Clark v. Denver & I.R. Co.

• Decision Date: 06 July 1925
• Docket Number: 11276.
• Citation: 78 Colo. 48,239 P. 20
• Parties: CLARK et al. v. DENVER & I. R. CO. et al.
• Court: Colorado Supreme Court

239 P. 20

78 Colo. 48

CLARK et al. v. DENVER & I. R. CO. et al.

No. 11276.

Supreme Court of Colorado, En Banc.

July 6, 1925

Rehearing Denied Sept. 8, 1925.

Writ of review by William Clark and others against the Denver &amp Interurban Railroad Company and others, to review an order of the Public Utilities Commission prohibiting petitioners from carrying on business in alleged unlawful competition with respondents.

Writ dismissed.

On Motion for Rehearing.

O. A. Johnson, of Boulder, and Guy D. Duncan, of Denver, for petitioners.

William L. Boatright, Atty. Gen., and S.E. Naugle, Asst. Atty. Gen for respondent Public Utilities Commission.

J. Q Dier, J. L. Rice, and E. B. Evans, all of Denver, for respondents Denver & I. R. Co. and Colorado & S. R. Co.

C. C Dorsey and E. G. Knowles, both of Denver, for respondent Union P. R. Co.

BURKE J.

Respondents were plaintiffs and petitioners were defendants before the Public Utilities Commission, and for convenience we hereinafter so refer to them. Plaintiffs Lannon, Bock, and Jones are the members of the Public Utilities Commission of Colorado (hereinafter called the Commission), and plaintiffs the Denver & Interurban Railroad Company, Colorado & Southern Railway Company, and the Union Pacific Railroad Company are common carriers operating railway lines between Denver and Boulder, Colo.

The plaintiff companies brought this action against defendants to prohibit their alleged unlawful competition in conducting the business of carrying passengers by automobile between the cities above mentioned. To review the Commission's order prohibiting the further operation of said business by defendants, the latter sued out this writ. In view of the fact that this cause must now be disposed of on a question of our jurisdiction, we omit further details as to the proceedings before the Commission and the questions presented to and decided by it.

The writ was issued pro forma by the clerk May 16, 1925, returnable June 14. May 19, defendants gave notice that they would apply here May 23, for a suspension of the Commission's order. May 28, the Commission moved to dismiss defendant's application, and the plaintiff companies filed their objection to the granting of the order of suspension. June 4, the Commission made its return to the writ, certifying to this court its record in the cause.

The Public Utilities Act is chapter 127, p. 464, Laws 1913, as amended by chapters 133 and 134, Laws 1915, pp. 392 and 393. It is found in C. L. 1921, p. 917, §§ 2911 to 2977, both inclusive, and our further references herein are to the last-mentioned volume. Section 2954 provides for actions before the Commission. Section 2961 reads in part:

'Within thirty days after the application for a rehearing is denied, * * * the applicant may apply to the Supreme Court of this state for a writ of review for the purpose of having the lawfulness of the original order or decision on rehearing inquired into and determined Such writ shall be made returnable not later than thirty days after the date of issuance thereof and shall direct the Commission to certify its record in the case to the court. On the return day, the cause shall be heard by the Supreme Court, unless for a good reason shown the same be continued. * * * The Commission and each party to the action or proceeding before the Commission shall have the right to appear in the review proceeding. Upon hearing, the Supreme Court shall enter judgment either affirming, setting aside or modifying the order or decision of the Commission. * * * No court of this state (except the Supreme Court to the extent herein specified) shall have jurisdiction to review, reverse, correct or annul any order or decision of the Commission or to suspend or delay the execution or operation thereof, or to enjoin, restrain, or interfere with the Commission in the performance of its official duties. * * *'

Section 2962 of the act reads in part:

'(a) The pendency of a writ of review shall not of itself stay or suspend the operation of the order or decision of the Commission, but during the pendency of such writ, the Supreme Court in its discretion may stay or suspend, in whole or in part, the operation of the Commission's order or decision.

'(b) No order so staying or suspending an order or decision of the Commission shall be made otherwise than upon three days' notice and after hearing, and if the order or decision of the Commission is suspended, the order suspending the same shall contain a specific finding based upon evidence submitted to the court and identified by reference thereto, that great or irreparable damage would otherwise result to the petitioner and specifying the nature of the damage.'

Section 2963 of the act reads in part:

'All actions and proceedings under this act, * * * shall be preferred over all other civil causes except election causes * * * irrespective of position on the calendar.'

In will thus be seen that the Legislature has attempted to oblige this court, to the exclusion of all others, to take jurisdiction in all cases involving the legality of orders and decisions of the Commission, and to prescribe for the court rules governing the hearing thereof. Two questions must therefore be answered at the threshold: (1) Must we take jurisdiction of the present cause? (2) If discretionary ought we to assume jurisdiction?

1. Article 6, § 2, of our Constitution, reads:

'The Supreme Court, except as otherwise provided in this Constitution, shall have appellate jurisdiction only. * * *'

The phrase 'appellate jurisdiction,' as here used, relates to the review, by a superior court, of the final judgment, order, or decree of some inferior court. Ex parte B. & B. R. Co., 39 Ark. 82, 87; Brownsville v. Basse, 43 Tex. 440, 449.

'The appellate jurisdiction spoken of in the Constitution is evidently that kind of appellate jurisdiction which had theretofore been exercised by the highest judicial tribunals of the respective states, and not an unlimited appellate jurisdiction over any matter or thing arising either in courts or out of courts, which the wisdom or folly of any future Legislature might see fit to confer or impose upon it.' Hubbell v. McCourt et al., 4 Wis. 584, 587.

Were it otherwise, appeals and writs of error might, under the cloak of 'appellate jurisdiction,' be made to lie to this court from the final decision of every board, bureau commission, and town council in the state. The Public Utilities Commission is not a court. People ex rel. v. Colo. T. & T. Co. et al., 65...