Denver & S.L. R. Co. v. Chicago, B. & Q. R. Co.

• Decision Date: 01 December 1919
• Docket Number: 8938.
• Citation: 185 P. 817,67 Colo. 155
• Court: Colorado Supreme Court
• Parties: DENVER & S. L. R. CO. v. CHICAGO, B. & Q. R. CO. et al.

185 P. 817

67 Colo. 155

DENVER & S. L. R. CO. v. CHICAGO, B. & Q. R. CO. et al.

No. 8938.

Supreme Court of Colorado, En Banc.

December 1, 1919

Rule upon application of the Denver & Salt Lake Railroad Company to Public Utilities Commission to show cause why commission should not rehearing a case pursuant to the mandate upon a writ of review (171 P. 74). Commission ordered to proceed to rehearing original cause, etc.

Milton Smith, Charles R. Brock, W. H. Ferguson, and Elmer L. Brock all of Denver, for petitioner.

E. E. Whitted and A. S. Brooks, both of Denver for respondent Chicago, B. & Q. R. Co.

W. V. Hodges and D. Edgar Wilson, both of Denver, for respondent Chicago, R.I. & P. R. Co.

Thomas R. Woodrow, C. C. Dorsey, and John Q. Dier, all of Denver, for respondent Union P. R. Co.

L. J. Williams, of Central City, and A. P. Anderson, of Denver, for respondent Public Utilities Commission.

SCOTT J.

On February 10, 1916, the Public Utilities Commission of this state entered an order fixing the division of certain through rates between the petitioner and other railroad companies. From this order, the petitioner and the Chicago, Rock Island & Pacific Railway Company applied to this court for a review.

On February 4, 1918, the court rendered its decision in said causes. Denver & Salt Lake Ry. Co. v. Chicago, Burlington & Quincy Ry. Co., 171 P. 74; Chicago, Rock Island & Pacific Ry. Co. v. Public Utilities Commission, 171 P. 86.

The court in both cases reversed and set aside the order of the commission. This was principally because of the incorrect methods and rules adopted by which the commission reached its conclusions, all of which will fully appear in the serveral opinions of the court in the cases cited.

The order of the court in the case of the petitioner is in the precise words as follows:

'For the reasons stated the decision and order of the commission will be reversed and set aside, and the cause remanded for further proceedings not inconsistent with the views herein expressed.'

The remittiturs in both cases were received by the commission on March 29, 1918.

Prior to the decisions of the Supreme Court and on the 27th day of December, 1917, upon stipulation of all parties, the commission entered a new and different order covering the matters involved.

On March 29, 1918, the petitioner requested the commission to set the cases for further hearing and determination, which date was fixed by the commission for April 18, 1918, when all the parties appeared.

The respondents then filed their objections to further consideration of the matter and asked for a dismissal of the proceedings by the commission, which request was granted. The objection which seems to have been relied on by the commission, and by reason of which it dismissed the proceedings, was as follows:

'The Denver & Salt Lake, upon its application to the Supreme Court for a writ of review, neither made an application for nor filed an application for a suspension, nor filed any suspending bond, as provided by section 53 of the Public Utilities Act. The order fixing divisions consequently was in effect all of the time the writ of review was pending, and furthermore during all of the time the writ of review was pending, the Moffat road voluntarily and without protest accepted the divisions ordered in by the order in the three cases at bar.'

The findings of the commission upon these objections and motions to dismiss are as folllows:

'The commission finds the effect of such failure to be that the divisions fixed by it in these cases were in operation for the period from August 1, 1915, to December 27, 1917, and that the commission's order was never stayed or suspended; that the commission is without power to change such divisions, as the rates under which these divisions were made are no longer in existence, and the commission cannot make divisions operative for the period from August 1, 1915, to December 27, 1917.'

Upon application of the petitioner, a rule issued out of this court on June 26, 1918, to the Public Utilities Commission, to show cause why it should not proceed with the hearing and determination of this cause as directed by the court. This proceeding is upon the return and answer in the premises.

The question, then, to be determined, is: What was the force and effect of the decisions of the Supreme Court upon the rules and orders of the commission, fixing and determining the division of the joint rates to which the parties were entitled, and what were the duties and powers of the commission in the premises as affected by the judgments of the court?

Section 52 of the Public Utilities Act (Laws 1913, p. 497) provides, among other things, that----

'Upon hearing, the Supreme Court shall enter judgment either affirming, setting aside or modifying the order or decision of the commission. The provisions of the Code of Civil Procedure of this state relating to writs of review shall so far as applicable and not in conflict with the provisions of this act, apply to proceedings had in the Supreme Court under the provisions of this section.'

Then, unless otherwise provided by the act, the effect of the judgment of the court upon review is precisely the same as provided by the Civil Code and the rules of this court in other cases.

We find nothing in the statute in this particular in conflict with the Code, or out court rules.

It is plain that the commission was therebycommanded to hear the cause de novo to determine the question involved in the original hearing, and to determine these in the light of the methods and the law applicable as announced by the court. It has no discretionary powers in the premises. It was its plain duty to obey.

The power of the Supreme Court in the case of this priminarily legislative tribunal, with but limited quasi judicial powers is expressly conferred by the statute, and the same power and procedure is directed to be exercised over such tribunal as in case of judicial tribunals.

The rule announced by this court in Galbreath v. Wallrich et al., 48 Colo. 127, 109 P. 417, 139 Am.St.Rep. 263, is:

'The rule is that, where the mandate of an appellate court directs a specific judgment to be entered, the tribunal to which such mandate is directed must yield obedience thereto. No modification of the judgment so directed by the appellate tribunal can be made by the trial court, nor can any provision be ingrafted upon or taken from it.'

The court further said in the opinion in that case:

'The reason for this rule is obvious. When a particular judgment is directed by the appellate court, the lower court is not acting of its own motion, but in obedience to the order of its superior. What that superior says it shall do, it must do, and that alone. Public interests require that an end shall be put to...