Southwest Utility Ice Co. v. Liebmann
Citation | 52 F.2d 349 |
Decision Date | 20 August 1931 |
Docket Number | No. 405,406.,405 |
Parties | SOUTHWEST UTILITY ICE CO. v. LIEBMANN. NEW STATE ICE CO. v. SAME. |
Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
J. B. Dudley, of Oklahoma City, Okl., and Guy L. Andrews, of McAlester, Okl. (J. H. Everest and Phil D. Brewer, both of Oklahoma City, Okl., Andrews & Aston, of McAlester, Okl., and Rainey, Flynn, Green & Anderson and E. S. Ratliff, all of Oklahoma City, Okl., on the brief), for appellants.
Geo. M. Nicholson and Thos. H. Owen, both of Oklahoma City, Okl. (M. A. Looney, of Oklahoma City, Okl., on the brief), for appellee.
Before COTTERAL, PHILLIPS, and McDERMOTT, Circuit Judges.
These suits involve the constitutionality of chapter 147, Okla. Sess. Laws 1925, the provisions of which are set forth in marginal note.1
The Southwest Utility Ice Company and the New State Ice Company, hereinafter called plaintiffs, are engaged in the manufacture, sale, and distribution of ice at Oklahoma City under licenses issued by the Corporation Commission pursuant to chapter 147, supra. The last license in the record expired June 30, 1930. Renewals of such licenses are neither pleaded nor proven. This alone would justify an affirmance of the decree below 42 F.(2d) 913, but, in view of the statement of plaintiffs' counsel at the oral argument that such licenses were in fact renewed, we proceed to a consideration of the merits.
If the statute is valid, a license issued thereunder is a property right in the nature of a franchise granted in consideration of the performance of a public service and is within the protection of the Fourteenth Amendment. Frost v. Corporation Commission of State of Oklahoma, 278 U. S. 515, 519, 520, 49 S. Ct. 235, 73 L. Ed. 483.
In February, 1930, Liebmann, hereinafter called defendant, commenced the construction of an ice manufacturing plant in Oklahoma City and was about to engage in the manufacture, sale, and distribution of ice in that city without first having obtained the license required by chapter 147, supra. Plaintiffs brought separate suits to enjoin defendant from so doing. The two suits were consolidated for trial.
These cases present the single question: Is the business of manufacturing and selling ice of such a character that it is subject to regulation to the extent of requiring a certificate of convenience and necessity before a person may engage in such business? Or, to put it another way, may the state prohibit one man from manufacturing ice on his own property and selling it to his neighbor at a price they mutually agree upon? The trial court answered these questions in the negative, and entered a decree dismissing the bills.
Prior to the enactment of chapter 147, supra, the Corporation Commission from time to time by order had regulated the price of ice, and its authority so to do had been upheld by the Supreme Court of Oklahoma in Oklahoma L. & P. Co. v. Corporation Commission, 96 Okl. 19, 220 P. 54. The Corporation Commission, under powers granted by prior statutes, had also made and enforced regulations governing the manufacture and sale of ice, to insure honest weights, pure and wholesome ice, and adequate delivery service. By chapter 147, supra, the Legislature undertook to grant the additional power to regulate by limiting the number of persons who might engage in the ice business in a given territory.
While there is no such thing as absolute freedom of the citizen to engage in a lawful business, to make lawful use of his property, or to contract with respect thereto, and such rights are subject to a great variety of restraints, freedom in respect thereto is the general rule, and restraint thereof the exception; and the exercise of legislative authority to abridge such rights can be justified only by the existence of exceptional circumstances. Adkins v. Children's Hospital, 261 U. S. 525, 546, 43 S. Ct. 394, 67 L. Ed. 785, 24 A. L. R. 1238; Ribnik v. McBride, 277 U. S. 350, 356, 48 S. Ct. 545, 72 L. Ed. 913, 56 A. L. R. 1327.
In Williams v. Standard Oil Co., 278 U. S. 235, 49 S. Ct. 115, 116, 73 L. Ed. 287, 60 A. L. R. 596, the court said:
In Tyson & Bro. v. Banton, 273 U. S. 418, 47 S. Ct. 426, 428, 71 L. Ed. 718, 58 A. L. R. 1236, the court said:
However, the fact that a business is "affected with a public interest" does not subject it to unlimited regulation. In Wolff Packing Co. v. Court of Industrial Relations, 262 U. S. 522, 43 S. Ct. 630, 634, 67 L. Ed. 1103, 27 A. L. R. 1280, the court said:
In Tyson & Bro. v. Banton, supra, the court further said:
A state may not, under the guise of protecting the public, arbitrarily prohibit a person from engaging in a lawful, private business, or impose unreasonable and unnecessary restrictions upon such a business. Burns Baking Co. v. Bryan, 264 U. S. 504, 513, 44 S. Ct. 412, 68 L. Ed....
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