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720 720 HARVARD LAW REVIEW substitute service may be provided,^ or (4) the state may exercise its option to take the property by eminent domain in behalf of either state or private ownership and operation.^ The principal case raises the further question whether a public utiUties commission has jurisdiction over the cessation of service by and dis- mantling of a public utility. It is settled that the inherent power of the state to regulate the service of a public utility enterprise may be dele- gated to a commission or other administrative body.^ The Colorado Public Utilities Act, which is typical of the public utilities acts of other states, simply confers upon the commission power to regulate service,^ but the court expressly says, and it seems correctly, that the power to regulate, necessarily includes the power to prevent a railway, where there is a public necessity, from discontinuing service and dismantling its plant.^^ It is true, great power is thereby conferred upon the commis- sions, but it must be remembered that their decisions are kept by the courts within constitutional bounds.^* ^ I Wyman, § 317. ^* See 2 Lewis, Eminent Domain, 3 ed., § 445. On the other hand, "a railroad track may be abandoned and its construction ma- terial removed when it is conclusively shown that the public no longer has any interest in such materials remaining on the roadbed." Enid, O. & W. Railway Co. v. State, 181 S. W. 498, 502 (Tex. Civ. App.) (1915)- ^ See Atlantic Coast Electric Railway Co. v. Board of Public Utility Commissioners, 104 Atl. 218 (N. J.) (1918); Trustees of Saratoga Springs v. Saratoga Gas, E. L. & P. Co., 191 N. Y. 123, 83 N. E. 693 (1908). 32 Harv. L. Rev. 74. ^ 1913 Sess. Laws Colorado, chap. 127, as amended by 1915 Sess. Laws Colo- rado, chap. 134, and by 191 7 Sess. Laws Colorado, chap. no. 2' People ex rel. Hubbard v. Colorado Title & Trust Co., supra, note 5, at page 9; State ex rel. Tate v. Brooks-Scanlon Co., 143 La. 539, 78 So. 847 (1918). For commission decisions see Re Parkville Oil & Gas Co., P. U. R. 1919 A, 502 (Mo. Pub. Serv. Com.); City of Pana v. Central lUinois Public Service Co., P. U. R. 1916 B, 177 (111. Pub. Util. Com.). It is submitted that in exercising this power the commission should not be too hasty in deciding that the utility in question cannot be operated except at a loss. The utility should be compelled to exhaust every reasonable effort to give the sersace required. The Indiana, New Jersey, and Colorado commissions have taken a proper step in re- fusing to allow discontinuance of service without a previous application to the com- mission to increase rates. Re Muncie Light Co., P. U. R. 1918 B, 194 (Ind. Pub. Serv. Com.); Re Seashore Gas Co., P. U. R. 1918 A, 871 (N. J. Board of Pub. Util. Comrs.); Re Denver, L. & N. R. Co., P. U. R. 1917 F, 744 (Colo. Pub. Util. Com.). See also City of Pana f.' CentralUlinois Public Service Co., P. U. R. 1916 B, 177, 179 (111. Pub. Util. Com.). 2» State ex rel. Railroad Commissioners v. Florida East Coast Railway Co., 69 Fla. 165, 67 So. 906 (1915); Northern Pacific Railway Co. v. North Dakota, 236 U. S. 585 (1915); Atchison, Topeka, & S. Fe Railway Co. v. Railroad Commission, 173 Cal. 577, 160 Pac. 828 (1916). See St. Louis, I. M. & S. Railway Co. v. Bellamy, 113 Ark. 384, 169 S. W. 322 (1914)-. . c- 1 T 1 The tjqses of questions arising before the courts on review are illustrated m Salt Lake City V. Utah Light & Traction Co., 173 Pac. 556, 559 (Utah), (1918), where the court says: "The order of the commission increasing the fares as aforesaid presents three questions: (i) Did the passing of the franchise ordinances fixing the fares and their acceptance by the defendant constitute a contract . . . ? (2) If the franchise ordi- nances constituted contracts, was it within the power of the Legislature to authorize the commission to change the fares? (3) Does the constitutional provision by which the city authorities are given the exclusive right to permit or to refuse permission to street railway companies to construct and operate street cars within the cities of this state prevent the state, through its Legislature, from exercising its sovereign prerogative to regulate and change the fares fixed in the franchise ordinances ? "