Groendyke Transport, Inc. v. District Court of City and County of Denver, 18341

• Citation: 343 P.2d 535,140 Colo. 190
• Decision Date: 31 August 1959
• Docket Number: No. 18341,18341
• Parties: GROENDYKE TRANSPORT, INC., an Oklahoma Corporation et al. Petitioners, v. DISTRICT COURT OF THE CITY AND COUNTY OF DENVER et al., Respondents.
• Court: Supreme Court of Colorado

Page 535

343 P.2d 535

140 Colo. 190

GROENDYKE TRANSPORT, INC., an Oklahoma Corporation et al. Petitioners, v. DISTRICT COURT OF THE CITY AND COUNTY OF DENVER et al., Respondents.

No. 18341.

Supreme Court of Colorado, En Banc.

Aug. 31, 1959.

W. Richard Means, Stanley H. Johnson, Denver, for petitioners.

E. G. Knowles, T. A. White, Douglas McHendrie, W. V. Hodges, Jr., J. C. Street, Denver, J. W. Preston, Pueblo, for respondents.

SUTTON, Justice.

This proceeding, originally filed in this court upon writ of error, was, upon motion of plaintiffs in error, to whom we will refer as petitioners, permitted to be considered by this court as an original proceeding under Rule 116, R.C.P. Colorado.

Petitioners, by an action filed in the district court of the City and County of Denver, sought to review the validity of certain orders entered by the Public Utilities Commission of the State of Colorado (hereinafter referred to as the Commission) granting lower rates to railroads than it did to truckers for intrastate hauls of over 75 miles in length, relating to petroleum and petroleum products. Petitioners are trucking companies doing business in the State of Colorado, and engaged in transporting such products in both intrastate and interstate commerce.

Following filing of the district court action, in which only the Public Utilities Commission was named defendant, the respondent railroad companies filed their petition to intervene, which, being granted, precipitated the present proceeding by which petitioners seek to compel the district court to vacate its order allowing the intervention.

The controversy goes back to 1950 when the petitioners and a group of seven railroads were, generally speaking, charging the same rates for the hauling of petroleum products. In that year the railroads filed with the Commission new tariffs proposing to reduce intrastate rates on gasoline and light oils to a level generally 1.5 cents per hundred pounds lower than the then prevailing rates for truckers. A similar decrease had been previously granted by proper federal authority for interstate shipments. The new state tariffs were suspended after protest by some of these petitioners pending an investigation and hearing thereon. In 1953 the Commission approved the new tariffs and no review was ever sought of that decision.

In 1956 the railroads filed for a general rate increase, which was granted by the Commission. Later petitioners sought to intervene in the 1956 rate case, which request was denied. Thereafter the railroads asked that the 1956 rate increase not apply to petroleum and petroleum products. This request was granted by the Commission. Following the denial of various petitions for rehearing before the Commission, petitioners on September 21, 1956, sought review in the District Court of the orders of the Commission, which if successful would have the net result of terminating or setting aside the rate differential established in 1953. Following action on various motions, and in due course on February 13, 1957, the railroads filed and served a motion for leave to intervene in the district court action as defendants on the side of the Commission. This motion, which was later amended, the petitioners moved to dismiss. The motion to dismiss was denied and the motion to intervene granted, the trial court stating:

'I am going to grant the motion and permit them to come in as parties, as intervenors, because the Court believes, first, that in its duty it can, under its broad powers, as a matter of discretion, permit them.

'By and large, I believe it necessary for the proper conclusion of the issues raised by the Complaint that any person who might be affected--it appears from the statement of counsel that the railroads would be affected by any judgment, decree, or order of this Court pertaining to the constitutionality of the Act which has been questioned--that the Court should, as a matter of right, permit them to intervene and be represented by counsel. * * *'

There are no issues of fact here in dispute. As we view the issues presented, there is only one question to be answered. It is: Is an order of the trial court granting intervention under R.C.P. Colo., Rule 24, reviewable by this court in an action invoking the court's original jurisdiction under Rule 116? This question is answered in the negative.

Rule 24 states:

'(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute confers an unconditional right to intervene; or (2) when the representation of the applicant's interest by existing parties is or may be inadequate and the applicant is or may be bound by a judgment in the action; or (3) when the applicant is so situated as to be adversely affected by a distribution or other disposition of property which is in the custody or subject to the control or disposition of the court or of an officer thereof. (Code Secs. 17 and 22.) Amended May 17, 1951.

'(b) Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action (1) when a statute confers a conditional right to intervene; or (2) when an applicant's claim or defense and the main action have a question of law or fact in common. When a party to an action relies for ground of claim or defense upon any statute or executive order administered by a federal or state governmental officer or agency or upon any regulation, order, requirement, or agreement issued or made pursuant to the statute or executive order, the officer or agency upon timely application may be permitted to intervene in the action. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.

'(c) Procedure. A person desiring to intervene shall serve a motion to intervene upon all pa...