McKenna v. Nigro

• Decision Date: 25 June 1962
• Docket Number: No. 20027,20027
• Parties: Mary Jo McKENNA, Individually and as Administratrix of the Estate of Maurice E. McKenna, and Lawrence J. Beardsley, doing business as McKenna-Beardsley Truck Line Company, and Reliable Parcel Service, Inc., Plaintiffs in Error, v. Joseph F. NIGRO, Ralph C. Horton and Henry E. Zarlengo, Individually and as Commissioners of the Public Utilities Commission of the State of Colorado, et al., Defendants in Error.
• Court: Colorado Supreme Court

Page 744

372 P.2d 744

150 Colo. 335

Mary Jo McKENNA, Individually and as Administratrix of the

Estate of Maurice E. McKenna, and Lawrence J. Beardsley,

doing business as McKenna-Beardsley Truck Line Company, and Reliable Parcel Service, Inc., Plaintiffs in Error, v. Joseph F. NIGRO, Ralph C. Horton and Henry E. Zarlengo,

Individually and as Commissioners of the Public

Utilities Commission of the State of

Colorado, et al., Defendants in Error.

No. 20027.

Supreme Court of Colorado, In Department.

June 25, 1962.

Rehearing Denied July 23, 1962.

John D. Saviers, Aurora, for plaintiffs in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., John J. Conway, Asst. Atty. Gen., Denver, for defendant in error Public Utilities Commission.

Tull, Hays & Thompson, Denver, for defendant in error Intrastate Line Haul.

Jones, Meiklejohn & Kilroy, Edward T. Lyons, Jr., Denver, for defendant in error Frederic A. Bethke.

PRINGLE, Justice.

Plaintiffs in error were plaintiffs in the trial court and will be referred to as such or by name. Defendant in error, Public Utilities Commission, will be referred to as the Commission.

Plaintiffs filed an application with the Commission seeking clarification of the scope of Certificate of Convenience and Necessity No. 692 of which they were the owners. Specifically, they sought to have the certificate construed so as to authorize them to operate as a common carrier of freight from Denver to Greeley. The Commission determined that the certificate in question did not include the right to transport from Denver to Greeley. From this decision plaintiffs brought certiorari to the district court. Upon review the trial court affirmed the order of the Commission and the plaintiffs are here by writ of error.

The original authority under which plaintiffs operate was granted to their predecessors in 1929. It provided for transportation from Denver to Windsor and Severance, but not to or from intermediate points. In 1935 a certificate was issued to plaintiffs' predecessors which permitted transportation of freight between Greeley, Bracewell, Farmers Spur, Windsor, Johnstown and Severance. Finally, in 1936, Certificate 692 was issued which provides, in addition to authority granted in prior certificates, as follows:

'* * * transportation of all commodities, (no express), from Denver to Timmath and Wellington via Windsor, (with no intermediate service between Denver and Greeley), only intermediate service between Windsor and Wellington; between Loveland, Greeley, Windsor, Timmath and Wellington; from Wellington, Timmath and Windsor to Greeley, Fort Collins, Loveland and Denver (no intermediate service between Denver and Greeley on U. S. Highway 85); and from Fort Collins to Windsor, Timmath, Wellington and Greeley, (without authority to transport freight from Fort Collins to Loveland or Denver or any intermediate points on U. S. Highway 285, and no authority to transport freight from Greeley to Denver) * * *.'

Plaintiffs contend that the ruling of the Commission that the language of this certificate does not permit service from Denver to Greeley is erroneous. The action of the Commission with which we are here concerned is not a grant of authority nor a limitation upon an authority already granted. It is simply an interpretation or clarification by the Commission of the language contained in the certificates held by the plaintiffs. Great weight must be given to the interprestation which the Commission gives to its own language, and unless such interpretation is clearly erroneous, arbitrary or in excess of its jurisdiction, the courts may not interfere. Malone Freight Lines, Inc. v. United States, D.C., 107 F.Supp. 946, aff'd, 344 U.S. 925, 73 S.Ct. 497, 97 L.Ed. 712.

Certainly the Commission as the immediate authority issuing the certificate is in the best position to know what rights were intended to be granted thereunder. Public Util. Comm'n v. Weicker Transp. Co., 102 Colo. 211, 78 P.2d 633.

Does the record here reflect that the interpretation placed on the language of the certificates of authority by the Commission is clearly erroneous, arbitrary or in excess of its jurisdiction? The answer is in the negative. On the contrary, it appears clear that the language of the certificates clearly and unambiguously does not permit service from Denver to Greeley. A contrary interpretation by the Commission would have required reversal.

A careful reading of the certificates granted to the plaintiffs and their predecessors discloses no ambiguity whatever in the scope of the authority granted. The 1929 certificate permitted service from Denver to Windsor and Severance with no intermediate service at all. The 1935 certificate permitted the plaintiffs' predecessors to extend service from Greeley to Windsor and Severance and intermediate points. The 1936 authority, being Certificate No. 692, extended plaintiffs' operations to include certain other towns, but did not permit service from Greeley to Denver and from Denver to Greeley. The...