Board of Public Works v. Denver Telephone Co.

Per Curiam. The Denver Telephone Company, a domestic corporation, is the remote asignee of a right or privilege which the city council of the city of Denver, by resolution in 1884, granted to eight of its citizens to occupy its public streets and alleys for the purpose of constructing and operating a telegraph and telephone system. In January 1897, the company made a written application, as the charter or ordinance of the city prescribes, to the board of public works of the city of Denver for a permit to excavate a trench in one of the public alleys in which conduits for laying telephone wires were to be placed, the same being a part of the proposed system. This application was denied. Thereupon this proceeding in mandamus was brought to compel the respondent board to issue to petitioner company [403] the permit theretofore refused. In the petition reasons are given for the apparent delay in completing the system, and there is also set forth a history of petitioner’s enterprise from its inception, with the details of which we are not concerned at this time. To the alternative writ to show cause why the petition should not be granted, the board made answer, and upon these two pleadings trial was had which resulted in a judgment awarding ' the permanent writ. Prom that judgment respondent board and the individuals composing it appealed to the court of appeals. After all the briefs were filed and the cause was on the eve of submission, the present city attorney of the city of Denver entered his appearance as attorney for appellants, and asked that the cause be removed to this court upon the ground that a franchise and a constitutional question were involved. No formal application to remand has been made by the appellee, but in argument the suggestion is made that, though its counsel was willing to submit the cause on its merits, this court has not jurisdiction of the appeal. But, as has often been said, consent does not confer appellate jurisdiction; and it is clear that the court of appeals act, which is at once the source and measure of our power in the matter of appeals, has not given it. ' Of the nine separate grounds interposed by the respondent at the trial and upon this review as reasons why the court should withhold the writ, and as constituting its reasons for refusing the permit, only one presents féatures which, in any circumstances, properly invoke the jurisdiction of this court. That is that the alleged privilege claimed by petitioner is invalid because, by resolution of the city council, there is an attempt to make an irrevocable grant of a special privilege or franchise, which is forbidden by section 11 of article 2 of our constitution. This contention by the board is said to introduce into the case not only the element of a franchise, but also the unconstitutionality of the resolution of the council purporting to confer it. The other grounds of objection go to the right of the council by resolution. [404] to confer such, privileges; the non-assignability thereof; the exclusive power of the board to grant or withhold the same without having their determination reviewed by courts; that the bond filed was insufficient; that petitioner was unable to carry out, the enterprise; that rights, if any, which originally existed have been abandoned; and that the petitioner did not make the application in good faith. It will be seen that none of these presents a question that gives this court jurisdiction. If it be conceded that, in an appropriate action, where the city of Denver and the telephone company were parties, and where the issues were the same as those attempted to be raised here, a franchise would be involved, and a constitutional question present that must be determined, it does not necessarily follow that such questions may be raised in this action by the board of public works unless, under the statutes and ordinances of the city, it represents the munipality in its legislative capacity, or has power co-extensive with the city council in the subject matter of the action. By the city charter the legislative power of the city of Denver is vested exclusively in the city council. The board of public works, in the matter of granting rights or privileges, such as those claimed by petitioner, has no power whatever. In so far as it has anything to do in aiding the city or the grantee in giving effect to a right or franchise previously granted by the law making power, the board acts in a ministerial or administrative capacity. It therefore does not lie with the board to pass upon the constitutionality of the ordinance or resolution by which, such rights are given, or to decide for itself whether or not the privilege claimed results from the act of the city council purporting to create it. If the city council has not revoked, or canceled, or otherwise called in question the validity of the resolution under which petitioner claims, or the right thereby granted, it. is not within the province of a merely administrative body like the board of public works to constitute itself a tribunal for [405] passing upon such questions. And so long as the privilege remains unrevoked by the city council, as appears to be the case here, such administrative officers or tribunal should not be permitted to question it. Only persons -who are injuriously affected by the alleged unconstitutionality of a statute or ordinance may be heard to object to it on that ground. Neither individually, nor collectively as a board, are the members of this body affected by this resolution. Their interest in it is only that of other citizens of the city. The question was settled by this court in Denver Tramway Co. v. Londoner, 20 Colo. 150; and the same principle is enunciated in People v. Ames, 24 Colo. 422: Ames v. The People, 26 Colo. 83; Rhodes et al. v. Board of Public Works, 10 Colo. App. 99; and in a late case which is strictly in point to the one at bar, Ghee v. Northern Union Gas Co., 158 N. Y. 510. If the final judgment in this case commands the board to issue the permit, the judgment would not, as to the city, be res adjudicata of a future controversy between it and petitioner respecting the rights of the latter under this resolution; and if the writ ’should be withheld, this would not estop petitioner to assert its rights as against the city. It may be true that the same reasons which preclude the appellants on this review from raising a constitutional question and that of a franchise will control in the court of appeals as to their rights to be heard upon the other assignments of error to which we have above referred. It may also be true that, while refusing to decide the ease on its merits because of a lack of jurisdiction of the appeal, in effect, we resolve all of appellants5 contentions against them when we hold that they are not in a position to raise the questions, which, alone, give us jurisdiction. But that anomaly, if such it be, we are not responsible for. It is due to the system prevailing in this state by which exclusive appellate jurisdiction in certain cases is conferred upon one appellate tribunal, and, in other eases, concurrent jurisdiction upon the two. Hence, if our de [406] cisión that the board cannot' raise the question of the franchise or constitutional question, even if such questions would be involved were the action appropriate and the necessary parties present, is virtually a determination of the entire controversy— because the principle herein announced is decisive of all the objections urged by appellants — that is ho-reason why we should not refrain from usurping a jurisdiction we do not possess and announce the reasons which compel the decision. The fact that the attorney who appears for appellants in this case happens to be the same person who is the city attorney of the city of Denver, does not change the character of this action, or make it one in which the city, in its municipal capacity, is a party. However desirous the city may be for the court in this action to determine the validity of the alleged privilege or franchise of the petitioner, we must decline to depart'from the established practice and plain letter of the statute and cannot allow the city thus to get a decision that would bind neither it nor the owner of the rights claimed. If the city really desires to. have this question tested, there ought not to be any difficulty in properly presenting the matter in an appropriate way where the judgment announced would be conclusive of the rights, not only of petitioner, but of the city itself. The case will be remanded to the court of appeals, and it is so ordered. Remanded.