Summary
In State ex rel. Kansas City v. Public ServiceCommission, et al., 228 S.W.2d 738 (Mo. 1950), the Supreme Court faced a similar issue, except that the PSC had entered an entirely new order rather than simply a modification of an existing order as in State ex rel. IronCo.
Summary of this case from State ex rel. Missouri Cable Telecommunications Ass'n v. Missouri Public Service CommissionOpinion
No. 41616.
March 13, 1950. Motion for Rehearing or to Transfer to Banc Overruled, April 10, 1950.
The Public Service Commission entered a telephone rate increase order which the circuit court reversed and remanded because of procedural defects. The Commission had jurisdiction to enter a second order after receipt of notice from the circuit clerk. No formal mandate was required. The first decree of the circuit court was not appealable and so a motion for new trial was a nullity. Notice and new hearings were not required before the Commission entered the second order. The second decree of the circuit court reversing and remanding the second order of the Commission was a final appealable order. The case is remanded to the Circuit Court for further proceedings.
1. PUBLIC UTILITIES: Administrative Law: Telephone Rate Increase: Second Order of Public Service Commission: New Order. After the circuit court had ruled that the first telephone rate increase order of the Public Service Commission was a nullity because of procedural defects, the Commission entered a second order. This was a new order which made no attempt to amend the first order.
2. PUBLIC UTILITIES: Administrative Law: Appeal and Error: Telephone Rate Increase: Reversal of Prior Order: Notification to Public Service Commission: Jurisdiction of Commission to Enter Second Order. A letter from the circuit clerk to the Public Service Commission advising that the first order had been reversed and remanded for procedural defects served the function of a mandate, and the Commission had jurisdiction to enter the second order.
3. PUBLIC UTILITIES: Administrative Law: Appeal and Error: New Trial: Telephone Rate Increase: First Order Not Appealable: Motion for New Trial a Nullity: Finality of Judgment Not Postponed. The decree of the circuit court remanding the first order of the Public Service Commission was not appealable, so a motion for new trial was a nullity and did not postpone the finality of the judgment.
4. PUBLIC UTILITIES: Administrative Law: Telephone Rate Increase: Invalid First Order: Notice and Hearing on Second Order Not Required. When the first order of the Public Service Commission had been held void because of procedural defects, the Commission had the right to enter a second order in proper form without further notice and new hearings.
5. PUBLIC UTILITIES: Administrative Law: Appeal and Error: Telephone Rate Increase: Appealable Order of Circuit Court. The order of the circuit court reversing and remanding the second order of the Public Service Commission was a final order from which the public utility could take an appeal.
Appeal from Cole Circuit Court: Hon. Sam C. Blair, Judge.
REVERSED AND REMANDED ( with directions).
Henry McKay Cary, Tyre W. Burton and Chas. H. Mayer for appellants; John Mohler of counsel.
(1) The circuit court erred in entering its judgment of May 21, 1949, reversing the second order of the Commission entered February 25, 1949, to become effective March 10, 1949, because: The second order was a valid exercise of the Commission's legislative authority. The order spoke prospectively only, and in no way interfered with the processes of the court in its consideration of the Commission's first order issued January 18, 1949. Prentis v. Atlantic Coast Line, 211 U.S. 210, 53 L.Ed. 150; Midland Realty Co. v. Kansas City P. L. Co., 300 U.S. 109, 81 L.Ed. 540, affirming Kansas City P. L. Co. v. Midland Realty Co., 338 Mo. 1141, 93 S.W.2d 954; Missouri Southern Ry. Co. v. Public Serv. Comm. 279 Mo. 484, 214 S.W. 379; Clark v. Austin, 340 Mo. 467, 101 S.W.2d 977; 51 C.J. 64, sec. 118. (2) The second order did not and does not preclude a proper and complete disposal of the purported appeal of St. Louis County, which purported appeal involved the first order only. 3 Am. Jur. 194, sec. 531; Schramm v. Kraeuchi, 156 S.W.2d 374; State v. Ashworth, 346 Mo. 869, 143 S.W.2d 279. (3) The original appeal being from the Commission to the circuit court, and not from one court to another court, the rules applicable to courts as between themselves ought to be applied with caution and only where it is absolutely necessary to protect the court's jurisdiction or to prevent interference with the court's processes. Federal Communications Commission v. Pottsville Broadcasting Co., 309 U.S. 134, 84 L.Ed. 656. (4) The second order in result was substantially the same as the first order, except that the Commission avoided the procedural error because of which, and only because of which, the circuit court reversed the first order and remanded the case to the Commission for further action, and under such circumstances, no rehearing was required. 51 C.J. 80, sec. 143; Kristanik v. Chevrolet Motor Co., 335 Mo. 60, 70 S.W.2d 890; In re Milwaukee Electric Ry. Light Co., 189 Wis. 96, 206 N.W. 201; People ex rel. New York Central H.R.R. Co. v. Public Serv. Comm., 228 N.Y. 553, 126 N.E. 728; Ford Motor Co. v. Natl. Labor Relations Board, 305 U.S. 364, 83 L.Ed. 221; Cincinnati Suburban Tel. Co. v. Public Utilities Comm., 107 Ohio St. 370, 140 N.E. 86. (5) Aside from the foregoing, the circuit court had divested itself of jurisdiction in the cause when the court's mandate (which was never recalled) was received by the Commission and action taken thereon. Under the Public Service Commission Act, the circuit court exercised only an appellate jurisdiction. Sec. 5690, R.S. 1939; State ex rel. Anderson Motor Service Co. v. Public Serv. Comm., 339 Mo. 469, 97 S.W.2d 116; State ex rel. May Department Stores Co. v. Haid, 327 Mo. 567, 38 S.W.2d 44. (6) The circuit court's mandate or order of remand communicated to the Commission the court's judgment upon the appeal from the Commission's first order, and was a simple reversal and remand because of a procedural error of the Commission, requiring no interpretative function on the Commission's part. 5 C.J.S. 1487, sec. 1958; State ex rel. McGrew Coal Co. v. Ragland, 339 Mo. 452, 97 S.W.2d 113. (7) So far as the circuit court was concerned (except for its authority to recall the mandate for certain purposes, which power the court never exercised), the case was ended when the Commission received the mandate, and the Commission had to assume that the mandate was properly issued. Gary Realty Co. v. Swinney, 317 Mo. 687, 297 S.W. 43; State ex rel. Strother v. Broaddus, 234 Mo. 358, 137 S.W. 268; 4 C.J. 1244, sec. 3308; 5 C.J.S. 1561, sec. 1996. (8) The circuit court's judgment on the appeal from the Commission's first order was not appealable by St. Louis County, and its attempted appeal to the Supreme Court was merely vexatious and frivolous and a nullity. The county, having been a prevailing and successful party, was not aggrieved or injuriously affected by the circuit court's judgment, and had no right to appeal from a judgment in its favor. Sec. 5693, R.S. 1939; Sec. 126, Civil Code of Missouri; Laws 1943, p. 390; McClain v. Kansas City Bridge Co., 338 Mo. 7, 88 S.W.2d 1019; New York Tel. Co. v. Maltbie, 291 U.S. 645, 78 L.Ed. 1041; State ex rel. McKittrick v. Public Serv. Comm., 352 Mo. 29, 175 S.W.2d 857; Milbourne v. Robison, 132 Mo. App. 207; Troll v. St. Louis, 257 Mo. 765; Vendt v. Duenke, 210 S.W.2d 692. (9) Moreover, the circuit court's judgment was not final as to St. Louis County. People ex rel. Long Acre Elec. L. P. Co. v. Public Serv. Comm., 199 N.Y. 254, 92 N.E. 629; Laclede Gaslight Co. v. Public Serv. Comm., 304 U.S. 398, 82 L.Ed. 1422. (10) The circuit court had the discretionary right under the statute to remand the case to the Commission when it reversed the order, and no question of the court's abuse of its discretion was raised in St. Louis County's motion for new trial. Sec. 5690, R.S. 1939. (11) The circuit court's judgment, not being appealable by St. Louis County, remained in full force notwithstanding the attempted appeal. 4 C.J.S. 1091, sec. 606; State ex rel. Thompson v. Terte, 357 Mo. 229, 207 S.W.2d 487; Baxter v. Clark, 118 Kan. 281, 235 P. 115. (12) Aside from all of the foregoing, the Commission had the right to perform the circuit court's judgment, particularly since the case was not appealable by any of the relators or intervenors, and no objection was made by either the Commission or the Company, who were the only aggrieved parties. Ex parte Craig, 130 Mo. 590, 32 S.W. 1121; Van Hafften v. Clayton, 259 S.W. 530; Sterling v. Parker-Washington Co., 170 S.W. 1156, 185 Mo. App. 192; Restatement, Judgments, sec. 41, d., p. 163.
David M. Proctor, City Counselor, and Jerome M. Joffee, Special Utilities and Legislative Counsel, for respondent Kansas City.
(1) The court lacks jurisdiction to hear this case because the "findings, orders and judgment" of the Circuit Court of Cole County, entered May 21, 1949, from which this appeal has been taken, was an interlocutory order and not a final judgment. Sec. 847.126, Mo. R.S.A.; 49 C.J.S. pp. 35, 36, 37; Hanover Fire Ins. Co. v. Commercial Standard Ins. Co., 215 S.W.2d 444; State ex rel. v. Terte, 207 S.W.2d 487, 357 Mo. 229; Barlow v. Scott, 85 S.W.2d 504; Boden v. Johnson, 23 S.W.2d 186, 224 Mo. App. 211; Carr on Missouri Civil Procedure, sec. 860. (2) The court's "findings, orders and judgment" was an interlocutory order because a restitution order was essential before the judgment could be final. 5 C.J.S. pp. 1542, 1545; Aetna Ins. Co. v. Hyde, 34 S.W.2d 85, 327 Mo. 115; State ex rel. v. Sevier, 73 S.W.2d 361, 335 Mo. 269; Sec. 5691, Mo. R.S.A. (3) The circuit court's memorandum opinion issued February 21, 1949, was no part of the court's order of that date and, therefore, did not constitute the mandate of that court. City of St. Louis v. Pope, 68 S.W.2d 805; City of St. Louis v. Senter Commission Co., 73 S.W.2d 389, 335 Mo. 489; State ex rel. Shartel v. Skinker, 25 S.W.2d 472, 324 Mo. 955. (4) The Public Service Commission lacked jurisdiction to enter its order of February 25, 1949, because jurisdiction of the particular proceeding referred to in the Commission's order together with the complete record thereof was on that date lodged exclusively in the Circuit Court of Cole County. Sec. 5690, Mo. R.S.A.; Secs. 847.116, 847.119 Mo. R.S.A.; State ex rel. Campbell Iron Co. v. Public Serv. Comm., 296 S.W. 998, 317 Mo. 724; Camden v. St. Louis Public Serv. Co., 206 S.W.2d 699, 239 Mo. App. 1199; Seabaugh's Dependents v. Garver Lumber Mfg. Co., 200 S.W.2d 55, 355 Mo. 1153; Templeton v. Seehorn, 200 S.W.2d 789; State ex rel. Williams v. Daues, 66 S.W.2d 137, 334 Mo. 91; Hays v. Dow, 166 S.W.2d 309, 237 Mo. App. 1; State ex rel. v. Hess, 153 S.W.2d 713, 348 Mo. 388; State ex rel. Southwestern Water Co. v. Public Serv. Comm., 173 S.W.2d 113; State ex rel. Cirese v. Ridge, 138 S.W.2d 1012, 345 Mo. 1096; Gary Realty Co. v. Swinney, 297 S.W. 43, 317 Mo. 687; State ex rel. Alton Railroad Co. v. Public Serv. Comm., 155 S.W.2d 149, 348 Mo. 780.
James E. Crowe, City Counselor, and Forrest G. Ferris, Jr., Associate City Counselor, for respondent City of St. Louis.
(1) The circuit court's judgment of May 21, 1949, reversing the Public Service Commission's so-called second order of February 25, 1949, should be affirmed, because: It is well settled that where a case, orginally decided by the Commission, is pending in the circuit court on writ of certiorari, the Commission has no jurisdiction to issue further orders in the same case increasing rates, as was attempted here. State ex rel. Campbell Iron Co. v. Pub. Serv. Comm., 317 Mo. 724, 296 S.W. 998. (2) This is so because the writ of certiorari takes the entire record out of the custody of the Commission, leaving it nothing to act upon. Sec. 5690, Mo. R.S.A.; Sec. 111, Mo. Pub. Serv. Comm. Act; State ex rel. Northwestern Mut. Life Ins. Co. v. Bland, 354 Mo. 391, 189 S.W.2d 542, 161 A.L.R. 423, and authorities cited. (3) The judgment of the circuit court of February 21, 1949, reversing and remanding the Commission's so-called first or original order of January 18, 1949, had not become final, and was still pending in said court at the time the Commission issued its second order of February 25, 1949, here appealed from, because: Where a motion for new trial is timely filed, as it was by St. Louis County on February 26, 1949, the finality of the judgment is postponed until it is overruled (if passed on within 90 days), as was done on March 26, 1949. Seabaugh's Dependents v. Garver Lumber Mfg. Co., 355 Mo. 1153, 200 S.W.2d 63; Sec. 847.116, Mo. R.S.A., Rule 3.24, Missouri Supreme Court. (4) Even after the final judgment relator has "ten days after the entry of judgment in the circuit court appealed from," within which to take an appeal, as was duly done by St. Louis County. Sec. 5693, Mo. R.S.A. (5) Even if no motion for new trial is filed, the judgment does not become final until the "expiration of thirty days after the entry of such judgment," which, in this case, would be March 23, 1949. Seabaugh's Dependents v. Garver Lumber Mfg. Co., 355 Mo. 1153, 200 S.W.2d 55; Rule 3.24, Missouri Supreme Court. (6) The circuit court could not properly transmit its mandate to the Commission until a final disposition of the cause. Gary Realty Co. v. Swinney, 317 Mo. 687, 297 S.W. 43. (7) No mandate was in fact ever transmitted by the circuit court to the Commission prior to the Commission's order of February 25, 1949. (8) Even if it be conceded, for purposes here, that the circuit court's mandate legally could have been and in fact was transmitted to and filed with the Commission on February 22, 1949, as appellants contend, the Commission's second order of February 25, 1949 was not a compliance therewith, but constituted a wholly new and different finding, made without notice or hearing, contrary to the Public Service Commission Act, and therefore is null and void. Sec. 5671, Mo. R.S.A. (9) St. Louis County had a right to sue out a writ of certiorari to review the Commission's first or original order of January 18, 1949, and to appeal from the circuit court's judgment reversing and remanding said cause. Secs. 5690, 5693, Mo. R.S.A.; State ex rel. St. Louis v. Pub. Serv. Comm., 317 Mo. 815, 296 S.W. 790. (10) An "experimental" or "temporary" rate order of the Commission is appealable. State ex rel. Campbell Iron Co. v. Pub. Serv. Comm., 317 Mo. 724, 296 S.W. 998.
Frazier Baker, City Counselor, Fulton, Missouri, and L.A. Warden, City Counselor, Trenton, Missouri, for respondents.
(1) The notice appellants' brief and appellants' record both show on their face that they are interlocutory judgments, and under the R.S. Mo., 1939, Sections 1236-1243, there can be but one final judgment. Boden v. Johnson, 23 S.W.2d 186, 224 Mo. App. 211; State ex rel. v. Terte, 207 S.W.2d 487, 357 Mo. 229; Hanover Fire Ins. Co. v. Commercial Standard Ins. Co., 215 S.W.2d 444. (2) The instant certiorari was served upon the Public Service Commission their power to make further orders in said rate case terminated until finally decided by the court. State ex rel. Adler v. Ossing, 79 S.W.2d 255, 336 Mo. 386; State ex rel. Northwestern Mut. Life Ins. Co. v. Bland, 189 S.W.2d 542, 354 Mo. 391, 161 A.L.R. 423. (3) Under the New Code of Civil Proceedings, 1943, Sections 118-119, and the Supreme Court, Rule 3.24, there was no final judgment, and the Commission had no jurisdiction in this matter, until there was a final judgment. R.S. 1939, Sec. 1243. State ex rel. Campbell Iron Co. v. Pub. Serv. Comm., 317 Mo. 724, 296 S.W. 998; Poindexter v. Marshall, 103 S.W.2d 622; Weller v. Hayes Truck Lines, 197 S.W.2d 657. (4) The only record before the Commission prior to making the order was a copy of the minutes shown on pages 5 and 6 of appellants' brief that was furnished by Guy M. Sone, Clerk of Circuit Court of Cole County, directing attorneys for Commission and intervenors' attorney to prepare appropriate orders to be submitted for final approval. If the circuit court determined the court had jurisdiction over the advance sum collected, then whether or not the Company should make a refund. Seabaugh's Dependents v. Garver Lumber Mfg. Co., 200 S.W.2d 55. (5) There can be but one final judgment. Young v. Young, 165 Mo. 624, 65 S.W. 1016, 88 Am. St. Rep. 440; Russell v. St. Louis S. Ry. Co., 154 Mo. 428, 55 S.W. 454; Boothe v. Loy, 83 Mo. App. 601; Kansas City Pump Co. v. Jones, 104 S.W. 1136, 126 Mo. App. 356; J.J. Newberry Co. v. Baker, 205 S.W.2d 935. (6) As above stated, the Commission has no power to make any further orders or conduct further hearings until final judgment was entered in the circuit court; then under the Old Code Pleadings and the New Code, also Supreme Court Rules, any aggrieved party had 10 days to file motion for rehearing; then if said motion is not passed upon for 90 days thereafter under law, it is automatically overruled and either party can appeal from the overruling of said motion. If no motion is filed, a judgment does not become final for 30 days thereafter, so in any instance the Commission's order of February 25, 1949, was premature and should be set aside, and circuit court judgment affirmed. Mo. Code, Secs. 118-119; Sup. Ct. Rules 3.24, 3.25; Carr, Mo. Civil Code, sec. 852, Code 116; McPike, 193 S.W.2d 962; Park v. Park, 190 S.W.2d 285; Seabaugh's Dependents v. Garver Lumber Mfg. Co., 200 S.W.2d 55; Rule 3.24; State ex rel. Campbell Iron Co. v. Pub. Serv. Comm., 317 Mo. 724, 296 S.W. 998; Poindexter v. Marshall, 193 S.W.2d 622; Sec. 1267, R.S. 1939; State ex rel. Southwestern Bell Tel. Co. v. Public Serv. Comm., 233 S.W. 425.
This is an appeal by the Public Service Commission of Missouri and the Southwestern Bell Telephone Company from a judgment of the Circuit Court of Cole County reversing and setting aside a Report and Order of the Public Service Commission entered on February 25, 1949. The Order of the Commission approved, in part, a schedule of rates previously filed by the Telephone Company under which the rates of the Telephone Company were increased annually in the amount of approximately $3,228,000.00. The respondents are the City of Kansas City, the City of St. Louis, and various other Cities of Missouri which had been permitted to intervene in the proceeding before the Public Service Commission and had filed applications for writs of review in the Circuit Court of Cole County, or had intervened in the case on review.
The judgment involved in this appeal contained the following recitals: that when the Commission entered its Order of February 25, 1949, the original case reviewing the Order of the Public Service Commission of January 18, 1949, was still pending in the Circuit Court with no final judgment in effect and while there was still time to file a motion for a new trial and [740] take an appeal; that jurisdiction could not be regained by the Commission until that case was legally remanded to it; that it could not be remanded until the time for filing a motion for a new trial had expired and thirty days had elapsed from the entry of the judgment; that a timely motion for a new trial was filed by St. Louis County which subsequently took an appeal to the Supreme Court; and that the Commission never regained jurisdiction of the case but jurisdiction is now lodged in the Supreme Court on appeal.
The "original case" referred to in the judgment involved a review of the Order of the Commission entered on January 18, 1949. In that case, the trial court entered a judgment on February 21, 1949, reversing the Commission's Order of January 18, 1949, and remanding the case to the Commission for further proceedings. This judgment is involved in State ex rel. The County of St. Louis, Missouri v. Public Service Commission, No. 41479, 360 Mo. 270, 228 S.W.2d 1, decided concurrently by this Court. The facts relating to the Commission's Order of January 18, 1949, and the subsequent suit to review such Order are set out fully in the opinion in that case and need not be repeated here.
On February 22, 1949, the Commission received by mail the following communication from the Circuit Court of Cole County, omitting names of addressees:
"GUY M. SONE CLERK, CIRCUIT COURT OF COLE COUNTY Jefferson City, Mo.
February 21, 1949. "To (names omitted)
Gentlemen:
"On this date Judge Sam C. Blair entered the following order in the case of State of Missouri, at the relation of Kansas City, vs. Public Service Commission, et al., No. 11,834:
"`Motion for immediate reversal or for stay and suspension of order of Public Service Commission again considered. Court finds original report and order of January 18th, 1949, was a nullity owing to its lack of a showing that a majority of the Commission adequately concurred in the same; that the said report and order had no validity until January 31st, 1949, when Commissioner Wilson filed her separate concurring opinion; that relator, and others interested, was not allowed a reasonable time within which to file and present a motion for a rehearing directed at the order as supplemented by the separate concurring opinion of Commissioner Wilson; that relator, and others interested, had the right to file such a motion for a rehearing under Section 5689, R.S. Mo. 1939, and was entitled to do so; that the action of the Commission in this case denied relator, and others interested, this right; that such of the Commission was arbitrary, unreasonable and capricious; that the order is therefore unlawful for the reasons above; that the order should be and same is reversed and remanded to the Commission for further proceedings consistent herewith. Counsel for relator and intervenors will, under rules of this court, prepare and supply clerk with appropriate form of order.'
"Judge Blair also dictated into the record a statement of his views in this matter.
"The above for your information. Very truly yours, GUY M. SONE, Clerk of the Circuit Court of Cole County, Missouri."
On February 23, 1949, the Commission entered an Order cancelling all rate schedules authorized by its Order of January 18, 1949, and re-establishing the schedule of rates previously on file. On February 25, 1949, the Commission issued a new Report and Order to become effective March 10, 1949, approving most of the schedule of rates filed by the Telephone Company on September 30, 1947, on a temporary and experimental basis. This Report and Order differed in certain particulars (which need not be noted) from the previous Report and Order entered on January 18, 1949. Motions for rehearing before the Commission were filed by various cities, all of which were overruled, and thereafter applications for writs of review were filed in the trial court. The City of Kansas City filed a motion for immediate reversal of the Order of the Commission [741] on the ground that the Commission had no jurisdiction to make the Order of February 25, 1949, because the case was then pending in the Circuit Court which had exclusive jurisdiction. This motion was sustained on May 21, 1949, and the trial court entered the judgment, previously described, reversing the Commission's Order of February 25, 1949. The Company filed its motion for a new trial, and thereafter this appeal was taken.
For convenience, we shall refer to the Commission's Order of January 18, 1949, as the First Order; the Order of February 25, 1949, as the Second Order; and the suit to review the First Order as the original suit.
The basic question presented is whether the Commission had the authority or jurisdiction to enter its Second Order, or whether it had been deprived of such authority by the original suit which vested jurisdiction in the trial court. The original suit had resulted in a judgment reversing the First Order and remanding the case to the Commission. Respondents argue that this judgment was not effective to revest the Commission with power to issue the Second Order because the judgment had not become final and no mandate remanding the case had been issued by the trial court.
The Public Service Commission is not a court and it has no judicial power. The orders which it issues are not judgments or adjudications. It has been described as an "administrative arm" of the Legislature. In approving or fixing rates of public utilities which come under its supervision, it exercises a legislative power. Its orders operate prospectively and determine rates to be charged in the future. Missouri Southern Ry. Co. v. Public Service Commission, 279 Mo. 484, 214 S.W. 379, 380; Marty v. Kansas City Light Power Co., 303 Mo. 233, 259 S.W. 793, 796; Prentis v. Atlantic Coast Line, 211 U.S. 210, 226, 53 L.Ed. 150, 158; Midland Realty Co. v. Kansas City Power Light Co., 300 U.S. 109, 114, 81 L.Ed. 540, 544 (affirming Kansas City Power Light Co. v. Midland Realty Co., 338 Mo. 1141, 93 S.W.2d 954.) The Second Order of the Commission issued in this case was to become effective on March 10, 1949. It operated prospectively and established rates to be charged in the future. It was a new, separate, and distinct order. While it avoided the procedural defects inherent in the First Order (which were the basis of the trial court's judgment that the First Order was unlawful), it was, in no sense, an attempt to amend the First Order. In this respect it is entirely different from the situation presented in State ex rel. Campbell Iron Co. v. Public Service Commission, 317 Mo. 724, 296 S.W. 998, 1001, where this Court stated the Commission had no power to enter an order extending a schedule of rates while the original rate order was before the Court upon a writ of review. The Second Order was not promulgated until the trial court had entered a judgment reversing the First Order and remanding the case to the Commission for further proceedings.
Appellants argue that the notification from the Court concerning the entry of the judgment in the original case was a mandate remanding the case to the Commission. Respondents contend that it was not a mandate and that no mandate has ever been issued or transmitted to the Commission. A mandate of an appellate court serves the purpose of communicating its judgment to a lower court. It has been described as an "official mode" of communication. It is not a judgment or decree but a notification of a judgment. 38 C.J. 956; 55 C.J.S. 659, 660; 5 C.J.S. 1487, Sec. 1958; Argeropoulos v. Kansas City Rys. Co., 201 Mo. App. 287, 212 S.W. 369, 372. The notification of the judgment entered on February 21, 1949, in the original suit, received by the Commission on February 22, 1949, is not in the form of a mandate from an appellate court to a lower court. Nevertheless, it did notify the Commission and other parties of the judgment entered reversing the First Order of the Commission and remanding the proceedings to the Commission. To this extent, it served the function of a mandate.
In the instant case, we are not concerned with the relationship between courts [742] and the procedural rules which govern the disposition of a case on appeal so that the lower court may properly be vested with jurisdiction to carry out the judgment and directions of the appellate court. Such rules may be useful as analogies, but they do not necessarily control the relationship of the courts to an administrative body such as the Public Service Commission. The technical rules derived from the relationship of courts forming part of an integrated judicial system should not be applied mechanically so as to hamper or defeat the legislative functions which are discharged by the Public Service Commission in connection with its rate-making powers. Federal Communications Commission v. Pottsville Broadcasting Co., 309 U.S. 134, 84 L.Ed. 656.
Where a proceeding originating before the Commission has been in the Circuit Court on a writ of review, there is no statutory requirement that a mandate of the Court be transmitted to the Commission or that a certified copy of the Court's judgment be lodged with the Commission. Secs. 5690-5693, inc., R.S. 1939, Mo. R.S.A. §§ 5690-5693. Such procedure may, no doubt, be desirable, but it is not a statutory requirement. Upon the facts presented, we rule that the Commission had jurisdiction to enter the Second Order after it had received the notification from the Circuit Court concerning the entry of the judgment of February 21, 1949, reversing the First Order and remanding the case to the Commission for further proceedings.
Respondents argue, however, that the Commission was powerless to act since the judgment in the original suit was not final and was still pending in the Court because: (1) St. Louis County had filed a timely motion for a new trial and subsequently took an appeal from the judgment, and (2) under Rule 3.24 of this Court, in the absence of a motion for a new trial, the judgment did not become final until the "expiration of thirty days after the entry of such judgment." The first contention is fully answered by the concurrent decision of this Court in the appeal of St. Louis County (Case No. 41479) in which we have held that the judgment of February 21, 1949, is not appealable. Since this judgment was not subject to appeal, the motion for a new trial filed by St. Louis County was a nullity and had no effect on the judgment. As to the second contention, Rule 3.24 of this Court deals with the finality of a judgment only "For the purpose of ascertaining the time within which an appeal must be taken." Since, as we have decided, no appeal could be taken from the judgment, this Rule has no application and would not serve to postpone the finality of the judgment.
Finally, it is argued by respondents, the Second Order of the Commission is void because it did not comply with the judgment of the Court entered in the original case, but that it was a new order issued without notice or a hearing. The Court remanded the case to the Commission "for further proceedings consistent herewith." The Court did not attempt to give the Commission specific directions. The Second Order is substantially similar to the First Order, except that it avoids the procedural defects which impaired the validity of the First Order. The proceeding involving the proposed rate increase of the Telephone Company had been before the Commission since September 30, 1947. Protracted hearings were held and all parties were given an opportunity to present evidence and to file briefs. All of the respondents filed motions for rehearing before the Commission on the Second Order entered on February 25, 1949. Under these circumstances, the Commission was justified in promulgating a Report and Order upon the evidence already before it, and it was not necessary for the Commission to give any further notice or to hold any further hearings. In re Milwaukee Electric Ry. Light Co., 189 Wis. 96, 206 N.W. 201, 203; People ex rel. New York Cent. H.R.R. Co. v. Public Service Commission, 228 N.Y. 553, 126 N.E. 728, 729.
The City of Kansas City has filed a motion to dismiss the appeal on the ground that the judgment appealed from is interlocutory and not final. It is argued that a restitution order was essential to a final judgment and that the trial court reserved [743] jurisdiction to determine at a future date the matter of the restitution of excess rates collected by the Telephone Company. The cases cited by Kansas City do not support its contentions. Sec. 5691, R.S. 1939, Mo. R.S.A. § 5691, upon which it also relies has no application since, by its express terms, it is not effective when an appeal is taken by the public utility, which, of course, is the case here. We hold the judgment appealed from is a final judgment for purpose of appeal, and the motion to dismiss is overruled.
We hold that the Public Service Commission had jurisdiction to promulgate its Report and Order of February 25, 1949. Accordingly, the judgment of the Circuit Court of Cole County is reversed and the case is remanded to that Court for further proceedings consistent with this opinion. Van Osdol and Lozier, CC., concur.
The foregoing opinion by ASCHEMEYER, C., is adopted as the opinion of the court. All the judges concur.