Nicoma Park Tel. Co. v. State

Decision Date15 April 1947
Docket Number32251.
Citation180 P.2d 626,198 Okla. 441,1947 OK 125
PartiesNICOMA PARK TELEPHONE CO. et al. v. STATE et al.
CourtOklahoma Supreme Court

Appeal from Order of Corporation Commission.

Proceeding before the Corporation Commission of the State of Oklahoma on complaint of B. Richardson, against the Nicoma Park Telephone Company and the Southwestern Bell Telephone Company to establish a new exchange boundary line between such companies. From an order of the Corporation Commission establishing such boundary line, the telephone companies appeal.

Reversed.

Syllabus by the Court.

1. Article 9, Section 18 of the Oklahoma Constitution authorizing Corporation Commission to make and enforce rules and regulations with respect to the performance of the public duties of transportation and transmission companies, does not give the commission authority to dictate matters which are purely business policy.

2. The Corporation Commission is without power or authority to compel a telephone company, serving a city and its immediate suburbs, to serve a community or area not included within its profession of service.

3. To compel a telephone company to extend its service to a city town or community it has not undertaken or professed to serve and which it does not desire to serve, is tantamount to an appropriation of private property for public use without just compensation.

WELCH and CORN, JJ., dissenting.

Albert L. McRill, of Oklahoma City, for plaintiff in error Nicoma Park Telephone Co.

Cantrell, Carey & McCloud and E. J. Flinn, all of Oklahoma City, for plaintiff in error Southwestern Bell Telephone Co.

Floyd Green, James G. Welch, and Charles F. White, all of Oklahoma City, for defendant in error.

Cecil R. Chamberlin, of Frederick, for Oklahoma Telephone Ass'n, amicus curiae.

DAVISON Vice Chief Justice.

This is an appeal from an order of the Corporation Commission establishing a new exchange boundary line between the Oklahoma City telephone exchange, owned and operated by Southwestern Bell Telephone Co., and the Nicoma Park telephone exchange, owned and operated by Nicoma Park Telephone Co., made upon application filed by B. Richardson, telephone engineer for the Corporation Commission, against both of said companies, plaintiffs in error herein.

Nicoma Park is a small community 11 3/4 miles east of Oklahoma City and for the past 15 years has been supplied with telephone exchange service by Nicoma Park Telephone Company, a partnership composed of J. B. Bolen and other members of his family. This service has been satisfactory in quality and extent except as limited by the effects of war. Oklahoma City and surrounding suburban areas have been so served by the Southwestern Bell Telephone Company. In 1938, while boundary defining actions were pending in the Corporation Commission between these two companies and other adjacent community telephone exchange companies, an agreement was reached, between all, fixing the exchange boundary lines of each. This was done at the suggestion of the telephone engineer of the commission, and, subsequently, maps showing the agreed boundaries were filed with and as a part of the tariff filings and the pending actions were dismissed. Since then neither company has overstepped the boundary.

The territory here involved is a strip one-half to one mile wide, east and west, and three and one-half miles long, north and south, lying just east of, and contiguous to this boundary line between the two exchange areas. It has been served by the Nicoma Park exchange and contains equipment constituting ten percent of the total investment of said company which derives one-eighth of its entire income from its 27 subscribers therein. Five-eighths of all people living between the 1938 boundary and Nicoma Park are subscribers of the service of that company. Service into Oklahoma City is obtained by exchange service into Nicoma Park, toll service into Oklahoma City and exchange service in the latter area.

A number of the residents of the area affected have their business and social contacts, and therefore desire exchange service, in Oklahoma City. The greatest benefit they will receive from the change in boundary is the non-payment of toll service charge. Mr. Richardson, the telephone engineer, made a survey of the territory involved at the request of the Corporation Commission, and filed an application for changing the boundary line so that the territory affected would be within the Oklahoma City exchange area. The commission granted the application and made an order requiring the Bell company to furnish exchange service to this area. The order did not prohibit the Nicoma Park company from continuing their service therein, although the final result of such order, as shown by the testimony, will be to 'wash out' the Nicoma Park company and 'wash in' the Oklahoma City company. The affected area is located about eight miles from the Oklahoma City northwest exchange and three and three-quarters miles from the Nicoma Park exchange. Testimony of expert witnesses was to the effect that the line at which the same quality exchange service at the same cost could be furnished from either exchange was six and one-half miles east of Oklahoma City and five miles west of Nicoma Park. To move the line east or west would have the effect of materially increasing the cost of service by the exchange from which the distance is increased.

Both companies appeal from the order of the commission and raise the following questions: Jurisdiction of the Corporation Commission to make the order; that the order was a taking of the property of both companies in violation of the constitution; that the order is not sustained by the evidence.

The companies contend and the commission admits that jurisdiction to make the order is not contained in 17 O.S.1941 § 133, but it is the theory of the commission that it has such authority by reason of the constitution, art. 9, sec. 18, which is as follows:

'The Commission shall have the power and authority and be charged with the duty of supervising, regulating and controlling all transportation and transmission companies doing business in this State, in all matters relating to the performance of their public duties and their charges therefor, and of correcting abuses and preventing unjust discrimination and extortion by such companies; and to that end the Commission shall, from time to time, prescribe and enforce against such companies, in the manner hereinafter authorized, such rates, charges, classifications of traffic, and rules and regulations, and shall require them to establish and maintain all such public service, facilities, and conveniences as may be reasonable and just, which said rates, charges, classifications, rules, regulations, and requirements, the Commission may, from time to time, alter or amend. All rates, charges, classifications, rules and regulations adopted, or acted upon, by any such company, inconsistent with those prescribed by the commission, within the scope of its authority, shall be unlawful and void. * * * and shall, from time to time, make and enforce such requirements, rules, and regulations as may be necessary to prevent unjust or unreasonable discrimination and extortion by any transportation or transmission company in favor of,
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