Oklahoma Gas & Electric Co. v. Oklahoma Packing Co.

Decision Date12 October 1933
Docket NumberNo. 1357.,1357.
CourtU.S. District Court — Western District of Oklahoma
PartiesOKLAHOMA GAS & ELECTRIC CO. et al. v. OKLAHOMA PACKING CO. et al.

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that the order was displaced prior to the affirmance thereof by the Supreme Court of Oklahoma, and that it was lawfully superseded pending such review.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 determination of the validity of the order. It has had that determination, and there is no reason to believe that it will be denied a judicial review by the Supreme Court of Oklahoma. The Oklahoma Gas and Electric Company, being entitled to and having interposed the invalidity of the order in defense of the action at law, has no ground for asking equity again to pass upon its validity. While the Oklahoma Natural Gas Company is a party plaintiff in this case, and is not a party defendant in the state court suit, the record conclusively demonstrates that it has no substantial interest in the controversy.

It is said that equity may proceed, even if an order has been vacated, if it appears that its vacation was to avoid a judicial determination of its validity; or if a multiplicity of suits by consumers may follow notwithstanding its vacation. This may be conceded; but no such situation is present here. To enjoin the continuance of a single action at law is the only thing sought to be accomplished by this equitable action. We are reminded that equity may proceed to adjudicate a controversy, notwithstanding that the specific relief sought has been frustrated by the acts of the parties pendente lite. True enough, but here the defendant took no step to frustrate the action of this court; having first commenced an action at...

To continue reading

Request your trial
3 cases
  • Oklahoma Packing Co v. Oklahoma Gas Electric Co
    • United States
    • U.S. Supreme Court
    • 15 Enero 1940
    ...Court of three judges, and such was this Court's assumption when the latter decision came here on appeal. Oklahoma Gas & Electric Co. v. Oklahoma Packing Co., D.C., 6 F.Supp. 893, 865; Oklahoma Gas & Electric Co. v. Oklahoma Packing Co., 292 U.S. 386, 389, 54 S.Ct. 732, 78 L.Ed. 1318. That ......
  • Oklahoma Gas Electric Co v. Oklahoma Packing Co 8212 1934
    • United States
    • U.S. Supreme Court
    • 21 Mayo 1934
    ...a decree of the District Court for Western Oklahoma, three judges sitting, which dismissed the cause for want of equity jurisdiction. 6 F.Supp. 893. The suit was brought by Oklahoma Natural Gas Company and Oklahoma Gas & Electric Company, two public service companies, against appellees, Wil......
  • THE VELMA LYKES
    • United States
    • U.S. District Court — Southern District of Texas
    • 3 Abril 1934

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT