(229 P.) state government, thus constituting one of the essential foundation stones upon which the entire structure of our government rests, yet it has been said by the Supreme Court of the United States "That it would be very difficult, if not impossible, to frame a definition of the term which would be accurate, complete and appropriate under all circumstances." Brown v. N. J., 175 U. S. 172, 20 Sup. Ct. 77, 44 L. Ed. 119, also 6 R. C. L. p. 433, and cases cited in notes. It has universally been conceded to at least mean a regular course of administration through courts of justice according to those rules, terms, and procedure established by law for the protection of private rights and public needs, a process in accord with the settled course of judicial proceedings, and, while it has been held that to constitute due process of law does not essentially demand a judicial hearing, yet no court has ever denied that a full and complete hearing under the established rules or procedure before a judicial tribunal of competent jurisdiction is "due process of law." The latest and one of the clearest and most succinct expressions on the meaning of the term, perhaps, is that of Mr. Justice Pitney in Ochoa v. Hernandez y Morales, 230 U. S. 139-140, 33 Sup. Ct. 1033, 57 L. Ed. 1427, wherein he says: "Whatever else may be uncertain about the definition of the term 'due process of law,' all authorities agree that it inhibits the taking of one man's property and giving it to another, contrary to settled usages and modes of procedure, and without notice or an opportunity for a hearing." What is here said by Mr. Justice Pitney as to the taking of property without a hearing applies equally and in the same sense to the taking of life or liberty without hearing. In the language of Webster, in his argument in the Dartmouth College Case, 4 Wheat. 518, 4 L. Ed. 629, and quoted in many opinions subsequently rendered, it means: "A law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial." Its demands are answered by the granting of "a day in court." The act in question does not deprive the petitioner of such a hearing, hence his second contention cannot be sustained. 8 Cyc. 1080-1085; 12 C. J. 1188-1200; Black's Const. Law (3d Ed.) 570 595. [9] Petitioner's third ground for contention is that the act is violative of section 51, article 5, of the Constitution, which provides: Sec. 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 petitioner's fourth ground of contention is that the act is violative of section 32, article 2, of the Constitution, which provides: Sec. 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. Bearing in mind that the business of petitioner is that of a "transportation company" for hire, and therefore a "public service enterprise," and subject to state control, keeping in mind also that the state may exercise control over the public highways, and that this is a business seeking to appropriate the public highways to its own use as a roadbed, seeking to charge the public a profit for a service to be rendered over the public highways, there is no merit in the contention that the state, within the sphere of its police power, cannot exercise a reasonable control over such business. "It is laid down as a fundamental principle that persons or corporations engaged in occupations in which the public have an interest or use may be regulated by statute." 6 R. C. L. § 217, p. 224; Munn v. Ill., 94 U. S. 113, 24 L. Ed. 77; also 8 Cyc. 1070; 12 C. J. 1167-1172; Black's Const. Law (3d Ed.) 97, 394, 397, 399, 403, 413. 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 stayed from providing for its discontinuance by any incidental inconvenience which individuals or corporations may suffer. 222. public weal rather than in the inherent nature | any character of public service, which will of the calling itself." 6 R. C. L. § 214, pp. 221, materially benefit the public, and equally within such power to restrict or deny such This doctrine is so essential and so sound privilege, whenever it would result in detrias to be properly applied to "private busi- ment to the public. See Police Power of the ness enterprises" as well as to "public serv- State, 6 R. C. L. p. 228; 8 Cyc. 863-874; ice enterprise." It applies to private busi- and same subject in other authorities above ness enterprises whenever such business cited; also regulation and prohibition of ocaffects the public welfare, and essentially ap-cupation, 6 R. C. L. p. 217, and authorities plies to public service concerns because of above cited. 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." To allow operators of motor vechicles to appropriate the public highways to their own free use, and to charge the public a fee and profit for the service to be rendered over same without license to do so and without regulation, would constitute a clear, concrete example of taking property without "due process of law." 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. [11-13] But it is contended that the act in question makes no provision for appeal. Granting this to be true, it does not render the act unconstitutional. The article of the Constitution (article 9) which created the Corporation Commission and vested it with certain specific administrative powers also provides that the Legislature may confer additional powers and duties upon such Commission, and further provides that from all orders of the Corporation Commission an appeal will lie to this court by the aggrieved party. 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 Corpora- Therefore the act in question being no tion Commission to exercise the arbitrary or more nor less than the granting of additioncapricious power of granting a perpetual al powers authorized by section 19, article 9, special privilege or creating a perpetual mo- of the Constitution, the right of appeal exnopoly. The Legislature in the enactment of pressly granted by section 20 of said article this statute has clearly kept in mind the automatically vests in any party aggrieved test above quoted from R. C. L., viz., "the ex- by an order of the Commission, whether the tent to which the public rights and welfare act specifically provides for an appeal or not, may be affected by any given business enter- and, if the act should attempt to deny the prise," and in the statute under considera- right of appeal, it would not thereby be rention the crucial and decisive test of the Cor- dered unconstitutional in its entirety, but poration Commission's power is the fact of only void as to the provision attempting to the convenience and necessities of the public. deny the right of appeal, without affecting [10] The Corporation Commission is not the validity of the remaining portions of the permitted to exercise any of the powers vest-act. ed in it by the act, unless, as a fact, the pub- Therefore the act in question does not lic 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 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. [14] In the class of business sought to be regulated by this act the public has an interest, a twofold interest, one from a standpoint of convenience and necessity, the other from the standpoint of public property rights, in the appropriation and use of its public highways. It is a matter of common knowledge, therefore one of which courts will take cognizance, that the advent of throngs of automobiles and motor vehicles has necessitated the building of paved roads at a burdensome expense to the public. The public, as such, is therefore vested with a property right in (229 P.) such highways, and it is folly to argue that the public has no voice as to who shall appropriate its highways to their own free use and then charge the public a profit for such use. The property of the public can no more be taken and appropriated to the use, bene fit, and profit of private enterprises, without due process of law and fair compensation, than the property of a private enterprise can be taken by the public without due process of law and fair compensation. Reasonable regulation of transportation companies, operating over public highways, is no more nor less than a valid and reasonable protection against the appropriation of public property by private individuals without due process of law and without compensation. If the Corporation Commission should attempt to enforce any arbitrary or unreasonable order under powers supposed to be granted by this act, then, regardless of the right of appeal, this court, under its expressly given supervisory powers, through means of some of the remedial writs provided for in the Constitution, could grant speedy and proper relief. Therefore the act in question does not confer any arbitrary final powers upon the Corporation Commission. It would be impossible for the Commission acting under such act to grant a special privilege detrimental to the interests of the public or to create a monopoly with like effect. The public has a voice in the enforcement of this act, and the right to speak whenever its interests are not subserved. It has a right to say that no person or corporation shall use its public highways as a "transportation line" for hire; it has a right to say, that any one who may be permitted to operate over such lines in such manner must have a license to do so, and has a voice as to whether its necessities and convenience require that one, two, or three shall be licensed to render the required service, or that none is required. It might be a material benefit to the public to have one transportation line over a given highway, and a substantial detriment to have more than one; hence the limit to the number is determined by the public needs. It is not that the petitioner or any other private concern has a vested right or any right to appropriate the public highways to its own free use and benefit for profit, but that the public, from the standpoint of its convenience and necessities, as well as from the standpoint of property rights in the public highways, may demand a "public service," if it needs it, or reject it if it is not needed, and a voice as to how much of such service it needs and the conditions under which it may be rendered, and no private rights are paramount to the public good. The fifth ground of contention is that the act in question is violative of section 23, article 2, of the Constitution of Oklahoma, which provides: Sec. 23, art. 2. "No private property shall be taken or damaged for private use, with or without compensation, unless by consent of the owner, except for private ways of necessity, for agricultural, mining, or sanitary purposes, or for drains and ditches across lands of others in such manner as may be prescribed by law." The above provision has no application to any rights or issues involved in this cause, nor is it affected by any provision in the act. [16] The sixth ground of contention is that the act is void because of its invalid delegation of legislative powers to the Corporation Commission. 4 It is true that our Constitution in article divides the powers of government into three distinct departments, legislative, executive, and judicial, and provides that each shall be separate and distinct from the other, neither exercising the powers of the other, but also contains this express exception, to wit, "except as provided in this Constitution." The creation by the Constitution of the Corporation Commission as an administrative board is one exception to the provisions of article 4, the creation of an agricultural board is another, the authorization of the creation of the banking board is another; each being either specifically created by the Constitution, or its creation expressly authorized by the Constitution, and each specially vested, or expressly authorized to be vested, by law, with a given sphere of "administrative powers," and charged with the duty of enforcing them. The rapid progress of our government with its vast increase in population, its multiplying variety of occupations, business enterprises, public utilities, and public needs, with the countless conflicts in interest arising from such complex affairs, have brought about an imperative necessity for "administrative boards" to assist the "major depart ments" of government in the necessary regulation and control of such affairs. While the powers and duties conferred upon such boards may partially partake of the nature of legislative, judicial, or executive functions, they are nevertheless purely administrative in character and not legislative, judicial, nor executive powers in the strict legal sense of such terms. Such boards exercise their powers and administer their duties within the limitations of a substantive law regularly enacted by the legislative department, yet the details in their process of regulation.are merely administrative and as such subject to review by a regular judicial tribunal. In view of the general holding of the courts regarding the delegation of administrative powers to boards and commissions (Black's Const. Law, 96; 8 Cyc. 833; 12 C. J. 847; 6 R. C. L. 179), we would feel inclined to this comprehensive view, even in the absence of the express exception made in article 4 of our Constitution, and in the absence of the concrete precedents under such exception contained in our Constitution in the specific creation of our Corporation Commission and other administrative boards. But our Constitution has not only recognized the necessity for administrative boards but has made express exception to the rule of distinction between the powers of the three major departments, and expressly created the Corporation Commission and specifically endowed it with certain powers, charged it with certain duties, and authorized the Legislature to confer additional duties and powers upon it, thereby removing the question of invalid delegation of powers. Article 9, Constitution of Oklahoma. There are no powers given, no duties imposed upon the Corporation Commission by the act in question which are substantially different from those specifically conferred by the Constitution itself. [15] The remaining grounds of contention are disposed of by a determination of the questions heretofore discussed and determined, with the exception of the eleventh ground, in which petitioner contends that the act is void because it contains matters not set forth in its title. [17] The title to the act is above set forth in full, also the material provisions complained of are set forth in full, and the remaining provisions of the statute sufficiently set forth and analyzed to disclose the act as a whole, and we find no provisions therein which are not clearly within the scope of subject-matter intended or reasonably expected to be covered by the title. We therefore hold that the act in its entirety is constitutional and valid. The writ is denied. Appeal from District Court, Washington County; H. C. Farrell, Judge. Action by Samuel Disch and others against Mayme Emmons and others. From a judgment for defendants, plaintiffs appeal. Affirmed. Arthur Fitzpatrick, of Bartlesville, for plaintiffs in error. J. R. Charlton, of Bartlesville, for defendants in error. HARRISON, J. This was an action by Samuel Disch and other alleged resident taxpayers in consolidated school district No. 18, in Washington county, against the school board of said district, to enjoin the issuance and sale of certain school bonds alleged to have been fraudulently voted by said district in an election held prior to the institution of this suit; the principal grounds being irregularities and fraud in said bond election, and invalidity of the proceedings and order by which said district had been consolidated and formed. The cause was tried to the court, and at the conclusion of the evidence plaintiffs asked that the court make special findings of fact from the evidence, upon the issues made by the material allegations in the pleadings. Inasmuch as the court made a specific and definite finding of fact as to each material allegation, it will suffice to set forth the court's findings of fact and conclusions of law, without setting forth the obligations in the petition. "Findings of Fact. "The court finds from, the evidence adduced on the trial that consolidated school district No. 18 held an election on April 18, 1923, to vote on the issuance of bonds; that notices of said election were posted in accordance with JOHNSON, C. J., and BRANSON, WAR- law, and containing the following qualifications REN, and GORDON, JJ., concur. NICHOLSON, J., dissents. of electors of said election: 'Qualified electors for this election are all persons, male or female, over the age of 21 years of age, citizens of the United States, and who have resided in this state one year, in said county six months, and in his or her election precinct 30 days next preceding the election hereby voted, and who are not within the excepted classes enumerated in Section 1, art. 3, of the Constitution of this state;' that a verified census of the persons between the ages of 6 years and 20 years actually residing in said district was taken within three months previous to said election, and that said census showed more than eight persons residing therein between such ages; that said election was held in Vera, Okl., on April 18, 1923; that one Doan was appointed challenger, and that said Doan challenged all voters he had reason to believe not qualified. "The court finds that the election board carefully and fairly counted the votes cast, and that 2. Findings held not against weight of evi- the vote was 156 votes for the bonds and 101 dence. Record examined, and the facts found by the trial court held not to be against the weight of the evidence. votes against the bonds. "The court finds that said election was conducted in a fair manner and no fraud perpetrated; that of the even voters that plaintiffs For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (229 P.) claim were illegally deprived of their votes the court finds that Robert Wooten and his wife had been residents of Washington county for a short time over three months; that said Wooten and his wife did not offer to vote at this election; that if they had voted they would have voted against the bonds; Walter Kannedy and his wife were qualified voters at said election, but at the time were temporarily out of the county; that Kannedy offered to vote, but, upon being challenged, refused to sign the affidavit as to his qualifications; Mrs. Kannedy did not offer to vote; both would have voted against the bonds; that Jackson and his son offered to vote, both were challenged, and Jackson signed the affidavit as to his qualifications and voted; his son did not sign the affidavit and was not allowed to vote. "There is no evidence as to how Jackson's son would have voted, or as to whether or not he was a qualified voter. Sam Daniels offered to vote. He was challenged and refused to sign the affidavit as to his qualifications. There is no evidence as to whether he was a qualified voter, or how he would have voted. "The court finds that the petitions to the county superintendent for the formation of consolidated district were not changed or altered after they were signed by the signers thereof; that they were made out separately for each district before being circulated for signers. "The court finds, further, that the report of the election for consolidation was filed with the county superintendent; that the county superintendent, upon receiving said report, declared said districts 17 and 18 disorganized, and the consolidated district 18 organized; that said report of the election and order declaring consolidation of said districts were filed in the county superintendent's office, but were afterwards lost." "Conclusions of Law. no one entitled to vote was refused the right to vote. "As to plaintiffs' second cause of action, the court finds that said consolidation was legal, and all of the necessary steps required by law were complied with; that, in addition thereto, plaintiffs or any one who felt aggrieved at the action of the county superintendent could have appealed from the action of said county superintendent; that they had a plain and adequate remedy at law, and this suit is not proper. For the above and foregoing reasons the court finds for the defendant and against the plaintiffs, and the relief prayed for by plaintiffs is denied. "Costs are assessed against the plaintiffs. "H. C. Farrell, "Judge of the District Court." Plaintiffs have appealed upon the following assignments of errors, to wit: "(1) The court erred in refusing the continuance asked for by plaintiff. "(2) The court erred in refusing to allow affidavits for continuance to be introduced as evidence, which were offered by plaintiff. "(3) The court erred in refusing a recount of the ballots used in the election in district 18, which is the important point in controversy. "(4) That the findings of fact by the court are contrary to the weight of the evidence. "(5) That the findings of fact and conclusions of law are erroneous and contrary to the law. "(6) The court erred in excluding evidence offered by plaintiff, and erred in admitting evidence offered by defendants. "(7) The court erred in refusing to hold that there was no consolidation of districts 17 and 18, and erred in holding that the alleged petitions were sufficient. "(8) The court erred in holding that the challenged voters should have signed the affidavit as to their qualifications. "(9) The court erred in overruling the motion for a new trial on the part of plaintiff." "The court finds as a matter of law that the election on the bond issue was conducted fairly and legally, and that no fraud was perpetrated; that the necessary majority of legal votes was cast for said bonds; that the noPlaintiffs in error do not argue the alleged tices posted for said election properly stated the legal qualifications of voters at such elec- errors in the order in which they are assigntions; that Kannedy and his wife were quali-ed, nor do they definitely argue them at all, fied electors; that Kannedy was not entitled but argue, first, that the proceedings for into vote at this election, even though qualified, junction, are a proper remedy for the relief when he refused to make the affidavit as to his sought. This contention is not controverted qualifications when challenged by the challeng- by defendants, and seems to have been recer; that Mrs. Kannedy was not refused the ognized as a proper proceeding by the court, right to vote, as she did not offer to vote; and is therefore not involved in the appeal. that the Wootens were not qualified electors, and that they did not offer to vote, consequently were not refused a vote; that the Jackson boy was not shown to be qualified, that he was challenged, and did not make the affidavit as to his qualifications; consequently he had no right to vote. The same is true of Sam Daniels. There is no evidence as to the last two, as to how they would have voted if they had been permitted to do so. "The court holds as a matter of law that the qualifications to vote in said election were as set out in the notices hereinabove set forth; that no voter can complain of not being allowed to vote unless such voter presents himself and offers to vote, and, if he is then challenged, subscribe to the affidavit as to his qualifications. For the foregoing reasons the court finds that Complaint is also made of the refusal of the court to order a recount of the ballots at the bond election, plaintiff's contending that the alleged irregularities and fraudulent acts could have been better ascertained by a recount of the ballots. Complaint is also made that the returns were made by three unauthorized, and two authorized, persons. The remainder of the brief of plaintiffs in error is devoted principally to a discussion of facts alleged in their petition, except that in the conclusion it is suggested that this is a court of chancery which may review and weigh the evidence, which suggestion has been well taken by the court, and the record read. |