thority of Finley vs. Territory, supra. This being so, we need not now inquire whether the Rhea Case is sound or not. We have shown that the doctrine on which the Finley Case rests is foreign to the doctrine involved in the case at ba", and, if this be true, then all cases whether few or many, that are based on the principle decided in the Finley Case, can have no influence on the case at bar." The logic and reasoning of the court in the case of Eldredge vs. Salt Lake County, supra, appear to our minds to be sound, and are conclusive against the claim of defendant in error in the case at bar. In that case the appellant was clerk of the district court of Salt Lake county, Utah, taking his office, January 1st, 1907. Pursuant to provisions of an Act of Congress of June 29th, 1906, he had accepted and retained one-half of the fees for services rendered in naturalizing aliens. Under the laws of the state of Utah, the appellant discharged the duties of clerk of the district court and county clerk for that county, and under the constitution of the state, sec. 1 of art. 21, it was provided that he should be paid a fixed and definite salary and under the statutes passed pursuant to that constitutional requirement, he was required to make a true and correct account of all the fees collected and to pay the same into the county treasury. Under the federal act, he was permitted to retain one-half of the fees collected by him in the naturalization proceedings and was required to account for the balance to the bureau of immigration and naturalization, the money so collected to be deposited in the treasury of the United States. On his refusal, action was brought to compel him to account to the county for the fees retained by him and the question presented to the court, the same as here, was whether or not appellant received such fees by virtue of his office so that the salary he received constituted compensation for the services rendered, and necessitated his reporting all such fees to the county, or whether he should be allowed to retain them, and the court in consideration of this proposition stated its conclusion in the syllabus as folContinued on page 33 THE GULF, COLORADO & SANTA FE RAILWAY COMPANY ET AL., Appellants, VS. THE STATE OF OKLAHOMA, Appellee. Rendered July 12th, 1910. Error from Corporation Commission. No. 996 1. Appeals from certain actions of the Corporation Commission authorized by section 20, article 9, of the Constitution, may be taken: First, By any corporation whose rates, charges or classification of traffic, schedule, facilities, conveniences or services are affected; Second, By any person deeming himself aggrieved by the action of the Commission; Third, By the State, if allowed by law. 2. Where a corporation or corporations appeal from a general order of the Commission not directed against any specific company or companies by name, and it does not appear from the record that the rates, charges or classification of traffic, schedule, facilities, conveniences or services of such appellant corporation or corporations are affected by the order appealed from, the appeal will be dismissed. (Syllabus by the Court.) Cottingham & Bledsoe, Attorneys for Appellants. Charles West, Atty. Gen'l, and Geo. A. Henshaw, Ass'nt Atty. Gen., Attorneys for Appellee. OPINION OF THE COURT BY HAYES, J. This is an appeal from an order of the Corporation Commission, numbered "Order 127," which was promulgated by the Commission on December the 2nd, 1908, and which reads as follows: "The points at which railroads or railways cross each other at grade shall be considered a practicable and available route for figuring rates on the transportation of freight, regardless of whether there are physical connections at said point or, not. Where one or inore lines are connected by an industrial or switch track, whether owned jointly or separately by either or all of said roads, said industrial or switch track shall be considered as a physical connection and a route via such industrial or switch track shall be considered a practical and available route." By a provision of the order, the same was to become effective on January 1, 1909. The third paragraph of Section 18, Article 9 (Snyder's Constitution, p. 239), prescribes the procedure to be observed by the Commission in fixing any rate, charge or classification of traffic or in making any order, rule or regulation, in two different classes of cases. The first class of cases includes those cases in which the order, rule, regulation or requirement is directed against any one or more companies by name. In this class of cases, before any order can be made by the Commission, notice of the time and place when and where the contemplated action will be considered and disposed of must be given by the Commission to the company or companies to be affected for at least ten days. The second class of cases include those in which it is sought to make or prescribe any general order, rule, regulation or requirement not directed against any specific company or companies by In this class of cases the contemplated order, rule, regulation or requirement is required to be pub lished in substance not less than once a week for four consecutive weeks in one or more newspapers of general circulation published in the county in which the capitol of the state may be located, giving notice of the time and place when and where the Commission will hear any objections which may be urged by any person interested against the proposed order. Section 20 of the same article gives the right of appeal from certain actions of the Commission and prescribes who may take such appeals. It prescribes that an appeal may be taken: First, By a corporation whose rates, charges or classification of traffic, schedule, facilities, conveniences or or services are affected; Second, By any person deeming himself aggrieved by the action of the Commission; Third, By the state, if allowed by law. The order here involved belongs to the first class of orders provided for name. by the third paragraph of section 18, supra. It is not directed against any one or more railway companies by name; it is a general order and was made after publication of notice as required for the second class of orders provided for by said section. The order applies to all railway companies operating in the state in whose lines exist the conditions specified in the order, to-wit: those companies having a line of railway crossing another railway at grade or having a line of railway connected with another line of railway by industrial or switch track. When either of said conditions exist in the line of any railway company of the state, then the route over such line of railway via such crossing or such physical connection by means of an industrial switch or track, is made practicable and available routes as a basis for fixing the rate of freight charges. A railway company in whose line or lines of railway the conditions provided for in said section do not exist, is not affected by the order. At a hearing on the proposed order several different railway companies appeared and opposed the issuance of the order, but this appeal is prosecuted only by two of said companies, to-wit: The Gulf, Colorado & Ry Company and the Atchison, Topeka & Santa Fe Ry. Company. No appeal is attempted to be prosecuted by the state nor by any person who deems himself aggrieved by the action of the Commission, and the record fails to disclose that appellant companies' rates, charges or classification of traffic, schedule, facilities, conveniences or services are affected by the order. On the other hand, there is affirmative evidence in the record that one of the appellants will not be affected thereby. It was wisely provided by section 20, supra, that only those corporations which have the right of appeal from the general order of the Commission whose interests are affected by the order appealed from. To have permitted appeals by corporations not affected, would have been to require this court to decide abstract and hypothetical questions from which no affirmative relief would result. No effort was made by either of appellants to show that their rates or charges would be reduced by the order or that their rates or charges would be reduced by the order or that they would otherwise be affected thereby. The objections made by them to the promulgation of the order is of a general and indefinite character, and the record fails to disclose facts showing them to be of that class of corporations that, under section 20, supra, have the right of an appeal from the general order of the Commission not directed against any one or more corporations by name, and the appeal is therefore dismissed. Williams, Kane and Turner, JJ., concur. ALEX MCCLELLAND, Plaintiff in Error, VS. No. 512 HENRY F. SCHMIDT, Defendant in Error. 1. Where in an action of replevin before a justice of the peace, the justice on motion of defendant, pursuant to Wilson's Statutes of Oklahoma, sec. 5037, dismissed the cause for want of prosecution, ordered the property returned, or its value paid defendant, and taxed plaintiff with the cost; and where plaintiff next day, pursuant to said Statutes, sec. 5032, filed a motion for a new trial on the ground of accident and surprise, pursuant to said Statutes, sec. 4493, which the court sustained over defendant's objection; and where after trial anew in that court defendant appealed and before trial anew in the district court, moved to sustain the appeal and dismiss the cause on the ground that the justice was without jurisdiction, which was overruled. HELD, no error: that while the justice might have erred in holding the motion for a new trial sufficient under the statute and in granting the same, he was not without jurisdiction to entertain and pass upon said motion. 2. Where a controverted questions of fact are tried to the court and the evidence reasonably tends to support the judgment, it will not be disturbed on appeal. (Syllabus by the Court.) H. M. Bear, Roberts & Curran, Att'ys for Plff. in Error. George L. Bowman, Atty. for Deft. in Error. |