HUNT, J. (dissenting).

After a most thorough study of the questions involved herein and a careful review of numerous decisions of this court cited and relied on in the briefs filed herein, I am unable to agree with the opinion of the majority, that the act here in question is unconstitutional.

The sole responsibility for the enactment, of the law is the Legislature, and not ours, and under the oftannounced rule of this court and other courts of last resort, an act of the Legislature will not be declared unconstitutional unless we can say it is unconstitutional beyond all doubt, and I am unable to so say, as to this act, and therefore respectfully dissent.

HUNT, J. (dissenting).

This is an appeal from the district court of Okmulgee county. The parties appear here as in the court below and will be so referred to herein.

On July 20, 1905, the incorporated town of Okmulgee, Indian Territory, granted a municipal franchise to L.S. Skelton, his heirs and assigns, to use the streets or avenues, alleys and public places of said town for the purpose of laying pipes, mains, and other appliances, through which to convey gas and furnish the same to the inhabitants of said town. On October 24, 1912, said franchise was assigned to Okmulgee Gas Company, and on July 7, 1925, while engaged in the business of furnishing natural gas as a public utility under said municipal franchise the Okmulgee Gas Company made and executed its written declaration and agreement surrendering said municipal franchise for the purposes provided in chapter 102 of the Acts of the Legislature of 1925, and received in lieu thereof a revocable permit as provided in said act. On the 24th day of November, 1925, the city of Okmulgee filed a petition in the district court of Okmulgee county, Okla., for the purpose of enjoining the Okmulgee Gas Company from using the streets and alleys of said municipality, alleging that the franchise granted to L.S. Skelton and his heirs and assigns on July 20, 1905, expired on August 7, 1925, and that the revocable permit under which the utility then operating was invalid because chapter 102 of the Session Laws of 1925 was unconstitutional. The defendant filed its answer, alleging that while its franchise was in full force and effect, and while it was engaged in the business of furnishing natural gas as a public utility in the city of Okmulgee under such municipal franchise, it executed its written declaration and agreement surrendering said franchise as provided in chapter 102 of the Laws of 1925, and received in lieu thereof a revocable permit from the state granting to the defendant the right, until such permit should be revoked, to conduct its business in the city of Okmulgee and to enjoy the use of the streets, alleys, and public grounds in said municipality for that purpose, and that on the 18th day of July, 1925, the Corporation Commission of Oklahoma, as a duly authorized agent of the state of Oklahoma, had issued to the defendant a certificate to the effect that from the 10th day of July, 1925, the Okmulgee Gas Company the holder of a revocable permit granting to such utility the right, until such permit should be revokee according to law to conduct its business in such municipality, and to enjoy the use of the streets for that purpose. The case was tried on an agreed statement of facts, and on April 25, 1927, a decree was rendered denying the plaintiff the relief sought, and dismissing the petition with prejudice. From this judgment the city of Okmulgee has appealed.

The sole question presented for our determination is the constitutionality of the Revocable Permit Law, being chapter 102 of the Laws of 1925.

Much has been said in the briefs filed herein and on oral argument about the effect of this measure and the practical operation of same, and much may very properly be said on both sides of the question as to the wisdom of it, and as to the policy of the state in enacting same. However, these are matters in which we are in no way concerned here, except in so far as they might relate to some of the constitutional questions involved, and a consideration thereof might therefore aid us in construing our Constitution and in determining whether or not any of its provisions or the provisions of the Constitution of the United States have been violated. The responsibility for determining the wisdom of this legislation and for enacting same rests exclusively with the Legislature, and it is not our function to determine whether it acted wisely in enacting same or to anticipate the consequences of the practical operation of the law, but our duty and responsibility is solely to determine whether or not the act conflicts with any of the provisions of the Constitution of this state or of the United States, and particularly with any of those constitutional provisions specifically called to our attention and relied on by plaintiff, and we shall undertake to discharge that duty and shall do so without usurping any of the prerogatives of the Legislature, our function being strictly judicial and in no sense ligislative. We are fully cognizant of the importance of this matter, involving as it does a policy of the state in its dealing with the various municipal subdivisions thereof concerning matters of vital import to them, as well as the state at large, and we shall therefore consider carefully every question presented and will review each provision of our Constitution relied on by plaintiff, as far as practicable to do so, in the order set out in the petition in error.

We deem it proper to set out in full in this opinion the act itself. It follows:

"An Act relating to the business of furnishing power, light, heat, gas, electricity, or water in cities and towns; authorizing the surrender of municipal franchises in exchange for revocable permits; requiring cartificates of convenience and necessity and providing for the determination and issuance thereof: and repealing acts in conflict herewith.

"Be It Enacted by the People of the State of Oklahoma:

"Section 1. Any person, firm, association, or corporation, now or hereafter engaged in the business of furnishing power, light, heat, gas, electricity or water as a public utility in any city or town in this state under a municipal franchise now in existence or hereafter granted, may at any time before the expiration of such franchise, but not thereafter, file with the clerk of the municipal corporation which granted such franchise and with the Corporation Commission of the state of Oklahoma a written declaration and agreement, executed in the manner required for the execution of conveyances of real estate, that it surrenders such municipal franchise or the purposes herein provided; and in consideration, the utility surrendering the same shall, by operation of law, receive in lieu of such surrendered franchise, a permit from the state revocable only in the manner hereinafter provided; granting to such utility the right, until such permit shall be so revoked, to conduct the same business in such municipality and enjoy the use of the streets, alleys, and public grounds or ways in the municipality for that purpose and upon the terms and conditions of said surrendered franchise except as to its period of duration, subject to the lawful police regulation and control of such municipality.

"Section 2. Nothing in this Act shall be so construed as to limit the right of any municipal corporation to include in any franchise hereafter granted by it such requirement as it shall see fit that the grantee of such franchise pay to the municipal corporation a portion of the receipts of such grantee from business, conductor under such franchise or pay to such municipal corporation any other or sums of money; or such reservation of right in the municipality to purchase the property of the grantee used in the conduct of business under such franchise. Every such right to share receipts, or to receive payments of moneys or to purchase created by any franchise or other contract; present or future, shall continue exist to the full extent defined by such franchise or contract; and no existing right of any municipal corporation under the laws of the state of Oklahoma shall be effected (sic) hereby except as herein expressly provided.

"Section 3. Upon the surrender of any municipal franchise, as provided in the first section hereof, it shall be the duty of the Corporation Commission to issue to such utility a certificate to the effect that from the date of the filing of such written declaration and agreement, it is the holder or such permit, and such certificate shall be conclusive of that fact.

"Section 4. Any permit granted under the provisions of this Act may be altered, amended, annulled, revoked, or repealed by enactment of the Legislature of Oklahoma whenever in its opinion such permit may be injurious to the citizens of this state; in such manner, however, that no injustice shall be done to the holder of such permit.

"Sections 5. 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 therefore * * * 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.

"Section 6. The Corporation Commission is hereby given jurisdiction to determine whether public convenience will be served by such proposed new public utility business and whether public necessity exists therefor and to issue such certificate of public convenience and necessity upon hearing after a written petition therefor shall be filed. The Corporation Commission shall have power to promulgate such rules and regulations not in conflict herewith, as it shall see fit, for the purpose of making this Act effectual, and before hearing any such petition shall fix a date therefor and shall require that notice of such hearing be given by delivering a copy to the chief executive officer and the clerk of all cities and towns effected (sic) by the proposal and to the managing officer of any person, firm, association or corporation conducting or holding a valid franchise or permit to conduct a similar business in the same locality or any portion thereof. In addition, the Corporation Commission shall require that such notice be published at the expense of the petitioner for at least two weeks in some newspaper or newspapers of general circulation in the cities or towns effected (sic) by such petition. Upon the hearing of such petition, any person interested may appear, and file objections thereto, and offer evidence in support thereof, and the Commission may summon such other witnesses, and require the production of such other evidence as it may deem proper and shall have all and complete investigation of such petition and the objections thereto. Upon the hearing of such application, if the Commission find that the petition should be granted, it shall issue under the Seal of the Commission its certificate of public convenience and necessity, and in so doing the Commission may fix the time within which the construction of such utility shall be commenced and completed. Should the Commission find that the certificate should be refused, it shall so order. Any party to the proceedings feeling himself aggrieved by the order of the Commission in issuing or refusing such certificate, may appeal to the Supreme Court of the state of Oklahoma, as provided in other cases of appeal from orders of the Corporation Commission.

"Section 7. All acts and parts of acts in conflict herewith are hereby repealed.

"Approved March 19, 1925."

The plaintiff contends that said chapter 102, S. L. 1925, supra, is, unconstitutional and void for the following reasons:

First. That it violates sections 3a and 3b, article 18, of the Constitution, because it deprives plaintiff of its charter right to grant franchises to any corporation with which it is able to make a better contract.

Second. That it violates sections 5a and 5b, article 18, of the Constitution, because it denies to the inhabitants of plaintiff and all other cities and towns of the state of Oklahoma, the constitutional right to grant, extend, or renew a franchise to any person, firm, or corporation whom it deems proper.

Third. That it violates section 5. article 5, and sections 4a, 4b, 4c, 4d, article 18, in that it deprives the inhabitants of plaintiff of the powers of the initiative and referendum as to all local legislation and deprives the municipalities of this state of their right to refer to its citizens the question of whether or not a franchise shall be granted, renewed, or extended.

Fourth. That it violates section 53, article 5, of the Constitution, in that it seeks to extinguish the rights of said municipality to enforce the liabilities and obligations of public utilities under franchises granted by the municipalities.

Fifth. That it violates section 51, article 5, which prohibits the Legislature from passing laws granting to any association, corporation, or individual any exclusive rights, privileges, or immunities within the state of Oklahoma.

Sixth. That it violates section 32, article 2, of the Constitution, which provides that perpetuities and monopolies are contrary to the genius of free government and shall never be allowed, and also section 7, article 18, of the Constitution, which provides that no exclusive franchise shall ever be granted.

Seventh. That it violates section 1, article 2, of the Constitution, in that it destroys the right of local self-government.

Eighth. That it violates sections 46b and 46j of article 5, of the Constitution, in that it is a special law undertaking to regulate the affairs, of cities and changing their charters.

Ninth. That it violates section 7, article 2. of the, Constitution of Oklahoma and the Fourteenth Amendment to the Constitution of the United States, which provides that no person shall be deprived of life, liberty, or property without due process of law.

Tenth. That it violates section 10 of article 1 of the Constitution of the United States, in that it impairs contractual obligations and denies to the citizens of the municipalities equal protection of the laws.

Defendant contends that the municipalities of the state have only such powers as are expressly delegated by the Constitution or by legislative enactment, and that except where expressly forbidden by the Constitution the Legislature, on behalf of the sovereign, may modify, regulate, or withdraw such delegated powers. That a franchise is grant by the sovereignty, the state, acting through its agent, the municipality, and is therefore a contract between the state and the utility. That the parties to such contract have the right to agree to its alteration in a manner not inconsistent with the Constitution, and that this act merely provides for its alteration. That the right to amend, alter, annul, or repeal a franchise is expressly reserved to the state in the Constitution. That the control and use of the streets and highways is one affecting the public welfare of the state as a whole, and is not a matter of purely local concern, and the state has retained to itself the exclusive control of the use of same. That the necessity of granting franchises to competing utilities is a question affecting the public welfare, the determination of which is the prerogative of the sovereign state, and that this act merely reasserts the reserved right of the state to determine, through its proper agency, the question of public necessity and convenience. That the act does not invade any rights of the municipality, nor does it grant an exclusive franchise or create a monopoly. That the Legislature in its wisdom and discretion has determined as a matter of public policy that the welfare of the public as a whole can best be served by the regulation of the utilities by the sovereign state rather than by the separate municipalities, which are necessarily concerned only in matters of purely local interest and not the welfare of the state as a whole. And, further, that no harm is done to the municipality and no right taken away from it and no harm done to the individual consumer or the utility, but that the state is only attempting to regulate and control, through its police power, that which is necessary and essential for the public welfare, and that an act of the Legislature will not be held unconstitutional except it be shown to be unconstitutional beyond a reasonable doubt. And, further, that much good is bound to result to the public as a whole from a consistent, co-ordinated policy of regulation of utilities affecting the welfare of the public as a whole, as well as the locality in which said public utility may be in part operating. As to whether or not this legislation will accomplish such beneficent results it is not for us to say, as hereinbefore suggested, but it only remains for us to determine whether or not in enacting same the Legislature has acted within the limitations imposed upon it by the Constitution or has violated any of its provisions, and particularly those specifically called to our attention and herein before enumerated.

Every question urged for and against the act here in question has been fully presented in the very elaborate and illuminating briefs furnished both by counsel in the case and amici curiae, and we have thoroughly and carefully considered every contention made and have reviewed all the cases cited, as well as others bearing on this question from this and other jurisdictions, and are of the opinion that this act must stand or fall on a construction of the provisions of our own Constitution and the decided cases construing same.

First, then, let, us see just what, if any, rights belonging to the municipality are taken away by this act; and, second, if they are such rights as are guaranteed to the municipalities by the Constitution, and therefore such as cannot be taken away by legislative enactment. That the right to grant franchises is vested in municipalities as gents of the state is not denied, and that that right still exists under this act is likewise not denied. Can the state, though, in the exercise of its sovereign power, acting through its Legislature, limit or restrict this right by providing that, after the municipality has once acted by granting the franchise, the same may be, upon proper application at any time before expiration, converted into a permit revocable only by the state itself in the manner provided by law and subject to all the provisions of the original franchise except as to the term thereof, and further prevent the municipality from granting a second franchise for the same purposes for which one has previously been granted unless a certificate of public convenience and necessity has first been obtained from the Corporation Commission? This, we think, is a fair statement of the effect of this act.

Sections 3a and 3b of article 18 of the Constitution is the provision authorizing cities containing a population of more than 2,000 to frame charters for their own government consistent with and subject to the Constitution and laws of this state. The plaintiff herein having adopted a charter under these provisions of the Constitution, it is urged by plaintiff that the act here in question deprives plaintiff of certain of its charter rights as to granting franchises, and is therefore void. In support of this contention several Oklahoma cases are cited. We have carefully reviewed each of these cases, and will not undertake to set them out in detail here, for the reason that in our judgment they do not in any wise sustain the contention of plaintiff in this regard. There are numerous authorities, however, to the effect that, where cities have adopted charters in accordance with the above-mentioned provisions of the Constitution of this state, the provisions of said charter do not supersede the general laws of the state in matters in which the state has a sovereign interest, and where the provisions of a city charter conflict with the general laws of the state in such matters, said laws will prevail. See State ex rel. Burns v. Linn, 49 Okla. 526, 153 P. 826, wherein the second paragraph of the syllabus is as follows:

"Such charter provisions do not supersede the general laws of the state of general concern, in which the state has a sovereign interest, and where the provisions of said charter conflict with the general laws of the state of this character, such laws will prevail."

See, also, Board of Education v. Best, 26 Okla. 366, 109 P. 563, and Walton v. Donnelly, 83 Okla. 233, 201 P. 367.

The question then arises here as to whether the laws with reference to the granting, extending, or renewal of franchises are matters that are merely municipal in their nature or whether they are such matters as are a concern to the state at large and In which the state has a sovereign interest for the benefit of the people of the state generally.

This question was involved in the case of City of Bartlesville v. Corporation Commission, 82 Okla. 160, 169 P. 396, wherein this provision of the Constitution was referred to and the contention there made that, the city of Bartlesville having adopted a charter under these provisions of the Constitution, the state was not authorized to establish and regulate rates and charges for services rendered the public by public service corporations. This contention, however, was not sustained, the court holding:

"The supreme Legislature of the state having seen fit to place the power of regulating rates for gas furnished by public utilities in the Corporation Commission, in our judgment the state has such a sovereign interest in this subject of legislation as to preclude the chartered cities of the state from entering the field by charter provisions."

This rule was also announced in the City of Pawhuska v. Pawhuska Oil Gas Co., 64 Okla. 214, 166 P. 1058; also in Consumers' Gas Company v. Corporation Commission, 95 Okla. 57, 219 P. 126 (Galbreath v. City of Tulsa, U.S. Supreme Court).

Plaintiff next contends that this act is void because in violation of sections 5a and 5b of article 18 of the Constitution, because it deprives the city of the full power and authority to grant, extend, or renew any franchise, such power being, specifically granted to the municipality by said above-mentioned provisions of the Constitution.

In support of this contention it is urged that these provisions of the Constitution are self-executing grants of power, citing Mayor, etc., of City of Pawhuska v. Pawhuska Oil Gas Co., 28 Okla. 563, 115 P. 353; and, being self-executing, it becomes a grant of power reserved to the people of the municipalities and is complete within itself and that the Legislature has no power to abridge or extend its provisions, citing Williams v. City of Norman, 85 Okla. 230, 205 P. 144. A careful examination of Mayor, etc., City of Pawhuska v. Pawhuska Oil Gas Co., supra, discloses that this case does not hold these sections contain a grant of power, but merely that they are, self-executing; syllabus, parag, 4, thereof being as follows:

"Section 5a, art. 18, of the Constitution, providing that no franchise shall be granted for a longer period than 25 years, is self executing. * * *"

No case has been cited and we have failed to find any wherein it has been held that these sections of the Constitution contain a grant of power.

In Williams v. City of Norman, supra, it was held that section 27, article 10, was a self-executing grant of power, but nowhere in this case is it even suggested that the fact of it being self-executing was the basis for the holding that it contained a grant of power, but the language of the opinion clearly indicated it was so held because of the Language of the section itself.

As was said in State ex rel. Edwards v. Miller, Mayor, 21 Okla. 448, 96 P. 747, the evident object and purpose of section 27, article 10, is primarily to empower incorporated cities and towns of this state, by a majority of the qualified tax-paying voters voting tit an election held for such purpose, to become indebted in a larger amount than that specified in section 26, for the purposes therein enumerated. But for this section (sec. 27, art. 10) no such power would exist and the municipality would be restricted to the limitations contained in section 26, which the opinion concedes to be a limitation upon the power of the Legislature.

It must be borne in mind that under the law as it existed prior to statehood in Oklahoma Territory, being section 589, Stat. 1893, municipalities were authorized to grant franchises for a term not to exceed 21 years without submitting the question to a vote of the people, and by the terms of the Enabling Act, section 13 thereof, this law, with all laws of Oklahoma Territory, was extended over the state, until changed by the Legislature. Therefore, if the Constitution had remained silent on the question of the granting of franchises by municipalities, this section would have been the law oil the subject until changed by the Legislature of the state. Thus it is apparent that under the law as it then existed municipalities, acting through their proper officers, would have had the right to grant franchises as agents of the sovereign without submitting same to a vote of the people, but for these provisions of the Constitution by which the framers of the Constitution said to the municipalities, in effect, that hereafter, instead of having the right to grant franchises without a vote of the people, as you have had before statehood and will have after the adoption of this Constitution unless we change it, you must proceed as provided herein, as follows:

"Section 5A. "No municipal corporation shall ever grant, extend, or renew a franchise, without the approval of a majority of the qualified electors residing within the corporate limits, who shall vote thereon at a general or special election; and the legislative body of any such corporation may submit any such matter for approval or disapproval to such electors at any general municipal election, or electors special election for such purpose at any time upon 30 days' notice; and no franchise shall be granted, extended, or renewed for a longer term than 25 years."

The language of this section clearly indicates both a limitation and an inhibition. A limitation on the exercising of the power of the municipality to grant franchise as it had theretofore existed, and an inhibition against the legislature again conferring such power.

It will be noted under this section that the legislative body of a municipality may submit such matter at any time on its own volition without a petition or request therefor on the part of the electors, while the following section, being section 5b, provides said question must be submitted at a special election called for that purpose by the chief executive officer of the city whenever a proper petition signed by a sufficient number of qualified electors is filed demanding it.

Section 5b. "Whenever a petition signed by a number of qualified electors of any municipal corporation equal to 25 per centum of the total number of votes cast at the next preceding general municipal election, demanding that the franchise be granted, extended, or renewed, shall be filed with the chief executive officer of said corporation, the chief executive officer shall, within ten days thereafter, call a special election, at which he shall submit the question of whether or not such franchise shall be granted, extended, or renewed, and if, at said election, a majority of the said electors voting thereon shall vote for the grant, extension, or removed of such franchise, the same shall be granted by the proper authorities at the next succeeding regular meeting, of the legislative body of the city."

When considered in connection with the law on this subject as it existed prior to the adoption of the Constitution, and in our judgment it must be so considered in order to arrive at a proper conclusion, it becomes readily apparent that these provisions merely change the powers and duties of the officers of the municipality as they had existed in this regard before the adoption of the Constitution, and these provisions, instead of conferring new or additional powers, really limited and restricted those theretofore existing, to wit: The right to grant franchise without submitting, the question to a vote of the people, by section 5a, requiring that before granting any franchise the question must first be submitted to a vote of the people, and by section 5b, designating the manner in which the question shall be submitted upon proper petition filed by the requisite number of electors demanding same.

The very language of the Constitution itself, to wit: "No municipal corporation shall ever grant," etc., and further, "and no franchise shall be granted," etc., indicates a clear intention to limit and define the powers of the municipality rather than to grant or extend the same. This act does not undertake to limit or restrict the municipality in granting a franchise, but that function and prerogative is left exclusively with the municipality. This act cannot and does not become applicable until a franchise has first been granted by the city, and after the city has acted in this regard the act merely authorizes the surrender of the franchise by the utility for a revocable permit to be issued in lieu thereof under the supervision of the Corporation Commission containing all the provisions of the original franchise except as to the term thereof.

Furthermore, but for these provisions of the Constitution the Legislature, by statutory enactment, could have amended this law as it existed prior to statehood to read 25, 30, or 50 years, instead of 21. Section 5a, article 18, limits the term for which a municipality may grant a franchise to 25 years, and is therefore an inhibition against the Legislature authorizing municipalities to grant franchises for a longer term, and if this act undertook to authorize the granting of the franchise for a longer term, it would, of course, be clearly unconstitutional because in conflict with this provision. The act, however, merely provides for the amendment of an existing valid franchise as is specifically authorized by section 47, article 9, of the Constitution.

In the early case of Oklahoma City v. Shields, 22 Okla. 266, 100 P. 572, this provision is construed and held to apply to franchises of public utilities. The particular franchise under consideration was that of a street railway company, the court holding that the company took its franchise subject to such legislation as the state might enact. The lower court had held that an act of the Legislature passed after granting the franchise could not change or alter the pre-existing rights of the railway company. This holding was reversed in a unanimous opinion by Chief Justice Williams, wherein the court said:

"Section 47. art. 9 (Bunn's Ed. sec. 262) Const. Okla., provides that:

" '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 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.'

"The constitutional convention, desiring to preserve the reservations in section 932, Wilson's Rev. Ann. St. 1903, supra, incorporated said section in the Constitution, and specifically included franchises.

"In the case of Noble State Bank v. C. N. Haskell et al., ante. 48, 97 P. 590, the clause, 'in such manner, however, that no injustice shall be done to the incorporators,' was construed not to be a limitation upon the power of the Legislature to act, but requiring provision to be had for the preservation of the assets after the repeal or modification of the charter. * * *

"The reservation to the state of the controlling power, in the way of taxation as to franchises and grants from municipalities of a public nature, is wise and salutary. The municipality, being a subdivision of the state, exists by grant of delegated power, either in the organic law or by enactment of the Legislature. These municipal subdivisions In their infancy, by an overdesire to build and grow, frequently through their municipal government ill advisedly grant away valuable franchises, shackling and burdening future generations. And were it not for the wise provisions in the economy of our law, reserving the power to amend and repeal, and to impose additional burdens upon franchises and these public privileges, the officers of such municipalities, in their overdesire to build, grow, and develop, might unwisely burden the future to develop the present. * * *

"And it is wise and salutary in the economy of state building that such powers have been reserved to the Legislature to have the paramount supervision and control."

A franchise has been defined by this court in So. McAlester-Eufaula Telephone Co. v. State, 25 Okla. 524, 106 P. 962, as follows:

"A franchise is a right or privilege granted by a sovereign to one or more parties to do some act or acts which they could not do without this grant from the sovereign power."

In Sapulpa v. Oklahoma Natural Gas Co., 79 Okla. 196, 192 Pac 224, it was held:

"A municipality in granting a franchise to a gas corporation, which permits the use of the streets and alleys for the purpose of furnishing the citizens with gas, acts as a governmental agency of the state. * * *"

In the case of Henderson Nat. Bank v. City of Henderson, 19 Ky. L. Rep. 728, 39 S.W. 1030, a franchise was defined as a right bestowed by a state to be withdrawn or destroyed at the pleasure of the Legislature.

These and other cases to the same effect are conclusive on the proposition that all franchises are granted by the sovereign power, and it therefore follows that the municipality granting such franchises acts only as a governmental agency of the state.

Plaintiff further contends that the act here in question deprives the citizens of the city of Okmulgee of the powers of the initiative and referendum reserved to the people by section 5, article 5, of the Constitution, and also the powers of the initiative and referendum as granted under sections 4a, 4b, 4c, and 4d of article 18 of the Constitution, and that this act is in conflict with the reserved powers of municipalities, as set forth in said sections, in that it deprives the municipalities of this state of their right to refer to the citizens of the municipalities the question of whether or not a franchise shall be granted, renewed, or extended; citing in support of this contention City of Collinsville v. Ward, 64 Okla. 30, 165 P. 1145; Bodine v. Oklahoma City, 79 Okla. 106, 187 P. 209; Owen v. Tulsa, 27 Okla. 264, 111 P. 320; Lackey v. State, 29 Okla. 255, 116 P. 913; State v. Linn, 49 Okla. 526, 153 P. 826. We have examined each of these cases, and agree with plaintiff that they are to the general effect that in matters which are purely municipal and covered by charter provisions the Legislature, is not authorized to enact a law abrogating and setting aside such charter provisions. We cannot, however, agree with plaintiff's contention that the act here in question violates these provisions of the Constitution or that the cases above cited are applicable, for the reason, as suggested in our discussion under sections 3a and 3b, supra, the granting of a municipal franchise to a public utility is not a matter of purely municipal concern as contended by plaintiff, but is a matter of public concern, which is a rightful subject of legislation for the Legislature of the state.

It is next contended that this act is violative of section 53, article 5, of the Constitution, in that it seeks to extinguish the right of municipalities to enforce the liabilities or obligations of such public utilities under a franchise previously granted. This section does prohibit the Legislature from releasing or authorizing the release or extinguishing in whole or in part of indebtedness, liabilities, or obligations of any corporation or individual to this state or any municipal corporation thereof, but, as we analyze and construe the act here in question, we fail to see wherein it undertakes to do anything prohibited by said section. The indebtedness, liability, or obligations of the utility to a municipality remain the same under the revocable permit as in the original franchise, and we are of the opinion that the mere fact that if the definite term feature of the franchise is eliminated is in no way violative of this section of the Constitution.

In McNeal v. Ritterbusch, 29 Okla. 223, 116 P. 778, cited by plaintiff, we find that the only question involved there, as stated in the opinion, was whether the Act. of March 8, 1909, amending the Act of May 29, 1908, containing no saving clause as to taxes assessed under the former act and prior to its amendment, had the effect of releasing these taxes. After holding that the act did not have such effect, the court cited section 53, article 5, of the Constitution, and City of Louisville v. Louisville R. R. Co., 111 Ky. 1, 63 S.W. 14, wherein a similar constitutional provision was under consideration, as authority for the holding that no authority is given or could be given to the general council of the municipality to release in whole or in part taxes, due the municipality. It will readily appear, therefore, that this case, McNeal v. Ritterbusch, supra, cannot be accepted as in any way sustaining the contention of plaintiff on this point.

It is next contended that that portion of section 15, article 2, of the Constitution which provides that the Legislature shall not pass any law impairing the obligation of contract is violated because a franchise is a contract between a municipality and a utility, and that by reason of this, act certain conditions of the contract are abrogated, annulled, and set aside. Again, we must say, as heretofore suggested, that the liabilities and obligations due the municipality by the utility under the franchise contract are not in any manner abrogated, annulled, or set aside, but are continued in full force in all respects as contained in the original franchise. Section 1 of the act covers this proposition fully, as follows:

"* * * And in consideration, the utility surrendering the same shall, by operation of law, receive in lieu of such surrendered franchise, a permit from the state revocable only in the manner hereinafter provided, granting to such utility the right, until such permit shall be so revoked, to conduct the same business in such municipality and enjoy the use of the streets, alleys, and public grounds or ways in the municipality for that purpose and upon the terms and conditions of said surrendered franchise except as to its period of duration, subject to the lawful police regulation and control of such municipality."

It will thus be seen that this act does not purport to release or extinguish indebtedness or impair a contract or any vested rights of the municipality or its, citizens. It is also well settled that municipalities have no vested rights in franchises which they execute as mere agents. Pawhuska Oil Gas Co. v. City of Pawhuska, 250 U.S. 394; Oklahoma Ry. v. Powell, 33 Okla. 737, 127 P. 1080, and Salem v. Salem, Water, Light Power Co., 255 Fed. 295.

It is next contended that this act is void because it violates section 51, article 5. of the Constitution, and section 32, article 2, which prohibits the Legislature from passing laws granting exclusive rights or privileges and provides that perpetuities or monopolies are contrary to the genius of free government and shall never be allowed; citing Rice v. State ex rel. Short, 108 Okla. 4, 232 P. 807. It was contended in this case that the contract entered into between the State Board of Affairs on behalf of the state and certain parties for the manufacture of shirts at the state prison with the use of convict labor was void because in conflict with these and other provisions of the Constitution. The right of the state to enter into such contract was upheld, and after a careful consideration of the opinion in this case we are unable to find wherein it even inferentially or otherwise sustains plaintiff's contention here, but are of the opinion that the reasoning employed therein and the holding of the court tends to refute rather than to sustain plaintiff's contention here. We quote therefrom as follows:

"The charge that this contract is in violation of the laws of the state, including section 32, art. 2, of the Constitution, in that it creates a monopoly in favor of the Cherokee Manufacturing Company to the extent of the privileges granted therein, and declared by said section to be contrary to the genius of a free government, is, it seems to us, without foundation. The section of the Constitution referred to provides that perpetuities and monopolies are contrary to the genius of a free government, and shall never be allowed. This provision should be read in connection with section 44, art. 5, of the Constitution, which is that:

" 'The Legislature shall define what is an unlawful combination, monopoly, trust, of or agreement, in restraint of trade, and enact laws to punish persons engaged in any unlawful combination, monopoly, trust, act or agreement, in restraint of trade, or composing any such monopoly, trust or combination.'

"In compliance with this constitutional requirement, the Legislature has, by sections 11017 to 11053 (inclusive) Comp. Stat. 1921, defined and declared illegal, certain monopolies. Section 11017, supra, providing that:

" 'Every act, agreement, contract or combination in the form of trust, or otherwise, or conspiracy in restraint of trade or commerce within this, state, which is against public policy, is hereby declared to be illegal.'

"It will thus be observed that the Legislature recognized what, no doubt, was in the minds of the framers of the Constitution, that the monopolies denounced by the Constitution are those which have for their purpose infringement upon the freedom of trade."

In Ex parte Tindall, 102 Okla. 192, 229 P. 125, decided by this court in 1924, shortly prior to the passage of the act here in question, these provisions of the Constitution were construed in a very exhaustive opinion by Justice Harrison, from which we quote, as follows:

"Petitioner's third ground for contention is that the act is violative of section 51, art. 5, of the Constitution, which provides:

"Section 51, art. 5. 'The Legislature shall pass no law granting to any association, corporation, or individual any exclusive rights, privileges, or immunities within this state.'

"And the petitioner's fourth ground of contention is that the act is violative of section 32, art. 2, of the Constitution, which provides:

"Section 32, art. 2. 'Perpetuities and monopolies are contrary to the genius of a free government, and shall never be allowed; nor shall the law of primogeniture or entailments ever be in force in this state.'

"These two constitutional provisions, in their ultimate effect, attain substantially the same object, viz. Each constitutes a limitation upon the granting of special privileges and the creation of monopolies; hence the two grounds of contention will be considered together. * * *

"The gist of petitioner's contention on the above two grounds is that under the act a person desiring to engage in the transportation business over the public highways must first obtain a license to do so, and that the Corporation Commission is vested with power to grant or refuse such license, and that the power to grant a license to one, and refuse a license to another, is granting to the Corporation Commission an arbitrary power of granting an exclusive privilege and thereby creating a monopoly in violation of the two foregoing provisions of the state Constitution.

"But this contention will not stand the test of fair analysis nor the weight of decisions.

" 'Since all rights are held subject to the police power of the state, when necessary the Legislature may prohibit absolutely the maintenance of any particular business if the public safety or the public morals require its discontinuance; and the hand of the Legislature cannot be staved from providing for its discontinuance by any incidental inconvenience which individuals or corporations may suffer. * * * The test of the power is found in the effect the pursuit of the calling has upon the public weal rather than in the inherent nature of the calling itself.' 6 R. C. L. sec. 214, p. 221-2.

"This doctrine so essential and so sound as to be properly applied to 'private business enterprises, as well as to 'public service enterprises.' It applies to private business enterprises whenever such business affects the public welfare and essentially applies to public service concerns because of the right of the public to regulate a service for which the public must pay a fee and profit. To deny this right to the public would be to deny the public of that sacred right which petitioner has so strenuously argued on his own behalf, viz., that of 'due process of law.'

"Hence the contention is unsound and without merit.

"The dangerous menace, which seems to so much disturb petitioner, viz., 'the granting of a special privilege and creation of a monopoly', is not authorized by the act. When the act is fairly and logically analyzed and its provisions impartially observed, it does not authorize the Corporation Commission to exercise the arbitrary or capricious power of granting a perpetual special privilege or creating a perpetual monopoly. The Legislature in the enactment of this statute has clearly kept in mind the test above quoted from R. C. L., viz., 'the extent to which the public rights and welfare may be affected by any given business enterprise,' and in the statute under consideration the crucial and decisive test of the Corporation Commission's power is the fact of the convenience and necessities of the public.

"The Corporation Commission is not permitted to exercise any of the powers vested in it by the act, unless, as a fact, the public convenience and necessities require the exercise of such power. The question of the public convenience and necessities thereby becomes the decisive question of fact, to be determined from evidence, and if the Corporation Commission be unreasonable in its finding as to such fact or should make an order without sufficient evidence, finding that public convenience or necessity either demanded or did not demand such service, and should make and attempt to enforce an order accordingly, then the party aggrieved, either the applicant or the public, has a right of appeal to this court for a judicial inquiry and review as to the sufficiency of the evidence and the reasonableness of the order.

"The Commission is thereby shorn of those menacing arbitrary powers which petitioner seems to fear. It is within the police power of the state to grant a privilege to render any character of public service which will materially benefit the public, and equally within such power to restrict or deny such privilege whenever it would result in detriment to the public. See Police Power of the State. 6 R. C. L. p. 228; 8 Cyc. 863 — 874; and same subject in other authorities above cited. Also Regulation and Prohibition of Occupation, 6 R. C. L. p. 217, and authorities above cited.

"The question whether the public will be beneficially or detrimentally affected by the licensing or refusing to license the operation of motor vehicles as a 'transportation enterprise' over the public highways, for a profit to be paid by the public, is made a determining fact, the reasonableness of which is subject to review by this court. * * *

"Therefore, the act in question does not grant nor purport to grant such arbitrary and final power to the Corporation Commission as will enable it to grant a perpetual special privilege or build up a monopoly, — the demands of public needs and convenience would halt such menace before this court."

Paragraph 9 of the syllabus in said case is as follows:

"The limitations in section 32, art. 2, and section 51, art. 5, of the Constitution, against granting exclusive rights and privileges and creating monopolies, are not exceeded by an act which confers upon the Corporation Commission the power to make and enforce certain rules, where the power to enforce such rules is made conditioned upon the fact of public convenience and necessity.

"It is a fundamental principle that persons or corporations engaged in occupations in which the public has an interest or use may be regulated by statute. In such case the test of power is found in the effect which the pursuit or calling has upon the public weal."

Plaintiff further contends that this act is unconstitutional and void because in conflict with section 7, article 18, of the Constitution, which provides that no exclusive franchise shall ever be granted. If it could be said that the act here in question grants an exclusive franchise, this position might be well taken. The word "exclusive" is derived from "ex," out, and "claudere," to shut, meaning to shut out, and as we have already pointed out, the act does not purport to grant or authorize the granting of an exclusive franchise or one that shuts out all others, but merely provides for the amendment of an existing valid franchise. As many franchises as the people of the municipality desire to vote may be granted, subject only to the regulatory control of the Corporation Commission under sections 5 and 6 of the act in the matter of issuing certificates of convenience and necessity. By no manner of reasoning can it be said that because of this provision an exclusive franchise or monopoly is granted, or may possibly be granted, under the act here in question. Noble State Bank v. Haskell, 22 Okla. 48, 97 P. 590, is cited in support of this contention. This case involved the constitutionality of the act of the Legislature pertaining to the Depositors Guaranty Fund. This act was assailed as violative of the Constitution in several respects not necessary to enumerate herein. In a very able and exhaustive opinion by Chief Justice Williams every contention of plaintiff was denied and the act sustained. We think some of the language of that opinion relative to the act under consideration is very apropos in the instant case, and therefore quote therefrom as follows:

"The insistence that the act grants special privileges and immunities is equally untenable. It is manifest that in every regulating statute the precise terms prescribed must be to some extent arbitrary, depending upon the exercise of a sound legislative judgment. The constitutional mandate is satisfied if there be no manifest intent to discriminate in favor of a particular class of citizens to the exclusion of others similarly circumstanced, and the provision of the restrictive act be in fact open alike to all citizens who may bring themselves within its terms. This act neither confers special privileges nor makes unjust discriminations, but its privileges are open to every citizen upon the same terms. It denies no privilege to any one, and operates alike upon all who may avail themselves of its benefits. * * * The circumstances that for a time may inflict hardship, inconvenience, and possibly loss to certain individuals, do not amount to a constitutional objection so long as such burdens or losses are not needlessly and unreasonably imposed, but result as an incident to a general enactment fairly designed to subserve the public welfare. If the mere fact of resulting inconvenience and loss to an established business, admittedly subject to public control, were sufficient to preclude control under the police power, then regulation would be practically impossible, and this most salutary and necessary power of sovereignty be seriously abridged or wholly destroyed. This statute grants equal privileges and imposes like restrictions upon all persons under the same circumstances, and does not deprive appellee of due process of law, or deny him equal protection of the law, in violation of the Fourteenth Amendment of the Constitution of the United States."

We quote with approval from Farmers Merchants Co-Op. Tel. Co. v. Boswell Tel. Co. (Ind.) 119 N.E. 515, wherein this identical proposition was involved:

"Appellant's first proposition is that section 97 of the Public Utility Act (section 10052t3, Burns 1914) is unconstitutional. That portion of said section here involved reads as follows:

" 'No license permit or franchise shall be granted to any person, copartnership or corporation to own, operate, manage or control any plant or equipment of any public utility in any municipality where there is in operation a public utility engaged in similar service under a license, franchise, or permit without first securing from the commission a declaration, after a public hearing of all parties interested, that publc convenience and necessity require such second ***utility.'

"The first reason asserted in support of said proposition is that the title of the act is not sufficient to embrace said section 97, in that the title is 'An act concerning public utilities, creating a Public Service Commission, abolishing the Railroad Commission of Indiana, and conferring the powers of the Railroad Commission on the Public Service Commission,' whereas section 97 deprives municipalities of an inherent right and power to say, in the first instance, whether a franchise shall be granted which will result in such duplication of investments, and said title does not refer to, or purport to affect, the powers of cities and towns. Appellant argues that cities and towns have exclusive control of their streets, their power thereover limited only by necessity, and that this power cannot be destroyed by any such indirect legislation.

"This proposition overlooks the fundamental point that the streets of a municipality are parts of the general highways of the state, and, as such, the state has primary control thereover when the interests of the public are concerned, and such power thereover as municipalities have, when the interests of the general public are involved, are granted to the municipalities by the state (Grand Trunk Co. v. South Bend. 174 Ind. 203, 89 N.E. 885, 91 N.E. 809, 36 L. R. A. [N. S.] 850), and may be withdrawn by the state; in effect, an agency for public welfare is thus established and may be thus ended in the municipality. Appellant cites to its said proposition Vandalia, etc. Co. v. State, 166 Ind. 219 76 N.E. 980, 117 Am. St. Rep. 370. This decision holds that a city or town cannot of its own will deprive itself, by contract, of powers delegated to it for public welfare. So far as it touches the question, this decision holds that as to streets and alleys, when public and general welfare are concerned, the power of cities and towns are not inherent, but are conferred. The decision in Indiana Railway Co. v. Calvert, 168 Ind. 321, 80 N.E. 961, 10 L. R. A. (N. S.) 780, 11 Ann. Cas. 635, cited by the appellant, is to the same effect. See, also, decisions cited to this point in Winfield v. Public Service Commission, 118 N.E. 531, 533; Coverdale v. Edwards, 155 Ind. 374, 380, 58 N.E. 495; State ex rel. v. Stickelman, 182 Ind. 102, 106, 105 N.E. 777.

"The use of the state's highways, including as a part thereof the streets of municipalities, by public utilities, and the matter of license to so use are so inseparable that 'An act concerning public utilities' may properly embrace provisions for the granting or refusal of such licenses, and may name a new agency for the consideration of and action upon application therefor. The title of said act embraces the subject-matter of section 97, State v. Monarch, etc., 267 Ill. 528, 108 N.E. 716, Ann. Cas. 1916A, 528; Illys v. White River, 175 Ind. 118, 93 N.E. 670; Board v. Scanlon, 178 Ind. 142, 98 N.E. 801; Marion v. Simmons, 180 Ind. 289, 102 N.E. 132; Pittsburgh v. Chappell, 183 Ind. 141, 106 N.E. 403, Ann. Cas. 1918A, 627; In re Talbott, 58 Ind. App. 426, 108 N.E. 240; Halstead v. Olney Dean, 182 Ind. 446, 105 N.E. 903; Plank R. Co. v. Hannaman, 22 Ind. 484.

"Section 97 does not create a monopoly in the utility granted the first franchise. The utility holding the first and only franchise, so long as it is the only franchise, is practically, and only in that sense, a monopoly. That such practical monopoly may exist, see Indianapolis Cable Co. v. Citizens,' etc., 127 Ind. 369, 388, 24 N.E. 1054, 26 N.E. 893, 8 L. R. A. 539; City R. Co. v. Citizens' R. Co., 166 U.S. 557, 17 Sup. Ct. 653, 41 L.Ed. 1114. But the utility has no exclusive privileges as between itself and the public welfare or interests. The state may authorize a second. If the state determines not to grant a second, it is not because the first is exclusive, but because, in the state's opinion, public welfare will not be served by the second. Appellant took its charter from the state and asked a franchise from the town, knowing to be the law. Grand Trunk Co. South Bend, etc., 174 Ind. 203, 214-223, 89 N.E. 885, 91 N.E. 809, 36 L. R. A. (N. S.) 850. Therefore appellee's rights are not in the sense claimed a monopoly.

"The state has not given to appellee, as appellant asserts, 'an exclusive monopoly which it did not have before,' and taken 'from appellant, and all manner of persons and corporations, a right they did not have before this enactment,' because whatever right appellee so took, and whatever right appellant theretofore had, were subject to regulation by the state, and 'the mere fact that a statute or ordinance, which may reasonably be regarded as conducive to the welfare of the public, regulates a trade or business, or lays some burden upon it, does not render it unconstitutional.' Indiana R. Co. v. Calvert, 168 Ind. 321, page 332, 80 N.E. 961, 10 L. R. A. (N. S.) 780, 11 Ann. Cas. 635.

"The foregoing explanation of the relations of the state, municipalities, and public utilities, each to the other, and their respective powers and rights, assists in disposing of several of appellant's other propositions, to wit: While the General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens, the Assembly may, directly or indirectly, for the public welfare, grant or withhold franchises for the use of the public highways, and in thus exercising its police powers, the state may make discriminations and distinctions, and judge of the reasonableness thereof. Consumers' Gas Company v. Harless, 131 Ind. 446, 29 N.E. 1062, 15 L. R. A. 505; Ferner v. State, 151 Ind. 247, 51 N.E. 360; State v. Hogreiver, 152 Ind. 652, 53 N.E. 921, 45 L. R. A. 504; Zumpfe v. Gentry, 153 Ind. 219, 54 N.E. 805; Louisville, etc., R. Co. v. Garrett, 231 U.S. 305, 34 Sup. Ct. 48, 58 L.Ed. 229; State v. Barrett, 172 Ind. 169, 87 N.E. 7; Barrett v. State of Indiana, 229 U.S. 27, 33 Sup. Ct. 692, 57 L.Ed. 1050; C., I. St. L. Ry. Co. v. Commission, 173 Ind. 469, 87 N.E. 1030, 90 N.E. 1011; Smith v. Indianapolis Ry. Co., 158 Ind. 425, 63 N.E. 849; Pennsylvania Co. v. State, 142 Ind. 428, 41 N. F. 937.

"In this action we may observe that, while there is conflict of authority and difference of judgment as to whether a healthy apprehension of competition will insure better service by public utilities than will be produced by franchises in any sense or degree exclusive (see N.Y. Tel. Co. v. Averill, 199 N.Y. 128, 92 N.E. 206, 32 L. R. A. [N S.] 494, 139 Am. St. Rep. 878; State ex rel. v. Stickelman, 182 Ind. 102, 107, 107 N.E. 777), such questions are to be addressed primarily to the Legislature, or to its designated tribunal; and under the statute now being considered each such situation is to be judged in view of its peculiar circumstances, and thus the responsibility rests with the Legislature, or the Public Service Commission, if a franchise is refused to a competitor, to so supervise and regulate the existing utility as to insure the public welfare."

We reiterate that under the act here involved the utility has no exclusive privilege as between itself and the public welfare or interests. The state may authorize a second franchise. If the state determines not to authorize a second franchise, it is not because the first is exclusive, but because in the state's opinion public welfare will not be served thereby. The mere right to refuse authority for the second does not in any sense make the first exclusive within the meaning of the Constitution.

Counsel contends the people are helpless and competition is forever barred and no relief possible no matter how intolerable condititons may become. Counsel seem to assume that the Corporation Commission would under no circumstances grant the certificate of convenience and necessity to the second or competing utility, and thus permit the people to vote on the question as to whether or not they would grant a second franchise, but the presumption of law is that the Commission would do its full duty in the premises, and, if a proper showing is made, would promptly grant the certificate and thus permit the election to be held. In fact, there is now pending in this court an appeal from an order of the Commission granting such certificate to a second utility and authorizing the calling of an election to submit the question to the voters of the municipality involved. Also the right is reserved to the municipality by section 6, article 18, to construct and operate its own light, heat, or power company, and this right still remains, so, if at any time the first franchise holder or holder of the indeterminate permit incurs the wrath of the people for any reason, ample means are within the hands of the people for gaining relief. Their rights are amply safeguarded and the dangers of oppression at the hands of the utility, as suggested in the briefs filed herein, are more imaginary than real. It is the duty of the utility to render a maximum service at a minimum cost, consistent with a fair return on its investment, and the incentive to render this character of service and to maintain the good will of its patrons is necessarily ever present so that there will be no occasion or desire on the part of the municipality to resort to either of the methods above pointed out. Likewise the character of service rendered and rates charged for same are at all times subject to the regulations and control of the Corporation Commission under the law existing prior to the passage of this act and the previous decisions of this court. So a utility operating under a revocable permit is not so unbridled and unrestrained as counsel would have us believe. Let us see in the last analysis just what this revocable permit is. It permits a public utility, operating under a franchise theretofore granted by the municipality as the agent of the state, to surrender the franchise and receive in lien thereof the permit under which it operates thereafter, with precisely the same terms and conditions as to the original franchise except as to the period of its duration. In other words, where the original franchise might have had one, ten, or 20 years to run according to its term, the new permit runs for an indeterminate time, subject to being altered, amended, annulled, revoked, or repealed by the Legislature. Can it be said that the franchise, thus converted into a revocable permit, becomes exclusive or perpetual when ample provision is made for the granting of as many other franchises as the municipality may see fit, subject only to the regulatory control of the Corporation Commission, and the right to revoke is specifically provided for in section 4 of the act and by section 47, article 9, of the Constitution of this state?

Section 1, article 2, and sections 46b and 46j of article 5, relating to the right of local self government and providing that the Legislature shall not pass any local or special laws, are also relied on by plaintiff to defeat the act. We have already discussed this proposition under sections 3a and 3b, and it is sufficient to say here that in our judgment the act here in question is in no way violative of these provisions of the Constitution.

Further, it is contended that the act is void because violative of section 7, article 2, of the Constitution of Oklahoma, and of the 14th Amendment to the Constitution of the United States. Plaintiff's argument on this proposition is devoted principally to that portion of the act which requires a certificate of public convenience and necessity from the Corporation Commission of this state before granting a franchise to the second or competing utility; it being urged that the right of a municipality to contract with other individuals, firms, or corporations engaged in the same business is denied, and that these provisions of the Constitution guarantee to a municipality the right to contract. Plaintiff again assumes a false premise in assuming that the municipality's right to contract is denied or abrogated by these provisions of the act. As we have heretofore pointed out, their right to contract and grant franchises is left intact, subject only to the regulatory power of the state, which was, by the Legislature, vested in the Corporation Commission. Provisions similar, if not identical, with these involved here were upheld in Ex parte Tindall, supra. Plaintiff has filed herein supplemental brief which is devoted largely to a review of state ex rel. Jamison v. Denny, Mayor, et al., an Indiana case reported in 21 N.E. 252. This case deals exhaustively with the question of local self-government. The question there presented is stated in a special concurring opinion by Elliott, Chief Justice, thus: Has the General Assembly power to appoint local officers of the county, township, town or city? This question is in no sense involved here, and as heretofore suggested herein, the act here in question does not purport to deny to the municipality the right of local self-government in matters purely municipal.

In discussing the provisions relative to obtaining the certificate of convenience and necessity, in the Wisconsin case cited in the majority opinion herein, 129 N.W. 600, it was said:

"True, the Legislature cannot enpower the Railroad Commission to exercise legislative or judicial power; but it may clothe it with authority to administer a law requiring the ascertainment of facts in order to determine whether the law applies, and if so, how, to situations as they arise. The administrative power includes, necessarily, power to detemine the facts necessary to application of the law. That is a familiar principle governing numerous instances of grant of quasi judicial and quasi legislative power. They do not fall within the field of that strictly judicial or legislative power which is undelegable. * * *

"Here the Legislature provided, in effect, that in case of there existing under an indeterminate permit, a right of a corporation to enjoy such privileges as are involved in this case, no other permit or franchise shall be granted to any one to invade, in whole or in part, the same field, except upon a specified condition involving the ascertainment of a fact. That plainly created, conditionally, municipal disability, and to that extent amended all conflicting existing laws. It was the mere ascertainment of the fact that was delegated to the Commission. The prohibition of the exercise of power, waiting upon such ascertainment, was of legislative creation. The mere administrative labor of ascertaining the fact is not legislative power at all in the undelegable sense. Such administrative feature does not involve any element of expediency or legislative discretion, but only the judgment and discretion which any person or body commonly exercises to ascertain whether a given situation satisfies the calls of a rule prescribed by higher authority to a lower for guidance and enforcement."

Any person, firm, or corporation could go in business of furnishing light, heat, or power in a city or town without a franchise if it could engage in such business without having to use streets and highways therefore, and it is because of this fact, and for the purpose of authorizing such use of the streets and highways, that a franchise must first be obtained, and the control and regulation of the use of the streets, alleys, or other public grounds or ways of any municipality is specifically reserved in the state by section 7, article 18, of the Constitution.

As to the right to refer to citizens the question of whether or not a franchise shall be granted, extended, or renewed, we conclude that no such absolute and unequivocal right is anywhere conferred upon the municipality. These provisions of the Constitution contain an inhibition against the municipality granting, renewing, or extending such franchise without first referring it to the electors in a special or general election. Sections 5a and 5b, supra. It is quite clear that the purpose of these provisions of the Constitution was to limit and restrict the powers of the municipality to matters of this kind in such a way as to prevent any action on the part of the municipal officers except with the sanction and approval of the people of the municipality voting in the election called for that purpose, and to these very salutary provisions of the Constitution we would give full force and effect, but nowhere in these provisions of the Constitution or others called to our attention do we find where the state as the sovereign has surrendered to the municipality or the people thereof the obsolute right of exercising control and jurisdiction in the matter of the granting of franchise. It is conceded that this power rests in the state originally and must emanate therefrom if conferred upon the municipality, and in order to be so delegated must be specifically conferred either by the Constitution or by the Legislature. We cannot say, and indeed we are not required to say, whether the act in question is perfect and its operation salutary, but these are questions for the consideration of the Legislature, and it may in its wisdom amend or modify the law or repeal it entirely if it should so determine.

In discussing these last two sections of the act, relative to requiring the certificates of convenience and necessity from the Corporation Commission before permitting an election to be held for the purpose of granting franchises for a second utility. I may add it is suggested by counsel, and very properly so, we think, that the act is divisible into two parts; the first part consisting of the first four sections, providing the method and manner whereby a valid existing franchise may be surrendered by the holder thereof for a permit from the state to conduct the same business in such municipalilty upon the precise terms and conditions of the surrendered franchise, in all respects except the definite terms feature is eliminated, said permit being revocable at the will of the Legislature in the manner and under the conditions therein provided. The second part, consisting of sections 5 and 6, prohibits the granting of a second or competing franchise in any city or town where there is in existence a valid franchise or permit until a certificate of public convenience and necessity therefor is obtained from the Corporation Commission in the manner therein provided, with right of appeal to this court from the order of the Commission granting or denying such certificate.

We are inclined to the view that the act is properly divisible as above set out, and being divisible, it is my opinion that the first four sections may be held constitutional, even if sections 5 and 6 should be found to contravene section 5b, article 18, of the Constitution, as is so strenuously contended, and I am further of the opinion, upon consideration of the act, that the Legislature would have enacted said first four sections without sections 5 and 6, and under numerous decisions of this court, if said first four sections are constitutional, as I hold, same may be upheld even if the last two sections were stricken down. It is further my opinion, however, as hereinbefore pointed out, that said sections 5 and 6 should be upheld for the reasons herein stated.

It is conceded that the sovereign gives and the sovereign can take away, but it is contended by plaintiff that that which has been given or conferred by the Constitution cannot be taken away by statute. When this contention, we are in hearty accord, and conceive it to be our duty to recognize and uphold all such rights and powers thus conferred, and to strike down any legislative enactment in my manner abridging or interfering with the rights and powers conferred by the Constitution. It is likewise our duty, though, to recognize the rights and prerogatives of the legislative authority and to uphold its solemn enactments rather than nullify them by judicial construction unless it clearly appears that the plain provisions of the Constitution have been violated. In this regard numerous authorities are cited holding that any doubt as to the constitutionality of an act of the Legislature should always be resolved in favor of the constitutionality of the act.

In the early case of Anderson v. Ritterbusch, Treasurer, 22 Okla. 761, 98 P. 1002, in on opinion by Justice Kane, this court said:

"It may be that Senate Bill No. 245 is not as complete a piece of legislation as possible, but we believe it is adequate for the purpose for which it was enacted, and infringes no vested rights of the persons affected by it. That it may be capable of improvement is a matter with which we have nothing to do. That is with the Legislature, 'Judges ought to remember that their office is jus dicere, and not jus dare — to interpret law, and not to make law, or give law.' The rule laid Town by Mr. Chief Justice Marshall in Fletcher v. Peck, 6 Cranch, 87-128, 3 L.Ed. 162, is sound and salutary:

" 'The question, whether a law be void for its repugnancy to the Constitution is, at all times, a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative in a doubtful case. * * * But it is not on slight implication and vague conjecture that the Legislature is to be pronounced to have transcended its powers, and its acts to be considered as void. The opposition between the Constitution and the law should be such that the judge feels a clear strong conviction of their incompatibility with each other.' "

In the case at bar it may be said that House Bill No. 4 is not as complete a piece of legislation as possible, but the matter of its alteration or improvement is one with which we have nothing to do, since our function is exclusively to interpret law, not to make law, and in the language of Chief Justice Marshall in the case above cited, I am unable to say that I feel a clear and strong conviction of the incompatibility of the act here in question with the Constitution.

In Graham v. Childers, 114 Okla. 38, 241 P. 178, it was said:

"He who contends that an act of the sovereign legislative body is in excess of its constitutional authority must sustain the burden of showing a state of facts — if facts are drawn in issue — which, when the applicable provisions of the Constitution are considered, show the attempted exercise of power to be beyond constitutional limitations. Until that is done, the courts indulge every presumption that the legislative conclusion, which was reached by its passage of the act, that the provisions of the act are in fact within its authority, was correct."

This rule was early announced in this jurisdiction in City of Pond Creek v. Haskell, 21 Okla. 711, 97 P. 338, in a very exhaustive opinion by Justice Dunn, and has consistently been followed since that time. The first paragraph of the syllabus of that opinion is as follows:

"A court will never declare an act of legislation, passed with all the forms and solemnities requisite to give it the force of law, unconstitutional and void, unless the nullity and invalidity of the act are placed, in its judgment, beyond a reasonable doubt."

This holding seems to be uniform, and while the act here in question could very easily be sustained under this proposition, for in my judgment it certainly cannot be said that the act is unconstitutional beyond a reasonable doubt, but I do not need to, and do not, base my holding herein entirely on this proposition, for I am thoroughly satisfied, after a careful and most exhaustive study of this question, that this act is in no way violative of any of the provisions of our Constitution.

In arriving at this conclusion I determined, first, that in the Constitution itself a clear intent was evinced to retain absolute and exclusive control in all matters of this kind in the state as the sovereign, that the state has control of the use of the streets and highways, having expressly reserved that right in the Constitution, and that section 47, article 9, specifically confers upon the Legislature the power sought to be exercised by it in the passage of the act here in question.

I have carried comment and citations further than I otherwise would because of the vigorous insistence by counsel that the act in question was vulnerable to their attack on the constitutional grounds discussed and because of the many questions presented and the great importance of this matter. I am satisfied with the correctness of the conclusion to which I have come, both from principle and authority derived from the construction placed upon these constitutional provisions by this court and upon similar constitutional provisions by scholarly and learned courts of other states. Upon consideration of all the authorities I cannot say that the unconstitutionality of this act has been shown beyond a reasonable doubt, but conclude that the act is neither repugnant to the Constitution of Oklahoma nor that of the federal government, and, following and applying the rules heretofore laid down for us by our eminent predecessors and hereinbefore cited. I am clearly of the opinion the act here in question should be sustained, and therefore am unable to agree with the opinion of the majority and most respectfully dissent therefrom.

Note. — See "Franchises," 26 C. J. § 42, p. 1025. n. 67.