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, Okla., and a toll line connecting Jesse with Fittstown.
The authority of the commission in this regard is derived from chapter 270, S. L. Okla. 1917 (secs. 3714-3717, O. S. 1931). 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.
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, Okla.
The commission found in said order:
"That the territory in and around Jesse, Okla., in so far 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 community in and around Jesse necessitates the rendition of local exchange and toll service."
The commission treated the informative letter of Simpkins as an application to construct telephone service as aforesaid, and denied the right of construction.
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.
Prohibition is a proper remedy. A., T. S. F. Ry. Co. v. Corp. Com., 68 Okla. 1, 170 P. 1156; St. L. S. F. Fy. Co. v. Love, 29 Okla. 523, 118 P. 259; Wilcox Oil Gas Co. v. Walker,168 Okla. 355, 32 P.2d 1044.
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.
BAYLESS, V. C. J., and WELCH, CORN, GIBSON, and HURST, JJ., concur. OSBORN, C. J., and PHELPS, J., dissent. BUSBY, J., absent. *Page 110