IN THE SUPREME COURT OF THE STATE OF OKLAHOMA. WESTERN UNION TELEGRAPH CO., Appellant, VS. STATE OF OKLAHOMA, Appellee. (Rendered January 9th, 1912.) Error from Corporation Commission. No. 879 Modified 1. An objection that the Corporation Commission fixed rates without evidence to support the order does not ran to the jurisdiction of the Commission to make the order but to the reasonableness of the order when made. 2. A telegraph company is entitled to earn a fair return upon the present value of its property used in the business within the State and where the Corporation Commission establishes rates that will not admit of such return as, under all the circumstances, is just, its order establishing such rate is in violation of the Fourteenth Amendment of the constitution of the United States. 3. The reasonableness or unreasonableness of rates prescribed by the Corporation Commission for the transmission of messages by a telegraph company within the limits of the State must be determined with reference only to the intra-state business done by the carrier and to the profits derived from that business. It is by deviding the capital of the carrier, invested in the business in proportion to the earnings of each that the amount of capital invested in intra-siate business is found and upon which the carrier is entitled to a fair return. And it is by dividing the total expenses of conducting both its inter-state and intra-state business on the same basis that the expense of conducting each is found. If the net profits derived from the inter-state business further reduced by the application of the order fails to yield a reasonable return on the investment, the order is unreasonable and unjust and will be reversed. 4. An order of the Corporation Commission which provides: "No extra charge shall be made for delivering a telegraphic message in cities or towns in this state within a radius of two miles from the office of the delivering telegraph company; provided that such point of final delivery is within the corporate limits of such town or city," applies to incorporated towns and cities only and is not an unconstitutional interference with interstate commerce, but a valid exercise of the power of the Corporation Commission not only as to intra-state but as to telegraphic messages from points without to points within the state. 5. That part of the order which reads: "No telegraph office where messages are received and transmitted for the public shall be discontinued or abolished without first obtaining the consent of the Commission, upon an application duly filed by the said company desiring said discontinuance, wherein shall be stated the reason therefor; it being understood that this refers to the main office, and does not include branches of the main office at any place," is Held to be unreasonable and is modified so as to require 20 days notice to the Corporation Commisson of a proposed discontinuance. (Syllabus by the Court. ; Cottingham & Bledsoe, Attorneys for appellant Chas. J. West, Att'y Gen. and Chas. Moore, Assistant Attorney Gen., for appellee. OPINION OF THE COURT BY TURNER, C. J. On March 24, 1908, the Corporation Commission, pursuant to art. 9, Sec. 18 of the constitution, made due publication of proposed order number 18 addressed "To all Telegraph Companies deing business in the State of Oklahoma." On July 14th, 1908, the Western Union Telegraph Company filed its objections thereto. After several hearings consisting solely of the testimony of J. C. Nelson, Superintendent of the appellant, the Commission, on December 1, 1908, issued a final order which reads: CORPORATION COMMISSION To all Telegraph Companies, Persons, Firms and corporations doing business in the State of Oklahoma: Pursuant to publication of proposed order No. 18, relating to rates and regulations for telegraph service, in the Guthrie Daily Leader, a newspaper of general circulation, published in the city of Guthrie, County of Logan, State of Oklahoma, and said contemplated order having appeared therein once a week for four consecutive weeks as required by law, and pursuant to regular hearing in the Commissioner's office in the city of Guthrie, notice is hereby given that the following final order shall be in full force and effect on and after the first day of January 1909. No telegraph company or combination telegraph companies, doing business in the State of Oklahoma, shall charge or collect for the transmission of messages between points in the State of Oklahoma, a greater or different rate of charge than provided herein: Rule No. 1. No telegraph company shall charge or collect more than the following scale of rates for any message of ten words, or less, exclusive of time filed, office check, date, time received, complete address and signature, between any points within this State on its lines: Scale of Rates. 175 miles and under, air line distance, day rate, 25c; night rate 25c. 250 miles and over 175, air line distance, day rate 30c; night rate 25c Over 250 miles, air line distance, day rate, 35c; night rate 25c. For each additional word over ten words, the day rate shall be two cents. For each additional word over ten words, the night rate shall be two cents. Rule 2. All telegraph companies are required to receive and transmit each other's messages, when necessary to reach a point of destination. Whenever a message is sent over two or more telegraph lines owned, controlled and operated by separate and distinct corporations, or individuals, the joint rate shall be ten cents in addition to the single line ratenamed herein, of ten words or less and one cent for each additional word over ten words. Provided, that the additional cost, or rate, shall not be charged when the same company has an office at point of origin and destination. Rule No. 3. All rates in force and effect on December 1st, 1908, lower than the rates named herein shall remain in full force and effect until changed by order of the commission. Rule No. 4. The receiving clerk or receiving operator must give any aid or explanation necessary to enable the sender to prepar● his or her message, and must also correctly. mark on the face of the message the year, month, day, hour and minute that it is filed. Rule No. 5. In sending a message, the sending operator must observe the following order of transmission: 1. The number of the message. 2. The operator's personal signal 3. The correct and exact filing time as per rule 4. 4. The check of the message. 5. The place from. 6. The address of the message. The body and signature of the message. Rule No. 6. The receiving operator must show on the face of the message, the hour and minute the mesage was filed at the point of origin, in addition to the hour and minute the message was received by him. Rule 7. No extra charge shall be made for delivering a telegraphic message in cities or towns in this State within a radius of two miles from the office of the delivering telegraph company; provided that such point of final delivery is within the corporate limits of such town or city. Whenever practicable, such telegraph company may deliver all messages by telephone, with consent of the sender or addressee thereof, and charge the actual expense of so doing. Rule 8. No telegraph office where messages are received and transmitted for the public shall be discontinued or abolished without first obtaining the consent of the commission, upon an application duly filed by the said company desiring such discontinuance, wherein shall be stated the reason therefor; it being understood that this refers to the main office, and does not include branches of the main office at any place. Such branches may be opened or closed as the exigencies of business may require. Rule 9. All rules and regulations of the telegraph companies operating in Oklahoma in force and effect on December 1, 1908, not changed the rules and regulations herein prescribed, shall remain in full force and effect, until changed by order of the Commission. Rule 10. A copy of this order must be printed with twelve point type and shall be posted in some conspicuous place in each telegraph office in the State of Oklohoma for the information of the public. Two copies of tariffs, rules and regulation of each telegraph company doing business in Oklahoma must be filed with the Commission by each company on or before date this order becomes effective." Assuming as is contended, that there was no evidence before the Commission tending to prove that the existing rate was unreasonable, it does not follow that the Com |