Oklahoma Gas & Electric Co. v. Wilson & Co.

Decision Date21 December 1931
Docket NumberNo. 487.,487.
Citation54 F.2d 596
PartiesOKLAHOMA GAS & ELECTRIC CO. et al. v. WILSON & CO., INC., OF OKLAHOMA et al.
CourtU.S. Court of Appeals — Tenth Circuit

Robert M. Rainey and Streeter B. Flynn, both of Oklahoma City, Okl. (Allen, Underwood & Canterbury, of Tulsa, Okl., and Ames, Cochran, Ames & Monnet, of Oklahoma City, Okl., on the brief), for appellants.

James D. Cooney, of Chicago, Ill., and C. D. Bennett, of Oklahoma City, Okl., for appellees.

Before COTTERAL and PHILLIPS, Circuit Judges, and JOHNSON, District Judge.

COTTERAL, Circuit Judge.

This suit was brought by the Oklahoma Gas & Electric Company, and the Oklahoma Natural Gas Company, joined by its directors, because dissolved, and by its successor, the Oklahoma Natural Gas Corporation, against Wilson & Co. and the corporation commission and the Attorney General of Oklahoma, for a decree enjoining the enforcement of an order of the commission, which was affirmed on appeal by the Supreme Court of the state. Oklahoma Gas & Elec. Co. et al. v. Wilson & Co., 146 Okl. 272, 288 P. 316.

The Attorney General of the state appeared for the commission and moved to dismiss plaintiffs' amended bill on the grounds that there was a final adjudication upon the validity of the order by the state Supreme Court, the bill is wanting in equity, and the suit is barred by the Eleventh Amendment to the Federal Constitution. Wilson & Co. moved to dismiss the bill on the first two of those grounds.

The District Judge expressed his views upon the motions in a formal opinion, concluding that the decision of the state Supreme Court was such adjudication, and on that ground dismissed the bill. The plaintiffs appeal and assign that holding as error, contending that the decision of the state Supreme Court was but legislative in character and the controversy is open to judicial determination in the federal court.

The proceeding which led to the order of the commission was commenced by complaint of Wilson & Co. against the Oklahoma Natural Gas Company and the Oklahoma Gas & Electric Company. After a hearing, the commission rendered a decision, in which the facts were found and an opinion expressed, as the basis for the order. We first notice the essential findings on which the commission took this action. The Oklahoma Natural Gas Company is a producer and purchaser of natural gas throughout the state, and delivers it to various cities, including Oklahoma City, at city gates, where it is received and distributed to consumers by local companies. A city gate rate had been fixed by the commission on June 25, 1921 (order 1886, cause No. 4023), of 35 cents for the first 100,000 cubic feet and 15 cents per thousand for all in excess, when the consumption was of 15,000,000 cubic feet per month. Wilson & Co. conducts a meat packing plant outside of the city, but within the city gate. The Oklahoma Gas & Electric Company owns a pipe line from the city gate to that plant, a distance of 1,792 feet. It takes the gas from the Oklahoma Natural Gas Company at the city gate rate and delivers it to the plant at a profit of approximately 5 cents per thousand cubic feet. Wilson & Co. consumes more than 15,000,000 cubic feet per month. The Oklahoma Natural Gas Company was serving gas to all consumers similarly situated with Wilson & Co., at said city gate rate, and it had agreed to supply gas to consumers adjacent to Oklahoma City theretofore served by it.

The commission ruled that the Oklahoma Natural Gas Company was obligated to supply Wilson & Co. with gas as supplied to other like institutions located along its pipe line outside of incorporated cities, upon the same terms and conditions. The order was that the Oklahoma Natural Gas Company supply Wilson & Co. natural gas at the said city gate rate, subject to the condition that Wilson & Co. purchase the service line leading to its plant, or install its own line thereto with the necessary measuring devices and facilities, and without expense to the Oklahoma Natural Gas Company.

In their amended bill, the plaintiffs, in substance, allege the order of the commission to be invalid in requiring the Oklahoma Natural Gas Company to supply natural gas as a fuel to Wilson & Co. at a rate found to be the same as that for which it supplied gas to other consumers similarly situated with Wilson & Co., when the Oklahoma Natural Gas Company had never undertaken or proposed to furnish gas to such industrial or other consumers, and the order will take their private property for public use without just compensation, and contravenes the due process and equal protection clauses of the Constitution of the United States. It is also alleged that disobedience of the order will subject plaintiffs to severe fines and penalties to their irreparable damage, and they have no adequate remedy at law.

The bill pleads a cause of action against an order based on the duty of a public utility to render service without discrimination. 51 C. J. p. 7. But, as stated, it was asserted in support of the motions that there was a former adjudication upon the subject by the Supreme Court of the state. If the order of the commission was legislative and it was affirmed in the same capacity, then the District Court erred in this case in dismissing the bill on the ground there was such adjudication. The controversy turns mainly upon an inquiry into the true character of the decision of the state court.

The distinction between legislative and judicial proceedings was clearly defined in Prentis v. Atlantic Coast Line Co., 211 U. S. 210, 29 S. Ct. 67, 69, 53 L. Ed. 150, as follows: "A judicial inquiry investigates, declares, and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. * * * Legislation, on the other hand, looks to the future and changes existing conditions by making a new rule, to be applied thereafter to all or some part of those subject to its power."

A commission in prescribing rates and regulations for public utilities, acts only within the powers delegated to it by the State Constitution. They are legislative powers as distinguished from those that are judicial. Louisville &...

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5 cases
  • Okla. Cotton Ginners' Ass'n v. State
    • United States
    • Oklahoma Supreme Court
    • October 17, 1935
    ...parties stipulated that this court might fix a rate and the question of authority of this court was not presented. In Oklahoma Gas & Elec. Co. v. Wilson & Co., 54 F.2d 596 the holding of the court was predicated upon the cases involving transportation and transmission companies. In Oklahoma......
  • Oklahoma Packing Co. v. Oklahoma Gas & Electric Co.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • December 19, 1938
    ...plaintiffs were entitled to challenge the validity of such order in an independent proceeding in equity. See Oklahoma Gas & Electric Co. v. Wilson & Company, 10 Cir., 54 F.2d 596. After remand further proceedings were had in cause No. 1144. On May 19, 1932, the plaintiffs therein dismissed ......
  • Oklahoma Packing Co v. Oklahoma Gas Electric Co
    • United States
    • U.S. Supreme Court
    • January 15, 1940
    ...which the state court cited with approval the decision to that effect of the Circuit Court of Appeals in Oklahoma Gas & Electric Co. v. Wilson & Co., 10 Cir., 54 F.2d 596, 598, 599, applying the Oklahoma decisions. Compare Oklahoma Gas & Electric Co. v. Oklahoma Packing Co., 292 U.S. 386, 3......
  • City of Poteau v. Am. Indian Oil & Gas Co.
    • United States
    • Oklahoma Supreme Court
    • June 7, 1932
    ...reversed and remanded the cause to the district court for trial and judicial determination of the reasonableness of the rate established. 54 F.2d 596. ¶8 There has been some discussion in this case, and in the companion cases on the contracts, that the decision of this court in 108 Okla. 21......
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