Pioneer Tel. & Tel. Co. v. State

• Decision Date: 13 January 1914
• Citation: 138 P. 1033,40 Okla. 417,1914 OK 27
• Parties: PIONEER TELEPHONE & TELEGRAPH CO. v. STATE.
• Court: Oklahoma Supreme Court

138 P. 1033

40 Okla. 417, 1914 OK 27

PIONEER TELEPHONE & TELEGRAPH CO. v. STATE.

Supreme Court of Oklahoma

January 13, 1914

On Rehearing, February 24, 1914.

Syllabus by the Court.

The Corporation Commission of this state has jurisdiction to entertain an action instituted in the name of the state through the law officer designated by law to appear before said Commission, to recover from a transmission company the refund of excess charges which were collected by it in violation of the rates fixed by said Commission.

(a) Such action in the name of the state for the recovery of such refunds for the purpose of the same being distributed to the persons entitled thereto is a police regulation incident to the effective regulation and control of public service corporations by the agencies of the state.

The act of February 10, 1913 (Laws 1913, c. 10), entitled "An act conferring authority upon the Corporation Commission to adjust controversies between parties growing out of refunds for public service; to require all refunds to be turned over to the Commission; to determine the amount of refund, and to whom due; and declaring an emergency"--is not repugnant to section 46 o of article 5 (section 123 Williams' Anno. Ed.) of the Constitution of this state.

This court will not listen to the objection to the constitutionality of an act by a party whose right it does not affect, and who has no interest in defeating it.

It is only when different clauses of an act are so dependent upon each other that it is evident the Legislature would not have enacted one of them without the other, as when the two things provided are necessary parts of one system, that the whole act will fall on account of the invalidity of one clause.

Appellant is not entitled to a trial by jury in such proceeding before the Corporation Commission.

A rate having been fixed by the Corporation Commission, and the party affected neither (1) appealed from such order, or (2) presented an application to the Commission to have same set aside, nor (3) invoked equitable powers to enjoin the enforcement of the same in an action in the name of the state by its proper law officer to recover the amount paid in excess of the fixed charges, such party may not plead, in defense thereto, that the charge fixed was unjust and unreasonable and confiscatory.

If said order was invalid, it was permissible for appellant to directly challenge same (1) by appeal, (2) by application to the Commission to set same aside, and (3) by an action in equity to restrain its enforcement.

A regular judgment, whilst it remains in force, is conclusive as to every matter that might have been given in evidence or pleaded to the action in which it was rendered, except matters growing out of separate and independent causes of action, which might have been pleaded in offset.

The payment of excess rates for phone services demanded by the transmission company in violation of the fixed orders of the Corporation Commission, which had neither been appealed from nor in any way superseded or suspended, is not voluntary in the sense that the same might not be recovered back from the transmission company by a proper party.

Appeal from the State Corporation Commission.

Petition by the State to recover from the Pioneer Telephone & Telegraph Company the refund of excess charges. From an order of the Corporation Commission for petitioner, the Company appeals. Affirmed, and rehearing denied.

Harris & Nowlin, of Oklahoma City, J. W. Gleed and J. L. Hunt, both of Kansas City, Mo., and J. R. Spielman, of Oklahoma City for appellant.

Chas West, Atty. Gen., and Chas. L. Moore, and E. C. Patton, Asst. Attys. Gen., for the State.

WILLIAMS J.

Appellant maintains a telephone system in Oklahoma City, a city of the first class, under an ordinance passed July 16, 1906, known as ordinance No. 625, entitled "An ordinance granting to the Pioneer Telephone & Telegraph Company, its successors and assigns, the right to construct, operate and maintain telephone lines in the city of Oklahoma City, Oklahoma territory, and repealing ordinances Nos. 123 and 244, and all other ordinances and parts of ordinances in conflict therewith." For the purpose of this case it will be assumed that said municipality had authority to pass said ordinance granting said franchise. Pioneer Telephone & Telegraph Co. v. State, 33 Okl. 724, 127 P. 1073; Oklahoma Railway Co. v. Powell et al., 33 Okl. 737, 127 P. 1080.

After the erection of the state, to wit, on October 12, 1908, the Corporation Commission made and entered an order which in part provides that: "No person, or persons, firm, company, or corporation doing a transmission business by telephone for hire in the state of Oklahoma shall charge a greater or different rate for service, or similar service in effect on October 12, 1908, without first having made application to the Corporation Commission therefor, and submitting to the Commission a schedule of the proposed change, which before taking effect shall have the approval of this Commission."

On July 28, 1909, the Burrows Oil Company, one of the appellant's patrons, at Oklahoma City, having filed a complaint against it for violation of said order, citation was issued, and on a hearing appellant was adjudged guilty of contempt. Appellant's contention was that said ordinance fixed the phone rates to be charged and that the Commission was without authority to interfere.

In Pioneer Telephone & Telegraph Co. v. State, supra, it was held that said municipality, by virtue of said ordinance granting said franchise, did not have power to fix rates to be charged by appellant for use of its telephones in said city, and affirmed the order adjudging appellant guilty of contempt. Appellant in this proceeding seeks to challenge the validity of the order of the Commission made on October 12, 1908, in that it was made by said Commission without authority, and further that it was void. That the Commission had such power and the order was not void is now res adjudicata. Pioneer Telephone & Telegraph Co. v. State, supra. Even if such was not the case, the Commission had power to make said order. Section 18, art. 9 (section 234, par. 3, Williams' Anno. Ed.), of the Constitution of this state. That said order was made without investigation as to the rates charged and was therefore arbitrary and unreasonable, that would not make the order void, but voidable, and such question could only be raised by an appeal or other means of direct proceeding, and not in a collateral attack, as is here sought to be made; the appellant having had the notice provided for by article 9, § 18, of the Constitution of this state. Pioneer Telephone & Telegraph Co. v. State, supra; section 24, art. 9 (section 242, Williams' Anno. Ed.), of the Constitution of this state.

The state, through its proper law officer, filed a petition before the Corporation Commission, seeking to recover from appellant the refund of excess charges which were collected by appellant from its subscribers in Oklahoma City after the said order of October 12, 1908, was entered. Appellant entered its appearance and contested the granting of said relief by the Commission. Judgment was entered by it against appellant for the amount of the excess charges, as shown and indicated by appellant under its sworn report to said Commission, to wit, $60,057.20. Appellant made no contention as to the amount of the excess charges, but controverted the power of the Commission to grant the relief (1) on the ground that it was without authority; (2) that such action could not be maintained in the name of the state; and (3) that the act of February 10, 1913, entitled "An act conferring authority upon the Corporation Commission to adjust controversies between parties growing out of refunds for public service; to require all refunds to be turned over to the Commission; to determine the amount of refund and to whom due; and declaring an emergency" (Laws 1913, c. 10)--was repugnant, not only to the state, but also the federal Constitution.

Section 1, art. 7 (section 186, Williams' Anno. Ed.), of the Constitution of this state, provides that: "The judicial power of this state shall be vested in the Senate, sitting as a court of impeachment, a Supreme Court, district courts, county courts, courts of justices of the peace, municipal courts, and such other courts, commissions or boards inferior to the Supreme Court, as may be established by law."

The Corporation Commission, as created by article 9, is a body with, so far as the regulation of public service corporations is concerned, executive, judicial, and legislative powers.

By virtue of said section 1, art. 7, and the provisions of article 9, the Corporation Commission has authority to exercise all of these powers with a view of carrying out the general purposes for which the Corporation Commission was created, to wit, to regulate public service corporations and provide against abuse, discrimination, and excessive charges and the refunds thereof. Anything that is in furtherance of that purpose is within the contemplated view of its creation and is not in violation of section 1, art. 4, of the Constitution. Nor does said act violate section 1 of article 4 (section 50 Williams' Anno. Ed.) of the Constitution of this state. Section 1, art. 7 (section 186, Williams' Anno. Ed.); section 18, art. 9 (section 234, Williams' Anno. Ed.); section 21, art. 9 (section 239, Williams' Anno. Ed.); section 19, art. 9 (section 237, Williams' Anno. Ed.); section 35, art. 9 (section 253, Williams' Anno. Ed.).

We conclude that the Legislature was authorized to pass the act "conferring authority upon the Corporation Commission to adjust controversies between parties growing out of...