Colorado & S. Ry. Co. v. State R. Com'n of Colorado

• Decision Date: 09 December 1912
• Citation: 54 Colo. 64,129 P. 506
• Parties: COLORADO & S. RY. CO. v STATE R. COMMISSION OF COLORADO et al.
• Court: Colorado Supreme Court

129 P. 506

54 Colo. 64

COLORADO & S. RY. CO. v STATE R. COMMISSION OF COLORADO et al.

Supreme Court of Colorado, En Banc.

December 9, 1912

Rehearing Denied Jan. 6, 1913.

Error to District Court, Summit County; J.E. Rizer, Judge.

Proceeding by the State Railroad Commission of Colorado and another against the Colorado & Southern Railway Company to enforce an order of the Railroad Commission. To review a judgment granting a mandatory injunction, defendant brings error. Affirmed.

E.E. Whitted, John A. Ewing, and R.H. Widdicombe all of Denver, for plaintiff in error.

Benjamin Griffith, Atty. Gen. and Theo. M. Stuart, Jr., Asst. Atty Gen., for defendant in error State R. Commission of Colorado.

Barney L. Whatley, of Breckenridge, for defendant in error Breckenridge Chamber of Commerce.

GARBERT J.

The Colorado & Southern Railway Company is a corporation organized under the laws of this state. It owns a standard gauge line from Orin Junction, 150 miles north of Cheyenne, Wyo., extending southerly through Colorado to Denver, and thence to a point near the New Mexico-Texas line. In addition to this system, it owns a narrow gauge line extending southwesterly up and along Platte Cañon To Como, from Como over Boreas Pass, down into Breckenridge, then up and over Climax Pass into Leadville; also, a line extending from Como southwesterly through the Town of Buena Vista to Gunnison, and thence to Baldwin, about 20 miles from Gunnison. This narrow gauge line is about 335 miles in length, is known as the South Park Division of the Colorado & Southern Railway Company, and is connected with, and forms a part of, the system operated by the company as a whole. It is shown more particularly on the following map:

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The South Park Line has been operated continuously previous to the winter of 1910-1911 by the railway company and its predecessors for about 30 years, during which period the service consisted of not less than one passenger train each way each day from Denver to Leadville, and one freight train each way each day between the same points. In November, 1910, the railway company ceased to operate that portion of its line from Como to Breckenridge, and refused to receive or transport either passengers of freight over its road between these points. The service was then limited to a combination freight and passenger train between Como and Denver, and a similar service between Breckenridge and Leadville. In the summer of 1911 a passenger train daily, except Sunday, was operated between Leadville and Breckenridge, with a stub train from Breckenridge to Como, and a combination train from Como to Grant, connecting with a passenger train at the latter point for Denver. This service was continued until January, 1912, when the stub train between Breckenridge and Como was discontinued. In the meantime the passenger train from Grant to Denver was taken off, and a combination train run between Como and Denver. The passenger service between Breckenridge and Leadville was continued, and also a triweekly freight train between these points. By reference to the above map it will be seen that passengers from Breckenridge for Denver were compelled to go to Leadville, and thence over the Denver & Rio Grande, via Pueblo, or over the Midland, via Colorado Springs.

In the latter part of 1911 the Breckenridge Chamber of Commerce filed a petition with the State Railroad Commission, setting forth the facts above narrated concerning the operation of trains down to that time, and charged that, unless restrained, the railway company during the winter of 1911-1912 would cease to operate its road between Como and Breckenridge, and probably for all time to come; and that freight from Breckenridge to Denver, or vice versa, had to be shipped over the Denver & Rio Grande via Leadville and Pueblo. The petitioner asked that the railway company be ordered to operate its line between Como and Breckenridge, and to receive and transport freight between Denver and Breckenridge and all intermediate points, and provide an exclusive passenger service between Denver and Leadville daily, including Sunday. The railway company filed an answer, challenging the jurisdiction of the Commission to make any order in the premises, denied that closing the road between Como and Breckenridge occasioned any damage to the citizens of Breckenridge and Summit county; admitted that it had declined to receive freight for transportation from Denver, through Como to Breckenridge; that such freight, when conveyed to Breckenridge, was shipped via other lines of road through Colorado Springs and Pueble to Leadville, and then reshipped to Breckenridge; admitted that it refused to receive for transportation any freight between Como and Breckenridge consigned to Breckenridge, and had refused to receive and transport over its own line freight consigned to Breckenridge originating at Denver or points between Denver and Como. It then set forth at some length the physical character of its line from Denver to Leadville, the fact that it was built through a cañon and over high mountain passes; that the grades and curves between Como and Breckenridge were excessive; that there was no business between these points; that the line was often closed by storms and snowslides, which imposed upon the company a heavy expense; that during the year 1910 the operation of the road between Como and Leadville resulted in a heavy deficit; that there was no prospect of an improvement of business over the line; that there was no necessity for operating a railroad between Como and Breckenridge, and not enough business between these points to pay the operating expenses of running trains and maintaining a road; and that the railroad facilities to and from Breckenridge via Leadville were adequate and conducted at a heavy loss. On the issues thus made the trial before the Commission resulted in an order directing the railway company on or before the 1st day of January, 1912, and during a period of two years thereafter, to maintain, operate, and conduct a through freight service between Denver and Leadville by way of Como and Breckenridge at least three days each week, and also, from the same date and during the same period, to operate and maintain a through and exclusive passenger train service daily, excepting Sunday, between Denver and Leadville via Como and Breckenridge. The railway company declined to obey the order of the Commission. Thereafter proceedings were instituted in the district court to enforce the order of the Commission; the State Railroad Commission and the Breckenridge Chamber of Commerce joining as plaintiffs in the case. The complaint set out the order of the Commission and the refusal of the railway company to obey it. It prayed for an order that the railway company be required to answer the petition, and show cause why the order of the Commission should not be obeyed, and for an injunction or other process requiring the defendant to comply with the order of the Railroad Commission. To this petition the railway company filed a demurrer, raising various questions, which was overruled. Thereafter the company filed its answer, wherein it pleaded three separate defenses which, in the main, raised the same questions presented by the answer filed with the Commission, and in addition pleaded that the order of the Commission, if enforced, would deprive the company of its property without due process of law. This answer will be noticed more in detail, so far as necessary, in the course of the opinion. The cause was tried to the court on the testimony taken before the Commission, and some additional evidence introduced by the respective parties. The facts thus established will be noticed later in connection with the questions presented for determination. The court directed that an injunction issue, commanding the railway company to comply with the order of the Railroad Commission. The railway company brings the case here for review on error.

From the record and briefs of counsel, the questions presented for consideration are substantially as follows: (1) Whether the Railroad Commission Act confers authority upon the Railroad Commission to make the order sought to be enforced. (2) Whether any of the members of the Commission were legally chosen as members of that body. (3) Whether, if the Commission was validly chosen and is a legal and constitutional body, its order is, in effect, the exercise by the Commission of legislative power. (4) Whether the constitutional and statutory provisions of the state in effect at the time the plaintiff in error was organized required it to operate the abandoned portion of its line. (5) Whether, if it be conceded that the Commission had power to make the order complained of, the act of 1910, giving this power, is constitutional; that is, whether the act and the order by the Commission do not amount to an impairment of the plaintiff in error's charter or contract rights. (6) Whether the order of the Commission in effect is so oppressive, unjust, and unreasonable, if enforced, as to result in taking the property of the plaintiff in error without due process of law, and without just compensation, contrary to the Constitution of the United States.

Counsel for plaintiff in error contends that the act of 190, by virtue of which the Railroad Commission acted, does not confer upon the Commission the power or authority which it exercised, in that it does not confer authority upon the Commission to order the resumption of traffic over an abandoned line, and particularly does not confer authority upon that body to say what number of freight trains shall be operated, and that it has no authority whatever to direct the movement of passenger trains. In other words, counsel f...