On Petition for Rehearing.
ADDENDUM
The petition for rehearing filed on behalf of Colorado-Ute contains five separately numbered points which counsel asserts this court overlooked or misapprehended. We consider them in some detail in the following point by point reference.
Point I. It is argued that our decision (a) denies Colorado-Ute the authority to serve its members and gives protestants the exclusive right to do so; (b) requires Colorado-Ute to sustain a higher degree of proof of public convenience and necessity than that required of other utilities by requiring it to show inadequacy of service by a nonpublic utility; and (c) denies Colorado-*302Ute the same opportunities afforded other public utilities to construct facilities to serve existing members, in violation of the due process and just compensation clauses of the Fifth Amendment to the United States Constitution.
None of these assertions are true. (A) Our decision does not deny Colorado-Ute authority to furnish electric energy to the members it had acquired when the application was made for a certificate; it does, however, deny it permission to expand its facilities and spread its service areas to a point where it would encompass those already being adequately served by other certificated suppliers of electrical energy. Our decision does not give the protestants the exclusive right and privilege of rendering such service, but it does protect all public utilities against competition by new public utilities without adequate proof and findings that public convenience and necessity requires the new facility or expanded new service. The decision violates no constitutional right of Colorado-Ute, because its service is affected with a wide public interest and it must therefore conform to the Public Utilities Law of the State of Colorado, and the well established doctrine of regulated monopoly which is an important part of that law.
(B) The decision does not require a higher degree of proof by Colorado-Ute; it does, however, hold that no proper proof of public convenience and necessity was shown as a matter of law by the record, particularly when the unanimous conclusion of all members of the Utilities Commission was that adequate sources of power already existed to supply the needs of the proposed new members of Colorado-Ute. Our decision points out (at pages 10 and 11 thereof) that the Commission considered all existing sources (not just those available from the Bureau of Reclamation) and found them to be adequate. The requirement of the Public Utilities Law is to protect the public from supporting increased investment (in this case in excess of 30 million dollars) *303without regard to whether that investment would duplicate the facilities of a regulated or a nonregulated supplier. The adverse economic impact upon the public is the same whether the existing source of supply is a federal agency (and therefore unregulated by state authority) or a public utility subject to regulation by the Commission. We refer back to page 21 of our opinion in this connection where pertinent legal conclusions are drawn.
(C) Our decision does not deny Colorado-Ute “the same opportunities afforded to other public utilities to construct facilities to serve existing members.” The “existing members” referred to in the petition for rehearing are the proposed new members for whom it would be necessary that Colorado-Ute expand its service area to a large portion of the State of Colorado, and have additional electrical energy at its disposal. Colorado-Ute has not been denied the right to serve its original members. Its desire to construct new facilities and to serve new members was the very issue requiring proof of public convenience and necessity which it failed to sustain because of the Commission’s conclusion that existing sources of energy were adequate. Colorado-Ute cannot by-pass this burden of proof merely by entering into contracts with potential new members or customers who are not suffering from lack of electrical service by existing suppliers.
Point II. In this assignment of error it is asserted that this court misconstrued C.R.S. 1963, 115-5-1. This, too, we believe is not true. This section, in addition to prohibiting a public utility from interfering with any other such utility, provides that no new plant or system can be constructed without proof of public convenience and necessity, subject to certain exceptions (none of which were found to be applicable in this case). The fact that the Bureau of Reclamation is not a public utility again does not absolve Colorado-Ute from proving public convenience and necessity, and neither does *304it detract from the law that duplicating facilities requiring enormous investments should not be supported by the consuming public if they are unnecessary. The record discloses that it was Colorado-Ute who initiated all testimony with respect to the availability or lack of availability of Bureau power, and it is too late for it to now contend that this evidence should not be considered in determining public convenience and necessity.
Point III. It is here asserted that the court “misapprehended” the constitutionality of C.R.S. 1963, 115-1-3(2) (the legislative declaration that co-operatives are public utilities) in that it violates due process, infringes upon private rights of contract, and violates equal protection of the law in violation of pertinent provisions of the Constitution of the United States.
Under this assignment of error Colorado-Ute completely reverses the position it unequivocally took before the Commission and throughout the entire proceeding, and apparently places reliance at this late date upon the content of the views of one dissenting justice. It now takes the position that it is not a public utility. Reference is made to that portion of the opinion in which we discuss in detail the fact that the business of Colorado-Ute is affected with a public interest and is properly classified by the legislature as a public utility. This allegation contained in the petition for rehearing is the first formal pleading ever filed in this case by Colorado-Ute in which it is claimed that it is not a public utility subject to the jurisdiction and regulation of the Public Utilities Commission. Its position before that body was exactly the opposite. Mr. Moses, representing Colorado-Ute, made the following statement during a forensic colloquy relating to the question as to whether his client was a public utility. It appeared that in a document filed with the Commission it was asserted that Colorado-Ute, “* * * is or may be a public utility.”
“MR. BARRY: No, sir.
*305“COMMISSIONER HORTON: I have no further questions then.
“MR. MOSES: I might say for the record and in explanation of this, that this application was copied from our last securities application which was filed when counsel had some question in counsel’s mind. Counsel doesn’t have any question any more.
“MR. BARRY: I am sorry, Mr. Moses, I was talking with Mr. Baucom. What did you say?
“MR. MOSES: I said in essence that this was my error, and that it was copied from our previous securities application which was filed at a time when there was a question in my mind as to whether they were a utility or not. There is no question in my mind anymore.
“MR. BARRY: Maybe we can clear up the record, and I think it would be better. Would you like to amend your application to delete the words ‘may be’?
“MR. MOSES: I would be perfectly happy to delete the words ‘may be’ to make it consistent, because I think we are a utility.
“COMMISSIONER ZARLENGO: Have the record show that the petition No. 19156 dealing with securities is amended by dropping the words in paragraph one, ‘or may be.’
“MR. MOSES: Thank you.”
Points IV and V. It is claimed in both of these assignments of error that this court made findings of fact — paragraph four alleging this to be unconstitutional, and paragraph five asserting that this court violated the statute which requires affirmance by the reviewing court of a finding which has sufficient support in the evidence. The finding of fact alleged to have been made by the court is that existing power sources were adequate. Clearly, this was not a finding of fact by this court. That finding was made by the Commission and is abundantly supported by the evidence. The opinion of this court contains references to the decision of the Commission where all three 'Commissioners found an adequacy *306of existing sources. Had this court made a finding to the contrary we would then have been in a position of having unwarrantedly substituted our judgment for that of the Commission, in which case those adversely affected would have ground for complaint.
It is alleged in paragraph five that the Public Utilities Commission expressly found that existing power supplies were not adequate and references to the record are given. This allegation in specious. The Commission did not so find; on the contrary, it found existing sources adequate, and also, that there were in fact alternative sources of power available to Colorado-Ute’s proposed new members including that available by certificated public utilities authorized to serve in the area. The reference to C.R. p. 5144 (being a portion of the Commission’s decision) not only fails to sustain Colorado-Ute’s contention, but actually refers to a finding of the Commission that existing sources were adequate. Other references to the record before the Public Utilities Commission point to portions thereof where Colorado-Ute attempted to prove Bureau power inadequate; this was expressly rejected by all three members of the Commission. Such references to the record are merely a rehash of disputed testimony which was not accepted by the Commission. The references to C.R. p. 1682 and p. 1915 do not support the assertion that existing power sources are inadequate; actually, the Commission found to the contrary of this assertion as shown at’ pages 11 and 12 of the court’s decision.
The petition for rehearing filed by the Public Utilities Commission is substantially similar to the petition filed by Colorado-Ute. Therefore, since no new or other issues were raised by the Commission’s petition, the discussion relating to the Colorado-Ute petition for rehearing is equally applicable to the Commission’s petition.
The foregoing discussion, while perhaps unnecessary, is presented in the hope that it may add clarity to the opinion and demonstrate that the points urged in the *307petition for rehearing were not overlooked or misapprehended by this court.
■The petition for rehearing is denied.
Mr. Justice Frantz, for reasons stated in his dissent, would grant the petition for rehearing.