State Railroad Commission v. People ex rel. Denver & R.G.R. Co.

• Decision Date: 01 June 1908
• Citation: 44 Colo. 345,98 P. 7
• Parties: STATE RAILROAD COMMISSION et al. v. PEOPLE ex rel. DENVER & R. G. R. CO. et al.
• Court: Colorado Supreme Court

98 P. 7

44 Colo. 345

STATE RAILROAD COMMISSION et al. v. PEOPLE ex rel. DENVER & R. G. R. CO. et al.

Supreme Court of Colorado

June 1, 1908

In Banc. Error to District Court, City and County of Denver Greeley W. Whitford, Judge.

Quo warranto by the People, at the relation of the Denver & Rio Grande Railroad Company and others, against the State Railroad Commission, and Frederick J. Chamberlin and others members thereof, to try their title to the office. Certain other railroad companies were allowed to intervene as plaintiffs. A demurrer to the complaint and to the petition of intervention was overruled, judgment was rendered ousting the individual respondents from the office and preventing them from acting as a railroad commission, and respondents bring error. Reversed and remanded, with instructions to dismiss.

William H. Dickson, Atty. Gen., and Horace Phelps, Deputy Atty. Gen for plaintiffs in error.

E. N. Clark, K. C. Schuyler, E. E. Whitted, C. W. Waterman, Cass Herrington, Dorsey & Hodges, Rogers, Cuthbert & Ellis, and Devine & Dubbs, for defendants in error.

Chas. D. Hayt, Fred R. Wright, and H. Riddell, amici curiae.

CAMPBELL J.

The General Assembly, at its sixteenth session, adopted, and the Governor approved, an act to regulate common carriers, to create a state railroad commission, and prescribe and define its duties. A proviso to the first section excepts from the provisions of the act 'mountain railroads operating less than twenty miles of road, the principal traffic of which is the hauling of mineral from and supplies to mines.' The eleventh section creates a commission, to be known as the 'State Railroad Commission,' to which is given authority, and on which is imposed the duty, to inquire into the management of the business of all common carriers subject to the provisions of the act, and to execute and enforce the same. It has other powers not necessary here to mention, the exercise of which involves discretion and judgment, and after notice and a hearing on evidence it may make orders, which, in a certain contingency, become binding. Sess. Laws 1907, pp. 531-545, c. 208. In pursuance of the authority conferred upon the Governor by the act, he appointed as members of this commission Frederick J. Chamberlin, Bulkeley Wells, and Halsted Ritter, who proceeded to organize and in all respects to comply with the provisions of the act whereby they became, as they claim, a duly and legally constituted state railroad commission for the purpose of exercising the powers and performing the duties which the statute devolved upon it. After the commission organized, but before it had taken other action, the plaintiffs, railroad corporations organized and doing business as common carriers within this state--the district attorney upon their demand having refused to bring such an action upon his own relation--themselves, as relators, brought this action, under the provisions of chapter 27 of Mills' Annotated Code, against the railroad commission and its members, to try their title to the office which the complaint says they have usurped and are unlawfully holding, and, as relief, prayed that they be ousted from such office and enjoined from exercising the duties thereof. Before the cause was brought to an issue, certain other railroad corporations doing business as common carriers in this state filed their petition of intervention, containing averments similar to those in the complaint, and asked to be made plaintiffs in the action, and, against the objection of defendants, such permission was given by the court. They also asked for a temporary writ of injunction to restrain the commission from acting; but that feature, while it might be significant in its bearing on some question not here mooted, is not now important. The sole ground upon which the original and intervening relators rely in support of their allegation that respondents have usurped a public office is that the proviso of section 1, above quoted, renders the entire act absolutely void, in that it unjustly discriminates between common carriers, arbitrarily including some and excluding others of the same class, the plaintiffs being carriers who are included, and that thereby their rights under the state and federal Constitutions have been violated. To the original complaint respondents demurred, on the ground that relators have not the legal capacity to sue, and that the complaint does not state facts sufficient to constitute a cause of action. To the petition or complaint of intervention respondents demurred for the same and other reasons. These demurrers were overruled by the court, and, respondents electing to stand thereby, the court entered judgment upon the complaint and petition of intervention, ousting and excluding the individual respondents from the office of railroad commissioner and preventing them from acting as a railroad commission. From that judgment respondents sued out this writ of error.

From the abstract of record it does not appear that after the refusal of the district attorney to bring an action the plaintiffs asked leave of the district court, or that the court was asked or given an opportunity to grant leave to them, to institute or prosecute this action. While in the demurrer to the petition of intervention, but not to the original complaint, the question of the court's jurisdiction was raised and the right disputed of private persons, purely for the protection of their private rights, to maintain an action which primarily and properly is maintainable only by the state in its sovereign capacity and for the protection of the public interests, the Attorney General, at the oral argument on this review, stated that he conceded below and does here that plaintiffs might properly maintain this action, and that the courts have jurisdiction to grant the particular relief prayed; in other words, that private individuals or corporations, solely for the protection of their own private rights may, as relators, institute and maintain an action under chapter 27 of the Code, which, in all substantial respects, is like an information in the nature of quo warranto at common law, and have as relief a judgment which effectually prevents a state board, charged with such duties as are devolved upon the railroad commission by this act, from carrying out and enforcing the laws of the state, and that, too, in the first instance, and in advance of any action whatever by the board in any way injuriously affecting their private rights.

Under chapter 27 of the Code, the action for trying title to a public office or franchise 'is a substitute for the original common-law quo warranto remedy. It prescribes an enlarged proceeding, substantially by information in the nature of quo warranto, and furnishes the exclusive method, so far as district courts are concerned, for investigating usurpations of office.' People ex rel. v. Londoner, 13 Colo. 303, 314, 22 P. 764, 6 L.R.A. 444. Section 1 of that chapter authorizes the district attorney, in the name of the people, upon his own information, or upon the relation of a private party, to bring the action against any person who usurps any public office or franchise, and it is made the duty of the district attorney, whenever he has reason to believe that such office or franchise has been usurped, or when he is directed to do so by the Governor, and in case the district attorney refuses to bring the action on the complaint of a private party, such action may be brought by such private party upon his own relation in the name of the people. The act also provides that in a statement of the cause of action by the district attorney he may set forth in his complaint the name of the person rightly entitled to the office, and the court, in a proper case, may adjudicate his title thereto, as well as that of the incumbent. These provisions, however, which give permission to a private party to bring the action and also to have the right of one other than the incumbent adjudicated, do not turn the proceeding from one to protect the public interests into one to safeguard the purely private rights of the relator.

In the Londoner Case, supra, the relator, Barton, and Londoner respondent, were opposing candidates for mayor of Denver, and on the face of the returns Londoner was declared elected. Barton thereupon, as relator, brought an action under this chapter of the Code to try Londoner's title as well as his own to the office, asserting in his complaint that the prima facie result of the election was brought about by the commission of gross frauds upon the elective franchise. Barton was permitted to institute and maintain the action, and it is clear from the opinion that permission was granted because the public was directly interested in an investigation of the alleged frauds; the wrong done being an abuse of the elective franchise and detrimental to the general welfare. In the course of the opinion by Chief Justice Helm, which probably contains the fullest discussion upon the subject of quo warranto in our own reports, it was said, after discussing the nature of an election contest: 'Quo warranto proceedings on the contrary, deal mainly with the right of the incumbent to the office, independent of the question who shall fill it. They are brought in the name and on behalf of the people, to determine whether the incumbent has unlawfully usurped or intruded into, or is unlawfully holding, the office. They are not, primarily, in the interest of any individual, but are intended to protect the public generally against the unlawful usurpation of offices and franchises. It is true that, in the absence of a contesting statute, the common-law remedy by information is invoked by contesting claimants, though the relief obtained is...