author: DIXON, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Richard Allen PAXTON, Defendant-Appellant.
    No. KCD 27777.
    Missouri Court of Appeals, Kansas City District.
    March 29, 1976.
    James L. McMullin, Kansas City, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   DIXON, Presiding Judge.

Defendant was convicted of murder in the second degree and sentenced to fifteen years in prison. His sole point on this appeal is that he was denied a speedy trial under Section 545.890 et seq. RSMo 1969 and the Sixth Amendment of the United States Constitution and Art. 1, Section 18(a) of the Missouri Constitution. Defendant filed a motion to dismiss the charges on the basis of a denial of a speedy trial which was overruled. Procedurally, the claim of error in ruling the motion has been preserved.

The factual genesis of defendant’s claim is as follows. On May 24, 1972, one Glen Dale Hyatt was found shot to death along a roadside in Benton County, Missouri. The defendant was arrested by the police on the same day at his home in Jackson County, Missouri. At the time of his arrest, defendant was 16 years of age, his birthdate being June 7, 1955. On June 12, 1972, a juvenile hearing was held in Benton County, Missouri. At this time defendant’s attorney filed a motion alleging lack of jurisdiction by Benton County, because the defendant both resided and was arrested in Jackson County. The motion was overruled and the Juvenile Court of Benton County relinquished jurisdiction of the defendant and charges were preferred against him as an adult. Subsequently, defendant sought and obtained a writ of prohibition from the Missouri Court of Appeals, Kansas City District, which prohibited the Benton County Circuit Court from trying defendant as an adult for the reason that the Juvenile Court of Jackson County had exclusive jurisdiction over defendant, and the Juvenile Court of Benton County did not have jurisdiction pursuant to Section 211.071 RSMo 1969 to find that the child was not a proper person to be dealt with under the juvenile code.

On July 25, 1973, the juvenile officer in Jackson County, acting upon a juvenile petition filed in Jackson County, recommended that the juvenile proceedings be dismissed and juvenile court jurisdiction relinquished. A hearing was had before the juvenile judge on August 10,1973, and continued until September 7, 1973, at which time the juvenile court relinquished jurisdiction. On December 21, 1973, the information upon which the defendant was tried was filed in the Circuit Court of Benton County. On January 18, 1974, defendant filed an application for disqualification and change of judge, which was granted; and on February 15, 1974, Judge H. A. Kelso of the 28th Judicial Circuit was assigned to hear said cause. Thereafter, on the 17th day of June, 1974, defendant filed a motion for change of venue, which was granted. The case was set for trial on the 4th day of December, 1974, in Vernon County, Missouri. On the 4th day of December, 1974, defendant filed a motion to dismiss for failure to grant defendant a speedy trial, which was overruled. Defendant waived his right to have a jury trial, and the court proceeded to hear the case. A timely motion for new trial was filed claiming error on the overruling of defendant’s motion to dismiss. The defendant had been confined in the county jail for a period of two and one-half years.

Section 545.890 RSMo 1969, cited by defendant, has no application to Vernon County since the Circuit Court of Vernon County has three terms. Section 478.277 RSMo 1969. Any claim of discharge under Section 545.890 would have to be in the light of Section 545.920 RSMo 1969 which requires the passage of three full terms to raise the bar of the statute. State v. Strong, 484 S.W.2d 657, 660 (Mo.1972); State v. Roach, 480 S.W.2d 841 (Mo.1972). In any event, such three-term period is commenced only when charges are filed and the defendant is arrested or committed. It has no application to delay prior to filing charges. State v. Barlish, 421 S.W.2d 558 (Mo.App.1967); State v. Farrar, 206 Mo. App. 339, 227 S.W. 1078 (1921). Here, all postindictment delays were due to defendant’s request, first for a change of judge and then for a change of venue.

Turning to the second branch of defendant’s argument, that he was denied a right to a speedy trial under the provisions of the Sixth Amendment to the United States Constitution and Article One, Section 18(a) of the Missouri Constitution, a preliminary question must be resolved. Ordinarily, Sixth Amendment claims do not arise until after an indictment or charge is filed (United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971)); but understandably, the pivotal issue with respect to a Sixth Amendment claim might also be the preindictment incarceration of the defendant. Thus, as stated in Marion, l.c. 320, 92 S.Ct. at 463, “[s]o viewed, it is readily understandable that it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment.” Marion specifically refused to extend the Sixth Amendment rights to the period prior to arrest, but certainly intended to include within the reach of the Sixth Amendment the period between arrest and charge. There seems no factual difference between the arrest of this defendant on charges under the Juvenile Code and the proceedings thereunder which culminated in the actual criminal charge for which he was convicted. Thus, defendant’s claim of violation of a Sixth Amendment right is proper procedurally and should be considered as an attack upon his conviction based upon Sixth Amendment rights rather than a due process claim. In State v. Gardner, 534 S.W.2d 284, from the Missouri Court of Appeals, Springfield District, Filed February 25, 1976, the court there clearly recognized that the critical moment is arrest or indictment, whichever occurs first, for the purposes of measuring a loss of the Sixth Amendment right to a speedy trial.

However, defendant’s claim, insofar as it is based on constitutional grounds, must also fail. In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), which involved a postarrest and postindictment trial delay of some five years, the United States Supreme Court refused to delineate a specific time period beyond which one’s right to a speedy trial would be violated. Rather, the court adopted a balancing test and enumerated the following four factors which should be considered by a court in assessing a speedy trial claim. The four factors are: “Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Barker, supra, at 530, 92 S.Ct. at 2192.

In the light of the Barker criteria, it must be concluded no error occurred in overruling defendant’s motion. The length of the delay between arrest and trial was approximately two and one-half years, which is substantial. The impact of the length factor is greatly meliorated by the reasons for the delay. It does not appear that the State deliberately attempted to delay trial in order to hamper the defense. Viewed in the light most favorable to the defendant, the worst that can be said is that the preindictment delay was due to confusion on the part of the State as to which juvenile court had original jurisdiction. However, defendant sought the writ of prohibition, the determination of which was the major cause of the preindictment delay. Postindictment delay, as has been noted, was due entirely to various motions by defendant. Without the additional delay imposed by the defendant’s actions after charges were filed, the delay in reaching the stage of filing charges is not onerous. The defendant, though tardily, on the day of trial raised the issue of speedy trial.

The final factor to be considered is prejudice to the defendant. As is stated in Barker, “Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” Barker, supra, at 532, 92 S.Ct. at 2193. The defendant herein was incarcerated prior to trial with the attendant anxiety and concern. The record, however, is bereft of any evidence that the accused’s defense was impaired by the delay, nor does the accused make any such claim.

On balance then, the delay herein is not tantamount, either statutorily or constitutionally, to a denial of defendant’s right to a speedy trial. Accordingly, the judgment of the trial court is affirmed.

All concur.


source: Caselaw Access Project

author: WASSERSTROM, Judge.

license: Public Domain

text:
    STATE ex rel. LACLEDE GAS CO., Relator-Appellant, v. PUBLIC SERVICE COMMISSION of Missouri, Respondent, and AFC Industries, Incorporated, et al., Intervenors.
    No. KCD 27958.
    Missouri Court of Appeals, Kansas City District.
    March 29, 1976.

      Richard L. Eckhart, St. Louis, for relator-appellant.
    Leland B. Curtis, Paul W. Phillips, Jefferson City, for respondent Public Service Commission of Mo.
    Robert G. Brady, Robert C. Johnson, Lawrence R. Ehrhard, St. Louis, for Industrial Intervenors.
    Stanley P. Christopher, Russell D. Jacobson, Jeremiah D. Finnegan, Kansas City, for amicus curiae Jackson County, Mo.
    Arthur J. Doyle, Kansas City, for amicus curiae Kansas City Power & Light Co.
    L. T. McSpadden, Blytheville, Ark., for amicus curiae Arkansas-Missouri Power Co.
    Jack L. Oliver, Cape Girardeau, for ami-cus curiae Mo. Utilities Co.
    Judith P. Rea, Kansas City, for amicus curiae Mo. Public Service Co.
    Stewart W. Smith, Jr., St. Louis, for ami-cus curiae Union Elec. Co.
    J. Steve Weber, Jeffersn City, for amicus curiae Mo. Edison Co. and Mo. Power & Light Co.
    Charles S. Wilcox, St. Joseph, for amicus curiae St. Joseph Light & Power Co.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   WASSERSTROM, Judge.

The question here for decision is whether Laclede Gas Company should have been granted an interim rate increase by the Public Service Commission of Missouri pending determination by that Commission of whether a permanent rate increase should be allowed. This problem comes before a Missouri appellate court now for the first time.

On February 1, 1974, Laclede filed its application No. 18015 before the Commission for an increase in rates calculated to produce an additional $12,475,000 in additional revenue. This application and the proceedings thereon is referred to as the “permanent” rate case.

On February 15, 1974, Laclede filed a second proceeding, entitled “Application for Partial Increase after Hearing,” which was given the separate number No. 18021 and is referred to as the “interim” rate case. This latter application sought to increase revenues by $5,440,000 during the interim period until action by the Commission in the permanent rate case. Laclede alleged that the interim increase had become necessary because it could no longer earn a fair return on the fair value of its property because of inflationary cost increases and because of a precipitous decline in revenue resulting from the national fuel conservation program. Applications were filed with the Commission by a number of public bodies and industries (including the “Industrial In-tervenors” who have appeared in this court) to intervene in the interim proceeding, which applications were all granted.

A one day hearing was held by the Commission on March 21, 1974, at which time Laclede offered testimony and statistical documents to sustain the allegations of its petition. In very brief summary, its evidence was that since 1969 when its rates had last been set by the Commission, Lac-lede had suffered a decline in rate of return on total invested capital and in the return on its common equity; that the costs of all types of financing had increased substantially with the result that the imbedded cost of the company’s debt had increased and would increase further; that because of inflationary increase in costs there was a net decrease in operating income; that because of conservation measures there had resulted a substantial load loss in therm use per customer; that earnings per share of $2.46 in the fiscal year of 1973 had dropped to $2.14 per share by the end of the calendar year 1973, and absent rate relief was projected to fall in fiscal 1974 to approximately $1.67 to $1.70 per share; that Lac-lede stock had fallen in value and had been selling below book value for about a year; that interest coverage on the company bonds had fallen. However, Laclede’s president admitted in his testimony that Lac-lede was able to arrange debt financing; that even if interim relief was not granted, Laclede would not become insolvent, be unable to serve its present customers, or be unable to pay dividends; further, that it had not been necessary for Laclede to reduce salaries or terminate any personnel; and the failure of the Commission to grant interim relief would not affect the credit rating of Laclede bonds. A staff accountant of the Commission testified that he had made a summary review of the Laclede application and exhibits and found nothing materially wrong with them as presented; no audit had been conducted by the Commission staff which had relied entirely upon the figures provided by the company.

On May 2,1974, the Commission issued an order denying the interim rate increase by a 3 to 2 vote. Laclede filed a motion for rehearing which was overruled and then filed petition for review in the circuit court of Cole County under the provisions of § 386.510. (All statutory references herein being to RSMo 1969.) While that proceeding was pending in the circuit court, the Commission on August 22, 1974, issued its order in the permanent rate case granting Laclede a rate increase in the amount of $11,350,000.

On December 30, 1974, the Circuit Court of Cole County entered its judgment affirming the decision of the Commission on the grounds that the Commission action was a proper exercise of its discretion and also on the basis that the Commission’s order in the permanent rate case had rendered the interim rate proceeding moot.

Laclede thereupon filed notice of appeal to the Missouri Supreme Court, setting forth in its Notice of Appeal that the Commission’s order constituted a confiscation of Laclede’s property in violation of its constitutional rights. On April 14, 1975, the Supreme Court ordered the transfer of the appeal to this court “in which jurisdiction is vested.”

I.

The Commission, the industrial in-tervenors and amicus curiae Jackson County all join in urging that this appeal be dismissed on the simple ground that the case has become moot. They argue that the permanent rate increase has already been granted by the Commission, that the permanent increase includes the relief sought by way of interim increase, that under the law the increase cannot be made retroactive

to the interim period, February 15 to August 22,1974, and that since no relief can be granted, it is a futile exercise for this court to retain jurisdiction. They cite in support State ex rel. Capital City Water Co. v. Public Service Commission, 298 Mo. 524, 252 S.W. 446 (banc 1923).

Nevertheless, even though relief may no longer be available to Laclede by means of this proceeding, still the question here presented is a recurring one of great public concern. This is evidenced by the considerable number of interventions before the Commission in this court and the appearances in this court as amici curiae. Among the parties so appearing as amici are seven electrical utility companies, who point out that the problem raised herein by Laclede (which is a gas utility) also extends with like force to the electric utilities of this state, as evidenced by the “Union Electric order” issued by the Commission on March 29, 1974, in case No. 17965, denying interim relief. See also State ex rel. Gas Service Co. v. Public Service Commission, Mo.App. 536 S.W.2d 491, No. KCD27987, being decided concurrently herewith.

In its very nature, an interim rate request is merely ancillary to a permanent rate request, and in overwhelming probability the permanent rate request will have been granted before any denial of an interim increase can work its way to the point of decision by an appellate court. If the important legal propositions presented by this appeal are to be decided at the appellate level at all, it is apparent that jurisdiction for that purpose must be exercised despite the technical point of mootness. Because of these considerations, this case should be retained and decided. In re Marshall, 478 S.W.2d 1, 5 (Mo. banc 1972); O_ H_ v. French, 504 S.W.2d 269 (Mo.App.1973); Lawyers’ Association of St. Louis v. City of St. Louis, 294 S.W.2d 676 (Mo.App.1956).

II.

Logical order calls for consideration next of the contention by amicus curiae Jackson County that the Commission has no power to grant interim rate increases. If this contention be sound, then it would become unnecessary to consider anything further. However, the County’s argument is not well founded.

The County argues that the Commission has only those powers specifically or necessarily by implication conferred upon it by statute, that there is no statute in this state granting the Commission power to grant interim rate increases, and that in the absence of such a statutory grant there can be no such authority. In support of its argument, the County has collated a list of many states granting this power of interim relief by special statutory provision, and the County argues that if the Missouri Legislature had intended the Commission to have this power, then the Missouri Legislature would have so provided as have the legislatures of other states.

The Commission, on the other hand, argues that its power to grant interim rate relief must be inferred from the provisions of Sections 393.140(11) and 393.150. The first of those sections provides that every gas utility may file with the Commission rates to be charged and that:

“Unless the commission otherwise orders, no change shall be made in any rate or charge * * * except after thirty days’ notice to the commission and publication for thirty days as required by order of the commission, which shall plainly state the changes proposed to be made in the schedule then in force and the time when the change will go into effect. The commission for good cause shown may allow changes without requiring the thirty days’ notice under such conditions as it may prescribe. . .

Section 393.150 provides that whenever a gas corporation shall file a new rate or change with the commission:

“[T]he commission shall have, and it is hereby given, authority * * * to enter upon a hearing concerning the propriety of such rate * * * and pending such hearing and the decision thereon, the commission upon filing with such schedule, and delivering to the gas corporation * * * affected thereby, a statement in writing of its reasons for such suspension, may suspend the operation of such schedule and defer the use of such rate, * * * but not for a longer period than one hundred and twenty days beyond the time when such rate * * * would otherwise go into effect; and after full hearing, whether completed before or after the rate * * * goes into effect, the commission may make such order in reference to such rate * * * as would be proper in a proceeding initiated after the rate * * * had become effective. “2. If any such hearing cannot be concluded within the period of suspension, as above stated, the commission may, in its discretion, extend the time of suspension for a further period not exceeding six months. At any hearing involving a rate sought to be increased, the burden of proof to show that the increased rate or proposed increased rate is just and reasonable shall be upon the gas corporation ⅜ * * >>

The Commission points out that in 1949 in reliance upon the quoted statutory provisions it adopted a rule in Re Southwestern Bell Tel. Co., 2 Mo.P.S.C.(N.S.) 131, under which it can and has granted special interim relief in emergency situations.

The “file and suspend” provisions of the statutory sections quoted above lead inexorably to the conclusion that the Commission does have discretionary power to allow new rates to go into effect immediately or on a date sooner than that required for a full hearing as to what will constitute a fair and reasonable permanent rate. This indeed is the intended purpose of the file and suspend procedure. Simply by non-action, the Commission can permit a requested rate to go into effect. Since no standard is specified to control the Commission in whether or not to order a suspension, the determination as to whether or not to do so necessarily rests in its sound discretion.

The ravaging inflation of the past few years has demonstrated the practical need for this power. A striking example of the necessity for granting this type of emergency relief to a utility was demonstrated in Sho-Me Power Corp., Case No. 17,381 (1972), in which the Commission allowed an interim rate increase where the applicant was operating at a loss of over $70,000 per month and where it had paid no dividends for a period of five years. So also in the Missouri Power & Light Co. case, No. 17,815 (1973), the Commission found it appropriate to grant an interim rate increase to halt a deteriorating financial situation which “constituted a threat to the company’s ability to render adequate service.”

The very real necessity of recognizing such a power in the regulatory agency has long been recognized by courts throughout the country. Not a single case has been cited by Jackson County nor found by independent research which has ever denied such a power to a regulatory agency such as the Missouri Public Service Commission. On the other hand, numerous cases from diverse jurisdictions have recognized and given effect to such an implied power even in the absence of specific statutory authority: Omaha & C. B. St. Ry. Co. v. Nebraska State Railway Commission, 103 Neb. 695, 173 N.W. 690 (1919) (decided prior to the present Nebraska statute expressly authorizing temporary increases in an emergency); Muskogee Gas & Electric Co. v. State, 81 Okl. 176, 186 P. 730 (1920), City of Bartlesville v. Corporation Commission, 82 Okl. 160, 199 P. 396 (1921), and Oklahoma Gas & Electric Co. v. State Corporation Commission, 83 Okl. 281, 201 P. 505 (1921) (decided in the absence of any statute granting express power to make interim increases); State ex rel. Puget Sound Navigation Co. v. Department of Transportation of Washington, 33 Wash.2d 448, 206 P.2d 456 (banc 1949) (without reliance upon any specific statutory power); Chesapeake & Potomac Tel. Co. v. Public Service Commission, 330 A.2d 236 (D.C.App.1974) (authority found solely by implication); City of New York v. New York Telephone Co., 115 Misc. 262, 189 N.Y.S. 701 (1921) (decided before the adoption of the present New York statute specifically authorizing temporary increases); State ex rel. Utilities Commission v. Morgan, 16 N.C.App. 445, 192 S.E.2d 842 (1972) and State ex rel. Utilities Commis sion v. Edmisten, 26 N.C.App. 662, 217 S.E.2d 201 (1975) (decided under a file and suspend statute substantially similar to that of Missouri and with no provision expressly permitting temporary rates); Southern Bell Telephone & Telegraph Co. v. Bevis, 279 So.2d 285 (Fla.1973) (decided before adoption of the present Florida statute specifically authorizing interim increases); Federal Power Commission v. Tennessee Gas Transmission Co., 371 U.S. 145, 150, 83 S.Ct. 211, 9 L.Ed.2d 199 (1962).

Amicus curiae Jackson County calls attention to the fact that at the current session of the Missouri Legislature, Senate Bill No. 530 has been introduced for the purpose of empowering the Public Service Commission to “prescribe temporary schedules, rates, tolls, charges, or joint rates to be charged and collected” by a public utility pending the hearing and final determination of a permanent increase. While the amendment to a statute must be deemed to have been intended to accomplish some purpose, that purpose can be clarification rather than a change of existing law. Hogan v. Kansas City, 516 S.W.2d 805, l.c. 811 (Mo.App.1974). Moreover, the largest portion of that pending bill pertains to the creation of a procedure under which the utility applying for interim rate relief would be required to furnish a specified bond and further specifying the procedure under which customers of the utility would be entitled to refunds in the event the increases temporarily allowed were ultimately found to be excessive. In view of the considerations and authorities discussed above, we conclude that Senate Bill No. 530 is intended only to clarify and particularize existing law.

Amicus Jackson County also objects to placing a judicial stamp of approval on the power to grant interim increases, on the ground that this would ignore the lack of statutory provision for notice and other procedural safeguards to consumers. Jackson County argues that this will deprive customers of constitutional due process and equal protection of the law. The identical argument directed against the file and suspend procedure was rejected in State ex rel. Jackson County v. Public Service Commission, 532 S.W.2d 20, 31 (Mo. banc 1976).

We hold that the Commission has power in a proper case to grant interim rate increases within the broad discretion implied from the Missouri file and suspend statutes and from the practical requirements of utility regulation.

III.

Laclede resists the foregoing analysis and challenges the conclusion of the trial court that “[t]he exercise of the Commission’s discretionary power over the suspension of rates filed with it, is a matter of administrative discretion * * *.” Laclede concedes that this would have been a discretionary matter had the application in this case been filed under the file and suspend procedure prescribed in §§ 393.140 and 393.-150. However, Laclede denies that its application in this case was under those file and suspend provisions. Its contention is that § 393.150 comes into play only if there is first a “filing” under § 393.140(11). It goes on to say that (although the requested rates were attached to its application as filed with the Commission) those rates were not then “filed,” but rather Laclede merely asked for a hearing and authority to thereafter file its proposed rates. Laclede points to no statute underpinning the procedure which it purports to have followed and which it claims to be different from that prescribed by §§ 393.140 and 393.150.

The Missouri Supreme Court has recently affirmed the validity of the file and suspend procedure set forth by these statutory sections, in State ex rel. Jackson County v. Public Service Commission, 582 S.W.2d 20 (Mo. banc 1975). Where as here the statutes prescribe a manner in which proceedings before a public utility commission are to be initiated, that procedure must be followed. 73 C.J.S. Public Utilities § 47, p. 1114; State ex rel. Laundry, Inc., v. Public Service Commission, 327 Mo. 93, 34 S.W.2d 37 (1931); Florida Motor Lines Corporation v. Douglass, 150 Fla. 1, 7 So.2d 843 (banc 1942); Southern Bell Telephone & Tel. Co. v. City of Louisville, 265 Ky. 286, 96 S.W.2d 695 (1936); City of Pittsburgh v. Pennsylvania Public Utility Com’n., 157 Pa. Super. 595, 43 A.2d 348 (1945).

The Commission and the trial court treated this case on the assumption that Laclede was proceeding within the general scope of the file and suspend procedures provided by §§ 393.140 and 393.150. This treatment was favorable to Laclede, since otherwise its entire proceeding for interim rate increase in this case would have been of very doubtful effectiveness.

Even if we were to assume ar-guendo that Laclede could and did elect some variant procedure separate from that specifically specified by the statutes, that still would not enable it to escape from the existence of a wide discretion on the part of the Commission. The Public Service Commission itself confers a large area of discretion to the Commission in the exercise of its powers. § 386.430 and § 386.270. This primary discretion has been liberally recognized by the courts. See for example State ex rel. Chi. R.I. & P. Rr. Co. v. Public Service Commission, 312 S.W.2d 791 (Mo. banc 1958); State ex rel. Kansas City Transit, Inc. v. Public Service Commission, 406 S.W.2d 5 (Mo. banc 1966); State ex rel. Fee Fee Trunk Sewer, Inc., v. Public Service Com’n., 522 S.W.2d 67 (Mo.App.1975). In short, the Commission need not look to § 393.150 as a source for discretion. Rather it relied on that section as the source of its authority to grant any interim relief. Once that authority was found, ample basis for discretion in the exercise thereof exists wholly apart from § 393.150.

IV.

All of the distracting preliminary issues now having been cleared away, there are finally laid bare the real, substantive issues in this case: (1) What is the proper test to be applied for the allowance of an interim rate increase? (2) Has Laclede proved facts bringing this case within the appropriate test?

A majority of the Commission follows the principle that the purpose of a special hearing concerning interim rates is to ascertain whether emergency conditions exist which call for especially speedy relief, and the Report and Order expresses the view that an interim increase should be granted only “where a showing has been made that the rate of return being earned is so unreasonably low as to show such a deteriorating financial condition that would impair a utility’s ability to render adequate service or render it unable to maintain its financial integrity.” Laclede admits that if this be the proper test to be applied, then the ruling in this case must be against it. As it states in its brief, “Appellant has not and does not now contend that Respondent’s order would not be based on competent and substantial evidence if the interim rate tests applied by Respondent and the lower Court are the tests lawfully to be applied to interim rates. . . . ”

However, Laclede strenuously contests the propriety of the Commission’s test. It contends that the Commission has a broader duty than merely to grant interim increases in the case of emergency. Laclede insists that the Commission must also grant such relief in any case where necessary to afford the utility a fair and reasonable return upon its invested capital, and it argues that under the facts proved its existing approved rates are so unreasonably low as to be confiscatory.

In support of the test urged by it, Laclede argues that a duty to set rates sufficient to furnish a fair and reasonable return is imposed upon the Commission by both statutory and constitutional provisions. With respect to the alleged statutory duty, Laclede points to § 393.140(5) which provides that, “[wjhenever the commission shall be of the opinion, after a hearing had upon its own motion or upon complaint, that the rates or charges or the acts or regulations of any such persons or corporations are unjust, unreasonable, unjustly discriminatory or unduly preferential or in anywise in violation of any provision of law, the commission shall determine and prescribe the just and reasonable rates and charges thereafter to be in force for the service to be furnished, notwithstanding that a higher rate or charge has heretofore been authorized by statute * * *” (emphasis added). The quoted provision, properly interpreted, appears to refer to a proceeding against a utility having for its purpose a reduction of rates. This is particularly inferable from the last phrase in the above quotation. In any event, it would be unreasonable to construe this statutory section as imposing a duty upon the Commission to set “just and reasonable rates” in a special hearing for the limited purpose of considering an interim increase, since the setting of fair rates is the purpose and subject of the full rate hearing. To construe § 393.140(5) as applicable here would make the hearing on interim rates coextensive with that on the permanent rates and would therefore in practical effect make accelerated action on interim rates impossible.

Turning now to Laclede’s constitutional argument, it contends that the due process clauses of the United States and Missouri constitutions and the prohibition in the Missouri constitution against taking property without just compensation join in requiring that the test to be applied in any rate hearing (whether for permanent or interim increases) be that the rates be sufficient to produce a fair return on the property invested. Every utility does have an undoubted constitutional right to such a fair and reasonable return, and this is a continuing right which does not cease after beginning rates are initially determined. Bluefield Waterworks & I. Co. v. Public Service Commission, 262 U.S. 679, 43 S.Ct. 675, 67 L.Ed. 1176 (1923); State of Missouri v. Public Service Commission, 262 U.S. 276, 43 S.Ct. 544, 67 L.Ed. 981 (1923); In re Permian Basin Area Rate Cases, 390 U.S. 747, 88 S.Ct. 1344, 20 L.Ed.2d 312 (1968). The Commission does not challenge this rule. While it did speak in its Report and Order of an interim increase being permissible “only” pursuant to its emergency test, it does not repeat that broad claim in this Court. Instead, it limits its response to Laclede’s constitutional argument to the narrow proposition that Laclede has failed to carry its burden of proving facts amounting to confiscation.

However, whether the rates in effect at any given time are just and reasonable depends upon many facts and can only be determined after rather extended investigation and study. Thus, for example, the Missouri statute provides in § 393.-270(4) that “[i]n determining the price to be charged for gas * * * the commission may consider all facts which in its judgment have any bearing upon a proper determination of the question * * * with due regard, among other things, to a reasonable average return upon capital actually expended and to the necessity of making reservations out of income for surplus and contingencies.” Because of the necessity to make these investigations, hold hearings and permit arguments with respect thereto, the proceedings before regulatory bodies for rate increases inevitably entail considerable time and have led to delay in the granting of increases which is generally referred to as “regulatory lag.” While this delay is regrettable, the courts have recognized that some lag is unavoidable and have generally held that no deprivation of constitutional rights occur because of suspension of the proposed increase pending a hearing thereon, provided the delay for purposes of such hearing is not unreasonably long. Representative cases so holding are Hope Natural Gas Co. v. Federal Power Commission, 196 F.2d 803, 808 (4th Cir. 1952); Mountain States T. & T. Co. v. Public Utility Commission of Colorado, 345 F.Supp. 80 (D.C.Colo.1972); New Rochelle Water Co. v. Public Service Commission, 31 N.Y.2d 397, 340 N.Y.S.2d 617, 292 N.E.2d 767 (1972); Cumberland Tel. & Tel. Co. v. Railroad and Public Utility Commission, 287 F. 406, 417 (D.C.Tenn.1921).

Laclede does not challenge that doctrine and refers to regulatory lag only to a limited extent by way of background. As its principal argument to show that its present rates have become unjust, Laclede relies principally upon a mathematical computation showing that its income during the test year 1973 and as projected for 1974 will fail to produce the rate of return on invested capital which was allowed to it by the last rate order issued by the Commission in 1969. In this respect, Laclede points out that the Commission’s staff evidence showed that Laclede for the calendar year 1973 earned a rate of return of 7.20%. Lac-lede then compares that rate of return to those which were produced from the rates approved by the Commission in 1969, under which Laclede would receive a rate found to be approximately 7.76% under the staff figures and 7.36% applying the company’s figures. Referring then to a finding in the 1969 order that “this is not an unreasonable range,” Laclede argues that its 1973 return of only 7.20% must necessarily be deemed below the reasonable range. This argument is one which the two dissenting commissioners found persuasive and which is emphasized in the dissenting opinion of Commissioner Clark.

This same basic argument has been presented to a number of courts through the country and the judicial reaction has been divergent. However, the majority and better view rejects the argument that any return less than the rate previously set must be deemed prima facie unreasonable. Thus in Mountain States T. & T. Co. v. Public Utility Commission of Colorado, supra at p. 85, a majority of a three-judge federal court rejected an argument similar to that of Laclede in the present case, holding as follows:

“Mountain Bell assumes that the figure 8.9 percent is an absolute and that the slightest departure from this level of return — even an infinitesimal fraction of a percentage point — is per se confiscatory and unconstitutional. But the cases do not support the company in this assertion. Rather the decisions recognize that the regulatory agency has some flexibility in fixing the rate of return — its decision being subject to existing economic conditions. .
“The cases also recognize that the fixing of rates is a matter largely of prophecy and because of this commissions in carrying out their functions necessarily deal in what are called ‘zones of reasonableness’ the result of which is that they have some latitude in exercising this most difficult function. .
“As we view it then, for us to find that the present rate results in confiscation of the company’s private property, we would have to make a finding based on evidence that the present rate is outside of the zone of reasonableness, and that its effects would be such that within the upcoming two months, until the Commission acts, the company would suffer financial disarray. Nothing bordering on this is apparent and it is doubtful whether it will come about. Thus, we would be unable to find a state of confiscation. There is not the slightest indication in the decisions that confiscation is to be adjudged on any instant basis.”

So also in South Central Bell Tel. Co. v. Louisiana Public Service Commission, 272 So.2d 667 (La.1973), the majority of the court rejected an argument very much like the one presented by Laclede here. In the Louisiana case the utility filed on December 17, 1971, for a 9.5% permanent rate of return. Then on December 29, 1971, it filed for an interim increase to enable it to reach 7.925% which was the rate previously allowed by the commission in July, 1971. A majority of the court characterized this as a “make whole” petition and rejected the argument that the denial by the commission of the requested immediate increase constituted an unconstitutional confiscation. In this connection the majority opinion stated:

“ ‘We need not, indeed we cannot, determine what are valid permanent rates and charges. We can determine only whether a continued imposition of present tariffs would constitute confiscation of the Company’s property. Although, it may be that the Company should receive a higher rate of return on its investment and is entitled to have the Commission fix rates and charges which will produce such a return, the record does not justify a finding that the present rate of return is so inadequate as to be confiscatory. .
“ ‘We reiterate: We are not here concerned with a determination of reasonable telephone rates and charges or with a valid yield of return on the Company’s investment for its operations. We pass only upon the question of whether the Commission’s action or inaction amounts to a constitutional violation — that is, confiscation of the Company’s property. We hold that the Company has failed to establish that the Commission’s enforcement of present rates is tantamount to confiscation.
“In the present case, South Central Bell concedes that it realized a rate of return of 7.40 per cent in 1971. For 1972, the projected rate of return is 6.33 per cent. We likewise hold that these rates are non-eonfiscatory. We, of course, express no opinion as to the merits of the pending petition for a rate increase.
“The Louisiana Public Service Commission now has the general rate case under advisement. The entire telephone rate structure, including the matters raised in the present case, are under review. We find no adquate [sic] reason for disturbing the orderly procedures of the Louisiana Public Service Commission, as it discharges its constitutional duty of regulating utility rates in Louisiana.”

To the same general effect is State ex rel. Utilities Commission v. Duke Power Co., 285 N.C. 377, 206 S.E.2d 269, 281 (1974), where it was held that a prior regulatory finding of 8% as a proper rate of return on equity was not res adjudicata as to what constituted a proper rate of return for those dates and did not bar the Commission from setting a lower rate at a later date despite a continued rise of inflation.

The foregoing cases reflect the same general approach which was adopted by the Missouri Supreme Court in State ex rel. Capital City Water Co. v. Public Service Commission, 298 Mo. 524, 252 S.W. 446, 456 (banc 1923). In that case the court refused to disturb a test rate set by the Commission even though the company’s earnings were projected to produce less than the previously approved rate of 8!⅛%. In this connection the court held that “[t]he law, of course, did not require that the rates at any time yield any particular return.” The court further pointed out that 8½% might be right in 1918, “but it does not follow that rates which might yield a slightly lesser sum during the 13 months from November 1, 1919, to November 1, 1920, would be confiscatory.”

In opposition to the cases just cited, Lac-lede relies primarily on State ex rel. Utilities Commission v. Morgan, 16 N.C.App. 445,192 S.E.2d 842 (1972) and Southern Bell Telephone & Telegraph Co. v. Bevis, 279 So.2d 285 (Fla.1973). The first of those cases is easily distinguished. In that North Carolina case, the utility filed for a 5.63% rate increase in May, 1971. The Commission first suspended the new rates pending final hearing, but later withdrew the suspension on June 30. In August the utility amended its application to seek an increase of 19.63%. After full hearings the Commission granted 14.38% in February. The Attorney General appealed the withdrawal of the original suspension of the 5.63% increase on the ground that the withdrawal was arbitrary and capricious. The court affirmed the Commission’s order. This Morgan case stands for no more than an approval of action taken within the discretion of the Commission.

With respect to the Bevis case, decided by a divided court, the opinion probably reflects a judicial philosophy contrary to the view of the majority of the courts throughout the country. Nevertheless, this case also can be distinguished from the one at bar. In Bevis, the utility filed two applications, one for a permanent increase of $106,821,300, and the other for an interim increase of $32,795,000. A prior order of the Commission had set 8.25% as a minimum fair, just, reasonable and sufficient rate of return. The Florida Commission denied interim relief holding that the utility had shown no emergency. The majority opinion of the Florida court held that evidence of earnings at 6.78% and a projected rate of return of 5.96% made a prima facie case requiring an interim increase so long as that increase did not produce a return in excess of the previously authorized 8.25% rate of return. The important difference between Bevis and the present case is that the Missouri Public Service Commission by its last previous order did not set any minimum rate of return. In order to give a proper understanding of this point, some explanation must be given of the nature of the rate order issued by the Commission to Laclede in 1969.

In the first place, it is important to emphasize that the order issued by the Commission on September 1, 1969, in case No. 16689, was not an adjudication of litigated issues, but rather it was entered pursuant to a stipulation and agreement of the parties. The underlying stipulation provided:

“This Stipulation is entered into and approved with the explicit understanding that it constitutes only a dollar settlement of Case No. 16,689, and neither the Company, the Commission’s Staff, nor any other person or party shall be, for the purpose of other future proceedings, deemed to have approved, accepted, agreed on, or consented to any rate-making principle or any method of cost of service determination which has been used or supposedly used in arriving at this Stipulation.”

The findings then made by the Commission must be read in the light of that Stipulation. The Commission did make a finding that the $4,550,000 rate increase which had been agreed upon would produce a certain calculated rate of return. This rate would vary depending on whether certain figures prepared by the Commission staff were used or whether the figures prepared by Laclede were used. Finding of Fact No. 4 stated that applying the staff exhibits the rate of return would calculate to 7.76% return, while if the Laclede figures were used, the rate of return would be 7.36%. Finding No. 4 then goes on: “[f]or the purposes of this case only, and based upon the Stipulation filed, the Commission finds this is not an unreasonable range.”

It is readily apparent that the 1969 finding merely made arithmetical calculations to arrive at two different figures and then said that neither of those figures would be unreasonable. That was far from saying that some other figure might not also be reasonable. Furthermore, the order itself, and especially when taken together with the accompanying Stipulation, made it crystal clear that nothing in the order was intended for anything beyond “the purposes of this case only.” Further to this point are the following portions of the conclusions entered by the Commission as part of its August 25, 1969 order:

“ORDERED: 4. The Stipulation and Agreement filed herein is accepted and made effective recognizing the stated condition of the parties of record that no party is to be prejudiced in future proceedings by the methods or principles of determining the cost of service, rate of return, rate design, or rate structure utilized in or which may be reflected in this record, and that any finding as to the original cost rate base and as to rate of return shall not be binding upon the Commission or any party hereto as far as any future proceedings are concerned.
“ORDERED 5: This Order is without prejudice to any findings or Orders which have been or may be hereafter made by the Commission, and is without prejudice to any claims or contentions which may be made by the Commission, Laclede Gas Company, the Staff, or any other party to this proceeding, in any other proceeding now pending or hereafter instituted by or against Laclede Gas Company, or any other companies, persons, or parties affected by this Order.”

Particularly in view of the nature of the 1969 rate order and the reservations specifically contained therein and which have been quoted above, Laclede simply cannot hold too closely to a contention that any variation from the 1969 rate of return must necessarily be unjust and unreasonable. Indeed, Laclede makes the following important concession in its reply brief that it, “would not take issue with a decision that proof of a lower rate of return, without more, would not automatically entitle a utility to an increased rate of return.” By making that concession, Laclede has abandoned the keystone of its position that the Commission acted arbitrarily and unreasonably. There remains only to review briefly the factors shown by the record which affirmatively support the Commission’s declination to grant an interim increase and which amply show that declination to be at least reasonably debatable.

On the facts here, Laclede earned according to its books a return in 1973 of 7.20% which was only .16% below the 7.36% rate of return which the Commission found to be a reasonable rate in the 1969 proceeding. With reference to those earnings, Laclede stated in its 1973 report to its stockholders: “To our shareholders and employees: the company experienced record sales and earnings during 1973. Earnings were $2.64 per share compared to $2.12 in 1972.” Moreover, Laclede was able to serve its customers, it had continued to pay dividends to its stockholders, its bond coverage continued to be in excess of the coverage required by its bond indentures, and it ran no risk of a lowering of its bond rating during the period of maximum suspension pending completion of the permanent rate hearing. An important part of the evidence submitted by Laclede in this interim rate proceeding pertained to what it described as a precipitous decline in gas usage due to the federal fuel conservation program. Yet Laclede’s data in that regard was based upon a very limited five week experience. Because of the shortness of time afforded by this special interim rate proceeding, the Commission staff had been unable to audit either those figures or any of the other financial data and exhibits submitted by Laclede. On top of all this, Laclede’s permanent rate application was also concurrently in progress and indeed the Commission’s report in the permanent rate increase proceeding was issued on August 22, 1974, which was less than four months after the order in the interim rate case.

Under these facts, Laclede clearly failed to carry the heavy burden of proof imposed upon it by § 386.430 “to show by clear and satisfactory evidence that the determination * * * or order of the commission complained of is unreasonable or unlawful . . . See also the authorities cited under Section III of this opinion pertaining to the wide discretion of the Commission, to which the courts will defer.

Laclede seemingly realizes the inconclusiveness of the proof offered by it in this interim rate proceeding, and it attempts to flesh out its proof by making reference to evidence submitted and findings made in the permanent rate proceeding, Case No. 18,015. Thus it points out in its reply brief that “the Commission in the permanent rate case, decided only a few months after the rejection of the interim rates, found a rate of return in excess of 8.7% to be just and reasonable.” Rather than helping Lac-lede, this reference simply emphasizes the desirability of leaving the whole question of just and reasonable rate (unless imperative facts require to the contrary) to the permanent rate proceeding in which all the facts can be developed more deliberately with full opportunity for an auditing of financial figures and a mature consideration by the Commission of all factors and all interests.

It may be theoretically possible even in a purposefully shortened interim rate hearing for the evidence to show beyond reasonable debate that the applicant’s rate structure has become unjustly low, without any emergency as defined by the Commission having as yet resulted. Although some future applicant on some extraordinary fact situation may be able to succeed in so proving, Laclede has singularly failed in this case to carry the very heavy burden of proof necessary to do so.

Affirmed.

All concur.

      . A somewhat analogous question is whether the Commission has authority to grant interim test or experimental rates. The Missouri Supreme Court has long held that the Commission does have this power as a matter of necessary implication from practical necessity. State ex rel. Watts Engineering Co. v. Public Service Commission, 269 Mo. 525, 191 S.W. 412 (banc 1917); State ex rel. Washington University v. Public Service Commission, 308 Mo. 328, 272 S.W. 971 (banc 1925); State ex rel. City of St. Louis v. Public Service Commission, 317 Mo. 815, 296 S.W. 790 (banc 1927); State ex rel. McKittrick v. Missouri Public Service Commission, 352 Mo. 29, 175 S.W.2d 857 (banc 1943).

      . The Commission in its brief explains the theory upon which it processed the application for interim relief, as follows: “Appellant had filed rates (Commission No. 18,015) which had been suspended. Appellant was doing nothing more in the case at bar (Commission Case 18,021) than to persuade the Commission to in affect [sic] lift the suspension to the extent of granting an increase of $5,440,000.” The North Carolina Commission adopted a like interpretation of that state’s file and suspend statute, and was sustained in State ex rel. Utilities Com’n. v. Morgan, supra. The court held that the Commission did not exhaust its powers by suspending the filed rate, and was not precluded from thereafter withdrawing or modifying the suspension. Similarly, City of Pittsburgh v. Pennsylvania Pubiic Utility Com’n., 178 Pa.Super. 368, 115 A.2d 858 (1955) holds that the statutory power to suspend rates carries the implied power to revoke the suspension. Reflecting the same basic concept of the ancillary nature of the application for an interim rate increase, South Central Bell Tel. Co. v. Louisiana Public Service Com’n., 272 So.2d 667 (La.1973) affirmed the action of the Commission in consolidating an application for an interim increase with a pending application for a permanent increase.

      . The Supreme Court order transferring this appeal to this Court should be understood in this light. While the question remains whether Laclede’s rates have become unreasonable, that is a matter of constitutional application, not constitutional construction, and therefore falls within the jurisdiction of this Court.


author: TURNAGE, Presiding Judge.

text:
    Allen L. HOMAN, Respondent, v. AMERICAN CAN COMPANY, Appellant.
    No. KCD 27996.
    Missouri Court of Appeals, Kansas City District.
    March 29, 1976.

      Harold T. Van Dyke, Linde, Thomson, Fairchild, Langworthy & Kohn, Kansas City, for appellant.
    Richard E. Duggan, Duggan & Keleher, Kansas City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   TURNAGE, Presiding Judge.

In this Workmen’s Compensation appeal, American Can Company claims the fact found by the referee, and affirmed by the Industrial Commission and the Circuit Court, is erroneous in finding Allen Homan suffered any “unusual or abnormal strain”. American Can also claims credit for certain payments made to Homan. The judgment is affirmed.

American Can does not contend Homan did not suffer some injury. The only question concerns whether or not such injury was caused by an unusual or abnormal strain.

On this appeal the facts are considered in the light most favorable to the prevailing party, and the award must be affirmed if it is supported by competent and substantial evidence. This court cannot substitute its judgment for that of the Commission. Davies v. Carter Carburetor, Div. ACF Indus., Inc., 429 S.W.2d 738, 741[1, 2] (Mo.1968).

Homan was a machine operator whose job was to feed sheet metal strips into machines which made the ends for cans. The metal strips were just over three feet in length, about five inches wide, and each one was about as thick as a knife blade. The strips were some ninety-five to one-hundred-seven gauge steel. Such strips were sprayed with a wax which made them slick.

The strips were stacked on a platform which was two and one-half to three feet high. Homan testified he usually picked up a group of strips about three inches in height from the stack on this platform. Since the strips were stacked from front to rear on the platform, it was necessary to lean over the platform in order to reach those toward the back. Homan grasped the strips at each end with his fingers with the palms upward. He then turned around and fed the strips into the machines he was operating. Homan stated each pile of strips of about three inches in height weighed about sixty pounds.

On the day in question, Homan stated he was picking up a stack of strips from the rear of the platform when he felt the stack starting to shift. He stated he gripped the stack tighter than usual and exerted more force or pressure than normal in order to keep his balance and to keep from dropping the stack. As he gripped tighter than usual and as he was attempting to keep his balance, he felt a severe pain in his left arm and shoulder. The pain forced him to then actually drop the stack.

The referee found the stack slipped and shifted as Homan picked it up and as he attempted to stabilize the stack, he exerted unusual strain in an awkward position resulting in a pulled shoulder muscle.

American Can contends there is no substantial evidence to show Homan exerted or was subject to any unusual or abnormal strain. The evidence set out above refutes this contention. This evidence on the part of Homan clearly shows that on the occasion in question he exerted unusual force or pressure and tightened his grip more than usual in order to stabilize the shifting load and to maintain his balance to keep from dropping the load. The testimony of Homan does not show he ever exerted the force, pressure or strain before which he did at this time to stabilize the stack he picked up. The position of Homan in leaning over the platform to lift sixty pounds of weight with his palms up was awkward to say the least. This testimony by Homan constituted substantial and competent evidence which supports the finding by the referee and the Commission that Homan did suffer an unusual and abnormal strain.

American Can seeks to avoid the force of Homan’s testimony by stating the stacks of steel strips were always slick and sometimes slipped when Homan picked them up. However, Homan testified with the incident in question he did exert unusual force and pressure and did tighten his grip more than on previous occasions. This factor distinguishes this case from the cases American Can cites in which there was no evidence of any unusual strain. In those cases the employee simply suffered a pain in doing the task which he had regularly done while he was doing it in the very same manner and with no unusual occurrence other than the onset of pain.

There is no question that unusual or abnormal strain causing injury is an accident since the holding in Crow v. Missouri Implement Tractor Company, 307 S.W.2d 401 (Mo. banc 1957). A case similar on the facts involving an unusual strain is Merriman v. Ben Gutman Truck Service, Inc., 392 S.W.2d 292, 298[11] (Mo.1965). Since the finding of the referee and the Commission is supported by competent and substantial evidence, it must be affirmed.

American Can next contends it is entitled to credit for payments made to Homan by Metropolitan Insurance Company under a disability policy carried by American Can. Such policy did not cover Workmen’s Compensation benefits, but paid for disability not covered under that Act. Homan made claim for benefits under this policy after American Can had denied all liability to him under the Workmen’s Compensation Law. In order to obtain benefits from Metropolitan, Homan was required to, and did, sign an agreement to repay Metropolitan any sums received from that Company if he later received any compensation under the Workmen’s Compensation Law. American Can now contends it should have credit for these payments made to Homan by Metropolitan, claiming Homan received such payments “on account of the injury” under § 287.160(3), RSMo 1969.

Here the payments did not come from American Can but came from Metropolitan. § 287.270 requires benefits to come from the employer or its insurer for Workmen’s Compensation liability. Payments from any other source are not credited on benefits payable under the Workmen’s Compensation Chapter. Cases such as Point v. Westinghouse Electric Corporation, 382 S.W.2d 436 (Mo.App.1964) and Cowan v. Southwestern Bell Telephone Co., 529 S.W.2d 485 (Mo.App.1975) are not applicable because in those cases the payments for which the employer received credit came from the employer.

In this case, American Can has no claim to credit because the payments made to Homan did not come from it. However, Homan will not realize any double benefits because he is obligated to repay Metropolitan any sums he receives under Workmen’s Compensation up to the amount paid to him by Metropolitan.

What has just been stated in regard to payments made by Metropolitan to Homan applies to American Can’s last contention that it should not be required to pay hospital and physician bills incurred by Homan. Those bills were paid by Metropolitan under the same policy. For the reasons stated above, American Can is not entitled to credit for payments, already made by Metrópoli-tan. Likewise, Homan is required to pay any sum received under Workmen’s Compensation for these medical expenses to Metropolitan.

The judgment is affirmed.

All concur.


text:
    Jerry Robert CLOUD, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. KCD 28026.
    Missouri Court of Appeals, Kansas City District.
    March 29, 1976.
    Gerald Kiser, Public Defender, Liberty, for movant-appellant.
    John C. Danforth, Atty. Gen., Nanette Laughrey, Asst. Atty. Gen., Jefferson City, for respondent.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   DIXON, Presiding Judge.

Movant appeals the trial court denial of his 27.26 motion without evidentiary hearing. The direct appeal of movant’s conviction is reported in Cloud v. State, 507 S.W.2d 667 (Mo.App.1974). The opinion there reported gives a sufficient statement of the basic facts of the armed robbery for which movant was convicted to obviate repetition of those facts.

Movant first contends that the trial court erred in denying his motion because the trial court did not, at the time of trial, hold an evidentiary hearing on the sanity of defendant. A court ordered mental examination of defendant revealed no basis for a finding of incompetency, either at the time of the offense or at trial. The movant never requested a hearing or in any way challenged the findings of the court ordered examination. The motion states no facts, and the trial transcript which is here demonstrates none, which would remotely suggest such an issue. Movant is simply in error in asserting that a hearing is required absent a bona fide doubt as to sanity. Ervin v. State, 525 S.W.2d 381 (Mo.App.1975); Boyer v. State, 527 S.W.2d 432 (Mo.App. 1975).

Movant next predicates error on the failure of the trial court to conduct an evidentiary hearing on the movant’s claim that his trial counsel was ineffective. The pro se motion asserts that counsel’s ineffectiveness consisted of failing to file a motion pursuant to Rule 27.04 to reduce the jury-imposed sentence of 43 years. The amended motion filed after counsel was appointed in the proceedings on the motion broadens the claim in the facts in support to include “for counsel’s failure to render proper assistance by failing to protect Movant’s rights in obtaining a fair trial, etc.” Whatever “etc.” may be intended to mean in a pleading of this nature, it cannot aid the purely conclusionary nature of the claim in the amended motion that there was ineffective assistance of counsel as set forth in the pro se motion.

The issue then turns on the original premise of the pro se pleading. That premise is that the failure to file under Rule 27.04 shows ipso facto ineffectiveness of counsel which should have been determined by the trial court in an evidentiary hearing on the motion.

The flaw in this argument is that nowhere does the movant allege that prejudice to the defendant occurred as a result of this failure by counsel. The nearest approach to such a claim is the assertion by defendant, “The circumstances of the case reveal that the punishment assessed was greater than ought to have been inflicted and certainly called for counsel to investigate the matter prior to sentencing.”

As noted, the trial transcript was made a part of the record in this case, and it has been re-examined in the light of the mov-ant's contention. No such circumstances appear as movant’s conclusion asserts. No requirement of case law or statute requires such a review, but the ineptly worded pro se motion presents no reasoned legal position, and the factual determination makes it clear none could be presented.

Movant also attacks the denial of an evidentiary hearing by asserting that his motion alleges that the State knowingly permitted the complaining witnesses, Mr. and Mrs. Studna, to testify falsely. The basis for that claim presents no factual issue. The claim rests on the admitted fact that at trial Mr. Studna did testify that the robber had a phony mustache. On the other hand, the police officer who interviewed Mr. Studna said that Mr. Studna said the robber had a wide mustache. That inconsistency in testimony cannot be said to constitute perjury. Tyler v. State, 501 S.W.2d 189 (Mo.App.1973). There being no perjury, the trial court had no obligation to order an evidentiary hearing to review the evidence at trial. If the movant’s position were sound, the bare allegation of perjury would require re-examination of every trial in which inconsistencies appeared in the witnesses’ testimonies, a proposition which once articulated demonstrates its absurdity.

Movant seeks to elevate another trial incident to a claim of error in refusing an evidentiary hearing by asserting .that trial counsel was ineffective in dealing with a “mugshot.” The complaining witnesses stated that they first identified the defendant by selecting a photograph from a large number displayed to them by the police. At trial, the photograph was not introduced or identified by them and so far as the record discloses was never physically produced. Defense counsel, seizing upon the fact that the photograph had not been produced, argued to the jury without objection that the fact the photograph had not been produced cast doubt upon the identification of the defendant by the complaining witnesses. The jury, apparently impressed by the argument, sent a note to the trial judge asking if they could see the photograph. The defendant’s counsel objected to any such procedure on the sound ground that no photograph had been identified, much less introduced, stating he had never even seen it. The trial judge quite properly sustained the objection and denied the jury’s request.

Movant now asserts, apparently on the basis of clairvoyance, that the photograph did not resemble him and that his counsel was derelict in not “seeing” the photograph and “should not have objected” to the jury viewing the photograph.

A more classic example of trial tactics would be hard to put. The defense lawyer, when the State had shown in evidence that the photograph existed, simply awaited the opportunity to turn the failure to produce to the defendant’s advantage. From the jury inquiry, it is clear the argument had force. Such trial tactics would not support a claim of ineffectiveness of counsel. Crow v. State, 514 S.W.2d 13 (Mo.App.1974); Jackson v. State, 510 S.W.2d 707 (Mo.App. 1974). Nor can they be converted to improper representation by the unsupported conclusions of the movant. No evidentiary hearing was necessary.

Movant’s final point is an abstract statement that the trial court erred in failing to provide an evidentiary hearing on certain numbered points in the motion. Neither in the point nor in the argument is the statement expanded to permit this court to understand what specific error is claimed. That defect would be sufficient to justify a refusal to consider the claim. The motion has been reviewed in the areas specified, and it is apparent each of the points referred to is either totally without merit or is a matter concluded on the direct appeal of this conviction.

Affirmed.

All concur.


author: PRITCHARD, Chief Judge.

text:
    Clyde UMPHENOUR, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 28058.
    Missouri Court of Appeals, Kansas City District.
    March 29, 1976.

      Thomas M. Larson, Public Defender, Sixteenth Judicial Circuit, Douglas N. Merritt, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   PRITCHARD, Chief Judge.

The sole question is whether appellant is entitled to have credited upon his 10 year sentence entered upon his plea of guilty to voluntary manslaughter in Jackson County 351 days of jail time spent in Clay and Andrew Counties on a charge unrelated to that in Jackson County.

It is stipulated that the findings of fact of the trial court found in connection with its overruling of appellant’s Rule 27.26 motion to modify the 10 year sentence are correct. Those facts are these: Appellant was “arraigned” by a Jackson County Magistrate on July 29, 1970, upon a charge of murder in the first degree, and a $6,000 bond was posted by the A & M Bonding Company. Appellant was immediately taken into custody and an agent of Freedom Bonding Company of Liberty, Missouri, surrendered him to the Clay County sheriff that same day, and he was confined on a charge unrelated to that pending in Jackson County. Arraignment in Jackson County was set for August 9, 1970, but because of the Clay County incarceration, appellant was unable to appear, “and thus forfeited his bond with A & M Bonding Company.” “7. Movant chose not to post bond in Clay County because he was being detained by the forces of the Jackson County detainer.”

Appellant remained in the Clay County facility from July 29, 1970, until April 6, 1971, a total of 253 days, after which he was transferred to the Andrew County jail at Savannah upon a change of venue of the Clay County charge. No action was taken on the Clay County charge during this time, and it was finally dismissed on March 8, 1972.

On July 26, 1971, on a Writ of Habeas Corpus Ad Prosequendum, appellant was returned to Jackson County to stand trial on the first degree murder charge, which charge was subsequently reduced to voluntary manslaughter, to which appellant entered a plea of guilty. The court sentenced appellant to 10 years in the Department of Corrections, and pursuant to § 546.615, RSMo 1969 (amended by Laws 1971, p. 470, § 1), credited him with 197 days only as jail time served in Jackson County from July 26, 1971, to February 7, 1972, the date he was delivered to Jefferson City. Appellant filed his pro se Rule 27.26 motion on November 13, 1973, alleging that the court “erred in refusing to credit him with the 362 days jail time served in Clay and Andrew Counties while being held pursuant to a Jackson County detainer based on a charge for which he was sentenced.” This motion and an amended pro se motion were overruled.

The general rule is, as the trial court concluded, that a prisoner is not entitled to credit for jail time spent on an offense unrelated to the one for which he is convicted and sentenced. The writer of the article “Presentence Confinement and the Constitution: The Burial of Dead Time”, 23 Hastings Law Journal 1041 (April 1972), notes the exception in several places. He begins: “The major thesis [of the article] is that all prisoners serving sentences in any jail or prison in the United States are constitutionally entitled to full credit for each day of presentence confinement served in connec tion with the crime for which they have been sentenced.” Then, at page 1045, he notes, “Other statutes [such as Missouri’s § 546.615] do not expressly mention a need for causal connection between the original charge and the ultimate sentence, but such a provision would seem reasonably to be implied.” Expanding this proposition at page 1080, the author says, “Obviously a prisoner should not be given credit for time that bears no relation to his current sentence. If a prisoner could ‘bank’ time previously served in connection with offenses for which he was not convicted, or where his conviction was invalidated, and he would apply that time against a later offense, the

result [would be] something in the nature of a license to commit some anti-social act or acts, the extent or scope of the license measured by the amount of time the defendant has in the ‘bank’.” [First bracketed material and italics added.]

Cases which hold that credit for jail time on an unrelated charge is not allowable include these: Bernoff v. Amoroso, 188 Misc. 845, 65 N.Y.S.2d 810, 813[3-5] (Sup.Ct. 1946), where it was said, “Obviously, the time spent in jail prior to conviction must, at least, bear an intimate and substantial relationship to the crime for which such person is subsequently convicted. People ex rel. Melick v. Jennings, 132 Misc. 197, 229 N.Y.S. 188; 1933, Op.Atty.Gen. 536 quoted with apparent approval in People ex rel. Montana v. McGee, Sup., 16 N.Y.S.2d 162, 165. It follows necessarily that the imprisonment prior to conviction must be based upon a charge which subsequently matures in conviction and sentence.” See also State v. Holmes, 108 R.I. 579, 277 A.2d 914, 916 (1971); State v. Savastano, 315 A.2d 66, 68 (R.I.1974); and Byrd v. State, 65 Wis.2d 415, 222 N.W.2d 696, 699 (1974), cited by the state. Trigg v. State, 523 S.W.2d 375, 376[2, 3] (Tenn.Cr.App.1975); and note Ex Parte Alvarez, 519 S.W.2d 440, 443 (Tex.Cr.App.1975), holding [under the Texas statute which provided that a defendant shall be given credit by the court in which convicted for jail time spent in said cause] that time served in jail in Harris County on a charge for which he was arrested therein after being “bonded out” of Nueces County, was not, in respect to a conviction in Nueces County, time spent in jail in said cause. But note further, as the significant fact in the case at bar, what the Alvarez court said, “Unless there was some communication or hold sent to the Harris County custodian, there would be no change in the basis of his confinement.” (Italics added.) Other cases applying the general rule noted above are: Anglin v. State, 525 P.2d 34, 39 (Nev.1974); State v. Council, 137 N.J.Super. 306, 349 A.2d 71, 72[2] (1975); and of interest is the case of Lawrence v. State, 306 So.2d 561 (Fla.App.1975), where under the express terms of the Florida statute it was held that the defendant should have been given “credit for all of the time spent in jail between the date of his arrest and the date of his sentence even though such time may have related to other charges. However, it is important to point out that a defendant will be given credit only once for the total time spent prior to sentencing; if he is sentenced on another charge by the same or another judge duplicate jail time cannot be given.”

Absent some fact showing that the sentencing jurisdiction participated in the incarceration of a defendant on charges in another jurisdiction, this state will undoubtedly follow the general rule of disallowance of jail time on an unrelated charge, thus avoiding the possibility of “banked” jail time commented upon in the Hastings Law Journal, supra. Under the particular facts of this case, however, it must be held that appellant’s incarceration in Clay County was occasioned by the joint actions of Clay and Jackson Counties — Clay County by reason of its charge, and Jackson County authorities by reason of the detainer issued, which was the reason appellant chose not to make bond in Clay County. Obviously, to do so would have been futile. His Jackson County bond had been forfeited, and he would have been subject to being picked up by Jackson County authorities.

Although the factual situation of incarceration by federal authorities when. a state detainer had been issued would not be applied in this state because of the recent opinion, Hawkins v. Lauf, 532 S.W.2d 459 (Mo. banc 1976) [Handed down February 9, 1976], the reasoning in Commonwealth v. Schartner, 227 Pa.Super. 401, 323 A.2d 237 (1974), applies here. There, appellant was arrested on March 4, 1966, for aggravated robbery, and remained in prison in Dauphin County until April 1, 1966. On July 30, 1966, he was arrested in Oklahoma on federal charges and incarcerated, bail being set at $1,000. A Dauphin County detainer was lodged against him and he remained in prison. He claimed that he was entitled to credit for time served prior to his sentence on September 5, 1967. The Schartner court noted that under the jail time credit statute no credit was to be given for time spent in custody on another offense, but allowed the credit saying, “He was unable to obtain his freedom on bail because of the detainer lodged against him by Dauphin County on the aggravated robbery charge which resulted in his retention in custody so that although his confinement was due to another crime, the retention was the result of the Dauphin County crime and he should be credited for that time.” Here, there was effected a change in the basis of appellant’s confinement in Clay County by reason of the Jackson County detainer. Alvarez, supra. Therefore, the Clay County incarceration must be said to be related to the Jackson County conviction and sentence, and appellant should be credited with that jail time.

The judgment is reversed and the case remanded with directions to grant credit for the time spent in jail by appellant between July 29, 1970, to July 26, 1971, and that a certified copy of the order made thereon be forwarded to the Department of Corrections of Missouri.

All concur.


text:
    STATE ex rel. BRINK’S INCORPORATED, a corporation, Appellant, v. PUBLIC SERVICE COMMISSION of the State of Missouri, Respondent, Wells Fargo Armored Service Corporation, Intervenor-Respondent.
    Nos. KCD 27753, KCD 27754.
    Missouri Court of Appeals, Kansas City District.
    March 29, 1976.

      Herman W. Huber, Thomas J. Downey, Jefferson City, for appellant.
    Dale E. Sporleder, Spencer, Fane, Britt & Browne, Jefferson City, Melvin E. Bailet, Atlanta, Ga., for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   TURNAGE, Presiding Judge.

This case presents the question of whether the Public Service Commission properly allowed a contract carrier to intervene in an application filed for common carrier authority. The circuit court held such intervention to be improper. This court holds the intervention was properly allowed and reverses.

Wells Fargo filed an application for common carrier authority to transport valuables, including money, currency, checks and securities, between the Springfield, Missouri commercial zone and the Kansas City, Missouri commercial zone. Brink’s was allowed to intervene and to become a party upon its application and showing that it held contract carrier authority between the same two zones.

In the second proceeding, Wells Fargo filed an application for common carrier authority to transport valuables between all points and places in forty-three western Missouri counties. Brink’s sought and was given leave to intervene on the basis that it held authority for contract carrier service within the same area.

After hearing, the Commission granted the common carrier authority sought by Wells Fargo to transport valuables between the Springfield and Kansas City areas and to provide service between all points and places within twenty-two counties of the forty-three named in the application. Brink’s filed an appeal to the circuit court of Cole County after its motion for rehearing before the Commission was overruled. Wells Fargo filed a motion to dismiss Brink’s appeal in the circuit court on the basis thqt Brink’s had been improperly allowed to intervene by the Commission and had no standing to appeal. The court sustained Wells Fargo’s motion to dismiss in both cases and Brink’s has appealed to this court.

Intervention before the Commission is provided by Section 386.420, RSMo 1969. This Section provides that “such corporations and persons as the commission may allow to intervene, shall be entitled to be heard and to introduce evidence.” While this Section applies to the Commission generally, the application by Wells Fargo for common carrier authority was heard by the Commission under the provisions of Chapter 390, RSMo 1969 relating to Motor Carriers, Contract Haulers and Express Companies. By Section 390.146 the provisions of Chapter 386, including 386.420, are made applicable to proceedings involving motor carriers.

In contending that Brink’s should not have been allowed to intervene, Wells Fargo urges the difference in the authority and obligation of a carrier holding common carrier permits and that of a carrier holding a contract carrier permit. It also argues that certain amendments to some of the motor carrier Sections reveal an intent to exclude contract carriers from participating in hearings involving common carrier authority.

There is no doubt there is a difference between the authority and the obligations imposed and assumed under these two categories of motor Carrier permits. The common carrier, of course, assumes the obligation, and has the authority to serve any entity, while the contract carrier is limited to serving those parties with whom it has a contract. However, the fact that such difference does exist does not reach the question of the propriety of allowing the holder of a contract carrier permit to intervene in an application seeking common carrier authority. Rather, the question of intervention is much broader than the difference which may exist between the types of service these two carriers offer.

The statutes above referred to make provision for the Commission to grant parties the right to intervene in proceedings pending before the Commission. The grant made by the Legislature to the Commission is broad with no qualifications other than the fact the Commission must make an order allowing intervention. In short, the Legislature has granted a broad unqualified power to the Commission to grant intervention.

This power was considered in State ex rel. Consumers Public Service Co. v. Public Service Commission, 352 Mo. 905, 180 S.W.2d 40 (Mo. banc 1944). The court there stated at 180 S.W.2d 46[6-8] that “interve-nors are not required to have a pecuniary interest, or property or other rights, which will be directly or immediately affected by the order sought or even its enforcement.”

The liberal construction given in the Consumers Public Service case was cited by this court in State ex rel. Crown Coach Company v. Public Service Commission, 239 Mo.App. 198, 185 S.W.2d 347 (1944) in which intervention was held proper by a motor carrier of passengers in an application by another carrier for a different type of service. Thus, this court has held it is not necessary for the service proposed by the applicant to be the same as that being rendered by the intervenor before intervention is held to be proper.

Under Section 390.051, RSMo 1969, the Commission is authorized to give notice of a hearing to be held on a common carrier application to any “person or persons who might in the opinion of the commission be properly interested in or affected by the issuance of said certificate.”

This Section does not affect the right of the Commission to grant intervention. Both the Consumers Public Service case and the Crown Coach case hold that the word “interested” does not require any pecuniary or property interest in the application in order to be granted the right to intervene.

Although such pecuniary or property right is not necessary, it is apparent that Brink’s would have an interest in the application of Wells Fargo since obviously any permit granted to Wells Fargo would at least have a possibility of affecting the rights of Brink’s in serving customers in the same territory. This is borne out by the fact Southwestern Bell was using both Brink’s and Wells Fargo to transport valuables between Springfield and Kansas City.

Wells Fargo urges amendments made in 1951 to certain Sections in Chapter 390 show an intent on the part of the Legislature to exclude contract carriers from common carrier application hearings. However, such amendments did not change any of the statutes referred to herein allowing the Commission to permit intervention. Neither do such amendments reflect any intent on the part of the Legislature to exclude contract carriers from common carrier hearings.

Under the holdings in Consumers Public Service and Crown Coach, and under the broad authority granted by the Legislature to the Commission to allow intervention, the Commission properly allowed Brink’s to intervene in the Wells Fargo application.

If the order of the Commission is found to be reasonable and lawful, the court is obligated to affirm such order. State ex rel. Fee Fee Trunk Sewer Inc. v. Public Service Commission of Missouri, 522 S.W.2d 67 (Mo.App.1975). Here the order allowing Brink’s to intervene was lawful and reasonable.

The order dismissing the appeal of Brink’s is reversed and these causes are remanded to the circuit court for it to perform the review on the merits of the authority granted Wells Fargo provided in Section 386.510, RSMo 1969.

All concur.