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Where the business by reason of its nature, extent or existence of a virtual monopoly therein is such as to clothe it with a public interest of such nature that is of legal cognizance, and where the consideration taken by the business or commodities bought or sold therein are offered or taken by purchase or sale in such manner as to materially affect the public as to supply, demand, price, or rate thereof, or if the business is conducted So as to come within the statutory characteristics and thereby affects the public interest to such an extent as to be of public conseQuence, then the statute authorizes the commission to regulate and the title of the act is sufficient to include this general subject, to wit, the regulation of such a monopoly (or business) by prosecution or prescribing a reasonable rate. See Oklahoma Gin Co. v. State, 63 Okl. 10, 158 Pac. 629. However, the act has been placed in the Revised Laws of 1910 in distinct sections, and, as codified, adopted by the Legislature; therefore, the title is no longer of any importance.

In the determination of this action the prime consideration is that of the right of the corporation commission to impose regulations upon a company or association engaged in the business of distributing ice in a community, where such business is the only one of that character in the community, and by reason of the circumstances a virtual monopoly exists in the distribution of the same and is a public business by reason thereof. Therefore, our determination of the application for writ of prohibition in the instant case will depend solely upon the jurisdiction of the corporation commission to impose regulatory restrictions upon the Oklahoma Light & Power Company in the sale and distribution of ice.

Discussing the extent of this authority granted by the act heretofore quoted, this court, in Shawnee Gas & Electric Co. v. Corporation Commission, 35 Okl. 454, 130 Pac. 127, quoting from an opinion of Mr. Justice Hayes, said:

“The sole provision in the act bearing upon this subject is to be found in the foregoing quoted section 13. This section provides that whenever a business shall have certain characteristics, it shall be a public business and shall be subject to the jurisdiction of the corporation commission to regulate its practices, rates, and prices; but it does not provide that all public business shall be subject in these respects to such jurisdiction. * * * The first part of said section attempts to define the class of business which the latter part of the section subjects to the jurisdiction of the corporation commission and the district courts. It appears to us clear that what was intended was to bring within the jurisdiction of the commission the regulation of charges and rates for services connected with those businesses that violate the acts and are connected, not with business strictly of a public character, such as common carriage, supply of water and gas, but

with that class of business in which the owners, without any intent of public service, have placed their property in such a position that the public has an interest in its use. “The distinction between the class of business and its service intended to be defined by and included in said section and the business and service of public corporations is, we think, well made by Mr. Justice Brewer, who delivered the opinion of the court in Cotting v. Godard, 183 U. S. 79 (22 Sup. Ct. 30, 46 L. Ed. 92), in the following language: “In the one (referring to property devoted to public service) the owner has intentionally devoted his property to the discharge of a public service. In the other, he has placed his property in such a position that, willingly or unwillingly, the public has acquired an interest in its use. In the one he deliberately undertakes to do that which is a proper work for the state. In the other, in pursuit of merely private gain, he has placed his property in such a position that the public has become interested in its use. In the one it may be said that he voluntarily accepts all the conditions of public service which attach to like service performed by the state itself; in the other, that he submits to only those necessary interferences and regulations which the public interest required.' It was this second class of business with which we think section 13 was dealing and intended to place under the jurisdiction of the corporation commission and the district courts of the state as to all practices, rates, and charges. If this section grants to the corporation commission power to prescribe prices, rates, and charges to be charged by any public service corporation, it confers that power as to all public service corporations, for the language that includes one includes all, and no exception is made. The act confers, not only upon the corporation commission jurisdiction to prescribe rates and charges under the conditions therein named, but confers also a like and concurrent power upon the district courts of the state. But the power to prescribe and regulate rates and charges to be observed by some public service corporations, to wit, transportation and transmission companies, was conferred exclusively upon the corporation commission by section 18, art. 9, supra, which was not subject to be altered, amended, or repealed until the second Monday in January, 1909. Section 35, art. 9, Const. It would therefore follow for this reason, if said section includes public service corporations, it would have to be declared in part at least unconstitutional. It would also have to be declared unconstitutional for a second reason. The function of prescribing a schedule of rates and charges to be made by public service corporations in the future for services rendered by them to the public is a legislative function. Reagan et al. v. Farmers’ Loan & Trust Co. et al., 154 U. S. 362 (14 Sup. Ct. 1047, 38 L. Ed. 1014); Interstate Commerce Commission v. Cincinnati, N. O. & T. R. Co., 167 U. S. 479 (17 Sup. Ct. 896, 42 L. Ed. 243.)”

In the case of Oklahoma Gin Co. v. State, 63 Okl. 10, 158 Pac. 629, in the opinion de.

livered by Mr. Justice Turner, this court said:

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"It meant that whenever a business, although organized, it may be, for the purpose of private gain, has placed its property in such a position that the public has become interested in its use, and such business is conducted in violation of section 1 of the act, i. e., governed by a trust, monopoly, or combination or conspiracy in restraint of trade, the same was, by the act, declared to be a public business, and made subject to the control of the corporation commission.”

The court then quoted that part of the opinion in the case of Shawnee Gas & Electric Co. v. The Corporation Commission, supra, as herein quoted. While we consider these opinions essentially correct in principle, yet it is clear from a careful consideration Of the Same that a much narrower Construction is placed upon section 13 of the act, supra (section 11032, Comp. St. 1921), than the language used in said section will justify.

In the case of Oklahoma Gin Co. v. State, supra, it will be noticed the court substitutes the word “and” in the place of the disjunctive “or” used in the statute and thereby destroyed the plain intention of the Legislature, as evidenced by the language used. The rule universally adhered to by the authorities is that the word “and” can never be substituted for “or” in a statute when the meaning of the language used in the statute is plain and there is no indication that the word “and” was intended to be used instead of the word “or.” It is only where the context or other provisions of the statute, or from other laws relating to the same subject indicates, and it clearly appears to have been the legislative intent to have used the substituted word that the court in construing such statute is authorized in substituting. 25 R. C. L. p. 977; Robinson v. So. Pacific Co., 105 Cal. 526, 38 Pac. 94, 722, 28 L. R. A. 773; Castor v. McClellan, 132 Iowa, 502, 109 N. W. 1020; Thayer Lbr. Co. v. City of Muskegon, 157 Mich. 424, 122 N. W. 189. The word “or” is ordinarily disjunctive, but occasionally, to avoid absurdity, the courts construe it equivalent to “and.” State ex rel. Hich v. Steiner, 160 Wis. 175, 151 N. W. 256: Gar Creek Drainage District v. Wagner, 256 Ill. 338, 100 N. E. 190. But where it is evident that the word “or” was intended to have its ordinary meaning it should not be construed to mean “and.” State ex rel. Caldwell v. Hooker, County Judge, 22 Okl. 712, 98 Pac. 964; Duo: v. United States, 98 U. S. 142, 25 L. Ed.

In the construction of statutes courts do not exercise legislative powers and their sole function is to determine from the language o the intention and meaning of the statute, -

We are clearly of the opinion that the first section of the act defined an unlawful agreement, contract, or combination, in the form of a trust or a conspiracy in restraint of trade or commerce and declared and made the same illegal, and in subsequent sections

of the act provided for the prosecution, dissolution, and punishment of such combination. It will here be observed if such a trust is dissolved and restrained from doing business the regulation provided for in section 13 would have no application to such a business. Section 13 of said act plainly provides for the regulation of any business, which by reason of its nature and extent, or in the event of a virtual monopoly therein is Such that the public must use the same or its services, or such business sells commodities in such a manner as to make it of public consequence so as to affect the community at large as to supply, demand, or price, or rate thereof, that then such business is subject to regulation. The right to regulate under section 11032 of the Statutes depends upon the established facts in each particular case. In other words, the business must possess the statutory characteristics. But, under the latter provision in the statute—or said business is conducted in violation of the first section of this act—such business also may be regulated, for then it is immaterial whether said business possesses the statutory characteristics described in the first part of section 13 of the act, for the reason such business comes within the definition of an unlawful agreement or combination which demands the exercise of the regulatory power of the state. If the business violates section 1 of the act, so as to constitute an unlawful trust, the same may be proceeded against in the district court and subjected to regulation by restraining such business from being conducted in violation of the act. This would be a regulation by the court, although the court would be without power to fix a rate, as that is a legislative function, but the courts at common law had the power to regulate a business in the form of a monopoly to prevent inJury. It is clear from section 13 of the act that it was the legislative intent to vest the corporation commission with power to regulate a business by reason of its nature and extent that makes it of public consequence or affects the public interest in such a way as to demand regulation, or where such business is of such a nature as to result in a virtual monopoly therein to the persons engaged in such business to such an extent as to place it within the power of such persons to control the supply and demand for the practices, prices, rates and charges of such business. [5] It is our conclusion that the business subjected to regulation under the first part of section 13 of the act, supra, falls within that class of business described as the third class subject to public regulation by Chief Justice Taft in the case of Wolff Packing Co. v. Court of Industrial Relations of Kansas, 262 U. S. 522, 43 Sup. Ct. 630, 67 L. Ed. 1103, wherein the court held:

“Businesses which though not public at their inception may be fairly said to have risen to

be such and have become subject in consequence to some government regulation. They have come to hold such a peculiar relation to the public that this is superimposed upon them. In the language of the cases, the owner by devoting his business to the public use, in effect grants the public an interest in that use and subjects himself to public regulation to the extent of that interest although the property continues to belong to its private owner and to be entitled to protection accordingly. Munn v. Illinois, 94 U. S. 113; Spring Valley Water Works v. Schottier, 110 U. S. 347; Budd v. New York, 117 N. Y. 1, 27; s. c., 143 U. S. 517; Brass v. Stoeser, 153 U. S. 391; Noble State Bank v. Haskell, 219 U. S. 104; German Alliance Insurance Co. v. Lewis, 233 U. S. 389; Van Dyke v. Geary, 244 U. S. 39, 47; Block v. Hirsh, 256 U. S. 135, * * *

“In a sense, the public is concerned about all lawful business because it contributes to the prosperity and well being of the people. The public may suffer from high prices or strikes in many trades, but the expression ‘clothed with a public interest,’ as applied to a business, means more than that the public welfare is affected by continuity or by the price at which a commodity is sold or a service rendered. The circumstances which clothe a particular kind of business with a public interest, in the sense of Munn v. Illinois and the other cases, must be such as to create a peculiarly close relation between the public and those engaged in it, and raise implications of an affirmative obligation on their part to be reasonable in dealing with the public.”

It may be safely stated that it is that class of business which is inherently of such a nature as to affect the public, and which by its peculiarly close relation to the public, and the dependence of the public upon the service of such business, and on which rests the duty of being reasonable with the public, that may be considered within the regulatory power of the state. Ordinarily the power of public regulation is not sustained by the courts unless there has been a legislative declaration of the public interest, and such declaration is most persuasive. But, bearing in mind the constitutional guaranties enjoyed by all persons engaged in any lawful business, ultimately the determination that a business is clothed with such a public interest as to justify regulation, it cannot be said to be a matter of legislative discretion solely, but ultimately is a judicial question. Under the provisions of the statutes in question the Legislature has determined that certain business possessing certain characteristics is subject to regulation, and in any given case arising under the statute the power to regulate must ultimately depend upon the established facts, together with the inherent nature of the busimess. In applying the statute to any given state of facts, the nature of the business will be considered in its relation to the public and the abuses sought to be remedied.

The manufacture, sale and distribution of ice in many respects closely resembles the Sale and distribution of gas as fuel, or electric current, and in many communities the Same company that manufactures, sells and distributes electric current is the only conCern that manufactures, sells and distributes ice, and by reason of the nature and extent of the ice business it is impracticable in that community to interest any other concern in such business. In this situation, the distributor of such a necessity as ice should not be permitted by reason of the impracticability of any one else engaging in the same business to charge unreasonable prices, and if such an abuse is persisted in the regulatory power of the state should be invoked to protect the public. As said by Chief Justice Taft, in Wolff Packing Co. v. Court of Industrial Relations of Kansas, supra:

“* * * when the public becomes so pe

culiarly dependent upon a particular business that one engaging therein subjects himself to a more intimate public regulation is only to be determined by the process of exclusion and inclusion. * * * *

It may be here observed that although a business is clothed with a public interest this is not determinative of what regulation may be imposed upon such business. The extent of regulation must be determined from the character of the business and the extent of such regulation must always be reasonable in view of the private rights of the owner, and the regulation should only be to the extent of correcting such abuses that have resulted in injury to the public. It may be contended that if the manufacture, sale and distribution of ice is subject to regulation for the reason the distributor happens to be the only one engaged in the business in a particular community that a mercantile establishment, which happens to be the only one in a community, would be subject to regulation for the same reason. The fallacy of such a contention is apparent. Ice is an article of common household necessity, the supply of which must ordinarily be purchased every day. Ordinary articles of merchandise may be purchased at a convenient time and in sufficient supply for ordinary use for considerable time.

It is our conclusion that the corporation Commission has jurisdiction under the statutory law of this state to determine the necessity of regulating the price of ice where the evidence establishes that the business comes Within the statutory characteristics of section 11032. Therefore, the application for writ of prohibition is denied.

JOHNSON, C. J., and KANE, BRAN and HARRISON, JJ, concur." SON,

(220 P.)

ADAMS v. STATE. (No. A–4064.)

(Criminal Court of Appeals of Oklahoma. May 26, 1923. Rehearing Denied Dec. 4, 1923.)

(Syllabus by the Court.)

1. Criminal law 3-130—Not error to refuse change where petition fails to meet statutory requirements. Where the petition for a change of venue fails to meet the statutory requirements, there is no error in the trial court in striking the petition from the files and refusing the change.

2. Criminal law 6-735, 780(2), I 186(4) Where evidence is conflicting as to accomplice, question should be submitted to jury under proper instructions; failure to instruct as to corroboration of accomplice not error unless instruction requested. o Whether or not one jointly charged with defendant with the commission of the crime is an accomplice is generally a mixed question of law and fact, and, where the evidence is conflicting on such issue, the trial court should submit the question to the jury under proper instructions, and should further instruct as to the necessity of corroborating an accomplice by independent evidence tending to connect. defendant with the commission of the crime; but failure to instruct as to the necessity of such corroboration will not be held to be reversible error where no such instruction was requested, and where there is ample corroborating evidence introduced; such alleged error being harmless under the provisions of section 2822, Comp, St. 1921.

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mobile, 1920 touring model. When not in use Myers kept his car in a public garage in the city of Nowata. On the 18th day of December, 1920, a daughter of Myers, who had been using the car, took the same to the garage for the purpose of leaving it there. This occurred about 4:30 in the afternoon. The owners of the garage were at that time busy cleaning it out, and had the Myers girl to park the car in the street near the garage. One of the employés of the garage saw the car parked there as late as 6:30 in the evening. The car was missed about 7:30 that evening, and immediately a search was made for it, and the officers notified that it was missing. Some time later that night, probably between 10 and 12 o'clock, this defendant and his codefendant, Emmett Taylor, were found in possession of the car in the city of Tulsa, Okl., and were there arrested, charged with its theft, and were on the next day brought back to the city of Nowata. Taylor voluntarily testified as a witness on behalf of the state, in this prosecution, and detailed the circumstances under which the car was taken. Adams denied taking the car, but testified that Taylor stole it, and that he was merely riding with Taylor to the city of Tulsa at the time they were arrested. The first alleged error assigned as grounds for reversal is the action of the trial court in striking and overruling the motion and application of the defendant for a change of venue from the county. This application alleges that the defendant cannot have a fair and impartial trial in said county for the reason that the minds of the inhabitants of the coun. ty generally are so prejudiced against him by reason of the activities of the Nowata county automobile association, which embraces every automobile owner in Nowata county, and which association had interested itself in the prosecution of the case to the extent of employing special counsel to assist the county attorney, and by reason of the offer of rewards, etc., and the application is accompanied by a copy of an advertisement contained in the Nowata Star, which advertisement of the Nowata county automobile association offers a standing reward of $250 for the arrest and conviction of any one stealing an automobile from any citizen of Nowata county, a further reward of $100 for the return of a stolen automobile, and a further reward of $1,000 for the dead body of any automobile thief taken in resisting arrest after having stolen any automobile from any citizen of Nowata county. The application is subscribed and sworn to by the defendant, Tom Adams. No affidavit of any residents in said county as to the truth of the allegations in such petition were filed there with. [1] The statute upon which this application and petition for a change of venue was

based is as follows:

©-For other cases see same topic and KEY-NUMBER m all Key-Numbered Digests and Indexes

“Any criminal cause pending in the district court may, at any time before the trial is begun, on the application of the defendant, be removed from the county in which it is pending to some other county in said judicial district, whenever it shall appear in the manner hereinafter provided, that the minds of the inhabitants of the county in which the cause is pending are so prejudiced against the defendant that a fair and impartial trial cannot be had therein. Such order of removal may be made on the application of the defendant by petition, setting forth the facts, verified by affidavit, if reasonable notice of the application be given to the county attorney and the truth of the allegations in such petition be supported by the affidavits of at least three credible persons, who reside in said county. The county attorney may introduce counter affidavits to show that the persons making affidavits in support of the application are not credible persons and that the change is not necessary, and may examine the witnesses in support of said application in open court in regard to the truth of said application; and if it be made to appear by the affidavits and examination of witnesses that a fair and impartial trial cannot be had in the county, a change shall be granted and the order made by the court. When there are several defendants in any indictment or criminal prosecution, and the cause of the removal thereof exists only as to one or more of them, the other defendants shall be tried and all proceedings had against them in the county, in which the case is pending, in all respects as if no order of removal had been made as to any defendant.” Section 2628, Compiled Statutes 1921.

The trial court struck the petition from the files and overruled the motion for a change of venue because said petition and application did not meet the requirements of the statute.

The question here presented is not one of first impression in this court. In the case of Black v. State, 3 Okl. Cr. 547, 107 Pac. 524, the identical situation here presented was before the court, and in that case the court said:

“The application for change of venue is in regular form, and alleges that, owing to the prejudice and feeling against the defendant in Hughes county, he cannot have a fair and impartial trial in said county. This application is supported by the affidavit of the defendant only. It is not supported by affidavit of three disinterested persons as required by the statute. * * * A grant of change of venue is within the sound discretion of the court, even when the requirements of the statute have been complied with, and this court has repeatedly held that it will not reverse the judgment of the lower court for the failure to grant a change of venue unless it plainly appears that the discretion of the court has been abused to the prejudice of the defendant. The journal entry recites the fact that the attorneys for the defendant requested the court to issue subpoenas for witnesses and permit them to take oral proof in support of a change of venue, and gave as a reason therefor that while the feeling was very high and the prejudice very strong against the defendant, yet they were unable to secure the affidavit of any person to

these facts. Counsel cites no authority for this kind of a proceeding. The statute prowides the only method of proof. We find no error in the action of the court in refusing this request and in overruling the motion for a change of venue.”

In the later case of Bookman v. State, 12 Okl. Cr. 49, 151 Pac. 1074, this court, speaking through Doyle, presiding judge, said that where the petition for a change of venue is only supported by the affidavit of the defendant and his attorney the application for a change of venue does not conform with the requirements of the statute, and for such reason is properly overruled. Section 20 of article 2 of the Constitution in part provides: “In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed: Provided, that the venue may be changed to some other county of the state, on the application of the o, in such manner as may be prescribed y law.

It will be noted from the foregoing constitutional provision that the accused may change the venue of a criminal prosecution to some county other than that in which the crime was committed on application and in such manner as may be prescribed by law. The statute allowing a change of venue to the accused (section 2628, supra) gives the state the right to call witnesses to refute the statements of the application and supporting affidavits, and, in order to give the state an Opportunity to refute such statements, provides that reasonable notice must be given of the hearing of the application. Should the deTendant be permitted to dispense with the affidavits and call witnesses at the hearing, the requirements of notice would be circumvented, and the state would be at the mercy of a party whose chief and material interest might be delay by any means within his power. This and other reasons have caused courts almost unanimously to hold that the requirements of the statutes pertaining to supporting affidavits is mandatory. We hold, therefore, that the trial court did not err in striking the petition and application for change of venue from the files and in overruling the motion as presented. Also see Macklin v. State, 53 Tex. Cr. R. 197, 109 S. W. 145; 16 Corpus Juris, p. 212, § 320.

[2] Next it is contended that the trial court erred in failing to instruct the jury that the defendant could not be convicted on the uncorroborated testimony of an accomplice. In this connection it is contended that the codefendant, Emmett Taylor, was an accomplice of Tom Adams in the commission of the crime, and that the only evidence in the record tending to establish Tom Adams' connection with the theft of the automobile is the testimony of Taylor.

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