Owens v. Corporation Commission of State of Oklahoma

• Citation: 41 F.2d 799
• Decision Date: 10 January 1930
• Docket Number: No. 1068.,1068.
• Parties: OWENS v. CORPORATION COMMISSION OF STATE OF OKLAHOMA et al.
• Court: U.S. District Court — Western District of Oklahoma

41 F.2d 799 (1930)

OWENS v. CORPORATION COMMISSION OF STATE OF OKLAHOMA et al.

No. 1068.

District Court, W. D. Oklahoma.

January 10, 1930.

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J. S. Ross, of Oklahoma City, Okl., for complainant.

J. Berry King, Atty. Gen., of Oklahoma, and E. S. Ratliff, of Oklahoma City, Okl., for defendant.

Before McDERMOTT, Circuit Judge, and WILLIAMS and VAUGHT, District Judges.

McDERMOTT, Circuit Judge (after stating the facts as above).

The purpose of this action is to determine the power of the state legislature to do two things: (1) To forbid a citizen to erect a cotton gin and gin cotton for others, without consent of the Corporation Commission; and (2) To prescribe the charge such owner shall make to his neighbor for the service rendered.

The questions presented are fundamental and have been ably and extensively briefed. The defendants press upon us Brass v. Stoeser, 153 U. S. 391, 14 S. Ct. 857, 38 L. Ed. 757, where a North Dakota statute regulating the charge for service rendered by country elevators dotted over the state, was upheld; and the close analogy to Township of Burlington v. Beasley, 94 U. S. 310, 24 L. Ed. 161, where a steam grist mill was held to be a public utility; and the general language used in Munn v. Illinois, 94 U. S. 113, 24 L. Ed. 77, and in Budd v. New York, 143 U. S. 517, 12 S. Ct. 468, 36 L. Ed. 247, and the opinions expressed in Tallassee Oil Co. v. H. S. & J. L. Holloway, 200 Ala. 492, 76 So. 434, L. R. A. 1918A, 280, and State v. Edwards, 86 Me. 102, 29 A. 947, 25 L. R. A. 504, 41 Am. St. Rep. 528. The defendants recall the early English laws regulating the surgeon (Y. B. 43 Ed. III, 6, pl. 11), the tailor (Y. B. 22 Ed. IV, 49, pl. 15), the blacksmith (Y. B. 46 Ed. III, 19, pl. 19), the victualer (Y. B. 39 Hen. VI, 18, pl. 24), the baker (Lib. Assis. 138, pl. 44), as well as the Miller (Hix v. Gardner, 2 Bulstrode (Eng.) 195), the innkeeper, the ferry man and the wharfinger. Defendants rely upon German Alliance Ins. Co. v. Superintendent of Ins. of State of Kansas, 233 U. S. 389, 34 S. Ct. 612, 58 L. Ed. 1011, L. R. A. 1915C, 1189, which plaintiff distinguishes because of monopolistic features in the fixing of an insurance rate; and Block v. Hirsh, 256 U. S. 135, 41 S. Ct. 458, 65 L. Ed. 865, 16 A. L. R. 165; Brown Holding Co. v. Feldman, 256 U. S. 170, 41 S. Ct. 465, 65 L. Ed. 877, and Wilson v. New, 243 U. S. 332, 37 S. Ct. 298, 61 L. Ed. 755, L. R. A. 1917E, 938, Ann. Cas. 1918A, 1024, which plaintiff says were based solely on a grave but temporary emergency not present here.

The plaintiff, upon the other hand, argues that the broad expressions in the Munn Case must be considered in the light of the facts; that that case, and the two succeeding elevator cases, really rest upon the proposition that the statutes involved were necessary to keep open and unobstructed the channels of interstate commerce; that the historical instances cannot be extended by analogy, and moreover have been generally repudiated. The plaintiff then presses upon us Wolff Packing Co. v. Industrial Court, 262 U. S. 522, 43 S. Ct. 630, 67 L. Ed. 1103, 27 A. L. R. 1280; Tyson v. Banton, 273 U. S. 418, 47 S. Ct. 426, 71 L. Ed. 718, 58 A. L. R. 1236, and Williams v. Standard Oil Co., 278 U. S. 235, 49 S. Ct. 115, 73 L. Ed. 287, 60 A. L. R. 596 — cases which the defendants distinguish, because this case does not involve the sale of commodities. The cases of Adkins v. Children's Hospital, 261 U. S. 525, 43 S. Ct. 394, 67 L. Ed. 785, 24 A. L. R. 1238, and Ribnik v. McBride, 277 U. S. 350, 48 S. Ct. 545, 72 L. Ed. 913, 56 A. L. R. 1327, if distinguishable, must be on the ground that the use of property was not therein involved. Plaintiff also urges that where there is no monopoly, or chance of monopoly, no use of streets or public rights, our whole scheme of government is opposed to subjecting a person's property to the domination of the state in the vital matters here involved, and propounds the inquiry: If the state can fix the rates for the service of ginning cotton, what service is there that men are free to contract for?

Serious doubt as to the power of the legislature exists by reason of a prior decision of this district denying the power in Chickasha Cotton Oil Co. v. Cotton County Gin Co. decree reversed 40 F.(2d) 845, and by reason of an opinion of the Supreme Court of the United States in which that court said, concerning this particular statute, that its validity was assumed because both parties conceded it. Frost v. Corporation Commission, 278 U. S. 515, 49 S. Ct. 235, 73 L. Ed. 483. For the general public good, the question ought to be settled one way or another, which can only be done by the Supreme Court of the United States. But at the threshhold of the case, we are barred from its consideration, for these reasons:

1. The question of the power of the state to prevent a man building a gin on his own land without the consent of the state, is not in issue. The plaintiff does not want to build a gin. He complains of an order which fixes...