City and County of Denver v. Public Utilities Commission
| Decision Date | 26 February 1973 |
| Docket Number | No. 25422,25422 |
| Citation | 181 Colo. 38,507 P.2d 871 |
| Parties | CITY AND COUNTY OF DENVER, a municipal corporation, Plaintiff-Appellee, v. PUBLIC UTILITIES COMMISSION of the State of Colorado, Defendant-Appellant. |
| Court | Colorado Supreme Court |
Max P. Zall, City Atty., Brian H. Goral, Asst. City Atty., Denver, for plaintiff-appellee.
Duke W. Dunbar, Atty. Gen., John E. Archibold, Irvin M. Kent, Asst. Attys. Gen., Denver, for defendant-appellant.
John J. Conway, Denver, for amicus curiae, Colo. Rural Electric Assoc.
This litigation grows out of the determination by the City and County of Denver (Denver) to acquire the property and operating rights of The Denver Tramway Corporation (Tramway). The trial court enjoined the Public Utilities Commission (P.U.C.) from exercising jurisdiction over the operation by Denver of the mass transit system in the metropolitan Denver area Outside the territorial limits of Denver.
By agreement of the parties, the sole issue presented for determination is whether and to what extent the P.U.C. has jurisdiction to regulate the service and rates of the mass transit system outside the territorial boundaries of the city. It is universally agreed that the P.U.C. has no jurisdiction to regulate or control the operation of a municipally owned utility which operates wholly Within the territorial boundaries of a home rule city, such as Denver. Article XX, Section 1 and 5, and Article XXV, Constitution of Colorado.
We permitted the Colorado Rural Electric Association to file an amicus curiae brief because of the alleged effect the ruling of the trial court, which is here challenged, would have on its members if the ruling were to stand.
A summary statement of the background out of which this issue developed is necessary to an understanding of the respective positions of the contestants.
Denver, by charter amendment, voted to acquire a public transportation system, 'solely within or both within and without the corporate limits' of the city and pursuant thereto initiated proceedings to acquire by condemnation the property of the Denver Tramway Corporation, including its Certificates of Public Convenience and Necessity No. 210 and No. 7099.
Proceedings to condemn were initiated and on April 13, 1971, the Denver District Court ordered all of the Tramway assets transferred to Denver. Pursuant to this order, Denver and Tramway applied to the P.U.C. for transfer of Certificates P.U.C. No. 210 and P.U.C. No. 7099.
P.U.C. No. 210 is the authority for Tramway to conduct a public transportation service in areas of Denver, Adams, Arapahoe and Jefferson Counties (the Denver metropolitan area). P.U.C. No. 7099 is the authority for Denver Tramway Charter Co. (a wholly owned subsidiary of Tramway) to conduct charter bus service throughout the state of Colorado. P.U.C. No. 7099 is not in issue and will receive no further specific mention.
On April 16, 1971, Denver and Tramway applied to the P.U.C. for transfer of the two certificates from Tramway to Denver, and for temporary and emergency authority for Denver to conduct operations under the certificates pending hearings on the applications and the granting of permanent transfers. Denver was granted emergency authority to operate until May 3, 1971.
On April 30, 1971, temporary authority to operate under the two certificates was extended 165 days or until the granting of the permanent transfer, conditioned on Denver's full compliance with all statutory and regulatory requirements.
Following the public hearings on the transfer applications and pending a P.U.C. decision, Denver, without prior notice, filed a motion to withdraw its application to transfer P.U.C. No. 210, relating to mass transit in the metropolitan Denver area.
On September 24, 1971, P.U.C. denied Denver's motion to withdraw its application in reference to P.U.C. No. 210 and approved the transfer of both certificates to Denver. Denver's petition for rehearing was denied.
Prior to September 24, 1971, Denver modified its service under P.U.C. No. 210 to patrons living Outside its territorial limits, because it was losing money and the counties and cities involved would not agree to contribute to the subsidization of the operation for the benefit of their residents. Among the complaints received by the P.U.C. because of this service stoppage was one from a Mrs. Arthur Ware of 8341--52nd Avenue, Arvada, Jefferson County. This complaint was received on September 8, 1971. Mrs. Ware, wholly dependent on public transportation to obtain the necessities of life, had used the Tramway bus service (Route 83--Olivet) for over 15 years.
On the basis of Mrs. Ware's complaint, the P.U.C. issued an order to Denver to show cause why the P.U.C. should not take appropriate action to force Denver to comply with its certificated authority. Following this hearing, Denver filed the motion to withdraw its application for P.U.C. No. 210 on the ground that the P.U.C. lacked jurisdiction to act in the premises.
On September 24, 1971, P.U.C. determined that it had jurisdiction over Denver under P.U.C. No. 210 as to bus service outside the corporate limits of the city, and ordered Denver to restore the bus service outside Denver on Route 83--Olivet. Denver's petition for rehearing was denied.
Review proceedings in the district court followed which resulted in the holding that the P.U.C. 'has no jurisdiction over the operation of the Denver Metro Transit System.' The P.U.C. has appealed that ruling to this court. We disagree with the trial court and reverse.
The trial judge in his findings of fact pinpointed the issue when he noted that:
'The law of the State since September 13, 1926, as decided in City of Lamar vs Town of Wiley, 80 Colo. 18 (248 P. 1009), was that the Public Utilities Commission had jurisdiction over municipally owned public utilities furnished by a municipality to consumers outside its territorial boundaries to the same extent that the Public Utilities Commission had control and supervision over private public utilities,'
but then found that it was the intention of the people of Colorado, as evidenced by the adoption in 1954 of Article XXV of the Constitution of Colorado, to change the law
'to exclude municipally owned public utilities from the control and supervision of the Public Utilities Commission Outside the municipality's territorial limits.' (Emphasis added.)
The court concluded its findings by this observation,
'The language of Article XXV is plain and unambiguous and needs no interpretation.'
Because frequent references will be made to the amendment, the full text appears here:
'Until such time as the General Assembly may otherwise designate, said authority shall be vested in the Public Utilities Commission of the State of Colorado; provided however, nothing herein shall affect the power of municipalities to exercise reasonable police and licensing powers, nor their power to grant franchises; and provided, further, that nothing herein shall be construed to apply to municipally owned utilities.'
The last clause, 'that nothing herein shall be construed to apply to municipally owned utilities,' gives rise to the interpretive difference which exists between the trial court and this court as to the extra territorial power of cities to regulate 'facilities, service,...
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