Archibald v. Public Utilities Com'n, 15518.

• Decision Date: 24 June 1946
• Docket Number: 15518.
• Citation: 115 Colo. 190,171 P.2d 421
• Parties: ARCHIBALD v. PUBLIC UTILITIES COMMISSION et al.
• Court: Colorado Supreme Court

171 P.2d 421

115 Colo. 190

ARCHIBALD v. PUBLIC UTILITIES COMMISSION et al.

No. 15518.

Supreme Court of Colorado, en Banc.

June 24, 1946

Rehearing Denied July 22, 1946.

Error to District Court, City and County of Denver; Robert W Steele, Judge.

Petition by George P. Archibald, doing business as Lind Moving &amp Storage Company, for review of an order of the Public Utilities Commission of the State of Colorado denying petitioner's application for an exemption from the provisions of the Public Utility Act or in lieu thereof a special permit allowing petitioner to transport household goods outside the city of Denver within a radius of fifteen miles. Weicker Transfer & Storage Company and the Colorado Transfer & Warehousemen's Association, Incorporated intervened and joined in the motion to dismiss presented on behalf of the Public Utilities Commission. To review a judgment dismissing the petition for review, petitioner beings error.

Judgment affirmed.

E. V. Holland, of Denver, for plaintiff in error.

Gail L. Ireland, Atty. Gen., H. Lawrence Hinkley, Deputy Atty. Gen, and E. B. Evans, Asst. Atty. Gen., for defendant in error Public Utilities Commission.

Truman A. Stockton, Jr., of Denver, for defendant in error Weicker Transfer & Storage Co.

Arthur A. Brooks, Jr., of Denver, for defendant in error Colorado Transfer & Warehousemen's Ass'n, Inc.

BAKKE Justice.

Plaintiff in error, who was plaintiff below and to whom we hereinafter refer as the applicant, seeks reversal of a judgment of the district court which dismissed his petition for review of an order of the Public Utilities Commission denying his application for an exemption from the law, or, in lieu thereof, a special permit allowing him to transport household goods outside of the City of Denver within a radius of fifteen miles.

Applicant is a resident of Denver and for a number of years has had a license from the city as a mover of household goods within that jurisdiction. On March 24, 1943, he filed an application with the Public Utilities Commission of Colorado, to which we hereinafter refer as the Commission, 'for an exemption from the provisions of the Public Utility Act of the State of Colorado, or in lieu thereof, a special private carrier's permit for the territory adjacent to Denver,' based upon the alleged fact 'that approximately six per cent of your applicant's regular annual business requires the moving of the property of his customers beyond the present city limits into what is generally termed Metropolitan Denver, all within a radius, of fifteen miles beyond the city limits of the City and County of Denver.' No specific route was to be fixed because each transaction would require the use of a different route. It was urged that there was a 'public need and necessity' therefor and that such extended service would not interfere or impair the service of carriers then operating under permits from the Commission. It was also stated in the application that 'in many adjoining states' a permit is not required and an exemption is made under such circumstances. Applicant also states that under the present law and rules and regulations of the Commission 'necessary and reasonable provisions for the operation of your applicant as above outlined, do not obtain,' and prays for an exemption or special permit.

Hearing on the application was set for May 20, 1943, and notice was sent to twenty-two carriers in the state. The Colorado Transfer and Warehousemen's Association, Weicker Transfer and Storage Company and others protested the application. Several appeared at the hearing and gave testimony on the issue of the need of the service for which application was made in opposition to the testimony of applicant and his witnesses. The Commission took the matter under advisement and December 4, 1943, entered an order denying the application. In due course applicant filed his petition for review with the district court. The Attorney General appearing for the Commission, filed a motion to dismiss based upon the grounds that the petition did not state 'a claim upon which relief can be granted,' and that it appears that the Commission has regularly pursued its authority; that it entered its order in accordance with the evidence, and that the order and decision of the Commission did not violate any right of the applicant.

The Warehousemen's Association and the Weicker Transfer Company filed motions to intervene. Applicant did not resist the Weicker motion, but opposed intervention by the Warehousemen's Association on the grounds that the members thereof should appear individually. The court permitted both of these parties to intervene and answers were duly filed, but when the Attorney General presented his motion on behalf of the Commission to dismiss, the answers of the interveners were withdrawn and they joined in the motion to dismiss. The motion was argued April 14, 1944, and taken under advisement, and April 15 the court sustained the motion and dispensed with the filing of a motion for a new trial.

The point specified for reversal may be stated in two propositions, viz., that (1) the commission abused its discretion and avoided its clear legal duty in denying the application; and (2) the court erred in permitting the interveners to participate by the method pursued.

1. On the first point, counsel for applicant argues that the commission had the power and that it was its duty to issue the permit as requested, relying particularly upon section 304, chapter 16, '35 C.S.A., which reads as follows: 'The commission shall have power, under such rules of procedure governing the application therefor as it may prescribe, to issue a certificate of public convenience and necessity to a motor vehicle carrier or to issue it for the partial exercise only of the privilege sought; and may attach to the exercise of the rights granted by said certificate such terms and conditions as, in its judgment the public convenience and necessity may require.' Under this statute the Commission is vested with discretion to grant or refuse an applicant's request,...