Oklahoma Ry. Co. v. Powell

• Decision Date: 07 November 1912
• Citation: 127 P. 1080,33 Okla. 737,1912 OK 693
• Parties: OKLAHOMA RY. CO. v. POWELL ET AL.
• Court: Oklahoma Supreme Court

127 P. 1080

33 Okla. 737, 1912 OK 693

OKLAHOMA RY. CO. v. POWELL ET AL.

Supreme Court of Oklahoma

November 7, 1912

Syllabus by the Court.

The Corporation Commission ordered: "That on all days except Sundays, between the hours of six and eight a. m. and five-thirty and eight p. m., the defendant (appellant), the Oklahoma Railway Company, shall give transfers when requested by the passenger and that said transfers should be honored at any point on the line for which they are marked. Between the hours of six and eight a. m. when two cars meet on a parallel track, they shall stop for the transfer of passengers. Example: If a university car going west on Main street between Broadway and the terminal should meet a Capitol Hill or Stock Yards car, both cars shall stop to transfer passengers if they have any. Between six and eight a. m., as one car is entering the terminal from Main street, if at the same time another car is coming out on Main street, and passengers on the incoming car desire to transfer to the outgoing car, the same as to Grand avenue, both cars should be stopped until passengers can transfer. At all other hours of the day the rules now in force by the company may be enforced. Transfers given to passengers on the outside of the terminal station may be different to those given on the inside." Held, that the Commission had jurisdiction to make this order.

(a) Said order on review here is not shown to be unreasonable and unjust.

Additional Syllabus by Editorial Staff.

A street railroad franchise ordinance, providing that the city should not be considered as having waived or abandoned by the ordinance the right to make all needful police regulations with reference to the operation and maintenance of the road did not preserve to the city the right to prescribe rules and regulations to be observed by the railroad company, as those terms are used in Const. art. 9, § 18, providing that nothing contained in the section should impair the rights conferred by law on any city, town, or county, to prescribe rules regulations, or rates of charges to be observed by any public service corporation in connection with any service performed by it under a municipal or county franchise granted by such city, town, or county, so far as the service is wholly within the limits of such city, town, or county.

Appeal from the State Corporation Commission.

Proceeding by Mont R. Powell and others against the Oklahoma Railway Company for violation of an order of the Corporation Commission with reference to transferring passengers. Judgment for plaintiffs, and defendant appeals. Affirmed.

Shartel, Keaton & Wells and Asp, Snyder, Owen & Lybrand, all of Oklahoma City, for appellant.

Chas. West, Atty. Gen., and Chas. L. Moore, Asst. Atty. Gen., for appellees.

WILLIAMS J.

This proceeding seeks to review an order of the Corporation Commission, which is in words and figures as follows: "The Commission will issue the following order and should the same be abused by either the railway company or the patrons thereof, or any part thereof work unsatisfactory to the public, the commission will modify the same at any time upon application of either party, with a view of ultimately working out a satisfactory arrangement to all concerned. It is therefore ordered that on all days except Sundays, between the hours of six and eight a. m. and five-thirty and eight p. m. the defendant, the Oklahoma Railway Company, shall give transfers when requested by the passenger and that said transfers should be honored at any point on the line for which they are marked. Between the hours of six and eight a. m. when two cars meet on a parallel track, they shall stop for the transfer of passengers. Example: If a university car going west on Main street between Broadway and the terminal should meet a Capitol Hill or Stock Yards car, both cars shall stop to transfer passengers if they have any. Between six and eight a. m., as one car is entering the terminal from Main street, if at the same time another car is coming out on Main street, and passengers on the incoming car desire to transfer to the outgoing car, the same as to Grand avenue, both cars should be stopped until passengers can transfer. At all other hours of the day the rules now in force by the company may be enforced. Transfers given to passengers on the outside of the terminal station may be different to those given on the inside."

The appellant insists that (1) the Commission was without jurisdiction to make said order, and (2) that if it had such jurisdiction the order is unreasonable and unjust.

1. The provision contained in section 18, art. 9, of the Constitution (section 234, Williams' Anno. Const.), is as follows: "Provided, however, that nothing in this section shall impair the rights which have heretofore been, or may hereafter be, conferred by law upon the authorities of any city, town, or county to prescribe rules, regulations, or rates of charges to be observed by any public service corporation in connection with any services performed by it under a municipal or county franchise granted by such city, town, or county, so far as such services may be wholly within the limits of the city, town, or county granting the franchise."

On January 30, 1902, the mayor and council of Oklahoma City passed an ordinance (No. 281) entitled: "An ordinance authorizing the Metropolitan Railway Company, of Oklahoma City, its successors and assigns, to construct and maintain an electric railway system in the streets and alleys of Oklahoma City and regulating the construction, operation and maintenance thereof"--authorizing said railway company, among other things, to build and construct a system of electric street railways over and along the streets of said city, and defining the conditions of the exercise of the authority therein conferred. On February 8, 1902, the said railway company, in accordance with the requirements of said ordinance, filed with the city clerk of said city its acceptance of the terms and conditions thereof. On June 15, 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 appellant herein.

Section 6 of the said ordinance provides: "The mayor and councilmen of said city shall not be deemed by the granting of the privileges contained in this ordinance to have waived or abandoned the right to make any and all needful police regulations with reference to the operation or maintenance of said street car system, and shall at all times have the power to pass ordinances regulating the use of headlights, gongs and fenders and all other needful rules and regulations for the protection of the inhabitants of said city, in connection with the operation of said railway." At the time said ordinance was passed granting said franchise, said Oklahoma City, being a city of the first class, possessed no corporate authority to pass such ordinance. Such authority was then possessed only by incorporated towns. Section 512, Wilson's Rev. & Anno. Stats. of Oklahoma, subd. 20; South McAlester-Eufaula Tel. Co. v. State ex rel., 25 Okl. 524, 106 P. 962.

The Legislature of Oklahoma territory in 1903 passed an act entitled: "An act authorizing the organization of corporations for the construction of electric railways and defining the power of such corporations." Section 3 of said act, which was approved March 16, 1903, provides: "All licenses or franchises heretofore granted to any street railway company authorizing the construction and operation of an electric street railroad in any city of the first class in the territory of Oklahoma, and which have not become forfeited or lapsed by their terms, are hereby ratified, legalized and confirmed." Section 3, art. 4, c. 9, p. 141, Session Laws of 1903. Section 2 of said act (Session Laws of 1903, p. 141) also provides: "Such corporations in addition to the powers exercised by railroad corporations generally, may, with the consent of the authorities of any city or town in the territory of Oklahoma located upon or along its lines, construct system of street railways upon such streets and upon such terms and conditions as may be agreed upon between such corporations and such city or town, and may also accept lighting contracts with such cities or towns, to supply the said cities or the inhabitants thereof, with light or electric current for power or such railways or such corporation may also acquire by purchase or consolidation, plants, franchises, contracts, good will and other property of any existing street railway or lighting company."

It is insisted that section 6 of the ordinance hereinbefore set out has the effect, by virtue of said section 3 of the act of March 16, 1903, of granting such power to the municipality of Oklahoma City. It is not essential to determine whether section 3 of the act of March 16, 1903, in ratifying said franchise, could operate to have such effect by virtue of the ordinance, as we do not construe section 6 as conferring upon the authorities of the city of Oklahoma City the right to prescribe rules, regulations, or charges to be observed by said railway corporation in connection with any services to be performed by it for the patronizing public. Section 6 relates to the municipality's ordinary general power and authority over its streets and highways within its limits for the promotion of the health, safety, morals, and general welfare of its inhabitants. South McAlester-Eufaula Tel. Co v. State ex rel., supra; Dillon on Municipal Corporations (5th Ed.) vol. 1, § 237, p. 450; State ex rel. v. M. & K. Tel. Co., 189 Mo. 83, 88 S.W. 41. Such power every municipality may...