63 S.W.2d 88 | Mo. | 1933
Eespondent herein, a corporation, applied to the Public Service Commission for a certificate of convenience and necessity to operate as a motor bus carrier of passengers between Independence, Fairmount Park and Kansas City, Missouri, and also for approval of a proposed issue of stock. Eespondent does not propose to do intra-city transportation in Kansas City. The request for approval of the stock issue was conditioned upon the granting of the certificate of convenience and necessity. The two applications, numbered respectively 6702 and 6703, were consolidated and heard as one case.
■ Kansas City Public Service Company, a corporation, which for convenience we shall refer to as the service company, operated a street car and motor bus passenger transportation system in Kansas' City and its suburban territory, extending to Independence, serving the territory proposed to be served by respondent, with street car lines substantially paralleling respondent’s proposed route, and shortly prior to the hearing before the commission had installed a motor bus line as additional service' for the territory proposed to be served by respondent. It appeared as a party to the proceedings before the commission, protesting against the granting of the certificate sought by respondent. The commission, after a hearing, denied respondent’s application. On certiorari for review, sued out by respondent herein, the Circuit Court of Jackson County, sitting at Independence,
The commission, after considering the voluminous evidence offered at the hearing on respondent’s applications, concluded that the public welfare would be best served by refusing the certificate of convenience and necessity sought by respondent, and accordingly denied it. Since respondent asked approval of its proposed stock issue only if its application for the certificate of convenience and necessity should be granted, the application for approval of the stock issue was also denied. In the view we take of the case it would serve no useful purpose to summarize the evidence. In our opinion the circuit court was without authority to review the proceedings and order of the commission because the applicant did not file a motion for rehearing before the commission within the time prescribed by statute, and did not make timely application to the circuit court for review. We are therefore precluded from considering the question of the sufficiency of the evidence to sustain the commission’s order.
The commission’s order denying respondent’s application was made and dated April 25, 1930. Omitting the findings of fact, the reasons stated by the commission for its conclusions and the signatures, the order reads:
“It is, therefore, after due consideration,
‘ ‘ ORDERED: 1. That the application of the Kansas City, Independence and Fairmount Stageline Company for a certificate of public convenience and necessity to operate as a motor carrier from Independence and through Fairmount to Kansas City be and the same is hereby denied.
“ORDERED: 2. That the application of the Kansas City, Independence and Fairmount Stageline Company' for authority to issue stocks be and the same is hereby denied.
*551 “ORDERED: 3. That the Kansas City Public Service Company place into service a sufficient number of sedan automobiles or light, fast busses to meet the demand on the part of the patrons of this route for this mode of transportation.
“ORDERED: 4. That this report and order be effective ten days after the date hereof and that the secretary of this Commission be required to serve certified copies of the report and- order herein upon all persons interested in these proceedings and that the applicant and all other interested parties shall notify the commission on or before the effective date of this report and order, in the manner prescribed by Section 25 of the Public Service Commission Law, whether the terms of this order are accepted and will be obeyed.”
On May 5, 1930, respondent filed with the commission its motion for rehearing. On the same day the service company filed a motion asking the commission to modify order No. 3, which related solely to said company so that said order No. 3 should not require but only recommend that said company put into operation the automobiles or fast busses there referred to, the ground of said motion being that the commission did not have jurisdiction to make that order since the major part of said company’s transportation system was in Kansas City. [See Sec. 5264, R. S. 1929.] On June 16, 1930, the commission overruled respondent’s motion for rehearing, but on the same day made and entered a “supplemental” report and order setting aside its above mentioned order No. 3 of April 25, but making no change in or reference to orders Nos. 1, 2 and 4 above quoted. The commission gave its reasons for concluding that it had exceeded its jurisdiction in making' said order No. 3 and ordered: 1. “That the third order in the report and order of this commission in the above named cases (the order of April 25) be and hereby is set aside and held for naught.” 2. “That this report and order be effective from and after this date.” On June 26, 1930, ten days later, respondent filed with the commission a motion “for a rehearing of its supplemental report and order heretofore made in this cause on the 16th day of June, 1930, and to set aside the order of this commission made on the 16th day of June, 1930, overruling the applicant’s motion for a rehearing of the original order of this commission and in lieu thereof to enter an order dismissing the application herein,” stating as its reasons, in substance, that the applicant was in the same situation as the service company with regard to the business it proposed to conduct and for similar reasons was not subject to the jurisdiction and control of the commission. This latter motion, which for convenience we may designate as the second motion for rehearing, was overruled by the commission on July 17, 1930.
On August 12, 1930, respondent herein, applicant before the commission, sued out of the circuit court a writ of certiorari for review of the proceedings and orders of the commission, making the com
Respondent invoked the jurisdiction of the commission and recognized it until after its motion for rehearing had been overruled. Even in its petition for certiorari it seeks review of the commission’s findings and conclusions on the evidence, evidently still invoking the Public Service Commission Law rather than distinctly seeking the setting aside of the commission’s orders on the ground that the commission -had acted- without jurisdiction or in excess of its jurisdiction. We shall not, therefore, enter into a discussion of the question of jurisdiction. Suffice it to say on this question that respondent did not propose to do an intra-city business in Kansas City, that is, to transport passengers from one point to another point in the city. It proposed only to take passengers from a point or points within to points outside the city and vice versa,. We. think the commission was right in exercising jurisdiction of the applications. See for discussion . of the principle involved, State ex rel. Ferguson-Wellston Bus Co. v. Public Service Commission, 332 Mo. 283, 58 S. W. (2d) 312.
The statute, now Section 5233, Revised Statutes 1929, Missouri Statutes Annotated, Volume 9, page 6660 (Sec. 10521, R. S. 1919), provides in substance and effect that in order to be entitled to a review of an order or decision of the commission the person or corporation seeking the review must have made application to the commission for a rehearing “before the effective date” of such order or.decision. “Such application shall.set forth specifically the ground or grounds ( on which the applicant considers said order or decision to be unlawful, unjust or unreasonable. No corporation or person or public utility shall in any court urge or rely on any ground not so set forth in said application.”
In Lusk v. Public Service Commission, 277 Mo. 264, 272, 210 S.
The learned circuit court recognized this conclusion but held, as we understand the opinion filed with the judgment and as respondent here contends, that the effective date of the commission’s order of April 25 was May 6; this on the theory that the order of the commission making its order denying the applications ‘ ‘ effective ten days after the date hereof” must be construed to mean that ten full days, 240 hours, must elapse between the day on which the order was made and the day on which the order Yvas to-become effective. In reaching that conclusion the court relied chiefly upon Ex parte Lucas, 160 Mo. 218, 61 S. W. 218, citing also State v. Criddle, 302 Mo. 634, 259 S. W. 429. In Ex parte Lucas this court, speaking of a certain act passed in 1899, remarked that the General Assembly of that year adjourned May 22, 1899, and that the law took effect August 22 “ninety days after the General Assembly adjourned on May 22.” It is patent there is an error in the statement. August 22 was the ninety-second day after adjournment. The learned circuit court in the instant case said: “The inadvertence seems to be error of calculation of ninety-two - days for ninety-one, and the statute must have become effective on August 21st, the 91st day after May 22nd.” We think it more likely the inadvertence was in' counting roughly three calendar months as ninety days. A few days more or less as to the time the act took effect made no difference in the disposition of the question at issue- in -the Lucas case and the court there was not concerned with the method of computing the time or' whether the act took effect on the ninetieth or the ninety-first day after adjournment of the Legislature. The same is true of State
In National Bank of Commerce v. Mechanics’ Amer. Nat. Bank, 148 Mo. App. 1, 15, 127 S. W. 429, it is stated that the law under consideration took effect June 16, 1905, the Legislature enacting it having adjourned March 18, 1905. That would be the ninetieth day after adjournment.
Our secretaries of state have apparently varied in computing the ninety days after adjournment when by law acts without emergency clauses take effect. In his certificate appended to the laws enacted by the Fifty-seventh General Assembly the Secretary of State certifies that said General Assembly adjourned Tuesday, April 25, 1933, and that the laws enacted by it go into effect Juty 24, 1933, which is the ninetieth day after adjournment. [See Laws 1933, p. 484.]
In State v. Schenk, 238 Mo. 429, 451, 142 S. W. 263, the court quoted the certificate of the Secretary of State stating when legislative acts passed in 1899 took effect, thus: “The Legislature having-adjourned on the twenty-second day of May, the laws without an emergency clause go into effect on Sunday, August 20, 1899.” August 20 was the ninetieth day. The court further said, 238 Mo. l. c. 452: “In 1909 the Secretary of State in his certification (Laws 1909, p. 920) makes this statement: ‘The Legislature having adjourned the 17th day of May, the laws, not revision measures, and without emergency clauses, go into effect Monday, August 16, 1909. .’ ” August 16 was the ninety-first day after adjournment. In the Schenk ease the question for decision was whether the act there under consideration took effect ninety days after adjournment of the Legislature, or, that having been a revising session, on No-vember 1 of that 3^ear. The court decided that it took effect “ninety days after the Legislature adjourned.” But in that ease as in the Lucas and Griddle eases and in the cases cited in the Schenk case, the court was not concerned with the method of computing the ninety da3rs or with the question of whether the computation should include, or exclude the ninetieth, day. Tn no case we have found has this court passed upon that question where it was an issue in the ease. Tt is suggested that some of the differences in the time of taking effect of legislative acts as between ninetieth and ninety-first da3^s after adjournment of the Legislature, shown by various certificates of dif
Our statute, Section 655, Revised Statutes 1929 (7 Mo. Stat. Ann. p. 4899), provides: “The .construction of all statutes of this State - shall be by the following additional rules, unless such construction be plainly repugnant to the intent of the Legislature, or of the context of the same statute.: . . . Fourth, the time within which an act is to be done shall be computed by excluding the first day and including the last, if the last day be Sunday it shall be excluded. . . . ” The statute has been applied in many eases under varying circumstances. For illustration see the following:
In Scharff v. McGaugh, 205 Mo. 344, 103 S. W. 550, an execution issued February 1, 1893, returnable in ninety days, was held properly returned on May 2, which was the ninetieth day after the date of issuance. Under the old law requiring an order of court allowing and fixing the time for filing bills of exceptions, the time was computed by excluding the- day on which the order was made and including the last day of the period named in the order. In Graham v. DeGuire, 154 Mo. 88, 55 S. W. 151, the leave given was to file the bill within ninety days. In State v. Harris, 121 Mo. 445, 26 S. W. 558, leave was given to file the bill “sixty days from this date.” In Linahan v. Barley, 124 Mo. 560, 28 S. W. 84, the order was to file the bill “in sixty days.” [See, also, other cases cited in Graham v. DeGuire, supra.]
In Gray v. Worst, 129 Mo. 122, 31 S. W. 585, the court applied the statutory rule for computing the time within which an act is to be done to a contract, viz., a deed of trust which provided for sale by the trustee in case of default “after having advertised such sale thirty days in a newspaper, ” etc. The first insertion of the advertisement was on May 19. The sale was advertised for and was made on June 18, which was held to be a thirty days’ notice by counting the day of the sale and excluding the day of the first publication.
In 26 Ruling Case Law, page 745, section 19, it is said:
“When time is to be computed from a particular day or when an act is to be done within a specified period from or after a day named, the rule is to exclude the first day designated and to include the last day of the specified period; except when the statute requires so many entire days to intervene, in which case both are excluded; and in many jurisdictions this common law rule has been codified.” See, also, Stutz v. Cameron, 254 Mo. 340, 162 S. W. 221, for discussion of our statutory rule of computation.
Respondent argues that if May 5 be deemed the effective date of the order it still had, under the statutory rule of computation, until and including that day to file its application for rehearing because it would thus have .nine days after date of the order within which to file said application and the last day of that time, the ninth, fell on Sunday; wherefore, under the statute, the filing on the following Monday, May 5, was timely. It cites Spring v. Giefing, 315 Mo. 525, 289 S. W. 825. It was held in that case that when the last of the ten days after judgment allowed by statute for taking an appeal from a justice of the peace court fell on Sunday that day should be excluded under the statutory rule and that an appeal taken on the following Monday was timely. That rule would apply if the statute fixed a certain period, as so many days, after the making .of the order or decision, within which the application for rehearing should be made. But the statute does not so read. It requires that such application shall be made "before the effective date” of the order or decision. The time for applying for rehearing is not to be reckoned from the date when the order or decision in question was made but is to be determined with reference to the effective date of such order or decision. Under this statute we think the rule excluding Sunday when it is the last day of the specified time within which an act must be done cannot be applied.
It is further suggested that under Section 10 of the Motor Bus Act of 1927, Section 5277, Revised Statutes 1929, the commission’s order could not become effective until thirty days after it was made even though the commission attempted to fix an earlier effective date, and therefore the application for rehearing was timely. That section provides that the orders and decisions of the commission on matters covered by the act shall be reduced to writing and a copy thereof served on the motor carrier affected thereby by mail "and such order and decision shall become operative and effective within thirty days after such service,” etc. We do not think that.provision was designed to prohibit the commission from fixing an effective date within such thirty day period and earlier than thirty days from the date of the order or decision. There might be many orders that reasonably could and in the judgment of the commission should be made effective in less than thirty days. The first-section of the act, incorporated as Section 5264, Revised Statutes. 1929, in the Public Service Commission Law, provides among other things that operators of motor vehicles coming within the act shall be deemed common carriers within the meaning of the Public Service Commission Law and must obtain from the commission certificates of «lonvenience and necessity. By Section 5265 the commission is given
It is our conclusion that the commission had authority to make the order in question effective ten days after its date; that the effective date of the order, within the meaning of the statute, was May 5; and that the application for rehearing, not having been made before that date, came too late.
We are of the opinion, also, that the application to the circuit court for certiorari or review was made too late, under Section 5234, supra.' Respondent’s motion for rehearing before the commission was overruled on June 16. It did not apply for certiorari until August 12, much more than thirty days thereafter. It contends that the time should be considered as running from July 17, the day when its second motion for rehearing was overruled by the commission. We do not agree with that contention. The modification of the commission’s order of April 25, made on June 16, did not affect respondent nor in any way change the order of April 25 as to it. It affected onty the protestant service company. As to the latter but only as to it the commission set aside its former order. As to respondent the order of April 25 remained as it had been originally
It follows that the circuit court was without jurisdiction to review the order of the commission. Its judgment is therefore reversed and the cause is remanded to that eourf with directions to quash the writ of certiorari issued by it and to dismiss respondent’s petition for the writ.
The foregoing opinion by Cooley, C., is adopted as the opinion of the court.