Aspen Airways, Inc. v. Public Utilities Commission

• Decision Date: 28 April 1969
• Docket Number: No. 23407,23407
• Citation: 169 Colo. 56,453 P.2d 789
• Parties: ASPEN AIRWAYS, INC., a Colorado Corporation, Plaintiff in Error, v. The PUBLIC UTILITIES COMMISSION of the State of Colorado and Monarch Aviation, Inc., a Colorado Corporation, Defendants in Error.
• Court: Colorado Supreme Court

Page 789

453 P.2d 789

169 Colo. 56

ASPEN AIRWAYS, INC., a Colorado Corporation, Plaintiff in Error, v. The PUBLIC UTILITIES COMMISSION of the State of Colorado and Monarch Aviation, Inc., a Colorado Corporation Defendants in Error.

No. 23407.

Supreme Court of Colorado, In Department.

April 28, 1969.

John F. Mueller, Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Robert Lee Kessler, Asst. Atty. Gen., Denver, for defendant in error Public Utilities Commission.

Nelson, Hoskin & Groves, William H. Nelson, Grand Junction, for defendant in error Monarch Aviation, Inc.

DAY, Justice.

This case was commenced before the Public Utilities Commission of the State of Colorado by an application of Monarch Aviation, Inc. for an amendment to its certificate of convenience and necessity to be permitted to operate an office for 'the purpose of developing business' at Aspen, Colorado. Aspen Airways, Inc. appeared as a protestant at the hearing. We will refer to the parties as Monarch, Aspen and the Commission.

Monarch's application was granted by the Commission's decision No. 68447, and upon review in the district court of Arapahoe County, to which court the case was transferred after first being filed in the Denver district court, the decision of the Commission was affirmed. Aspen is here by writ of error seeking to overturn the decision.

At the time of the application before the Commission, Monarch, a non-scheduled air carrier, was operating under a certificate with '* * * authority to transport persons and property on call and demand between any and all points in the State of Colorado * * *' with the proviso, however, that either point of departure or point of destination of all flights must be within a radius of 100 miles of Grand Junction. (Aspen, Colorado, is less than 100 miles from Grand Junction.) In the certificate there is the prohibition that Monarch could not establish an office to develop intrastate charter business at any place other than Grand Junction. (The prohibition did not apply to interstate charter business.) Additionally, Monarch's authority requires that its rates 'for transportation of passengers between points served by air carriers operating on schedule over fixed routes, shall be at least 50% Per passenger greater than the effective rates of fixed route carriers by airplane so operating on schedule between said points.' Monarch has conducted a complete fixed base operation at Grand Junction since 1940. No change in Monarch's basic certificate was made other than to permit it to generate business from an office in Aspen, Colorado.

Aspen Airways holds a certificate to conduct, as a common carrier, both scheduled air service and charter service based in the town of Aspen, Colorado. It has held its charter certificate since 1958, and its scheduled certificate since 1959. In 1963 it was given authority to establish an office at Stapleton Air Field in Denver for the purpose of generating business for its scheduled intrastate air service between Denver and Aspen.

In 1964 Monarch entered into an agreement with Pitkin County to manage the Aspen Airport, called Sardy Field. It maintained an office and passenger waiting room in connection with its management activities, which consisted of general operation of the airport, supplying gasoline and oil, making tie-downs, renting aircraft, performing Unicom service and field advice, and making weather observations. From its Aspen office it conducted an interstate call and demand service, but it is admitted that by reason of its airport activities it, in fact, generated intrastate charter service at Aspen. Until the amendment, if Monarch received an inquiry, one of the employees would phone the Grand Junction office for clearance and then complete the charter service arrangements.

It is Aspen's contention that the Commission decision amending Monarch's certificate to now permit use of an Aspen office to develop intrastate charter business is erroneous on four grounds:

I. That the Commission did not make basic findings of fact on which to base its ultimate finding that the public convenience and necessity required the granting of the application to Monarch;

II. That the Commission denied Aspen procedural due process by refusing to consider competent material evidence relating to the adequacy of Aspen's existing service.

III. That the decision and order of the Commission is unlawful in that it violates the doctrine of regulated monopoly;

IV. That the evidence upon which the Commission's decision was based concerned an unlawful operation by Monarch since 1964, and that such evidence in law is not competent to support the granting of additional operating rights.

I.

Aspen first argues that the Commission's determination that the public convenience and necessity required the additional grant to Monarch was without any basic finding of fact of any kind concerning the existing available charter service between Aspen and Denver, much less a finding that such service was inadequate. We agree such findings are necessary. Red Ball Motor Freight, Inc. v. Public Utilities Commission, 154 Colo. 329, 390 P.2d 480. However, the crux of the argument advanced here goes more to the form of the findings of the Commission which consisted of a recapitulation of the testimony.

We do not condone the Commission's practice of merely summarizing the testimony of the various witnesses, as was done in this case. We have many times attempted to discourage the practice. In this case the Commission's 'STATEMENT AND FINDINGS OF FACT BY THE COMMISSION' contains twelve pages of recapitulation of the testimony followed by two pages of 'findings' and then the orders of the Commission. If the summarized testimony had been contradicted or impeached, the mere recital thereof would not comport with the legal requirement of a finding. Nevertheless in this case the Commission's cognizance of the testimony is, in our opinion, tantamount to the adoption thereof as uncontroverted basic facts. We view it as a preliminary to and in support of the ultimate finding, which was:

'The Commission finds that the public is in need of charter service between Aspen and Denver; that public convenience and necessity require that the applicant have authority to establish an office at Aspen for the development of its intrastate charter business as is set out in the following order; that the existing available charter service between Aspen and Denver is inadequate. * * *'

The facts developed were that demand for charter service in and out of Aspen has been continuously increasing; that prospective passengers have experienced great difficulty in obtaining seats on scheduled flights between Denver and Aspen; that Monarch...