*1 Sup. Pennsylvania, Ct. U. S. Turner v. S. 338 U. Carolina, v. South 1443; Harris L. reached conclusions Sup. 1440.The 93 Ed. Ct. L. regarded con- should think, as I cases, in those pausing extended for trolling. view, In that The details exposition, dissent. find consistent to I opinion, emphasized in court’s much offense, nonce, judges, cause even are calculated to well justify procedure, and forget of criminal rules offending. think, I ever enormity well, It were liberty history has keep mind, that, “The procedural history observance of largely been the S. safeguards.” 318 U. States, United McNabb v. 87 Ed. 16,187. No. et Mountain States
Bennett al. Company. Telegraph 714) (215 [2d] P. February 20, 1950. Decided *2 error, Messrs. Bennett & Heinicke, for plaintiffs Messrs. Brock, Akolt & Campbell, Mr. John R. in error:'- Turnquist, defendant En Banc. Justice Jackson delivered opinion of
court. Company, on arose when the case This general put rate November effect new 12, 1947, into applicable for the telephones extensions. business and residence and to “substantially replaced been had This schedule one that prior who error, unaltered since 1909.” Plaintiffs plaintiffs court, the trial as subscribers were sought telephone Springs, an in- in Colorado service charging junction against or collect- “from ing in excess of for local rates prior 1947,” either as to to November effect “any such service.” subscribers to other themselves may sought They excess a refund of “the also plaintiffs sub- other have been collected they alleged annual basis scribers,” which excess on They asked that the $211,480. more further to be than plaintiffs action behalf of “a class suit be treated as *3 similarly telephone subscribers situated within and all' city Springs.” of Colorado complaint upon motion dismissed the trial court The company, forth and set this dismissal is of the defendant specification of error. as the sole gist plaintiffs’ coun- is that the
The contention by approved ordinance cil should the rate increase have theory by resolution, that such action and not argu-’ regulation utility attempted The an rates. was ment is Springs a “home of Colorado is 'that city” (Article Section Constitu- XX, rule Colorado regulate tion), powers and full and exclusive to has may power telephone limits; within its that this only by by an or or exercised ordinance initiative be by municipal that where a and act is referendum, stipulated organic or other law to be done charter may ordinance not be done resolution. It that act' argued ineffective. that the rate increase is therefore upon placed XII, Reliance is Colorado which reads: “All to Charter, charges by public utility for and service .fares corporations hereby people, be to reserved to the council of the exercised ordinance them initiating referring provided manner herein for Any right include shall further ordinance. adequate right require and convenient uniform, public extensions of such service and reasonable public works.” service and of such actually adopted The resolution which the reads as follows: Telephone and Tele-
“Whereas, the Mountain States graph Company has submitted to this Council a schedule charged telephone be and collected for serv- rates to corporate ice within the limits Springs, and this Council examined said rates and
“Whereas, has filing fully necessity has been informed for the as charges making of said schedule and the of such are fair, has found that said rates reasonable and equitable appears far as from the limited basis of experience upon, which said rates are based.
“Now, resolved that shall be law- Therefore, it Telephone Telegraph ful for Mountain States Company charge collect corporate within Colorado .limits Springs accordance said schedule of rates application submitted with its letter of June billing subsequent to be effective on dates November 20,
“It shall be lawful for the said Mountain States Telegraph Company gen- to enforce its regulations, tariff, eral rules and which shall control said *4 Company in administration its of the corporate City within the limits of the of Colorado Springs, regulations kept which rules and tariff, are on by with the Public file Commission of Colo- Utilities rado. period Further Resolved
“Be It that due the limited upon experience predi- which said rate schedule is uncertainty the continuance cated and the as justify at appear rate schedule said conditions which re- body present review shall time, the this propriety Decem- rate schedule the of said consider ber 14, City Colorado
“By Council of the order of sitting within Springs Utilities Public a board of Springs, 1947.” November for the of Colorado adopted pursuant prepared and resolution August passed provisions Ordinance (being of Colorado article Code II, section following 1922), words: “No Springs, in which is utility any public company corporation operating or city part within whole or charge change any sub- or rate, fare, shall. stantially affecting consent without its service city city or electors thereof.” said council of new maintains that since changed adopted November affecting substantially con did obtain service, it its resolution. council’s sent of the (a), placed upon III, Reliance is legislative the council shall act sessions reads: “At (b) Subparagraph motion.” or ordinance, resolution equal and resolutions ordinances shows the treatment of affecting recording respect measures of votes and (c), (d) money; subparagraphs expenditures (e) ordinances; section deal with the formalities of adopted publication ordinance; sec repeal. tion 15 with its amendment requires ordinance which will be noted that the It city or of the electors council of said “consent of a can make sub- thereof” to be obtained before change specify structure, the rate does stantial n how give consent; and its charter shall since “only by provides ordinance, shall that the council act motion,” it seem method that, would resolution having specified, been a consent reso- of consent hot *5 330
lution—being which the one of the three methods charter allows council to act—would suffice. the' council
Plaintiffs contend can that only by ordinance, rates and that the a new consent to regula- rate schedule filed is in effect a requires action tion by council and therefore support ordinance. The not seem authorities do this latter statement.
Mr. Chief Justice in Wichita R. & Taft, L. Co. Public 43 67 Com., Utilities U. S. dealt with section of the Kansas Public involving provision Utilities law a similar consent as appears in section of the code of Colo- II, rado him of 1922. The case before involved attempted changing which we of contract rates do not opinion have the instant but in case, the course of the he said: “It is said that the order this case was authorized section and therefore all that was changed filing needed was the of a schedule of. rates finding and the consent of the Commission, and that ho required, as sections This construc- tion of 20 is correct, section doubtless shows that filing changed of a schedule of under accomplish abrogating section cannot the result con- It tract rates. could not do more so, than would original filing of a schedule rates under section requiring every public utility publish and file with the Commission all schedules rates do this. consent Commission in section 20 is made necessary only prevent changing schedules without proper notice to Commission to secure a thus supervision of schedules. Such in- consent does not hearing finding volve a or a and a decision. not, therefore, cover,
does or measure of, the essentials proceeding in this case before the Commission which upon pleadings partes. the order shows was and inter nothing We find in State ex rel. Caster v. Kansas Postal-Telegraph 544], Kan. Pac. [150 Cable gives 20.” a different construction.to "section Springs,
Had the rate-making body, unreasonable, considered the rates *6 procedural play then would have the there come into process, refers, due to which Mr. Chief Justice Taft involving finding hearing notice and a the had been rates; reasonableness of the if the rates fixing found then a unreasonable, Any fixing such a them. procedure council after of rates by the regula the
must be But where ordinance. tory case commission—in this the council—consents utility “such revised rate schedule filed hearing finding and a consent does not involve or a In initi decision.” such a case has it is the regulated ated and In established and rates. accord foregoing syllabus paragraph with the is 2 in the Reporter publication Northwestern Cadillac Telephone v. Citizens’ 195 Mich. 161 989: 538, N.W. obligations, “In absence of franchise contract a tele phone company enjoined increasing will be from not although pro Pub. rates,, Acts- 1913, 206, §10, No. hibits increases without the Railroad Commission’s con general jurisdiction since the sent, Commission has over such rates.”
It should here be noted that even if the form plaintiffs complain, of consent, of ineffective, which promulgated by rate was still subject only subsequent regulation a valid one as to regulatory its reasonableness this commission—in In case, council. the words of Mr. Justice Eddy Corp. in Skinner & Brandeis v. United States, 557, U. S. 63 L. 777: “In con struing provision important this it to bear in mind the limits of the Commission’s control over rates. Regulate Neither the Act to Commerce nor amend ment thereof has taken the carriers the they originally possessed, rates; to initiate power, fix instance, to rates or to is, the in the first reduce them.” increase Aqueduct In Fed. Smith, Streator Co. v. privilege, “It court said: duty, utility company Commerce under the Illinois of a predecessor, Public Utilities Commission Act and its prescribe Act, to rates.”
In Com Illinois Bell Commerce Co. v. Supreme Court mission, Ill. N.E. specifically provdies that, said: “The Illinois statute hearing proposed where a is had on new if just same are found the com reasonable, not to just mission shall reasonable determine what are right rates. the first instance make rates lies utility. however, act, “An examination of section *7 is no sufficient to disclose that the commission has authority a instance, to make in the first schedule of changed, be where the rates are desired to rates, to be filed
is
with the commission
the
utility,
and it is
where the
after a
commission,
hearing,
proposed
finds
that
of
charges,
just
etc., is not
and reasonable, that it becomes
duty
of the commission
fix
to
rates.”
Coplay
Mfg.
To like effect are:
Public
Cement
Co. v.
Com.,
1214;
Service
271
114
58,
649,
Pa.
Atl.
16 A.L.R.
City
Jackson
437,
v. Consumers Power
312
Co., Mich.
of
(2d)
Catering
20
265;
N.W.
Walker Bros.
Co. Detroit
City Gas
Co.,
564,
492;
Mich.
Law
N.W.
Harvard
page
Michigan
Review,
202;
vol. 38,
Dearborn v.
of
Consolidated Gas Co., 388,
Mich.
It method that, would therefore even if the one, consent used the council was ineffective promulgated by the rate schedule still would subject regulation by be effective but at time to council—the council’s to become ef- accordance, city char- with in ordinance fective supra. ter, court why trial believe the we
A third reason complaint dismissing plaintiffs’ is was correct adequate plaintiffs have an complaint shows sought They relief remedy have first should law. at recognized this court This council. before 225, Telephone 67 Colo. procedure Co., Denver v. approval Home quoted when it with 184 Pac. Angeles, S. 155 Fed. U. & Co. v. Los Tel. Tel. Sup. fix, to 50: Ct. “The 53 L. charges a subject such limits, constitutional furnishing public business as government, legis among powers service, is continuing nature, in its character, lative municipal corporation.” capable being in a vested supra, Co., Citizens’ In Cadillac v. fixing thought: amplified “The this the court thus regulation charged by public utilities of rates to judicial legislative, governmental function. not a -or * * * jurisdiction original hear and determine question the commission been committed to of rates has ample provision by legislative for re- with enactment, courts find no occasion for the courts. We view by prematurely prescribed course to interfere assuming jurisdiction.” re- Justice Lamar thus Pennsyl- thought phrased in Mitchell Coal Co. v. this 57 Ed. 230 U. S. vania R. R. given jurisdiction been “The courts have not 1472: * * proceedings, practices If*. direct fix rates or questions dif- committed to such the decision *8 juries the results would courts with different ferent might opposite degree, vary in only often be uniformity in rate the destruction character—to object practice cardinal was statute.” approval quoted foregoing words were with
The Lehigh Valley R. R. 240 U. S. Co., Loomis v. Ed. 517. In 248 Fed. Homestead Des Moines Electric Co. v. Judge 1 wrote: “In A.L.R. Sanborn
439, 443, interested consumers, users, dividuals therein as may not maintain actions law or suits in otherwise equity against at public corporation, service ground having such are unreasonable, rates without action first secured decision or that effect public prescribe tribunal authorized to the maximum changing adjudging of the limit rates limit, or complained of unreasonable.” foreging appears From the authorities there an why complaint properly other reason dismissed, i.e., failure to make
party.
Finally, it should be noted the citizen deprived right user has been of no substantive by the trial court’s action. Whether the council con sented to this rate schedule ordinance or resolu equally responsible tion, is, either event, community citizens itsof for its act. case, This is not a usurping then, what had citizens right power question do. sole is whether the admittedly having power council, act, exercised proper it form. We believe it did. judgment accordingly affirmed. Hays Chief Justice Hilliard
Mr. Justice Mr. dissent. Hays Justice dissenting.
Section XII, the Charter of the Springs adopted provides in 1909, Colorado inter alia: charges “All fares and by public utility corporations hereby ex- pressly people, reserved to the to be exercised them *9 by herein of manner ordinance the council or in the provided referring initiating or an ordinance.”
Notwithstanding of said charter the above section provides only through can the council act adopted general ordinance, a effect resolution, it grant approve rate in- which was a crease effective November 1947. The resolution filing recited of a with Colo- incorporated effect, rado Utilities Commission and, reference, said schedule thereby resolution said approved ratified and same.
It is contended that the resolution was authorized provisions passed virtue August of ordinance No. 1064 provides: 4, 1920, which or cor- “No poration operating any public utility part in whole or change any within the shall charge regulation substantially effecting rate, fare, city its service without consent of council of city said electors thereof.” apparent It is had in mind supra, adopted when it ordinance No. because it only ways therein referred to the that rates could be changed provision, upon under said charter wit: “con- city sent of the council” or “of the electors thereof.” It quite expressed provisions evident, in view of the express charter, that the council could consent ordinance the electors of said could only express polls. their consent at the consistently provided
We have held that the method exercising legislative charter for with respect to rates is exclusive any attempt by them other method City County is void. Berman & Denver, Colo. (2d) 209 P. foregoing, As I judgment view trial court should be reversed. Chief Justice Hilliard joins in this dissent.