288 P. 316 (Okla. 1930), 17859, Oklahoma Gas & Elec. Co. v. Wilson & Co., Inc.

Docket Nº:17859.
Citation:288 P. 316, 146 Okla. 272, 1930 OK 202
Opinion Judge:CULLISON, J.
Party Name:OKLAHOMA GAS & ELECTRIC CO. et al. v. WILSON & CO., Inc., et al.
Attorney:Ames, Lowe & Cochran, of Oklahoma City, for plaintiff in error Oklahoma Natural Gas Co. Rainey, Flynn, Green & Anderson, of Oklahoma City, for plaintiff in error Oklahoma Gas & Electric Co. C. D. Bennett, of Oklahoma City (A. Gray Gilmer and Burford, Miley, Hoffman & Burford, all of Oklahoma City...
Judge Panel:LESTER, V. C.J., absent.
Case Date:April 29, 1930
Court:Supreme Court of Oklahoma
 
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Page 316

288 P. 316 (Okla. 1930)

146 Okla. 272, 1930 OK 202

OKLAHOMA GAS & ELECTRIC CO. et al.

v.

WILSON & CO., Inc., et al.

No. 17859.

Supreme Court of Oklahoma

April 29, 1930

Rehearing Denied May 27, 1930.

Syllabus by the Court.

Under Constitution, art. 9, § 22, providing a prima facie presumption in favor of findings of fact of the corporation commission, such findings will not be disturbed by the Supreme Court when supported by evidence.

Where a public utility has undertaken and professed to serve the inhabitants of certain cities and towns within the state with natural gas, the corporation commission has power within constitutional and reasonable limitations to compel such utility to serve all inhabitants thereof who may apply for such service.

Corporations enjoying gas franchises and the complete or partial monopoly resulting therefrom are bound to serve the public upon reasonable terms and at reasonable rates, and are likewise entitled to reasonable dealing from the public.

Under article 9, § 18, Const. of Okl., the corporation commission is not only given the power and authority, but is charged with the duty, of supervising, regulating, and controlling public utilities in all matters relating to the performance of their public duties and their charges therefor and of correcting abuses and preventing unjust discrimination and extortion by such companies.

Where it appears that a public utility, operating under its charter powers granted by the state of Oklahoma, is engaged in the production, transportation, and distribution of natural or artificial gas within the state; that such public utility has undertaken and professed to serve the inhabitants of certain cities and towns within the state with natural gas; that said public utility is admittedly engaged in the furnishing of natural gas to certain industrial consumers of gas located adjacent to certain cities within this state at a cheaper rate than said public utility is charging industrial consumers of gas located adjacent to certain other cities within the state, and who are similarly situated to the consumers enjoying the cheaper rate; and where it appears, after a proper hearing had before the corporation commission, that the refusal of said public utility to furnish both of said industrial consumers, who are similarly situated, with gas at the cheaper rate, would be discriminatory and oppressive as to the consumer paying the higher rate-the corporation commission has the power and authority and is charged with the duty of regulating and adjusting such rates, and of correcting abuses and preventing unjust discrimination and extortion by such utility.

By "due process of law" is meant an orderly proceeding adapted to the nature of the case, before a tribunal having jurisdiction, which proceeds upon notice, with an opportunity to be heard, with full power to grant relief.

Syllabus by the Court.

Record examined, and held sufficient to support the findings and order of the corporation commission as to the defendant Oklahoma Natural Gas Company.

The word "franchise" is generally used to designate a right or privilege conferred by law. To be a "franchise" the right possessed must be such as cannot be exercised without the express permission of the sovereign power. It is the privilege of doing that which does not belong to the citizens of the country generally by common right.

A municipal ordinance or franchise not warranted by the municipal charter is void, and can furnish no justification to persons acting under its authority.

The charter of the municipal corporation of the city of Oklahoma City does not directly, or by necessary implication, confer upon said municipal corporation the power to grant, to a public utility, by ordinance or franchise, the right to serve the public beyond the city limits. Section 12 of Ordinance No. 1119, granted by the municipal corporation of Oklahoma City, to the Oklahoma Gas & Electric Company, in so far as said section 12 attempts to confer upon said company the right to supply fuel gas to consumers living or located beyond the city limits of Oklahoma City, is null and void.

"Public service corporations have a right to enter into contracts between themselves, but such contracts are subject to the control and supervision of the Corporation Commission, if they are unconscionable, oppressive and impair the obligation of the public service corporations in the discharge of their public duty to the public." Okla. G. & E. Co. v. Okla. Natural Gas Co. et al., 85 Okl. 25, 205 P. 768.

Record examined, and held, the order of the corporation commission, in so far as the same affects the defendant Oklahoma Gas & Electric Company, is supported by the evidence and the law.

Original proceeding in this court to review an order of the Corporation Commission directing the Oklahoma Natural Gas Company to supply Wilson & Co., Incorporated, at its packing plant located adjacent to the City of Oklahoma City, with natural gas, at a specified rate, as set out in this opinion. From said order, the Oklahoma Natural Gas Company, together with its codefendant, the Oklahoma Gas & Electric Company appeal to this court.

Affirmed.

Ames, Lowe & Cochran, of Oklahoma City, for plaintiff in error Oklahoma Natural Gas Co.

Rainey, Flynn, Green & Anderson, of Oklahoma City, for plaintiff in error Oklahoma Gas & Electric Co.

C. D. Bennett, of Oklahoma City (A. Gray Gilmer and Burford, Miley, Hoffman & Burford, all of Oklahoma City, on the brief), for defendant in error Wilson & Co.

CULLISON, J.

This is an original proceeding in this court to review an order of the corporation commission of the state of Oklahoma, entered April 13, 1926 (Order No. 3388), directing the Oklahoma Natural Gas Company to supply Wilson & Co., Inc., of Oklahoma, at its packing plant located adjacent to the city of Oklahoma City, with natural gas, at a specified rate, as hereinafter set forth.

Wilson & Co., defendant in error herein, plaintiff in the proceeding before the corporation commission, will hereinafter be referred to as "plaintiff."

Page 318

The Oklahoma Natural Gas Company, and the Oklahoma Gas & Electric Company, plaintiffs in error on this appeal, defendants in the proceeding before the corporation commission, will hereinafter be referred to as "defendant Oklahoma Natural" and "defendant O. G. & E.," respectively.

On November 13, 1925, Wilson & Co., plaintiff, a corporation, filed a complaint before the corporation commission of the state of Oklahoma against the defendants above named.

Plaintiff alleges upon information and belief that the defendant Oklahoma Natural owns, operates, and maintains the main line leading from the gas fields aforesaid north on May avenue to Oklahoma City, and the branch line leading off from May avenue, and east on Ash street, and also the service or lead line from the Ash street line into the boiler room of the plaintiff.

Plaintiff alleges that it is now and has been for some years past supplied with fuel gas from the lines and mains of the defendant Oklahoma Natural, as heretofore described, and for said services the plaintiff has been paying and has been compelled to pay the sum of about 20 cents per thousand cubic feet for gas, but that the billing of said gas to this plaintiff has been done either by or at the instance of the defendant O. G. & E., and the payments for all of such gas have been made by the plaintiff to defendant O. G. & E.

Plaintiff further complaining alleges that the Oklahoma Natural and the O. G. & E. seem to have some sort of arrangement among themselves that the bills for such gas shall be made out by and payments for said gas made to the defendant O. G. & E. But the plaintiff avers in this connection that the defendant O. G. & E. performs no real or substantial service to or for this plaintiff; that there is no cost of distribution for there is no distribution.

Plaintiff further says that the price which it is paying and is compelled to pay as above set forth for said fuel gas is exorbitant and unreasonable.

Plaintiff further says that it is informed and believes that defendant Oklahoma Natural is now and has been extending to industrial users of gas outside the limits of Oklahoma City prices and rates upon natural gas that is much less than that charged to this plaintiff, and that the same have been highly discriminatory as against this plaintiff.

On the 13th of April, 1926, the corporation commission made and entered its order No. 3388, directed against defendant Oklahoma Natural and the defendant O. G. & E., in which it was ordered and required that said defendant Oklahoma Natural permit plaintiff to connect a service line running from its plant some 150 yards from one of the main gas lines of defendant Oklahoma Natural to said main line, and that said Oklahoma Natural be required to supply said plaintiff with its supply of natural gas for fuel, at a rate of 35 cents per thousand cubic feet for the first 100,000 cubic feet, and at 15 cents per thousand cubic feet for any remaining quantity consumed up to and including 15,000,000 cubic feet consumption per month, provided that said rate should not apply to consumption of gas in quantities less than 15,000,000 cubic feet for any one month.

The corporation commission at the time of the rendition of judgment and making the order complained of herein also made findings of facts as follows, to wit:

"First: That the Oklahoma Natural Gas Company, a public utility, is engaged in the production and transportation of natural gas to various sections of the State of Oklahoma and supplying various towns and cities with such gas for both...

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