Greeley Transp. Co. v. People

• Decision Date: 19 April 1926
• Docket Number: 11367.
• Citation: 79 Colo. 307,245 P. 720
• Parties: GREELEY TRANSP. CO. v. PEOPLE.
• Court: Colorado Supreme Court

245 P. 720

79 Colo. 307

GREELEY TRANSP. CO. v. PEOPLE.

No. 11367.

Supreme Court of Colorado, En Banc.

April 19, 1926

Error to District Court, City and County of Denver; James L Cooper, Judge.

Suit by the People, by the Attorney General, against the Greeley Transportation Company. Judgment for plaintiff, and defendant brings error.

Affirmed.

Harry S. Class, of Denver, and E. H. Houtchens, of Greeley, for plaintiff in error.

William L. Boatright, Atty. Gen., and S.E. Nagule, Asst. Atty. Gen for the People.

BURKE J.

The people, by the Attorney General, obtained an injunction restraining plaintiff in error, hereinafter referred to as defendant, from carrying on the business of transporting passengers for hire by automobile between certain designated points and in competition with railways until it should obtain a 'certificate of convenience and necessity' from the Public Utilities Commission. To review that judgment defendant brings error.

The assignments which are argued, and which require consideration, may be thus grouped:

(1) The Utilities Act is unconstitutional, because: (a) The subject-matter is not germane to the title; (b) it denies due process of law by prohibiting a direct judicial review, and permitting such review indirectly only under the threat of excessive penalties; (c) it is based upon illegal classification and exception; (d) its passage was prohibited under the referendum; (e) its operation results in the prohibition of a lawful business, which prohibition is beyond the power of the Legislature.

(2) The complaint shows on its face that the action cannot be maintained.

(3) The record does not support the judgment, because: (a) It shows that defendant applied for a certificate of public convenience and necessity, and was denied a hearing; (b) it shows that defendant's business does not come within the classification requiring such certificate.

Our Public Utilities Act is chapter 127, p. 464, L. 1913; chapters 133 and 134, pp. 392 and 393, L. 1915; and chapter 109, p. 415, L. 1917. As amended, it is found in its entirety in C. L. 1921, §§ 2911 to 2977, boty inclusive, beginning at page 917. When not otherwise indicated, it is to this volume we hereinafter refer.

I. (a) The title of the act of 1913 reads:

'An act concerning public utilities, creating a Public Utilities Commission, prescribing its powers and duties and repealing certain acts and parts of acts in conflict therewith.'

Subdivision (e) of section 2 of that act defines the term 'common carrier,' which definition does not mention automobiles.

The title of chapter 133, L. 1915, reads:

'An act declaring the transportation of passengers, freight or express for hire in any automobile or other vehicle operating for the purpose of affording a means of transportation similar to that afforded by railroads or street railways, to be a public utility.'

The title of chapter 134, L. 1915, reads:

'An act to amend subdivision 'e' of section 2 of an act entitled 'an act concerning public utilities, creating a Public Utilities Commission, prescribing its powers and duties and repealing certain acts and parts of acts in conflict therewith.''

This act repeats the definition of common carriers given in the act of 1913, but adds the following:

'And every other corporation or person affording a means of transportation, by automobile or other vehicle whatever, similar to that ordinarily afforded by railroads or street railways, and in competition therewith, by indiscriminately accepting, discharging and laying down either passengers, freight or express between fixed points or over established routes.'

The title of chapter 110, L. 1917, reads:

'An act to amend 'An act concerning public utilities, creating a Public Utilities Commission, prescribing its powers and duties, and repealing certain acts and parts of acts in conflict therewith,' approved April 12, 1913.'

Sections 35, 36, and 37 of the act of 1913 were referred to the people at the following general election and rejected. These prohibited, inter alia, the construction or extension of utilities named without first procuring from the commission a certificate of convenience and necessity. This, it is said, left the act, as it finally became operative, a mere regulatory statute. The act of 1917 amended the act of 1913 by adding to it a section to be numbered '35,' which provided, inter alia, that no public utility should thereafter construct or extend a system without first procuring from the commission a certificate of public convenience and necessity. This, it is said, converted the regulatory act into a prohibitory one, and the body of the latter is not germane to the title of the former. If the body of the original act was germane to its title, the same relationship must have existed after the reference and rejection of sections 35, 36, and 37 thereof, and the amendment of 1917. All this is, in fact, but a new form of an old objection: i. e., that in such titles particularity is essential and generality fatal. The contrary is settled in this jurisdiction. Roark v. People (Colo. Sup.) 244 P. 909 (decided March 15, 1926).

(b) This proposition requires an examination of the statute and our former construction thereof.

'Within thirty days after the application for a rehearing is denied, or, if the application is granted, then within thirty days after the rendition of the decision on rehearing, 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. No new or additional evidence may be introduced in the Supreme Court, but the cause shall be heard on the record of the commission as certified by it. 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. The findings and conclusions of the commission on disputed questions of fact shall be final and shall not be subject to review. 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. The provisions of the Code of Civil Procedure of this state relating to writs of review shall so far applicable and not in conflict with the provisions of this act, apply to the proceedings had in the Supreme Court under provisions of this section. 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 suspened or delay the execution or operation thereof, or to enjoin, restrain, or interfere with the commission in the performance of its official duties; Provided, that the writ of mandamus shall lie from the Supreme Court to the commission in all proper cases.' Section 2961, p. 935, C. L. 1921.

This section, it will be observed, provides for a complete judicial review, in which even the justness and reasonableness of the commission's order may be inquired into, and that order affirmed, revoked, or modified; that such review shall be had in the Supreme Court; and that the district court is without jurisdiction thereof.

In Clark et al. v. D. & I. R. R. Co., 239 P. 20, 78 Colo. 48, we held that portion of said section which seeks to impose original jurisdiction upon the Supreme Court unconstitutional. For the same reason that portion of the section which attempts to deprive the district court of jurisdiction is unconstitutional, because section 11, article 6, of our Constitution, provides that----

'The district courts shall have original jurisdiction of all causes both at law and in equity.'

It is a general rule of construction that the unconstitutionality of a portion of an act does not invalidate the remainder, if the act is separable and the remainder can stand alone. That rule is particularly applicable here, and, if express legislative declaration can aid it, such declaration is not wanting. Section 67 of the Act of 1913 (section 2975 [note], p. 941, C. L. 1921), reads:

'If any section, subsection, sentence, clause, or phrase of this act is for any reason held to be unconstitutional, such decision shall not affect the validity of the remaining portions of this act. The General Assembly hereby declares that it would have passed this act, and each section, subsection, sentence, clause and phrase thereof, irrespective of the fact that any one or more other sections, subsections, sentences, clauses or phrases be declared unconstitutional.'

Both rule and statute thus require that, in case the original jurisdiction prohibited to the district court and conferred upon the Supreme Court be held unconstitutional, the remedy provided must stand, and the writ be sued out of the district court as commanded by the Constitution. This conclusion appears to us so inevitable that further elucidation becomes superfluous. In the light of this construction...