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swer, on or before October 24, 1897, that por- that it has been moved and induced to make tion of the second amended complaint which such rates, reduced far below that which it applies to the schedule of water rates, with could be required to make or charge. because leave to plead as it shall be advised within it has desired to escape criticism and attack 10 days from date as to the other parts of of a public and political nature, and that it the second amended complaint. From the might be left to conduct its business, to the date of this order the trial proceeded upon end of discharging all its obligations to the the theory that there were three causes of public and its consumers, without being emaction stated in the complaint, involving, re- barrassed and harassed by false and unjust spectively, the causes of action above set costs, charges, and denunciations, and that forth, to wit, price, purity, and pressure. it believes and alleges that this honorable

The defendant filed its answer October 23, court will ascertain and determine that it 1897, to the second amended complaint relat- has done more in the way of reducing rates ing to water rates, by which answer the ma- for private consumers in the city of Denyer terial allegations of the second amended com- than it can or should be required to do, in plaint as to water rates were put in issue, ex- view of the character and nature of the servcept such allegations as might be denominat- ice rendered by it to said private consumers, ed formal. In passing, it might be well to and the nature and character of the service state that the allegations of the second rendered in each of the said cities of Chicago, amended complaint relating to the failure of Cincinnati, and St. Louis to the private condefendant to comply with the requirements sumers therein.' And defendant further alof section 5 of the ordinance were to the ef. leges that the rates charged and demanded by fect that the defendant had wantonly failed it are reasonable rates to be charged and deto fix a schedule or rates for private consum- manded for the services rendered by it in ers equiralent to the average rate prevailing supplying water to private consumers.” in the cities of Chicago, St. Louis, and Cin- October 27, 1897, plaintiff filed its replicacinnati, as required by the terms of section tion to the answer of defendant, which was 5 of the ordinance and the action of the city a general denial of the new matter contained council of the city of Denver, and that the in the answer. In the foregoing statement defendant had broken its obligations, duties, no attempt has been made to embody in this and promises assumed by it under said sec- opinion anything more than the briefest postion of the ordinance. In response to the

sible statement of the issue presented by the allegations of the second amended complaint

pleadings upon the alleged failure of defendthat the defendant had failed and refused to ant to comply with the requirements of seccomply with the requirements of section 5,

tion 5 of the ordinance. Up to this point the while the answer denied that it had failed pleadings, motions, demurrers, etc., with the or refused to comply with the requirements

court's ruling thereon, occupy 179 pages of of said section, nowhere does it affirmatively

the printed abstract. If the issue presented appear in the answer by any allegation that

by the pleadings has been clearly stated, no it had complied with the requirements of necessity exists for embodying an abstract said section. On the contrary, it affirmative

of the pleadings herein, and no beneficial rely appears from the answer that the defend

sult would be gained. ant had not complied with such requirements,

As to the errors assigned by plaintiff upon as a careful reading of the answer will dis

the rulings of the court upon the motions of close, and as is shown by the last paragraph

defendant to make more specific, definite, and of defendant's answer, which is as follows: certain the allegations of the amended com“Defendant alleges, upon information and plaint, and the motion to strike therefrom belief, that it is now collecting and receiving certain portions thereof for the reason that less, and that the schedule of November 1, they were iiamaterial and irrelevant, it is 1895, fixes and provides for lower rates and sufficient to say that, under the well-settled charges than the said defendant is entitled to rule of this jurisdiction, rulings of the court fix and collect under the terms and provisions upon such motions are very largely within of section 5 of the contract of April 10, 1890, the judicial discretion of the trial court, and and that it will be found, upon an inspection that, unless it clearly appears from the recof the schedule of rates alleged by the plain- ord that the court below abused such judicial tiff to prevail in the said cities of Chicago, discretion, this court will not interfere with Cincinnati, and St. Louis, that an exact aver- the same. From a careful consideration of age of item by item therein contained, or of the record in this case, this court is unable the items contained in Schedule A, attached to say that there was any such abuse by the to the contract of April 10, 1890, or of the court below of the judicial discretion yested rates contained in the semiannual schedule in it in its rulings upon these various motions of rates of November 1, 1895, cannot be de- as resulted in prejudicial error to the plaintermined or ascertained, but that the said de- tiff. In this connection it might be well to fendant is charging and collecting, and in its state that it has been a laborious task to said November 1st schedule of rates provided connect the motions as they appear in the for the collection of, rates less than the equiv- | printed abstract of the record with the pleadalent of the average of the rates prevailing ings to which such motions are addressed. in said three cities for the same service, and for the reason that the motions as they appear in the record are in the usual form of under the issues framed, the court was re. such motions, referring to the pleadings by quired to fix and establish a schedule of page and line as they were filed in the court rates. It also indicates to some extent the below, whereas, in the printed abstract fur- voluminous character of the evidence intronished this court, the paging is entirely dif- duced at the trial. ferent. We would suggest that, where coun- The findings of the court were as follows: sel seriously rely upon the errors alleged to "(1) That the schedule of annual water have been committed by the court in such rates established this 9th day of February, rulings, they call the attention of this court A. D. 1898, shall be payable semiannually in to the precise language to which the motions advance on the 1st day of May and Novemare addressed, by quoting the same in their ber, respectively, A. D. 1898, and on the same briefs, thereby relieving the court of much days of each year thereafter. (2) That this unnecessary labor. These remarks are espe.

schedule of rates for private consumers of cially pertinent to the record proper in this water in Denver has been obtained by addcase, which occupies 228 pages of the printed ing together the prevailing minimum rates in abstract.

Chicago, St. Louis, and Cincinnati, and diWe have examined the argument of coun- viding the sum thus obtained by three, the sel for plaintiff with a great deal of care, number of cities contributing; but whenever and are of the opinion that he has failed either of the said three cities have no preto call the court's attention to any ruling vailing rates, and thereby fail to contribute made by the court below which in any wise a price or rate, then we have allowed as the appears to us to be an unwarranted exercise rate to be hereafter charged whatever the of the court's authority in matters of this rate was for such service in Denver on the nature. On the contrary, we believe tha'. 1st day of November, A. D. 1895. (3) That the orders of the court were warranted, and the prevailing rates referred to in Ordinance tended to simplify the issues, expedite the No. 44 of the Series of 1890, in section 5, and trial, and did not deprive the plaintiff of which have been taken in determining the any of its rights. After the issues had been rate to be charged in Denver, mean and are framed as hereinbefore stated, the hearing held to be the present existing minimum of testimony proceeded before the court with- rates charged in Chicago, St. Louis, and Cinout a jury through several months, and on cinnati for any specific service. (4) Minithe 9th day of February, 1898, the court mum rate means the lowest price given or rendered its opinion and made its findings calculated in each of the three cities for a upon what we shall designate the first cause specified thing. being, in Chicago, a frontage of action. The opinion and findings of the of 12 feet; in St. Louis, the least desirable court occupy 44 pages of the printed supple- location for any kind of business; and, in mental abstract of defendant. It will be un- Cincinnati, the lowest charge for area space, necessary to set forth the opinion of the 500 square feet or less, accompanied by the court in this opinion. Such portions, how- minimum use of water. (5) That the quesever, as serve to indicate the process of rea- tion of discount is a matter of private regsoning, based upon the evidence in the case, ulation, a rule of the water departments in adopted by the court below in arriving at its Chicago and Cincinnati, and is not found in conclusions, will be from time to time quoted St. Louis. Nowhere is a discount a part of herein as this opinion proceeds.

the price, as appears from and is set forth The court in its opinion promulgated a in the water rates of either of these cities. schedule of rates to be adopted by the de- (6) That the rules and regulations of the fendant for water furnished by it to the pri- defendant company, of which complaint has vate consumers of the city of Denver. This been entered, are not harsh, oppressive, nor schedule, so far as the items therein are unreasonable to that degree or extent as concerned, was based upon "Schedule A.” would warrant a court in entering an order which was a part of the ordinance of 1890. decreeing that such rules and regulations be We find from the record that the items of changed, modified, or annulled. We find the service included within "Schedule A," exclu- same rules, of like severity, in each of the sive of irrigation rates and meter rates, were three cities, and abundant legal authorities 107, that the leaflet schedule of rates con- in different states upholding their enforcetained 142 items, and that the schedule of ment. (7) That the prevailing rates at this rates promulgated by the court contained date in Chicago, St. Louis, and Cincinnati 13.3 items. This increase of items in the are not the rates which prevailed in these court schedule over the items contained in cities in October, 1893, when a demand was "Schedule A" seems to have been warranted made by the city council, nor on November in the opinion of the court by the fact, which 1, 1893, when the defendant company fixed appeared in evidence, that other and differ- its schedule of rates as set forth in its leafent uses of water in the (ity of Denver had let. (8) That the evidence fails to show grown up since the adoption of the ordinance that the defendant wholly, or at all, wantonof 1890. The above statement is made for ly or otherwise, failed, in October. A. I. the purpose of showing the number of items 1895, to inake a schedule of rates which was of service concerning which testimony was not the equivalent of the average prevailing introduced at the trial, and upou which. , rate then in force in the three cities. (9) That the defendant company will be entitled , questions of fact either upon conflicting evito collect from all private consumers of wa- dence or upon undisputed evidence sustainter such amounts as were due and payable ing and tending to sustain the findings of on the 1st days of May and November, A. D. the court. The rule in this state is well 1897, in accordance and compliance with the settled that where the findings of fart and rates as set forth and fixed by the defendant decree are based upon either conflicting or company on the 1st day of November, A. D. undisputed evidence, and there is substantial 1895. (10) That the rates provided to be evidence to support them, taken before the fixed in and by section 5 of the contract of court below, which sustains or tends to susApril 10, 1890, are not by the terms of the tain such findings and decree, this court is said contract, and cannot be by plaintiff, precluded by such findings and decree, and made to apply to towns which have been, will not disturb the same. Citation of allsince the making of said contract of April. thorities is not necessary in support of the 10, 1890, annexed to the city of Denver by above rule, as the Reports of this state are a vote of the inhabitants thereof, and that full of such authorities. In view of the the respective rights of the defendant com- above rule, it is important to always keep pany, and of the inhabitants of the territory in mind the issue presented by the pleadings embraced in said independent towns which upon the question now under consideration. have been annexed, remain as though there Without question the original complaint, the had been no annexation thereof, and are to amended complaint, and the second amended be controlled only by the contracts existing complaint intended to present to the court between the said defendant company and a claim upon the part of the city of Denver said independent towns or cities, and that that the defendant had failed to comply with the plaintiff has only the rights in the prem- section 5 of the ordinance, relating to the ises as against the said defendant that were fixing of a schedule of rates for private (onhad or might be asserted by the said inde- sumers which should be equivalent to the pendent towns and municipalities against the average rate prevailing in the three cities defendant company, had there been no annex- mentioned for the same service. This is ation, and that the rights and obligations, re- manifest from the fact that the resolution spectively, of the plaintiff and defendant, adopted by the city council October 2, 1895, are the same as the rights and obligations and the ordinance adopted April 29, 1897, of the said defendant and the said towns which are alleged to be authority for the and municipalities were prior to the said an- commencement and prosecution of this acnexation, and that this finding applies, re- tion, make no mention of the failure upon spectively, to the inhabitants or territory em- the part of the company to comply with serbraced within the former towns and cities tion 6 or section 8 of said ordinance, relatof Highlands, Colfax, Barnum, South Den- ing to the purity and pressure of the water ver, and Harman, being the only towns and furnished by the defendant. This being the cities concerning which, and the annexation case, our inquiry is limited to the one ques. of which to the city of Denver, any evidence tion, namely: Is there competent evidence in has been introduced in this cause, and that the record sustaining or tending to sustain the same rule is applicable to all other the schedule of rates promulgated by the towns that may hereafter be annexed to court below, as being a schedule for private said city in the same manner as the towns consumers which is the equivalent of the herein enumerated. (11) That the same serv- average rate prevailing in the three cities ice designated as irrigation of lots in 'Sched- mentioned for the same service? ule A,' which is attached to and made a After an exhaustive examination of the part of the contract of April 10, 1890, does evidence in this case we are forced to the not exist in either of the cities of Chicago. conclusion that the evidence does not sustain St. Louis, or Cincinnati. (12) That the de

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or tend to sustain the schedule of rates profendant is entitled to collect and receive mulgated by the court, for reasons which will rates for and on account of any uses not now be stated. The defendant at the trial inenumerated and set forth in the schedule in troduced no testimony as to the schedules of this decree fixed and established at a rate rates prevailing in the three cities mentioned, not higher than is fixed and determined in relying upon its cross-examination of the witand by the schedule herein fixed and estab- nesses introduced by the plaintiff. The plainlished for the same service; that is to say, tiff introduced certified copies of the schedule for the same quantity and use of water un- of water rates existing in the three cities at der like conditions and circumstances :

the date of the trial. the testimony of all vided that such uses be not the same which accountant whose experience in that line of are now covered by and included in the work consisted of three or four months' items and rates charged and collected for labor, previous to testifying in this case, in an under the items contained in said schedule effort to arrive at an average of the rates of rates herein fixed and determined."

charged in the three cities mentioned to their The position of defendant in this court is private consumers for the same service renthat the findings and decree of the trial dered by the defendant to its private consuncourt upon the issues of fact are conclusive, ers. Plaintiff also introduced one witness because they were findings and a decree upon from each of the three cities mentioned, who were in some capacity connected with the thirds of the items of service covered by the water departments of those cities, who tes- schedule promulgated by the court. It is tified in support of the testimony which had possible that, if the testimony had disclosed been adduced from the plaintiff's accountant, that no rate was fixed in one or more of the and also as to the manner and method of ar- cities for a few only of the items included riving at the rates charged to private consum- within the court's schedule, the rule adopted ers by the water departments of the several by the court above stated might have been cities. At the very outset of the investigation unobjectionable upon the theory that a subit was developed that there existed in each of stantial compliance with the terms of a conthe three cities mentioned a system of de- tract is all which the law requires. If the termining rates charged private consumers, court had adhereil to the rule announced, it based upon the schedule of rates found in the would have resulted in leaving the schedule ordinances, which differed from the system of rates adopted by the company in 1893 in prevailing in the other cities, and also dif- full force and effect as to more than twofered from the system prevailing in the city thirds of the rates fixed by such schedule, and of Denver. To illustrate: The testimony in our opinion must have resulted in the court shows that in the city of Chicago the system arriving at the conclusion that it was abprevails of charging what is known as a solutely impossible to determine the average "frontage rate" against every building which rate prevailing in the three cities mentioned fronts upon a street through which, or along for the same service, and therefore impossible which, a water main has been laid. This to enforce the provisions of the contract exfrontage rate” is in addition to the charges isting between the city and the company, in made for instruments of service which may so far as the requirements of section 5 of the be used in the building. It is based upon the ordinance are concerned. minimum of 12 feet front of a one-story build- To escape this conclusion, however, over ing, and increases as the frontage increases the objection of defendant, testimony was inand the number of stories in the building in- troduced which was an attempt to establish creases. In St. Louis the rate for water is a rate in one or more of the three cities mendetermined by the location of the water con- tioned where no such rate prevailed. In other sumers; the least desirable location being words, the court allowed testimony to be incharged the lowest rate, and the most desir- | troduced, over the objection of defendant, for able location being charged the highest rate. the purpose of establishing rates for items of In Cincinnati the charge is regulated by service in the three cities where no rate pre the space occupied by the consumer, upon a vailed, and therefrom computed an average, basis of 500 square feet for the minimum which average appears in the schedule procharge. From the above statement it will mulgated by the court in more than two-thirds be readily seen that owing to the radically of the items therein contained. If, under the different manner in which charges are made testimony, it had been possible to thus supunder the ordinances and schedules of the ply the missing rates in one or more of the three cities, it is absolutely impossible to ar- three cities with definiteness and certainty, rive at an average rate for the three cities, such method of computation might not have for the reason that it is absolutely impossible been objectionable; but the witnesses who to average frontage, locality, and space.

testified upon this point, from the necessities As the taking of testimony progressed, it of the case, were compelled to assume the developed that in one or more of the three existence of certain facts in many instances cities there was no charge whatever for a which were not supported by the evidence. large number of items of service included in When this method of computation was called "Schedule A.” The court in finding 2 said : in question by the defendant, by objections to "That this schedule of rates for private con- the testimony and upon cross-examination, sumers of water in Denver has been obtained the witnesses testified that the above assumpby adding together the prevailing minimum tions were made because they were fair, just, rates in Chicago, St. Louis, and Cincinnati, and reasonable, thereby introducing into the and dividing the sum thus obtained by three, case questions which were not in any manthe number of cities contributing; but when- ner presented by the issue. The court was ever either of the said three cities have no not called upon, by any issue presented by the prevailing rates, and thereby fail to contrib- pleadings, to determine a fair, just, or reasonute a price or rate, then we have allowed as able rate for the private consumers of the the rate to be hereafter charged whatever city of Denver. It was its duty, and its duty the rate was for such service in Denver on only, under the issue presented, to determine, the 1st day of November, A. D. 1895." If the if possible. the average rate prevailing for court, in arriving at the schedule of rates the same service in the three cities mentioned. which it promulgated, had strictly adhered to Anything beyond this was outside of and bethe rule announced in the above finding, no yond any issue in the case. The admission rate could have been arrived at for more than of such testimony was without justification two-thirds of the items in the schedule adopt- upon any principle with which we are familed by the court, for the reason that in one or iar. Without such testimony it would have more of the schedules of the three cities men- been, and was, absolutely impossible for the tianed no rate was fixed for more than two- court to arrive at a schedule of rates for the

private consumers of the city of Denver required by section 5 of the ordinance.

This sort of testimony pervades the record, and, as above stated, more than twothirds of the rates established by the court in the schedule promulgated by it are based upon such testimony, and such testimony only: The cross-examination of plaintiff's witnesses by defendant's counsel emphasized in a marked degree the incompetency of the evidence upon which the decree of the court was largely based. That this method of computation and calculation was adopted by the court is manifest from finding 4: "Minimum rate means the lowest price given or calculated in each of the three cities for specified things," etc. In the schedule of rates promulgated by the court the minimum and the maximum rate is established for 36 items. In every instance the maximum rate thus established is identically the same as that set forth in the schedule adopted by the company in October, 1895, and known as the "leaflet schedule.” The testimony in the case has been examined with the utmost care, and we fail to find any testimony whatever in support of any maximum rate promulgated by the court in its schedule. That the court adopted the maximum rate of the leaflet schedule, without any evidence to justify such action, is conclusively shown by the following extract from the court's opinion: "The following table will therefore be held to be the schedule of minimum and maximum rates fixed for private consumers of water in the city of Denver, which rates we find to be equivalent to the average minimum rate prevailing in the cities of Chicago, St. Louis, and Cincinnati for the same service. The maximum rate, where a maximum is given, is based upon that found in Schedule A, with the reduction therefor found in the leaflet." In our view, the maximum rate which the water company may charge is of more importance to the consumer than the minimum rate, for the reason that under the findings of the court (paragraph 4) the minimum rate established "means the lowest price given or calculated in each of the three cities for a specified thing, being, in Chicago, a frontage of 12 feet; in St. Louis, the least desirable location for any kind of business; and, in Cincinnati, the lowest charge for area space, 500 square feet or less, accompanied by the minimum use of water.” In the opinion of the court it is said: "There can be no fixed rule in determining a maximum or intermediate charge. Much must depend on the integrity of the party appli(ant as to the uses for which he says he desires the water; and likewise much must depend on the fairness of the company supplying the water as to its charges.” If, as the court found in paragraph 4 above quoted, the minimum rate is based upon the frontage, locality, and space, accompanied by the minimum use, all or either of those elements may be applied by the company in determin

ing when the service rendered should be paid for at the minimum rate, and the maximum or intermediary rate is left entirely to the discretion and fairness of the company. In other words, the company may not go below the minimum rate established by the court's schedule; but, in fixing a maximum rate for any service to a private consumer, it may go to the limit allowed by the court, thus consigning the private consumers to the mercy and fairness of the company.

We do not wish to be understood as intimating that the company would abuse the privilege granted it by the court, but simply announce the belief that, if the testimony Warranted the above findings of the court, then the testimony was insufficient to enable the court to establish a schedule of rates, both ininimum and maximum, which would be a compliance with the requirements of section 5 of the ordinance. The brief of counsel for defendant is replete with statements to the effect that plaintiff failed to prove its case. To quote:

To quote: "It cannot be

" claimed that any evidence has been offered, or that any allegation has been made, to fix a schedule of rates. All that, as we were frequently admonished, which was attempted to be done, was to fix a minimum rate for certain items, leaving the remainder of the schedule untouched in every particular whatever. Was that making a case? Was that following the allegations of the complaint? Was that showing a right to equitable relief, or to any kind of relief? And yet the court

legally compelled to broadly state: "These are the matters which were necessary to have been fully established by evidence, and these are the matters concerning which there has been an utter and absolute failure by the plaintiff.' ” Many other quotations from defendant's brief of like import might be made. In fact, the whole burden of defendant's brief and argument is to the effect that the company, having adopted a schedule of rates which was less than the contract called for, had kept, not only the letter, but the spirit, of the contract. We believe that this contention of defendant is amply sustained by the evidence in this case, as a comparison of the two schedules shows that the rates established by the court for nearly one-half of the items in its schedule are higher than the rates established by the company; but under the issue presented by the pleadings such contention cannot avail, for the reason that there was no question of the justice or fairness or reasonableness of the schedule of rates adopted by the company in 1895 presented to the court below. sole question was a determination of a schedule of rates which should be equivalent to the average rate prevailing in the three cities mentioned for the same service. The theory upon which defendant tried the case seems to have been that, unless it could be shown that the schedule adopted by it in 1893 was wrong, such schedule should stud.

The

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