*1 STATE of Missouri ex rel. PHILIPP INC., LINES, Appellant,
TRANSIT
PUBLIC SERVICE COMMISSION al., Respondents.
State Missouri et
No. 59730. Missouri,
Supreme Court
En Banc.
June
Respondents’ Rehearing Motion July
Denied *2 Sapp, City, appel- H. Kansas
Warren lant. Counsel, Curtis, Roger B. General
Leland Counsel, Baron, Missouri Public Service M. Commission, respondent. City, for Jefferson Martin, City, amicus curi- John T. Kansas ae, City for Kansas Star. III,
Stanley Christopher, City, P. Kansas curiae, County. amicus for Jackson FINCH, Judge. question of wheth-
This case involves of Missou- er the Public Commission Service report a case (PSC) may ri decide voting1 or notational and order must acted report whether public meeting which notice upon at given. has been accompanies If a frequently employed and order. com- procedure, 1. Under commissioner, PSC, agreement, has various missioner options, including requesting he each after consider- order, approval conference indicates ation of the circulated filing preparing and a dissent. on sheet which or dissent On February Thereafter, issued an application we order to show cause why authority of ordered the case transferred to this court in Lines, Inc., Philipp Transit (Philipp) pro- Const, accordance V, 10, with Mo. art. vide certain service suspended should not be we now decide though it as here on direct or revoked and penalties sought because of appeal. reverse We and remand with di- allegedly illegal hauls. At issue was wheth- *3 rections. er Philipp was authorized to conduct direct Philipp, arguing that when operations motor carrier between St. Louis the proposed report and order this case and Kansas City. the PSC members were required to assem- Following hearing, a formal a member of ble in a meeting they at which cast their the PSC who had conducted hearing thereon, votes relies on provi- two statutory
prepared proposed report and order. sions. The first of these is 386.130.3 and order was circulated to other members of the PSC for notation Chapter governs the creation or- approval thereon of their or disapproval. ganization of the It PSC. was enacted Four of the ap- commissioners indicated originally in 1913. relied Section of proval proposed report and order on on by Philipp governing as the disposition the notational voting sheet. The fifth com- case, of this organization covers of the missioner was marked absent and did not meetings authorizes thereof and defines vote. No of the meeting was held to quorum what is a for the transaction of Instead, vote on the report and order. business. It is unchanged from the form in was adopted considered on the of basis which it was enacted in 1913. 1913 Mo. printed order was Laws, p. and on July was mailed to all parties of record with an effective date of Philipp argues that 386.130 makes the July collegial body commission a which is re- petition review, On for the circuit court quired meetings to hold at which it makes affirmed the order directing Philipp to the final decisions as a body. That cease service between St. Louis and Kansas language requires, so says Philipp, is clear City directing the order the General because the section was taken from a New Counsel to penalties. seek The order sus- which, York statute at the time it was pending Philipp’s intrastate authority for 30 borrowed, had been construed was days reversed. York courts as that an requiring order dis- parties appealed Both to the Missouri posing of a case be a meeting of District, of Appeals, Court Kansas City quorum the commission at which a was remanded, which directing reversed and present. which, circuit court to remand to the PSC The New York statute from which the case, after reconsideration of the was di- predecessor of 386.130 is said to have been rected to a report and order in a Laws, taken was 1907 N. Y. ch. public meeting after notice pursuant to the sections, Comparison of the two set out side provisions Open Law, of the Meetings ch. side, shows Supp.1973, commonly they referred to are almost identi-
as the Law”. “Sunshine cal. pro- necessary
2. The PSC order directed to cease and reverse and remand for that viding reason, service between St. Louis and Kansas we do not relative to detail the evidence City. suspended Philipp’s operations It also intrastate au- between St. Louis and Kansas thority days City they for 30 and ordered the PSC Gener- and whether were authorized. seeking penalties al to Counsel file an action for violations under § 390.051 RSMo 1969. statutory 3. All references are to RSMo 1969 Since we conclude that a of the PSC unless otherwise indicated. ch.
Sec. 386.130 RSMo 1969 1907 N.Y.Laws. 429. S 11 majority duly shall the commissioners shall promptly “The commission “A majority quorum for transaction organize. A of the constitute commissioners business, quorum any performance any constitute for shall for transaction business, any power any performance duty for any or the exercise commission, may meetings duty any power hold or for the exercise of place may any within meetings time or hold the commission investigation, inquiry any place Any or time or within state. commission power investigation, inquiry has Any hearing hearing which either commission state. power may to be undertaken the commission has hold under- undertake may any hold commissioner. All take undertaken or held or held or before inquiries, hearings investigations, deci- by or before commissioner. All investi- gations, inquiries, hearings be and be sions of commissioner decisions investigations, inquiries, a commissioner shall be and be deemed to be deemed *4 investigations, inquiries, hearings hearings the and decisions the commission and commission, commissioner, every every by the decisions of and order and made a order commissioner, by by approved decision made com- and when and confirmed the office, approved and confirmed the filed in its shall commission mission ordered office, in ordered filed shall be be to be the order of the deemed to be and be deemed the order the commission.” commission.” once, arrest, the English statutes as to at two only two differences the There are attention, inquiry the sentence the wheth Missouri added force sections. the com- beginning provides which that is of the statute up made er our statute That did organize promptly. mission shall changes William, such with Anne bor- meaning portion alter the of the the minds of themselves to suggested as The from the New York statute. rowed our statute is legislators, our whether in the third sentence of other difference is of some other from the statutes borrowed precedes 386.130 wherein the word “the” thought, mind by this state. Induced “commission” whereas in the cor- the word stat is once look prompted 11 of the New responding sentence York, principally utes of the state of New pre- York statute the word “commission” is large part so of our statute because “either”. This differ- ceded the word that state. borrowed from laws have been for the fact that ence accounted is that inquiry such an The result of each New York there was commission for to be almost York are found laws of New there is of two districts whereas in Missouri phrase The with our statutes. identical a commission for the entire state. See the convic compels statutes of both ology Laws, 4. N. Y. ch. 3 and §§ statute, for the first passed tion that our identity supports The of the two statutes 430), (Rev.St.1835, p. in 1835 time 386.130 was contention of that New York statutes from the borrowed * n ”* New York from the statute. PSC borrowed 1829. in its brief. does not contend otherwise what is now and hold that We conclude recog- frequently occurred was this N. Y. from 1907 was borrowed Wand, 170 court in Burnside v. nized Laws, occurred in 1913. 11. That ch. (banc 1902). The court Mo. S.W. Y. law had time, the N. At that 11§ case source of a Mis- in that considered Whitridge, 144 People been construed pertaining to actions bonds souri statute (1911), 486, 129 N.Y.S. App.Div. any other than the breach of condition (1912), as aff’d, N.E. 1112 204 N.Y. money. concluding In payment follows: from was borrowed the Missouri statute “ * ** that: provides statute said, 71 at 350: York, the court S.W. “ * * * the commissioners majority ‘A there are such differences But for the trans- quorum constitute a and the between our statute
apparent borrowed, business, statute perform- interpreting for the such action of any statute, pre- or for the exercise are borrowed also. For it is any duty, ance of may legislature sumed that adopting of the any power place time or of a sister knew of meetings hold statute state the in- the state.’ terpretation placed upon within Section state, courts of such sister and intend- of five indi- body composed
“The is not put like should be ed that a independently, to act viduals authorized upon part the statute after it became a ‘there shall be a provides for the act adopting dis- state. When we for each laws Service Commission Public adopt the New York statutes we there- trict.’ Section interpreting fore decisions of “And, while individual commissioners that state also.” ‘investigations, inquiries may hold must (section 11), the final act hearings’ This doctrine was reaffirmed State at a body as a be that of the commission Anderson, (Mo.banc 515 S.W.2d and it is quorum, attended 1974): for the violation of an order only “* * * The rule is well established body penalty as such a commission enacts into law legislature that when the In there imposed. can take from the laws they a statute order, it was been a valid should have state, interpre- they adopt of another it appear necessary that by the courts of placed tation thereon *5 commission, act- adopted by the had been to the time the statute is prior that state a stated ing majority, at a and at least by Missouri. This rule was ex- enacted called and meeting, meeting properly or a in Box Co. v. Missouri pressed General all commissioners had been of which Co., 55 Utilities 331 Mo. S.W.2d opportunity had an to notified and had (1932) 447 as follows: attempt No was Cyc. p. 10 present. ‘It be noted that this construc Although the proof. this supply made to was tion of the Nebraska statute pow- important commission is a most highest court of placed thereon one, that no minutes are appeared erful it here, adoption state to its prior that least, none at kept proceedings; that, the law is well settled when opportunity an although were produced, one state a statute of another adopts them, if plaintiffs produce to given was of that state state which the courts Thus, case was final- as the they existed. construed, construction have then such no le- absolutely was there ly presented, along adopted will be held to have been all, evidence, evidence at that or gal v. Continental with statute. Schott or- adopted ever the commission had Underwriters, 326 Mo. 31 Auto Ins. charged with hav- defendant der which 7, 11; rel. Westhues v. ex S.W.2d State ing violated.” 546, 578, Sullivan, 224 283 Mo. S.W. the well established rules One of 327; Railroad, Yost 245 Mo. is that when a state construction
statutory ” 149 577.’ S.W. another state and a from borrows law, borrowing state also enacts it into in the rule articulated Under placed thereon adopts the and the cases cited Burnside and Anderson in enactment the bor prior to the time of Missouri, 11 from therein, borrowing in § the state from by the courts of rowing York, meaning state it with the enacted was taken. This rule which the statute was meant Whitridge. ascribed thereto Burnside, Mo. 71 S.W. 386.130, stated in statute, pro presently that our § 350, thus: commissioners that “while individual vides * “* * inquiries and hear ‘investigations, a may rule of law that when hold It is a * * that *, act must be state the final ings’ from another statute is borrowed meeting at a body as a from which the of the commission of the state
the decisions * * Whitridge. We interpreted was a *. In order taken quorum attended this contention. overrule order, it have been valid that there should it necessary appear that it should was advanced is that argument Another commission, acting adopted by been
had
pari
read materia
386.130,
with
§
by majority,
and at a stated
least
386.040,
notational vot
prohibit
does not
§
or a
called and
meeting,
meeting properly
Although no reference is made
ing.
Whitridge,
argument apparent
been
this
all
had
PSC
of which
the commissioners
386.040
somehow
ly presupposes
opportunity
an
to be
notified
had
Whitridge.
We
nullify
would
the effect
present.”
386.-
no merit in this contention. Sec.
find
of the
for establishment
simply provides
there was
concedes that
commission, and,
reciting that it
after
Instead,
meeting.
no such
in the
specified
duties
powers
have the
adopted
notation
pursuant
order
powers
it shall have “all
states that
chapter,
voting procedure
described.
previously
al
carry
out
necessary
proper
to enable
Hence,
followed
not con
procedure
did
purposes
all
fully
effectually
As
requirements
form to
386.130.4
nothing
lan
We find
in that
chapter”.
result,
subject
is voidable and is
legislature
which indicates
guage
for review
proceeding
to attack
this
change
intended
to amend or
thereby
circuit
appeal from the action of the
the requirement
386.130
to eliminate
thereon, unless,
one
reasons
court
interpreted Whitridge,
as
PSC,
contrary
is indi
advanced
result
the com
orders be
cated.
to a con
persuaded
mission. Nor are we
Inc. v.
Airways,
Braniff
trary
result
place,
In the first
PSC contends
C.A.B.,
U.S.App.D.C.
379 F.2d
mem-
say
does not
that the
simply
Lines,
Freight
Inc. v.
T.S.C. Motor
(1967)
group
bers must assemble in a
States,
United
F.Supp.
(S.D.Tex.
prohibit-
or that notational
orders
Herrin
1960),
per
aff’d
curiam sub nom.
words,
says
In other
“If
ed.
States,
Transp. Co. United
U.S.
*6
it
requires meeting,
statute
a
not obvious
is
(1961),
tory
construction established
Burnside
to support
Cases cited
this contention are
whereby
and Anderson
Morgan,
we
386.- United
States
U.S.
as it
had
been construed
(1941),
New S.Ct.
York courts at the time Commonwealth, we borrowed the wealth Utility Public Commission, statute. 17 Pa.Cmwlth. 331 A.2d (1975), and Braniff Airways, Inc. v. Next, argues PSC if G.A.B., supra. ambiguous as to whether or not notational voting is permissible, give we great We find argument no basis weight to long standing interpretation for sustaining the system notational vot statute that permits ing lieu meetings commission at It argues use of which cases are decided and adopted. orders been open long such has and of Morgan propriety involved the of actions standing statute and the should be inter- Secretary Agriculture taken preted accordingly. setting charged maximum rates agencies market their services It is true that administrative in City stockyards subsequent Kansas and the tool terpretation is utilized as a for deter impounding of excess funds. The trial mining legislative construing intent when Secretary’s court held the order invalid and ambiguous However, an statute. such tool in the process taking authorized of a not be utilized in a situation may wherein deposition from Secretary. Su prior such administrative interpretation preme reversed, saying Court U.S. been judicially interpreted. had 1004: S.Ct. Administrative would not be “The proceeding Secretary before the [of permitted to alter or overturn a prior judi Agriculture] quality resembling ‘has a cial construction of the statute. judicial proceeding:’ . which,
Here deal we with a statute judge Such an examination of a would be when borrowed in had been judicially judicial responsibility. destructive interpreted judicial in New York. That judge Just as a cannot be sub- *7 was when we jected enact to scrutiny, such a ... so true, This being ed that statute. the com integrity the of proc- the administrative ” mission could not circumvent ess be judicially respected. must . equally . meaning by subsequent
established ad Morgan rule, laid the the foundation for interpretation. ministrative followed the other cases cited Finally, argues proce- the the process PSC administrative decisional adopting probed questioned dure followed in the cannot appeal. and be and on case, Park, in this there substantial But see to Preserve order was Citizens Overton Volpe, compliance chapter with 386 and when Inc. v. U.S. S.Ct. pari (1971). 386.130 is read in materia with L.Ed.2d 136 provides respect
5. Sec. 386.610 as follows: omission a technical nature in provisions chapter The thereto. of this shall compliance “A substantial with the re- liberally to construed with a view the quirements chapter of this shall sufficient welfare, public rules, orders, efficient facilities and sub- give all to effect to the acts and justice public patrons regulation they stantial between and illegal inoperative, not be declared or void for utilities.” JJ., RENDLEN, dissent cases, deal MORGAN of these all of which None dissenting opinion separate concur in proce- the internal right probe with the to BARDGETT, J. deci- in the administrative dures involved to the issue we pertinent are process, sional DONNELLY, concurring. Judge, simply this: Does That is question resolve. principal opinion concur commis- require meeting 386.130 Commission agree that the Public Service is to be decided or sion at which this case sense, subject to is, general in a of Missouri vot- permit does the statute the notational However, I wish to Law. Sunshine utilizing ing employed, thereby decide, to right expressly reserve separate individual actions commission- whether presented, question it is where applies in situations Law are then “tacked” consolidated Sunshine ers which exercising quasi-judi is the Commission we produce to When decide that decision. rights function and constitutional cial conducting sanction- we question, are are involved. See process and due privacy decision-making into the ing inquisition an Dekle, Justice, in Can dissenting opinion examining Nor are we process PSC. of Ala Public Instruction ney v. Board of for mere technical error. 260, 264 Florida, 278 So.2d County, chua noted, cites a As also previously (Fla.1973). says requires second statute which it the neces- to decide this case and enter PSC dissenting. BARDGETT, Judge, sary at a of the commission New York I The respectfully dissent.
rather than App.Div. Whitridge, 144 People case Supp.1973, ch. (1911), was affirmed 486, 129 N.Y.S. particularly Having 610.015thereof. con- 646, 97 204 N.Y. opinion in without see requires, cluded that 386.130 so we no adopt- statute was Missouri N.E. 1112. The purpose extending opinion useful to March 1913. general assembly in ed provides decide whether an addi- case the in this According to the briefs tional has al- acting mandate that method Commission Missouri Public Service vot- system of “notational utilized a reports ways and orders such as here involved. simply method ing”. Notational We do acknowledges note that of the commission to record the votes used Open Meetings brief Law does fully has been after the matter members it, to apply saying, “The fully Commission between some heard, discussed probably governmental concedes that it is a ‘public commissioners, proposed and a all body’ subject thus Sunshine Law * order) * prepar- has been opinion (report and (610.010[2]) agree We with that of the commission- ed circulated all Poelker, conclusion. Cohen 520 S.W.2d his vote “notes” The commissioner ers. (Mo.banc 1975). physically than while in his office rather judgment is reversed and the case is the other commissioners meeting with remanded the Circuit Court of Cole pres- vote in their cast his order to vote or with County directions to further remand it holds that opinion The principal ence.
to the Public for han- Service Commission vot- cannot utilize notational commissioners it, dling in with the herein I accordance views As understand ing a decision. *8 of the court’s hold-
expressed. scope is the limited ing in this case. Nevertheless, though opinion be even J.,
SEILER,
J.,
HENLEY,
C.
concur.
Although
I
I
scope,
dissent.
narrow
general
agree with
statement of
DONNELLY, J., concurs in
con-
separate
set forth
statutory construction
rule of
filed.
curring opinion
by
opinion
supported
the principal
BARDGETT, J.,
531,
in separate
Wand,
dissents
dis-
Mo.
704 534, (Mo.banc 539 1974),
S.W.2d
I do not Those cases are Alabama Public Service
accept such a
Carriers,
rule of construction as
Inc.,
abso- Commission v. Redwing
281
lutely binding
111,
on this
great
(1967),
court.
I have
Ala.
199
653
Webster
So.2d
difficulty believing that
Co.,
the members
Texas
Transport
& Pacific Motor
140
general assembly
131,
of Missouri
(1942),
in March 1913 Tex.
were cognizant of the Whitridge Commission, case decid- Alabama Public 281 Service ed in New York in 559, 1912. I say partly (1968), this Ala. 206 364 Houston So.2d & appears Lines, because it accepted be all North Freight Texas Motor Inc. v.
parties 166, 166 the Missouri Johnson, Public (1942), Service 140 Tex. 78 S.W.2d Johnson, Commission used voting” “notational from Terre Corp. Haute Gas Ind.
the beginning.
I think
sixty-odd years
(1942),
without the bypassed commissioners know- Transp. Herrin per aff’d curiam sub nom.
ing about it. This is so because the partici- States, Co. v. United 366 U.S. S.Ct.
pation nonparticipation and vote of each (1961). L.Ed.2d
member is recorded and made public. Commission Missouri Public Service
None of the cases by appellant cited Phi- 7,545 during year issued orders the fiscal lipp Transit deal with notational in a 30,1972, July through June Annual pure premised sense. are on a They funda- Commis- Report of Missouri Public Service mental defect common to each case which 1971-72, 9; 7,027 in fiscal sion orders p. opportunity 1972-73, 1973-74,
was that notice and to vote was 7,950 in fiscal orders *9 denied to at least actually prejudicially Missouri Commission Annual Public Service 1973-74, Report p. one member commissioner each case. 6. my opinion procedure In called "nota- RYDER, Labrayere, Ray Labray voting" prohibited by Ed Dan tional is not sec. 386.- ere, Givens, partners, formerly fully justified by and John and is Earthmoving, Inc., known as a Missouri workload of the commission. I would hold Corporation, Henry Stealey and Dor require that sec. 386.130does not meeting a formal othy Stealey, wife, Plaintiffs-Appellants-Respondents, husband and prohibit to cast votes and does not v voting. The other issue is whether a CHARLES, The COUNTY OF ST.
required by (Sunshine sees. 610.010-610.115 County, second class Law). principal opinion The did not need to Defendant-Appellant-Respondent, reach that issue because of its determina- permit tion that sec. 386.130does not nota- City al., of Wentzville et Intervenors- voting. my opinion tional In the Sunshine Defendants-Appellants-Respondents. require meeting Law does not for the No. 59820. purpose a decision. Supreme Missouri, foregoing Court of En Banc.
For the reasons I dissent.
June Plaintiffs-Appellants-Respondents' Motion ON REHEARING Rehearing July 11, Denied PER CURIAM. rehearing, In its motion for the Pu again argues bic Service Commission that in permit
order to commissoners to attend hearings local over the state and at the large same time handle the volume of or ders, flexibility provided by it needs the system of notational It further urges requirement that if there is to be a upon that members meet to vote matters it, legislature impose before obligation. This contention overlooks the present
fact that we have held that require. statute does so If that is to be changed, request necessarily must be general assembly. addressed to the Respondents' rehearing motion for
overruled.