City of Okmulgee v. Okmulgee Gas Co.

88 being had been Note, made and made also, were 194, Payton, v. Osmon Okla. 98 However, end. that can said 223 Pac. 382: most allegations para for graph contained “The homestead character im he pleaded. is that mere conclusions pressed upon premises, oc without actual pleaded primary No overt acts are facts provided cupancy, — has a fixed claimant alleged. sufficiently thereon, It is true intention to intention “intention” is make a home and such out, prep joining allegation Clyde set evidenced overt acts both home, premises aration of such for a but the plaintiff. Tiger Ward, Jefferson and v. 60 premises occupancy actual or an of said 36, Wetmore, 941; Okla. 158 Pac. Trower v. attempt- good same, occupy faith to 81, Okla. 123 252 Pac. 48. preparation must follow the overt acts allegation delay.” Sharp declaration without caveat or v. unreasonable Wright, 16, homestead, agraph 211 record, par- 70; 88 Okla. Pac. Davis v. filed mentioned Bank, ; First State Okla. 92 166 Pac. 65 4 of petition, is not attached Bank, Harris Central v. State 82 Okla. pleading nothing) and adds for the wife Watts, 878; Pac. v. Harris Okla. cannot, husband, consent im- Cloud, 40; Orwig 226 Pac. Okla. press his lands with homestead charac- 1085; 233 Pac. Interstate M. T. Co. v. petition ter. The question discloses that land Weber, 121 Okla. 249 Pac. 150. by Clyde owned was Jefferson peti- It seems reasonable when the only that her interest or claim reason plaintiffs challenged tion of of the marital relation. challenge court, sustained The fact that the land an allotment plaintiffs prove event could overt acts of family land owned head of a preparation improvement land, presumption creates no con same time, within a reasonable connection stitutes homestead. Garrett v. Getzendan rights, the claim of homestead that the same er, 115 Okla. 242 Pac. bare in 525. But alleged by would have been amendments so land, tention- to create home on vacant un allegations as to substitute facts sufficient accompanied by occupancy or overt acts to constitute a cause of action lieu of clearly manifesting occupy fixed intention to indefinite, uncertain, conclusions and insuf- same delay, without unreasonable is not suf ficient. impress ficient to the homestead character Judgment affirmed. Crouch, lands. Laurie v. Okla. 304; McCray Pac. Miller, MASON, J., J., HESTER, Bland v. C. C. V. Bland, 78 Okla. HUNT, SWINDALL, 781. 184 Pac. HEFNER, and AN- DREWS, J.T., concur. and CTJLLI- CLARK phrase, preparations “that had been SÓN, J.T., dissent. being made end,” and were made pleads mere primary conclusion and indicating fact phrase, an overt act. The plan “that purpose it was the said Clyde plaintiff, Jefferson and the Mattie Jef-

ferson, per- to build a home and to reside manently upon lands,” allegation is an homestead, intention to establish a but the allege say does not act, an overt nothing bringing necessary allega- GAS v. OKMULGEE OKMULGEE CITY OF tion of fact within a reasonable time. (Oklahoma Gas Natural CO. Substituted). Corp. Johnston, Johnson v. Okla. Opinion Pac. 1929. Filed Nov. 18465. said: No. Rehearing Denied Dec. necessary prime “Intention is the element purpose impressing homestead character land orior to actual oc- cupancy. by manifested intention must This give such acts as at least reasonable notice of that intention. The open law is of this that such evidence prevent the tention as to should be shown fraud. claim of this as a shield for mind should not be intention party, some of unmistakable but should evidenced acts, showing an intention design.” carry out City Cowley, Atty., L. L. and A. Under- E.

wood, plaintiff in error. Allen, Ames, Cochran Under- & Ames Smith, wood in error. & defendant SWINDALL, plain- J. action the questions validity tiff Legislature of 1925 which authorizes the sur- municipal exchange render of in permit for a revocable requiring certifi- necessity pro- cates of convenience and viding for the determination and issuance approved thereof. The act has been part Governor now of the law of provision this state unless it some violates of the Constitution. The act is as follows: “House Bill No. 4. Revocable Act. Permit relating “An act furnish- the business of ing power, light, heat, gas, electricity, or authorizing towns; water in cities municipal surrender of change ex- permits; requiring for revocable cer- and necessity tificates of convenience and providing for the determination and issuance repealing in conflict here- acts thereof: with. People “Be It Enacted the State of Oklahoma: “Corporations —Franchises—Surrender. Any association, person, firm, “Section 1. corporation, engaged now or hereafter heat, furnishing power, light, the business of gas, public utility electricity, or water aas any city or town this state now existence hereafter before time expiration franchise, of such but not thereafter, file with the munic clerk ipal corporation fran such Corporation chise and with the of Commission the state of Oklahoma written declar agreement, ation executed the manner conveyances required for the execution of estate, that munic it surrenders such real pro- ipal purposes herein franchise for utility works, system eonsideration, therefor, vided; and, rendering of a plant, sur- apply chise operation shall, granted municipal for or be therefor, any city lieu of surrendered town of receive in a such long state so as there a valid from the revocable existence granting permit permit association, provided, authorizing franchise or manner hereinafter person, corporation, right, firm, until revoked, same business conduct the conduct town sim- business enjoy proposed, of use ilar to that until the alleys, grounds, streets, Commission Oklahoma. shall tificate of therefor, such issue cer- purpose ways, necessity municipality public convenience and provided. of said and and the terms conditions as hereinafter But no pe- required as to- surrendered franchise in cases certificate shall police permit duration, lawful or where no exists. valid franchise riod of such municipal- regulation and control of such ity. “Corporation urisdiction— Commission—J “Municipal Corporations Receipts. — Certificates. Nothing in act shall be “Section 2. Corporation “Section 6. The Commission any limit the so construed as hereby given jurisdiction to determine any municipal corporation to include public whether convenience will be served granted by re- it such franchise hereafter proposed such utility business .new quirement fit as it shall see public necessity and whether exists therefor pay grantee mu- to the of such franchise and to issue such certificate of receipts nicipal corporation portion necessity upon hearing venience and after grantee conducted of such from business petition a written therefor shall be filed. pay franchise, munic- under such or such Corporation The power Commission shall have ipal corporation any other or sums sum promulgate regula- such rules and money; right in the such reservation herewith, tions conflict as it shall see municipality purchase property fit, making for the this act effec- grantee der un- in the conduct of business used tual, hearing petition and before such Every such franchise. such require shall fix a date therefor and shall receipts payments of share or to receive hearing given by that notice of such de- purchase by any moneys fran- created livering copy to the officer chief executive future, present contract chise or other and the clerk of all effected cities towns full extent de- to exist to the shall continue (sic) by proposal managing and to the contract; fined such franchise or firm, person, officer association or any municipal corporation existing right of corporation conducting holding a valid under the laws of Oklahoma of the state permit franchise or to conduct bus- a similar (sic) hereby except here- be effected shall locality any portion in the iness thereof. expressly provided. addition, Corporation In Com- require mission shall that such notice be “Corporation Commission—Permit—Certifi- published expense petitioner at the cate. newspaper for at newspapers two least weeks some Upon surrender of “Section circulation in the S. provided first municipal section (sic) by peti- cities or towns effected tion. such duty hereof, Upon shall be hearing petition, of such Corporation any person objections thereto, may appear, Commission to issue to such interested file utility sup- certificate to the effect that and offer evidence filing port thereof, may the date of the written dec- such and the Commission sum- agreement, witnesses, require laration and it is holder mon production such permit, may such shall be such certificate of such other evidence as it proper conclusive of that fact. deem cident and and shall have all necessary complete to a full and on. “Permit —Amendments—Revocati investigation petition objec- of such Upon hearing ap- Any thereto. tions of such permit “Section 4. plication, altered, may the Commission shall find that of this act petition revoked, repealed should be annulled, shall issue amended, under the seal of the cate of in so Commission its certifi- enactment of the of Oklahoma necessity, convenience and permit whenever- doing fix injurious the Commission the time state; to the citizens the construction of however, injustice manner, that no completed. shall be commenced and the Commission find that should be Should permit. be done to the holder of such certificate “Corporations —Franchises—Permits. refused, Any it shall so order. party proceedings feeling ag- himself person, firm, association, “Section 5. No grieved by the order of the Commission corporation except issuing refusing certificate, may' ap- power, furnishing commence the business peal Oklahoma, Supreme heat, electricity light, gas, Court of or water as a public utility, provided ap- or commence the construction other cases of, repugnant pro- peal violative Commis- from orders sion. visions the Constitution. 105, which, agreed Ordinance under the “Repealing Clause. grant- facts, statement of ing was the ordinance parts acts All “Section 7. acts Skelton, the franchise to L. his heirs S. repealed.” hereby conflict herewith are assigns, which defendant the franchise “Approved March 1925.” and taken in lieu under House claims to surrendered parties position Bill in this thereof a revocable hold passed approved No. was and ordered court Okmulgee county, did district court published by incorporated duly elected officers will be referred Okmulgee, plaintiff Ter- town of Indian hereafter as and defendant. July 20, 1905, published in ritory, on July 20, 1905, incorporated On town 8, 1905, August the Chieftain Okmulgee, Territory, of municipal Indian ordinance, 2 of franchise was the said Skelton, franchise to S.L. his years, and if House limited to the term 20 assigns, authorizing heirs and heirs and nues, him and his unconstitutional, Bill No. 4 then the assigns to use' the or ave- streets expired on in this action chise involved alleys public places of said town August 8, 1925. mains, pipe purposes laying lines, City of Pawhuska v. Pawhuska As said appliances through and other which to 1058, CO., 214, &Oil Pac. Gas 64 Okla. 166 vey gas and the inhab- furnish the opinion: page 221 of at the 24, 1912, itants said On of said town. October assigned Okmulgee are not that the courts “It well settled is to the was policy the with of concerned the Company, 7, July 1925, on Gas while interpret duty to the constitutional it and our engaged furnishing business of nat- the legislative find them.” as we enactments public utility gas ural a mu- as under said nicipal franchise, applied Okmulgee construction, a object the Com’ Gas The of pany Constitution, give made and executed written' declar- intent its effect to the is to agreement adopting surrendering framers, people ation and mu- said and of the of its it. ment nicipal purposes provided instru- for the to be found the intent out, itself; and, re- consti- 4, Bill above set House No. text of when the ambiguous, the are provision ceived in lieu thereof a revocable tutional provided giving act. thereto construction courts meaning liberty be- for to search not at day 1925, November, On 24th yond instrument. Okla., Okmulgee, petition in filed meaning ex- thought get at To county, Okmulgee Okla., court of district contract, statute, or a Consti- pressed in a Okmulgee enjoining tution, in all resort cases the first Company using from the streets Gas gram- signification order of alleys natural matical municipality, alleging of said framers arrangement which L. S. Skelton and his placed them. If the instrument of the assigns July 20, heirs expired on meaning, convey in- definite words August 7, 1925, per- and that the revocable absurdity nor contradiction volves no oper- mit under which the was then chapter instrument, parts then dial of meaning, ating invalid, was because 102 of apparent instru- face of the on the Laws above set out as House accepted, ment, and neither must Bill No. was unconstitutional. The de- have the nor the courts answer, alleging compliance fendant filed its Shaw, Audi- it. State add to it or take with the terms of said act. The case Grumbine, Pac. 311. 137 278 Okla. agreed facts, tor. tried on an statement April a decree was de- provision presumed not to be It is nying plaintiff sought, the relief and dis- or statute Constitution was inserted petition missing prejudice. with From reason, result without judgment city Okmulgee ap- judgment of with the inconsistent tended pealed. question presented is the con- sense, guided reason. common men of stitutionality of the Revocable Permit Law. Lowden, E.N. 123 288 Ill. Mitchell v. Plaintiff contends that uncon- void, repugnant stitutional and and that evidently Convention Our Constitutional 5b, to sections 5a and and section 7 art. possible, intended, far as to reserve Oklahoma; of the Constitution of state, and also people and of the several 82 art. section 51 of art. propose thereof, subdivisions provide referring legislation claims the Constitution. The defendant well as people, legislation to a acts of vote act under consideration is land, the time, intended, the several periods' trend of not for short gov- Henry but relating legislative State, time.” branch Miss. 39 So. 856. 1 of art. indicates. Section ernment so provides that: give In order to effect to the intent of the framers of people the Constitution and the authority shall legislative of the state “The adopting it, in eration we feel consisting bciuf: Legislature, consid- vested in Representatives; historical conditions as and House Senate the power people existed proper. themselves at that reserve to time is The framers Con- propose amendments laws Constitution bad fur their considera- reject at and to enact independent guidance stitution tion and Constitutions Legislature, and polls Union, states of the and also the construc- option to own at also reserve approve tion of the Constitutions of those states reject polls ¡Some the courts of last resort of said states. Legislature.” delegates were from the Indian Ter- provides governed Section 4a that: locally by laws, ritory, one code of Territory, some gov- referendum, Oklahoma of initiative and code, territory people another erned each reserved respective dis- without a the state and counties and Indian therein, hereby I .Territory tricts reserved he Legislature, every municipal corporation now territory being each limited its local self- existing or which hereafter be created government by Congress of the United legis- to all with reference States. authority may exercise, and lative govern- own charters amendments Territory in Oklahoma previsions ment in accordance period had the charters for a this Constitution.” exceeding years, municipal- not ities in Indian provides-that: of art. 9 Section'10 Territory, under Mansfield chapter Digest, (Ind. sec. T. Ann. passed “No law 1899, mayor 525), right, through St. section had the operate granting construct and to any council, to with any town, contract city, or a railroad within street company person operate village, upon any highway, or with- construct and acquiring systems gas local out first the consent water and furnish to such cities having authorities railroads, control per- of the street and to construct a street for highway proposed occupied by be agreed upon iod time to be fran- street railroad.” chise. appears It also framers of Appeals 19, 1904, On October the Court people adopting Constitution and the Territory Incorpor- of Indian ated Town in the case of same, possible, provide as far as intended to Tahlequah Guinn, v. 82 S. W. self-government for local or home rule. Rep. 886, giving held water contract people Constitution, are above the company privilege supplying exclusive subject in parts to it and all its while it public places in the water for streets and force, possessed of the undoubted years town for valid. was change, alter or amend it at any pro regular ways time, own will in At that there was in force some by laws, vided the Constitution or laws.” Hockett priv- of the states exclusive Licensing Board, State 91 Ohio St. ileges franchises, grant- and exclusive others E. 110 N. 485. ing perpetual franchise with the re- legislative changes gov- The served in the to malee branch of the or- ganic belonging peculiarly alter, one amend, revoke, ernment annul, people. Ellingham Dye, repeal 178 Ind. any corporations charter or fran- N. E. 1. being altered, amended, chises re- voked, repealed, where, opinion, principle of the initiative and ref- injurious might be to the citizens of the may. erendum be inserted a state Consti- state, manner, however, in in- that no Brantley, tution. State v. 113 Miss. justice incorporators; done be and still So. authority others with fran- limited legislation “A Constitution direct from years chises for by certain number fixed people acting sovereign capac- in their the statute those states. legislation ity, while a statute is from their Representatives subject pre- to limitations authority." The National Association Editors at by superior Elling- June, scribed strong Guthrie in secured res- supra. v. Dye, ham joint olution favorable to statehood. About July press of when the Magna “A is a Charta of the announcing big people’s rights, Okla- headlines the the fundamental law of any July special, election for at he held Convention liorna Statehood days notice; and no time afteri Norman, cit- 12, 1905, a Cherokee Mr. J. A. for granted, extended renewed shall be for labored izen, had time for who some longer years.” than 25 term .Territory, separate Indian statehood call Aug- he held supra, by 5b, an election for issued ust that: Also delegates seven time by petition signed a number “Whenever recording in the for the districts from each of the 27 municipal qualified cor- electors elected, Territory were Indian poration equal per the total centum of to 25 August Muskogee purpose 21, 1905, convening at preceding next cast at the number of votes writing a Constitution demanding election, territory embraced renewed, extended, to be formed state by granted, call re- Tribes. officer Five Civilized executive chief filed with the shall be offi- government corporation, executive chief cited the facts the federal of said cer shall, days thereafter, complete call a allotting within 10 would the fiscal of Indians (cid:127)special election, he submit at which year; gov- tribal the close fran- of whether or not 4, 1906; would ernments close March renewed, extended chise shall be and said electors Territory people that the were the Indian election, majority if, at said sorely displeased with the “bureaucratic” voting vote thereon shall government Washington, D. C. W. C. extension, grant, of such or renewal Cherokees; Rogers, Chief of the Green Mc- prop- granted by chise, the same shall Curtain, Choctaws, and J. Chief of the A. succeeding regular next at the er authorities published signed A Norman this call. body city.” legislative meeting pre- thereafter, time a new call was short And section 7 that: pared signed four of the Chiefs Governors, George Scott, extension, and Mr. as sec- grant, “No or renewal of retary, asking streets, alleys, different other use of the grounds ways mu- corporated towns and communities elect nicipality, state, or shall divest the delegates Muskogee August on convention. The sub-divisions, of their control its subordinate principal between difference regulation enjoyment. of such use and this call and the manner the first one was selecting delegates. regulate power services This convention “Nor shall charges organized Sequoyah be surrendered: Con- and known as the and no franchise shall ever exclusive vention, adopting a and after granted.” Congress for admission into the memorialized briefly reciting man- Union as a Further, that: of art. ner in had been added to the states “Every municipal corporation exist- now original Congress of thirteen. continue within this state shall approve action United refused to States present until other- of its shortly Sequoyah Convention, of the always by provided have and shall wise Enabling Act, passed thereafter rights the additional conferred Territory which Oklahoma by Indian Ter- this Constitution.” ritory permitted were to draft our Consti- Then, prevent any exclusive franchise tution. privilege being granted or ever incorporated and conditions From events the historical framers Constitution existing 5, of the time the framers about the section 51 of art. which reads: prepared and assembled Constitution submitted to the law, grant- pass no shall people for their ratification ing vidual, any association, corporation, or indi- Constitution, had in mind the res- any privileges, rights, or exclusive by power in our Constitution ervation of within this state.” immunities people They had mind also themselves. foregoing pro- with the The Constitution way securing- franchises that satisfactory the surest adopted indorporated therein was visions people peo- erected. of Oklahoma and the state they provided ple franchises, to vote so such Supreme 18, supra, Presently by called that: Court was 5a of art. provisions. many of these to construe municipal corporation ever shall “No coming Among court before the cases franchise, grant, or a extend renew City Mayor and Councilmen were: majority qualified approval of the of the et Co. Oil Gas v. Pawhuska & Pawhuska limits, corporate residing within its electors 353, 563, Pac. al., 28 Okla. spec- or at who shall vote thereon 18, 5a, art. held that section court any body election; legislative ial Constitution, providing franchise any corporation may mat- such submit such period longer granted than for a disapproval, approval elec- to such or ter 5b, election, art. years, municipal self-executing; and section any general or call tors at Pawhuska Co., Oil supra. Constitution, providing after 18, & Gas of the say city” section does "any voted to not been a franchise town in voting qualified majority electors there of the is not now in existence a valid shall be thereon, permit franchise authorizing or valid regular meet- proper next at the firm, person, authorities association, other corporation municipal- body legislative ing of the of the imposes upon to conduct in such or town a business mayor councilmen ity, proposed, Corpora- similar to that until the Also, duty. mandatory ministerial a case County Judge, tion Commission shall issue a certificate of Hooker, Caldwell rel. ex of State necessity therefor, convenience and Pac. 22 Okla. very just says, but it clearly as certain- where is said: means, ly petition signed that whenever a provision requisite is self-execut- “In qualified cases where number of electors way desirable, ing, legislation may still “any city,” whether there is in existence specific convenient providing a more valid franchise or or a dozen valid carrying into remedy facilitating the permits, more valid or valid secured, effect execution duty of the chief executive officer safeguard- definite, making every step days call, shall, and he ten there- Such prevent abuses. the same special after, call a harmony election, at which he however, legislation, with must be spirit and its shall submit whether object of constitu- to further the exercise granted, such franchise shall be extended or available, tional and make it more renewed, if, election, majority at rights re- not curtail laws must voting of the said electors thereon shall vote served, specified.” the limitations exceed grant, extension, for the franchise, renewal On the same we have Overholser granted by Co., Okla. v. Oklahoma Trac. Interurban proper succeeding authorities next at held 119 Pac. where it is that: regular legislative body meeting of the Constitution)' “(Section 5a, city. art. majority The vote of a of the said applies original or to to an voting electors ques- thereon determines the period for which renewal extension tion of whether or not a franchise shall be apply made, does has been granted. majority If a of the said electors enlargement of the to a mere extension or voting grant, thereon shall vote of ex- employs facilities which holder tension, or renewal granted.” previously in exercising a granted by proper same shall be authori- Has page In the Noble State Bank v. case of succeeding regular meeting ties at the next al., kell et Pac. 22 Okla. legislative city; body if a opinion, 79 of the that section is held majority voting qualified electors effect, supra, “is, every art. as thereon at said do not vote favor- election any individual, corporation, sociation or extension, renewal, grant, able petition end of the issue until another same class have.” presented manner, is poration and the Cor- lawful 5b, provides Section art. that: Commission of Oklahoma has noth- ing whatever granting, to do with the ex- signed by number petition “Whenever a tension, ipal municipal or renewal of a in munic- qualified cor- of poration electors corporation, per the total equal being centum of reserved to 25 preceding the next number of general a our votes cast at them- demanding election, selves. renewed, extended, franchise be provides supra, Section shall be filed with the executive officer officer chief municipal corporations always have “shall corporation, of said the chief executive rights the additional shall, conferred days thereafter, a ten call special election, right power by at which he shall submit this Constitution.” the of whether not such franchise qualified being given the of a electors munic- extended, renewed, shall be ipal corporation, by the if, election, majority at said the a of Legislature. by away be taken cannot the voting electors grant, the thereon shall vote for Perrysburg Ridgway, In the of v. 140 case extension, or of renewal chise, 595, by Supreme granted be the N. E. the of Ohio said: shall Court proper regular succeeding authorities the next at political “Express delegations of legislative meeting body of provisions through are made and are power constitutional city.” the delegations of necessarily exclusive before, As said held been provided expressly other- unless be mandatory. * * * Oity to be of v. Pawhuska wise.

95 “ street, one (the electors therefore, so use the the have, ‘They people) approve thereof, contemplated, just delegate is not but right most undoubted granting privilege one political individual much, little, just of applicant.” they see they as departments with which are invested agents proper, of To to such City In the ease of Chillicothe Co. Water designate. government fit see Chillicothe, Mo., 503, v. 207 Fed. the United for look we must Stages Eighth Circuit Court AppealjS, delegation; and of this manner and extent Circuit, said: de- every must from partment instrument alone government authori- derive its ordinance, entering city “Where a contract with and into portion political ty to exercise a a franchise ” power.’ specifies company, a term water a definite company Con- find We been unable to duration, for its obligation city under its sections with similar stitution expiration tract of such on the terminate supra. 5b, 5a and enlarged by implication.” term, and cannot be Iowa, Supreme Court of In Co. the case of Water v. Des Moines par. 1873, 473, held under Code al., Rep. City 206 Moines et Fed. of Des that: 657, that court said: operate works right water “When city grant company by corporation, a private “A to water ato .should operate water- for inure ordinance works for grant made to ordinance not be should accepted term, definitely purport- years, fixed more 25 an than company, ex- corporation grant private and at of terminates by acted on equal years, force of the terms privilege the end of term clusive for 25 grant, with supplying city and cannot thereafter, instrument attempted enlarged implication.” ex- water, tension of the as to was invalid period greater grant for City In Cum- the case of v. Owensboro years.” Rapids Co. v. Water Cedar than 25 Co., Telephone Telegraph L. Ed. 57 & berland Rep. City Rapids, 91 N. W. of Cedar Supreme United States Court In held: that case the court says: perpetuity for of franchises “Grants grant to an ordinance gen periods time long unreasonably company, incorporated telephone its succes- policy, erally against regarded as occupy assigns, sors and city of alleys authority valid, therefor and, the Constitution if ever poles streets and with its statutes must found necessary wires for the conduct Gaslight of the state. Richmond Co. Co. v. telephone property grant business, is Middletown, City Town of 69 N. Y. 228; perpetuity, unless limited in dura- Co., Brenham Water v. Brenham 67 Tex. consequence itself, or as 143; City Am. Long Duluth, 4 S. 280, W. 49 Minn. imposed by some limitation Rep. 547; 51 N. W. St. Thrift corporate powers of the state or City, v. Elizabeth N. C. 30 S. E. city grant.” making L. R. A. 427. And it doubtless was principle Telegraph-Cable in view In, the case Postal city government power expressly Ingraham al., denied to Co. v. 228 Fed. et a franchise of this nature for says; court years. exceeding That terms enactment mayor permit granted by “A aider- every grant enters into and made controls city telegraph men of a the erection of thereunder, for and courts have no alternative poles street, duly made in granted wires recognize authority.” though of, legal use without City (Iowa) Smith Osceola et al. paid being consideration therefor and Supreme 159 N. W. of that Court general ocable any limit is not rev terms state held that: will, a franchise but constituted assignable, be ter and could not Code, empowering “Under modified, except substantially minated city regulate authorize use good for land v. Cumber cause. Owensboro See telephone lines, streets and section Telephone Telegraph Co., 230 S.U. & 776, providing that no ‘franchise’ Sup. L. Ed. 1389.” Ct. by a such use of its streets Telephone therefor, In the ease of unless the vote and that Farmers’ Co. electors party applying Quimby (Iowa ‘franchise’ v. Town of al. Washta et expenses election, pay ‘franchise’ Telephone Co., Intervener), W.N. is used technical sense limited and says: the court privilege a from the conferred government individual, “It is to that cases in an be conceded vested so and counsel, found, they that and are cited ordinance, under which opportunities statutes, affording competition to our which or less similar more for apparent things necessary own, all their which have been shorn of are for the wel- effect, giving happiness people. and fare and and cities construed of the Section supervision power Rights prohibits 3 of the towns no Bill more than a exclusive regulation. thought provides or to have privileges; poration seems no cor- which section 190 that leg- holdings, and is can have of future influenced these the benefit pressed appellant’s accepts provisions islation our it attention unless prohibits brief, repository that, Constitution; where the state —the section 195 cor- porations sovereign by general conducting stat- their business so —has given,telephone corpora- infringe upon equal ute similar and other right public high- occupy tions ways be dividuals; prohibits and trusts poles combines, Legislature and cannot wires, their to take directs the presumed Legislature steps compels intended that them; section 199 crush telegraph companies to confer cities towns and trans- to receive pro- messages; cor- mit to exclude their each them from section 201 other’s porate telephone railroads, telegraph hibits limits. companies, carriers, from or other common regard reasoning “We which do not consolidating acquiring parallel with or convincing this persuasive. the The state its if, conclusion is reached as 213, 214, competing lines; and 215 sections rule that It is to assume safe prevent stringent provisions contain dis- Legislature clearly says. what means prevent making ; crimination to of ex- delegate certain of does compel preferential contracts; clusive municipal corporations, and receive, handle, ship,- common carriers to corporations can judgment, freight and switch all without discrimina- improve, control, effectually best most tion, and to handle cars. All each other’s limits, protect their the streets provisions the same to on the enacted, duly and statutes to we tion effect together, should construed be purpose Constitu- no restriction Know the end intention policy public principles or in provisions might of the be ascertained and away impel to construe courts should carried construing into effect. Thus entirely meaning. It was obvious Constitution, it is evident that it was the competent to restrict for duty city of the council to take the neces- privilege had scope sary steps from to relieve the been conferred Code and this paying electricity prices for exorbitant provisions we think did of the later lighting purposes by establishing a com- statute.” peting plant, price fixing the maximum electricity. duty at Norton, In the which it could case sell (Ky.) Stites v. equal dignity, binding upon and as (N. S.) S. court L. W. R. A. selling it as that of the franchise to the says: highest and best bidder; it had the provision requiring “A right, constitutional opinion, in our frame the or- highest sale der does not accomplish franchises to the bid- dinance as to prevent corpora- municipal competing plant.” obtaining excluding enjoying already tion from one quote length We at some competition a similar franchise from for foregoing they string light cases the reason that along electric wires public nopoly prevent having are from streets, states to- a mo- either constitutional order business, statutory provisions where sections to the similar pre- of the vent Constitution show intention to stitutional involved in this ac- monopoly opportunity afford tion, tendency and show a competition things necessary in all mind, framers our Constitution had public.’’ welfare of the promote in order business must we body opinion, page In the -competition business, have lines of (N. language: 13 L. R. S.) A. find including public utilities, pro- and therefore imposes qualified “The Constitution of the state vided for the electors in cities upon legislative protect duty bodies the voting competitive many and towns fran- against monopolies, trusts, citizens necessary just chises as deem to secure important unlawful combinations. No more competition. when obligations Imposed upon legislative enacted House Bill No. the members seem body shielding than the citizen regulation had against su- mind extortion in matters of ne- higher open- pervision cessities; duty stifling than utilities competition doors fullest competition perpetual by granting following in such matters. are some corpora- prohibiting chises and showing of the sections the framers franchises, granting competing tions from great of the Constitution had in mind the Corporation Commission, importance until after a monopolies preventing venience hearing n ond of an indeterminate under an indeterminate duction, ing thereof, obvious. The intent was to lar commission a declaration c. convenience and mistakable terms disabled the permit Indeterminate public hearing, graphs, granted any person, rate commission The Revocable Permit ipality is 1908-07, in this act a public consin, conflicting Act. The decided 129 N. W. flicting grant.” trol any being perpetuities and favored competition, as Electric Co. v. sha acquired poration case of ter of the case sin on tlie At “That “ “Where strong conviction reasonably House Wisconsin ‘No service without fact public utility.’ referred fair return 1907, at the time page 003, framed, the benefit convenience within the heat, known license, permit took fact January public of all and sections transmission, delivery public uhder plant after conclusion making Bill No. first case we under COO, Legislature of the state monopoly, framers of plain. of Oklahoma own, effect. It necessities light, State ex to, where there is an as shown public utility engaged indeterminate satisfied, parties interested, Permit appears as the utility wherein had issued necessity Supreme respondent’s regard Kenosha Electric the Law as necessity require prior 10, 1911, disability certified scope operate, find Legislature water equipment permit, amended first against as copartnership, Act, Indeterminate Law of law, privilege, our Constitution our rel. Kenosha yet provides to have that reached necessity. monopoly thereof, find patterned securing investment, long franchise shall making Court our be found as encouraging commonly known within the manage to secure to after permit language: a certificate monopolies give clauses, by Laws court construing the indeterminate Wisconsin, form, organic law. the railroad convenience, reported or furnish- grant of Wiscon- the munic- that: arrived at except in excess such sec- might grant operation from the of Keno- monolopy provided Ry. says: after in simi- or con- 'in chapter but Permit should in un- &Gas by holder public scope para- mat- been Wis- held pro- con- just cor- Co., an pal ipality, amend, of pal corporations tion of limiting tlie be only tution otherwise but for fare, by sections 5a and private limitations. freed cluding acterized tlie 22 at holder of an indeterminate being reservations, exclusive grant, subject to the Code of conditions and considered in error. We next find this law tric subject to tlie conditions and limitations of prohibit, conditionally, ordinance of as the City of La Crosse v. La extensively in the brief of the defendant sense. franchise, case in by the tions of the Wisconsin says: whether a proper lmt consumers Chilton, case of It (cid:127)LVn “The “An “A incorporation tlie time of its public lowest an old Corporations,” Co., being franchises as the one privilege of common *” were indeterminate as to annul, indeterminate gain.” Supreme administration, purpose municipality as a state latter as to the the circumstances under which the a return 130 N. W. 135 N. W. appear Calumet Service Co. v. by purpose privilege years within the * practicable is the latter' used in its common-law contention Supreme license, permit, the best privilege * that under public utility intended period renewed, and control incident to the conditions and limita- June regards exclusiveness, revoke, ^[*] * within the for which a franchise 5b shall have of the law was to considerations, under Court of Wisconsin in the same, consideration and right, within the granted by of time for which origin, next discussed repeal, Court in the case of practicable the conditions is of the same permit scope —the permit art. cost, the title for the reason that by insuring promote public Crosse repeal any which is discussed privilege feature, law. extended instead of challenged permit where the court scope granting and a term defendant that franchises ais duly any reserved, limit technically scope * * Gas Elec the limita- of “Munici- being to that end passed.” limitations, agency, * ‘monopoly’ service at ’ of No. prescribed inas Nos. being perpetual privilege, statutory qualified give received City existing munici- charter applied & by Consti- munic- in this under might sense, alter, being scope char- wel- just amend, annul, Legislature alter, might to Legislature alter or section the repeal revoke, permit, in its when such 25- the amend charter so as to eliminate a injurious permit may opinion be to such year oí by oí art. 18 5a limit fixed section the citizens of such and then However, reas- the under the Constitution. injustice manner that no shall be done oning limitation the that of the defendant permit. apply the holder of This section supra, such not did (cid:127)of art. section 5a of very by provisions of granted might similar to the be franchises that art. material differ- Legislature operate municipality, 47 of but a there is a language employed ence in in sections under the reason that the same was language 5a em- “Municipal Corporations,” and 5b of art. and the it could title n be ployed of section power of art. argued equal and force .that (cid:127) n granted amend, By alter, Bill 5a Legislature House No. 4. sections ¡of provided .annul, repeal supra, revoke, how franchise does 5b art. it a n apply municipal- by granted, extended, re- granted may a newed, a charter to franchises be ity period it of art. for which for the reason section 47 limits “Corporation appears may period to which under the be and the title years. may and Private be extended Commission—Public Service or renewed to 25 -Corporations,” per- and also restrictions Under House Bill revocable No. n ofsection apply any' IS, simply perpetual mit a-rt. did not a which franchise might granted may annulled, amended, altered, be be franchise such as re- only by by municipality, likewise because voked of Oklahoma “Municipal may opinion Cor- (cid:127)comes under the title of whenever franchise injurious porations.” of the state. to the citizens have been All the authorities by deprived municipality, Further, where to find hold that able renewing, or extend- House Bill No. 4 of a fixed not limited existence franchise, qualified electors years, period then the same and definite per municipality equal of a centum to 25 franchise, perpetual if we should is a cast at the total number of votes intend- art. 18 was that section 5a of hold municipal preceding election next to' ed the framers of the demanding deprived are of their limit extended, granted, or- franchise be Legis’a- granting franchises, renewed, qualified electors, a ma- franchise, ture had the thereof, deprived jority vote provide surrendering limited opinion expressing to whether corpora- franchise tion and or tended, ex- not the should be accept a revocable thereof lieu majority renewed, should and if a existence, permit without limit time of as to thereof, proper authorities vote in favor perpetual words, In other perform the min- cannot from thus extricate No. 4 House Bill duty isterial this court has held 18, supra, control of section 5a then enjoined upon them the Constitution. run would into the teeth of section 32 provides House Bill No. 4 also that: provides art. 2 of the party proceedings feeling “Any to the that: aggrieved by himself mission the order of the Com- issuing refusing certifi- “Perpetuities contrary monopolies Supreme may appeal to the Court' of genius cate. government, of a free Oklahoma, provided in other n shall never) the state of be allowed.” appeal of the Cor- cases from orders It is also contended House Bill No. poration Section Commission.” repugnant is not the Constitution appeals article relative Section 32 thereof, “any the reason that permit granted section 4 in other from the Commission under of this cases, is: may altered, amended, annulled, re- voked, repealed by enactment appeal the (cid:127)Commis- “In no case of evidence whenever in its Oklahoma additional sion be introduced new in, Court; Supreme but injurious may Commission, the chairman of the manner, state; citizens of this how- in such Commission, certify to seal the which ever, injustice shall be done to the Supreme facts Court all permit.” holder of such appealed based action will It be noted that the act does proper may essential and which extend, give Legislature power grant, together appeal, with such decision before, specifically renew, introduced (cid:127)or limits of the evidence city would be for be se- best interest the. by, sidered. Commission as certified, lected, corpora- specified required competing association, to be interest, by any party tion, as well engage or individual a evidence, or considered introduced business, in the same or a similar proper to cer- deem as the Commission qualified constitutional number of electors- tify. shall, whenever The Commission city petition prepare writing: therefrom, appeal file with taken sig- circulate the same and secure part thereof, case, record as a requisite qualified natures of the number of the reasons written statement of residing present based, electors appealed which and from was the action same read and con- shall be the chief of the- executive officer statement Supreme dis- by Court, city, sidered demanding that he file the same Supreme posing appeal. Court of the demanding he that call an election thereon appeal, jurisdiction, on such shall have by ten days, as commanded the Con- the reasonableness determine consider and and stitution. The chief officer executive re- justness the Commis- of the action of plies to pleased the electors that he would be appealed any from, well as sion comply demands, with their but section Provided, arising appeal; matter chapter being however, Session Acts the Commission that action of prima regarded appealed person, House provides, Bill No. shall be that no reasonable, firm, just, correct; facie corporation, or association, necessary, in may, court interest of when it deems municipality, shall the business commence justice, remand the Commis- .to power, furnishing heat, gas, light, elec- any re- pending appeal, and sion case on tricity public utility, water as a or or com- investigated quire further to be same plant, works, mence the construction a Commission, reported by the system grant- or therefor, apply or for or be (together with a certificate court municipal therefor, ed a any franchise may tender- be additional evidence as city or by any long town party of this state in in- so as there ed before the Commission appeal terest) finally permit before decided.” is in existence franchise or valid a authorizing firm, person, any other associa- Next, 4 does House No. Bill violate sec- corporation tion, city or conduct tion 51 of article the Constitution? 5 of or proposed, town a business similar to that is, effect, Section article that Corporation until the Commission of Okla- every corporation, any association or homa shall a issue certificate any individual, may have necessity therefor, venience after a other of the same have. Noble class petition has been filed with supra. al., State et Bank Haskell n Commission, given and a hear- notice corporation engaged A or hereafter now ing person appeal granted any held and an light, in heat, gas, electricity, furnishing power, business aggrieved, appears fully as more in section water as a of6 House No. 4; Bill there is exist- town, any city under a fran- ing city petitioned in a fran- by city a chise which it secured from franchise, chise valid the individual petition signed by qualified a number complied requesting a franchise has with not city equal per electors of said centum therefore, 6 of House Bill No. of the total number at of votes cast city, as the chief of the executive officer municipal election, preceding general next petition he must refuse to file demand- demanding granted, an election and must re- be called which was filed with the executive chief reason, fuse to call an election same city, officer of executive said and the chief only and for the reasons that House Bill' city officer of de- said obedience to the prohibits applying No. 4 the- petition special mand of elec- said called municipal aof cor- petition days tion within ten after the poration any city town of this state him, filed with he at which election sub- long is in existence a valid" there mitted the whether not such any person, authorizing franchise or franchise shall be at elec- firm, corporation association, conduct- majority tion of the said electors city in such similar te town a business city voted for of such proposed. control the Which must ac- proper the same was tion of officer the chief executive succeeding regular authorities the next city, section of the 5b article Constitu- legislative meeting body city. tion, or sections 6 of 5 and House Bill No. operated franchise is not the holder ques- 4? We think answer qualified city as the electors feel it that, tion is section 5b of the Constitution- be, qualified should or the electors feel it harmony spirit couilict, being sec- the Consti- House Bill No. 4 tution, object prevail. and its exer- to further must 5b tile right, cise of constitutional and make it applying Also, individual does Che available, more and such laws must cur- second franchise tail the reserved extend the limi- lie may have when class other of specified. tation the electors denied vote specified The limitation fran the Constitu- not such of whether municipal granted by tion for a granted-' hold charter must We should chise that pe years, is 25 denying to file his him the pro- exceeding years, extended signed by requisite number tition electors for the vided for having ques section 5a is not he violates tion of whether or shall right repugnant which the Constitution and fall. him a franchise must denies Any attempts corporation first that secured 5b, guarantees to burden section (cid:127)had. therein reserved further need feel is too We clear them to vote or to re- charter burdens No. that House Bill discussion one, repugnant new extend is likewise Constitution, the of art. 18 section 5b of Any to the Constitution and void. act of mandatory the au- it which makes Legislature provides issuing the which special municipality call a thorities license, permit, per- a revocable indeterminate days the ex- chief after election mit, or nature of instrument municipality has been ecutive officer a which limited as to Its is not petitioned qualified electors number of existence, of time violates section of per equal centum of the art. 2 of our Constitution. at the cast of total number of votes the We therefore that House hold Bill No. election preceding next 4, approved 19, 1925, March and known as granted, demanding ex- chapter of Laws Session tended, renewed, the election which repugnant is and the is municipality shall chief of executive the therefore void. not the of whether submit extended, or re- shall be .franchise only questions The court for before this majority newed, election and if at said granting, consideration to do with the voting- shall vote of thereon said electors extension, or renewal of franchises extension, grant, of or renewal by municipal corporations and the surrender prop- chise, the same shall he receiving- in and lieu of such franchises regular succeeding er authorities at next permit; num- thereof revocable therefore city. legislative body meeting of argued by ber of the cases counsifl cited and hearing upon for defendant have no of the terms It seems so clear us They ease at bar. reservation deal with the under con- being act No. House Bill power, controlling of state sideration, and of 5b sections 5a violate way taxation, to franchises and of of and the Con- art. art. grants from na- pursue stitution, further that it is useless to ture and legislative this discussion. If enactment subdivisions, of their control its subordinate repugnant to, violates, is our or burdens Con- enjoyment regulation use and stitution, duty this court to charges regulate say legislation. and strike down such service. lives, rights If our Constitution then our stated, are For the reasons herein we life, liberty, property sure; and findings opinion, hold, and the judgment t-hat the and give words a firm foundation Okmulgee district court Legislature people and build be, county erroneous, should and were and our laws we secure. hold that and rest So vacated, things are, hereby in all provision cases where Constitu- annulled, aside, cause re- and this and set self-executing, legislation may rte- court the district and remanded to versed specific way providing sirable a more county, Okla., Okmulgee aside the to set remedy, facilitating and convenient and judgment in said heretofore entered court carrying effect or execution of into plaintiff a new secured, and to cause every step making definite, and trial, proceed prevent further safeguarding and to as to same so though however, never been Bill No. 4 had legislation, House abuses. bn Such must passed by Legislature approved placed tbe stitution. The Constitution has Governor, grants in, further to take such and this limitations of on the . proceedings Legislature, action be con- appears clearly and when it opinion. sistent with this that an act of the is unconsti- tutional, challenged properly LESTEIÍ, J., MASON, J., O. Y. O. competent a court of jurisdiction, it becomes CLARK, HEFNER, OULLISON, RILEY, duty bounden of such court to strike ANDREWS, JJ., concur. operation. the act from theory Under government our po- HUNT, (dissenting). J. After -most system litical sovereignty thorough questions study ultimate involved people, vested in the and it herein careful review of numerous them springs legitimate authority. all decisions and relied on The this court cited Constitution of the herein, 'the briefs unable Oklahoma filed am majority, I expression tains agree people, the last opinion of its expression, consisting- written here in unconstitutional. grants and limitations, we must determine responsibility for the enactment sole validity begin- House Bill and in ours, Legislature, is the ning apply we shall test first rule of this oft-announced Rights, pro- Bill resort, court and other of last courts vides : declared un- will “Perpetuities monopolies contrary say is uncon- constitutional stitutional can unless genius government, of free beyond doubt, am un- I never be allowed.” say, act, and therefore able to so as to respectfully dissent. framers of our Constitution' had be- fore them our federal Constitution and the Constitutions of the several states of the LESTER, (concurring). I Y. C. J. concur Union, addition, they and in knew mod- expressed In the of this court as ern life and advancement increased had ne- through Mr. Justice Swindall. commercial, ag- cessities industrial, the important only It the on of account ricultural, welfare; and domestic that presented lierg that offer and vital issues I through agencies the which would obtain opinion. concurring this brief franchises from the munici- the state and palities people compelled would be to plaintiff court below The in error procure fuel, light, water, transportation, appeal challenges constitution- and on communication, and that other ality necessities: principal contained of the holders of come, chapter these were to be- franchises Laws Bill Session House large measure, in a source and Permit and known as the Revocable indispensable of arteries distribution for the Act. people commodities for of use If, measuring after Therefore, of commonwealth. the makers our state, we were (cid:127)with the of this need Constitution visioned that forced of constitutionality, left doubt as to its it people, combined these necessities duty would then be our to resolve such supply, monopoly with a of service and doubt in favor of the act and sustain it. produce an unbearable intolerable would and hand, On the other it is found people, and order condition clearly of contravention Con- against injury people protect state, stitution of this then the court should pro- injustice, every and barrier known the act declare force effect. placed tection the Constitution prevent charge, monopoly beginning service, . of the act Is unconstitutional? In perpetuity. application test, it well to language remember the found to be in Coo- placed a limi- Constitution not ley's (8th Ed.) p. Constitutional against Legislature grant- Limitations tation the- 124, wherein it is said: ing monopoly rights, but also or exclusive municipalities were author- construction, forbade object applied “The Constitution, by popular give ized to vote to a written effect is to monopo- adopting granting any it.” the intent of the privilege ly. compels every import did this law Of tremendous of this state basic department was inserted become that there to anchor its offi- Rights provid- Bill of cial within declaration the limitations the Con- acts delegate monopolies are Commission “Perpetuities reopen government, closed. door thus genius

contrary of free be allowed.” never and shall It is contended that the the defendants court Brewer, speaking for the limited are Mr. Justice Ry. privilege v.Co. Street franchises of Atchinson in the case may (Kan.) Ry. Pac. be withdrawn Co. Pac. Missouri Legislature acting will; that, at said: sovereignty under the of the state Mich- Supreme Court “The 9, Const., virtue of section art. subject, ‘Declara- has said: upon igan, reads: Bights, are rights, Bills tions great political Legislature truths al- “The shall certain enumeration essential govern- ter, amend, annul, repeal of free revoke existence short, seems incorporation counsel now charter existing annulled, revoked, Mich. 201. ment.’ 30 to look amended, com- altered, more than upon little it as to bei Prom generalities. glittering repealed pilation time stated, dissent. adoption this, broadly of this clear, precise, created, Many arc hereafter its sections be whenever upon injurious citi- definite limitations be agen- every manner, officer and zens ever, how- of this in such ‘The injustice cy people. reads: Section that no done to be by jury incorporators.” inviolate.’ shall be of the trial imprisoned person ‘No Section 16: acting —that fraud.’ cases debt prescribed passing bounds Bill House j.r at, meaning extent these tne reader will turn to section 1 Legis- They clear. lature, limit the icle it will be discovered body be sus- can act of no corporations are from the defini- excluded Indeed, them. with tained which conflicts all of speaking, corporations companies; tions of them, considered, generally may be mainly that article 9 deals with crea- and limitations as conditions of, corporations regulation sus-* legislative action; can companies, and stock will be further and it rights guar- upon the which trenches tained by them, conflicts observed that section ence has refer- art. anteed true, expressed in them. It primary limitation many or franchise charter largely affirma- mere them incorporation and has no reference sec- those, yet, truths, political as to tions of ondary procured by corporations franchises political may safely that the asserted municipalities. from the state or ignored in truths cannot affirmed See, valid enactment. The Constitution in section Story, rights, scope bills and effect of precaution language in takes use this Comm, Const, Kent, 24.” 44; c. reference to the Legislature: Monopoly, Diction- in Webster's defined ary, is: emergency only “An measure shall include necessary immediately as are measures right, privilege, “The exclusive or peace, preservation selling purchasing given commodity or n health, safety, include and shall not or given or service market; in a exclusive granting cor- franchises or license to any commodity supply trol of the or ser- individual, longer than poration one to or extend given hence, market; vice in in a often year.” popular use, any control of a commod- (cid:127) service, ity, given another Again, in section art. or market as contains traffic having providing: Legislature enables the control raise the one to in on limitation commodity price service mater- grant- pass Legislature shall no law ially competi- price above fixed free association, corporation, or to grant monopoly. tion. 2. A or charter privileges, rights, any exclusive * * * dividual anything.” possession 4. Exclusive this state.” within immunities The be found text House to Bill pleasure attempts Bill 4 House in the date, on court filed this this Corporation place around Commission to only portions certain of the bill present municipal owner of a franchise as are necessary to mention herein will protection competition. against Under the set forth. section terms of art. board, delegate any person, Rights, to cannot or com- Section art. 2. Bill closes compe- right monopoly, mission the to forever the embarrass such door of but' provision. attempts tition. Bill 4 face of House residing representing municipalities attorneys the de- able to determine masterly they whether grant or not fendant error marshaled shall an additional stayed position, argument franchise Corporation until behalf of shall, they Commission difficulty in an insurmountable face determine whether penetrate will attempting municipalities barriers to citizens the basic question. determine which are to be found the Constitution That prevent placed just plainly settled advance therein to basic law legislation is, therefore, state. Section 5 the character of House Bill 4 clearly only unconstitutional. found Bill 4. It House arrests right, guaranteed under, Oklahoma reserves Constitution the initiative express of the citizens of through and referen- people, proposed franchise, themselves aon but it popular dum, an ex- effective method of right privi- also substitutes an exclusive pression. The initiative referendum lege existing an owners of government applied every unit lesser until Commission deter- applied of the state of Oklahoma. It was permitted, mine otherwise. This cannot for every county IS, Const., to all mu- district and article find we ‘ nicipal language', right pop- corporations, and no and this exclusive franchise expression granted,” shall'ever be guaranteed ular take this to all of the mean municipal municipal corporations if the citizens in Oklahoma corporations prohibited by matters of local the Constitu- concern. tion franchise, an exclusive 5a, part: provides in Section delegate cannot board corporation grant, “No ever commission the an ex- extend, approval franchise, renew a license, permit, clusive for it qualified elec- majority principle a well-known of law that residing corporate tors limits.” which cannot be directly, done cannot be indirectly. done unquali- gives Section of article 18 5b residing fied the citizens testing constitutionality of House corporation to call and deter- an election by applying the several sections of Hill mine shall be whether or not the franchise applicable ap- the Constitution thereto granted, extended, renewed. The pears, first, provided the Constitution provided limitation in the Constitution every possible prevent monopoly means relative to these are that exclusive encourage competition. House Bill de- granted, nor shall shall be stroys competition attempts to license extended, or renewed franchise be monopoly through Corporation Commis- By longer years. virtue than term sion. arrests, un- Bill 5 of House clearly is, therefore, Bill 4 House uncon- hampered people munici- stitutional, judgment of the district pal corporations except court should be reversed as directed protection of the as to limitations in opinion of this filed this date. court monopoly against perpetuity. 5 of House 4 reads: Section Bill HUNT, (dissenting). appeal .7. This is an association, corpora- firm, person, “No county. Okmulgee district court commence appear parties The low and will here in the court be- light, furnishing power, beat, business to herein. be so referred electricity gas, or commence works, be water as plant, the construction July incorporated 20, 1905, town On orj therefor, system apply Okmulgee, granted Territory, of municipal Indian therefor, municipal in franchise granted a Skelton, his franchise to L. S. long city as state of this any or town assigns, heirs and to- use streets or the franchise valid in there is existence avenues, (own public places alleys and of said firm, person, any permit authorizing other laying pipes,-mains, purpose of for the association, corporation in such to conduct pro- through appliances, to con- that and city similar to town business of Corporation vey gas Commission posed, inhabit- until the same the and furnish the public of a certificate Oklahoma shall issue ants On October said of said town. necessity therefor, here- as convenience and (cid:127) Okmulgee assigned Gas franchise was provided. inafter no But such certificate 7, 1925, engaged July Company, and on while required such in where cases no gas furnishing as in a of natural the business permit valid franchise exists.” utility municipal said under Okmulgee Company chise, Under said of section the the made and Gas agree- way which we' in are in no declaration and matters executed its written here, except might municipal surrendering in cerned so far as ment said questions chapter purposes of of provided relate to in some constitutional involved, might re- and a consideration thereof of and of Acts construing permit in as therefore aid us our Con- ceived in provided November, petition a revocable lieu thereof day determining in of stitution any in On the 24th and whether or act. said provisions city Okmulgee provisions or of its of filed of Okmulgee Constitution of the United States have been court of the district enjoining responsibility determining county, Okla., violated. The legislation Company using Okmulgee the acting this wisdom of en- and for Gas Leg- exclusively municipality, alleys al- rests with the and of said same streets islature, leging S. and it is not L. our function to de- the franchise July wisely assigns termine whether acted in enact- and on and heirs Skelton his ing anticipate 7, 1925, consequences August expired or to and ot on (ho utility operation practical law, but our permit under which the revocable duty responsibility chap-. solely operating invalid and was because determine was then any un- whether or not the with Laws was act conilicts the Session ter an- defendant filed Constitution of The constitutional. States, particu- nr swer, was was state of the United alleging while and larly pro- effect, with and while it those constitutional in full force furnishing specifically engaged nat- visions calk'd to our attention the business by plaintiff, city utility gas relied on and we un- as a ural municipal franchise, discharge duly Okmulgee dertake to and shall such do agree- usurping prerogatives so withour written declaration executed its Legislature, pro- being surrendering our franchise as function said strict- ment judicial ly chapter legislative. and in 302 of the Laws sense We vided per- fully cognizant importance revocable in lieu thereof of this and received matter, involving granting policy to the defendant from the mit does permit dealing right, be re- should state in its such with mu- until the various city nicipal voked, concerning business in the .subdivisions vital to conduct its thereof mat- import Okmulgee enjoy streets, ters of them, and to the use of as the as well large, alleys, public grounds in munic- at state sider and we shall therefore con- carefully every question purpose, presented ipality on the provision day will July, review each relied on Com- of our Constitu- 18th mission of Oklahoma, duly plaintiff, practi- authorized far so, Oklahoma, agent cable to do issued in the had order set out petition in error. a certificate the effe“i to the defendant day July, 1925, the 10th proper Wo deem it. to set out full Okmulgee Company holder of Gas the It follows: itself. utilily permit io such revocable relating rjn'iif. “An Act fur- business until should' be revokoo nishing power, light, heat, electricity, gas, according conduct its business authorizing or the change tificates of towns; water in cities and enjoy municipality, the use municipal surrender in ex- purpose. case the streets for that permits; requiring for revocable cer- facts, agreed and on statement of on tried necessity convenience deny- April 1927, a decree was rendered 25. providing for the determination issuance plaintiff sought, and dis- the relief repealing here- thereof: conflict acts prejudice. missing petition with From with. city ap- judgment Okmulgee People State It Enacted “Be pealed. of Oklahoma: firm, associapon. Any person, question presented 3. de-, “Section sole for our engaged corporation, or in the now or hereafter constitutionality of the termination is light, furnishing power, business Law, being chapter 102 Revocable Permit electricity heat, gas, or water as of the Laws of town this state un- der now in existence filed here- Much has said argument briefs been granted, may be- time hereafter effect oral about the expiration of fore the practical operation of this measure of thereafter, clerk of mu- file same, very properly much nicipal corporation of the as to the on both sides Corporation with the Com- franchise and it, policy as to the of enacting wisdom of a written of Oklahoma mission the state However, agreement, executed these declaration same. state - ation, or corporation required of or to manner execution con- conduct in such tlie veyances proposed, estate, town a business similar to of surrenders real it Corporation municipal purposes until Commission or the of Okla- such herein utility homa shall consideration, issue certificate of provided; and in necessity therefor, venience shall, by op- herein- .surrendering as the same provided. after But' no such certificate shall of such eration receive in lieu of sur- required be in permit franchise, cases where no permit such valid rendered from state n or exists. revocable provided; until in the manner hereinafter utility right, granting to such Corporation “Section 6. The Commission permit revoked, ' such shall be so to n hereby given jurisdiction to determine munici- conduct in such business whether convenience will be served pality enjoy streets,-al- of use proposed public utility such new busi- leys. public grounds ways mu- or public necessity ness and whether exists nicipality purpose for that . pub- therefor and to issue such of certificate terms and conditions of said surrendered necessity upon hearing lic convenience and except duration, period of to its petition after a written therefor be' shall police regulation to lawful -' Corporation filed. The Commission shall municipality. control of-such hayo power promulgate such rules and Nothing regulations herewith, 2. be this Act shall “Section not in conflict as it right any fit, of so limit tlie making construed as shall for the of this. see any municipal corporation effectual, any include in fran- hearing Act and before such. require- granted by it chise hereafter such I>eti[-ionshall fix date therefor a:Yl shall grantee require hearing ment it shall see fit given that the notice such be municipal pay copy delivering cor- such franchise chief executive towns, receipts poration portion of such conducted under such of the- officer the clerk of all cities and grantee franchise (sic) by proposal from business effected man-, corpora- pay municipal aging any firm, person, or to such officer of association' corporation money; conducting holding tion other or franchise sum or sums of or or valid' permit such pality grantee reservation the munici- a similar’ conduct ' purchase property locality any -por- business tion addition, used Ihe conduct of business un- thereof. Every require der such franchise. such to Commission shall of he that such notice receipts payments published expense petitioner share or to receive at the moneys purchase by any newspaper or to created two least weeks in some present, contract; future, newspapers chise or other circulation in the (sic) petition. shall continue <o exist full extent de- cities towns effected such contract; Upon hearing petition, per- fined existing such franchise such corporation municipal may appear, objec- son interested and file thereto, support under the laws Oklahoma tions offer evidence in (sic) hereby except may thereof, shall effected as hero- and the be Commission summon witnesses, require produc- expressly provided. such other may of such other as it evidence deem Upon 3. “Section the surrender proper complete and shall have all and inves- provided in the first tigation thereto. petition objections of such hereof, duty it shall be tlui Upon hearing applica- such Corporation Commission to issue such tion, if the Commission shall find that utility a certificate effeci petition should shall issue filing the date the- of such written decla- under Real of the Commission its cer- agreement, ration and the holder of such necessity, tificate of convenience and permit, and such shall be conclu- certificate may doing and in so the time within the Commission fix sive of fact. construction of such pleted. and com- commenced Any permit shall. under the “Section the Commission find Should provisions ed, annulled, revoked, may altered, this Act amend- refused, the certificate should be shall repealed by enact- Any proceedings party order. feel- when- Oklahoma ment aggrieved by himself the order of the permit he ever in its issuing refusing cer- Commission tificate, jurious state; the citizens Supreme appeal to the Court manner, however, injustice that no Oklahoma, provided the cases tion Commission. in other permit. done the holder Corpora- appeal orders firm, person, association, .“Section 5. No corporation or commence the business heat, parts All “Section 7. acts and of acts furnishing power, hereby repealed. conflict herewith light, gas, electricity or as a water public utility or commence the construction “Approved 1925.” March ** * works, plant, system therefor chapter plaintiff contends that said any city long town this state so as there 1925, supra, L. S. is unconstitutional in existence valid is authorizing any franchise or following person, firm, reasons: and void associ- and-3b, 3a municipalities sections it violates Defendant that contends the First. That it Constitution, only powers because 18, of the state expressly delegated by of the have as are article right to deprives plaintiff of charter its the Constitution by it any corporation legislative except which enactment, with and that franchises to expressly contract. where forbidden make better the Constitu- able to is Legislature, tion the behalf the sov- and sections 5a it violates That Second. regulate, ereign, modify, or withdraw Constitution, it 5b, because of the article delegated powers. That a hi plaintiff all and to inhabitants the denies other cities grant by sovereignty, state, act- Okla- state of the and towns ing through municipality, agent, its and grant, right ex- to homa, the constitutional contract state therefore between the any person, tend, to a franchise or renew utility. parties That to such proper. firm, corporation it deems whom right agree to alter- contract ation its article section it violates That Third. in a manner not inconsistent 4b, 4d, 4c, 4a, article Constitution, pro- and merely sections act plaintiff deprives the inhabitants it right vides for alteration. That its referen- the initiative alter, repeal of Ihe amend, annul, a franchise deprives legislation and local dum as expressly Con- reserved to the state right municipalities state of the to refer That the the stitution. control and use of question wheth- citizens the its highways affeet’ng is one streets granted, re- a franchise shall er or not public whole, and welfare of a mal ter of as a newed, purely concern, or extended. local is not to of exclu- the state has retained itself the 53, arti- section Fourth. That it violates sive control necessity the use same. That Constitution, in that it seeks cle extinguish of the granting compet- municipality rights of said puD- question affecting utilities is a obligations of liabilities under franchises to enforce the welfare, which Iic determination of public utilities prerogative sovereign the that of the municipalities. merely reasserts reserven 51, ar- Fifth. That it violates through determine, its of the state to prohibits Legislature from which ticle passing corporation, public proper agency, ne- association, laws cessity act does That the convenience. exclusive or individual municipality, not invade nor

rights, privileges, or within the immunities it exclusive does state Oklahoma. monopoly. Legislature in That the create 32, article it Sixth. That violates discretion has determined wisdom provides Constitution, public which policy of the welfare as matter of of contrary monopolies perpetuities can as a whole best be served genius government regulation free sov- of the utilities allowed, separate article and also section ereign never than rather state provides Constitution, necessarily which that municipalities, which are granted. only ever be purely no exclusive franchise shall local'inter- cerned matters the welfare of state as est and not article Seventh. That violates section And, further, no harm done whole. to Constitution, destroys away no taken self-government. of local individual no harm done it and Eighth. That it violates sections 46b and utility, or the but that consumer 46j of article in that control, only attempting regulate and to' special undertaking regulate it is a through police is nec- power, that which changing of cities affairs their char- welfare, essary and essential for the ters. that an will not Ninth. That it violates section article lie held unconstitutional it be shown 2, of the Constitution Oklahoma and beyond to be unconstitutional a reasonable- Fourteenth Amendment to And, her, good doubt. furl that much States, provides of the United bound a result to Ihe as a whole person life, deprived liberty, shall be consistent, policy regula- co-ordinated property process due law. affecting tion of utilities public the welfare of the locality as a as well as in. Tenth. That it whole violates section ar- 10 of public utility may part op- ticle of the Constitution of the United erating. legisla- States, As impairs to whether or not this in that obli- contractual beneficent, accomplish gations will results and denies to the citizens say, equal protection sug- for us ft is not hereinbefore the laws. gestecl, lor de- tention have bul it us to several remains Oklahoma cases are cited. We enacting carefully termine whether or the eases, not in reviewed each of these wijl has limitations and detail not acted undertake to set them in out imposed upon here, has Constitution for thé judg- reason that in our particu- provisions, they violated larly its ment do in not wise sustain the specifically plaintiff those our atten- called to contention regard. in this There tion and authorities, however, herein before enumerated. are numerous to the that, effect adopted where cities have char- Every question urged against for and ters in accordance with the above-mentioned fully presented question act here in in the has been provisions of the Constitution of this very illuminating elaborate and briefs provisions super- of said charter do not furnished both amici in case and counsel general sede the laws the state in mat- thoroughly curiae, and we have ters in est, sovereign which the state has a inter- carefully every considered contention made provisions city and where the char- and have all reviewed the cases as citedt general ter conflict with the of the bearing.on question laws well as others this and other this matters, state vail. pre- in such said jurisdictions, laws will and are of Linn, See State ex rel. opinion v. 49 Burns this act stand or fall on must Okla. Pac. wherein 153 provisions second construction of the of our own paragraph syllabus of the is as follows: construing the decided cases same. provisions supersede “Such charter do not general general laws of the state of con- then, just what, any, First, if let us see cern, in sovereign which the state has municipality rights belonging are tak- terest, provisions and where the said of. away by act; they second, and, en are such this charter conflict with the laws rights guaranteed character, pre- state this such laws will Constitution, municipalities and there- vail.” away by leg-, fore such as cannot be taken See, also, Best, Board of Education v. 26 enactment. islative That the 5.63, Okla. 109 Pac. and Walton Don v. municipalities in vested nelly, 83 Okla. 201 Pac. 367. agents denied, and that state question then still like- arises here as wheth- exists under this state, though, granting, er the laws with reference to the wise not denied. Can the extending, sovereign power, acting renewal the exercise franchises are mat- merely municipal through Legislature, ters that are limit or restrict na- this right by providing ture or whether that, after the munici- are such matters by granting large pality chise, concern to the state has once acted upon proper appli- sovereign be, which the state has a interest expiration, gener- the benefit of con- cation at time before ally. only by verted into a revocable provided by manner state itself case involved subject orig- provisions of the Commission, Corporation City of Bartlesville v. inal to the term there- Pac. wherein 8 Okla. of, prevent and further provision re this the Constitution from same been a second franchise for the that, ferred there made the contention purposes previously for which one has adopted city having of Bartlesville unless certificate of provisions Con charter under these necessity convenience and first been ob- stitution, es was not authorized to state Corporation tained from the Commission? charges regulate tablish and rates This, think, is a fair statement of the public by public serv rendered the services effect of this act. contention, however, corporations. This ice sustained, holding: Sections 3a and 3b of court article 18 of the was provision authorizing Constitution is the supreme Legislature hav- of the state containing population cities of more than place power regulating seen fit 2,000 gov- to frame charters for their own by public gas utilities furnished rates subject ernment consistent with and judg- Corporation Commission, our sovereign Constitution and laws this state. interest has such The ment preclude plaintiff legislation adopted having as to herein this a charter en- the state from chartered cities of the tering Constitution, under these it is provisions.” charter the field urged by plaintiff that the act here question deprives plaintiff City of certain of its also This rule was announced granting franchises, Co., charter is therefore void. as to of Pawhuska v. Pawhuska Oil & Gas support 1058; 166 Pac. also Con- Okla. Company concedes to a limita- Comm sumers’ Gas power Legislature. (Galbreath

ission, Pac. 126 Okla. City Supreme Tulsa, U. Court). S. It must be borne mind under the prior law as it existed statehood in Okla- Plaintiff next contends Territory, being homa 5a Stat. void in violation of sections because because were authorized to 5b of article 18 of the years franchises for a term not to full exceed 21 deprives, n submitting extend, authority renew a vote grant, people, being specifically of abling Act, franchise; En- terms municipality by above- thereof, Territory, provisions all laws of Oklahoma v as extend- mentioned of Constitution. changed by Leg- ed over the state until urged .support it is of this contention Therefore, islature. remained ing if the had Constitution provisions of ,tiiese Constitution that are grant- on the of the silent citing power, grants of ss^f-executing. by municipalities, of franchises this sec- n City Mayor, etc., of of Pawhuska v. Pa tion would have been sub- on the Co., 563, Oil 28 Okla. Pac. & Gas 115 whuska ject changed by Legislature until of the' 353; being self-executing, and, becomes a apparent state. Thus' it is that under the power grant reserved to the of the law as municipalities, acting it-then existed complete municipalities and within itself through' proper officers, would lid^e power to and that abridge has no grant had tlie agents franchises as provisions, citing or extend its Wil sovereign submitting City Norman, 230, 85 liams v. Pac. 144 Okla. people, a provisions vote but for these . Mayor, A careful examination of of tlie Constitution which the framers City etc., of Pawhuska v. Pawhuska &Oil of the municipalities, Constitution said to ti'e Co., supra, does Gas not hold discloses that this ease effect, hereafter, having that instead of .in grant these sections contain a .right grant a franchises without vote merely power, are self- you people, of the as have had before state- executing; parag. 4, being syllabus, thereof adoption hood and will have after the of flm as follows: it, you change Constitution unless we must (cid:127) proceed provided herein, as as follow"! 5a, 18, of “Section art. providing shall municipal corporation “Section “No 5A. period years, longer for than self grant, extend, shall ever or renew a *” * * executing. chise, Without, approval majority of a No and we have failed qualified case been cited residing of the electors within the corporate any limits, to find wherein it has been held that at who shall thereon vote special election; legis- a lative submit Constitution contain and tlie these of the sections body -may corporation such power. grant n approval for such matter dis- Iji approval any general City Norman, supra, it v. to such electors at Wiliams election, municipal special call election held that section article was purpose days’ for at time such power, grant self-executing hut nowhere notice; granted, and no franchise shall he suggested fact it even case is extended, longer or renewed for a term than being self-executing of it for basis n years.” holding grant the power, ly it. contained language language clearly hut this section indi- clear- cales both a indicated it was so held limitation and an A because inhibition. .language exercising limitation of the section itself. jf municipality tlie As was said State ex rel. Edwards existed, it bad theretofore and an inhibition Millar, Mayor, 21 Okla. 96 Pac. against Legislature again conferring object and. the evident of section power. empower primarily article incor- porated state, by will he It noted under towns this section cities that the- legislative body majority qualified municipality may any tax-paying of the voters sub- own purpose, voting mit matter an election held for at time on at larger petition .request in a volition without a for on the to become indebted amount there- than specified part electors, purposes section that therein while section, following being provides , 5b, enumerated. section But for this section (see. 27, 10) special said must be at a no such ex- submitted would purpose by election called chief "would-be ist to the limitations contained restricted prop- executive officer whenever Furthermore, but the these petition signed number a sufficient er Legislature, by statutory demanding qualified it. filed electors is enactment, could have amended this law petition signed 5b. Section “Whenever a prior 25, 30, (cid:127)it existed to statehood to read by nicipal corporation equal qualified mu- number of electors years, 5a, or 50 instead of 21. ar- Secliou per centum ticle limits term for which a munici- next at the of tlie total number of votes case ' pality may grant years, election, preceding general manding tended, de- ex- against and is granted, therefore an inhibition franchise be renewed, authorizing with the shall be filed corporation, chief executive officer of said longer term, franchises for shall, ten the chief officer executive grant- this act undertook to authorize the election, days special at thereafter, call a ing would, longer for a It term, question of wheth- which he submit shall course, clearly unconstitutional er or not such franchise provision. because conflict The' with this extended, renewed, if, elec- said act, however, mereiy provides for amend- tion, majority voting electors existing of an ment valid franchise is' extension, grant, thereon shall vote specifically authorized article renewal granted by proper at the authorities 9, of the Constitution. succeeding regular leg- meeting next early City In the case of Oklahoma body city.” islative Shields, pro- 22 Okla. 100 Pac. When considered in connection with the the apply vision is construed and held to prior on this it existed law adoption partic- utilities. The Constitution, and in our ular franchise under consideration tha>. judgment it in order must be considered railway company, aof street court hold- the conclusion, proper to becomes arrive at ing company that the took franchise sub- merely readily apparent provisions' that these ject legislation might to such state the change powers officers the and duties of the enact. The lower had held court -municipality they had existed Legislature passed grant- act of the after regard adoption of Con- this before the change the franchise could not or alter stitution, provisions, instead and these pre-existing rights railway com-, really powers, conferring new or additional pany. holding This reversed in unan- ex- limited and restricted those theretofore opinion by Williams, Chief Justice imous grant isting, to fran- to The wit: wherein the court said: submitting question to a chises by 5a, people, re- vote of the and section 47, (Bunn’s 262) “Section Ed. sec.- quiring granting franchise provides that before Okla., Const. that: bp question first must submitted “ Legislature power ‘The desig- by people, and 5b. vote of the section amend, annul, revoke, repeal alter, nating the manner in incorporation charter of now franchise upon proper petition filed submitted existing altered, amended, shall be and to he annulled, by ing requisite repealed number of electors demand- revoked or time adoption of this Constitution or same. created, hereafter in its whenever very language of injurious opinion it to the citizens municipal corporation itself, “No wit: state, manner, however, of this grant," further, etc., “and shall ever no franchise injustice incorpora- no tors.’ done shall be etc., granted,” indi- shall be limit and define clear intention to cates a desiring convention, “The constitutional powers rather than preserve the reservations does This act extend the same. 1903, supra, Rev. & Ann. St. AVilson’s mu- to limit or restrict not undertake nicipality corporated and said section granting but specifically included franchises. -exclusively prerogative is left function with the “In Bank v. N. of Noble State C. the case municipality. act cannot al., ante, p. Pac. Haskell et applicable until a not. become does manner, however, clause, ‘in such city, by after has first been the injustice incorporators,’ he done regard acted not be a limitation was construed the merely fran- authorizes the surrender act, re preser provision utility quiring by had for the for -a revocable to be chise repeal or mod after the super- vation of the assets under the in lieu thereof to be issued * * * of the charter. ification Corporation Commission con- vision taining original provisions fran- of the con- “The reservation to the state way trolling power, term thereof. of taxation chise as to the municipalities grants state their to franchises public nature, salutary. municipali is wise and refer to the citizens of the municipality, being a subdivision ties the whether not fran n exists by grant delegated power, either extended; renewed, chise shall be granted, organic enactment of citing support City of this contention Legislature. municipal These subdivisions Ward, v. Collinsville 1145; 106, 64 Okla. 165 Pac. infancy, in their an overdesire build , City v. Bodine Oklahoma Okla. n grow, frequently through municipal ; Tulsa, 187 Pac. 209 Owen v. 27 Okla. government able advisedly grant away ill valu- 320; Lackey 111 Pac. franchises, shackling burdening State, v. 29 Okla. fu- generations. 913; Linn, ture And were for the it not 116 Pac. State 49 Okla. provisions economy wise reserving of our 526, 153 Pac. 826. haveWe examined each repeal, amend and eases, agree plaintiff of these with n impose additional burdens they are to the effect that public privileges, chises and of- these purely municipal which are matters covered municipalities, ficers of such in their over- provisions Legisla charter build, desire to grow, develop, might ture is not authorized unwisely to enact law abro burden the future develop * * * ¡present. gating setting pro aside charter however, agree cannot, We visions. salutary “And it is wise and in the econ- plaintiff’s contention that the act here in omy building that such have question violates these the Con been reserved to the to have the paramount stitution or that cited are supervision above cases and control.” reason, suggested in applicable, for the A franchise has been defined this court 3b, our discussion sections 3a Telephone So. McAlester-Eufaula Co. supra, State, 25 Okla. 106 Pac. as follows: purely to a a matter “A privilege by plaintiff, municipal concern as contended sovereign parties to one or more to do concern, matter of but is a a some without er.” acts which could do rightful subject legislation Leg sovereign pow- from the islature of the state. viola- this act is next contended It Sapulpa Co., v. Oklahoma Natural Gas of the Constitu- tive of article 79 Okla. 192 Pac it was held: extinguish tion, the it seeks to in that n “A municipality granting in a franchise liabilities or to enforce the of gas to a corporation, permits the use obligations public utilities under of such alleys of the streets and the granted. previously section This furnishing franchise gas. the citizens with acts as releasing governmental * Legislature prohibit * *” agency the does or of the state. extinguishing authorizing the release case of Henderson Nat. Bank v. indebtedness, part liabili- in in whole or City Henderson, Ky. Rep. L. 728, 39 corporation in- ties, obligations 1030, S. W. a franchise was defined as any municipal cor- dividual to this state poration bestowed a state to be withdrawn analyze thereof, but, we as destroyed pleasure at the Legisla- of the question, fail we act here in construe ture. anything to do it undertakes wherein see These and other cases to the prohibited same effect The indebted- said section. are conclusive proposition on utility obligations that all of the ness, liability, or granted by are sovereign pow- municipality under same remain the ato er, and it therefore franchise, original follows that the munici- permit inas revocable pality granting such only franchises acts opinion as mere that are of the and we governmental agency of the state. feature of definite term fact that way no viola- inis is eliminated Plaintiff further contends that the act Constitution. of the section tive of this question deprives bore in the citizens of the 223, Ritterbusch, (cid:127)city Okmulgee 29 Okla. powers v. In McNeal initi 778, by plaintiff, find that we ative and cited referendum Pac. reserved 116 the in to the there, iby Constitution, only question stated as involved section article of the Act opinion, powers whether was .and also the of the initiative and May 1909, amending the Act of 4a, as March referendum 4b, 4c, under sections saving containing clause as and 4d of article 18 of the Constitu former act and under the tion, assessed taxes and that this in act is conflict with the amendment, prior effect had the municipalities, reserved set as holding that releasing After taxes. deprives these sections, forth in said in it that Ill granting privileges- the court laws exclusive effect, not have act did provides perpetuities monopolies- of the Constitu that article cited section contrary genius govern- tion, City Louisville are of free v. Louisville allowed; citing. Ky. 1, Co., wherein and shall never be W. ment R. 63 S. R. Short, provision was under 108 Okla. Rice State ex rel. á similar constitutional holding authority in case 807. It contended consideration, Pac. given authority given between State into or could the contract entered that no municipality council of the Board of on behalf Affairs part parties due taxes of shirts in whole or in certain for the manufacture release appear, readily municipality. prison will of convict with the use It therefore, case, with these conflict labor was void because McNeal Rittei- husch, supra, accepted Constitution. The cannot of the and other way sustaining plaintiff contract into such contention of to enter stale point. upheld, considera- careful after un- are opinion we in this case portion It next contended that tially inferen even wherein find able to section article of the Constitution plaintiff’s contention sustains or otherwise hero, provides that shall not rea- but are pass any obligation impairing holding of soning employed therein violated contract because sus- than rather refute tends the court municipality between a a contract quote- here. We plaintiff’s contention tain utility, and reason this act cer- follows; therefrom tain abrogated, conditions are contract annulled, Again, set aside. must in vio- charge this contract of the say. suggested, including- as heretofore the lia- laws lation of tile ' municipality iis obligations bilities and due section 32. that monopoly of the- in favor utility creates a contract Company Manufacturing ex- Cherokee abrogated, annulled, manner therein, and privileges tent of aside, or set but are continued full force contrary to he declared respects original contained government, is, genius seems free the to the Constitution franchise. Section of the act covers this us, foundation. proposition fully, as follows: provides that referred to contrary monopolies perpetuities “* * * consideration, utility And government, genius a free surrendering shall, by operation provision should never be allowed. receive lieu of such surrendered 44, art. with section connection read permit from the state revocable that; Constitution, which is provided, in the manner hereinafter “ right, to such until such what define ‘The revoked, trust,, shall be so combination, monopoly, to conduct the an unlawful municipality trado, business and en- agreement, in restraint (cid:127)ef or joy streets, alleys, the use of the engaged persons punish laws to enact grounds ways trust, combination, monopoly, any unlawful purpose upon trade, and con- terms agreement, or- in restraint of act or ditions said surrendered monopoly, any com- composing trust i-r, npi-iod duration, Ha subject as lawful to the bination.’ regulation police and control of such re- compliance this constitutional with “In municipality.’’ by has, Legislature quirement, sections- It 1921,. will thus he seen Comp. act that this does not (inclusive) Stat. 11017 to defined purport illegal, monop- extinguish to release or indebted certain declared 11017, supra, providing impair ness or olies. Section a thatr. right contract or vested “ of the or its citizens. is ‘Every It act, agreement, contract com- also well settled trust, otherwise,, bination in the form rights conspiracy no vested or merce within this restraint com- franchises which trade state, against agents. which is execute as mere Pawhuska Oil & public hereby policy, il- declared to he Pawhuska, City 394; Gas v.Co. 250 U. S. legal.’ Ry. Powell, Oklahoma 737, Okla. Water, Light Legis- Pac. and Salem will “It thus be observed that the Salem. recognized what, doubt, lature no & Power Co.. Fed. 295. the minds of the framers of the Constitu- It is next contended act void tion, monopolies denounced the- because it violates section article of5. Constitution are which those have for their Constitution, and article infringement the freedom of prohibits which passing trade.” Tindall, parte properly applied Okla. ‘private sound as In Ex to be to enterprises’ ‘public business short as well this court as to Pac. decided ’ enterprises.’ applies service private It ly prior passage act here to. o£ the to the enterprises business whenever such business provisions Constitu question, of the these public essentially* affects the welfare and very exhaustive in a tion opinion construed were applies public service concerns because hy from which Harrison, Justice right public regulate a serv- quote follows: public pay for which ice must a fee profit. deny public To this the to the ground contention “Petitioner’s third deny would be to art. of that sacred of section violative isRlidt petitioner strenuously which provides: has so Constitution, 5,"of which argued behalf, viz., on own his of ‘due ‘The art. process ./‘Section of law.’ association, granting pass “Hence the contention unsound and corporation, exclusive individual without merit. rights, privileges, or immunities within this state.’ dangerous menace, “The seems viz., petitioner, grant- so much disturb ‘the ground petitioner’s of con- fourth “And the special privilege and creation of sec- violative of tention is that tion the act is monopoly’, is not the When authorized act. fairly logically analyzed and the act is provides: provisions impartially observed, it does ‘Perpetuities mo- art. 2. “Section Corporation not authorize Commission contrary genius nopolies arbitrary capricious power to exercise the ; government, be allowed and shall never free granting perpetual special privilege of creating primogeniture or en- the law of nor shall tailments monopoly. Legisla- perpetual ever be in force state.’ of this statute has ture in the enactment mind, n clearly quoted kept in the test above provisions, two constitutional “These L., viz., from R. C. ‘the extent to substantially which toe effect, attain their ultimate public rights and welfare be affected object, a limi- Each constitutes viz. any given enterprise,’ business and in the special privileges granting of tation statute under consideration the crucial and monopolies; creation hence Corporation decisive test power Commission’s grounds of contention will be consid- two ered * * is the fact of the * convenience and together. public. necessities gist petitioner's contention .“The grounds Corporation per- two Commission is not a.bove transporta- desiring engage person mitted exercise vested public highways act, unless, must fact, over the tion business so, require and that the a license do first obtain convenience and necessities the ex- pow- Corporation er power. vested Commission is ercise of such license, thereby and that refuse convenience and necessities one, fact, re- license to becomes the the fuse decisive to be evidence, another, granting determined from if license the Cor- poration finding arbitrary power Commission be unreasonable in Commission an privilege to such fact or should an make an exclusive and there- by creating monopoly finding evidence, order without sufficient public in violation of necessity foregoing convenience two either de- the state Con- service, manded or did not demand stitution. attempt should make and der either enforce or- “But this will contention not stand the accordingly, party aggrieved, then the analysis weight fair test of cisions. nor the of de- applicant public, appeal judicial to this court for a “ inquiry sufficiency ‘Since all are held and review as to police power necessary when the evidence and the reasonableness (he Legislature may prohibit absolutely the maintenance of order. any particular business thereby “The Commission is shorn those safety public public the' or the morals re- menacing arbitrary petitioner which quire its discontinuance: and the hand of police power fear. seems to It is within stayed pro- cannot be. grant privilege of the state to render to hy any viding for its inci- discontinuance public character which service will dental inconvenience which individuals or * * * may equally corporations public, materially benefit suffer. test power pursuit power deny found in the. effect the to restrict calling upon public privilege has rath- (cid:127)of the weal whenever it would in detri- result er than in nature the inherent call- public. ment to the See Police Power of the p. R. L. itself.’ 6 sec. 221-2. C. 228; Cyc. 874; p. State, R. C. L. S63— subject in same other authorities above cited. “This doctrine is so essential and so

(cid:127)113 support Occupa- 97 Pac. is cited in this Regulation Prohibition Also above tion, p. and authorities contention. This case involved consti- R. C. L. tutionality cited. of. the the act Depositors public pertaining' Guaranty be will to whether detrimentally beneficially affected Fund. This act the assailed as violative of was operation licensing refusing license the to respects Constitution several' ne- not ‘transportation enter- as a vehicles of motor cessary very to' enumerate herein. In a. profit highways, public prise’ to be over opinion by able and' exhaustive Chief Jus- public, paid a deter- made every plaintiff tice Williams contention of which is mining fact, the reasonableness denied We and the act think sustained. * * * subject court. this review language some tive to the act apropos rela- “Therefore, does act very consideration is arbitrary grant purport nor case, therefore instant Corporation power Commis final and sion quote therefrom as follows: . perpetual grant a it to enable as will monopoly,— up privilege special or build grants spe ‘“The insistence that the act public and convenience needs demands privileges equally cial and immunities is court." this menace before would halt every regu untenable. It is manifest that lating precise prescribed terms statute the syllabus case Paragraph in said 9 of the arbitrary, depending must be to some extent follows: upon legislative of a exercise sound 32, art. in section "The limitations judgment. mandate The constitutional and section no satisfied discriminate in favor of larly there be manifest intent priv- lights and against granting exclusive particular class simi monopolies, creating not ex- ileges of others to the exclusion citizens upon the confers an act which ceeded Corporation circumstanced, provision power malee Commission open alike be in the restrictive act fact power rules, certain where the enforce may bring with who themselves all citizens to upon rules made conditioned special enforce such neither confers in its terms. act This public and ne- discriminations, the fact of convenience unjust privileges nor makes cessity. every open privileges citizen but its privilege upon no It same denies terms. persons principle a fundamental “It is any one, operates upon alike all corporations engaged occupations may who avail themselves benefits. public or use which the has an interest * * * The circumstances tliat time regulated by be In such statute. case may possibly inconvenience, hardship, inflict effect test is found individuals, loss to certain do pursuit calling long objection amount to a constitutional weal.” needlessly as such burdens losses are not Plaintiff further contends that unreasonably imposed, ah but result'as fairly and void because in con- is unconstitutional flict with section stitution, to a de incident enactment signed If to subserve the welfare. 7, article of the Con- resulting fact of inconvenience and mere provides exclusive business, admittedly an loss to established granted. If could franchise shall ever be said that an exclusive control, sufficient were question grants here in power, preclude’ police control under might position regulation practically im would be llien de- “exclusive” is taken. The word well salutary possible, sary abridged and neces and this most “elaudere,” “ex,’’ out, rived from shut, meaning already pointed seriously sovereignty shut, out, wholly destroyed. as we statute imposes pur- grants equal privileges like out, the act does not persons all under the restrictions port or authorize the deprive appellee circumstances, and does not that shuts an exclusive franchise one deny equal law, process him of due others, merely provides for the out .protection violation existing franchise. amendment of an valid Amendment Fourteenth many as the As United States.” granted, vote desire to to; quote approval subject only Farmers regulatory We of control Co-Op. v. Boswell Merchants Tel. Co. Commission under sections & (Ind.) issuing Tel. N. wherein this Co. E. and 6 of the act in the matter of proposition necessity. By involved: identical certificates convenience and reasoning no manner of can be said that “Appellant's proposition is that sec- first provision because exclusive (section Utility tion 97 of the Public Act monopoly may pos- or- chise 10052t3, 1914) Burns is unconstitutional. sibly ques- be granted, under the act here in portion involved That of said here Haskell, tion. Noble State Bank Okla. follows: reads as 114 “ license, ing part shall be ‘No or francliise thereof .a streets munici copartnership palities, by public granted any person, utilities, and the matter manage own, operate, corporation inseparable con- license to so use are so any public plant equipment ‘An concerning public may trol utility utilities’ properly any municipality grant in where there is embrace utility engaged operation public in licenses, sim- refusal may in of such and license, franchise, agency or name a ilar permit service under new for the consideration securing application com- and from action without first The therefor. public title declaration, after a hear- subject-mat said act mission ing embraces the interested, pubic parties ter Monarch, etc., of Ill. of all section 97. State v. 1916A, necessity require 528, 267 second and 108 N. venience ***utility.’ E. 716. Ann. Cas. 528; Illys 118, v. River, White 175 Ind. 93 N. E. Scanlon, 670; 142, Board v. Ind. 98 178 support “The first reason asserted 801; N. Simmons, E. Marion v. 180 Ind. proposition said is in is that the title 289, 132; Pittsburgh Chappell, 102 N. E. v. 97, to embrace not-sufficient said 141, 403, 1918A, 183 Ind. 106 N. E. Ann. Cas. concerning-public the title ‘An act Talbott, 627; App. 420, In re Ind. 58 108 182 utilities, creating a Public Com- Service 240; Olney Dean, N. E. Halstead v. mission, abolishing Railroad Commis- 446, 903; Ind. 105 N. E. v. Han Plank Co. R. Indiana, powers conferring sion naman, Ind. 22 484. Public Railroad Commission Commission,’ monopoly 97 Service 97 de- “Section whereas section does not create a. prives utility granted an inherent the first franchise. instance, power utility holding say, only first first fran long chise, only franchise, whether a franchise so as it duplication practicallj', only sense, will result invest- mo to, nopoly. may ments, npt practical monopoly and said title does OTiat such refev purport affect, powers exist, Citizens, Indianapolis cities see v. Cable Co. Appellant alrgues etc., 1054, 369, 388, towns. that cities 127 24 Ind. N. E. 26 N. .and 893, streets, 539; City have control E. R. towns exclusive of their L. A. R. 8 v.Co. Citizens’ power by Co., 557, Sup. their thereover ne- R. de- 653, limited U. 41 166 S. 17 Ct. power cessity, stroyed and that cannot L. Ed. 1114. But no ex has by legislation. privileges such indirect clusive between itself public may welfare or interests. proposition “This overlooks funda authorize a second. If state determines point municipal mental that the streets second, not first is not because the parts ity the general highways are exclusive, because, state’s served state, such, pri and, the state has opinion, public welfare will not bo mary control when the thereover interests Appellant the second. took its charter public concerned, are and such asked municipalities have, thereciver as when the (he, town, knowing law. be the .this involved, general public interests of the etc., Bend, Grand Ind. Co. v. 174 Trunk South municipalities by are state Ind. R. A. 203, 214-223, 885, E. E. 89 N. 91 N. (Grand Bend, 174 Trunk Co. v. South 809, S.) ap- (N. 36 L. R. A. 850. Therefore E. E. L. 89 N. 91 N. 36 pellee’s not claimed sense 850), [N. S.] be withdrawn monopoly. effect, state; agency public given appellee, as welfare “The state not thus established monopoly asserts, appellant which it did not have municipality. Appellant ‘an ended exclusive thus etc., before,’ proposition Vandalta, and taken cites to its persons State, appellant, manner of Co. v. ‘from and all 166 Ind. 76 N. E. Rep. corporations, Am. a and before did not St. 370. This decision holds enactment,’ deprive because or town whatever cannot of its own will itself, contract, right appellee took, delegated and whatever of. had, appellant sub- -were theretofore welfare. far So as it touches ject- regulation question, ‘the ihe this decision holds that as to alleys, gen ordinance, statute streets when mere fact that may reasonably ro concerned, regarded eral welfare are conducive public, inherent, regulates cities and towns are not but are the welfare Railway business, lays trade conferred. The decision Indiana some burden Calvert, Ind. In- Co. N. E. it. does render unconstitutional.’ v. 321, page (N. S.) Calvert, 168 10 L. R. A. 11 Ann. diana R. Co. v. 332, Ind. Cas. 635. 780. (N. S.) appellant, R. A. cited E. 30 L. to the same ef N. also, point

fect. See. Ann. 635. decisions cited Cas. in 118 N. v. Public Winfield Service Commission. foregoing explanation of rela- “The 533; Edwards, E. Coverdale state, municipalities, tions of utilities, 495; N. 155 Ind. E. ex rel. State other, respect- each Stickelman, 102, 106, Ind. 105 N. E. rights, disposing powers and ive assists appellant's propositions, to several of wit: Assembly highways, state's General use includ While

115 citizens, on to vote as to whether' citizen, any class which, upon grant franchise, the not would a second privileges or immunities belong equally terms, presumption but the of law is that the Com- directly Assembly may, in citizens, the duty prem- mission would do its full in the welfare, grant with public directly, for the and, ises, promptly grant proper showing made, if a would public use franchises hold per- thus the certificate and police exercising its highways, in thus fact, mit the election to be held. In there may discriminations powers, make appeal pending is now court an judge distinctions, reason and ableness granting an order of Company the Commission Gas Consumers’ thereof. utility 1062, 446, 15 certificate ing a second and authoriz- Harless, N. E. 29 131 Ind. v. 247, 505; State, calling Ind. v. 151 an election R. Ferner to submit L. A. Hogreiver, 360; 152 Ind. v. municipality State N. E. 51 to the voters Zumpfe 504; 921, A. 652, 45 R.L. 53 N. right involved. Also the is reserved to the 805; 219, Louis Gentry, E.N. 153 Ind. 54 v. municipality by 18, section 6. article 305, Garrett, S. etc., 231 U. ville, R. Co. hear, operate light, its .own construct 229; 48, Sup. L. State v. Ed. 58 Ct. 34 or mains, so, re- company, and this still 169, 7; Barrett N. E. Barrett, 172 87 Ind. if at time the first Sup. Indiana, 33 S. 229 U. v. State ‘permit Ry. or holder of indeterminate holder C., L. I. St. 1050; & Ed. 692, 57 L. Ct. people rea- Commission, N. E. incurs the wrath 173 Ind. 87 Co. v. Indianapolis 1011; son, ample Smith N. E. hands 90 means are 849; Penn Ry. Co., N. E. Ind. people gaining 158 relief. Their 63 State, N. sylvania 41 142 Ind. Co. v. dangers amply safeguarded are E. 937. oppression utility, as hands may that, herein, while suggested observe “In this action filed briefs more authority difference there is conflict duty imaginary than real. is the It healthy ap judgment to whether of prehension utility to render maximum service at competition will insure better cost, minimum fair consistent with a return pro public will be than utilities service investment, on to ren- and the incentive degree sense franchises duced der this character and maintain service Averill, (see Co. v. 199 N. Y. Tel. exclusive necessarily good patrons will of its [N ] L. A. Y. 32 R. S. N. N. E. present ever will so that no 878; there occasion Rep. ex rel. v. Am. State St. municipality part Stickelman, N. E. Ind. desire 777). questions pointed are to addressed of the methods above resort either Legislature, primarily to the to its de out. the character of ren- Likewise service tribunal; signated and under the now statute charged for ail same are at dered rates being each such to be considered situation Is subject regulations to the and control times of circumstances, judged peculiar in view of its Corporation under the Commission responsibility with the and thus the rests existing passage prior this act Legislature, or Public Service Commis previous and a court. So decisions sion, competitor, refused to a franchise is permit utility operating supervise regulate existing a revocable to so utility welfare.” as to insure as coun- is not unbridled unrestrained Let sel have believe. us see would us We reiterate that under the act here per- analysis just revocable last what this privilege volved has no exclusive operating utility, permits mit is. under a franchise theretofore It welfare as between itself and the a second authorize interests. municipality agent au- If not to franchise. the state determines in lieu receive surrender the franchise and franchise, because thorize a second operates permit thereof the under which exclusive, but because in the first state’s thereafter, precisely the same terms opinion public not be welfare will original as period conditions as to words, to the thereby. served The mere to refuse duration. other authority for the second does not original might where sense make first exclusive within the ten, one, years had run accord- meaning of the Constitution. term, permit to its the new runs for altered, time, subject being indeterminate amended, annulled, revoked, helpless Counsel contends the repealed by competition is forever barred no re- Legislature. Can it be said possible lief no matter how intolerable into converted revocable thus ditions become. Counsel seem to assume permit, perpetual becomes exclusive or when Commission would un- ample provision is made for der circumstances the certificate of necessity many convenience and as the second or competing people may utility, regulatory thus fit, see (lie Corporation Commission, control of the majority opinion herein, 129 N. W. specifically provided revoke for was said : of the act and "Tine, (lie Legislature enpower the cannot article of of Constitution this state? legislative Railroad Commission to exercise judicial power; may or it but clothe it. with Section and sections 46b article and authority requiring to administer relating right 46j of article to of ascertainment of facts in order to determine government providing local self and that the applies, so, how, whether the law and if to pass any special shall not local or situations as arise. The administrative relied, laws, by plaintiff are also on to de- power includes, power necessarily, to dete- already feat the.act. We have discussed this necessary application mine the facts to of proposition 3b, 3a and and under sections govern- principle the law. is a That familiar say judg- ing grant, it is here that our quasi sufficient to in. numerous of instances of judicial quasi way legislative power. They question and in ment here in no the act is strictly do not fall within field of provisions violative of these tion. of Constitu- judicial ci legislative or which un- is * *-(cid:127) elega ble. (lie Further, is it contended that is Legislature provided, effect, “Here the in void because violative article existing that in case of there under an inde- Oklahoma, and of Constitution permit, right corporation terminate of a the 14th Amendment to the Constitution of. enjoy privileges to in are involved argument United case, States. Plaintiff’s other or proposition principally granted in invade, devoted to bo this that to to is one whole part, except requires field, or portion the same which specified involving the condition ascertain- certificate convenience and neces created, plainly ment a fact. That condi- sity Corporation Commission of from the tionally, municipal disability, and before franchise to the state conflicting existing extent amended all laws. utility; competing being urged or second It was that the mere ascertainment the fact right municipality that the to contract delegated to the Commission. individuals, firms, corporations with power, waiting prohibition of the exercise denied, engaged in and upon creation. ascertainment, legislative is business provisions labor The mere administrative of the. Constitution that guarantee these legislative power ascertaining the fact is not municipality right undelegable at all in sense. Such ad- again contract. assumes a Plaintiff false feature involve ele- ministrative does premise municipality’s assuming that the discretion, legislative expediency ment of right abrogated by to contract is denied only judgment and which but any ascertain whether discretion provisions these act. As we have person body commonly exercises, pointed out, right heretofore to contra given el- situation satisfies higher intact, subject- and prescribed left au- the calls of thority rule (he, guidance enforce- regulatory and to a lower for ment.” was, Legislature, vested similar, Corporation Commission. go Any person, firm, corporation Provisions could identical, if not with furnishing light, pow- these heat, involved here in business of Tindall, upheld parte supra. were in Ex if er in a or town supplemental Plaintiff has filed herein brief engage hav- business without it could largely therefor, highways devoted to a review of State streets and to use Denny, Mayor, al., ex rel. fact, purpose Jamison v. et. because this such reported an Indiana case N. E. 252. authorizing of- the streets use exhaustively ques This ease deals highways, franchise must first be ob- self-government. question (he tion of local tained, regulation control and presented special there is stated in a con alleys, streets, or other use Justice, curring opinion by Elliott, Chief grounds ways any municipality spec- Assembly power thus: Has the General section 7. ificallv reserved appoint county, local officers IS, town article of the Constitution. ship, city? question town or is in no As refer to citizens heretofore, here, sug sense involved and not a of whether or gested herein, the act here in does extended, renewed, purport deny municipality unequivocal clude that no such absolute self-government of local matters anywhere the munici- conferred purely municipal. pality. provisions of the Constitu- These against provisions discussing an inhibition the munici- contain relative pality renewing, extending granting, obtaining the certificate convenience referring necessity, first Wisconsin franchise without 'the case cited properly out, special tlie in a election. divisible as above set electors being divisible, quite my opinion supra. clear it is It is 5b, Sections 5a that Constitution was first constitutional, provisions four sections held of the the these if even sections and 6 limit restrict should be found 5b,' contravene section article to matters of the Con- stitution, strenuously way prevent contended, as is so this kind such a toas part opinion, upon I am officers further of the action considera- on the that, act, approval tion of the would with the sanction and of municipality voting said four elec- have enacted first sections with- purpose, out to these sections 5 numerous tion called for that very salutary provisions court, if four of the Constitution decisions of first sec- effect, constitutional, give hold, no- we would full force and tions as I upheld where in these or be stricken down. even the last two sections were my opinion, And called our attention do we It further others to is pointed out, sovereign however, where state' surren- hereinbefore the as the as that upheld or the there- said dered' to the 5 and should for sections be .6 exercising the control of and absolute the reasons herein stated. grant- in matter the the Jurisdiction sovereign gives is It conceded that the ing this that franchises. It is conceded sovereign away, and but is the can it take originally in and must rests the state plaintiff by contended been that which has that upon the if conferred emanate therefrom given by or conferred the Constitution municipality, delegated and in order to be away by cannot be With taken statute. this by specifically conferred either the must be accord, hearty contention, and we are in con- by Legislature. can-We Constitution or not the duty recognize up- ceive if to be our to and required say, we indeed and powers rights. hold all and thus say, question perfect in is whether the act any legislative ferred, and strike down .en- operation salutary, and but these its abridging actment in fering by manner or inter- Legis- questions for the consideration the rights and with conferred lature, may and it its wisdom amend duty, is our likewise Constitution. It modify entirely repeal if if law or it though, recognize preroga- and determine. should so authority up- legislative and tives discussing In last two sections these to than 'nul- hold its solemn enactments rather lify requiring act, relative the certificates the of by them construction unless it Judicial necessity from convenience and the Cor- clearly (lie plain provisions appeal's that permitting poration an before Commission In violated. this have been granting election to be held regard authorities are cited hold- numerous utility, may for a I add second constitutionality ing any doubt as counsel, very by suggested properly is and it always Legislature act should of an think, so, into we is act divisible constitutionality favor of the resolved in be consisting part parts; the first two of the act. sections, providing and method first four early Anderson Ritter case In the whereby existing valid manner may Treasurer, Pac. Okla. busch, be the holder thereof surrendered Kano, opinion by this court Justice permit from conduct said: municipality upon pre- business and conditions of the surrendered cise terms' is 2-15 may No. Bill that Senate “It respects except definite legislation piece complete eliminated, permit be- is term feature adequate for the possible, we believe but enacted, will revocable at in purposes and which (here- persons af rights of fringes conditions in the manner under the rested and capable im consisting it. That it provided. part, fected provement The second with have which we prohibits matter granting aof 5 and sections Legislature. nothing with That is do.. competing franchise in second or ‘Judges ought to remember their office valid where there is existence town interpret dicere, jus jus dare —to and not until a certificate of law, rule law, give law.’ The make not to necessity therefor convenience Mar laid Mr. Chief Justice down Commission 87-128, obtained Cranch, Peck, Fletcher shall 3 provided, salutary: with in the therein .manner sound and L. Ed. appeal from the order of court “ question, be void -whether ‘The denying certifi- Commission is, repugnancy at. all to the Constitution its cate. delicacy, times, question which much seldom, ought in the ever, be decided view act AVeare inclined * * *(cid:127) affirmative intent was evinced doubtful case. But to retain absolute vague slight implication on con- pro- is not exclusive control in all matters of kind jecture is to sovereign, in the state that the state powers, and have nounced'to transcended high- has control of the use of the streets and op- void. acts considered as ways, having expressly reserved that position between the Constitution and the 47,' judge feels a law should be 9, specifically Leg- upon article confers strong incompati- clear conviction ” sought islature the to be bility exercised with each other.’ passage question. it in the act here In the case at bar it be said that complete piece I have fur- House Bill No. of carried comment is not as citations possible, legislation than I ther would because of matter otherwise improvement vigorous of its alteration or with insistence counsel that the act is one do, nothing func- was vulnerable to their have since our attack exclusively interpret grounds law, hot to the constitutional discussed many questions presented language make Jus- because of the Chief great importance cited, tice Marshall in case above this matter. I am amI say strong unable conviction of that I satisfied with the ion to feel a clear correctness conclus- come, incompatibility prin- I both ciple authority here in derived from Constitution. the con- placed struction these constitutional Childers, Graham v. Okla. provisions by similar court Pac. it was said: provisions by scholarly constitutional “He who contends that an Upon learned courts of other states. con- sovereign legislative body excess its say sideration of all that been shown I the authorities cannot authority constitutional must sustain the unconstitutionality of this has act showing burden of a state of facts —if facts beyond doubt, a reasonable bur which, ap- are drawn in when the issue— repugnant conclude that act neither plicable provisions of the Constitution are the Constitution of Oklahoma nor that of the considered, attempted show the exercise of government, and, following ap- federal beyond constitutional limitations. done, plying every Until presumption which indulge that is the rules laid down for us heretofore courts legislative conclusion, by predecessors our eminent and hereinbefore passage act, was reached clearly am the act cited. I provisions the act are fact sustained, here should be authority, within its was correct.’’ agree opin- therefore am unable with the majority early ion dissent respectfully This rule was and most announced jurisdiction City Haskell, therefrom. of Pond Creek v. very 21 Okla. 97 Pac. exhaust opinion by Dunn, ive Justice sistently been followed since that time. The syllabus paragraph opin- first of ion is as follows: “A leg- court will never declare an act islation, passed KIRKPATRICK, Atty., with all the forms and solem- Co. RETAIL requisite give nities it the force of ASS’N OF et TULSA al. MERCHANTS void, nullity unconstitutional and unless the Opinion No. Filed Nov. 20504. 1929. invalidity placed, judgment, beyond a reasonable doubt.” Rehearing Dec. Denied holding uniform, seems very while the act here in could easily proposition, be sustained under this my judgment certainly for in cannot beyond raid that is unconstitutional to, doubt, a reasonable and do I do need not, my holding entirely base herein proposition, thoroughly on this for I am sat- isfied, after a careful and most exhaustive study question, this act is way r.o violative our Constitution. arriving determined, this conclusion I first, itself a clear

Case Details

Case Name: City of Okmulgee v. Okmulgee Gas Co.

Court Name: Supreme Court of Oklahoma

Date Published: Nov 5, 1929

Citation: 282 P. 640

Docket Number: 18465

Court Abbreviation: Okla.