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

• Decision Date: 04 February 1918
• Docket Number: 8938.
• Citation: 171 P. 74,64 Colo. 229
• Parties: DENVER & S. L. R. CO. v. CHICAGO, B. & Q. R. CO. et al.
• Court: Colorado Supreme Court

171 P. 74

64 Colo. 229

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

No. 8938.

Supreme Court of Colorado, En Banc.

February 4, 1918

Error to Public Utilities Commission.

Petition by the Denver & Salt Lake Railroad Company against the Chicago, Burlington & Quincy Railroad Company and others, to the Public Utilities Commission, from whose decision the petitioner brings error. Reversed, set aside and remanded.

Tyson S. Dines, Tyson Dines, Jr., Carle Whitehead and Albert L. Vogl, all of Denver, for plaintiff in error.

E. E Whitted and T. M. Stuart, Jr., both of Denver, for defendant in error Burlington.

William V. Hodges, Wallace T. Hughes, of Chicago, Ill., and D. Edgar Wilson and Harold H. Healy, both of Denver, for defendant in error Rock Island.

C. C Dorsey and John Q. Dier, both of Denver, for defendant in error Union Pacific.

HILL C.J.

This action is to review an order of our Public Utilities Commission fixing a division or apportionment of through rates on coal to be shipped from points in northwestern Colorado, known as the Oak Hills district, on the road of the petitioner, to points in the eastern part of the state, on the roads of the respondents. 2 Colo. P. U. C. Rep. 8. For convenience the petitioner, the Denver & Salt Lake Railroad Company, will be called 'the Moffat road'; the respondent the Chicago, Burlington & Quincy Railroad Company 'the Burlington'; the Union Pacific Railroad Company 'the Union Pacific'; the Chicago, Rock Island & Pacific Railway Company and its receiver 'the Rock Island'; and our Public Utilities Commission 'the commission.'

The record discloses that on January 11, 1915, the commission instituted on its own motion an investigation into the rates charged on coal between these and other points in the state; that on May 10th following it announced its opinion and entered its order. 1 Colo. P. U. C. Rep. 48. By this order it required the carriers, who are parties to this action, to establish new rates for the transportation of coal between the points above referred to, which new rates as a whole were materially lower than the former ones, varying from no change at a few points to as high as 30 per cent. reduction to others, probably an average reduction of at least 10 per cent., the exact amount being immaterial so far as this controversy is concerned. The carriers being unable to agree upon a division of the new rates, the Moffat road appealed to the commission to decide it. Its decision was that as between the Moffat, the Burlington, and the Union Pacific the new rates should be divided in the same proportion as the former, each bearing its proportion of the reduction in proportion to what its proportion of the old rate bore to the whole; that as between the Moffat and the Rock Island the divisions should be similar to those on the other roads, which were different than the former divisions between them. The Moffat road brings the case here for review, and contends that the divisions for it are unjust, unreasonable, and contrary to the evidence, and that there is no testimony to sustain the justness of the order.

The respondents contend that this court is without jurisdiction to interfere in the respect complained of; that the fixing of the divisions is along the same line as the establishment of reasonable rates, and is legislative in character; that this prohibits a review of that question by this court; that it is the exercise of an authority which the law vests in the commission, viz. the determination of a question of fact, and that any attempt to provide for a review by a court and for its final determination of the matter would be unconstitutional as giving to the judiciary nonjudicial powers; that the courts must not usurp administrative orders on their own conception of their wisdom; that in any event the questions of divisions are questions of fact, which were determined upon conflicting evidence, hence cannot be disturbed.

The principles upon which courts act in such cases and their jurisdiction are well settled. All such acts, so far as we are advised, including those involving the Interstate Commerce Commission, provide for review by the courts. No case has been cited which holds that similar provisions providing for review are for that reason invalid.

The debatable question is the scope and extent of the review and the court's judgment in connection with it. Section 52 (pages 497-498, Laws 1913) of our act provides for a review by this court for the purpose of having the lawfulness of the commission's order inquired into and determined. It provides that no new or additional evidence may be introduced in the Supreme Court, but the case shall be heard on the record of the commission as certified by it. It further provides that the review shall not extend further than to determine whether the commission has regularly pursued its authority, including a determination of whether the order or decision under review violates any right of the petitioner under the Constitution of the United States, or of the state of Colorado, and whether the order of the commission is just and reasonable, and whether its conclusions are in accordance with the evidence. It also provides that the findings and conclusions of the commission on disputed questions of fact shall be final and shall not be subject to review, also that upon hearing the Supreme Court shall enter judgment either affirming, setting aside, or modifying the order or decision of the commission. Section 53 provides that pending a review, this court may stay or suspend, in whole or in part, the operation of the commission's order on certain conditions, etc.

It will thus be observed that among other things the act requires this court to determine whether the order of the commission is just and reasonable, and whether its conclusions are in accordance with the evidence. This language assumes, as other parts of the act provide, that the commission will take testimony and base its decision thereon, and that on review the testimony will be made a part of the record for consideration by this court. Section 52 further provides that the provisions of our Code of Civil Procedure relative to rights of review shall, so far as applicable and not in conflict with the provisions of this act, apply to proceedings had in this court under the provisions of this section. When these sundry provisions are considered together, it follows that our review of such cases was intended to be the same as in other cases between litigants, except as otherwise provided or limited in the act.

Counsel for respondents contend that the question of a reasonable division of rates is a question of fact, and that as section 52 of the act prohibits us from reviewing any question of fact based upon conflicting testimony, we are without jurisdiction to go into that question. In order to properly construe this paragraph, it should be considered in connection with those immediately preceding it. They provide that we shall determine whether the order of the commission is just and reasonable, and whether its conclusions are in accordance with the evidence. When they are read together, we agree that our duties in so far as this phase of the contention is concerned are controlled and limited by them. We cannot agree, however, that they prohibit us from considering the evidence in order to ascertain from it, which the act says we shall do, whether the order is just and reasonable, and whether the commission's conclusions are in accordance with the evidence. This includes whether there is a substantial conflict in the evidence, which, if there is, we agree would prohibit us from overruling the commission's finding based thereon. Our conclusions in this respect are supported by the highest court in the land.

In Interstate Commerce Commission v. Louisville & Nashville Railroad Co., 227 U.S. 88, 91, 33 S.Ct. 185, 186 (57 L.Ed. 431), the court had under consideration an order of the Interstate Commerce Commission reducing rates. In discussing its powers to review such orders the court said:

'In the comparatively few cases in which such questions have arisen it has been distinctly recognized that administrative orders, quasi judicial in character, are void if a hearing was denied; if that granted was inadequate or manifestly unfair; if the finding was contrary to the 'indisputable character of the evidence;' * * * or if the facts found do not, as a matter of law, support the order made. * * * In a case like the present the courts will not review the commission's conclusions of fact * * * by passing upon the credibility of witnesses, or conflicts in the testimony. But the legal effect of evidence is a question of law. A finding without evidence is beyond the power of the commission. An order based thereon is contrary to law, and must, in the language of the statute, 'be set aside by a court of competent jurisdiction.''

To the same of effect is Interstate Commerce Commission v. U. P. R. R. Co. et al., 222 U.S. 541, 32 S.Ct. 108, 56 L.Ed. 308. In Louisville & N. R. Co. et. al. v. United States et al. (D. C.) 216 F. 672, 679, in commenting upon the same question the court said:

'Accordingly it is well settled that where all the evidence introduced before the commission is exhibited to the court, its conclusion of fact that a given rate is reasonable or unreasonable will be accepted by the court as final and not reviewed upon the weight of the evidence, unless either there is no substantial evidence supporting such conclusion, or such conclusion is contrary to the indisputable character of the evidence, in which cases the conclusion involves an error of law, and is therefore reviewable by the court.'

In Louisville & N. R. Co. v. United States, (D. C.) 227...