dissenting:
The majority opinion is based upon three propositions : First. That by the Public Utilities Act power is conferred upon the Public Utilities Commission to change the rates for carrying passengers fixed by contract. Second. That the.railway con^pany having filed with the Commission its schedule of rates, which were not suspended by the Commission, upon its own motion or upon the complaint of others for thirty days, the same became effective; and Third. That by the act in question the city has a plain, speedy and adequate remedy at -law by a proceeding before the Commission. From each of these I dissent.
1. It is said specific power is not conferred upon the City of Englewood to enact a rate-making ordinance, and therefore rates fixed by the ordinance granting the railway company a license to construct and maintain a street railway upon its streets may be changed by the Utilities Commission. In the first place the question of rates for transportation over the line of the railway company is not involved, and in the second place express power is conferred upon the city to fix rates which may be charged by a street railway company to which a franchise is granted. .The provisions of the ordinance which the railway company seeks to be relieved from does not relate to rates which it may charge for transportation o\rer its own line, but to the provision whereby it was required to sell coupon tickets which would entitle persons taking a car going north from a specified point to passage on the line of the Denver City Tramway Company into the City of Denver, and also entitle persons going south on the cars of the Tramway Company to be transported over the line of the railway company to a street *243designated in the' City of Englewood. This is in no sense a charge for transportation over the line of the railway company. The fare .over its line has always been five cents, and its effort is not to increase or change rates, bnt to be relieved from its contract, whereby it was required to furnish transportation over the line of the Tramway Company in the instances named. But conceding, for the sake of argument, that rates are involved, the cases cited in support of the proposition that authority is not conferred upon the City of Englewood to fix rates are not in point. Our statutes and the Constitution confer upon the city the power to fix rates as a condition upon which a franchise to operate a street railway over its streets is granted. Section 6676, Revised Statutes 1908, quoted in the majority opinion, must be read in connection with the section following, whereby it is provided that a corporation desiring to secure a franchise from a city or incorporated town must publish a notice of its intention to apply to the corporate authorities for the passage of- an ordinance granting such franchise, which notice must specify the terms upon which such franchise is desired. This means that the franchise can only be granted upon terms, and necessarily confers upon the municipal authorities the express power to contract with the corporation seeking the franchise, by specifying the terms upon which it is granted. So that when a corporation accepts a franchise imposing terms, it thereby enters into a contract the municipal authorities are authorized to make, which cannot be abrogated by any act of the legislature that would impair the obligation' of such contract. In addition, we have a constitutional provision, section 11 of article XY, which provides: “No street railroad shall be constructed within any city, town or incorporated village without the consent of the local authorities having control of the street or highway proposed to be occupied by such street railroad.” Prom *244this provision it follows that when a street railway cannot be constructed over the streets of a city without the consent of the municipal authorities, the latter have the express power to specify the terms and conditions upon which it may be constructed and maintained.
2. Conceding that power is vested in the Utilities Commission to change a rate fixed by contract, this cannot be accomplished in the manner attempted by the railway company, i. e., by posting notice of such change with tlie Commission. A change in a contract rate can only be made by a utility corporation making application to the Commission for such change, on notice to the parties interested, after a hearing. whereby all parties are afforded an opportunity to be heard and a change allowed by an express order of the Commission to that effect.
3. The act does not require the city to apply to the Commission to have its contract with the railway company enforced. It has never been modified. It is in full force and effect, and the only remedy open tu the city is by an action in the District Court to compel the railway company to comply with the terms of its contract.
The result of the conclusion announced by the majority opinion is sufficient to demonstrate without 'further argument that it is wrong. The railway company was granted the privilege of occupying the street of the city upon terms which it now refuses to comply and yet continues to occupy the street. One of the considerations which moved the municipal authorities to grant a franchise to the railway company has been taken away and it is permitted to exercise a privilege which it must be conclusively presumed would never have been granted except for such consideration.
The judgment of the District Court should be affirmed.
Mr. .Justice Teller concurs in this opinion. *245Decided July 3, A. D. 1916. Rehearing denied December 4, A. D. 1916.