5. CONSTITUTIONAL LAW 80(2)-DISTRIBU-| the commission is null and void as having TION OF POWERS-JUDICIAL POWER-PUBLIC been made without jurisdiction. In other UTILITIES COMMISSION.

Public Utilities Act of 1913, as amended in 1915 and 1917, construed to delegate to Public Utilities Commission exclusive jurisdiction over operation, cessation of operation, and dismantling of railroads within state, held not constitutionally infirm as conferring judicial power on a commission.

En Banc.

Error to District Court, El Paso County; J. W. Sheafor, Judge.

Suit to foreclose railroad mortgage by the Colorado Title & Trust Company, as trustee, wherein A. E. Carlton was appointed receiver of the Colorado Midland Railroad Company, and applied for court order allowing abandonment of service upon and directing sale of the road and all its equipment. Such or der was entered without notice to the Public

words, does the Public Utilities Act of 1913 (Laws 1913, p. 464), as amended in 1915 (Laws 1915, p. 393) and 1917. (Laws 1917, pp. 415, 418) confer upon the Commission, regardless of the court's order appointing a receiver, exclusive jurisdiction to pass upon the question of operating, abandoning, or the dismantling and "junking" of a line of railroad lying wholly within the state.

The Colorado Midland, completed about 1889, was operated under the name of the June 1, 1917, when it was taken over and Colorado Midland Railway Company until operated by the Colorado Midland Railroad Company. Two million dollars in bonds, secured by a deed of trust, were issued by the latter company to the promoters of the new organization for money they invested in the · road, and the Colorado Title & Trust Comthe property was taken over by the United pany was named trustee. In December, 1917, States Railroad Administration, but was released June 21, 1918.

foreclosure suit in the district court of El July 1, 1918, the Trust Company began a Paso county. The bill alleged that the Midland could not longer be operated as a railroad, that no purchaser could be found who would buy the property as an entirety and undertake to operate it as a railroad, and

Utilities Commission of the state, and thereafter the Board of County Commissioners of Park County, and others filed complaints with the Commission against it permitting the junking of the road; individual protests being also filed. The railroad and receiver filed pleas to the jurisdiction of the Commission. The Commission objected in the district court to the portion of its order directing the receiver to cease operations on the road, and moved for a modification or vaca-prayed that its operation be discontinued, tion on the ground that the court was with that it be dismantled and sold, and asked for out jurisdiction to enter such an order, the the appointment of a receiver, which was receiver and the railroad filing pleas to the accordingly done without opposition; the jurisdiction. The Attorney General, Leslie railroad company appearing and consenting E. Hubbard, appeared and asked leave to thereto. The next day, July 2d, the receiver file petition in intervention, raising the same filed in court his application, asking for a question, claiming that the jurisdiction of court order allowing the abandonment of the Commission was exclusive. The Com- service upon and directing the sale of the mission, ruling on the question of its juris- road and all its equipment in lots and pardiction, overruled demurrers before it, and cels and at public or private sale. The court held it had exclusive jurisdiction, and the thereupon entered an order, permitting and district court ruled that it had jurisdiction directing the receiver to sell, either in septo enter its order. The people, by the Attor-arate parcels or otherwise as he might deney General, and the Public Utilities Commission bring error. Reversed, with directions to the district court to vacate the portion of its order directing the receiver to cease operations upon and to dismantle the

road.

These cases present the question whether the Public Utilities Commission of this state has exclusive and original jurisdiction regarding the cessation of operation upon, and the abandonment and dismantling of, the Colorado Midland Railroad, and whether the receiver of the road should apply to this commission for leave to cease operation and the abandonment and sale of the line, and whether that portion of the district court order directing and commanding the cessation of operation upon, and the dismantling of, the road by the receiver without the consent of

termine, the road and its entire properties and equipment, and to remove and sell the rails and tracks, and to permanently abandon and discontinue service thereon, and not further operate it as a railroad, the order to become effective August 5, 1918. It is a "junking" order to permanently cease operations upon, tear up the track, dismantle the road, and to sell its component parts. Under the order it no longer was to be used as a railroad or devoted to public service. This order was entered July 2d without notice to the Public Utilities Commission, but was not to go into effect until August 5th to comply with general order No. 15 of the Public Utilities Commission, which provides as follows:

"In the matter of abandonment and discontinuance of tracks and service of steam and

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rers.

electric carriers. It is hereby ordered, by the [tion the receiver and the railroad filed pleas Public Utilities Commission of the State of to the jurisdiction in the nature of demurColorado that no electric street railroad, interurban railroad or steam railroad shall discontinue its service or abandon its line of railroad, or any part thereof, or remove its tracks, or any part thereof, without first having filed with this commission a written notice of its intention to discontinuance, abandon or remove its service or tracks, or any part thereof, within the state of Colorado; said notice to be filed with the commission thirty days prior to the discontinuing of its service, or the abandonment or removal of its tracks, or any part thereof."

July 3d a copy of the court order was filed with the commission, along with written notice of the intention of the receiver to discontinue service August 5th and thereafter remove the tracks. Thereupon the board of county commissioners of Park county, and a large number of other complainants, filed complaints with the commission against its permitting the "junking" of the road; individual protests were also filed in addition to the formal complaints. The railroad and the receiver were served with notice of these complaints, and filed pleas to the jurisdiction in the nature of demurrers challenging the jurisdiction of the commission. They claimed the commission had no jurisdiction, and that the court had exclusive jurisdiction, and also took the position that the commission was without jurisdiction to proceed in the premises because the district court had already signed and entered a decree discontinuing operations upon and dismantling the road, and claimed it had the constitutional right to enter such an order which deprived the commission of jurisdiction, and that the commission would be in contempt of court if it interfered with the receiver in carrying out the order of July 2d. Complainants claimed the commission had exclusive jurisdiction in such matters, and that the court was without jurisdiction to enter such an order. Argument before the commission upon the question of jurisdiction was begun July 25th and concluded at 4:30 July 26th, and then taken under advisement until July 30th, at which time the commission would again convene, and the commission announced that in the meantime it would appear before the court that entered the order and endeavor to secure a modification thereof, and further stated that, if the commission determined July 30th that it had jurisdiction, evidence would then be taken.

July 29th the commission appeared, as announced, in the district court, and objected to that portion of the order directing the receiver to cease operations upon and dismantle the road, and moved the court to either modify or vacate the order. The motion was based upon the ground that the court was without jurisdiction to enter such an order, such power being vested exclusively, as it was alleged, in the commission. To this mo

at the same time (July 29th), and asked The Attorney General then appeared leave to file a petition in intervention, which raised the same question, namely, that of discontinuing operations upon and dismantling the road; he claiming on behalf of the state that in these matters the jurisdiction of the commission was exclusive. The motion of the commission and the motion of the Attorney General came on July 29th for hearing before the court that entered the order, and after argument were continued to August 3d. Meanwhile, July 30th, the commission met pursuant to adjournment and made its final ruling on the question of jurisdiction, overruling the demurrers, and holding it had exclusive jurisdiction, and would proceed immediately with the taking of testimony, and would allow one day on a side only. Complainants objected to so short a time and moved for a continuance on account of the large number of their witnesses and the alleged physical impossibility of procuring witnesses from so far away along the line of road, and, the motion being overruled, introduced no evidence, though one individual protestant introduced some testimony. The receiver and the company introduced their evidence. The commission then took the matter under advisement. August 3d the motions in the district court came on again, pursuant to continuance, for hearing and final determination, and the court then ruled that it had jurisdiction to enter the order of July 2d, and overruled both motions, leaving the order of July 2d in full force and effect. At midnight, August 4th, service was abandoned, and August 5th the receiver proceeded to enforce the court order and to dismantle the road until stopped by a restraining order from this court. August 12th motion for a new trial was denied.

The assignments of error are that the court erred in holding that it had jurisdiction to enter the order of July 2d; that it erred in holding that the commission did not have exclusive jurisdiction over the cessation of service upon, abandonment of the line, and "junking" of the road; that it erred in denying the motion of the commission to vacate or modify the court order of July 2d; that it erred in refusing to allow the Attorney General to intervene on behalf of the state; that it erred in refusing to direct the receiver to apply to the commission for leave to cease operations; that it erred in allowing the court order to become effective August 5, 1918; that it erred in entering the order directing the cessation of service upon and the sale and "junking" of the road without application having first been made to the commission by the receiver and permission granted therefor; that it erred in denying a motion for a new trial, and that it erred

in entering the final order August 3, 1918, [ ahead regardless of the court's order, it denying the motion of the commission and the motion of the Attorney General.

Leslie E. Hubbard, Atty. Gen. (Charles Roach, Deputy Atty. Gen., of counsel), and Horace N. Hawkins, I. B. Melville, and C. M. Hawkins, all of Denver, and M. I. O'Mailla, of Fairplay, for the People.

A. P. Anderson, of Denver, and L. J. Williams, of Central City, for plaintiff in error Public Utilities Commission.

W. V. Hodges, of Denver, for defendant in error Colorado Title & Trust Co.

C. C. Hamlin, of Colorado Springs, for defendant in error Colorado Midland R. Co.

Gerald Hughes, C. C. Dorsey, and W. M. Bond, Jr., all of Denver, for defendant in error Carlton.

GARRIGUES, J. (after stating the facts as above). [1] 1. Though the Legislature has the power, it would be impracticable for it to directly determine the abandonment of service upon and dismantling of a railroad. Therefore it may delegate such power to a commission. One of the questions in the case is, Was such power delegated?

The Legislature may prescribe the method for the administration of public service corporations. The state has inherent power to regulate and control public utilities within the state, and, to this end, it is well settled the Legislature may create a commission to which it may delegate governmental authority and supervision, and that the right to do so exists without any constitutional provision; that is, the power of the Legislature to regulate the service of public utilities may be exercised through a commission, although the Constitution is silent on the subject. The powers of the commission in such cases are administrative. Its duties are to administer the law and carry into effect the will of the Legislature.

[2] 2. The only complaint of plaintiff in error is that the receiver failed to make application to, and obtain from, the commission its assent and sanction to abandon service and dismantle the road, and such failure is the only question involved that will be considered. That is, whether the district court or the commission was vested with exclusive jurisdiction over the abandonment of service and the dismantling of the Midland Railroad lying wholly within the state. If the commission possesses the exclusive jurisdiction, then the court order of July 2d is void, and all other questions in the case are immaterial. There is no question about the jurisdiction of the district court to entertain the foreclosure suit, appoint a receiver, and order the sale of the property on foreclosure. The point is, Did it have the right to go further and hear and determine the matter of ceasing to operate and “junking" the road? If the commission had gone

would either have had to concur therein or direct the receiver to do something different, and in the latter event there would have been a conflict of jurisdiction, and an apparent contempt of court. To avoid this happening, if the jurisdiction of the commission was usurped by the court, the commission, under the circumstances had a right to appear in court and ask the court to vacate or modify the order to avoid a conflict of jurisdiction, and, in case the court refused, to have the ruling reviewed.

[3] 3. Whether the commission has jurisdiction over the ceasing of service upon and the dismantling of a railroad is a judicial question for the court, but the exercise of that jurisdiction by the commission is the exercise of administrative power delegated to the commission by the Legislature. Under the act power is conferred upon the commission to regulate the service, which includes power over the operation of the railroad and the maintenance of the tracks. Power to regulate service necessarily includes power over the thing to be regulated. This act confers upon the commission sufficient authority, when the public interest requires that no change should be made, to prevent a railroad company from ceasing service upon and dismantling the road without the consent of the commission. Railroad Commission v. K. C. S. Ry. Co., 111 La. 133-139, 35 South. 487; State ex rel. v. Brooks-Scanlon Co., 143 La. 539, 78 South. 847.

We therefore conclude that the Public Utilities Act confers exclusive jurisdiction upon the commission to determine whether a railroad company may abandon service upon and dismantle a railroad, lying wholly within the state.

[4] 4. Was the receiver appointed by the court subject to the same control as the railroad before the appointment of the receiver? Yes. The act, as amended in 1915, gives the commission jurisdiction over receivers appointed by any court whatsoever. By section 2 receivers of railroads appointed by the court are declared to be common carriers and subject to the act. The act provides that the commission shall enforce all statutes of the state affecting public utilities unless the enforcement is placed specifically in some other tribunal. Nowhere is power vested specifically in the district court by any statute to enter such an order. In State ex rel. v. Flannelly, 96 Kan. 372, 381, 152 Pac. 22, 26, it is said:

"The next question is, Are the receivers subject to the control of the Public Utilities Commission, under the Public Utilities Act? * The Kansas Natural Gas Company, whose property is now in the possession of the receivers, them, was engaged in the business of a public and whose business is now being conducted by utility. When the receivers continue to do the same business and render the same service as

closure of mortgages and all matters incident thereto. As an incident to their powers, courts of equity, in foreclosure proceedings, determine how property subject to a lien in process of foreclosure shall be sold, in what parcels and upon what terms, with a view to giving full relief to the mortgagee, with as little sacrifice as may be to the owner of the incumbered property, or others interested

therein.

In this case it was incumbent upon the court to make all orders necessary to give the plaintiff the benefit of its security in such a way as to cause the least loss to the parties interested in the property either as owners, or otherwise; this in pursuance of the chancery rule of doing complete equity to all parties before the court.

The continued operation of the road being a matter of public interest, the state is entitled to be heard upon the question of dismantling the road. This fact appears to have been recognized in recent cases, which are authority also on the question of jurisdiction.

In State of Iowa v. Old Colony Trust Co., 216 Fed. 307, 131 C. C. A. 581, L. R. A.

her complaint in an action for damages, and TELLER, J. The plaintiff in error filed

defendants in error demurred to it. The

the case here on error.

1915A, 549, the state was a party in a suit in which the jurisdiction of a court of equi- demurrer being sustained, plaintiff in error ty, in a foreclosure suit to direct the dis-elected to stand on her complaint, and brings mantling of a railroad, was directly involved. The Circuit Court of Appeals held that the lower court had such jurisdiction. The opinion, after stating the condition of the road as disclosed by the record, says:

"In these circumstances, what could the court, charged with the duty of caring for and protecting the whole property, have done except order the abandonment of the steam line and the sale of its salvage?"

tiff had a growing crop on a piece of land It is alleged in the complaint that plainabout one mile from defendants' home, which land was unfenced on one side; that defendants turned their cattle out of their gates into the public highway for the purpose of grazing and feeding upon lands other than their own; that said cattle went upon plaintiff's land, as defendants well knew they

In N. Y. Trust Co. v. P. & E. St. Ry. Co. would do, and ate, trampled down, and de(C. C.) 192 Fed. 728, the court said:

"The conclusion reached is that a court of equity, having possession of the res, with the parties before it, including the Attorney General, the proper representative of the state, has the power, in an insolvent situation like this, to dispose of the property in any reasonable way which may be for the best interests of the mortgagee, and if necessary, in order to realize anything from the property to order a sale in the alternative."

*

*

The order was that the road be offered as a going concern, and, if not sold at a price equal to its salvage value, that it be sold for dismantling.

The district court, having jurisdiction of the question, could not be deprived of it by legislative enactment; and, having taken jurisdiction of the cause, should, after allowing the people to be represented, proceed to try the question of dismantling the road.

I am authorized to state that Mr. Justice BAILEY concurs in this opinion.

stroyed said crop; that plaintiff notified defendants of said trespass, and requested them to herd their stock; that defendants refused Said request, and continued to turn out their cattle, though they had full knowledge that said cattle so turned out would feed on plaintiff's crop; that defendants intended that said cattle should go on plaintiff's land; and that she has been damaged, etc.

The ground of demurrer was that the complaint did not state a cause of action.

Plaintiff in error relies upon the case of Light v. United States, 220 U. S. 523, 31 Sup. Ct. 485, 55 L. Ed. 570, in which it is said the question of law here presented was determined. In that case the government obtained an injunction against Light's causing or permitting his stock to go upon a forest reserve unless he had a license to pasture them thereon. The bill charged that Light turned out his cattle with the intention and expectation that they would go to said reserve, and the opinion treats the act of turning out the cattle as equivalent to a driv

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