Board of County Commissioners v. Rocky Mountain Water Co. ( 1940 )

THESE parties appeared in reverse order in the trial court. They are hereinafter referred to as the board and the company, respectively.

The board fixed the rate to be charged by the company for the carriage of irrigation water through its ditch and the company brought injunction to restrain the enforcement of that order. The rate fixed was $2.50 per inch. This the district court held confiscatory. Primarily for errors in the admission of evidence and failure to make requisite findings we reversed that judgment.Commissioners v. Water Company, 102 Colo. 351,79 P.2d 373. The cause was retired, the findings amended, and, in the judgment of the trial court, the errors noted were corrected. The rate of $2.50 was again enjoined and to review that judgment the board prosecutes the present writ. In fixing the base for calculation of a proper rate the trial court included $7,000 to the company for "working capital," and $11,564.28 for valuation of its plant as a "going concern." The allowance of these items forms the gist of the complaint now urged under the assignments. It appears from the record, and was admitted on oral argument, that irrespective of these elements the rate was confiscatory. It was fixed five years ago under article 7, chapter 90, p. 823, vol. 3, '35 C.S.A., and particularly section 143, p. 829 thereof. It may be changed at any time "for good cause shown," and two years after its date without such showing. Since the only thing enjoined is the enforcement of an admittedly erroneous rate, since such items as value of structures, equipment, and operating expense, are or may be variable, and since the board may now at any time readjust this rate, we find nothing to review. In fact the board must readjust, or enforce its former rate of $3.50. Such being the situation, and it being without our province to make orders in the premises, we find no justification for advisory suggestions.

The judgment is affirmed.

MR. CHIEF JUSTICE HILLIARD not participating.