Denver & S.P. Ry. Co. v. City of Englewood

• Decision Date: 03 July 1916
• Docket Number: 8542.
• Citation: 62 Colo. 229,161 P. 151
• Court: Colorado Supreme Court
• Parties: DENVER & S. P. RY. CO. v. CITY OF ENGLEWOOD.

161 P. 151

62 Colo. 229

DENVER & S. P. RY. CO. v. CITY OF ENGLEWOOD.

No. 8542.

Supreme Court of Colorado, En Banc.

July 3, 1916

Rehearing Denied Dec. 4, 1916.

Error to District Court, Arapahoe County; H. S. Class, Judge.

Injunction by the City of Englewood against the Denver & South Platte Railway Company. After sustaining demurrer to the answer, the court rendered judgment for plaintiff on defendant's refusal to plead further, and defendant brings error. Reversed, with instructions to dismiss.

Gabbert C.J., and Teller, J., dissenting.

W. H. Caley, of Littleton, and F. W. Varney, of Nederland, for plaintiff in error.

R. H Blackman, of Littleton, and Crump & Allen, of Denver, for defendant in error.

Fred Farrar, Atty. Gen., Frank C. West, Asst. Atty. Gen., and M H. Aylesworth, of Denver, for Public Utilities Commission.

SCOTT J.

This is an action in injunction, and the issue was determined on the pleadings. There is no dispute as to the facts.

The complaint alleges that the city of Englewood, defendant in error, on the 6th day of December, 1906, and while it was an incorporated town, by ordinance granted to the grantors of the Denver & South Platte Railway Company, defendant in error, a franchise for the operation of a street railway upon and across certain of its streets. That section 6 of said ordinance fixed the rates of fares to be charged within said city, and further provided by reasonable regulation for the sale of coupon tickets which shall entitle passengers taking passage on the cars of said grantees, their successors or assigns, going north on said Broadway at or north of Quincy avenue, to be transported the same as regular tramway passengers, without extra fare upon the cars of the Denver City Tramway Company at Hampden avenue, and also entitling passengers going south on the cars of the Denver Tramway Company to be transported upon the cars of said grantees to the intersection of any street between Hampden and Quincy avenues, the latter inclusive avenue without additional fare, upon presentation of said coupon ticket. It was further alleged:

'That at the time of the passage of said ordinance, and the granting of said franchise to the grantors of the said defendant, the Denver City Tramway Company was engaged in operating a street railway as a common carrier between the city of Denver and the said Hampden avenue, at the intersection of said Hampden avenue and Broadway, in the said city of Englewood, and that thereafter the defendant company did until on or about the 28th day of October, A. D. 1914, substantially comply with the terms and conditions of said section 6 of said ordinance, and for some years thereafter did in fact provide for those seeking passage upon the cars of the said the Denver City Tramway Company, without extra charge as provided in section 6 of said ordinance.'

It is then alleged that since the said 28th day of October, 1914, the defendant has refused to comply with that provision of the ordinance in the matter of providing the sale of coupon tickets entitling passengers to transportation to and from the city of Denver on the line of the Denver Tramway Company, as provided by the terms of the ordinance. The prayer was for injunction to compel the enforcement of the terms of the ordinance in the particular respect.

The answer of the defendant company admits the ordinance and the terms thereof, and alleges that from the date of the passage of the ordinance up to October 28, 1914, the defendant had given and tendered to all persons seeking passage on its cars between the point complained of free service and transfers entitling passengers to passage between such points. The answer further alleges that the defendant has sought to make arrangements with the Denver Tramway Company for the transfer of passengers taking passage upon its lines between the points set out in the complaint, and that the only provision it has been able to make is that the Denver Tramway Company shall receive five cents from all passengers so transferred and transported. It is then alleged that the defendant is a public utility and subject to the provisions of the public utility law, and further that:

'Pursuant to the provision of law in such case made and provided, it did file with the Public Utilities Commission of the state of Colorado its schedule of rates, and that its schedule of rates so filed were not suspended by the said Public Utilities Commission herein upon its own motion or upon the complaint of others for a period of 30 days, and that 30 days expired from the time of the filing the same and from the 28th day of September, A. D. 1914, and until the 28th day of October, A. D. 1914, and thereupon and pursuant to law the said rates did on the 28th day of October, A. D. 1914, go in effect and become and now are the established effective rates, fares, and charges, practices, rules, and regulations of this defendant company.'

It is then said, in substance, that to comply with the ordinance in the matter complained of it must violate the public utility law as relates to the prohibition of free service or free transportation; further, that the plaintiff and all others who may claim to be injured by reason of the premises have a plain, speedy, and adequate remedy at law under the Public Utilities Law of the state.

To this answer the plaintiff filed a demurrer upon the ground that the same does not constitute a sufficient defense to the complaint. The court sustained the demurrer, and, the defendant electing to stand upon its answer, judgment was rendered in accordance with the prayer of the complaint. This judgment is before us for review.

It will be seen that the defendant company contends that its present rates of service are those fixed by the State Public Service Commission in due compliance with the statute creating such commission and prescribing its powers and duties, and the first question therefore presented in this particular is: May the commission alter a rate or regulation fixed by a franchise ordinance prior to the enactment of the Public Utilities Law.

It must be conceded that the ordinance and the acceptance thereof constituted a contract which the city and the company were at the time empowered to make. If the contract is now an enforceable one, the present action in equity was proper.

The city of Englewood was at the date of the ordinance a town operating under the general law of the state, as appears from the pleadings. Its sole power to enact such an ordinance was in section 6676, Rev. Stat. 1908, as follows:

'No franchise or license giving or granting to any person or persons, corporation or corporations, the right or privilege to erect, construct, operate or maintain a street railway, electric light plant or system, telegraph or telephone system within any city or town, or to use the streets or alleys of a town or city for such purposes, shall be granted or given by any city of the first or second class or by any incorporated town in this state in any other manner or form than by * * * ordinance passed and published in the manner hereinafter set forth.'

It will thus appear that the Legislature had conferred no specific power upon the town of Englewood to enact a rate-making ordinance. The only specific power conferred upon the municipality by this section is to grant a franchise in the form of an ordinance. There does not appear a suggestion as to a rate-making power, and no such power can be inferred. It may be conceded that as between the parties such ordinance constituted a valid contract.

The question to be determined is as to the effect upon such a contract by the enactment of the public utility law (chapter 127, Laws 1913). This act is very broad, and seems to confer the absolute power to regulate, both as to rates and otherwise, all public utilities within the state, at least all such as are specified in the act, and among which are street railways. Section 13 of the act provides:

'Sec. 13. All charges made, demanded or received by any public utility, or by any two or more public utilities, for any rate, fare, product or commodity furnished or to be furnished or any service rendered or to be rendered shall be just and reasonable. Every unjust or unreasonable charge made, demanded or received for such rate, fare, product or commodity or service is hereby prohibited and declared unlawful.' By section 14 the Public Utilities Commission was given the power, and it was made its duty, to adopt all necessary rates and regulations of all public utilities, as follows:

'Sec. 14. The power and authority is hereby vested in the Public Utilities Commission of the state of Colorado, and it is hereby made its duty to adopt all necessary rates, charges, and regulations to govern and regulate all rates, charges and tariffs of every public utility of this state as herein defined, the power to correct abuses and prevent unjust discriminations and extortions in the rates, charges and tariffs of such public utilities of this state and to generally supervise and regulate every public utility in this state and to do all things, whether herein specifically designated, or in addition thereto, which are necessary or convenient in the exercise of such power, and to enforce the same by the penalties provided in this act, through proper courts having jurisdiction.'

Section 21 fixed the maximum rate to be charged passengers by a street railway and provides for transfers as follows:

'Sec. 21. No street or interurban railroad corporation shall charge, demand or collect or receive more than five cents for one continuous ride in the same general direction within the corporate limits of any city and county, city or town; except upon a showing before the commission

...