c. 164-165 [1], 232 Mo. App. 1018. It is fundamental that where the language of a statute is plain and admits of but one meaning there is no room for construction. Cummins v. Kansas City Public Service Co., 66 S.W. 2 920, l.c. 931, 334 Mo. 672; Chrisman v. Terminal Ry. Ass'n of St. Louis, 157 S.W. 2 230, l.c. 234, 237 Mo. App. 181; Goodrich Silvertown Stores of B.F. Goodrich Co. v. Brashear Frt. Lines, 198 S.W. 2 357, l.c. 361; State ex rel. Collins v. Kiernan, 207 S.W. 2 49 l.c. 53; St. Louis Amusement Co. v. St. Louis Co., 147 S.W. 2 667, l.c. 669, 347 Mo. 456. Where there is no ambiguity in a statute the words and phrases must be taken in their plain, ordinary and usual sense. Kateman v. Zink, 180 S.W. 2 253, l.c. 258, 238 Mo. App. 253; Keller v. State Social Security Comm., 137 S.W. 2 989, l.c. 990, 234 Mo. App. 839. If the intention is clearly expressed, and the language used is without ambiguity, all technical rules of construction should be rejected. State ex rel. Wabash Ry. Co., et al. v. Shain, et al., 106 S.W. 2 898, l.c. 899-900, 341 Mo. 19; Norberg v. Montgomery, 173 S.W. 2 387, l.c. 390, 351 Mo. 180. A departmental construction can only be invoked where language of a statute is ambiguous or doubtful. Metropolitan Life Insurance Co. v. Scheufler, 180 S.W. 2 742, l.c. 745, and cases cited therein. The appellant Commission has not been consistent in its interpretation of the provisions of Section 5724(c), Revised Statutes of Missouri. In re Perry Brooks, et al. — Case No. 10,330, Mo. P.S.C.; In re Southwest Truck Lines, et al. — Case No. 10,355, Mo. P.S.C.
Springfield Warehouse and Transfer Company, one of the relators herein, holds a certificate of convenience and necessity issued by the Missouri Public Service Commission, respondent, authorizing it to operate as a freight carrier over an irregular route: "Springfield to and from all points in Missouri in the transportation of household goods and office furniture and fixtures, or in the transportation of heavy machinery and like commodities, requiring special equipment and special services, and no other commodities;" Sur-Way Lines, Inc., the other relator herein, is authorized by respondent to transport live stock to and from Springfield to all points in Missouri. Springfield Warehouse and Transfer Company contracted to sell to Sur-Way Lines, Inc., that part of its rights, business and assets relating to the transportation of heavy machinery, (retaining that part relating to household goods and office furniture and fixtures) and both relators sought an order of respondent transferring that part of the authority, under the certificate.
After a hearing on the application respondent found that Springfield Warehouse and Transfer Company had sold to Sur-Way that part of its business, rights and assets relating to the transportation of heavy machinery and like commodities, requiring special equipment and special services, and that Sur-Way was fully qualified to conduct and carry on the business of a motor carrier; but it denied the application for the stated reason that to permit the holder of a single certificate of convenience and necessity to transfer to another his operating rights as to specific commodities and, at the same time, retain his operating rights as to certain other commodities, would eventually result in chaos in the regulation of transportation. Its policy, of long standing, was to deny applications which, if granted, would result in "splitting" certificates.
Thereafter, relators applied to the circuit court of Cole County and obtained a review of the proceedings and order of respondent. The court adjudged respondent's order to be unlawful and unreasonable, set the same aside, and remanded the cause for further proceedings. From that judgment respondent appeals.
It is the position of both parties that the issues presented here, are governed by the provisions of Section 5724 (c) R.S. Mo. 1939. Relator contends that the provisions of that section are clear and unambigous; and that it was the clear, mandatory duty of respondent to transfer the authority as requested. Respondent contends that the meaning of that section is not clear, that the wording of the statute renders its meaning ambiguous, and that, therefore, the interpretation placed upon it by respondent, over a long period of time, should be given force and effect by the courts.
The language of subsection c, of Section 5724, supra, is as follows:
"(c) Where a certificate such as provided for in subsection (a) of this section shall have been issued and thereafter the motor carrier to whom such certificate shall have been issued shall sell, transfer or assign the business, rights and/or assets of such motor carrier, or any part thereof, then and in that event the said certificate originally issued to such motor carrier, or the part so sold, shall, upon application to the commission, if the commission shall be of the opinion that the purchaser thereof is in all respects qualified under the provisions of this article, to conduct the business of a motor carrier within the meaning of this article, be by the commission transferred to the purchaser and be effective in like manner as though originally issued to such purchaser:" (Emphasis ours).
Article VIII of Chapter 33 R.S. Mo. 1929, was originally enacted in 1927. Page 402, Laws Mo. 1927. It constituted the first statutory code of this state regulating the transportation of persons by motor vehicle, for hire. Section 5267 thereof was the predecessor of Section 5268, R.S. Mo. 1929. Section 5267, supra, made no provision for the transfer of "any part" of a certificate holder's "rights, business, and/or assets," or "of the part so sold" (of said certificate) as is provided in Section 5724 (c) supra. In 1931 the Legislature repealed Article VIII, supra, in its entirety and, in lieu thereof, enacted what is now Article VIII, Chapter 33, R.S. Mo. 1939. Section 5268 (c) now Section 5724 (c), thereby first came into the law. A significant change was made in the law as it had previously existed. For the first time provision was made for the sale or transfer by a certificate holder, of a part of his business, rights and assets and a transfer, by the Commission, of "the part so sold" (of the certificate) to the purchaser.
It is the practice of respondent to permit a part of a route, over which a certificate holder is authorized to operate, to be transferred to a person to whom the certificate holder has sold, transferred or assigned that part of his business, provided said certificate holder has retained no control of, or rights in, that part of the route; and it is a rule, of long standing, to refuse to transfer a part of a route, or a part of the authority held by a certificate holder, where he retains some control over the part so sold, or of the route, or of its terminal. To permit a transfer in the latter mentioned class of cases would result in a "splitting" of the certificate, so it is said. This rule was originally adopted by respondent many years ago, and is the rule followed by the Interstate Commerce Commission. Respondent advances the same reasons, in support of their ruling in this respect, as are given by the I.C.C. in similar cases.
However, the adoption of such a rule by respondent can only be legally authorized upon the grounds that the Legislature has directly, or by necessary or reasonable implication, authorized the same. Respondent has no power except that granted by its creator. Missouri Valley Realty Company v. Cupples Station Light, Heat Power Company, 199, S.W. 151, l.c. 153; Ex parte Williams, 139 S.W.2d 485, l.c. 491.
The Legislature has declared the public policy of this state, regarding the transfer of certificates. Respondent is merely the instrumentality of the Legislature, created for the purpose of carrying out that policy. It has no power to adopt a rule, or follow a practice, which results in nullifying the expressed will of the Legislature. It cannot, under the theory of "construction" of a statute, proceed in a manner contrary to the plain terms of the statute; and the fact that such a rule has been in existence for a long period of time does not give it legal effect or make its legality persuasive on the court, except in cases where the statute may fairly be said to be ambiguous. Metropolitan Life Insurance Company v. Scheufler, 180 S.W.2d 742, l.c. 745.
In construing the above section of the statute this court said:
"Under the provisions of the statute the Commission, in passing upon the application for the transfer of Gehrs' certificate, was called upon (1st) to find whether there had been a sale, transfer, or assignment of the business, rights and/or assets of Gehrs to the Banner Truck Lines, Inc., and (2nd) as to whether the Banner Truck Lines, Inc., was in all respects qualified under the provisions of the act to conduct the business of a motor carrier within the meaning of the act." Gehrs v. Public Service Commission, 114 S.W.2d 161, l.c. 164, 165.
In effect, we held that the Commission is required, by the terms of the statute, to transfer a certificate after it has found that a sale of the business, rights and/or assets of the certificate holder has been made, and that the transferee is qualified to conduct the business of a motor carrier. Under the statute, the parties to the transaction are entitled, as a matter of right, to have the certificate transferred. The language of the statute is clear, unambiguous, and is not subject to any other construction. Since there is no ambiguity we may not resort to the various rules of construction which, otherwise, might be applicable. State ex rel. Collins v. Kiernan, 207 S.W.2d 49, l.c. 53. It does not require, or permit, the Commission to determine that the transfer of the certificate is for public convenience and necessity.
However, the sale here made, and the transfer of authority sought, is as to a part only of the rights, business and/or assets of Springfield Warehouse, and as to a part of its certificated authority. Under its certificate it had authority to transport for hire two classes of property, the second class mentioned therein being "heavy machinery and like commodities requiring special equipment and special service * * *." That is the part of the rights, business and assets of Springfield Warehouse which was sold. The part sold is readily ascertainable and identifiable, and is severable from the other part of its rights, business and/or assets, which it retained. The authority to transport heavy machinery and like commodities requiring special equipment and special services is as easily ascertainable and severable from the other part of Springfield Warehouse business as is a certain specified segment of a route over which a carrier has been authorized to operate and which he wishes to transfer to another. Respondent does not contend that the statute is ambiguous in respect to a transfer of the last mentioned character.
We do not discuss the power of respondent to refuse to transfer a certificate, or a part thereof, when such transfer would result in "splitting" a certificate, because not required to do so in order to dispose of the issue here presented. It may be observed, however, that if the statute plainly authorizes the transfer of a part of the authority of a certificate holder, so as to effect the "splitting" of a certificate, respondent may not refuse to comply with the provisions of the statute merely because to do so would, in the judgment of respondent, result in chaos in the regulation of motor transportation. The Legislature alone has the power to declare the general law relating to this subject, and respondent must observe same. If the interests of the public require a change in the law in this respect, then it is a matter for appropriate action by the Legislature whose attention will, no doubt, be attracted by this decision.
The judgment should be affirmed. Bour, C., concurs.
The foregoing opinion of SPERRY, C., is adopted as the opinion of the court. The judgment is affirmed. All concur.