Bennett v. Mountain States Telephone & Telegraph Co. , 121 Colo. 325 ( 1950 )

Mr. Justice Hays

dissenting.

Section 65, article XII, of the Charter of the City of Colorado Springs adopted in 1909, provides inter alia: “All power to regulate the rates, fares and charges for service by public utility corporations is hereby expressly reserved to the people, to be exercised by them by ordinance of the council or in the manner herein provided for initiating or referring an ordinance.”

Notwithstanding the above section of said charter which provides that the council can only act through ordinance, it adopted a resolution, the general effect of which was to grant and approve a telephone rate increase effective November 20, 1947. The resolution recited the filing of a schedule of rates with the Colorado Utilities Commission and, in effect, incorporated said schedule in said resolution by reference, and thereby ratified and approved same.

It is contended that the resolution was authorized by virtue of the provisions of ordinance No. 1064 passed August 4, 1920, which provides: “No company or corporation operating any public utility in whole or in part within the City of Colorado Springs shall change any rate, fare, charge or regulation substantially effecting its service without the consent of the city council of said city or of the electors thereof.”

It is apparent that the council had in mind section 65, supra, when it adopted ordinance No. 1064, because it therein referred to the only ways that rates could be changed under said charter provision, to wit: upon “consent of the city council” or “of the electors thereof.” It is quite evident, in view of the expressed provisions of the charter, that the city council could only express its consent by ordinance and the electors of said city could only express their consent at the polls.

We have consistently held that the method provided by a city charter for exercising legislative power with respect to the regulation of utility rates is exclusive and any attempt to regulate them by any other method is void. Berman v. City & County of Denver, 120 Colo. 218, 209 P. (2d) 754.

As I view it from the foregoing, the judgment of the trial court should be reversed.

Mr. Chief Justice Hilliard joins in this dissent.