On application for rehearing,
Bailey, J.:While fully concurring in the dissenting opinion of Mr. Justice Scott, there are additional reasons why I cannot agree to the opinions of the majority, and why a rehearing should be allowed.
It has been urged by the respondents, especially by the Telephone Company, that section 280 of the Charter of the City and County of Denver is invalid because in conflict with the due process and equal protection clause of the Fourteenth Amendment.to the Constitution of the United States, and that to construe Article XX of the State Constitution as amended so as to vest in the City and County of Denver the jurisdiction to regulate the business and rates of the respondent Telephone Company, thus depriving the Utilities Commission of that jurisdiction, is to bring the Article in question into conflict with the due process clause of the Fourteenth Amendment above mentioned.
These contentions seem, for the following reasons, to be well taken:
*2861. Section 280 of the Charter of the City and County of Denver reads as follows:
“All power to regulate the charges for services by public utility corporations, is hereby reserved to the people, to be exercised by them in the manner herein provided for initiating an ordinance.” Municipal Code, 1917, City and County of Denver, page 146.
The manner of initiating an ordinance is prescribed by section 273 of said charter, which reads:
' “Any proposed ordinance may be submitted to the council by petition therefor of qualified electors equal in number to at least five per cent of the last preceding vote for mayor, and such proposed oi’dinance shall be passed without alteration by the council, and if vetoed by the mayor shall be passed over his veto, within thirty days after such petition is filed, or the council shall refer such proposed ordinance to the qualified electors at the next municipal election held not less than sixty days after such petition is filed. If such petition contain a request for a special election and is signed by qualified electors equal in number to at least fifteen per cent of the last preceding vote for mayor, the ordinance thereby proposed shall be passed by the council without amendment or change, and if vetoed by the mayor, shall be passed over his veto, within thirty days after such petition is filed, or the council shall refep such proposed ordinance to the qualified electors at a special election which shall be called within thirty days, and held not less than sixty, nor more than ninety days after such petition is filed, unless a general or special election is held within said period of time, in which case such proposed, ordinance shall be submitted to -a vote at such election. The council shall cause such proposed ordinance to be published in some daily newspaper of general circulation once each week until such election is held. No ordinance adopted by vote of the people shall be repealed or amended by the council. Any provision of the charter in conflict herewith is hereby repealed.” Municipal Code 1917, City and County of Denver, page 142.
*287It is demonstration that the method of rate regulation thus prescribed precludes the possibility of any hearing as the basis of regulation. No presumption may be indulged in favor of the initiated ordinance relied upon by petitioner, nor in favor of any other initiated ordinance enacted in pursuance of the section of the charter, because the court judicially knows that there could have been no hearing of, or consideration given to, the facts upon which rate regulation, to be valid, must always be based. Moreover, the charter provides a method by which telephone users may apply for a change in. rates, but affords no method by which the Telephone Company may make such application. These sections of the charter manifestly deny the Telephone Company due process of law and the equal protection of the law, in violation of the Fourteenth Amendment. The majority opinions, in denying the jurisdiction of the Utilities Commisson to regulate the rates of the respondent company, necessarily and inevitably enforce against the Telephone Company these invalid charter amendments.
2. Article XX as amended is so construed by the majority opinions as to parcel out the Telephone Company, a state-wide utility, and its property, among as many independent cities as there are in the State of Colorado having a population of 2,000 inhabitants, with the power in each city to regulate the business and rates of the company within its own borders, but necessarily without relation to the effect of such regulation upon the general service in other parts of the State, and of course without relation to the effect of such regulation upon the entire business or property of the company within the State.
There is no support in our State Constitution for such construction, and such construction brings the Article into direct conflict with the due-process clause of the Constitution of the United States, and the enforcement of that construction, necessitated by the majority opinions, clearly denies to the Telephone Company due process of law.
The several opinions of the majority, so far as they relate to the particular matters herein discussed, although *288they do not present the same line of reasoning, have precisely the same effect, because they permit the city to arbitrarily fix rates for the Telephone Company, without the possibility of a hearing, and so plainly deny to it due process of law.
Decided January 14, A. D. 1919. Rehearing granted June 2nd, A. D. 1919. Decided July 7, A. D. 1919. Rehearing denied October 6, A. D. 1919.From each of these opinions, therefore, I must dissent, as well for the reasons so clearly and fully discussed by Mr. Justice Scott, as for the additional ones hereby suggested and likewise from the ruling of the majority in denying a rehearing in the case.
I am authorized to state that Mr. Chief Justice Garrigues and Mr. Justice Scott concur in this dissent.