*1 arriving jury at its verdict, did not influence the prejudicial plaintiff. was not unduly lengthen opinion discuss other It would points urged error and remarks of trial court in standing presence jury, any alone, which, one of judgment, would not be sufficient to reverse the it will say, plaintiff could have been beneficial to suffice to if not prejudicial. judgment stated,

For the herein reasons reversed in accordance with and case remanded for trial the views expressed. herein and Mr. Jus- Mr. Mr. Justice Jackson, Justice Stone dissent.

tice Alter 16,197. No.

Berman v. et al. (209 754) [2d] P. Rehearing August 29, Decided June 1949. denied 1949. *2 Mr. Norman E. pro se, Mrs. M. Edison, O. Berman, n for plaintiff error. Mr. Thomas H. Gibson of counsel. Hughes Mr.

Messrs. Mr. & Allan Dorsey, Phipps, R. Mr. Thomas for defendant D. B. Keely, Robertson, error Tramway Denver Corporation. J.

Mr. Mr. Malcolm Donaldson, Lindsey, Glenn County defendant error of Denver. En Banc. Hays

Mr. Justice delivered the of the court. opinion an a action Norman E. Berman as This brought by of Denver County resident of taxpayer and as patron Tramway Corporation, on himself and others Delaware behalf of corporation, similarly against City situated, Tramway and The Denver Cor- municipal corporation, de- ordinance No. series poration, have *3 and enforcement effect, clared be void and of no of enjoined. same far ordinance and in so as entitled, pertinent,

Said as provides follows: Tram-

“A bill for an Denver concerning ordinance Denver Cor- Tramway to the way Corporation; granting its and for the assigns, authority successors poration, herein; on of rail lines streets described elimination licenses or for the permits operation revocable granting herein; certain described of buses and streets along authority trolley coaches motor granting operate herein; on described in of rail lines streets buses lieu and and for certain providing operating fares adjusting matters. regulatory County the Council of the and City

"Be it Enacted Denver: of now Tramway Corporation The Denver

"Whereas, system maintains and transit operates composed and coach under trolley operating rail lines lines, of part 1885 and of Ordinance No. Ordinance and virtue composed part gasoline No. 36 of 1888 and lines of operating permits, along buses under revocable and over, upon ways alleys, bridges, public streets, certain viaducts, places City Denver; in the growth City Denver,

“Whereas, due necessity the convenience and the comfort City require inhabitants of of Denver that certain portions system changed of the transit and modern- comply changed ized to and to conditions, public safety secure the and convenience of inhabi- City tants Denver; (cid:127) Tramway Corporation “Whereas, has presented City heretofore certain ordi- Council respect improve- nances with modernization and system, Company ment of and the are completing system desirous the modernization said early by converting possible at as a date the remain- ing trolley gasoline operation; rail lines coach or bus and, program

“Whereas, it is estimated outlined require money expenditure will an excess of six ($6,500,000.00), and one-half million dollars and in order company may capital necessary to that the attract complete program expenses, and meet increased additional revenue a substantial amount is needed immediately; and,

“Whereas, order that more flexible and workable arrangement may respect be had with future rela- Company, tions between the is the stated intention desire of both:

“(1) improvements That additions, extensions and (other specifically forth) than those hereinafter set *4 mutually agreed various of service will standards be upon provide adequate time in order from time to people Denver; and convenient service “(2) promptly possible City That as and the attempting Company co-operate agree upon will legal just, proper properties and valuation of the just that a in order Tramway Corporation, The Denver through opera- realized may and be return proper and Company; tions of the insure more flexible in order

“(3) That Com- and the City between relationship workable of the serv- be made investigation will thorough pany, en- in an or similar plan, some at cost principle, ice the mutual some such plan to agree deavor Denver, and City, of the advantage Company. in considera- for and regard full

“Now, Therefore, with out, hereinabove set and things the matters tion of convenience, serving the intent purposes inhabitants of the of the safety necessity Denver: County of Enacted the Council Further

“Be Denver: County of shall Corporation Tramway The Denver “Section 1. fair and reasonable. shall be or fares which rates charge Ordinance, Company date of this effective After the on its city charges rates or not into effect shall put excess bus, or trolley or motor bus either rail lines, following: years over twelve (12) children Adults, “(a) in subsec- defined than school-children (other age, cents; (10) Ten hereof): (b) tion (19) years under nineteen School-children “(b) school holding and from school going when age, cents; (5) Five cards: and un- age over, (6) years six Children

“(c) cents; (5) Five age: years (12) der twelve ac- age, when (6) years under six Children “(d) Free. passenger: aby paying companied or shall constitute imply contained herein “Nothing aforesaid Tramway the rates admission an non-confiscatory, regardless but compensatory are matters, to these respect be may situation what Tramway shall fixed charges rates *5 223 in maximum herein excess established. These any may rates others that hereafter be established Tramway City, subject or the shall at all be times regulation provided by law. Tramway Corporation 2. The “Section is hereby operate trolley authorized to coaches or track- trolleys 51, less as heretofore defined in Ordinance No. changes equipment 1945, Series of as to make such may required along, be in connection over, therewith upon following alleys, bridges, streets, viaducts, public ways places in the of Den- operation ver lieu of street cars with rails said as herein lines described: description following [Detailed deleted.] routes

“ (a) University Route 8, Park. “(b) Route Larimer 61, Street.

“(c) 64, Route East 34th Avenue.

“(d) Englewood. 3, Route

“(e) Route Colfax. 14,

“(f) Washington Route 5, Park. Tramway Corporation “Section 3. The Denver hereby City hereby authorized discontinue and the consents to the discontinuance of electric car street operation on the streets hereinafter in this section set out. description following

[Detailed deleted.] routes “(a) Route “(b) Route Bamum. 75, Cherokee.

“(c) [Following Route 61, Larimer. de- detailed scription paragraph, (except find]: we that this may changed trolley provided route coach ás above.) Tramway Corporation, 4. The Denver with the “Section provisions accordance of Ordinance 2 of No. hereby granted 1930 and Ordinance a rev- permit following ocable license or for each of the bus operations. operation Each shall be considered in- dependent of the other and the to revoke said the operations more of license as to one or

permit of this sec- herein described under subdivisions separate reserved. tion at expressly time *6 routes following deleted.] description [Detailed “(a) Route Barnum. 75, Cherokee.

“(b) 72, Route de- the detailed [Following Larimer. “(c) 61, Route this (Except that in this we scription paragraph, find]: coach provided may changed trolley route be 2 above.) Boulevard. “(d) Federal “ Bus. Logan (e) Rerouting Fort “ Bus. of Alameda Rerouting (f) Bus. 19th Avenue “(g) “ bus line. 6th Avenue (h) Extension of between agreed “Section 5. is understood City, and the that Denver Tramway Corporation im- 3 4, constitute sections, 2, numbers above Company program modernization mediate commenced; that immediately shall be program additions, changes of each of completion dates for as follows: herein listed will be new operations 1948 .............................................. extension “6th Avenue 1948 ........................................................ “19th bus Avenue 1948 rerouting........................................ “Fort bus Logan 1948 bus.............................................. Boulevard “Federal 1949 Alameda bus ....... “Rerouting 1949 72 line to motor bus.................. Route “Change of 75 bus .. 1949 line, Barnum Route motor “Change line 8 Park University of Route “Conversion 1949 .......................................................... coach Trolley Larimer 61, to Trolley of Route “Conversion .............................................. 1950 bus motor Coach or 34th line to 64, Ave. Route East “Conversion 1950 coach.................................. trolley to trol- 3, of Route line Englewood “Conversion ........ coach ley coach 1951 trolley Colfax to Route

“Conversion Washington “Conversion of Route Park line trolley coach............................................................ company changes complete

“The shall the additions, operations respective and new herein set dates provided, extended; however, out such dates as any beyond company, be- if cause the control of the impossible company comple- comes make for the completion, tion within the time herein fixed for such (or person then the Director Utilities performing performed by then Utili- the duties now Director) ties if he exists, finds cause shall any completion provided, extend approval herein- date Mayor, period for a of not to exceed longer application twelve period if months; for a but application then such must made to the Council and acted ordinance. hereby

“Section 6. The Utilities Director is directed *7 study adequate to to a make of of standards service and report Mayor suggested to the Council the and his to possible standards at the earliest moment. hereby 7.

“Section The Utilities Director is directed study plan report make the of cost of service and to Mayor the Council and to the thereon. hereby “Section 8. The Utilities Director directed appraisal prop- to order an made of the value Tramway Corporation erties of The Denver and to se- approval Agency lect, with the Council, make such valuation and to issue instructions to Agency type appraisal. as to the method and of 6 of

“Section 9. Section Ordinance No. 2, Series of hereby repealed. 1930,

“Section 10. In view of the fact that certain of the provisions are this ordinance contractual in their na- Tramway Corporation Denver ture, The shall with file County City accept- and Clerk of of Denver its provisions ance of the contractual contained in this ordi- (10) days nance within ten after the effective date of this ordinance. of, extensions 11. anticipated

“Section and construction of new coach routes in, trolley changes time agreed upon by City from time to be will in order to better serve the inhabitants Company City agreed ques- and it is understood when- extensions, changes construction, tion of such be of the qualified ever submitted to vote necessary, at a franchise election. legal electors taxpaying anything Neither nor “Section 12. this ordinance or contained shall construed or deemed held therein be for the of either auto grant operation franchise far as concerns coaches, or rail lines. So buses, trolley shall be of this buses, operation auto their pursuance under rev- as hereinabove ordinance, provided, cqn- far otherwise. So only permits ocable coaches, neither this ordi- trolley cerns rail lines nance nor nor the anything contained, passage, therein deemed or held thereof, or shall be approval acceptance it waiver nor shall of, nor shall constitute a be, or other- any prejudice, manner or to extent any impair or any affect claims or contentions or either wise of Denver County either thereof, part or of suc- Tramway Corporation, or of either them respect or or assigns them, cessors any existence, scope duration and/or them claimed or either them rights respect maintenance construction, operation and/or trolley coach lines such rail lines any and/or of*the public streets other places successor thereof. *8 Council, “Section In the ordi- opinion 13. and nance is the immediate necessary protection health, convenience, safety preservation public that purpose, and and it is enacted for general welfare, immediately effect after and shall be full force and publication.” and final passage Defendants’ motions dismiss complaint upon against ground the same failed to state a claim that upon them, or either of which relief could be them, granted, judgment were sustained and the dismissal which us for review on of error. followed, is before writ plaintiff upon

The errors which relies for reversal of judgment are in substance: That the trial court holding ruling City erred in and that the council of and County authority pass jurisdiction of Denver and had holding particular, ordinance; above and, legislative power regulate the council had the charges corporations operat- public utility for service ing City County within and of Denver. plaintiff plain-

We shall hereafter refer in error as City County City; tiff; Tramway Corporation and of Denver as The Denver Tramway; council City County as council. by plaintiff people City It is contended County power grant of Denver have exclusive public utility corporations regulate franchises to and to charges power for service, and that no such is vested muncipality City County in the known as of Denver legislative department, inor its council. On the other City Tramway hand, defendants contend authority pass council full had said ordi- regulate nance and to such rates.

Prior to December when XX date Article pursuant County the Constitution, proclama- Denver exists, became effective governor, tion of the then to license and utility corporations their rates was vested legislative state city. charters the council of said p. p. p. 95; L. ’66, 264; S. S. L. ’74, ’83, S. 60; ’85, L. S. L. p. p. p. 82; ’89, 127; S. L. S. and L. 131. ’93, provides 4 XX

Section article of the Constitution, inter alia:

“The of Denver are hereby they always vested with and shall have the

228 revising altering, making, or power in the

exclusive * * amending charter *. their of alley public relating any hr street, franchise “No except granted county city place be of the said shall taxpaying qualified electors, of the the vote being granted question shall be submitted of its expense upon deposit of the treasurer such vote with the treasurer) by (to submission of such determined said * *”* applicant for said franchise. provides, citizens of inter alia: “The 5 Section County exclusive shall have the adopt power charter, new to amend their charter or * * (Em- provided adopt herein measure as or to phasis supplied) 5, article, amended November 6

Section of said city people part: provides each or town “The 1912, having population in- thousand of two: state, of this preceding census determined the last habitants as authority State States, United taken under city hereby with, are vested town, or said or Colorado, always they amend, add have, make, to city shall replace or town, charter of said to or organic to all its local and extend shall be its law municipal matters.” adopted After article XX was prior adoption 1902, State Colorado people’s October, 1904, 87, council, charter in the first granting passed No. to Colorado ordinance 1903, occupy Company certain Eastern Railroad alleys City either streets validity permit grant as a license. mere questioned in Ward v. Colorado ordinance said App. Pac. Colo. Railroad Eastern Co., Appeals determined after the Court wherein article XX, date of said effective from was transferred taxpaying their rates utilities qualified electors the new council municipality; pertinent provisions that the XX of article self-executing; adoption were that the of a charter was required give effect and in connection thereto; *10 therewith said: prime purpose

“The of the constitutional amendment upon city was to bestow the inhabitants of the of Den- surrounding territory, very greatly ver, certain object increased measure of home rule, and the provision give now under consideration was to the tax- paying territory aforesaid electors of the absolute control granting over the franchises. must be clear that the legislature framing submitting in amendment, the people adopting purposes and the in had it, these in mind. it Therefore, cannot be assumed either the that legislature people deliberately incorporated or the in or provisions omitted from the amendment calculated to powerfully against greatly delay work adoption the provided, for charter which the amendment important purposes. which was one of its “ hesitancy ‘We reach the conclusion, without mis giving, immediately upon taking that the of art. effect grant XX, ques the franchises like the one in thereby tion from transferred the council to qualified tax-paying the electors of the new munici pality. it Hence follows the ordinance of 1903 was ‘upon authority null and void, we hold that in ordinance the case at bar was void, conferred no authority upon whatever defendant, cannot be give protection.’ Ry. invoked to &D. S. Co. v. ” City Ry. 2 Colo. 683.’ Co., opinion by in The the above case was affirmed us in Colorado Eastern R.R. Co. v. 59 Ward, Colo. 151 589, Pac. 1196. dealing subject In case, later the same mat- “* * * purpose said:

ter, we of the article towas beyond enlarge powers usually granted by those Legislature, upon people and to bestow munic-

230 Legislature possessed

ipaility ‘every Hallett, Denver v. for Denver.’ a charter making subsequently, And, 34 83 1066. 393, 397, Pac. Colo. 156, Pac. Londoner v. 15, 22, 23, Colo. de further Denver-Hallett we case, referring the powers decision we determined ‘By clared: XX the Constitu of article enumerated con powers a limitation tion do not constitute article moreover, municipality; and, ferred upon and County (of City people conferred Denver) every Legislature power possessed ” a charter Denver.’ making Co., & Telegraph Denver v. Mountain States Telephone 225, (Emphasis 67 Colo. 184 Pac. 604. supplied) vested in the authority

Pursuant XX, article of Denver said and County March adopted there was shown, hereinabove *11 for such purpose, a election called at special section 268 (sec which charter, included first people’s “All provides: tion 280 of 1927 Compilation), for service charges by public power regulate to to the people, reserved is hereby utility corporations, in the manner herein provided be exercised them by Den supplied) (Emphasis an ordinance.” initiating 141, Code, p. ver Municipal §280. gives rise section given

The construction con- in herein. controversy the principal point a that under by plaintiff proper interpretation tended in exclusive rates section, power County in the "of is vested people defendants contend that while concurrent with the people council has its through regulation. in to such respect defendants’ contention it is argued

In support “all in power,” much words as used said vigor “all power” very not mean but a section does “is having many meanings,” “doubtlessly elastic word “was ‘complete’ doubtlessly ‘full’ power” means warning public in inserted section 280 aas utilities seeking says public franchises. It to such utilities that analysis, in the last retain the to fix rates.” quotations taken the brief of were from above city attorney, argument approved such has been but emphasized Tramway by counsel for in brief. their prepared place un-

We are not strained given usual “all” as the word construction by appears to it We word “all” defendants. find approximately approxi- in the times charter mately 33 times in and in each instance XX, is article (except meaning specially qualified where its 209), in so far as we determine, are able to given very meaning, comprehensive word was popular ordinary used and included sense, everything nothing. and excluded The contention of counsel for defendants to the effect that the word “all” merely “all,” used section 280 mean does not but part, regulate charges by for service public utility corporations, manifestly by weakened they the fact that also contend “all” as that the word Speer used section 18 of the Amendment hereinafter (section charter), set forth 209 of the 1927 means “all” though phrase legislative powers” even “all lim- “possessed,” phrase ited “except the word therein provided by as otherwise this amendment.” escape We think there is no from the conclusion reached the late Mr. Justice Denison in his con- curring opinion City Denver v. Moun- *12 Telephone Telegraph supra, tain States & Co., when he agree proposition “I said: cannot with the that power expressly granted by rates is not language. express grant power express An of all is an grant every power, and the ratification of Charter express grant.” (Emphasis supplied) 280 Sec. is an power” conclusion above that “all means “ex- power” “every power,” clusive is fortified 232 was charter, provision the 1904 in

further fact -to ac- city itself thereof, for made in chapter IX utilities. public and operate quire, maintain, improve, authorized expressly 293 (formerly 263) Section be rendered service to “to for council fix rates ** failure *.” The way utility, each work public language use similar any the charter convention utilities owned privately respect section was seems under franchises conclusive operating grant framers the intention charter charges regulating relative council utility companies. by private service 280 is con if section is contended that next “the Speer event above, as then strued grant an 280 as exclusive section amendment repealed amendment passage and after power, of 1916, This contention became concurrent.” is an whether or not there as to presents question 18 of the Speer conflict between section irreconcilable the 1927 Compilation), (section Amendment original part was as adopted section Amendment Section 18 of charter 1904. Speer the 1904 charter, pro section originally was conferred “All legislative powers vided alia: inter county except the constitution in a exclusively be vested shall provided, otherwise and a board supervisors board council, consisting * * *” aldermen. form of Later-, government a commission adopted 14, 1913, amended February and the above section possessed by “All powers read: legislative vested in as otherwise shall be provided, County, except designated hereinafter commissioners, a council five finance, commissioner of commissioner of property, safety, improvements, commissioner of commissioner * *”* welfare. (Emphasis of social and commissioner supplied) 4 was amended again May 17,

Said *13 Amendment, the so-called which created the Speer therein, form of and was mayor government, designated indicated, thereof, above now section in amended, legislative and as reads “All part: powers possessed Denver, County conferred XX of by article the Constitution of the state in the Colorado, contained charter of the existing by otherwise operation «s otherwise law, except provided by amendment, shall be vested in a board of councilmen to consist nine members.” (Emphasis supplied)

It will be observed that both the 1913 and 1916 the word amendments “possessed” follows the phrase “all legislative powers” thereby plainly indicating legislative some powers were not “possessed” council. This interpretation section 209 is in harmony with our construction of section 280 to the effect legislative power rates of cor- utility porations is one of those powers council does not possess. So construed, no repugnancy exists between the sections, both are given effect, no consequently, part of section 280 is im- repealed by plication or otherwise.

The next argument advanced by the Tramway that: under “Moreover, section 281 of the charter, grant temporary permits is expressly recog nized. is submitted, for that section to be ef fective by necessary implication temporary rights relation to temporary permits must authorized. so argues brief and we concur, and we think

this court must also come same conclusion.”

Section 281 to which the above contention relates, pro- vides: “The council may grant a license or at permit in or any time, to any street, alley public place, pro- vided, such license or permit shall be revocable at time, and such right to revoke shall be expressly re- served in every license or permit which may be granted hereunder.” forth made that above set

A contention similar the, R.R. Co., supra, Colorado Eastern Ward v. held: such contention, contrary of Appeals, Court *14 that the ordi- “It on behalf of defendant contended a nevertheless franchise, if as 1903, even void nance license which remained a valid permit constitutes the until against city, and as good as against plaintiff, that authority attempted the by the same was revoked law Under the the city. the grant, namely, to make art. this contention adoption XX, existing prior under sound, council, having the may is, have been a de- grant, the the to make previous law, authority might grant operate to a franchise attempt by fective it to a the law with reference as license But permit. so and funda- radically of this character was grants to the constitutional amendment as altered mentally on point inapplicable. make decisions this prior a fran- being wholly authority grant to council, without abortive so do conferred no 1903, attempt chise in its to & S. the defendant D. right company. whatever upon Ry. Co., supra. Especially v. is this Ry. Co. confer grant designed was attempted true where to main a on the to construct line of its right company city, the streets council with- being road over character, to make of this we are grants out under the facts disclosed record called upon, its and au- to consider determine case, or limited for local incidental grant permits thority case McPhee involved such as privileges Ry. P. 158 McGinnity Co., & v. U. 6, our Fed. which directed.” attention has been 281, was before mentioned, above us for inter-

Section Baker Denver Tramway v. construction pretation 845, which concerned the Co., 233, Colo. Pac. ordinance No. series validity purporting Tramway operate its cars to authorize street a not mentioned in Street, street fran- Downing 1906. Notwithstanding fact that the May 15, chise of was under it then operating franchise which provisions to the initiative adopted pursuant charter and upon by voted the Tramway insisted, here, had under city authority, provisions council section 281 of the and extend its charter, enlarge a franchise the issuance of privilege by temporary per- for said street mit revocable license operation above In cars, upon the named street. rejecting we argument, said:

“The right given by lay this ordinance was a track in a street a line, of the main part right in'no incident the original sense franchise. If it be franchise, cannot be taken out of the constitutional inhibition it a calling license. That use the streets of railroads street franchise *15 is a matter not open dispute. If, by of this permit city the kind,' grant council can to run the cars on a street as of the main part line, it can in effect enlarge franchise, the and wholly defeat the purpose the who placed the restrictions as to franchises in the Constitution. v v

# “We are of the opinion city the had no council authority grant to the defendant company the rights which the ordinance purports to give. uphold To such an ordinance approve is to a palpable attempt to evade of article XX of provision the state Constitution, which reads as follows: “ ‘No franchise relating any street, alley or public said place city county the be granted shall except the vote of the qualified taxpaying electors.’ the provision “If charter for revocable au- permits thorizes the council grant permits, which are in effect such franchises, provisions are invalid as in contraven- tion the Constitution. Just what permits may cover, we are now called upon not to determine.” contended next the by Tramway, in which the by interpretation “Practical

the that: City joins, judicial take may court which city past, any legal question eliminates notice, charges.” fares council to “In many that: heading above It is under urged council city twenty-five years in the past instances by utilities ordi- by public the charges' regulated has electors. by taxpaying initiated action nance without were fixed of the Telephone Company The rates present No. action ordinance by initiated without by Council The 1930 ordinance 1947. September, 140, passed Tramway, expressly repealed for the the fares fixing ihe passed by questioned, here ordinance action.” council without initiated city city passage is called Attention also ordinances without initiated of certain taxicab council action. exist, said to but circumstances,

From the above Tramway, defendant reaches record, found “The concurs: following conclusion, were ago adopted some ordinances many years fact that twenty years initiated and that the last action, after initiated have been without adopted all such ordinances have authorities action, merely indicates provisions charter permitting interpreted both of such ordinances the council enactment the initiative.” through and conclusive answer above argu- obvious

ment is that the people the exclusive grant, is vested fran- in whom *16 rates, and are not bound abortive chises “ council to do so. con- of attempts ‘Contemporary text; never can abrogate can it never struction sense; can its obvious it never away narrow down fritter can never limitations; enlarge its true it natural its 7.” People ex rel. Story Const., on sec. boundaries.’ May, People v. ex 80, 641; 9 10 Pac. Seeley rel. Colo. 129; 55 134 Prevost, Koenig, 199, 209, Colo. v. Pac.

237 Consumptives’ County So- Treasurer v. Jewish Relief (2d) People ciety, ex rel. v. 325; 55 253, 255, 98 Colo. P. (2d) Mont- 894; 505, 507, 98 Colo. P. Hinderlider, City County gomery 427, 102 Colo. v. of (2d) 434. 436, P. A further answer to such contention Novem- of article XX the Constitution was amended inter alia: 1912, declared, ber and as amended was 5, grant and con- “It is the intention of article this to municipalities coming people firm to the all within self-government provisions full both its municipal and the enumeration herein local matters deny powers shall construed such of certain not be people any right towns, and to the thereof, cities proper power full exercise of essential right. provisions County “All of the charters of the * * * as certified and filed heretofore * * * provisions Secretary of are State which not in * * * hereby article, ratified, conflict with are af- p. and validated as their date.” S. L. 671. ’13, firmed (Italics supplied) provisions original charter

One by the above affirmed “ratified, which amendment validated” which ex was section reserved the regulate utility clusive rates general of Denver. Thereafter the assembly adopted an act known “Public Utilities p. provided among Law,” L. S. other ’13, things: authority hereby “Section 14. The Public Utilities Commission vested State hereby duty adopt and it is made Colorado, all charges, regulations govern necessary rates, charges every regulate utility public and tariffs of rates, all * * *” State as herein defined. of this public passage said After the utilities law con- agency jurisdiction troversy had as to what arose *17 Denver. County rates in the regulate utility City Public Com- It on behalf of the Utilities was contended Tele- Mountain States Telephone mission and the such jurisdic- the commission had graph Company that itself and on for tion, City County City citizens, people behalf of its contended that the con- of Denver alone had such County power. de- reached and the was troversy court, question County 14, 1919, cided January Co., supra, Mountain States & Telephone Telegraph v. by adverse to the contentions here made defendants. XX there held in by was substance: That article every power legis- theretofore the state possessed lature in be- of a charter for Denver was making said stowed of the that people municipality; article created a new utilities agency regulating operating within the city; power must be exercised and in manner “only extent n and form prescribed”; Denver were vested with exclusive power make, or amend alter, revise, charter, exercise of which power adopted section charter; their right to do affirmed ratified, so validated the adoption of home amend- rule 1912; ment and that section 280 of the charter “was in substantial'effect written into the constitution.”

The following excerpts from the in the above opinion case, are especially pertinent to the present inquiry.

“The of the granting right by public service use the streets of the corporation municipality or the the General granting by Assembly to such a cor- poration highways state, use of the the exertion of the proprietary power sovereign. The regulation, however, of the business of such public service whether corporation, performed Legis- lature an exertion municipality, of the govern- sovereign. Indeed, mental the govern- of a regulation mental whatever business, character, always police power, there- and, the exertion of the making. no In law of this fore, exercise *18 right may agent ac- be can exhaust it no vested governmental quired power is Such inherent therein. sovereign may in the be withdrawn exerted, caprice according 'judgment, the whim or re-exerted to ever-existing, sovereign. in- The of the inherent power sovereign, the wit, alienable resides in the to regulate people of business of Colorado, whole to the utility operating every public within the limitations changed state con- remake, and to make and to may require, maximum schedule of rates ditions utility.” charged for the rendered such service

[*] H= ^[*] were the law Constitution “However, otherwise, the expressly people municipality has authorized the of the regulate charges by public to operating for service utilities adoption Prior

therein. in 1912 of the XX amendment to Constitution, article County attempted, least, of Denver had exer- at regulating public utilities. Section cise supra, 280, of its charter had been enacted and such charter with that section therein was on file the office Secretary of State. The constitutional amend- expressly approved, ment affirmed and vali- ‘ratified, every provision such dated’ charter and each and there- of ‘not in conflict with’ Article XX. It further declared pursuant charter and the ordinances made municipal supersede in local thereto matters shall municipality, any within territorial limits of the law provision of the state in conflict therewith. This meaning charter section 280 was in substantial effect (Emphasis supplied) written into the Constitution.” Telephone, supra, case, The Denver v. etc. Co., was Supreme taken to the Court the United on States of error and writ dismissed in Mountain court Telephone Telegraph States Co. v. 251 Denver, U. S. Sup. disposition 545, 40 Ct. 64 Such Ed., L. 407. 219, in Home the decision court harmony Los Angeles, 211 U. S. Ct. Co. v. Sup. Telephone our decision the tele- 53 L. Ed., 176, upon based. largely case was phone other than the any agency people contention that initiative, through Denver, grant rates or franchises regulate has authority been since the legally has never supportable case, supra, in the telephone rendition 'of the opinion con- contemporaneous changed by not time council have from time may struction which the of the charter. applicable provisions placed upon only charter reserves Section but rates, of Denver which such regulation exact method prescribes shall be wit: “In manner herein accomplished, *19 an ordinance.” The section initiating provided the is section which 273, which above relates provides ordinance Any “Section 22. part: proposed may.be council by submitted to the therefor of petition qualified cent, in number to at five equal per electors least of ]fche vote for and such preceding mayor, proposed last ordi council, nance shall without alteration passed by be the * * * or refer such the council shall ordinance proposed at the next electors election qualified municipal held not less than after such sixty days is filed petition ^[*] ^[*] ^[*] »

The above method of exercising legislative the of regulate charges exclusive; utility companies is any attempt regulate same by any other method is ultra “ '* * * void; and vires, where the mode which their on can given subject be exercised prescribed by their mode charter, the be followed. must The mode in such cases constitutes the measure of ” Keese v. City Denver, 10 power.’ 112, Colo. 15 122, 825; Durango Pennington, v. 8 Pac. 7 257, 14; Colo. Pac. City Leadville, Sullivan v. 11 736; Colo. 18 483, Pac. v. Pueblo, Cordilla 34 Colo. 293, 294, 82 Weaver 594; Pac.

241 App. 953; 245, 70 Pac. 18 Colo. Co., 242, v. Canon Sewer App. 365, 20 Colo. Town et Gillett, al., Sauer v. 61; 84 So. 290, 79 Fla. 1068; Burr, State ex rel. v. Pac. City etc. Fed. Co., Scott Eads Ft. v. C. A. 437. C. prescribed ex- method be followed as it

The “must by implication law a material all others cludes departure compliance.” not a colorable therefrom (Tex. (2d) App.), 213 Willman v. Corsicana Civ. S.W. 155. long objects purposes in- aims, stated counsel here considered, ordinance

volved for Tramway in their brief and not denied City, is: passage of the was advisable

“That ordinance agree Tramway respect and the enable to n upon particularly nature to future relations, improvements time; be from made time to upon legal proper just, valuation of the Tram- just way’s properties proper that a return order operations; may upon on realized a more working arrangement between and the flexible agree Tramway in mutual endeavor to some plan fixing operate advantage would rate Tramway. city, people findings

“Upon provisions council, these relating change fare ordinance were operation by adopted. trolley Certain routes reroutes trolleys opera- trackless coaches and lieu of upon; by rail determined were license tions *20 rerouting operation granted for the motor busses agreed lines; all of these other were over to con- * * program (Emphasis modernization stitute the supplied) provision here considered ordinance makes for Tramway acceptance written file its of all con- provisions days in the ordinance within

tractual ten It is assumed that thereof. (cid:127)from date was done time and manner indicated specified. within the not are considered con- are, parts not, and what parts what as to an tractual their nature so require acceptance make binding. thereof to them respect franchises, With granting regu- lation of extension rates, enlargement franchise under privileges cited, authorities above such enumerated can powers only exercised through the initiative a upon vote of the qualified taxpaying electors as charter and cannot be provided, made subject Tramway. contract between the Such fixing” “to some of rate attempts agree plan cannot be permitted supercede, cast aside abrogate, of the mandatory provisions organic City. law Nothing the record or the briefs to appearing our justify departure former decisions, from we con clude the adopted ordinance here considered con an attempt grant, stitutes extend and fran enlarge chise and to privileges charges service Tramway, public utility operating corporation, within contrary and in to, article XX of, violation as amended, Constitution charter adopted pursuant thereto, and of effect. same is void no no

We find merit other questions advanced. The judgment the trial court is reversed. Further pro- if any, shall be ceedings, harmony the views herein expressed. Moore

Mr. Justice Justice Mr. Holland dissent. Justice Jackson and Mr. Mr. Justice Stone do not participate. Holland

Mr. Justice dissenting. I am accord with the majority opinion herein contrary which is to my and the judgment, gravity of *21 indulge expression impels an to involved me the matter disagreement. ma- my in the the court It studied conclusion that is jority opinion is, involved holds that the ordinance only granted ex- such can a effect, cept upon franchise qualified taxpaying electors’; and vote opinion 280 of further holds that City the charter of the charges regulate power for

have exclusive offending provision ordinance. made in the is I how the and fail to understand is not a franchise mean ex- can be construed to section of the charter power. clusive containing reading charter,

From article 18 inclusive, deal- numbered from 277 to five sections ing unmistakable the framers it is franchises, necessary were mindful of restrictions of the charter placing prohibitions, certain and did not overlook meaning prohibitions words, restrictions They ready judicial interpretation. no say were which need granted shall be did, franchises, etc., that no to, except taxpaying qualified the vote of electors. saying They equally positive in were that franchises twenty years, granted limited and could have shall be regulate they power intended, if so said, charges by public utility corporations service ex- clusively people. they to the do, reserved This did not exclusively did fix or but reserve—not —the change under council, rates the event the authority, legislative do, failed to in a did, manner people. unsatisfactory to the ever in the books has it been said that the

.Nowhere legislative power function, utilities is not power here contended that fix not part charges of that function. legislature, vested in state

That Constitution, all such amendment home-rule legislature had was alienated state from as matters of municipalities, the specified the state to long court has concern municipal local *22 the of rates regulation the since that determined matter local and was a of utility corporations of charges to passed that power concern. When municipal their charter and adopted formulated the people every which was city, the all possessed vested power XX conferred amendment No. had been that power Nowhere board of councilmen. of in the Constitution, the withheld this vested the people charter have their section 280 of By from the council. function legislative final, only retained not but charter, equal, their they regulation the for charges in the matter the power disclosed clearly utilities. is that the by public service right the to exercise this legislative reserved people in their when, judgment, necessary function it it further clear so, to do is equally that proper the is final so far people, any when taken as action, is concerned. authority other is This be exercised the power people to initiating manner for an ordinance as out provided set in the charter. This is but of the constitutional phase initiative referendum. Can said be- power of it be the reserved to themselves the people cause to power ordinances, it the propose strips legislative body to do so? In city right principle and purpose, is no process initiative different home-rule mu- than in the Who state. would nicipalities, say venture to in the the reservation constitutional provision initiative and referendum deprives legislature of its to function? primary the State V,

Section article Constitution, in part, legislative is as follows: “The power of’the state shall in the general assembly be vested consisting of senate and house of both to representatives, be elected by reserve to but people, people themselves power and amendments laws propose constitution and the same at or reject polls enact independent assembly, general at their reserve also polls any reject item, approve option act, at own assembly.” general I part act section majority opinion dispute in the the statement do not “in- charter, “all” as used word nothing.” course, Of everything excluded cluded prescribed, every power but act, have body legislative not mean that does privilege» I'may rights, powers precluded. have all things, the same me, but at reserved to do certain may privileges, reserva- like unless the have others time, is to me alone. tion challenge “exclusive” wherever word

I the use opinion section 280. The with reference in the used prohibi- not a used in the section, “reserve” word tive word. It here means referred that the *23 thought kept in if be use, store for to needed. legislative power, being with full

The council invested authority pass to concerned we are not further about its only question, if is in but the ordinance to ascertain it specific study prohibited. A charter reveals of the no prohibition. hand, or On the other does dis- direct gives power 281, direct to coun- close section cil which the grant temporary permit, or revocable license or to being: may grant “The council or said section license permit any any alley, public in time, at or to or street, permit place, provided such license shall be revocable expressly at to revoke shall be time, may every permit license or reserved in be granted hereunder.” grant by express people.

This is an would be the It glaringly grant absurd and irrational such a license regulation permit or limitation on the some without plain temporary terms, here, use. The ordinance temporary in measure, is such a no sense a fran- according majority opinion, If, the council chise. pass temporary ordinance, has no such a then pose forever will as a dead letter. submission vote

The ordinance contemplates in- regulation of the rates temporary people. ex- in is a law-making, volved this ordinance is proper in character, police power, purely ercise legislative. legislative power This forbidden council. It is my now apparent opinion ordinance is a valid question power given exercise council and in nowise prohibited by charter. I Concerning this, entertain not the slightest doubt. However, validity ordinance doubted by counsel for plaintiff error, and such are doubts ably and a like expressed, view entertained some of my associates on this court. My views, ex- inadequately pressed, are able supported by counsel for the City the Tramway Company, as well as by findings the learned and, trial I judge, might add, by the United States Circuit Court of Appeals, when it said in City and County Denver v. Stenger, Fed. in discussing similar ordinances, “Subsequently pass such ordinances was vested in the council * * * County Denver. The Council Denver possessed the power * * to do what it said it was doing, obvious that validity doubt exists as to the the ordinance, passed form, due all regularity. with When so enacted it is clothed presumption validity and not I declared void. lan- quote from *24 used Mr. Justice Shaw in Wellington Petition- guage by 16 Pick. 95, and

ers, Alexander v. approved by us ex rel., 2 People Colo. 894: Pac. “The delicacy and importance subject may render it im- repeat has proper what been so suggested by often when justice, courts called upon pronounce invalidity of an act legislation, all passed with forms solemnities give it the force requisite law, courts will approach question great caution, examine in every aspect, possible ponder upon long patient it as can as deliberation and attention light the'subject, never declare throw new on nullity invalidity void statute unless the of the placed, judgment, beyond act are their a reasonable doubt.”

Finally, there can be no doubt that this court has oh regu- numerous occasions determined the matter lating charges by public legislative utilities is a func- By Speer tion. Amendment, is now section legislative powers pos- 209 of the Denver “All charter, * * * sessed shall be vested in a board * * identically councilmen *.” The “all” word has meaning same in this section of the charter as it has in thought section 280. If it could be that there a con- flict between these two sections on account of the use give “all,” word then the well known rule is to fixing legislative effect to both If sections. rates is a people expressly granted function, to the have Speer reserving, council Amendment, right people course, concurrent in the to do the same thing. having legislative authority The council, full enact question, entirely the ordinance here in it is valid, sub- ject change it if so desired. respect, judgment In that of the trial court was and should have been affirmed.

Mr. Justice Moore dissenting.

Upon study thorough exhaustive consideration of petition rehearing I filed this have con- cause, majority opinion, originally cluded that the which I respectfully I concurred, erroneous, dissent from expressed. the views therein The case of the v. Moun- Telephone Telegraph Company,

tain States 225, 67 Colo. chiefly majority Pac. relied being opinion as decisive of this cause. sole issue only question in that answered case, *25 by Mr. Justice White case was court stated herein is whether involved question follows: “The sole jurisdiction regu- Commission has Public Utilities Tele- Mountain States The charged by the rates to be late in its service with- local Company Telegraph phone Denver.” was The question in the of of was regulation in the negative.'That answered cities. No was question held to rule belong home that, challenged by which the method raised in case regula- to use the city attempted which a home rule had held to be lodged which the court tory power (cid:127) was whether home rule The sole city. question Public Utilities Commission. existent case, entirely In the is different. question instant of city has, by The home rule of Denver ordinance an city, attempted exercise legislative body legality this of this ordinance regulatory power. the issue here. validity hold that

Numerous this court opinions an city ordinance of home rule is determined the test of whether the ordinance relates inquiring concern.” have held matters of or local We “municipal utilities within regulation public operating local con- a matter municipality “municipal cern.” calls for an exercise

Regulation utilities must thereof police power, attempted but exercise meet all constitutional applicable provisions tests of which without protect against deprivation property law. due process section 18 of so-called Amendment

By Speer Code, in effect (section Municipal now “All legislative that: 1927), powers is provided pos- county sessed of Denver, conferred Article XX of the constitution of state of Colorado, in the charter of the city contained and county of existing by operation otherwise law, ex- hy amendment, as otherwise cept provided shall be *26 mem- of councilmen to of nine in a board consist vested * * universally Regulation held to utilities is bers legislative the that follows, a It therefore, function. be leg- complete plenary, power city full and council has municipal city any matter in of local or for the islate placed valid limitation thereon. unless there is a concern, particular of a see whether exercise We look to the prohibited. power by If not council of the the prohibited, power in in all mat- exists the council the municipal concern. ters of local opinion majority the holds, effect, that limita- power upon invalidates council, the which

tion the question, charter is to be found the ordinance provision appears Municipal Code as which this void as violative I consider section to be 1927. process United clause Constitution of the the due Unquestionably, been 280 had if said section States. council have would charter, omitted from power questioned, because, act in the manner here leg- expressly given pointed all above out, council by provided “except power, as otherwise islative regula- By the terms of section amendment.” tory power attempted people can be reserved to the by particular only manner exercised them in be difficulty, provided arises it, for. The as I see therein from the manner power which the exercise of sought people. reserved, to be is to be exercised only people can If, here, reserved be them in a manner which amounts tó exercised process palpable law, a due then the violation of upon plenary power otherwise claimed limitation zealously pro- court should of the council is void. This right initiate and refrain tect the laws needlessly placing upon unreasonable from restrictions right. impor- equally But it is free exercise deny entity corporate that this court should not tant process constitutional fundamental due being ground denial thereof is law an ordinance initiated accomplished by people. A failure to due provide process of law is no less offen- sive from an because stems initiated ordinance.

Wherein does section 280 due guarantee violate the process of law? provides, substance, the peo- shall be ple exercise the the rates to charged “in the by public utility companies manner for provided herein an ordiance.” The initiating pro- for rate cedure fixed no regulation, thus makes upon, provision whatever kind hearing at the public utility to an regulated afforded oppor- to make a tunity showing, present facts essential to a fair determination of what the rate should be. The rate *27 is fixed, the regulation is determined in the ex parte deliberation of the sponsors measure, of the initiated who presumably are the representatives of the people who sign the petitions. Upon submission duly of the signed petitions to the named authority, city coun- cil must either forthwith adopt the measure without amendment, or refer to a vote of the If people. adopted, either by vote of the council, or the people upon referendum election, the rate which the cor- is to poration permitted charge as fixed by the measure thus adopted, all other regulations therein con- are tained, given the of law. effect At no point entire process is any hearing provided the corporation.

If there is one firmly established concept of “due process law,” it is that no person or can corporation have their rights adjudicated, or otherwise determined full without opportunity to said person or corporation to be heard. Any proceeding, the purpose of is which the fixing of a price be charged for a or commodity service, is a proceeding most a certainly involves property right or person corporation supplying commodity service. Such person is corporation protected by due process clause against any attempt to force him a price the fixing of which has he excluded, been which he wholly concerning pro- is no matter right. vided as a of absolute hearing It is assert if the foregoing no answer utility a confiscatory, should fix rate that court, proceeding, into in a new go has be hold enforcement rate. To would enjoin so constitutional effectiveness of destroy the practical intended for use The Constitution was not protection. to “lock after horse key with which the barn stolen,” with in dark seek, nor as á lantern which to the fundamen- restoration lost If places, property. Constitution have guarantees practical tal are to in- given prevent should meaning, they effect at its jury inception.

Applying reasoning bar, this to the case it is most at only provision which tends invali- apparent date the char- ordinance 280 of the question is section Upon ter. even the face, this to provide fails semblance of due that reason it law. For process A void. limi- void charter provision creates no tation on the legislative body city.

It is not my unduly to purpose lengthen dissent quotations justification from the decided As cases. I my however, position, direct attention to Graham Dye, v. Ill. 139 N.E. I 390, where find the fol lowing: “It said Hills v. 60 Ill. Chicago, if courts set the pernicious of frittering example *28 away, by construction, the plain of the con prohibitions stitution, even though prohibition may not seemingly of be the greatest would be importance, constitution little for one value, if be provision evaded or may abrogated there is security no be.” may others not

Even stronger language was used court Walker v. 93 Colo. 26 P. I Bedford, (2d) 1051. from the in that quote opinion case, “We following: as the certain pronounce most of law that there has and can never been, be, never an emergency confront- the state that warrant ing will servants the Con- its a word of provisions. much as so waiving

stitution rule, Military government. destroy may Armed men orderly proc- may the mob, replace or rule of was sovereignty fortune been our since have esses that of rea- no But species the United States. us granted emer- degree no construction, soning, ingenuity no without Constitution is can us that gency, persuade our as its duty performing from or dissuade us potency sworn officers.” did cited cases of the above the issue each

While utilities, public regulation involve a question not constitu- for invoking protection the necessity than at- there no more apparent guarantees tional case bar. tend the at disposition I should control believe

The rule which 12 American Jurisprudence, this cause is stated af- utility “A must be public 698: 373, section page the reason- heard as to to be forded some opportunity rate-fixing charges by fixed ableness of the rates one hearing open a fair commission. every assured to litigant of fair play the rudiments requirement. as minimal the Federal Constitution be and an opportunity must be due notice There es- with the must consistent heard, the procedure act upon fair commission must trial, of a sentials in- is an procedure Such arbitrarily. evidence can be no com- Moreover, there safeguard. exorable expediency footing on the of convenience promise rid harassing delay to be of a natural desire because Hence, ignored. are such minimum requirements when no notice or summons hearing for, if no is provided the commission has before required to the company find, provided it is to and no opportunity found what before com- for the to introduce witnesses company of due of law process the semblance mission, not even * * *” provided. *29 cited the authorities the above quotation While rate fixing deal with the the text to support rate applicable any same commissions, principle in the of a “the exercise people” fixing authority, due more deny cannot act to process rate fixing power fixing authority. other rate readily than Justice and I Holland, dissent of Mr. I concur in the he concurs views am to state that authorized hereinabove expressed. 15,956.

No. Thach Durham. v. (208 1159) P. [2d] July 11, 1949. Decided