Simpkins v. Corp.
| Decision Date | 13 April 1937 |
| Docket Number | No. 26966,26966 |
| Citation | 67 P.2d 961,1937 OK 734,180 Okl. 108 |
| Parties | SIMPKINS et al. v. CORPORATION COMMISSION OF OKLAHOMA et al. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
¶0 Under the provisions of chapter 270, Sess.Laws 1917 (sections 3714-3717, inclusive, O.S.1931 [17 Okl.St.Ann. §§ 131-134]), it is only "in a field already occupied" by toll or exchange telephone service that the Corporation Commission has power and jurisdiction to determine upon the public convenience and necessity of competing telephone service, but where in unoccupied territory, as recited by the text of an order, an entrance into telephone exchange and toll service is denied by the Corporation Commission, such order is void, and a subsequent order issued by the Corporation Commission having for its purpose enforcement of the prior void order likewise is void and unenforceable.
A. H. Huggins, of Norman, for petitioners.
J. B. A. Robertson and Arthur Holloway, both of Oklahoma City, for respondents.
¶1 R. C. Simpkins, an independent telephone operator, joined with citizens alleging themselves affected by the telephone service involved, seek in this original action a writ of prohibition, as against the Corporation Commission to prevent enforcement of an order issued by the said commission on January 31, 1936, wherein R. C. Simpkins was adjudged in contempt of the commission for violation of its former order No. 8555, issued February 12, 1935, in cause 15416. In the last-mentioned order Simpkins was denied a certificate to build, construct, and operate a telephone exchange at Jesse, Pontotoc county, Okl., and a toll line connecting Jesse with Fittstown.
¶2 The authority of the commission in this regard is derived from chapter 270, Sess. Laws Okl.1917 (sections 3714-3717, O.S. 1931 [17 Okl.St.Ann. §§ 131-134]). Thereby, construction of a toll line or telephone exchange is made unlawful only "in a field already occupied by some other person, firm, association or corporation engaged in the same business and giving similar service," unless the Corporation Commission shall find, upon proper application, that a sufficient public necessity exists therefor, and unless sufficient public convenience require the construction of such additional service. By the act, the power of the Corporation Commission extends only to a determination of a convenience and necessity for competing or duplication of telephone service. The commission is without power or jurisdiction to grant or deny approval and allowance of a telephone where entrance is sought to be made in an unoccupied field.
¶3 The said order (8555) found (par. 4) that Simpkins "does not contemplate the duplication of any telephone service now being rendered subscribers at Jesse, Oklahoma," and that "the Southwestern States Telephone Company now renders only rural telephone service to subscribers in and around Jesse, Oklahoma." It was found that in the field only three subscribers at Jesse connected with the Southwestern States Telephone Company's line running into Stonewall, Okl.
¶4 The commission found in said order: "That the territory in and around Jesse, Oklahoma, insofar as the rendition of local exchange and toll service is concerned, technically is open, but that by virtue of the rendition by the Southwestern States Telephone Company of all presently necessary service required by the community of Jesse, such company should be given the opportunity to render additional telephone service at Jesse, if and when the growth of the communlty in and around Jesse necessitates the rendition of local exchange and toll service."
¶5 The commission treated the informative letter of Simpkins as an application to construct telephone service as aforesaid, and denied the right of construction.
¶6 It is our view that the commission was without power under the statute, supra, to make any binding order concerning the construction of a telephone exchange or toll line in unoccupied territory. Moreover, as found by the commission, the territory here involved was unoccupied as to the service sought to be rendered by Simpkins. It follows as a matter of course that the subsequent contempt order of the commission which had for its purpose the enforcement of the original void order is likewise unenforceable.
¶7 Prohibition is a proper remedy. Atchison, T. & S. F. Ry. Co. v. Corporation Comm., 68 Okl. 1, 170 P. 1156; St. Louis & S. F. Ry. Co. v. Love, 29 Okl. 523, 118 P. 259; Wilcox Oil & Gas Co. v. Walker, 168 Okl. 355, 32 P.(2d) 1044.
¶8 The alternative writ heretofore issued is made permanent, and the Corporation Commission is hereby prohibited from enforcing its contempt order heretofore issued and hereinbefore described.
¶1 I cannot concur in the views reached in this case by a majority of my associates.
¶2 Section 3714, O.S.1931 (17 Okl.St.Ann. § 131) provides that: "It shall be unlawful for any person, firm, association or corporation to hereafter construct, build or equip any public telephone, toll or long distance line or lines, or any public telephone exchange or exchanges, or commence operations of any such toll or long distance line or exchange in a field already occupied by some other person, firm, association or corporation engaged in the same business and giving similar service unless there exists a public necessity therefor, or unless the public convenience requires such construction or operation."
¶3 Section 3715 (17 Okl.St.Ann. § 132) provides that: "The Corporation Commission of the State of Oklahoma is hereby vested with the jurisdiction to determine whether or not there exists a public necessity and whether the public convenience requires the construction or operation of such properties."
¶4 And section 3716 (17 Okl.St.Ann. § 133) provides that:
¶5 On November 7, 1934, the Southwestern States Telephone Company gave written notice to the Corporation Commission that it operates a telephone exchange at Stonewall, Okl., and that it was rendering rural service to the town of Jesse; further stating that said notice was for the purpose of conveying to the Corporation...
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Nicoma Park Tel. Co. v. State
...entrance is sought to be made in an unoccupied field.' The differences in the facts in that case and in the present one are that, in the Simpkins application was made to the commission for permission to construct and operate a local telephone exchange with toll service connection in a small......
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Oklahoma Gas & Elec. Co. v. Corporation Commission, 47861
...order in excess of its jurisdiction the writ of prohibition is the proper remedy to restrain its enforcement. In Simpkins v. Corporation Commission, 180 Okl. 108, 67 P.2d 961, we held that where the Corporation Commission issues an order but such order is void because of lack of authority, ......