dissenting.
Because I disagree with the majority's narrow construction of Article XKXV's restriction on the powers it grants to the Public Utilities Commission, I respectfully dissent. Because, however, the majority finds it unnecessary, under the facts of this case, to address the scope and effect of the power to franchise retained by the city, I understand its opinion to imply nothing about the ability of home rule cities to bar other service providers from operating within the city's own boundaries, by requiring, but denying them, a franchise.
Quite apart from a municipality's power to regulate franchises within its boundaries, I would construe the constitutional proviso's prohibition against PUC interference with municipally owned utilities to leave untouched a home rule city's power to exclude other utility providers in matters of purely local concern. By interpreting the proviso to limit the PUC from no more than requiring a CPCN of municipal utilities or dictating their operational details, the majority reaches the not only counterintuitive, but in my view *100anomalous, conclusion that the PUC is constitutionally barred from ordering the city's utility to guaranty Exeel and Leprino Foods priority of service over its other citizens, but is perfectly free to threaten, unless the utility accedes, to cripple its economic viability by authorizing, without the city's consent, an alternate service provider for its largest customers.
Furthermore, the majority seems to feel little need to offer any compelling support for this narrow and extremely anti-local construction, taking it as virtually self-evident. In what appears to be largely an exercise in circular reasoning, the majority merely references several examples of prohibited PUC interference, which make no attempt to comprehensively define the scope of the constitutional limitation, and rests on the PUC's statutory mandate to apply the doctrine of regulated monopoly and assess the adequacy of the service provided by utilities. Surely the PUC's statutory authority to regulate matters over which it is constitutionally granted jurisdiction has no bearing on the scope of its constitutionally granted jurisdiction in the first instance.
Similarly, it is far from clear to me whether the majority's holding in this case is in any way dependent upon the nature of the specific utility involved. Although the majority references legislative declarations to the effect that the distribution of natural gas is a matter of statewide concern, the majority does not conclude that extending a pipeline to Excel and Leprino inside the boundaries of the city is a matter of statewide concern or explain the significance of that characterization if accurate. While relevant, a legislative declaration of statewide concern is clearly not dispositive.
On the whole, however, I believe the constitutional proviso must be construed in its entirety, rather than dividing it into its constituent parts, as the majority does, with large gaps in between. I believe the term "franchise," as used in the constitution must be given the broader meaning of any privilege not granted to the public at large, rather than a limited one applying only to enterprises that cross a public street. Perhaps Fort Morgan has simply hoist itself on its own petard, as the majority seems to hold, by resolving that KN Wattenberg needs only the city's permit, rather than its franchise, but by truncating the constitutional analysis as a result of the city's distinction between a permit and a franchise, the majority leaves unresolved the tension in our prior cases concerning the power of municipalities to protect their status as exclusive service providers within their own boundaries by requiring, but declining to grant, a franchise to prospective competitors.
Although I consider the majority's holding today limited, I nevertheless consider it mistaken. I therefore respectfully dissent.