This is an appeal from an order of the commission requiring the appellant to erect a depot at Tahlequah, to be constructed of brick, cement, or other material of that character, the cost of which would approximate $10,000. Appellant's depot at the city of Tahlequah, having been burned about May 22, 1910, has not been rebuilt, box cars, during the interval, being used for depot accommodations. The average receipts at said station per month since that time are about $7,800 for freight and $4,500 for passengers.
At said city a water and light system is in operation and a *Page 555 sewer system is under construction. These conveniences may reasonably be placed in the depot.
The site proposed, and to which there is no objection by the appellant, is about one-half mile from the business section of the city, the resident population of which is about 3,000 people.
There is no error assigned by the appellant as to the size or specifications required, other than as to the material to be used. The appellant contends that it ought to be permitted to construct a frame building at a cost of about $5,000, instead of a brick or concrete one of the same size, etc., which would cost approximately $10,000. Appellant, in its brief, says:
"Therefore, the single issue presented in this case is whether, instead of the depot proposed by the defendant, it should be, and can be, required to construct one of the same size, arrangement and conveniences, but of material such as brick, stone or cement, instead of frame."
Appellant further insists that "it is specifically found that the plans, as submitted by the company, are reasonably adequate so far as size and arrangements are concerned."
It is a valid exercise of the police power for a state to require railway companies to establish stations where the public necessity and convenience require it. Minn. St. L. R.R. Co. v. Minnesota, etc., 193 U.S. 53, 48 L. Ed. 614, 24 Sup. Ct. 396; Louisiana Ark. Ry. Co. v. State, 85 Ark. 12, 106 S.W. 960; Com. v. Eastern R. R. Co., 103 Mass. 254, 4 Am. Rep. 555; R. R. Comrs. v. P. O. Central R. R. Co., 63 Me. 269, 18 Am. Rep. 208.
In Atchison, Topeka Santa Fe Ry. Co. v. State et al.,23 Okla. 510, 101 P. 262, it was held by this court that, by virtue of the provisions of the Constitution, the Corporation Commission was empowered to require a transportation company, in the performance of its duties as a public service corporation, to establish and maintain a flag station at a certain point designated by the commission. The order of the commission in K. C., M. O. Ry Co. v. State et al.,25 Okla. 715, 107 P. 912, in requiring said railway company to establish a station at a designated point, *Page 556 was sustained on the theory that a depot was a facility. See, also, M., K. T. Ry. Co. v. State, 24 Okla. 339, 103 P. 613;M., O. G. Ry. Co. et al. v. State, infra, 119 P. 117.
Section 26, article 9, of the Constitution, provides as follows:
"It shall be the duty of each and every railway company, subject to the provisions herein, to provide and maintain adequate, comfortable and clean depots, and depot buildings, at its several stations, for the accommodation of passengers, and said depot buildings shall be kept well lighted and warmed for the comfort and accommodation of the traveling public; and all such roads shall keep and maintain adequate and suitable freight depots and buildings for the receiving, handling, storing and delivering of all freight handled by such roads."
Under the common law, a carrier was under no obligation to provide buildings for the receiving, handling, and storing of freight, or for the accommodation of passengers awaiting transportation. Nashville, C. St. L. Ry. Co. v The State,137 Ala. 439, 34 So. 401; People v. New York, Lake Erie Western R. Co., 104 N.Y. 58; 58 Am. Rep. 484, the syllabus of which is as follows:
"A railroad company is under no obligation to provide stations for passengers or warehouses for freight, unless expressly required by statute."
The reason for expressly imposing this duty upon every railroad company by the fundamental laws of this state is obvious. Section 18 of the Constitution empowers and authorizes and charges the commission with the duty of supervising, regulating, and controlling all railroad companies doing business in this state, in all matters relating to the performance of their public duties and in requiring them to establish and maintain facilities and conveniences. A depot being a facility, and the duty of every railroad company to establish and maintain such facility being imposed by the fundamental law of this state, the jurisdiction of the commission to require such railroad company to comply with such duty is, therefore, by express language contained in said *Page 557 section 18. The duty of the railroad company to establish and maintain a depot at this station is undoubted.
The order complained of involves the exercise of both legislative and administrative power. This the commissioners should be peculiarly fitted to do. We should ascribe to their findings such presumption. K. C., M. O. Ry Co. v. State etal., 25 Okla. 715, 107 P. 912.
There is no contention in the record or the brief that the business of this road at said station or the income from said line would not justify a sufficient expenditure from the current expense account to build such station of brick or cement. As to whether it is reasonably necessary to build the same of brick or cement, in order for it to be adequate and meet the needs of the public, as required by said section 26, that is a question of fact. Courts or legislative bodies, as a rule, take notice of matters of general knowledge and experience. Rice on Civil Evidence (1892), vol. 1, sec. 24 (d), p. 27; Walker v. Village of Ontario, 118 Wis. 571; Payne v.McCormick Harvesting Machine Co., 11 Okla. 318. When such knowledge in regard to building materials, to wit, wood, brick, cement, and stone, in connection with the prima facie presumption in favor of said order, is considered, we are not prepared to say that it can be found by this body to be unreasonable. K. C., M. O. Ry. Co. v. State et al.,25 Okla. 723, 107 P. 915; M., K. T. Ry. Co. v. State, 24 Okla. 337,103 P. 613.
The city of Tahlequah, in which this railroad depot is to be constructed, has been for over seventy years the capital of the Cherokee Nation. It was there, in convention on the 6th day of September, 1839, that the Cherokee Constitution was framed, probably the second written constitution framed and promulgated by this tribe or nation of Indians. (Removal of the Cherokee Indians from Georgia, by Lumkin — Dodd, Mead Co., N.Y. — p. 42, vol. 1.)
In addition, said city is also the county seat, or, as our Anglo-Saxon ancestors in the mother country would say, "the shire town," of Cherokee county. Also, the second Legislature *Page 558 of this state, recognizing this historic spot and the environments thereof, located there the Northeastern State Normal School. By reference to the map and the special federal census of 1907, we ascertain that this city is the center of a considerable area and population within this state formerly comprising the Cherokee Nation. It is also disclosed from the record that appellant's line of railway is the only railroad touching this city.
In Louisiana Ark. Ry. Co. v. State, 85 Ark. 12, 106 S.W. 960, it is said:
"So if, after considering all the facts and circumstances, giving due consideration to the determination of the Legislature and resolving every doubt in its favor, the court should be convinced that there was no public necessity for a station there, and that the result of enforcing the act would be to put the defendant to large expense without corresponding benefit either to it or the public, then the Legislature had no right to make such requirement * * *. The fact, if proved, that the cost of erecting and maintaining the station would be greatly in excess of and out of proportion to the revenues to be possibly derived from the business at that place does not of itself render the requirement unenforceable. That fact, however, would be important for the court to consider in determining whether or not the requirement was arbitrary and unreasonable, and whether or not there is any corresponding necessity for a station."
In Morgan's La. T. R. S. S. Co. v. Railroad Commission, 109 La., at page 262, it is said:
"The conflicting interests between the corporations and the state are safeguarded by the officers of the former, on the one hand, and by the railroad commission, on the other. The power, authority, and duty of the latter are not limited merely to matters affecting the public safety or the public health. They extend also to matters concerning public comfort and public convenience, and in the consideration of matters of comfort and convenience the number of persons who may be concerned or interested in some particular matter at some particular point enter as important factors in determining what is proper to be done. The commission cannot ignore the comfort and convenience of numbers of citizens on a line of travel or conveyance to base their action exclusively upon a consideration of the amount of dollars and cents which may be involved. As a matter of course, the commission *Page 559 could not, even under expressly delegated powers, act arbitrarily, in manner such as to trench upon the rights of corporations secured to them by law; but, within certain limits, though their action and orders are all subject to review, they are not all subject to reversal. In the present instance it cannot be claimed that the Southern Pacific Road, either in the operation of its line as a whole, or that part of it which falls within the limits of Louisiana, has not been and is not remunerative; nor can it be said that the Morgan Railroad Company is not a paying corporation. It is not claimed that the order complained of in this case, carried into execution, would have the effect of changing the situation in this respect. The utmost claimed is that a small sum, not exceeding five or six hundred dollars in amount, which the commission's order would cause to be expended at Berwick City, and the small amount which will be required to keep an agent at that place, will reduce their profits for a trifling amount. The objection seems to be aimed rather at the place where this money is ordered to be expended, and the inconveniences to which they will be subjected, than to any effect, or any general effect, which the expenditure will have upon the profits of the roads. It is not claimed, nor is there any evidence in the record which would tend to show, that the commission has, by its orders or rulings as to other places along the roads, in respect either to depots or other matters, brought itself within the limitation placed upon it of not trenching upon the plaintiff's legal rights. So far as we know, the order complained of may be the only one as to betterments which the commission has given. We do not think the point is made that, after the business of a railroad corporation has made it fairly remunerative, the commission is without general authority to direct that a portion of the 'surplus' profits (if that expression can be used) should be applied to the promotion of the comfort and convenience of the people along the line of road. When such a point in the business of the road is reached, the rights of the 'general public' come clearly into view, and it is not for the railroad, but for the commission, to determine how, in what way, and in what place this money is to be expended so as to best subserve their interest."
See, also, People v. President, etc., Delaware H. CanalCo., 52 N.Y. Supp., page 850, 165 N.Y. 362; Mayor and Aldermenof Worchester v. Bd. of R. R. Comm'rs., 115 Mass. 161; Crowellv. Londonberry, 63 N.H. 48. *Page 560
The question of removing or destroying a facility that can by additional expense be made adequate, and replacing it with one of a different material at an additional expenditure is not involved in this case. The expense of heating and insurance, as well as the benefit to the public, may be considered in determining as to the unreasonableness of the order. Such matters are peculiarly for the consideration of parties especially skilled and adapted for passing on such administrative or legislative matters. Though this may be construed as an item of expense, it is also a betterment, increasing the value of the road as a property and making it less expensive and easier to maintain and keep such station in repair.
If, when you consider the income from the passenger and freight business derived from this station, together with its present necessity, it should appear to be unreasonable to make such an outlay of expense in such improvement, then this order should not stand. For the appellant to assert that it has an arbitrary right to name the kind of material that it will build this station of, when it appears that it would be of more benefit to the public to build it of other material, and at the same time the appellant's interest would be conserved by having a permanent improvement maintained with less expense, we are not prepared to say that the order of the commission is unreasonable. Appellant is a public service corporation, existing and doing business in this state by virtue of its laws as to eminent domain, etc., and cannot, as a rule, be required to transport passengers or freight without a just return therefor. It is a reasonable exercise of the police power to require reasonable facilities, the amount of business, and income, and size and location of the place considered.
The commission had the authority to make the order. The only question is whether, under the record, its order was unreasonable. The burden to so show is upon the appellant. It has not sufficiently discharged the same.
In the findings of facts, as made by the commission, is the following: *Page 561
"The railroad company provides in its way-bills that if goods are left in the depot beyond a certain number of hours, that the owners of the goods become liable in case they are destroyed by fire and this is one of the reasons urged why the building should be of noncombustible materials."
This finding is challenged by the appellant in its brief. There is not one scintilla of evidence in the record as to any proof being offered as to such provision in any bill of lading. If the commission thought this was a proper matter for consideration in determining what its order should be, it should have had the matter introduced in evidence when the appellant was present and had an opportunity to answer as to such evidence. Under the express mandate of the Constitution, the appellant was entitled to notice. Hine v. Wadlington,27 Okla. 285, 111 P. 543. This notice is provided by the Constitution, that it might be present and meet the issue.
In the findings of fact, we also find the following:
"It further appears that it is the policy of the railroad company in other towns to build depots much more expensive than the one proposed at Tahlequah; that at Hugo a depot was built costing approximately $25,000, or possibly more."
This is also challenged in appellant's brief. There is not one scintilla of evidence in the record as to the cost or the size or character of the depot at Hugo. Neither the commission nor the court, as a matter of law, takes notice of such matters. If more care were given to putting the facts in the record as a predicate for the Commission's findings of fact, rather than embellishing the findings of fact by statements that are not borne out by the record, it would be easier to sustain the order. In cases where it becomes necessary to reverse the orders of the commission on account of want of care in developing facts, the fault is not with this court.
The public service corporations of this state are entitled to a just compensation for service performed. Likewise the state, as the sovereignty, has a right to require certain duties of such corporations on behalf of the people. It is the duty of this court, sitting in a reviewing capacity, whenever the facts in the *Page 562 case justify it, to see that such duty is performed.
The order appealed from is affirmed.
TURNER, C. J., and DUNN and HAYES, JJ., concur; KANE, J., concurs in the conclusion.
ON REHEARING. Opinion Filed May 9, 1911. On rehearing. Remanded, with instructions. W. F. Evans and R. A. Kleinschmidt, for appellant.