City and County of Denver v. Publix Cab Co., 17907

Decision Date25 March 1957
Docket NumberNo. 17907,17907
Citation135 Colo. 132,308 P.2d 1016
PartiesThe CITY AND COUNTY OF DENVER, a Municipal Corporation, R. Y. Batterton, as Manager of Public Works of the said City and County of Denver, Edward O. Geer, as Manager of Safety and Excise and Ex-Officio Sheriff of the City and County of Denver, David G. Davis, as Director of Aviation of the City and County of Denver; and Yellow Cab, Inc., a Colorado Corporation, Plaintiffs in Error, v. PUBLIX CAB CO., a Colorado Corporation, The Englewood Corporation, a Colorado Corporation, Cabs, Inc., a Colorado Corporation, d/b/a Dollar Cab Lines, operating Zone Cabs, Ida Lewis, d/b/a Ritz Cab Co., and Duke W. Dunbar, as Attorney General of the State of Colorado, Defendants in Error.
CourtColorado Supreme Court

John C. Banks, City Atty., Horace N. Hawkins, Jr., Deputy City Atty., Tedford Dees, Asst. City Atty., Denver, Dawson, Nagel, Sherman & Howard, Denver, of counsel for City and County of Denver.

Walter M. Simon, Charles A. Graham, Denver, for Yellow Cab, Inc.

John F. Mueller, Ivor O. Wingren, Henry E. Lutz, Kobey & Mitchell, Robert S. Mitchell, Denver, for defendants in error.

SUTTON, Justice.

This action challenges the right of the City and County of Denver to grant an exclusive revocable 'concession grant' or revocable permit for the operation of a taxicab stand and limousine service at Stapleton Field, the municipal airport owned and operated by the City and County of Denver.

Plaintiffs in error were defendants below. For ease of reference we will refer to plaintiffs in error as defendants or to the City and County of Denver as the 'City'; R. Y. Batterton, Manager of Public Works of said City as the 'Manager'; and Yellow Cab, Inc. as Yellow Cab. Defendants in error will be referred to as plaintiffs as they appeared in the trial court. The Attorney General of Colorado was made an intervenor by court order but no reference is necessary to him herein.

The history of Stapleton Field and the right of the City to make an exclusive concession grant to a taxicab company were fully discussed by this court in Rocky Mountain Motor Co. v. Airport Transit Co., 124 Colo. 147, 235 P.2d 580. We need not repeat the history here except to point out that part of said airport lies within the City limits of the City and County of Denver (and includes the area involved here) and part lies in the unincorporated area of Adams County, Colorado. Since that case was decided, however, the City has materially changed the physical make-up of its airport by altering streets and parking areas and by the installation of parking meters. We are now called upon to determine whether the changes have affected the City's previously acknowledged proprietary control over the area.

The present controversy stems from the City awarding to Yellow Cab an exclusive, revocable 'concession grant' to operate a taxicab stand and limousine service from and to the airport. This concession does not, however, prevent or prohibit other lawfully licensed taxicab operators, such as plaintiffs, from delivering passengers to the airport, or, if they were specifically called to do so from picking up passengers there. It appears that this concession grant, or permit, awarded to Yellow Cab the sole right to maintain a stand or stands at the airport building and on the grounds, and the sole right of solicitation at the airport. The City and Yellow Cab contend the airport with its approaches is entirely the private property of the City. The plaintiffs contend that the operation of a public airport is not a proprietary but a public or governmental operation entitling them to compete for airport business on equal terms with Yellow Cab. The City, in establishing traffic facilities on approaches to the airport, did not formally dedicate streets and other areas; though it did vacate a public street formerly known as Ulster Street, because it interfered with its overall plans.

It is pointed out that since the adoption of the Denver Charter Amendment on June 16, 1953, which amended Section 280 of the Charter, and the adoption in 1954 of an amendment to the State Constitution known as Article XXV, the City no longer licenses taxicabs, that power being now vested in the Colorado Public Utilities Commission. It is also pointed out that the concession granted does not fix the fares to be charged for taxi service to or from the airport, but it merely provides that such charges shall be the prevailing rates which may from time to time be lawfully established.

Since our decision in the Rocky Mountain Motor Company case, supra, an amendment to the City Charter has re-delegated some functions relating to operation of the airport within the City government. In November 1955 the manager, as authorized, called for bids on exclusive taxicab and limousine service. After some controversy only one bid was submitted, and that by Yellow Cab. Following negotiations with the sole bidder, the manager on January 11, 1956, awarded the concession in question to Yellow Cab.

Begining in January 1956 plaintiffs refused to recognize the right of the City to grant an exclusive concession and in disregard thereof proceeded to have their drivers solicit business at and on the airport roadways, parking sites, and discharge and pickup points, this area being that referred to in the record and briefs as the 'concourse' and we will also so refer to it in this opinion when necessary. Plaintiffs' drivers were given approximately 1200 police court summonses for allegedly trespassing and parking on private property. It appears that the police court quashed the summonses when they came before it and no appeal was taken from such action. New summonses have since been issued under an amendment to Article 371 of the Revised Municipal Code effective January 25, 1956.

Claiming such arrests and summonses were illegal and void, the plaintiffs sought an injunction and declaratory judgment against the City. The City counterclaimed asking that plaintiffs be enjoined and restrained from occupying or using, in any manner, any portion of the said airfield concourse except when discharging taxicab passengers or in picking them up after being expressly called by them for that purpose.

The learned trial judge made a voluminous Findings, Order and Judgment which sustained the plaintiffs. Motion for a new trial was denied and defendants are here on writ of error.

It is urged for reversal:

1. That the court erred in holding that the concourse and those portions of Stapleton Airfield which are used for a taxicab stand and feed line were public places subject only to the police powers of the City and County of Denver and that the grant of the exclusive use of the taxicab stands and feed line could not be made:

(a) That Denver operates the said airport in its proprietary capacity and exclusive grants can be made to the use of portions thereof.

(b) That the concourse, including the taxicab stand and feed line, was not a public place which was subject only to the police powers because it had not been dedicated to public use by ordinance of the council.

(c) That Denver is not estopped from denying to plaintiffs the use of the feed line and taxicab stand at Stapleton Airfield.

2. That the granting of an exclusive concession for a charge based upon the percentage of gross receipts did not amount to a rebate.

3. That there has been no delegation of legislative power by the council.

As we view the record, the validity of the City's position depends primarily upon one phase of this proceeding and it is not necessary to consider and determine any of the other points presented.

Question To Be Determined:Where the City of Denver owns and operates a Municipal airport in its proprietary capacity, but by...

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