6 F.Supp. 893 (W.D.Okl. 1933), 1357, Oklahoma Gas & Elec. Co. v. Oklahoma Packing Co.

Docket Nº:1357.
Citation:6 F.Supp. 893
Case Date:September 22, 1933
Court:United States District Courts, 10th Circuit, Western District of Oklahoma

Page 893

6 F.Supp. 893 (W.D.Okl. 1933)




No. 1357.

United States District Court, W.D. Oklahoma.

Sept. 22, 1933

Rehearing Denied Oct. 12, 1933.

Page 894

R. M. Rainey and Streeter B. Flynn, both of Oklahoma City, Okl., I. J. Underwood, of Tulsa, Okl., Calvin Jones, of Oklahoma City, Okl., R. M. Campbell, of Chicago, Ill., F. G. Anderson and Geo. M. Green, both of Oklahoma City, Okl., and Allen, Underwood & Canterbury, of Tulsa, Okl., for complainants.

C. D. Bennett, of Oklahoma City, Okl., and W. R. Brown, of Chicago, Ill., for defendants.

Before McDERMOTT, Circuit Judge, and KENNAMER and VAUGHT, District judges.

McDERMOTT, Circuit Judge.

At the bottom of this controversy is the question of whether an order made by the Corporation Commission of Oklahoma in 1926, requiring the Oklahoma Natural Gas Company to serve Wilson & Company, Inc., with gas, is valid. The validity of the order, in turn, depends upon the question of whether the Oklahoma Natural Gas Company had professed or undertaken to serve Wilson & Company, Inc., or others similarly situated. The parties agree, and the law undoubtedly is, that no power resides in the state to compel a utility to furnish service to that part of the public which it has not professed or undertaken to serve. The controversy narrows to the question of whether the Oklahoma Natural Gas Company had undertaken to serve others of the public situated similarly to Wilson & Company, Inc. While the order of the Commission, sustained by the Supreme Court of Oklahoma acting in its legislative capacity (Oklahoma Gas & Electric Co. v. Wilson, 146 Okl. 272, 288 P.316), is presumptively correct, the plaintiffs are entitled to a judicial review of both the facts and the law on this constitutional question.

The defendants contend that we are precluded from a review of that order because the question has become moot. We do not agree. It is true that the order has been displaced by other rate orders, and is not presently effective. It is likewise true that the order was displaced prior to the affirmance thereof by the Supreme Court of Oklahoma, and that it was lawfully superseded pending such review. The plaintiffs are therefore not subject to any of the penal provisions of the Oklahoma statutes for violating a valid order, and there is no threat by the state officials of any effort to impose such penalties. There is, therefore, no basis for any injunctive relief against the state officials. Ex parte La Prade, 289 U.S. 444, 458, 53 S.Ct. 682, 77 L.Ed. 1311. However, one of the defendants, Wilson & Company, Inc., is vigorously asserting rights predicated upon the validity of such order. While this is the only spark of life left in the order, the controversy cannot be said to be moot as long as it remains unextinguished. Oklahoma Operating Company v. Love, 252 U.S. 331, 40 S.Ct. 338, 64 L.Ed. 596.

But this action in equity cannot be maintained if there is an adequate remedy at law. Section 267, Jud. Code, 28 USCA § 384; Matthews v. Rodgers, 284 U.S. 521, 52 S.Ct. 217, 76 L.Ed. 447.

It seems apparent that the plaintiffs herein are afforded complete protection by the defense in the action at law. It was suggested, upon argument, that the legal defense was not adequate because under the constitution of Oklahoma, the state district court had no jurisdiction judicially to determine the validity of the order. The state district court has ruled otherwise, and has judicially determined the validity of the order. The plaintiffs are entitled, in some court, to a judicial...

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