City of Okmulgee v. Okmulgee Gas Co.
Decision Date | 05 November 1929 |
Docket Number | Case Number: 18465 |
Parties | CITY OF OKMULGEE v. OKMULGEE GAS CO. (Oklahoma Natural Gas Corp. Substituted). |
Court | Oklahoma Supreme Court |
¶0 1. Franchises--Monopolies--Statute Authorizing Surrender of Municipal Franchises by Public Utilities in Exchange for Revocable Permits Held Violative of Constitutional Provision Against Monopolies and Perpetuities.
Chapter 102, Session Acts of the 10th Legislature of Oklahoma, 1925, commonly known as House Bill No. 4, being an act relating to the business of furnishing power, light, heat, gas, electricity or water in cities and towns; authorizing the surrender of municipal franchises in exchange for revocable permits, requiring certificates of convenience and necessity and providing for the determination and issuance thereof and repealing acts in conflict therewith, by its terms authorizes any person, firm, association or corporation now or hereafter engaged in the business of furnishing power, light, heat, gas, electricity or water as a public utility in any city or town in this state under a municipal franchise now in existence or hereafter granted, at any time before the expiration of such franchise, but not thereafter, to file with the clerk of the municipal corporation which granted such franchise and with the Corporation Commission of the state of Oklahoma a written declaration and agreement issued in the manner required for the execution of conveyances of real estate, that it surrender such municipal franchise for the purposes mentioned in said act; and in consideration, the utility surrendering the same shall, by operation of law, receive, in lieu of such surrendered franchise, a permit from the state revocable only by the Legislature of Oklahoma whenever in its opinion such permit may be injurious to the citizens of this state; in such manner, however, that no injustice shall be done to the holder of such permit,--in effect authorizes the converting of a limited franchise into a perpetual franchise, and therefore violates section 32 of art. 2 of the Constitution, which declares that perpetuities and monopolies are contrary to the genius of a free government, and shall never be allowed.
2. Same--Statute Unconstitutional as Depriving Electors of Municipality of Authority in Matter of Franchises.
Said chapter 102 of the Session Laws of 1925 is invalid in that it deprives the qualified electors of a municipality from granting, renewing, or extending a franchise for not exceeding 25 years, such power being reserved in our Constitution by the people to themselves under section 5a of art. 18 of the Constitution.
3. Same.
Chapter 102, Session Laws of 1925, commonly known as House Bill No. 4, burdens and violates section 5b of art. 18 of the Constitution in that it deprives 25 per centum of the total number of electors voting at the next preceding general municipal election from presenting a signed petition to the chief executive officer of a municipality demanding that a franchise be granted, extended, or renewed and filing the same with the chief executive officer of said corporation and deprives said chief executive officer from calling an election thereon within 10 days after the same is filed for the purpose of submitting the question of whether or not such franchise shall be granted, extended or renewed, and if, at said election a majority of the said electors voting thereon shall vote for the grant, extension or renewal of such franchise, said act deprives and prevents the proper authorities at the next succeeding regular meeting of the legislative body of the city from granting such franchise, such power being reserved in our Constitution by the people to themselves under section 5b of art. 18 of the Constitution.
Error from District Court, Okmulgee County; James M. Hays, Judge.
Action by the City of Okmulgee against the Okmulgee Gas Company. Judgment for defendant, and plaintiff appeals. The Oklahoma Natural Gas Corporation substituted defendant in error. Reversed and remanded.
L. L. Cowley, City Atty., and A. E. Underwood, for plaintiff in error.
Ames, Cochran & Ames and Allen, Underwood & Smith, for defendant in error.
¶1 In this action the plaintiff questions the validity of an act of the Legislature of 1925 which authorizes the surrender of a municipal franchise in exchange for a revocable permit and requiring certificates of convenience and necessity and providing for the determination and issuance thereof. The act has been approved by the Governor and is now part of the law of this state unless it violates some provision of the Constitution.
¶2 The act is as follows:
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