City of Thornton v. Public Utilities Commission

• Decision Date: 13 April 1964
• Docket Number: No. 20911,20911
• Citation: 391 P.2d 374,154 Colo. 431
• Parties: The CITY OF THORNTON, Colorado, Petitioner, v. The PUBLIC UTILITIES COMMISSION of the State of Colorado, and the Individual Members thereof, Henry E. Zarlengo, Ralph C. Horton, and Howard S. Bjelland, Commissioners, Respondents.
• Court: Colorado Supreme Court

Page 374

391 P.2d 374

154 Colo. 431

The CITY OF THORNTON, Colorado, Petitioner, v. The PUBLIC UTILITIES COMMISSION of the State of Colorado and the Individual Members thereof, Henry E Zarlengo, Ralph C. Horton, and Howard S Bjelland, Commissioners, Respondents.

No. 20911.

Supreme Court of Colorado, En Banc.

April 13, 1964.

Orrel A. Daniel, City Atty., Leonard H. McCain, Edward A. Brown, Asst. City Attys., Brighton, Raphael J. Moses, Sp. Council, Boulder, for petitioner.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., John J. Conway, Asst. Atty. Gen., Denver, for respondents.

Glenn G. Saunders, Willard S. Snyder, Denver, Frederick T. Henry, Colorado Springs, Gerald J. Ashby, Grand Junction, Arthur E. March, Fort Collins, M. O. Shievers, Jr., Englewood, James P. Turner, Denver, amici curiae.

DAY, Justice.

This is an original proceeding filed by the City of Thornton seeking a writ of prohibition to halt certain proceedings before the Public Utilities Commission.

The parties will be referred to as follows: The petitioner as Thornton; the respondent Public Utilities Commission and the individual members thereof as the Commission. Others interested are: Northwest Utilities Company, to whom we will refer as Northwest; certain water users who were permitted to intervene and to whom we will refer as Intervenors.

Thornton's petition, consisting mostly of the recital of the history of its acquisition of the water system, of newspaper articles, and of some correspondence with the chairman of the Public Utilities Commission, has made only brief reference to the official actions of the Commission. These may be summarized as a general allegation that the Commission is exceeding its jurisdiction in giving notice to Thornton of a hearing on the application of Northwest to surrender certificates of convenience and necessity held by it. Thornton additionally expresses the apprehension and fear that the Commission will issue orders purporting to assume regulatory control of Thornton's water system, and alleges the Commission in the newspapers has cast doubt on its bond issue and threatens to invalidate the sale of the water system by Northwest to Thornton. By separating what the Commission has done from apprehension as to what it may attempt to do, this petition is revealed to be premature.

Northwest is the holder of a variety of certificates of convenience and necessity authorizing it, as a public utility, to serve the water and sewage needs of a large area in the northwestern section of Adams County. At the time of acquisition by Northwest of an expanded authority to serve the City of Thornton there was presented to the Public Utilities Commission a franchise agreement between Northwest and Thornton. The franchise was incorporated in and made a part of the Commission's findings and order. Among the provisions was one that Thornton would have an option to purchase the system. This option was exercised by Thornton. A price was agreed upon and an election held by the citizens of Thornton authorizing the purchase and providing for a bond issue to finance it.

After the sale was consummated, Northwest applied to the Commission to surrender its certificates of authority on the ground that it had sold its water works and therefore did not have 'any plant, property or assets of any kind or nature and was no longer rendering or able to render water and sewer services to its former customers.' On receipt of this application, the Commission entered the following findings and order:

'That sufficient cause exists for the holding of a hearing to determine the facts surrounding said transfer and, following the determination of said facts, to determine the following issues:

'A. Whether the transfer by Northwest Utilities Company of its water and sewer properties to the City of Thornton is not invalid under the laws of the State of Colorado because of the failure of said Company to obtain the approval therefor of this Commission.

'B. Whether this Commission should not determine the just compensation to be paid for the water and sewer properties of the Company and the terms and conditions of the transfer.

'C. Whether this Commission should not retain jurisdiction of the operation of said water and sewer system insofar as service and rates to consumers outside of the municipal boundaries of the City of Thornton are concerned.

'It is further found that both Northwest Utilities Company and the City of Thornton, among others, are interested in said matter, and that notice of said hearing should be given according to law.'

An analysis of the Commission's action reveals that so far it has done the following:

(a) It has received, assigned a number to and filed the application of Northwest;

(b) It has determined that a hearing should be held on the application and the other matters on its own motion.

(c) It has found that the City of Thornton and others should be notified of the hearing according to law.

The date of the hearing is now undetermined because of the preliminary action of this court in issuing a show cause order to the Commission.

It must be conceded that Northwest properly filed its application for permission to surrender its certificates. The Commission certainly has jurisdiction of the application and of Northwest, has a right to hold a hearing, and can and should notify anybody who might be interested in such hearing.

We do not find from the acts so far of the Commission that it has ordered Thornton even to be present. So far as we know Thornton will or will not attend as it sees fit. Whether anyone will appear is of no concern to this court.

A reading of the 'Findings' of the Commission indicates that some of the questions that the Commission may ask may be 'incompetent, irrelevant and immaterial' to the issues to be explored at such hearing. However, it is fairly elemental what objections may be made to questions outside of the scope of the inquiry.

It may be that the Commission at the conclusion of the hearing will issue orders. Such orders may be illegal and of no force and effect. If so, timely remedies are provided. It may be that the Commission's orders may attempt to assume jurisdiction over parties or subject matter beyond that conferred by law. If so, filing of a petition for prohibition would then be proper.

Prohibition will not issue where the attention of the inferior tribunal has not been called to its alleged lack of jurisdiction. 42 Am.Jur., § 38, p. 172. The usual method or procedure, common in the district court when process issues to one claiming non-jurisdiction, is for the one summoned to appear specially in the court and to move that process be quashed as to him. The court in such cases is vested with power to determine whether it has jurisdiction. This is equally true of a quasi-judicial agency.

In the case at bar, as far as the record shows, Thornton isn't a party to the proceeding before the Commission. It has been merely notified that a hearing concerning Northwest's application is being conducted. It has not been summoned to appear and is not being compelled to appear. And even if it were, it should specially appear before the Commission and challenge its jurisdiction.

In Eveready Freight Service, Inc. v. Public Utilities Commission, 131 Colo. 172, 280 P.2d 442, in affirming the district court's action in dismissing a petition for writ of prohibition, this court said:

'In the instant case the commission did not exceed its jurisdiction. * * *

'There could be no abuse of discretion by the commission, for it definitely appears...