An ordinance provision respecting the service to be rendered by
a street car company (in this case respecting the transfer
privilege to be accorded passengers) will not be adjudged to have
created a contract obligation beyond legislative control if the
power of the municipality under the state law, and its intention,
to create such an obligation do not clearly appear.
Writ of error to review 62 Colo. 229 dismissed.
The case is stated in the opinion.
Page 248 U. S. 295
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is a bill to compel the defendant to arrange for passengers
on its road to be transported without extra fare over the line of
the Denver City Tramway Company from a point of connection and in
like manner for
Page 248 U. S. 296
passengers on that company's line to be carried over the
defendant's line without additional charge. The defendant operates
a street railway under a franchise granted by the plaintiff while a
town. By § 6 of the ordinance making the grant, the grantees were
allowed to charge certain fares provided that they should make the
arrangement stated above. The defense pleaded against being
required to comply with these terms is that the Denver City Tramway
Company charges five cents, the maximum fare allowed, for its part
of the service, so that the defendant gets nothing, and that the
defendant filed a schedule of rates with the State Public Utilities
Commission which now are the defendant's established rates and
charges. On demurrer, the supreme court of the state held that this
town, at least, deriving its powers from legislative grant, could
make no contract of this sort that was not subject to control by
the legislature, that the Public Utilities Commission had been
authorized by the legislature to regulate the matter in
controversy, that it had done so, and that this proceeding should
Of course, we do not go behind the decision of the court that
the matter in controversy was subject to regulation by the
Commission, and was regulated by it in due form if the state could
confer that power. The plaintiff says that the state could not
confer it, since to do so would impair the obligation of a
contract. Upon that point, we agree with the court below that
clearer language than can be found in the state laws and this
ordinance must be used before a public service is withdrawn from
public control. Milwaukee Electric Ry. & Light Co. v.
Railroad Commission of Wisconsin, 238 U.
, 238 U. S. 180
The cases generally are cases where the railroad or other company
sets up contract rights against the city. Whether, when the
railroad consents, a legislature would not have all the power that
the city could have to modify even a constitutionally protected
contract need not be considered
Page 248 U. S. 297
here. If we deal with the present case on the merits, there
seems to be no sufficient reason why the writ of error should not
be dismissed. It is giving the plaintiff the benefit of a very
great doubt if we assume that the question on the merits was
Writ of error dismissed.