City of Craig v. Public Utilities Com'n of State of Colo., 81SA172

• Decision Date: 17 January 1983
• Docket Number: No. 81SA172,81SA172
• Citation: 656 P.2d 1313
• Parties: CITY OF CRAIG, Colorado, Plaintiff-Appellant, v. The PUBLIC UTILITIES COMMISSION OF the STATE OF COLORADO, and Edythe S. Miller, Daniel E. Muse and L. Duane Woodard as the Members thereof, and the Denver and Rio Grande Western Railroad Company, Inc., Defendants-Appellees.
• Court: Colorado Supreme Court

Page 1313

656 P.2d 1313

CITY OF CRAIG, Colorado, Plaintiff-Appellant, v. The PUBLIC UTILITIES COMMISSION OF the STATE OF COLORADO, and Edythe S. Miller, Daniel E. Muse and L. Duane Woodard as

the Members thereof, and the Denver and Rio Grande Western

Railroad Company, Inc., Defendants-Appellees.

No. 81SA172.

Supreme Court of Colorado,

En Banc.

Jan. 17, 1983.

Stockton, Lewis & Beckwith, James A. Beckwith, Denver, Worth F. Shrimpton, Craig, for City of Craig.

J.D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Eugene C. Cavaliere, Asst. Atty. Gen., Denver, for Public Utilities Commission State of Colo.

John S. Walker, Denver, for Denver and Rio Grande Western R. Co.

DUBOFSKY, Justice.

The City of Craig (Craig) appeals from an order of the Moffat County district court affirming the closure of two railroad crossings by the Public Utilities Commission (PUC). Because the actions of the PUC were an appropriate exercise of the PUC's police power under the Constitution and statutes, we affirm the judgment of the district court.

The defendant Denver and Rio Grande Western Railroad Company, Inc. (Rio Grande) operates a railroad line within the City of Craig. The railroad tracks run along one side of an industrial area in the southern portion of the city known as the Craig Yard. Prior to the initiation of the proceedings before the PUC which gave rise to this litigation, access to the Craig Yard was gained by crossings at Breeze and Russell Streets. ¹ As a result of industrial development in the area of the Craig Yard, Moffat County applied to the PUC for authority to open outside the city limits an additional crossing into that area (the First Street crossing) in August, 1979. In December of the same year, the Rio Grande filed an application with the PUC to close the Breeze and Russell street crossings due to safety considerations. The two applications were consolidated for hearing. The hearing officer recommended that both applications be granted, with the closure of the Breeze and Russell Street crossings effective upon the opening of the First Street crossing. The PUC adopted the recommended decision on September 23, 1980, and Craig then sought judicial review of the closure decision in Moffat County district court. The district court affirmed the PUC order. ² Craig makes two jurisdictional arguments challenging the PUC's closure decision. First, Craig contends that the decision to close railroad crossings is one which is reserved to home-rule cities such as itself by Article XX, Sec. 6 of the Colorado Constitution ³ and by sections 31-15-501 and 31-15-706, C.R.S.1973 (1978 Repl.Vol. 12), ⁴ and therefore the PUC was without jurisdiction to make the closure decision. Second, Craig argues that the closure of the Breeze and Russell Street crossings amounts to a taking of City property on which the crossings were situated. Because the PUC has no power of eminent domain, Craig claims that the PUC lacked jurisdiction to close the crossings.

I.

The district court held that Craig's authority under sections 31-15-501 and 31-15-706 is limited to a determination of the points of crossing which Craig deems to be in its best interests, subject to the overriding authority vested in the PUC by section 40-4-106, C.R.S.1973 ⁵ to regulate for public convenience, necessity and safety. The reasoning of the district court is sound. Reading sections 31-15-501 and -706 together with section 40-4-106(3), it is clear that section 40-4-106(3) contains the only explicit statutory authorization of power to abolish a railroad crossing. This power is vested in the PUC.

The issue presented by this case is similar to that in Colorado and Southern Railway v. District Court, 177 Colo. 162, 493 P.2d 657 (1972), which involved two statutory provisions regarding the establishment of railroad crossings. One statute--the predecessor to section 40-4-106--detailed the powers and duties of the PUC in regulating acquisition of land for crossings. The other addressed the right of one public utility to condemn the land of another. This Court read the two statutes together to settle the issue of whether the railroad could go directly to court in an eminent domain proceeding to condemn land for a railroad crossing, and held that PUC proceedings to determine the particular point of crossing are a condition precedent to the cause of action in eminent domain. Similarly, as the district court recognized in ruling on this case, sections 31-15-501 and -706 and section 40-4-106(3) can be reconciled ⁶ to authorize local control of the establishment of crossings, limited by the PUC's exercise of the police power to regulate and abolish crossings in the interest of public safety.

Craig's argument that the power to order the closure of railroad crossings is reserved to the city by Article XX, Sec. 6 of the Colorado Constitution is not persuasive. Article XX, Sec. 6 grants the right of self-government in local matters to home-rule cities and provides that conflicting statutes shall be superseded by city charters and ordinances on purely local matters. Century Electric Service v. Stone, 193 Colo. 181, 564 P.2d 953 (1977); see note 3 supra. While the provisions of the Craig City Charter concerning railroad tracks ⁷ could be interpreted as in conflict with section 40-4-106, the regulation of public utilities in the interest of public safety and convenience is a matter of state-wide concern. See Century Electric Service v. Stone, supra (legitimate state interest in licensing electricians overrides local licensing provisions); PUC v. Mountain States Telephone, 125 Colo. 167, 243 P.2d 397 (1952) (the regulation of the telephone company's local rates and services is a matter of state-wide concern within the jurisdiction of the PUC). The addition of Article XXV to the Colorado Constitution ⁸ in 1954 granted the PUC the authority to regulate privately owned public utilities within home-rule cities. City and County of Denver v. PUC, 181 Colo. 38, 507 P.2d 871 (1973). State statutes often vest exclusive regulatory power over railroads in public service commissions. E.g., Hemphill v. Wabash R.R. Co., 209 F.2d 768 (7th Cir.1954); Penn Central Co. v. Dept. of Public Works, 356 Mass. 478, 253 N.E.2d 339 (1969); Chicago v. Chicago Great Western Railroad, 348 Ill. 193, 180 N.E. 835 (1932). See also Rhyne, Law of Local Government Operations § 22.5 (1980). The state's interest in making railroad safety a matter of state-wide concern is two-fold: it ensures a uniformity in railroad safety conditions, and it makes possible the regulation and supervision of those conditions by an agency possessing experience and expertise in such matters. While Craig also has a legitimate interest in the safety of its railroad crossings, the existence of a demonstrable local interest does not endow a home-rule city with preemptive authority. Century Electric Service v. Stone, supra. The concomitant state interest in regulation is predominant. Id.

Thus, neither sections 31-15-501 and -706 nor Article XX, Sec. 6 of the Colorado Constitution allows Craig to override the decision of the PUC abolishing the Breeze and Russell Street railroad crossings in the interest of public safety.

II.

Craig's argument that the PUC lacked jurisdiction to make the closure decision because the closure constitutes an exercise of the power of eminent domain--a power which the PUC does not possess--is answered by our decision in Colorado and Southern Railway, supra. PUC proceedings to determine the advisability of closing a railroad crossing for safety reasons are not an adjudication of property rights in the crossing but a condition precedent to such an adjudication. As the hearing officer concluded in his order recommending to the PUC that the crossings be closed, "In the event a closure is determined proper by this Commission, property rights of the City and the Denver and Rio Grande Western are issues to be determined at another time and in another forum." The PUC's valid exercise of its statutory authority over existing crossings simply leaves to the affected parties the resolution of the issue of the property interest in the crossings. The district court's order recognized some of the potential solutions: "The City may have the right to evict the railroad; ⁹ the railroad may have the right to exercise its statutory power of eminent domain through the courts to establish a right of way; ¹⁰ or the railroad and the City may negotiate some agreement for the Railroad's use of City property; but the Commission has and may exercise control under the police power to regulate and close the Breeze and Russell Street crossings."

The order of the district court is affirmed.

1 For approximately 50 years prior to 1964, the Rio Grande or its predecessor in interest held a franchise from Craig for the operation of the railroad within Craig. When that franchise expired in 1964, no extension, permit or license was negotiated. As is noted below (see note 9, infra ), the precise nature of the Rio Grande's...