New State Ice Co. v. Liebmann, 1107

• Citation: 42 F.2d 913
• Decision Date: 23 June 1930
• Docket Number: 1108.,No. 1107,1107
• Parties: NEW STATE ICE CO. v. LIEBMANN. SOUTHWEST UTILITY ICE CO. v. SAME.
• Court: U.S. District Court — Western District of Oklahoma

42 F.2d 913 (1930)

NEW STATE ICE CO. v. LIEBMANN.

SOUTHWEST UTILITY ICE CO. v. SAME.

Nos. 1107, 1108.

District Court, W. D. Oklahoma.

June 23, 1930.

Everest, Dudley & Brewer, of Oklahoma City, Okl., for plaintiffs.

Geo. M. Nicholson, of Oklahoma City, Okl., for defendant.

POLLOCK, District Judge.

The facts are the defendant sought to engage in the business of manufacturing and the distribution of ice in the city of Oklahoma City. In pursuance of this purpose he purchased a site and entered upon the construction of buildings suitable to house the machinery and appliances necessary to the proper conduct of this business. However, before he could complete his building, install his machinery and equipment necessary for the conduct of his business, the complainant ice companies engaged in the business of manufacturing and selling ice in the city of Oklahoma City, and having, as shown by the proofs, practically a monopoly of that business in that city, brought the two above entitled and numbered suits for the purpose of enjoining defendant from engaging in the manufacture and sale of ice in said city. The cases are in legal effect and purpose sought the same; were tried and submitted together as one suit, and will be so determined.

The alleged ground on which the injunctions are sought is that defendant has not applied to the Corporation Commission of the state of Oklahoma, paid the fee exacted, and obtained a license for the erection and operation of his plant in said city, as it is contended he must do before he can lawfully engage in the manufacture and sale of ice in the state of Oklahoma. While this is the alleged ground on which the complainants predicate their right to the injunctive relief sought, yet I have no hesitation whatever in stating the true reason for the bringing of these suits is that plaintiffs may further their practical monopoly of the ice business in said city, because they did not invite and do not welcome from defendant competition in their business whether the same be beneficial to purchasers of ice dealing with them or not. While the legislation of the state, presently to be considered, relied upon by complainants, is a part of the anti-trust and antimonopoly laws of the state, yet no person could hear and consider the proofs in these cases, as I did, and reach any conclusion but that such legislation in actual practice and operation tends of necessity to the creation and perpetuation of monopolies and to the destruction of all competition in the manufacture and sale of ice to consumers. However, this may be, the question presented in these suits is this:

In the year 1925 the Legislature passed an act entitled: "An Act declaring the manufacture, sale and distribution of ice to be a public business, placing same under jurisdiction of the Corporation Commission; providing a license fee, and penalty for violation hereof."

This act of the Legislature referred to is chapter 147 Session Laws 1925, as follows:

"Be It Enacted by the People of the State of Oklahoma:

"Ice — Manufacture and Distribution.

"Section 1. That the manufacture, sale and distribution of ice within the State of Oklahoma is hereby declared to be a public business, as defined by Section 11032, of the Compiled Statutes of Oklahoma.

"Corporation Commission — License.

"Section 2. That no person, persons or corporation shall be permitted to manufacture, sell and distribute ice within the State of Oklahoma without first having secured a license for such purpose from the Corporation Commission of the State of Oklahoma. The license fee hereunder shall be the sum of fifty cents (50¢) per ton, per annum, of the daily capacity of ice manufactured, sold or delivered, but the minimum license shall be five dollars ($5.00). * * *

"Section 7. Any person, firm or corporation who shall engage in the business of manufacturing, selling and distributing ice or engage in either of said businesses, without first obtaining a license, provided for herein shall be guilty of a misdemeanor and any such person shall be punishable by a fine not to exceed twenty-five dollars ($25.00), and each day's violation shall constitute a separate offense; provided, the Corporation Commission is hereby authorized to promulgate general orders not in conflict with this Act, and to enforce such orders against any person, firm or corporation, manufacturing, selling or distributing ice or engaging in either of said businesses, by imposing a fine for the violation thereof not to exceed five hundred dollars for each of said violations."

Now, section 11032 of the Laws of Oklahoma, referred to in section 1 above quoted, reads, as follows: "Whenever any business, by reason of its nature, extent, or the existence of a virtual monopoly therein, is such that the public must use the same, or its services, or the consideration by it given or taken or offered, or the commodities bought or sold therein are offered or taken by purchase or sale in such a manner as to make it of public consequence or to affect the community at large as to supply, demand or price or rate thereof, or said business is conducted in violation of the first section of this article, said business is a public business, and subject to be controlled by the State, by the corporation commission or by an action in any district court of the State, as to all of its practices, prices, rates and charges. And it is hereby declared to be the duty of any person, firm or corporation engaged in any public business to render its services and offer its commodities, or either, upon reasonable terms without discrimination and adequately to the needs of the public, considering the facilities of said business."

Now, it will be noted the Supreme Court of the state of Oklahoma in Oklahoma Gin Company v. State, 63 Okl. 10, 158 P. 629, holds section 11032 was construed by the Supreme Court of the state as including only those businesses so conducted as to violate the provisions of section 11017, Compiled Statutes of Oklahoma. Section 11017 of the Compiled Statutes of that state reads: "Every act, agreement, contract, or combination in the form of trust, or otherwise, or conspiracy in restraint of trade or commerce within this State, which is against public policy, is hereby declared to be illegal."

In Shawnee Gas & Elec. Co. v. Corporation Commission, 35 Okl. 454, 130 P. 127, 130, quoting approvingly from an unpublished opinion of Hayes, Justice, it is said: "`This section provides that whenever a business shall have certain characteristics, it shall be a public business, and shall be subject to the jurisdiction of the Corporation Commission to regulate its practices, rates, and prices; but it does not provide that all public business shall be subject in these respects to such jurisdiction. * * * The first part of said section attempts to define the class of business which the latter part of the section subjects to the jurisdiction of the Corporation Commission and the district courts. It appears to us clear that what was intended was to bring within the jurisdiction of the Commission the regulation of charges and rates for services connected with those businesses that violate the act and are connected, not with business strictly of a public character, such as common carriage, supply of water and gas, but with that class of business in which the owners, without any intent of public service, have placed their property in such a position that the public has an interest in its use. The distinction between the class of business and its service intended to be defined by and included in said section and the business and service of public corporations is, we think, well made by Mr. Justice Brewer, who delivered the opinion of the court in Cotting v. Godard, 183 U. S. 79, 22 S. Ct. 30, 46 L. Ed. 92, in the following language: "In the one (referring to property devoted to public service) the owner has intentionally devoted his property to the discharge of a public service. In the other, he has placed his property in such a position that, willingly or unwillingly, the public has acquired an interest in its use. In the one he deliberately undertakes to do that which is a proper work for the state. In the other, in pursuit of merely private gain, he has placed his property in such a position that the public has become interested in its use. In the one it may be said that he voluntarily accepts all the conditions of public service which attach to like service performed by the state itself; in the other, that he submits to only those necessary interferences and regulations which the public interest required." It was this second class of business with which we think section 13 was dealing and intended to place under the jurisdiction of the Corporation Commission and the district courts of the state as to all practices, rates, and charges. * * * The Act...