Motion to dismiss, for the want of jurisdiction, an appeal from a determination of the Supreme Court of Oklahoma, made September 14, 1937, denying a 'petition for rehearing in the nature of judicial review' after a decision affirming an order of the Corporation Commission of the State fixing rates for telephone service. The motion is upon the ground that the proceeding in the state court was legislative and was not a suit within the meaning of section 237 of the Judicial Code, as amended, 28 U.S.C. § 344, 28 U.S.C.A. § 344, governing our appellate jurisdiction.
The Constitution of Oklahoma authorizes the Corporation Commission to prescribe rates 'for transportation and transmission companies.' Article 9, § 18. Appellant, operating telephone lines, is a 'transmission company.' Article 9, § 34. Appeals from the Commission may be taken only to the Supreme Court of the State. Article 9, § 20. No court of the State, other than the Supreme Court by way of appeal has jurisdiction 'to review, reverse, correct, or annul' any action of the Commission within the scope of its authority, save that writs of mandamus and prohibition will lie from the Supreme Court to the Commission 'in all cases where such writs, respectively, would lie to any inferior court or officer.' Id. In case of appeal, no new or additional evidence may be introduced in the Supreme Court, but the Supreme Court has jurisdiction to consider and determine 'the reasonableness and justness of the action of the Commission appealed from, as well as any other matter arising under such appeal.' The action of the Commission is to be regarded 'as prima facie just, reasonable, and correct,' but the court may, when it deems necessary in the interests of justice, remand to the Commission any case pending on appeal 'and require the same to be further investigated by the Commission, and reported upon to the court (together with a certificate of such additional evidence as may be tendered before the Commission by any party in interest), before the appeal is finally decided.' Article 9, § 22.
'whenever the court, upon appeal, shall reverse an order of the Commission affecting the rates, charges, or the classifications of traffic of any transportation or transmission company, it shall, at the same time, substitute therefor such orders as, in its opinion, the Commission should have made at the time of entering the order appealed from; otherwise the reversal order shall not be valid. Such substituted order shall have the same force and effect (and none other) as if it had been entered by the Commission at the time the original order appealed from was entered.'
In the instant case, the Corporation Commission on March 18, 1935, after hearing, made its order fixing appellant's rates (Okla.Corp.Com.Rep., 1935, p. 558), and on appeal the Supreme Court of the State, on July 13, 1937, affirmed the order. 71 P.2d 747.
Appellant concedes that this decision was legislative in character, in view of the authority conferred by the above-quoted provision of section 23 of article 9 and its construction by the state court. See Pioneer Telephone & Telegraph Co. v. State, 40 Okl. 417, 425, 426, 138 P. 1033; Swain v. Oklahoma Railway Co., 168 Okl. 133, 134, 136, 32 P.2d 51; Oklahoma Cotton Ginners' Association v. State, 174 Okl. 243, 248, 251, 51 P.2d 327. Compare Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 226, 227, 29 S.Ct. 67, 53 L.Ed. 150; Oklahoma Gas Company v. Russell, 261 U.S. 290, 291, 43 S.Ct. 353, 67 L.Ed. 659. But appellant contends that the Supreme Court of the State 'completed its legislative review and function by the filing of its opinion of July 13, 1937,' and that appellant was then free to invoke the jurisdiction of the court to exercise its judicial power and function by an application for 'a judicial review.' This, appellant states, was the purpose of its petition for rehearing.