(62 Colo. 229, P.U.R.1916E, 134, 161 Pac. 151.)

the cars of the Denver Tramway Company to be transported upon the cars of said grantees to the intersection of any street between Hampden and Quincy avenues, the latter avenue inclusive, without additional fare, upon presentation of said coupon ticket. It was further alleged: "That at the time of the passage of said ordinance, and the granting of said franchise to the grantors of the said defendant, the Denver City Tramway Company was engaged in operating a street railway as a common carrier between the city of Denver and the said Hampden avenue, at the intersection of said Hampden avenue and Broadway, in the said city of Englewood, and that thereafter the defendant company did until on or about the 28th day of October, A. D. 1914, substantially comply with the terms and conditions of said § 6 of said ordinance, and for some years thereafter did in fact provide for those seeking passage upon the cars of the said the Denver City Tramway Company, without extra charge, as provided in § 6 of said ordinance."

It is then alleged that since the said 28th day of October, 1914, the defendant has refused to comply with that provision of the ordinance in the matter of providing the sale of coupon tickets entitling passengers to transportation to and from the city of Denver on the line of the Denver Tramway Company, as provided by the terms of the ordinance. The prayer was for injunction to compel the enforcement of the terms of the ordinance in the particular respect.

The answer of the defendant company admits the ordinance and the terms thereof, and alleges that from the date of the passage of the ordinance up to October 28, 1914, the defendant had given and tendered to all persons seeking passage on its cars between the point complained of free service and transfers entitling passengers to passage between such points. The answer further alleges that the defendant has sought to make arrangements with the Den

ver Tramway Company for the transfer of passengers taking passage upon its lines between the points set out in the complaint, and that the only provision it has been able to make is that the Denver Tramway Company shall receive 5 cents from all passengers so transferred and transported. It is then alleged that the defendant is a public utility and subject to the provisions of the Public Utility Law, and further that, "pursuant to the provisions of law in such case made and provided, it did file with the Public Utilities Commission of the state of Colorado its schedule of rates, and that its schedule of rates so filed was not suspended by the said Public Utilities Commission herein upon its own motion or upon the complaint of others for a period of thirty days, and that thirty days expired from the time of the filing the same and from the 28th day of September, A. D. 1914, and until the 28th day of October, A. D. 1914, and thereupon and pursuant to law the said rates did on the 28th day of October, A. D. 1914, go in effect and become and are now established effective fares and charges, practices, rules, and regulations of this defendant company."

It is then said, in substance, that to comply with the ordinance in the matter complained of it must violate the Public Utility Law as relates to the prohibition of free service or free transportation; further, that the plaintiff and all others who may claim to be injured by reason of the premises have a plain, speedy, and adequate remedy at law under the Public Utilities Law of the state.

To this answer the plaintiff filed a demurrer upon the ground that the same does not constitute a sufficient defense to the complaint. The court sustained the demurrer, and, the defendant electing to stand upon its answer, judgment was rendered in accordance with the prayer of the complaint. This judgment is before us for review.

It will be seen that the defendant company contends that its present rates of service are those fixed

It will thus appear that the legislature had conferred no specific power upon the town of Englewood to enact a rate-making ordinance. The only specific power conferred upon the municipality by this section is to grant a franchise in the form of an ordinance. There does not appear a suggestion as to a ratemaking power, and no such power can be inferred. It may be conceded that, as between the parties, such ordinance constituted a valid contract.

The question to be determined is as to the effect upon such a contract by the enactment of the Public

(62 Colo. 229, P.U.R.1916E, 134, 161 Pac. 151.)

porate limits of any county, city or town; except upon a showing before the Commission that such greater charge is justified. Every street or interurban railroad corporation shall upon such terms as the Commission shall find to be just and reasonable furnish to its passengers transfers entitling them to one continuous trip in the same general direction over and upon the portions of its lines within the same city and county, or city or town, not reached by the originating car."

Further powers were conferred upon the Commission by § 23 as follows: "Sec. 23. (a) Whenever the Commission, after a hearing had upon its own motion or upon complaint, shall find that the rates, tolls, fares, rentals, charges or classifications, or any of them demanded, observed, charged or collected by any public utility for any service, or product or commodity, or in connection therewith, including the including the rates or fares for excursion or commutation tickets, or that the rules, regulations, practices, or contracts, or any of them, affecting such rates, fares, tolls, rentals, charges, or classifications, or any of them, are unjust, unreasonable, discriminatory, or preferential, or in any wise in violation of any provision of law, or that such rates, fares, tolls, rentals, charges, or classifications, are insufficient, the Commission shall determine the just, reasonable or sufficient rates, fares, tolls, rentals, charges, rules, regulations, practices, or contracts to be thereafter observed and in force, and shall fix the same by order as hereinafter provided.

"(b) The Commission shall have the power, upon a hearing, had upon its own motion or upon complaint, to investigate a single rate, fare, toll, rental, charge, classification, rule, regulation, contract, or practice, or any number thereof, or the entire schedule or schedules of rates, fares. tolls, rentals, charges, classifications, rules, regulations, contracts, and practices, or any thereof, of any public utility, and to establish new rates, fares, tolls, rentals,

charges, classifications, rules, regulations, contracts or practices, or schedule or schedules, in lieu thereof."

From the sections quoted, and from other provisions of the act, it fully appears that the legislature intended to delegate to the Public Utilities Commission the administration, supervision, and regulation of all service rendered to the public throughout the state, including municipalities. Rates and regulations fixed by contract are specifically included within the powers of the Commission.

From what has been said it will be seen that the town of Englewood had no express authority to fix a rate of fare, so as to limit or prohibit the assumption of such power by the legislature. The uniform rule in this respect was stated in Home Teleph. & Teleg. Co. v. Los Angeles, 211 U. S. 265, 53 L. ed. 176, 29 Sup. Ct. Rep. 50, to be: "It has been settled by this court that the state may authorize one of its municipal corporations to establish by an inviolable contract the rates to be charged by a public service corporation (or natural person) for a definite term, not grossly unreasonable in point of time, and that the effect of such a contract is to suspend during the life of the contract the governmental power of fixing and regulating the rates. Detroit v. Detroit Citizens' Street R. Co. 184 U. S. 368, 382, 46 L. ed. 592, 605, 22 Sup. Ct. Rep. 410; Vicksburg v. Vicksburg Waterworks Co. 206 U. S. 496, 508, 51 L. ed. 1155, 1160, 27 Sup. Ct. Rep. 762. But for the very reason that such a contract has the effect of extinguishing pro tanto an undoubted power of government, both its existence and the authority to make it must clearly and unmistakably appear, and all doubts must be resolved in favor of the continuance of the power. Providence Bank v. Billings, 4 Pet. 514, 561, 7 L. ed. 939, 955; Railroad Commission Cases, 116 U. S. 307, 325, 29 L. ed. 636, 642, 6 Sup. Ct. Rep. 334, 388, 1191; Vicksburg, S. & P. R. Co. v. Dennis, 116

U. S. 665, 29 L. ed. 770, 6 Sup. Ct. Rep. 625; Freeport Water Co. v. Freeport, 180 U. S. 587, 599, 611, 45 L. ed. 679, 688, 693, 21 Sup. Ct. Rep. 493; Stanislaus County v. San Joaquin & K. River Canal & Irrig. Co. 192 U. S. 201, 211, 48 L. ed. 406, 412, 24 Sup. Ct. Rep. 241; New York ex rel. Metropolitan Street R. Co. v. New York State Tax Comrs. 199 U. S. 1, 50 L. ed. 65, 25 Sup. Ct. Rep. 705. And see Water, Light, & Gas Co. v. Hutchinson, 207 U. S. 385, 52 L. ed. 257, 28 Sup. Ct. Rep. 135."

In Freeport Water Co. v. Freeport, 180 U. S. 587, 599, 611, 45 L. ed. 679, 688, 693, 21 Sup. Ct. Rep. 493, it is said: "This power of regulation is a power of government, continuing in its nature; and if it can be bargained away at all, it can only be by words of positive grant, or something which is in law equivalent. If there is reasonable doubt, it must be resolved in favor of the existence of the power. In the words of Chief Justice Marshall in Providence Bank v. Billings, 4 Pet. 514, 561, 7 L. ed. 939, 955: Its abandonment ought not to be presumed in a case in which the deliberate purpose of the state to abandon it does not appear." "

as between the water company and
the city as long as the legislature
did not exercise its superior and
supreme power over the subject of
the rates. From the general powers
to establish waterworks and to con-
tract and be contracted with, im-
pliedly the city had the power to
contract in the matter of rates for
water furnished the public as long
as the legislature did not exercise
its reserved power in that particu-
lar. But that implied power was
inferior to the reserved power. It
was subject to the right of the legis-
lature to prescribe different rates at
any time. The legislature, not hav-
ing expressly delegated to the city
power by which it could inviolably
agree as to the rates, could exercise
power in that particular regardless
of the franchise provisions. It had
withheld supreme power unto itself.
Neither by the charter nor by subse-
quent legislation did it delegate to
the city of Benwood authority to
agree unalterably as to the rates for
a stipulated period. The water com-
pany and the city in the making of
the so-called franchise contract were
bound by cognizance of the fact that
their dealings were subject to future
exercise of the legislature's power
over rates for water furnished the
general public in the locality. Hence
the franchise was made subject to
what the legislature might there-
after do as to the rates dealt with
by the franchise. It was subject to
the legislature's making use of the
inherent power reserved, and not
exclusively delegated to the city of
Benwood, to supervise all public
service charges. And when the
legislature in its wisdom saw fit to
exercise its reserved power of super-
vision over the matter of public
service rates by the creation of the
Public Service Commission and the
delegation of the power to the Com-
mission in that behalf, the rates
mentioned in the franchise became
subject to supervision and regula-
tion by the Public Service Commis-
sion. The legislature had withheld
the exercise of its power over those
rates until that time. It could use
the power when it pleased. No

In the well-considered case of Benwood v. Public Service Commission, 75 W. Va. 127, 83 S. E. 295, and reported in L.R.A.1915C, 261, it was said: "But the city of Benwood says it had the right given it by the legislative charter to 'contract and be contracted with.' True, this general provision usually found in municipal charters is in the charter of the city of Benwood. that provision cannot be construed as delegating beyond legislative control the power to fix public service rates. For, as we have seen, the presumption is against such delegation of the power. The delegation 'must clearly and unmistakably appear.' It does not so appear in the general provision merely to contract and be contracted with."

But

And further: "We do not say that the contract as to rates contained in the franchise was not good

(62 Colo. 229, P.U.R.1916E, 134, 161 Pac. 151.)

length of nonuser affected the state's right thereto. Chicago, B. & Q. R. Co. v. Iowa (Chicago, B. & Q. R. Co. v. Cutts) 94 U. S. 155, 24 L. ed. 94."

It was further held in that case: "It is most earnestly insisted on behalf of the city that the contract is inviolable, and that to uphold the powers of the Public Service Commission to the extent of allowing the Commission to change the rates would in effect abrogate the contract, contrary to constitutional inhibitions against the enactment of any law impairing the obligation of a contract. In the light of what we have said, this position cannot be sustained. Nothing that was binding in the contract will be impaired. By it the state was not bound. The contract related to a subject-matter belonging to the state. The state had not given the city the power or agency to contract away its right thereto for a given time. The contract, having been entered into without express legislative authority, was permissive only. It was conditioned upon the exercise of the sovereign power over the subject-matter. All this the parties to the contract were bound to know when they entered into it. There can be no impairment of the contract by the act of the state in claiming its own, when it is not bound by the contract. The supervision and regulation of the_rates by the state, through the Public Service Commission, do not take from either of the parties to the contract any right which they had thereunder. Such supervision and regulation does not therefore impair the obligation of a contract. Home Teleph. & Teleg. Co. v. Los Angeles, supra; State ex rel. Webster v. Superior Ct. 67 Wash. 37, L.R.A.1915C, 287, 120 Pac. 861, Ann. Cas. 1913D, 78; Knoxville Water Co. v. Knoxville, 189 U. S. 434, 47 L. ed. 887, 23 Sup. Ct. Rep. 531; Louisville & N. R. Co. v. Mottley, 219 U. S. 467, 55 L. ed. 297, 34 L.R.A. (N.S.) 671, 31 Sup. Ct. Rep. 265; Wyandotte County Gas Co. v. 4 A.L.R.-61.

Kansas, 231 U. S. 622, 58 L. ed. 404,
34 Sup. Ct. Rep. 226; Dawson v.
Dawson Teleph. Co. 137 Ga. 62, 72
S. E. 508."

The doctrine announced in that case is a fair statement of the overwhelming weight of judicial opinion.

The case of State ex rel. Webster v. Superior Ct. 67 Wash. 37, 120 Pac. 861, Ann. Cas. 1913D, 78, and also reported in L.R.A.1915C, p. 287, contains an exhaustive review of the authorities on this subject. See also Milwaukee Electric R. & Light Co. v. Railroad Commission, 238 U. S. 174, 59 L. ed. 1254, P.U.R. 1915D, 591, 35 Sup. Ct. Rep. 820. This doctrine has been recognized by this court in the case of Wolverton v. Mountain States Teleph. & Teleg. Co. 58 Colo. 58, 142 Pac. 165, Ann. Cas. 1916C, 776, wherein it was said: "And it is now held that, even in case of such contracts with public utilities for specific rates and for definite periods of time, these are subject to legislative acts of regulation. Louisville & N. R. Co. v. Mottley, 219 U. S. 467, 55 L. ed. 297, 34 L.R.A. (N.S.) 671, 31 Sup. Ct. Rep. 265; Southern Wire Co. v. St. Louis Bridge & Tunnel Co. 38 Mo. App. 191."

We must hold, therefore, that at the time of the adoption of the ordinance in question, the town of Englewood was without express legislative power to fix rates or regulations for public utilities, and that its contract with

Carrier-rates

to fix.

the defendant com- power of
pany was subject municipality
to the
the legislative
power afterward asserted by the
enactment of the Public Utilities
Statute.

It follows, therefore, that the power to regulate the rates of the public utility in question is vested by the act exclusively in the Public Utilities Commission. The law fully provides that every order or decision made by the Commission may be reviewed by the supreme court upon the application of either party,