Public Utilities Commission v. Colorado Motorway, Inc.

• Decision Date: 05 February 1968
• Docket Number: No. 21526,21526
• Citation: 437 P.2d 44,165 Colo. 1
• Parties: , 74 P.U.R.3d 13 The PUBLIC UTILITIES COMMISSION of the State of Colorado, Plaintiff in Error, v. COLORADO MOTORWAY, INC., Defendant in Error.
• Court: Colorado Supreme Court

Page 44

437 P.2d 44

165 Colo. 1, 74 P.U.R.3d 13

The PUBLIC UTILITIES COMMISSION of the State of Colorado Plaintiff in Error, v. COLORADO MOTORWAY, INC., Defendant in Error.

No. 21526.

Supreme Court of Colorado, En Banc.

Feb. 5, 1968.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Robert P. Fullerton, Robert Lee Kessler, Asst. Attys. Gen., Denver, for plaintiff in error.

David Butler, Holland & Hart, Denver, for defendant in error.

KELLEY, Justice.

The Public Utilities Commission of the State of Colorado (Commission) instituted on its own motion a proceeding 'for the purpose of a general investigation of sightseeing and charter service covering services, authorities and the interpretation thereof * * * for the purpose of adopting rules and regulations therefor.'

A notice of the hearing was sent to all parties in interest, well over one hundred in number, of whom twenty-three appeared and participated. One of those which appeared and participated in the hearing was Colorado Motorway, Incorporated (Motorway), owner of Private Permit B--277 and the defendant in error.

Following the conclusion of the hearing the Commission issued two decisions, one relating to rules governing sightseeing and charter operators, and the other, Decision No. 56824, relating to Permit B--277. We are concerned only with Decision No. 56824 (the decision).

It appears from the record that Permit B--277 was 'unrestricted' so far as intrastate transportation of passengers was concerned, except as limited by statute. C.R.S. '53, 115--11--1(8) (b). The breadth of authority of Permit B--277 was altered and amended by the decision in these words:

'The Commission further finds, determines and interprets Private Carrier Permit No. B--277 to be for the:

'Transportation of passengers by Charter or special bus from and to the City of Greeley, to and from all points in the State.'

Being unhappy with the decision, Motorway, pursuant to C.R.S. '53, 115--6--15, applied to the district court for a writ of certiorari for the purpose of having the lawfulness of the decision inquired into.

The district court, in compliance with statutory edict (115--6--15), reviewed the record as certified to it by the Commission 'to determine whether the Commission has (had) regularly pursued its authority, including a determination of whether the order or decision under review violates (violated) any right of the petitioner (Motorway) under the Constitution of the United States or of the State of Colorado, and whether the order of the Commission is (was) just and reasonable and whether its conclusions are (were) in accordance with the evidence * * *.'

The district court reversed the order of the Commission. We affirm the judgment of the district court.

We can summarize Motorway's challenge in the district court to the legality of Decision No. 56824, so far as it is deemed necessary to a disposition of the issues here for review, thusly:

The Commission failed to comply with C.R.S. '53, 115--11--18, requiring, before revocation, alteration or amendment of a private permit, a hearing after notice of alleged violations of law, rules and regulations or the terms of the permit, by virtue of which failure the Commission (1) did not regularly pursue its authority; (2) did not meet the minimum standards of due process and deprived petitioner of property without due process of law, in violation of the Constitutions of the United States and Colorado, and (3) its order was not just and reasonable.

The district court, in its findings, meticulously reviewed the entire proceedings before the Commission from the order instituting the investigation to the rendering of its decision.

An excerpt from the findings by the trial court is significant background for the rule of law which we apply in this decision. The trial court observed:

'The main part of the hearing concerned the conflicts between sight-seeing bus operators and the so-called charter bus operators. Much discussion by way of testimony appears in the record as to what is a sight-seeing operation and what is a charter operation, and there seems to be no unanimity of opinion on these questions.

'The Commission also considered complaints which the staff had received concerning the operation of Colorado Motorway, Incorporated, under Private Permit B--277. After many months of study the Commission announced two decisions, one concerning the disputes between sightseeing and charter operators and the other concerning Permit B--277 * * *.'

We would add that Louis J. Carter, Supervisor of Complaints and Investigations for the Commission, testified that he had received complaints from virtually every carrier participating in the hearing relating to violations by virtually every other carrier. In addition, in answer to questions relating to the background of the investigation, he testified that (Questions omitted for ease of continuity):

'This investigation arises because we have at the present time somewhat of a chaotic condition in the transportation (industry) under charter and sightseeing particularly, and special bus service and auto livery service are also affected.

'* * * this hearing is for the benefit of the carriers concerned. We cannot operate as we are at the present time under the condition where No one obeys any of the Commission's rules and regulations. Most of the carriers will take any transportation that is offered to them whether or not they have the proper authority * * *.' (Emphasis added.)

The trial court in its findings concluded that Decision No. 56824 of the Commission could not withstand the statutory and constitutional challenges raised by Motorway. In passing, it observed that:

'The Petitioner here, Colorado Motorway, Incorporated, was not required to attend the hearing, nor was it given any express notice that its permit would even be considered at the hearing. Each time the operation of the Petitioner under Permit B--277 was questioned or discussed at the hearing before the Commission, Petitioner's Counsel objected on the ground that the Commission had no authority to make any rules or orders respecting the activities of Petitioner under Permit No. B--277.

'* * * The holder of the permit had no notice that his permit might be changed from unrestricted to restricted. It was not charged with any transgressions regarding the use of the permit, nor was it asking a favor of the Commission by way of seeking a transfer of its permit * * *.

'The Court finds that in rendering Decision No. 56824 in Case No. 5180 the Commission exceeded its authority, abused its discretion, and acted arbitrarily and capriciously.'

The Commission, in justification of its Decision No. 56824, claims that:

'The Commission has broad constitutional and statutory authority to regulate private carriers and such includes the authority to interpret permits previously issued by it.'

And that:

'The Commission followed adequate procedural safeguards in making the interpretation involved here.'

It also contends that its 'interpretation' of Permit No. B--277 was correct and should be upheld 'unless clearly erroneous.' In our disposition of...