should under the facts in this case, but if said order is not void but erroneous, prohibition is not the proper remedy.

[2] The Corporation Commission is a creature of the Constitution, and its powers and duties are prescribed by § 18, art. 9, which section authorizes the Corporation Commission to supervise, regulate, and control transportation and transmission companies. This court in the case of Pawhuska v. Pawhuska Oil & Gas Co. (Okla.) P.U.R.1917F, 226, 166 Pac. 1058, held that the Constitution gave the Corporation Commission no authority to supervise, regulate, and control public utilities such as gas companies, but that authority was conferred upon the Commission by chapter 93, Session Laws 1913. The status of the petitioners in the instant case are not identical, as the rights of the people of Oklahoma City, Muskogee, and those cities where the Oklahoma Natural Gas Company has no franchise and is not the owner of the distributing system present an additional question from that presented by the city of Chandler and other cities where the Oklahoma Natural Gas Company owns the franchise and distributing system and sells gas direct to the consumers. We will first consider the order, as it relates to Oklahoma City and those cities where the Oklahoma Natural Gas Company does not own the franchise.

[3] As stated heretofore, chapter 93, Session Laws 1913, conferred upon the Corporation Commission power and authority to fix and establish rates that should be charged by a gas company to the consumers. Section 34, art. 9, of the Constitution, defines the term "rate" as follows:

"The term rate shall be construed to mean rate of charge for any service rendered or to be rendered."

If this is an order fixing a rate, for the sole use and benefit of the Oklahoma Natural Gas Company, it might be well to inquire what service does the Oklahoma Natural Gas Company render to the citizens of Oklahoma City or what does it sell to them? The Oklahoma Natural Gas Company has no franchise in the city nor authority to sell gas to the people of the city, nor does it sell gas to the people. The people of the city buy nothing from the Oklahoma Natural Gas Company, nor do they pay them anything. There is no business dealing or transaction between the people of Oklahoma City and the Oklahoma

Natural Gas Company. The Oklahoma Gas & Electric Company by virtue of its franchise furnishes and sells gas to the citizens and the citizens of the city pay the Oklahoma Gas & Electric Company a specified rate for the service rendered and the gas furnished by the company, but no such relation exists between the Oklahoma Natural Gas Company and the people of Oklahoma City.

It may be contended that the local distributing companies are simply agents or representatives or instrumentalities of the Oklahoma Natural Gas Company, but this contention is contrary to the holding of the Supreme Court of the United States in the case of Public Utilities Commission v. Landon, 249 U. S. 236, P.U.R.1919C, 834, 39 Sup. Ct. Rep. 268, 63 L. ed. 577. The facts in that case were almost identical with the facts in the case at bar, and may be stated as follows: The Kansas Natural Gas Company was in the hands of a receiver and the receiver was attempting to enjoin the Public Utilities Commission of Kansas and Missouri from enforcing a rate fixed by the Public Utilities Commission of each state, to be charged by the distributing companies to the people of the different cities, contending the rate was confiscatory.

The court held in substance that the local company operating under a special franchise selling gas to the people was subject to the orders of the Commission and the rate fixed by it, but the Kansas Natural Gas Company, nor its receiver could complain of the rate, as they did not own the franchise and were not furnishing gas to the people, although the receiver was furnishing gas to local companies and received therefor two-thirds of the gross amount collected by the company from the people. The court stated, if the receiver had a cause to complain, it was regarding the contract with the local company, and not the rate the people were paying. The question was before the Supreme Court of the United States, in another case, only the position of the companies being reversed, the local company contending that the rate fixed by the Commission was not confiscatory as to it, but was as to the Gas Producing & Transporting Company, which was furnishing gas to the local company under a percentage contract. The court there stated as follows:

"A gas-distributing company cannot assert that constitution

al rights of a gas-producing and transporting company furnishing gas to the former company upon the basis of a percentage of meter readings will be infringed by a municipal ordinance fixing the gas rates which the distributing company may charge." Newark Natural Gas & Fuel Co. v. Newark, 242 U. S. 405, 37 Sup. Ct. Rep. 156, 61 L. ed. 393, Ann. Cas. 1917B, 1025.

[4] By applying the law announced in the above entitled cases, to the facts in the case at bar, the Corporation Commission had no jurisdiction to enter an order requiring the people of Oklahoma City to pay an additional sum for gas for the use of a public service corporation that sustains no direct relation to the people, nor renders any service to them, but whose only relation to the people is indirectly, by virtue of a contractual relation between it and the local company, which does serve the people. All these facts appearing upon the face of the judgment record, is the judgment void or erroneous?

This court in the case of Title Guaranty & Surety Co. v. Foster, Pac., stated as follows:

"A successful collateral attack can be made against the validity of a judgment of a court of general or limited jurisdiction when it affirmatively appears from an inspection of the judg ment roll that either of the three following elements is absent, to wit: (1) Jurisdiction over the person; (2) jurisdiction of the subject matter; and (3) judicial power to render the particular judgment. If either of these three elements is shown by the judgment roll to be missing, the judgment is void on its face; that is to say, it is void on the face of the record, and, being void, it will be so held and treated whenever and wherever and for whatever purpose it is sought to be used or relied on as a valid judgment.""

[5] See also Miller v. Mills, 32 Okla. 388, 122 Pac. 671; Condit v. Condit, 68 Okla. 3, 168 Pac. 456; Windsor v. MeVeigh, 93 U. S. 274, 23 L. ed. 914; United States v. Walker, 109 U. S. 258, 3 Sup. Ct. Rep. 277, 27 L. ed. 927; Ex parte Lange, 18 Wall. 163, 21 L. ed. 872; Jefferson v. Gallagher, 56 Okla. 405, 150 Pac. 1071. The order disclosing on its face that the Corporation Commission had no jurisdiction to enter such an order, the same is void.

If the order is void as to Oklahoma City and those cities where

the company has no franchise, is it also void as to Chandler and these cities where the company has a franchise? The order attempts to apply to the consumers of gas alike, whether they purchase gas from the Oklahoma Natural Gas Company or whether they purchase from a local company that purchases from the Oklahoma Natural Gas Company.

A similar order, although in a different kind and character of case, was before this court in the case of Title Guaranty & Surety Co. v. Foster, supra, being an order of the county court, releasing the surety on the guardian bond, where the court has jurisdiction to release the surety, but in the same order attempting to deprive the guardian of the management of the estate and to substitute a bank and the court in lieu of the bond required. This court held the order void in toto.

It will be unnecessary to determine whether the order should be considered in its entirety, and if void as to one, void as to all; but the fact that it is void in part is material in the construction to be placed upon the order when considering whether it affirmatively appears frein the inspection of the judgment roll that the order is not an order fixing a rate as defined by § 34, art. 9, of the Constitution, and as it relates to Chandler, and those cities like situated.

This question must be determined from the order itself, as the evidence in this kind and character of proceeding is not before the court nor is the court permitted to consider the evidence. If the Commission intended this as an order fixing a rate, it must be presumed when proceeding to fix a rate it would proceed according to the well-known rule universally adopted in fixing rates, to wit: To find the value of the property which is essential to find in order to fix a rate. This rule is stated as follows: "The present market value of the plant or its worth as a going concern is the ultimate practical basis for determining the value of the investment upon which to fix a rate which will produce a fair return." Pond on Public Utilities, 550.

This court in the case of Pioneer Teleph. & Teleg. Co. v. Westenhaver, 29 Okla. 429, 118 Pac. 354, 38 L.R.A.(N.S.) 1209 in the body of the opinion stated as follows: "The rate is fair when its application will yield a fair return upon the reasonable value of the property at the time it is being used for

the public. It is unfair when it does not yield such return. Knoxville v. Knoxville Water Co. 212 U. S. 1, 29 Sup. Ct. Rep. 148, 53 L. ed. 371; San Diego Land & Town Co. v. Jasper, 189 U. S. 439, 23 Sup. Ct. Rep. 571, 47 L. ed. 892; San Diego Land & Town Co. v. National City, 174 U. S. 739, 19 Sup. Ct. Rep. 804, 43 L. ed. 1154; Smyth v. Ames, 169 U. S. 466, 18 Sup. Ct. Rep. 418, 42 L. ed. 819."

[6] The first essential in fixing rates is to determine the value of the property and then determine whether the rate is reasonable. The Commissioners are permitted to take into consideration the depreciation, repairing, and numerous other items in determining what is fair and reasonable in fixing a rate, but it is always essential that the value of the property be determined. As to the value of the property, the finding of the Commission is as follows: "The Commission is not at this time prepared to express an opinion as to the fair, reasonable value of the propcrty now used and useful in serving the patrons of the Oklahoma Natural Gas Company."

If this is a rate, the Commission failed to find the value of the property which is absolutely essential and necessary before the Commission can fix a rate. The order then reads in part, as follows: "The Commission is agreed that the public interest can best be served by providing a fund which is available to meet necessary expenses that may be incurred in securing additional gas supplies. The Commission knows of no way to provide such a fund except through the medium of an addition to the rates now in effect.

"That the temporary rates heretofore made effective on April 15, 1920, be continued in effect until March 31, 1921, or until further orders of the Commission.

"All sums accruing from the collection of the additional rates herein provided, over and above the rates now in effect, to be paid over monthly as collected, to the Oklahoma Natural Gas Company and by said company to be set aside, reserved, and maintained as a special fund provided by its patrons to be used by it, with the approval of this Commission, for the laying of additional pipe lines, installing compressor stations, or such other improvements or betterments as may be agreed upon between the company and the Commission as may reasonably be relied