357 S.W.2d 96 | Mo. | 1962
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
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
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. Although a railroad case and even though the extension was not required by the court, in the Oregon-Washington Railroad Company case the commission had found that the 185 mile extension would add 1.2 per cent to the railroad’s track system at a cost of between $9,900,000 and $11,700,000 which the Union Pacific Railroad “is found to be in position to make them.” Interstate Commerce Commission v. Oregon-Washington R. Co., 288 U.S. 14, 53 S.Ct. 266, 77 L.Ed. 588. Here, from its annual reports over the years (to the use of which the appellant objects), the commission, in its “finding of facts,” sets forth the operating revenue of the company from 1955 to 1959 and that shows a total of $61,515.58 in 1955 and $120,236.76 in 1959. There is nothing in the record, however, as to what became of the operating revenue or how much of it represented profit. There is no evidence as to the indebtedness of the company, the only hint is in the finding of fact that in 1957 the company converted to dial operation “with funds borrowed from the Rural Electric Administration.” In answer to the company’s plea of difficulty in securing funds the commission, in its finding of facts, answers that the company had recently committed itself to the purchase of a telephone exchange in Stockton, in adjoining Cedar County, and that “All the expenditures so far have been made through loans from the Rural Electric Association.” Thus in neither the finding of facts nor in the order is there any substantial evidence concerning the financial resources of the Bolivar Telephone Company or of its ability to initially finance this $300,000 project.
' In its “Discussion and Conclusions” there is the statement, “We understand that the
PER CURIAM.
The foregoing opinion by BARRETT, C., is adopted as the opinion of the Court.
All of the Judges concur.