284 P. 38 | Okla. | 1930
This case is an appeal from the Corporation Commission of Oklahoma and from an order of said Corporation Commission granting a revocable permit to the Consolidated Gas Utilities Company, defendant in error, in lieu of a municipal gas franchise. The case involves the validity of chapter 102 of the Session Laws of 1925. The record in this case shows that the Consolidated Gas Utilities Company, a corporation, was at the time of the commencement of this action engaged in the business of furnishing gas service as a public utility in the town of Cushing, Okla., under a valid and existing franchise granted by said municipality on the 16th day of October, 1912. Ordinance No. 85, and that on the 9th day of April, 1929, the Consolidated Gas Utilities Company, by its president and attested by its secretary, and under the seal of the corporation, executed its declaration and agreement surrendering its franchise for a revocable permit, which declaration and agreement was acknowledged in the same form as provided by statute for the acknowledgment of conveyances of real estate.
The city of Cushing filed its protest before the Corporation Commission against the granting of said revocable permit, alleging that chapter 102 of the Session Laws of 1925 was unconstitutional and void. After a hearing before the Corporation Commission, the protest of the city of Cushing was denied and exceptions allowed the city, and on the 20th day of May, 1929, the Corporation Commission granted the Consolidated Gas Utilities Company a revocable permit, No. 256, in lieu of its municipal franchise. The city of Cushing gave notice of appeal and brings the case here for review. The issue presented by this appeal is the constitutionality of chapter 102 of the Session Laws of the 10th Legislature of Oklahoma, 1925, known as House Bill No. 4.
This court, in the case of City of Okmulgee, a Municipal Corporation, Plaintiff in Error, v. Okmulgee Gas Company, a Corporation, *84
Defendant in Error, Oklahoma Natural Gas Corporation, a Maryland Corporation, Substituted Defendant in Error, No. 18465,
We feel that no useful purpose could be served by further discussing the issue involved in this case, for what we said in City of Okmulgee v. Okmulgee Gas Company, supra, applies with equal force to this case.
We also hold that the Corporation Commission of the state of Oklahoma is without jurisdiction to permit the surrender of a municipal franchise granted by a municipal corporation and the receiving in lieu thereof, by the holder of such franchise, of a revocable permit, as, under the Constitution of this state, the municipality granting the franchise and having the right under the Constitution to grant the franchise alone has the authority, by vote of the electors as provided for in the Constitution, of extending or renewing such franchise, and this right reserved in our Constitution by the people to themselves cannot be taken away from them by the Legislature, and any act of the Legislature which attempts to do so violates the letter and spirit of our Constitution, and is therefore void.
We therefore hold that the act of the Corporation Commission permitting the Consolidated Gas Utilities Company, a corporation, to surrender its municipal franchise and receive in lieu thereof a revocable permit from the state of Oklahoma was beyond the power and jurisdiction of the Corporation Commission, and that revocable permit No. 256, issued by the Corporation Commission on May 20, 1929, was issued in violation of the Constitution of the state of Oklahoma, and that the act of the Legislature under which the same was issued is unconstitutional *85 and void, and this cause is, for that reason, reversed and remanded to the Corporation Commission of the state of Oklahoma, with directions to cancel the revocable permit No. 256, issued May 20, 1929, to the Consolidated Gas Utilities Company, a corporation, and to dismiss said proceedings for want of jurisdiction of the Corporation Commission to grant said permit.
MASON, C. J., LESTER, V. C. J., and CLARK, RILEY, HEFNER, CULLISON, and ANDREWS, JJ., concur. HUNT, J., dissents.
Note. — See "Franchises," 26 C. J. § 98, p. 1040, n. 33. "Monopolies," 41 C. J. § 13, p. 87, n. 64.