284 P. 40 | Okla. | 1930
This appeal involves two orders issued by the Corporation Commission of the state of Oklahoma, in cases No. 8505 and 8517 pending before said Commission, and herein are involved purported orders of the Corporation Commission issued pursuant to the provisions of sections 5 and 6 of chapter 102, Session Laws of Oklahoma 1925.
The Municipal Gas Company, a corporation, sought a certificate of convenience and necessity to supply and sell natural gas within the corporate limits of the city of Muskogee in cause No. 8505. The Muskogee Natural Gas, Inc., sought a certificate of convenience and necessity to supply and furnish natural gas within the the corporate limits of the city of Muskogee in cause No. 8517. Each of these defendants in error was proceeding pursuant to sections 5 and 6, chapter 102, Session Laws of Oklahoma 1925, in asking for said certificate of convenience and necessity, prior to applying for a charter from said municipality. The Oklahoma Natural Gas Corporation, a corporation, plaintiff in error, appeared before the Corporation Commission as a party in interest claiming that it was operating under a revocable permit granted by the Corporation Commission to the Oklahoma Gas Electric Company, which franchise the Oklahoma Gas Electric Company had surrendered for the permit. The defendants in error challenge the right of the Oklahoma Natural Gas Corporation to object to the issuance by the Corporation Commission of said certificates of public convenience and necessity, for the reason that it is claimed by said defendants in error that it has not been shown that the Oklahoma Natural Gas Corporation is the holder of a revocable permit to supply, furnish, and sell natural gas to the consumers within the corporate limits of the city of Muskogee.
Owing to the fact that chapter 102, Session Laws of 1925, has been declared by this court to be unconstitutional, we do not deem it necessary to discuss the several issues raised by the several parties in their briefs in this case.
We held in the case of City of Okmulgee, a Municipal Corporation, Plaintiff in Error, v. Okmulgee Gas Company, a Corporation. Defendant in Error, Oklahoma Natural Gas Corporation, Maryland Corporation, substituted Defendant in Error, No. 18465,
We do not feel that any useful purpose could be served by further discussion of the constitutionality of chapter 102, Session Laws of 1925, in this case, for what we said in City of Okmulgee v. Okmulgee Gas Co., supra, applies with equal force to this case.
We also hold that, chapter 102, Session Laws of 1925, being unconstitutional and void —
"The Corporation Commission of the state of Oklahoma is without jurisdiction, power, or authority to determine the question of whether or not a certificate of convenience and necessity should be issued to any person, firm, corporation, or association to supply and sell power, light, heat, gas, electricity, or water in incorporated cities and towns, and said Commission is without jurisdiction, power or authority to issue such certificates, as this is a question that must be determined by the qualified electors of the municipality as authorized and provided for by sections 5a and 5b of art. 18 of the Constitution, and this right reserved in our Constitution by the people to themselves cannot be taken away from them by the Legislature, and any act of the Legislature which attempts to do so violates the letter and spirit of our Constitution, and is therefore void."
We therefore hold that the action of the Corporation Commission in assuming power, jurisdiction, and authority to determine the question of whether or not there should be issued a certificate of convenience and necessity to supply and sell natural gas within the corporate limits of the city of Muskogee, Okla., in causes No. 8505 and No. 8517, was beyond the power and jurisdiction of the Corporation Commission, and that the act of the Legislature under which the certificate of convenience and necessity was issued is unconstitutional and void, and these causes are for that reason reversed and remanded to the Corporation Commission of the state of Oklahoma, with directions to the Commission to dismiss said proceedings for want of jurisdiction.
MASON, C. J., LESTER, V. C. J., and CLARK, RILEY, HEFNER, CULLISON, and ANDREWS, JJ., concur. HUNT, J., dissents.
Note. — See "Franchises," 26 C. J. § 98, p. 1040, n. 33. "Monopolies," 41 C. J. § 13, p. 87, n. 64.