concurring specially:
I concur in the conclusion reached in the majority opinion. It is conceded in respondent’s briefs that Article 20 of our Constitution, including amended Section 6, has conferred upon the City and County of Denver all powers which the Legislature could have conferred, i. e., power to legislate upon ail subjects local and municipal; and if the power to fix telephone rates by compulsion be one of local and municipal concern, it has been granted to the municipality. The sole contention is that this is not a local or municipal matter.
The latest definite declaration of the law on this subject by the highest authority in the country, and which still stands unreversed and unmodified, is Home Telephone and Telegraph Company v. City of Los Angeles, decided by the Supreme Court of the United States November 30, 1908, 211 U. S. 265, 53 L. Ed. 176, 29 Sup. Ct. 50. Among other things, it is there said (page 271) :
“The power to fix, subject to constitutional limits, the charges of such a business as the furnishing to the public of telephone service, is among the powers of government, is legislative in its character, continuing in its nature, and capable of being vested in a municipal corporation.”
If it is “capable of being vested in a municipal corporation” it is only so because it deals with a matter of purely local and municipal concern.
Quoting further (page 273) :
“It has been settled by this court that the state may authorize one of its municipal corporations to establish, by an inviolable contract, the rates to be charged by a public service corporation (or natural person) for a definite term, not grossly unreasonable in point of • time, and that the effect of such a contract is to suspend, during the life of the •contract, the governmental power of fixing and regulating rates.”
*242This authority holds that this power to contract for a definite rate for a specified time is a greater power than the power to fix rates by compulsion. The reason is apparent. A rate fixed by ordinance or statute is not fixed for a definite time because it may be changed or altered at any time by repeal or amendment of the legislation. The same is true even of a constitutional provision. But a rate fixed by contract is definite and certain as to time and may extend far beyond any such temporary limits. The right to confer the greater power necessarily implies the right to confer the lesser.
As to the further declaration therein, that: “But for the very reason that such a contract (fixing rates for a definite term) has the effect of extinguishing pro tanto an undoubted power of government, both its existence and the authority to make it must clearly and unmistakably appear, and all doubts must be resolved in favor of the continuance of the power,” it seems to me wholly inapplicable. Because here the authority, being derived from the Constitution, is unquestioned, and the existence, if the subject be one of local or municipal concern, is admitted.
Quoting again (page 279) :
“It is too late, however, after the many decisions of this court which have either decided or recognized that the governing body of a city may be authorized to exercise the rate-making function, to ask for a reconsideration of that proposition.”
The court is here speaking of an authorization by legislative enactment. If the governing body of a city may so be authorized by the Legislature, it is only because the subject is one of local and municipal concern. And if the municipality may be so authorized by the Legislature it may, a fortiori, be so authorized by constitutional enactment.
The opinion in the Los Angeles case was by Mr. Justice Moody, without dissent. It supersedes all previous state and Federal decisions in conflict with it, and, in view of its *243positive statement that it is now too late to ash for a reconsideration of the proposition, it can not be presumed that the highest court of the land will hereafter otherwise decide. It is absolutely binding upon this court.
I think it can not be denied that the question, upon reason, is a close one, nor that the great weight of authority, excusive of The Home Telephone case, is to the contrary. I, myself, during the consideration .of the matter, have been of a different opinion, but am led to this conclusion by what I believe to be the overwhelming force of that decision.
In the instant case the opinion was by a closely divided court, four Justices concurring and three dissenting. It was handed down but a few minutes before a change occurred in the personnel of the court, two of the concurring Justices retiring and their places being taken by two newly elected. The opinion was written by one of the retiring Justices. A majority of the members of the court who had heard argument and considered the case were against the conclusion. The motion for a rehearing could not be passed upon by the Justices who had decided the cause. The question at issue was one of vast importance to the whole people of the state. Under such conditions I think a motion for rehearing should be granted and the question determined upon a careful review of the whole case upon its merits, and that such was the proper procedure irrespective of the final determination of the court.
Furthermore, if the power to fix rates by compulsion exists in the City of Denver, it is by reason of the provisions of Article 20 of the Constitution, including amended Section 6, ratifying the city’s charter. If it depends upon the amendment, such power is granted only to those cities which had their charters on file with the Secretary of State January 22, 1913, when the amendment became effective. It would, therefore, take another constitutional amendment to confer this power upon other Home Rule cities. It is contended that the inevitable result must be that Home Rule cities will fix the lowest rates which the courts will permit *244to stand as not confiscatory; that to balance this result the commission will fix, in all other cities and in the state at large, the highest rates which the courts will sanction as reasonable; that the citizens of the state at large will thus be obliged to bear so much of the burden of the support of such utilities as the favored cities will in this manner be able to transfer to them; because the courts can not correct the evil, being powerless to fix rates and having only jurisdiction to determine what rates are unreasonable and what are confiscatory; hence that Section 8 of Article 15 of the Constitution,.providing that: “The police power of the state shall never be abridged or so construed as to permit corporations to conduct their business in such manner as to infringe the equal rights of individuals or the general well-being of the state,” will be violated. This question was not discussed in the original opinion and seems not to have been presented in the main case. It was a new question raised on the motion for a rehearing, which of itself justified the granting of that motion. On this subject I am of the opinion that, until it otherwise appears,, the courts must assume that the cities concerned, as well as the commission, will do their duty, fixing rates that are fair and reasonable. If the people have granted this power to these Home Rule cities no presumption that it will be improperly exercised can be indulged to defeat any exercise thereof. It may be that the plan will not work out to the satisfaction of the people of the state. If so, it is within their province to amend or repeal it whenever they see fit. “On their own heads, in their own hands, the sin and the saving lies.”