(concurring).
In Oklahoma Natural Gas Company v. Russell, Corporation Commission of the State of Oklahoma et al., 261 U. S. 290, 43 S. Ct. 353, 67 L. Ed. 659, Mr. Justice Holmes, delivering the opinion of the court, said: “The plaintiffs are corporations organized under the laws of Oklahoma and furnish natural gas to consumers in that State, at rates established by the Corporation Commission. They applied to the Commission for higher rates but were denied an advance. The Constitution of Oklahoma, admitted to be like that of Virginia dealt with in Prentis v. Atlantic Coast Line Co., 211 U. S. 210, 29 S. Ct. 67, 53 L. Ed. 150, gives an appeal to the Supreme Court of the .State, acting in a legislative capacity as explained in the case cited, with power to substitute a different order and to grant, a supersedeas in the meantime. Appeals were taken to the Supreme Court and supersedeas was applied for but refused. The appeals are still not decided. After the plaintiffs had been denied a supersedeas by the Supreme Court, they filed these bills alleging that the present rates are confiscatory, setting up their constitutional rights and asking preliminary injunctions, and permanent injunctions unless the Supreme Court should allow adequate rates. Applications for temporary injunctions supported by evidence were heard by three judges but were denied by the majority on the authority of the Prentis Case. * * *
“Coming to the principal question, if the plaintiffs respectively can make out their case, as must be assumed for present purposes, they are suffering daily from confiscation under the rate to which they now are limited. They have done all that they can under the state law to get relief and cannot get it. If the Supreme Court of the State hereafter shall change the rate, even nunc *714pro tunc, the plaintiffs will have no adequate remedy for what they may have lost before" the Court shall have acted. * * *
“As in our opinion the District Court had 'jurisdiction' and a duty to try the question whether preliminary injunctions should issue, and as that question has not yet been considered, the cases should be remanded to that Court with directions to proceed to the trial. * * * ” .
In Southern Oil Corp. v. Yale Natural Gas Co., 89 Okl. 121, 214 P. 131, 134, it is said: “Under the constitutional authority thus conferred, the Legislature by chapter 93, Session Laws 1913, extended the jurisdiction of the Corporation Commission, so as to include public utilities other than transportation and transmission , companies. By this act the Corporation Commission was vested with the power to fix and establish the rates to be charged by public utilities for the commodity furnished by them, and the defendant falls squarely within the term ‘public utility,’ as defined by said act. So that by these constitutional and statutory provisions the power to fix the rates to be charged by the defendant Was reserved to .the state; acting by and through the Corporation Commission, and by section 7, art. 18, 'of the Constitution, this power could not be Surrendered.”. '
In said opinion it. is further stated: “The '.sufficiency of .the showing made to sustain such order,and.fhe reasonableness and just-mess of the action of the commission could .only be questioned-by appeal from ,tlie-order pjythe commission to the Supreme C°urt.
! “By section;20, art! 9, of the Constitution, ‘it is provided that no court of the state (except-the Supreme Court on appeal) shall ' have 1 jurisdiction toreview, reverse, 'correct, or anndl any áctioh M the commissión' within- the- scope of its authority. Therefore the [district] court was without jurisdiction to review the action of the commission-'of October, 1918.” '
The .District Court in correcting the action of the commission, by substitution or otherwise, would sit in like capacity, in legislative and administrative. way, which.it is not permitted to do, but to review for the purpose of anulíing said act would exercise a power i-n a judicial capacity, thereby affording a judicial review.
The Supreme Court of Oklahoma in Pioneer Telephone & Telegraph Co. v. State, 40. Okl. 417, 138 P. 1033, 1036, held that: „“The.- Supreme Court-of this state, when exercising the authority granted it by said provision of said section 20 [article 9], sits in a legislative or administrative capacity. Said provision must be construed as applying to courts in this state, when by special grant of authority by the Constitution they sit in a like capacity.”
And held: “By virtue of section 6 of the Bill of Rights [article 2], the direct proceeding in a court exercising equity powers in the district and superior courts of this state was available to appellant to challenge the validity of the order.”
That holding was adhered to on rehearing, the original opinion having been filed on January 13, 1914, and on rehearing February 24, 1914, the original conclusion being adhered to. by unanimous action of the court. It had prior to that time been held by both the Supreme Court and the Criminal Court of Appeals of the state that section 6, art. 2, of the Bill of Rights, was self-executing. The opinion of the court in Pioneer Telephone & Telegraph Co. v. State, supra, in unequivocal and plain language holds that a judicial review in accord with the requirement of the Fourteenth Amendment to the Federal Constitution is available. In Southern Oil Corp. v. Yale Natural Gas Co., supra, it seems to have departed from the ruling in the case of Pioneer Telephone & Telegraph Co. v. State, supra, without referring to same. In the case of Sterling Refining Co. v. Walker, 165 Okl. 45, 25 P.(2d) 312, and In re Assessment of Kansas City Southern Ry. Co., 168 Okl. 495, 33 P.(2d) 772, the. question of fixing, rates was not involved../“In the former enforcement by said commission of the oil and gas Conservation Act was ehallenged, ánd in the latter the .question as to proper assessment of .taxes involved. In Swain v. Oklahoma Railway Co., 168 Okl. 133, 32 P.(2d) 51, 53, rates fixed by the Corporation Commission to be charged by a . street railway company- - were involved, -wherein the court said: “Wé therefore cori- , elude that the exclusive authority to fix rates of fares to be charged by street railway companies is in the Corporation Commission, that its order fixing such rate of fare may be challenged or attacked by appeal to this court, but that such order may not be reviewed, or annulled by the district court; that the petition o-f the plaintiff in' the district court for injunctive relief against the order of the Corporation Commission or to restrain the street railway company from complying with the Corporation Commission’s order did not state facts sufficient to constitute a cause of action or to entitle *715plaintiff to any relief by injunction in that court, and that the defendant’s demurrer thereto was properly sustained by the trial court.”
In view of the fact that the Congress of the United States has passed the Johnson Act, taking away from the District Courts of the United States jurisdiction to grant relief against rates fixed to be charged by transportation utilities, on the ground of confiscation of property or violation of the Fourteenth Amendment when a plain remedy by judicial review is afforded in the state courts, it is to be regretted that the decisions of the Supreme Court of the state have left the question in such a condition as to whether the courts of the state of Oklahoma afford a plain remedy to the utility or transportation companies claiming they have suffered such a wrong.
In Pioneer Telephone & Telegraph Co. v. State, supra, the Supreme Court of Oklahoma, which seems to have been departed from, with great care reviewed these questions following settled rules of construction which left sections 18 to 34, inclusive, of article 9 of the Constitution, relative to the state Corporation Commission conforming to the provisions of the Federal Constitution, and so that said commission could function as intended by the framers o.f the State Constitution, at the same time the provisions of the Constitution affording due process of law as contemplated by the Fourteenth Amendment.
I therefore concur in the opinion of Circuit Judge McDERMOTT.