title, and to provide for the manner of executing municipality to contract for the service of the same. * 73. To permit the use of the streets and alleys of the city or town for the purpose of laying down gas, water and other mains," etc. [10] As heretofore observed, rate regulation of public utilities is distinctively a legislative function of the state, and, though the state may confer upon a city authority to enter into a contract for specific rates for a given period, since the effect of such a grant is to extinguish pro tanto a governmental power of first importance, the courts will not indulge the presumption that such a surrender of power has been made, unless the legislative intention is expressed in clear and unmistakable language or is necessarily implied from the powers expressly granted, and all doubts will be resolved in favor of the continuance of the power. Home Tel. Co. v. Los Angeles, 211 U. S. 265, 29 Sup. Ct. 50, 53 L. Ed. 176; Pond on Public Utilities, §§ 498, 502. Neither paragraph 63 nor 73 in express terms confers upon a city authority to fix rates. Can it be said that such authority is necessarily implied from the language used? Provisions somewhat similar to the terms of these paragraphs are found in the statutes of many states, and, though they have been a fruitful source of litigation, the decisions are not harmonious, but in a general way it may be said that they form three distinct groups. The cases composing the first group hold that statutes of this character do not confer any rate-making power whatever. Typical cases are Pioneer T. & T. Co. v. State, 33 Okl. 724, 127 Pac. 1073, St. Louis v. Bell Tel. Co., 96 Mo. 623, 10 S. W. 197. 2 L. R. A. 278, 9 Am. St. Rep. 370, and Mills v. Chicago (C. C.) 127 Fed. 731. Cases of the second group hold that such statutes by necessary implication confer the power to fix rates for a definite period, not unreasonable in extent. Boerth v. Detroit Gas Co., 152 Mich. 654, 116 N. W. 628, 18 L. R. A. (N. S.) 1197. See, also, Pond on Public Utilities, § 420. In the third group are cases which hold that, though statutes of this character do not confer directly any rate-making authority, they do amount to a sort of tacit recognition by the state of the city's right to contract for rates, subject, however, to the paramount authority of the a municipal public utility and to fix the rates for a definite period, a contract made in pursuance of such authority cannot be set aside by the state, but it is only in those cases where the authority delegated to the municipality clearly confers upon it the power to agree upon rates for a definite period, and a contract has been made pursuant to such authority, that the state precludes itself from exercising its undoubted governmental function of rate regulation and control. Pond on Public Utilities, § 503. [11] We do not believe that it was the purpose of the Legislature by the very general language in the paragraphs cited to surrender fully the distinctively governmental function to regulate rates, but rather to permit municipalities to protect themselves and their inhabitants against extortionate rates until the state itself should act in the premises. Under this view it cannot be said that the act of 1913 impairs the obligation of the franchise contract (assuming that the city can raise the question), for both parties to that agreement must have entered into it with full knowledge that in the state itself reposed the sovereign power of Manitowoc v. Manitowoc rate regulation. & N. T. Co., 145 Wis. 13, 129 N. W. 925, 140 Am. St. Rep. 1056; Benwood v. Public Service Com., 75 W. Va. 127, 83 S. E. 295. That section first [12] But it is insisted on behalf of the city that the act creating the Public Utilities Commission intended to recognize all outstanding contracts of this character, and reference is made to the concluding sentence of section 12 of the act. declares that it shall be unlawful for any public utility to collect a different rate from that contained in the schedules approved by the commission. It likewise forbids rebates, concessions, or special privileges to any consumer which affects the rates, tolls, or charges for the services furnished, and fixes the penalty for any violation and then concludes: "This however does not have the effect of sus pending, rescinding, invalidating or in any way affecting existing contracts." It is very clear that this sentence refers to the preceding sentence of the section exclusively, and not to the terms of the act in its entirety. A consideration of the statute leads to the conclusion that in its enactment the Legislature intended to provide a comprehensive and uniform system of regulation and control of public utilities, by a specially created tribunal, through which the state itself exercises its sovereign power. state whenever it chooses to exercise its sovereign power of rate regulation and control. Milwaukee Elec. Ry. & L. Co. v. Wisconsin R. R. Com., 153 Wis. 592, 142 N. W. 491, L. R. A. 1915F, 744, Ann. Cas. 1915A, 911 (238 U. S. 174, 35 Sup. Ct. 820, 59 L. Ed. 1254); City of Dawson v. Dawson Tel. Co., 137 Ga. 62, 72 S. E. 508. The principle enunOur conclusion is that since 1913 the Pubciated by this third group of cases has been lic Service Commission has had exclusive recognized and acted upon in this jurisdic- jurisdiction over the subject of rate regulation for many years, and is in harmony with the general spirit and purpose of our laws. tion of this company, that the provisions of the franchise contract fixing rates were superseded by the rates approved by the If the state has clearly authorized the commission, and that the remedy of the city is by complaint to the commission if the placed upon the tax rolls by the county treasrates now in effect are excessive. [13] Finally it is insisted that the commission has never established rates for this company, and until it does so, the rates fixed by the franchise contract should be enforced; but, under section 11 of the act of 1913, existing utilities were required to file schedules of their rates with the commission, and thereafter no change in rates could be made without the concurrence of the commission. In other words, when the tariffs were filed, the designated rates became the legal rates until changed in the manner provided by the act, and superseded the rates designated in the franchise contract. The judgment is affirmed. BRANTLY, C. J., and SANNER, J., con cur. KRAMER, County Treasurer, v. GYPSY OIL urer, and defendant appealed to the county court, and from a judgment therein for defendant the treasurer brings error. Motion to dismiss appeal denied. James P. Evers, Co. Atty., of Tulsa, and Stuart, Cruce & Cruce, of Oklahoma City, for plaintiff in error. James B. Diggs, Henry McGraw, and Rush Greenslade, all of Tulsa, for defendant in error. (Syllabus by the Court.) The county treasurer gave notice to the 1. TAXATION 3624 (16) ASSESSMENT defendant as required by section 7449, ReOF OMITTED PROPERTY-APPEAL-TITLE OF vised Laws 1910, and the defendant filed, in CASE-STATUTE. Where escaped property is assessed by the the office of the plaintiff, written objection county treasurer, and the taxpayer appeals to to said proposed property being listed upon the county court, and secures a judgment an- the tax rolls. There was a hearing before nulling such assessment, the county attorney of said county treasurer, and the result theresuch county may properly prosecute an appeal to this court from such judgment of the county of is shown by the following journal entry, court, and such cause is properly styled, "In omitting caption and signatures: the assessment of the taxpayer," naming him; and if to such properly styled case there be added the county treasurer as a party, the same is surplusage. On Rehearing. (Additional Syllabus by Editorial Staff.) 2. TAXATION 3624 (1) ASSESSMENT OF OMITTED PROPERTY - NATURE OF PROCEED ING. A proceeding to assess and collect taxes due on omitted property is not a civil action, but a remedial proceeding granted by the Legislature and giving certain powers to county treasurer, and, as a matter of grace, giving the taxpayer an appeal to county court wherein proceeding may be heard de novo. "This cause coming on regularly this day to be determined by me, the undersigned county treasurer of Tulsa county, Okl., upon information, filed with me by A. B. Davis, employed by the board of county commissioners of Tulsa county under the provisions of section 7449 of the Revised Laws of Oklahoma of 1910, and due notice having been given said Gypsy Oil Company in accordance with law, and said Gypsy Oil Company having filed its answer and objections herein, and having been directed by the Supreme Court of the state of Oklahoma to hold a hearing upon the question of assessment of said Gypsy Oil Company for omitted taxes, and said hearing having been held before me on the 21st day of May, 1915, at which hearing said Gypsy Oil Company was present Henry McGraw, and Tulsa county being repGreenslade and Hon. by attorneys, Hon. resented at said hearing by Ed Crossland, 8vised by the county attorney as to the law, and county attorney of said county, and being adhaving duly considered all the statements filed with me, I find that the net value of the moneyed capital, surplus, and profits of said corporation which was omitted from assessment at the assessing dates for the several years mentioned was as follows, to wit: 3. TAXATION 3621⁄4 (4)—OMITTED PROPERTY -POWER OF COUNTY TREASURER. In view of Rev. Laws 1910, § 1732, and section 7449, as amended by Laws 1915, c. 189, 1, the right and duty of a county treasurer to collect taxes on omitted property continues until he has exhausted all the powers given him by the Legislature with the assistance of the tax ferret and the counsel of the state law of ficers. Sharp, C. J., and Miley, J., dissenting. Commissioners' Opinion, Division No. 1. Error from County Court, Tulsa County; J. W. Woodford, Judge. Proceeding by John T. Kramer, as County Treasurer of Tulsa County, State of Oklahoma, to assess a tax on escaped property of the Gypsy Oil Company. The property was Okl.) the production of said corporation for each | behalf of both complainant and respondent, ad of said years as shown by its answer on file herein. "I therefore fix the above amounts as the valuation of the moneyed capital, surplus, and profits of said corporation for the several years shown, and direct that they be given credit upon the same for the valuations upon which they have paid as being a part of the properties into which the said moneyed capital, surplus, and profits were invested. "Done this 31 day of May, 1915." judges and decrees that the listing of property, to wit, capital stock, moneyed capital, surplus and undivided profits to the value of $81,548.76 in 1908, $2.459,026.08 in 1909, $2,274,209.32 in 1910, $2,857,243.64 in 1911, $4,023,421.38 in 1912, $8,390,393.74 in 1913, $9,404,436.44 in 1914, and the placing of the same on the tax rolls of Tulsa county and extending the taxes thereon against the Gypsy Oil Company for the years just above enumerated, was without warrant of law, and the said Gypsy Oil Company was not subject to taxation thereon. "It is therefore ordered, adjudged, and decreed that the said action of the county treasurer of Tulsa county in listing said property, placing same on the tax rolls, and extending the taxes thereon be, and the same is hereby, vacatre-ed and annulled, and that the assessment so made against the said Gypsy Oil Company for the property alleged to have been omitted from assessment in the sum of $81,548.76 in 1908, $2,459,026.08 in 1909, $2,274,209.32 in 1910, $2,857,243.64 in 1911, $4,023,421.38 in 1912, $8,390,393.74 in 1913, $9,404,436.44 in 1914, is vacated and canceled, and said assessment is ordered and directed to be stricken from the tax rolls of this county and held for naught. On June 5, 1915, the defendant perfected an appeal from the action of the county treasurer in placing said property upon the tax rolls to the county court of Tulsa county, and executed a bond conditioned as quired by law, which said bond was made payable to Tulsa county, Okl., and gave notice of said appeal to the county clerk of Tulsa county, Okl., to the county treasurer of Tulsa county, Okl., to the board of county commissioners of Tulsa county, Okl., and the tax ferret of Tulsa county, state of Oklahoma. In the notice of appeal and in the appeal bond and in other papers filed in the case by the defendant the case is styled: "In the Matter of the Assessment of the Gypsy Oil Co., John T. Kramer, as County Treasurer of Tulsa County, Oklahoma, v. Gypsy Oil Company, a Corporation, of Tulsa County, Oklahoma." In the petition in error the case is styled: "John T. Kramer, as County Treasurer of Tulsa County, Oklahoma, Plaintiff in Error, v. Gypsy Oil Company, a Corporation, of Tulsa County, Oklahoma." A transcript of the proceedings had before the defendant as county treasurer of Tulsa county was filed in the county court of Tulsa county, the cause tried in said court, and judgment rendered for defendant as shown by the following journal entry, caption and signature omitted. "Be it remembered that this matter came on for hearing before the county court of Tulsa county, Okl., on the 10th day of August, 1915, upon the appeal of the Gypsy Oil Company, the respondent herein, from an order of the county treasurer of Tulsa county, listing certain property of the appellant and extending the same on the tax rolls of said Tulsa county, the complainant, the county treasurer of Tulsa county, appearing in person and by his attorneys, Ed Crossland, county attorney of Tulsa county, and C. H. Pitman and Stewart, Cruce & Cruce; the respondent appearing by its attorneys, James B. Diggs and Rush Greenslade. Whereupon the trial proceeded to the court in the absence of a jury, and after the taking of testimony and the introduction of evidence from day to day the same was concluded on the 14th Whereupon the cause day of August, 1915. was argued by counsel, and the court took said case under advisement until the 18th day of September, 1915. And now, on this 18th day of September, 1915, this matter comes on for final consideration after due notice given to both the complainant and the respondent, said complainant being present by his attorney, J. P. Evers, deputy county attorney of Tulsa county, and the respondent being present by James B. Diggs and Rush Greenslade, the court, being fully advised in the premises and after due consideration of the evidence submitted, arguments of counsel made, and after due consideration of the briefs filed by and on "It is further ordered, adjudged, and decreed that the appellant, the Gypsy Oil Company, have and recover its costs herein taxed at $ "To which said judgment of the court the complainant herein, the county treasurer of Tulsa county, is allowed his exceptions; and also on this the 18th day of September, 1915, the complainant herein having filed his motion for a new trial and the same having been considered by the court, the court doth deny the said motion, to which ruling of the court the complainant excepts and prays an appeal to the Supreme Court of the state of Oklahoma. Whereupon the court doth order that the complainant be given 60 days in which to make and serve case-made, 10 days for the suggestion of amendments, same to be settled upon 5 days' notice by either party." The motion to dismiss this appeal has been orally argued in this court, and exhaustive briefs have been filed by the defendant, and we have given said argument and briefs most careful attention and consideration. The grounds assigned for the dismissal of the appeal are: "(1) This court is without jurisdiction to entertain the attempted appeal herein because the same is not prosecuted by a proper plaintiff in error. "(2) The county treasurer of Tulsa county, Okl., has no authority to represent either the state of Oklahoma, or the board of county commissioners of Tulsa county, or the tax ferret of Tulsa county in this proceeding, or to prosecute an appeal in their behalf." [1] There is only one question involved in this motion: Is this appeal properly in this court? The authority for the action of the county treasurer, which is complained against is found in section 7449, Revised Laws 1910, which reads as follows: "Contract and Compensation for Discovery. The board of county commissioners of any county in this state may contract with any person or persons to assist the proper officers of the county in the discovery of property not listed and assessed, as required by existing laws, and fix the compensation at not to exceed fifteen per cent. of the taxes recovered under this article. listing and assessment may be made. From the action of the treasurer an appeal lies to the county court, and by the amendment of said section 7449 by the act of the Legislature of 1915 (Session Laws 1915, p. 386) either party may prosecute an appeal from the judgment of the county court to this court. In the brief of the appellant and in the brief of the defendant, we have not been favored with a direct authority upon the vital question herein involved, nor after diligent search have we been able to find that this court has decided the identical question herein involved. While there are many authorities cited in the briefs of the attorneys of the defendant, which they earnestly contend conclusively support their contention that this appeal should be dismissed, we are unable to see that said authorities support such contention. Certainly it was the duty of the county attorney to bring into this court the appeal herein. sought is not an ordinary proceeding as defined by section 4644, supra, but is a special proceeding under said section 4645, supra, and it is not necessary to have parties as in an ordinary action. It follows that, this being a special proceeding, the case is properly styled "In the assessment of the Gypsy Oil Co.," and the addition of John T. Kramer, as county treasurer, as a party, is mere surplusage. In the county court the county attorney, the legal representative of the county, appeared and represented the county, and prosecutes the appeal here sought to be dismissed; and this we think, and so hold, was a discharge of his duty as such county attorney, and that this appeal is properly here. The motion to dismiss this appeal is de PER CURIAM. Upon petition for rehearing the court has examined the record carefully, and is satisfied that the opinion prepared by Mr. Commissioner Collier is right and should be approved. In addition to the reasoning of the commission it may be observed that the notice given by the treasurer in pu.suance of section 7449, Rev. Laws 1910, is properly entitled, "In re Assessment of Gypsy Oil Company," and that the present title was fastenIn Sullins et al., Board of County Com-ed to the proceeding by counsel for the oil missioners, v. State ex rel. Barnard, Com- company in their subsequent pleadings wheremissioner Charities and Corrections, 33 Okl. in the county treasurer is uniformly desig526, 126 Pac. 732, Judge Turner quotes with nated as "complainant." On the appeal of approval in Auditor General v. Railroad Co., the oil company, the county court seems to 82 Mich. 426, 46 N. W. 730, as follows: have adopted the practice followed by counsel for the appellant, the cause in that court being entitled: "Aside from these statutory provisions, it is the general rule that public officers need not be expressly authorized by statute to bring suit, but that their capacity to sue is commensurate with their public trusts and duties. Supervisor v. Stinson, 4 Hill (N. Y.) 136; Overseers v. Overseers, 18 Johns. (N. Y.) 407; Todd v. Birdsell, 1 Cow. (N. Y.) 260 (13 Am. Dec. 522) County Treasurer v. Bunbury, 45 Mich. 84, 7 N. W. 705." In Moore v, Nation, 80 Kan. 672, 103 Pac. 107, 23 L. R. A. (N. S.) 1115, 18 Ann. Cas. 397, the court said: "The duties of an officer include all of those that fairly lie within its scope; not merely those which are necessarily involved in the accomplishment of the main purpose of the office, but those, also, which although incidental and collateral, naturally and properly serve to promote and benefit the performance of the principal duties. Constitutions and statutes seldom define with precision the scope of any office." Section 4644, Revised Laws 1910, defines "an action as an ordinary proceeding in a court of justice by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense." Section 4645, Revised Laws 1910, reads: "Every other remedy is a spe "In the Matter of the Assessment of the Gypsy Oil Company for the years 1908, 1909, 1910, 1911, 1912, 1913 and 1914. John T. Kramer, as County Treasurer of Tulsa County, State of Oklahoma, Complainant, v. Gypsy Oil Company, a Corporation, of Tulsa, Oklahoma, Respondent." The journal entry of judgment in favor of the appellant oil company is also entitled as above. Subsequently in his motion for a new trial the county attorney, following the practice suggested by counsel for the oil company, adopted the same title, designating the treasurer "complainant," and in his petition in error in this court he entitles the proceeding in error, "John T. Kramer as County Treasurer of Tulsa County, State of Oklahoma, Plaintiff in Error, v. Gypsy Oil Company, a Corporation, of Tulsa, Oklahoma, Defendant in Error." [2, 3] If we understand the contention of the plaintiff in error correctly, it is briefly this: Inasmuch as the statute, section 7449, supra, provides that an appeal may be taken by "either party" to the Supreme Court, the proceeding being a controversy between the the treasurer in collecting taxes, and not to collect such taxes. It is the duty of the treasurer to collect them, and it is the duty of the county attorney of his county to perform whatever legal services are necessary for the attainment of this purpose. The objections made to the summary proceedings herein, whereby the county treasurer is attempting to perform his duty, seem to us to be objections of form, more than of substance, which should not be permitted to stand in the way of the enforcement of these statutes upon which the revenues of the state and its minor governmental subdivisions so largely depend. is the real party in interest, and since the and duty of the treasurer to collect taxes on judgment of the county court was against omitted property does not cease until he has the power to impose the taxes, an appeal exhausted all the means for this purpose from that decision can only be prosecuted placed at his disposal by the Legislature. by and in the name of the state of Oklahoma. As it is his right and duty to act for the All this may be strictly true in fact and state in giving the original notice, so it consound in reason, but yet it does not neces- tinues to be his right and duty to pursue to sarily follow that the practice adopted in the end, with the advice and counsel of the the present proceeding is subversive or con- law officers of the state, all the remedies trary in substance to the principle contend- afforded by statute for the collection of ed for. The state by its Legislature has not these taxes. Section 1732, Rev. Laws. 1910, seen fit to provide any designation or title designates the county treasurer "collector of for these special proceedings, and the prac- taxes," and provides that "he shall be chargtice of the courts does not seem to be uni-ed with the amount of all tax lists in his form in this regard. The prevailing prac- hands for collection." In the case of omitted tice in this jurisdiction has been to entitle property the tax ferret is employed to assist them as this one was originally entitled in the notice instituting the proceeding. This title, we have no doubt, is sufficient to identify the proceeding and disclose its nature, and we can perceive no good reason why it should be changed in any of its subsequent stages. On the other hand, we are not willing to say that the practice adopted by counsel for the oil company, subsequently followed by the county court and the county attorney without objection, is not equally descriptive of the proceeding and its nature. Under either designation the object and purpose of the proceeding are precisely the same, and the mere fact that in neither of these titles is the state specifically mentioned as a party does not render the remedy less effective or prevent the state from being the real party in interest. Nor does the recital in the motion for a new trial, "Now comes the complainant and moves the court," etc., or in the petition in error in this court, "The said John T. Kramer, as county treasurer of Tulsa county, state of Oklahoma, plaintiff in error, complains," etc., in any wise detract from this conclusion. The proceeding still continues to be a controversy between the taxing power and the taxpayer for the 1. purpose of collecting taxes upon omitted property. The state as a corporate entity always performs such governmental functions through the person of chosen representatives. By the statutes now under consideration the purpose of the Legislature was to provide laws for the collection of taxes on omitted property and create agencies for carrying these laws into effect. As was said by this court in another case, Anderson v. Ritterbusch, Treasurer, 22 Okl. 761, 98 Pac. 1002: "A proceeding for the assessment and collection of taxes due on omitted property is not a civil action. It is a remedial proceeding, granted by the Legislature, conferring upon the treasurer a remedial right and duty, not heretofore existing, for the collection of taxes due on omitted property, and as a matter of grace the Legislature gave the taxpayer the right of appeal to the county court, where said summary proceeding may be heard de novo.' For the reasons stated, the opinion of the commission is approved, and the petition for rehearing denied. All the Justices concur, except SHARP, C. J., and MILEY, J., who dissent. HUSTON et al. v. DOMENY. (No. 6635.) (Syllabus by the Court.) BILLS AND NOTES To constitute duress which will be regarded as sufficient to render the execution of a promissory note involuntary, there must be an actual or threatened exercise of power, possessed by obtaining the note, such as to deprive the maker the party benefiting thereby, for the purpose of of that quality of mind essential to the making of a contract. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Duress.] 2. BILLS AND NOTES 520-DURESS-SUFFI CIENCY OF EVIDENCE. Evidence examined, and held, admitting all it tends to prove and all inferences reasonably deducible therefrom, that neither failure of consideration, duress, nor fraud or corruption inducing the execution of the note in suit is established. (Additional Syllabus by Editorial Staff.) 3. BILLS AND NOTES 505 DURESS AND FRAUD-ADMISSIBILITY OF EVIDENCE. In an action upon a note brought by one As the right of appeal is made reciprocal who under contract with an Indian agency had constructed a ditch, evidence for defendant, deas between the taxing power and the tax-fending on the grounds of duress and fraud, payer, it would seem to follow that the right that the superintendent of the agency at time |