I concur in the opinion of this court as expressed through Mr. Justice Swindall.
It is only on account of the important and vital issues here presented that I offer this brief concurring opinion.
The plaintiff in error in the court below and on appeal challenges the constitutionality of the principal provisions contained in House Bill 4. chapter 102, Session Laws 1925, and known as the Revocable Permit Act.
If, after measuring the act in question with the Constitution of this state, we were left in doubt as to its constitutionality, it would then be our duty to resolve such doubt in favor of the act and sustain it. On the other hand, if it is found that the act is clearly in contravention of the Constitution of this state, then the court should declare the act is without force or effect.
Is the act unconstitutional? In beginning the application of this test, it is well to remember the language to be found in Cooley's Constitutional Limitations (8th Ed.) p. 124, wherein it is said:
"The object of construction, as applied to a written Constitution, is to give effect to the intent of the people adopting it."
The basic law of this state compels every department of the state to anchor its official acts within the limitations of the Constitution. The Constitution has placed grants in, and limitations of power on the Legislature, and when it clearly appears that an act of the Legislature is unconstitutional, and it is properly challenged in a court of competent jurisdiction, it becomes the bounden duty of such court to strike the act from operation.
Under our theory of government and political system the ultimate sovereignty is vested in the people, and it is from them that springs all legitimate authority. The Constitution of the state of Oklahoma contains the last expression of its people, and from this written expression, consisting of grants and limitations, we must determine the validity of House Bill 4, and in beginning the test we shall first apply section 32, art. 2, of the Bill of Rights, which provides:
"Perpetuities and monopolies are contrary to the genius of free government, and shall never be allowed."
The framers of our Constitution had before them our federal Constitution and the Constitutions of the several states of the Union, and in addition, they knew that modern life and advancement had increased necessities for the industrial, commercial, agricultural, and domestic welfare; that through the agencies which would obtain franchises from the state and the municipalities the people would be compelled to procure fuel, light, water, transportation, communication, and other necessities: that the holders of these franchises were to become, in a large measure, the source and arteries of distribution for the indispensable commodities for the use of the people of the commonwealth. Therefore, the makers of the Constitution visioned that the forced need of these necessities by the people, combined with a monopoly of service and supply, would produce an unbearable and intolerable condition on the people, and in order to protect the people against such an injury and injustice, every known barrier and protection was placed in the Constitution to prevent a monopoly of service, charge, or perpetuity.
The Constitution not only placed a limitation against the Legislature from granting a monopoly or exclusive rights, but also forbade the municipalities that were authorized to grant a franchise by popular vote from granting any such privilege or monopoly. Of such tremendous import did this question become that there was inserted a declaration in the Bill of Rights providing *Page 102 that "Perpetuities and monopolies are contrary to the genius of free government, and shall never be allowed."
Mr. Justice Brewer, speaking for the court in the case of Atchinson Street Ry. Co. v. Missouri Pac. Ry. Co. (Kan.) 3 P. 284, said:
"The Supreme Court of the state of Michigan, upon this subject, has said: 'Declarations of rights, or Bills of Rights, are the enumeration of certain great political truths essential to the existence of free government.' 30 Mich. 201. In short, counsel seems to look upon it as but little more than a compilation of glittering generalities. From this, as broadly as it is stated, we dissent. Many of its sections are clear, precise, and definite limitations upon the powers of the Legislature and every other officer and agency of the people. Section 5 reads: 'The right of the trial by jury shall be inviolate.' Section 16: 'No person shall be imprisoned for debt except in cases of fraud.'
"The meaning and extent of these are clear. They limit the power of the Legislature, and no act of that body can be sustained which conflicts with them. Indeed, all of them may be considered, generally speaking, as conditions and limitations upon legislative action; and no law can be sustained which trenches upon the rights guaranteed by them, or which conflicts with any limitation expressed in them. It is true, many of them are largely mere affirmations of political truths, and yet, as to those, it may safely be asserted that the political truths affirmed cannot be ignored in any valid enactment. See, upon the general scope and effect of bills of rights, Story, Const. c. 44; Kent, Comm. section 24."
Monopoly, as defined in Webster's Dictionary, is:
"The exclusive right, privilege, or power of selling or purchasing a given commodity or service in a given market; exclusive control of the supply of any commodity or service in a given market; hence, often in popular use, any such control of a commodity, service, or traffic in a given market as enables the one having such control to raise the price of a commodity or service matertally above the price fixed by free competition. 2. A grant or charter of a monopoly. * * * 4. Exclusive possession of anything."
The text of House Bill 4 is to be found in the opinion of this court filed on this date, and only certain portions of the bill as are necessary to mention herein will be set forth.
Section 32. art. 2. Bill of Rights, closes forever the door of monopoly, but in the face of this provision, House Bill 4 attempts to delegate to the Corporation Commission the right to reopen the door thus closed.
It is contended by the defendants that the rights of the municipalities are limited in their privilege to grant franchises and that this right may be withdrawn by the Legislature at its will; and that, acting under the sovereignty of the state and by virtue of section 47, art. 9, Const., which reads:
"The Legislature shall have power to alter, amend, annul, revoke or repeal any charter of incorporation or franchise now existing and subject to be altered, amended, annulled, revoked, or repealed at the time of the adoption of this Constitution, or any that may be hereafter created, whenever in its opinion it may be injurious to the citizens of this state, in such manner, however, that no injustice shall be done to the incorporators."
— that the Legislature was acting within prescribed bounds in passing House Bill 4. If the reader will turn to section 1 of article 9, it will be discovered that municipal corporations are excluded from the definitions of corporations or companies; and that article 9 deals mainly with the creation of, and the regulation of corporations and stock companies, and it will be further observed that section 47, art. 9, has reference to the primary charter or franchise of incorporation and has no reference to secondary franchises procured by corporations from the state or municipalities.
The Constitution in section 58, art. 5, takes the precaution to use this language in reference to the granting of franchises by the Legislature:
"An emergency measure shall include only such measures as are immediately necessary for the preservation of the public peace, health, or safety, and shall not include the granting of franchises or license to a corporation or individual, to extend longer than one year."
Again, section 51, art. 5, contains another limitation on the Legislature in providing:
"The Legislature shall pass no law granting to any association, corporation, or individual any exclusive rights, privileges, or immunities within this state."
House Bill 4 attempts at the pleasure of the Corporation Commission to place around the present owner of a municipal franchise protection against competition. Under the terms of section 51, art. 5, the Legislature cannot delegate to any person, board, or commission the right to embarrass such competition. *Page 103
The able attorneys representing the defendant in error have marshaled a masterly argument in behalf of their position, but they face an insurmountable difficulty in attempting to penetrate the basic barriers which are to be found in the Constitution and plainly placed therein to prevent just the character of legislation that is to be found in House Bill 4.
The Oklahoma Constitution reserves to the people, through the initiative and referendum, an effective method of popular expression. The initiative and referendum was applied to every lesser unit of government of the state of Oklahoma. It was applied to every county and district and to all municipal corporations, and this right of propular expression is guaranteed to all of the municipal corporations in Oklahoma in all matters of local concern.
Section 5a, art. 18, provides in part:
"No municipal corporation shall ever grant, extend, or renew a franchise, without the approval of a majority of the qualified electors residing within its corporate limits."
Section 5b of article 18 gives an unqualified right to the citizens residing in such corporation to call an election and determine whether or not the franchise shall be granted, extended, or renewed. The only limitation provided for in the Constitution relative to these rights are that no exclusive franchise shall be granted, nor shall any franchise be granted, extended, or renewed for a term longer than 25 years. By virtue of section 5 of House Bill 4 it arrests the unhampered right of the people of the municipal corporations to grant a franchise except as to limitations in protection of the people against monopoly and perpetuity.
Section 5 of House Bill 4 reads:
"No person, firm, association, or corporation except the municipality shall commence the business of furnishing power, heat, light, gas, electricity or water as a public utility or commence the construction of a plant, works, or system therefor, or apply for or be granted a municipal franchise therefor, in any city or town of this state so long as there is in existence a valid franchise or permit authorizing any other person, firm, association, or corporation to conduct in such city or town a business similar to that proposed, until the Corporation Commission of Oklahoma shall issue a certificate of public convenience and necessity therefor, as hereinafter provided. But no such certificate shall be required in cases where no such valid franchise or permit exists."
Under said section the right of the people residing in municipalities to determine whether or not they shall grant an additional franchise is stayed until the Corporation Commission shall determine whether they will permit the citizens of the municipalities to determine the question. That question is settled in advance by the basic law of this state. Section 5 of House Bill 4 is, therefore, clearly unconstitutional. It not only arrests the right, guaranteed under the Constitution, of the citizens of municipalities to express themselves on a proposed franchise, but it also substitutes an exclusive right and privilege to the owners of an existing franchise until the Corporation Commission may determine otherwise. This cannot be permitted, for in section 7 of article 18, Const., we find this language, 'and no exclusive franchise shall ever be granted," and we take this to mean that if the citizens of the municipal corporations are prohibited by the Constitution from granting an exclusive franchise, the Legislature cannot delegate to any board or commission the right to grant an exclusive franchise, license, or permit, for it is a well-known principle of law that that which cannot be done directly, cannot be done indirectly.
In testing the constitutionality of House Bill 4 by applying the several sections of the Constitution applicable thereto it appears, first, that the Constitution provided every possible means to prevent monopoly and encourage competition. House Bill 4 destroys competition and attempts to license monopoly through the Corporation Commission.
House Bill 4 is, therefore, clearly unconstitutional, and the judgment of the district court should be reversed as directed in the opinion of this court filed on this date.