Schlagel v. Hoelsken
| Decision Date | 13 March 1967 |
| Docket Number | No. 21790,21790 |
| Citation | 162 Colo. 142,425 P.2d 39 |
| Parties | Jake SCHLAGEL, d/b/a Aurora and East Denver Trash Disposal, Individually and as a representative of a class of persons simllarly situated et al., Plaintiffs in Error, v. Albert HOELSKEN and Leonard Amato, d/b/a Active Rubbish Service, the Public Utilities Commission of the State of Colorado, and Al Wimberly, d/b/a Al's Hauling Service, Defendants in Error. |
| Court | Colorado Supreme Court |
Jones, Meiklejohn, Kehl & Lyons, Robert P. Grueter, Denver, for plaintiffs in error.
Zarlengo, Zarlengo, Seavy & Mulligan, Denver, for defendants in error, Albert Hoelsken and Leonard Amato, d/b/a Active Rubbish Service.
Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Robert Lee Kessler, Asst. Atty. Gen., Denver, for defendant in error, Public Utilities Commission.
This matter is here on writ of error to the Denver district court, wherein is sought the reversal of a judgment declaring and decreeing that the Public Utilities Commission of the State of Colorado is without authority to regulate those engaged in the business of hauling ashes, trash and other waste material within the State of Colorado. In addition to the declaratory judgment, the court entered an injunction preventing the Public Utilities Commission from regulating or in any manner interfering with the businesses of the defendants and others similarly engaged.
Defendants in error, as plaintiffs in the trial court, had been engaged in removing various waste materials from premises in Arapahoe County when they were ordered by the Public Utilities Commission to cease and desist on the ground that they were operating unlawfully in that they had failed to obtain a certificate of public convenience and necessity from the Public Utilities Commission, pursuant to C.R.S.1963, 115--9--1 et seq. They then applied to the Commission for a certificate, but their application was denied on the ground that public convenience and necessity did not warrant the issuing of additional certificates in the county, which was already served by other certified carriers, such as Jake Schlagel, d/b/a Aurora and East Denver Trash Disposal, one of the plaintiffs in error and a named defendant in the trial court.
The decisive question for our determination on this writ of error is:
Was the trial court correct in determining that those engaged in the business of hauling ashes, trash and other waste material are not a 'motor vehicle carrier' as defined in C.R.S.1963, 115--9--1(4)(a) and therefore are not a public utility as defined in C.R.S.1963, 115--9--2 and 3?
We answer this question in the negative.
We hold that the trial court was in error and that the businesses affected by the trial court's ruling are a public utility and subject to regulation by the commission within the purview of the statute.
Section (4)(a), supra, defines a motor vehicle carrier as:
'* * * every corporation, person, firm, association of persons, lessee, trustee, receiver or trustee appointed by any court whatsoever, owning, controlling, operating or managing any motor vehicle used in serving the public in the business of the transportation of persons or property for compensation as a common carrier over any public highway between fixed points or over established routes, or otherwise, whether such business or transportation is engaged in or transacted by contract, or otherwise.'
The trial court held, inter alia, that ashes, trash, rubbish and similar materials being transported by the persons here involved do not constitute property within the meaning of the above statute. The court then reasoned that because the various trash haulers are not engaged in either the transportation of persons or property they are not within the act. With this construction of the trial court we do not agree.
Although it is not an easy matter to define the word 'property,' when one examines the various decisions from other jurisdictions, we nevertheless hold that the word as applied to the act here in Colorado was intended to and does embrace the transportation for hire of matter and things which the parties herein remove from various households and establishments and haul to nearby dumps. In Masgai v. Public Service Commission of Pennsylvania, 124 Pa.Super. 370, 188 A. 599, the court there clearly stated:
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Hewlett-Packard Co. v. State, Dept. of Revenue
... ... King v. Bergland, 517 F.Supp. 1363 (D.Colo.1981); see Schlagel v. Hoelsken, 162 Colo. 142, 425 P.2d 39, cert. denied, 389 U.S. 827, 88 S.Ct. 81, 19 L.Ed.2d 83 (1967); Bowman v. Eldher, 149 Colo. 551, 369 P.2d ... ...
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Gen. Motors v. CITY & CTY. OF DENVER
... ... 1984) (noting that this court gives deference to the construction of a statute by administrative officials charged with its enforcement); Schlagel v. Hoelsken, 162 Colo. 142, 147, 425 P.2d 39, 42 (1967) ("[I]n interpreting [a] statute we must look to the long-continuing contemporaneous ... ...
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Young v. Village of Glen Ellyn
... ... City of Witchita Falls v. Kemp Hotel Operating Co. (Tex.Civ.App.1942), 162 S.W.2d 150; see also Schlagel v. Hoelsken (1967), 162 Colo. 142, 425 P.2d 39, 41; County of Bergen v. Department of Public Utilities (1971), 117 N.J.Super. 304, 284 A.2d 543; ... ...
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National Serv-All, Inc. v. Indiana Dept. of State Revenue
... ... It has therefore been cited frequently on the question of whether garbage is property. See Schlagel v. Hoelsken (1967), 162 Colo. 142, 425 P.2d 39, cert. denied, 389 U.S. 827, 88 S.Ct. 81, 19 L.Ed.2d 83; Northern Hills Sanitation, Inc., 264 N.W.2d ... ...