In its brief submitting this cause to this court, appellant stated the issues thus:
"Therefore, the single issue presented in this case is whether, instead of the depot proposed, it should be, and can be, required to construct one of the same size, arrangement and convenience, but of material such as brick, stone, or cement, instead of frame."
This issue was brought about by appellant tendering, on the hearing before the commission, plans and specifications of a proposed frame depot at Tahlequah, alike in every respect to the depot subsequently ordered built by the commission of "brick, stone, or cement." In support of the issue as thus defined, appellant assailed the order of the commission as being unreasonable in requiring it to build of the material stated; but this court in the opinion sustained the order and, in effect, held that appellant had not fairly overcome the presumption that the same was prima facie just, reasonable, and correct. In other words, the commission, by rejecting the frame structure so tendered and ordering the same to be constructed of brick, etc., in effect held, inter alia, that a frame depot was not as adequate, in point of affording comfort and accommodation to the traveling public, as one constructed of brick, stone, or cement. In this the court in its opinion sustained the action of the commission, and we adhere to that opinion. On this rehearing, however, for the first time it is contended that, in ordering the structure built of said material, the commission exceeded its jurisdiction. This sends us to its grant of power. Sec. 26 of art. 9 of the Constitution provides:
"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 *Page 565 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."
The contention, in short, on the part of the commission, is that a depot at that point would be adequate, in point of comfort and accommodation, built of a certain material only, and, on the the part of appellant, that one built of another kind would be adequate; and it is for us to determine which one of these contending forces has, under said grant of power, the first right to exercise its discretion and determine this question of adequacy. It is of the utmost importance to know whether the commission has the right only to order in a depot at a certain point, and then leave it to the discretion or option of the appellant to build it of adobe, log, frame, brick, or whatever material it may choose, or whether the commission, in the first instance, as here, has the option to exercise its discretion and prescribe the material which will meet its idea of adequacy and comfort under all the facts disclosed in the record.
That said section of the Constitution vests this power in the commission we think is clear. In R. R. Com'rs. v. P. O.Central R. R. Co., 63 Mo. 269, 18 Am. Rep, 208, one Parsons and other citizens of Hartford applied to the Railroad Commissioners of that state, in a manner pursuant to law, representing that the public convenience and necessity required the establishment of a depot at Hartford Center upon the line of the defendant's road. After hearing, the commissioners determined that the prayer of their petition should be granted, and ordered the construction of a building particularly described by them, in a place designated by them, to be erected within a certain time. The company refusing compliance with the order, said commissioners, in their official capacity, in behalf of the state, presented their petition to the Supreme Court, setting forth the facts and praying appropriate action. Later, defendants appeared and pleaded the unconstitutionality of the act under which the proceedings were had, and an infringement of its charter; also, that the opinion of said commissioners was against the weight of the *Page 566 evidence, and that public convenience and necessity did not require the erection of the depot at the designated spot. The charter of the defendant company, among other things, provided.
"Said corporation * * * shall be bound at all times to have said railroad in good repair, and a sufficient number of suitable engines, carriages, and vehicles for the transportation of persons and articles, and be obliged to receive, at all proper times and places, and convey the same when the appropriate tolls therefor shall be paid and tendered * * * that the Legislature shall, at all times, have the right to inquire into the doings of the corporation, and into the manner in which the privileges and franchises herein and hereby granted may have been used and employed by said corporation, and to correct and prevent all abuses of the same * * * but not to impose any other or further duties, liabilities or obligations; and this charter shall not be revoked, annulled, altered, limited or restrained, without the consent of the corporation, except by due process of law."
After quoting the above, the court said:
"By sec. 6, the president and directors, under direction of the stockholders, have authority to exercise all the powers granted to the corporation for locating, building, completing, and running the road, and all such power as may be necessary and proper to carry into effect the objects of the grant."
The duty of the defendant, in respect to the subject-matter under consideration, was prescribed by that part of the charter which required it "to receive at all proper times and places, and convey persons and articles." The precise contention of the corporation was that the power to determine what were "proper" times and places, for the purposes stated, was discretionary with it, and that its decision was conclusive and final. On the part of the state, it was claimed that the duty thus enjoined was imperative and absolute, and that the state had the power, through its proper tribunals, to say whether it had been performed, and to enforce a performance if there had been none or only a partial one. In determining the question thus presented, the court said:
"By the same section that contains the provisions in question, the corporation is required 'to have its railroad in good repair *Page 567 and a sufficient number of suitable engines, carriages, and vehicles for the transportation of persons and articles.'
"The language of the charter is not, that it shall be optional with the corporation what number and kind of engines, carriages, and vehicles to furnish, at what times and places to receive and convey persons and freight, and what state of repair to keep the road in; or that it shall put in such rolling stock as it may deem 'suitable and sufficient,' build such depots as it may think proper, and keep the road in such repair as it may pronounce 'good'; but the meaning of the language is that the several things required to be done shall respectively be 'suitable and sufficient', 'proper' and 'good'; — in other words, that they shall in fact reasonably be of the description specified. The qualifying words do not change the rights of the parties under the charter. The duty of the corporation and the rights of the public in these respects would have been the same as they now are, if the charter had simply required the corporation to keep its road in repair, furnish it with rolling stock and receive and convey passengers and freight along the line of its road. Under such provisions of the charter, it would be the duty of the corporation to keep the road reasonably safe, provide such rolling stock, establish such depots, and operate the road in such a manner as would afford the public reasonable safety and dispatch in the transaction of business upon the road. The duties enjoined upon the corporation are ministerial duties, to do and perform what the public convenience and necessity reasonably required, in respect to the particulars specified. Nor is it within the discretion of the directors to determine ultimately what these public ministerial duties are, or the manner in which they are to be performed; to hold so would be to concede to the directors the power to promote the private interests of the corporation, by subverting the public objects to be subserved by the charter; the power both of determination and enforcement are necessarily vested in state authority.
"It has been repeatedly held that the general duty of municipal corporations 'to keep their highways in repair' is ministerial, and that a writ of mandamus lies to compel its performance, because it is a ministerial, in contradistinction from a discretionary duty. A fortiori, the duties enjoined under the eighth section of the charter of the defendant corporation are ministerial, since to their public character is superadded the obligation of performance, resting in contract. Indeed, our whole system of *Page 568 legislative supervision, through the railroad commissioners, acting as a state police over railroads, is founded upon the theory that the public duties devolved upon railroad corporations by their charter are ministerial, and therefore liable to be thus enforced. Dillon on Mun. Corp. 293;Uniontown v. Commonwealth, 34 Pa. 293; Hannah v. Covington, 3 Metc. (Ky.) 494."
— And overruled the exceptions to the order, and in the syllabus said:
"It is not within the discretion of the directors of a railroad company ultimately and conclusively to determine the manner in which the corporation shall discharge the public duties enjoined upon it by its charter; that power and duty are devolved upon the state tribunals."
If the commission in that case, pursuant to the comparatively slender grant of power authorizing it to enforce the provisions of the charter requiring the defendant "to receive at all proper times and places and convey persons and articles," had the right to lay down plans and specifications for a depot (which, of course, prescribe the structural material) and order it built according thereto and on a precise spot designated by the commission in its order, which it did, and in so doing was sustained by the Supreme court of that state — we see no reason why the commission in this instance under the liberal grant of power, supra, cannot do the same thing and also prescribe the structural material, to the end that, being charged with the duty of seeing that appellant shall provide and maintain a depot adequate for the comfort and accommodation of passengers, it may determine the question of adequacy in point of comfort and accommodation of the traveling public in advance of the undertaking.
This is not in conflict with what we held in St. L., I. M. S. Ry. Co. v. State, 28 Okla. 372, 111 P. 396. Here, is a question of jurisdiction. There, none was raised. Here, we have held it to be within the jurisdiction of the commission to determine in advance what would be the proper material with which to erect a depot adequate in point of comfort and accommodation to meet the reasonable requirements of the traveling *Page 569 public, and that it is not within the option of the appellant so to determine. There, only the reasonableness of the order was involved, and it was held, under all the facts and circumstances, that the company had offered to comply with all that could be reasonably exacted of it, and that the order of the commission, requiring it to remove an old structure and submit plans and specifications for a new and rejecting the tender of a proposed depot ample in every respect, was unreasonable.
As to the reasonableness of the order under consideration, we might say, in addition to what has been so ably said by Mr. Justice Williams, that a sense of comfort is received much through the sense of sight; that a community feels a sense of comfort and pride in a sightly depot closely akin to that felt by one in a sightly home. For that reason, the community, when interested, has the right, when, as here, the erection of a depot is contemplated, to have that sense of comfort in a measure gratified, bearing in mind that what in this respect would be adequate for one man or one community would not be so for another man or another community with higher tastes and aspirations. That the grant of power to the commission was limited to the bare necessities of the case, and did not contemplate that this comfort, as well as mere physical comfort, should be taken into consideration by the commission in discharging its duty of seeing that the company provide and maintain adequate and comfortable depots, which seems to contemplate one in keeping with and fairly demanded for the accommodation of the traveling public, under all the facts and circumstances in the record, or, as stated in St. L., I. M. S. Ry. Co. v. State, supra, which defines a facility to be such "as might be fairly demanded, regard being had, among other things, to the size of the place, the extent of the demand for transportation, the cost of furnishing the additional accommodation asked for, and to all other facts which would have a bearing upon the question of convenience and cost * * *" — we are not willing to concede. Rather are we of a contrary opinion, and that the business of appellant having *Page 570 become fairly remunerative, quoting from Louisiana Ark. Ry.Co. v. State, cited in the main opinion, we repeat:
"When such a point in the business of the road is reached, the right of the general public comes 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"
— under the grant of power vested in the commission by section, supra, of the Constitution.
Since the evidence alleged in the opinion to have been omitted from the record has since been supplied by a further reference to the commission, and it has thus been further shown that eight or ten towns, scattered over an area of about 30 miles, get freight at Tahlequah; that three or four summer resorts and club houses are near there on the Illinois River, with an average membership of 100 each, who live at Muskogee and towns in adjoining country, which bring large crowds during the summer months; that the receipts of the station, as shown by the annual reports, are:
Freight forwarded per month ............... $1,753.54 Freight received per month ................ 6,125.25 Passenger tickets per month ............... 3,181.11 Express receipts per month ................ 869.17 Express forwarded per month ............... 191.12 ---------
— making $1,060.29 express business per month, and that the railroad received 55 per cent. of the above amount, or a little over $500 per month from this source, and that the bill of lading, spoken of in the main opinion provides that:
"The carrier or party in possession of the property specified in the bill of lading shall not be responsible for damages or delay caused by the act of God, public enemy, the authority of the law, * * * nor for loss, damage or delay caused by fire occurring after forty-eight hours, exclusive of legal holidays, after notice of the arrival of the property at destination * * * the carrier's liability shall be that of a warehouseman only * * *"
— we are of opinion that the commission had not only the jurisdiction *Page 571 to make the order complained of, but that the same is stillprima facie just, reasonable, and correct.
HAYES, KANE, and WILLIAMS, JJ., concur; DUNN, J., concurs, but not without grave doubt, which is resolved in favor of the power sought to be exercised.