In re Oklahoma Power Co.

• Decision Date: 14 January 1930
• Docket Number: 18124.
• Citation: 284 P. 12,141 Okla. 100,1930 OK 34
• Parties: In re OKLAHOMA POWER CO. v. OKLAHOMA POWER CO. CITY OF HUGO
• Court: Oklahoma Supreme Court

284 P. 12

141 Okla. 100, 1930 OK 34

In re OKLAHOMA POWER CO.

CITY OF HUGO v. OKLAHOMA POWER CO.

No. 18124.

Supreme Court of Oklahoma

January 14, 1930

Syllabus by the Court.

Chapter 102 of the Session Laws of the Tenth 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 by such municipality 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 surrenders such municipal franchise for the purposes mentioned in said act, that, 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 granted by a municipal corporation into a perpetual franchise, and therefore violates section 32 of article 2 of the Constitution, which declares that perpetuities and monopolies are contrary to the genius of a free government, and shall never be allowed.

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 electors of the municipality to themselves under section 5(a) of article 18 of the Constitution.

Chapter 102, Session Laws of 1925, burdens and violates section 5(b) of article 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 municipal 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 granting, extension or renewal of such franchise, said act deprives and prevents the proper authorities of such municipality at the next succeeding regular meeting of the legislative body of the city from granting, extending, or renewing such franchise; such power being reserved in our Constitution by the people to themselves under section 5(b) of article 18 of the Constitution.

The Corporation Commission of the state of Oklahoma is without jurisdiction to permit the surrender of a municipal franchise granted by a municipal corporation and the receiving in lieu thereof by the holder of such franchise of a revocable permit, as under the Constitution of this state the municipality granting the franchise and having the right under the Constitution to grant the same alone has the authority, by vote of the electors as provided for in the Constitution, of extending or renewing such franchise, and this right, reserved in our Constitution by the people to themselves, cannot be taken away from them by the Legislature, and any act of the Legislature which attempts to do so violates the letter and spirit of our Constitution, and is therefore void.

Appeal from Corporation Commission.

Application of the Oklahoma Power Company for a revocable permit under Laws 1925, c. 102, relating to the Town of Hugo, opposed by the City of Hugo. The Corporation Commission granted application and issued a revocable permit in lieu of applicant's municipal franchise, and the City of Hugo appeals. Reversed and remanded, with directions.

Hunt, J., dissenting.

R. S. Howe, of Hugo, for plaintiff in error.

V. E. McInnis, of Oklahoma City, for defendant in error.

SWINDALL J.

This action comes to this court on appeal from the Corporation Commission of the state of Oklahoma, wherein the Oklahoma Power Company on December 22, 1926, filed with the Corporation Commission an instrument in writing and acknowledged as required by chapter 102 of the Session Laws of Oklahoma 1925, wherein it states it is now engaged in the business of furnishing electric service as a public utility in the town of Hugo, state of Oklahoma, under a valid and existing municipal franchise granted by said municipality on or about the 9th day of January, 1906, being Ordinance No. 48 of said city; and whereas, pursuant to an act of the Legislature of Oklahoma entitled, "An act relating to the business of furnishing power, light, heat, gas electricity, or water in cities and towns; authorizing the surrender of...