seller, where not recorded as required by law, is held, also, in Worcester Morris Plan Co. v. Mader (1920) 236 Mass. 435, 128 N. E. 777; J. H. Gerlach Co. V. Noyes (1925) 251 Mass. 558, 45 AL.R. 961, 147 N. E. 24. If the transfer by the conditional seller is an absolute sale, it need not be recorded to be valid. Lynn Morris Plan Co. v. Gordon (1925) 251 Mass. 323, 146 N. E. 685. The fact that the conditional seller of a motor truck had, after making an absolute assignment of the conditional sale contract and the notes given by the buyer for the purchase price, to a third person, retaken possession of the truck for default of the buyer, and was in possession of it when a receiver in bankruptcy was appointed for the seller, gave the seller no property or right in the truck as against the assignee. Re B. & B. Motor Sales Corp. 1922; D. C.) 277 Fed. 808. While it is admitted in Patterson Co. v. People's Loan & Sav. Co. (Ga.) supra, that the possession of personal property, after a sale thereof by the possessor, is prima facie evidence of fraud, in Georgia it is only prima facie evidence. This prima facie evidence of fraud is explained where it appears that the assignee of the conditional seller's rights had no knowledge or notice that the property remained in his possession. Such an assignee could have no intention of defrauding a subsequent purchaser or mortgagee of the property. It is further held that the assignee of the note and title would not be guilty of fraud by his mere failure to inquire and inform himself of the then or subsequent possession of the chattel; that he would naturally and reasonably suppose that the conditional buyer under a contract which was duly executed and recorded would be in possession of the purchased property and would so remain in possession. The due execution, at testation, and record of the contract of conditional sale is evidence both of sale and delivery of the property to the purchaser. This being so, any presumption of fraud arising from the possession of the personal property after the sale thereof by the possessor is rebutted. Patterson Co. v. People's Loan & Sav. Co. (Ga.) supra. Other cases on slightly different facts sustain the rights of a subsequent purchaser from the dealer. Thus, where the property never passed out of the dealer's possession, to the purchaser whose contract was assigned, a subsequent bona fide purchaser is given priority over the assignee. Halliwell v. Trans-State Finance Corp. (1922) 98 N. J. L. 133, 118 Atl. 837, where a subsequent bona fide purchaser from the dealer was given priority over a finance company. The decision is based largely upon the facts that the first conditional sale contract, which had been assigned, was not recorded in the county where the second transaction occurred. The first conditional bill of sale was registered in the proper county, but, the second sale having taken place in another county, no record of any cumbrance against the truck appeared, and there was no apparent impediment to the dealer making title to the second purchaser. en And see GUMP INVEST. Co. v. JACKSON (reported herewith) ante, 82. If a resale is authorized, upon a retaking by the dealer, the assignee loses title. Chucovich v. San Francisco Securities Corp. (1923) 60 Cal. App. 700, 214 Pac. 263, holding that the assignee of a contract of conditional sale executed by an automobile dealer upon a sale of a truck, who, upon default of the purchaser, instructed the dealer to take possession of the truck, and authorized him to dispose of it again, lost title as against one to whom the dealer sold the truck. W. A. E. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appt., Eminent domain, § 163 requiring renewal of lease of right of way. An order of the corporation commission requiring a railway company to renew a lease to a private industry of a portion of its right of way without its consent is unauthorized and void, and constitutes a taking of private property of the railway company for a private use, in violation of the Constitution of this state. [See annotation on this question beginning on page 109.] Headnote by PINKHAM, C. APPEAL by defendant from an order of the Corporation Commission in favor of plaintiffs in an action brought to compel renewal of a lease. Reversed. The facts are stated in the opinion of the court. & Cruce, and W. T. Stratton for ap- Messrs. E. S. Ratliff and Williams & Martin for appellees. Pinkham, C., filed the following opinion: The Williams-Miller Mercantile Company filed its complaint before the corporation commission in which it alleged, in substance, that it had been engaged in general merchandise at Christie, Oklahoma, for a number of years, and in connection therewith have bought and sold lumber, crossties, and cordwood; that it has been paying for a lease for some four or five years on a part of the Frisco Railway Company's right of way of $12 a year for a space 100 feet long and 80 feet deep; that its lease will expire August 27, 1924, and that it has been notified by the railway company to vacate at once; that it has a number of crossties stacked on the right of way; that the railway company will only allow their contractors to pile timber or ties on this right of way; that this will force complainant to compete with the contractors at an additional cost as complainant will have to stack some of its timber elsewhere and haul the same to the railway tracks; that if it is forced to give up the lease and pile its ties and haul the same to the railway company's tracks, it will be forced to quit the tie business; that a great part of the farmers depend on making crossties for their living after their crops are laid by and they need competition in the tie business. The railway company, in its answer, states that the question involved is the right of the defendant company to terminate a contract of lease covering a portion of its right of way, entered into with a private industry organized for gain, and not engaged in a public enterprise; that the subject-matter involved does not relate to the furnishing of facilities or the performance by the defendant of any duty owing to the public at large in its capacity as a common carrier; that any attempt to require it to renew said lease would impair the obligation of such contract in violation of § 10 of article 2 of the Constitution of the United States, as well as § 15 of article 2 of the Constitution of the state of Oklahoma; that to force and require by order that the defendant, against its will, lease its (118 Okla. 89, 246 Pac. 876.) premises to the complainant would be taking of the property of the defendant for a private use without due process of law. For further answer and separate defense defendant alleges that the property of the defendant heretofore leased to the complainant is needed by the defendant for use in its capacity as a common carrier, and that the business offered by the complainant is insufficient to justify the defendant being compelled to lease said premises to the complain ant. At the close of the evidence upon the hearing, it was the order of the commission that the defendant, St. Louis-San Francisco Railway Company, renew lease with the complainant, Williams-Miller Mercantile Company at Christie; the lease to be in full force and effect as long as the station grounds in Christie are used for storing wood, ties, and timber, or modified by the commission. From this order the railway company has appealed to this court. All of the assignments of error are presented under one proposition as stated in the railway company's brief as follows: "Has the corporation commission jurisdiction, under the state of facts shown by this record, to order the railway company to make a contract of lease of a portion of its private property to a private individual, for a use not connected with the benefit of the public in general; and was there any evidence offered on behalf of the complainant sufficient to justify the commission in undertaking to order the company to make such a lease?" It is disclosed by the evidence adduced upon the hearing that the complainant, for some twelve years, has, as a part of its business, been a buyer of ties and timber, and for several years without objection it, and others engaged in like business, were permitted to store their ties, cordwood, and other timber as purchased on the right of way of the railway company adjacent to the sidetrack preparatory to shipment free of charge and without contract or lease. Some four or five years prior to the hearing, these private tie and timber buyers were required to enter into leases under which they paid a small rental annually for the privilege of placing their ties and cordwood upon the railroad company's right of way; the complainant herein paying $12 per annum for such privilege. It further appears that the railway company on account of the increasing scarcity of ties and the difficulty of securing them for railroad purposes concluded that certain yards were required and should be used by the company as assembling yards for its own ties, and, acting upon this policy, the railway company cancelled all the leases it had executed to private tie companies, but that it has executed to two companies, the Hobart-Lee Tie Company and the Hussey-Hobb Company, a lease upon a portion of its right. of way solely for the reason that these companies are the agencies of the railway company in securing ties for it. It appears that these companies secure and furnish to the railway company under contract all the ties it requires at a fixed price. The evidence further discloses that the space needed by the railroad company for the storage of its own ties did not quite take up the full length of the switch track at this point and that some 100 feet or 150 feet of space being left at one end, this space was offered to any private tie company which cared to lease the same. It is the theory of complainant that the railway company is endeavoring to discriminate against it as a private tie company and force it out of business, by giving to other tie concerns the privilege of storing ties upon a part of its right of way, while at the same time refusing to give such privilege to the complainant company. The complainant Mr. Miller testified, in substance and effect, that it was the practice of the complainant company to accumulate ties on the right of way, and, when it had a sufficient quantity, it would sell them to other concerns and they would ship them; that, so far as the right of way is concerned, it was a place to store its ties until they could be sold. This witness also stated that the complainant company has not shipped ties in any manner for more than twelve months, and that for some four or five years it has not shipped any ties in its own name, but has simply bought ties and then sold them to another tie concern, the Arkansas Tie & Timber Company. It clearly appears from this evidence that the complainant does not desire to ship out ties itself, but in case it further engages in the tie business, that it may hold the ties on the railroad's right of way until it can secure from some other tie concern an offer of purchase. The question as to the shipment of complainant's ties or as to the furnishing or loading facilities is not involved in this case. The important question for determination is whether there exists any authority to compel the railway company to renew a lease to a portion of the right of way for an indefinite length of time, and for presumably $12 per year, for the use and benefit of a private industry. It is the theory of the complainant that under the provisions of § 26, art. 9, and § 18 art. 9, of the state Constitution the order of the commission in this case is authorized by law; that the same is reasonable and just, and should be sustained. Section 26, art. 9, of the Constitution, provides: "It shall be the duty of each and every railway company, subject to the provisions herein, to .. keep and maintain adequate and suitable freight depots and buildings for the receiving, handling, storing, and delivering of all freight handled by such roads." Section 18, art. 9, of the Constitution provides: "The commission shall have the power and authority and be charged with the duty of su pervising, regulating and controlling all transportation and transmission companies doing business in this state, in all matters relating to the performance of their public duties and their charges therefor, and of correcting abuses and preventing unjust discrimination and extortion by such companies. . . . These provisions of the Constitution have been considered by this court in a number of cases, and the rule to be deduced therefrom is that, while it is the duty of the railroads to keep and maintain adequate and suitable freight depots, etc., for the receiving and handling, storing, and delivering of goods, this duty is one owing the general public and not to any one private citizen or private industry. Chicago, R. I. & P. R. Co. v. State, 23 Okla. 94, 99 Pac. 901; St. Louis & S. F. R. Co. v. Haywood, 25 Okla. 417, 106 Pac. 862; Chicago, R. I. & P. R. Co. v. State, 83 Okla. 161, 201 Pac. 260. The above cases deal with the construction of side tracks,, but the gist of those decisions is that the sections of the Constitution relied upon by the commission requiring the furnishing of facilities for the use of the public such as depots, station agents, terminal facilities, etc., do not apply to a purely private business for the benefit of one firm or individual. In Chicago, R. I. & P. R. Co. v. State, 23 Okla. 94, 99 Pac. 901, Justice Kane, after reviewing the Constitution and authorities, holds that the complainants in that case were not entitled to the relief sought, because it would be extending the power of the state to require faċilities for the convenience of the public to bring within its scope private persons or corporations operating a business for private gain only. The case further held that the police power of the state could not be invoked for such a purpose, as the track or facility demanded was not in any sense a public track, and therefore all those sections of the Constitution such as § 18 and § 26 (118 Okla. 89, 246 Pac. 876.) of article 9, providing that equal facilities shall be furnished the public, had no application to the facts involved in that case. It is said in the concluding portion of the opinion referred to: "The industries the complainants are engaged in are not public enterprises under the laws of Oklahoma; they are purely private in their nature. In that respect the case at bar falls fully within the rule laid down in the Nebraska case, so far as the right of the complainants to the use of the right of way of the railway company is concerned." An examination of the Nebraska case, cited by Justice Kane in his opinion, from the Supreme Court of the United States (Missouri P. R. Co. v. Nebraska, 164 U. S. 403, 41 L. ed. 489, 17 Sup. Ct. Rep. 130), discloses that practically the same contention advanced by the complainants in the instant case was specifically passed upon by the Supreme Court of the United States. That court held "that the order in question, so far as it required the railroad corporation to surrender a part of its land to the petitioners, for the purpose of building and maintaining their elevator upon it, was, in essence and effect, a taking of private property of the railroad corporation, for the private use of the petitioners. The taking by a state of the private property of one person or corporation, without the owner's consent, for the private use of another, is not due process of law, and is a violation of the 14th article of Amendment of the Constitution of the United States." In the brief of counsel for the complainant, the cases of St. Louis & S. F. R. Co. v. Sutton, 29 Okla. 553, 119 Pac. 423, and Chicago, R. I. & P. R. Co. v. State, 67 Okla. 10, L.R.A.1918C, 492, 168 Pac. 239, are cited in support of the proposition that the order of the commission is reasonable and just. We observe nothing in the cases cited in conflict with the proposition that, where a duty to the public is not involved, the police power of the state exercised by the commission does not exist. The finding of the commission that the railroad company's action in canceling the lease in question would result in a monopoly or discrimination against the complainant, which the commission would have the authority to prohibit under § 18 of article 9 of the Constitution, is clearly, we think, without support in the evidence. The railway company, except in so far as its duty to the public is concerned, has a perfect right to use its own property for its own purposes. The undisputed evidence is that it needs all of its right of way at the place involved, except about 150 feet, for the purpose of storing the ties bought by its own purchasing agent. Eminent domain-requir The effect of the order would be that the commission has made a contract for the railway company against its will, appropriating to the use of a private person its property, or an estate therein. ing renewal of of way. lease of right We conclude that the principle announced in the case of Chicago, R. I. & P. R. Co. v. State, 23 Okla. 94, 99 Pac. 901, is applicable to the facts of the instant case, and that the order of the Commission complained of should be reversed, with directions to the Corporation Commission to dismiss the complaint in this proceeding. ANNOTATION. Power of public utility commission to require railroad company to grant or renew leases or other privileges on its right of way. [Railroads, § 16.] A diligent search reveals but two cases other than that reported here with (ST. LOUIS-SAN FRANCISCO R. Co. v. STATE, ante, 106) wherein the ques |