Okla. City v. Okla. Ry. Co.

• Decision Date: 18 December 1907
• Docket Number: Case Number: 2
• Citation: 20 Okla. 1,93 P. 48,1907 OK 158
• Parties: OKLAHOMA CITY v. OKLAHOMA RY. CO.
• Court: Oklahoma Supreme Court

1907 OK 158

93 P. 48

20 Okla. 1

OKLAHOMA CITY v. OKLAHOMA RY. CO.

Case Number: 2

Supreme Court of Oklahoma

Decided: December 18, 1907

Syllabus

¶0 1. MANDAMUS--Public Franchise--Performance of Service. "When there is a grant and acceptance of a public franchise which involves the performance of a certain service, the person or corporation accepting such franchise can by mandamus be compelled to perform such service."

2. CARRIERS--Street Railways--Passes and Half Fare Tickets--Constitutional Provisions--Operation by Municipality. The provisions of section 13, article 9, of the Constitution do not prohibit a municipal corporation operating a street railway from furnishing transportation free to its policemen and firemen and United States mail carriers, and half-rate tickets to school children, and free transportation to children under a certain age whilst traveling with a parent or guardian.

3. SAME.--Operation under Franchise. Municipalities are not prohibited by the provisions of section 13, article 9, of the Constitution, from granting franchises for street railways with conditions contained therein for the carrying of policemen, firemen, United States mail carriers, and children under a certain age free, and for the furnishing of transportation to school children at a reduced fare, and when accepted by the grantee in the franchise are valid.

4. SAME--Anti-Pass Oath of Officers. Policemen, firemen, and United States mail carriers are not officers contemplated or included by section 1, article 15, of the Constitution.

5. Same--Provisions of Franchise--Validity. Street railways undertaking and contracting with municipalities by provisions contained in franchises granted by such municipalities, to carry policemen, firemen, United States mail carriers, and children under a certain age free, and also to carry school children at half the regular rate, are not absolved therefrom by section 13, article 9, of the Constitution.

Application by the city of Oklahoma City for writ of mandamus to the Oklahoma Railway Company, compelling performance of public service in accordance with terms of street railway franchise. Writ granted.

The relator is a municipal corporation and a city of the first class under the laws of the state of Oklahoma, and has been since the 1st day of January, A. D. 1902. On the 30th day of January, 1902, the mayor and council of said city duly passed an ordinance authorizing the Metropolitan Street Railway Company, among other things; to build and construct a system of electric street railways over and along the streets of said city, defining the conditions of the exercise of the authority therein Conferred to construct such street railway system, and regulating the operation and maintenance thereof, and imposing certain contractual obligations on said company. Thereafter, on the 8th day of February, 1902, the Metropolitan Street Railway Company, in accordance with the requirements of said ordinance, filed with the city clerk of said city its proper and written acceptance of the terms and conditions thereof. Thereafter during said year, the Metropolitan Street Railway Company constructed a system of railways in said city, and placed the same in operation, and on the 15th day of June, 1904, said railway company sold, conveyed, and assigned its said railway system, together with the franchise rights and privileges existing in its favor by virtue of said ordinance, to the Oklahoma Railway Company, the respondent herein, and said respondent, in order to procure the assent of the mayor and councilmen of said city to said transfer, filed the said transfer with the mayor and councilmen of said city, together with its written acceptance and assumption of all the duties and burdens imposed therein. Thereafter, on the 27th day of June, 1904, an ordinance was duly passed ratifying and confirming said transfer to said respondent, and authorized the extension and maintenance of said system of street railways on the streets and public thoroughfares of said city, said respondent thereby becoming subrogated to all the powers and rights in said original ordinance of the Metropolitan Railway Company, and thereby became bound to the performance of all the duties therein imposed upon said railway company.

As a part of the consideration for the granting of said privileges by virtue of said ordinance and for the use of the streets and public thoroughfares in said city by said railway company in the transportation of passengers from one point to another, it was provided in section 7 of said ordinance as follows. "The charges for transporting passengers to be exacted by said railway company shall not exceed the sum of five cents for one continuous passage over the said company's lines from points within the city limits to any other point in such city; such limit in price shall not prevent the exaction of any additional fare for return journeys, nor shall transfer slips be good for stop-over privileges. Tickets for the use of school children shall be furnished good for one continuous passage, in quantities not less than twenty rides at the rate of two and one-half cents each, under any reasonable regulation which the company may impose to prevent the abuse of such privilege or the use of such tickets by others than children under fifteen years of age in actual attendance on the public schools of said city. United States mail carriers, policemen, and members of the fire department, while in the discharge of their duties shall be carried free." Said respondent has refused, and does refuse, to issue and furnish tickets for the use of school children for one continuous passage in quantities of not less than 20 rides at the rate of 2 1/2 cents each, and has further refused to carry United States mail carriers, policemen, and members of the fire department when in the discharge of their duties, and children under five years of age when accompanied by parents or guardians, free; but is collecting of and from all children, mail carriers, policemen, and members of the fire department, and such children under the age of five years the full authorized fare under the terms of said franchise, five cents for each passenger carried, in violation of the terms of said franchise agreement.

It is further alleged by the plaintiff that the transportation of its policemen and firemen while in the discharge of their official duties by the said railway company is a valuable undertaking in behalf of said city, and that, if the said provision is not enforced against said railway company, it will work great hardship in requiring it to pay a large amount of money for the passage of its policemen and firemen over said railway while in the discharge of their several duties, to the great damage and injury to said city.

Relator further alleges and avers that said city has paid, and is paying, said respondent to transport said persons and for said reduced fares as a part of the rental or consideration of the use of the streets for said street railway system, and it was so understood and agreed that said railway company should render said service as a part of the consideration for the use of said streets and the privileges granted under said franchise, and that during the five years the said street railway company had been operating in said city numerous schoolhouses have been erected with reference to the line and routes of said respondent's railway system to promote the convenience of children of school age attending schools of said city, and that inhabitants thereof have built and located their homes and residences with reference to such routes, and with reference to the cheap and convenient line for their children to reach the schools of said city to which they might be assigned, and that the discontinuance of the sate of said school tickets will work a great hardship to the said relator and its inhabitants.

The respondent voluntarily entered its appearance, without the issuance of an alternative writ, and confessed the facts stated in said petition, but alleged as a matter of law that the relief demanded should be denied under the provisions of section 13, art. 9, of the Constitution of the state of Oklahoma, and submitted this case under such issue of law.

T. G. Chambers and John Embry, U. S. Atty., for relator.

John W. Shartel, for respondent.

WILLIAMS, C. J.:

¶1 (after stating the facts as above). "When there is a grant and acceptance of a public franchise which involves the performance of a certain service, the person or corporation accepting such franchise can by mandamus be compelled to perform such...