Mr. L. F. Twitchell, of Denver, Colo., for plaintiff in error. [248 U.S. 294, 295] Mr. Fred Farrar, of Denver, Colo., for defendant in error.
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 [248 U.S. 294, 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 section 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 defence 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 be dismissed.
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 conter 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that clearer language than can be found in the State laws and this ordinance must be used before a public service is withdrawn from public control.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.S. 174, 180 , 35 S. Sup. Ct. 820. 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 [248 U.S. 294, 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 saved.
Writ of error dismissed.