"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." Merrill on Mandamus, § 27.
Section 13 of article 9 of the Constitution of the state of Oklahoma reads as follows:
"No railroad or transportation company, or transmission company shall, directly or indirectly, issue or give any free frank or free ticket, free pass or other free transportation, for any use, within this state, except to its employees and their families, its officers, agents, surgeons, physicians, and attorneys at law; to ministers of religion, traveling secretaries for railroad Young Men's Christian Associations, inmates of hospitals and charitable and eleemosynary institutions and persons exclusively engaged in charitable and eleemosynary work; to indigent, destitute and homeless persons, and to such persons when transported by charitable societies or hospitals, and the necessary agents, employed in such transportations; to inmates of the National Homes, or State Homes for disabled Volunteer Soldiers, and of Soldiers' and Sailors' Homes, including those about to enter and those returning *Page 6 home after discharge, and boards of managers of such Homes; to members of volunteer fire departments and their equipage while traveling as such; to necessary care takers of live stock, poultry, and fruit; to employees of sleeping cars, of express cars, and to linemen of telephone and telegraph companies; to railway mail service employees, postoffice inspectors, custom inspectors, and immigration inspectors; to newsboys on trains, baggage agents, witnesses attending any legal investigation in which the railroad company or transportation company is interested, persons injured in wrecks, and physicians and nurses attending such persons: Provided, that this provision shall not be construed to prohibit the interchange of passes for the officers, agents and employees of common carriers and their families; nor to prohibit any common carrier from carrying passengers free with the object of providing relief in cases of general epidemic, pestilence, or other calamitous visitation; nor to prevent them from transporting, free of charge, to their places of employment persons entering their service, and the interchange of passes to that end; and any railroad, transportation, or transmission company or any person, other than the persons excepted in this provision, who grants or uses any such free frank, free ticket, free pass, or free transportation within this state, shall be deemed guilty of a crime, and the legislature shall provide proper penalties for the violation of any provision of this section by the railroad or transportation or transmission company, or by any individual: Provided, that nothing herein shall prevent the legislature from extending these provisions so as to exclude such free transportations or franks from other persons."
The only question that is necessary to be determined in this case is whether or not said section absolves the respondent from its obligation and undertaking to the relator to furnish the tickets to the school children under the terms named, and to carry the policemen, firemen, mail carriers, and certain children free, as stipulated in said franchise. If it be determined that said section does not affect said obligations and undertakings in said franchise, then the peremptory writ should issue.
Section 6 of article 18 of said Constitution reads as follows:
"Every municipal corporation within this state shall have the *Page 7 right to engage in any business or enterprise which may be engaged in by a person, firm or corporation by virtue of a franchise from said corporation."
It could not be successfully contended that, if the relator were directly engaged in the business of operating said street railway line, it could not carry said school children at' the rates and under the terms designated in said franchise, or its policemen and firemen, the mail carriers, and children under five years of age when accompanied by a parent or guardian, without charge, on account of the provisions of section 13, art. 9, supra; for the term "railroad" or "transportation company" or "transmission company," as used in said section, would not include the relator.
Section 1 of article 9 of the Constitution reads as follows:
"As used in this article the term 'corporation' or 'company' shall include all associations and joint stock companies having any power or privilege, not possessed by individuals, and exclude all municipal corporations and public institutions owned or controlled by the state."
Now, if the relator, being authorized to operate a street railway system in said city, would be permitted under the provisions of this Constitution to furnish tickets to the school children under the terms and prices hereinbefore named, and to carry its policemen and firemen, the mail carriers, and certain children free, then, why would not a contract entered into to that end by the relator be valid? The respondent herein is not furnishing "free transportation." Transportation and reduced rates to a certain class are in this case furnished not by the respondent. This is done by the city, the relator herein, which it has a right to do under the law.
In Re Grimes v. Minneapolis, Lyndale Minnetonka RailwayCompany, 37 Minn. 67, 33 N.W. 34, the court said:
"Grimes and wife conveyed to defendant certain land for the purposes of its railway, and in consideration of the conveyance defendant agreed to 'carry' said Grimes and wife, and any of their children, 'free of charge,' in the passenger cars run upon its road. Plaintiff is one of the children mentioned. Held, that *Page 8 the effect of defendant's agreement is to entitle the plaintiff to be carried free of charge. The fact that his father purchased and paid for this right of free carriage is not important. The plaintiff's right is as complete as if he had purchased and paid for it himself, and as a logical consequence, its infringement, whether tortious or otherwise, is a wrong to him for which he has his action."
In Re Erie Pittsburg Railway Company v. Douthet, 88 Pa. 245, 32 Am. Rep. 45:
"The agreement of the defendants was to give the plaintiff a pass over their railroad for himself and his family for his lifetime as the consideration of his release of the right of way over his land. The pass was given for a while, and then refused, and this action was to recover damages for their breach of contract."
The court held in the above case that the plaintiff was entitled to recover.
In Re Curry v. Kansas Colorado Pacific Company, 58 Kan. 18, 48 P. 583, the court said:
"The company cannot excuse itself upon the score of the interstate commerce act. That act forbids the gratuitous issuance of railway passes, not their issuance for a moneyed or other valuable consideration. The transportation in question was paid for by a conveyance of land; and does not, therefore, come within the prohibitive terms of the law behind which the company endeavors to shelter itself."
In Re Dempsey v. New York Central Hudson River RailwayCompany, 146 N.Y. 294, 40 N.E. 868, the court said:
"In considering this question, it must be conceded that, unless the contractual relations of the parties distinguished this case from that of the ordinary public officer, the issue of the annual pass would be illegal. This court has very recently held, in the case of a notary public, that, while it was not quite obvious that he was not in that class of public officers who should be prohibited from accepting privileges or favors from corporations, yet, as the language of the Constitution was plain and comprehensive the courts were bound to strictly enforce its provisions. People v. Rathbone,145 N.Y. 434, 40 N.E. 395, 28 L. R. A. 384. What, then, are the precise provisions of the Constitution which are claimed to be violated by the strict performance of this contract *Page 9 which was in force for nearly three years before the Constitution went into effect? 'No public officer or person elected or appointed to a public office under the laws of this state shall directly or indirectly ask, demand, accept, receive, or consent to receive, for his own use or benefit * * * any free pass * * * from any corporation, or make use of the same for himself or in conjunction with another.' Const. art. 13, § 5. It will be observed that a public officer is forbidden to receive and use a 'free pass'; it being the obvious intention of the Constitution to prohibit the public officers of the state from receiving from corporations privileges or favors, in other words gifts, that might improperly influence them in the discharge of their official duties. So, if this constitutional provision applies to the plaintiff as a public officer, it is due to the fact that he is accepting a 'free pass,' a gift from the defendant. This court more than 30 years ago held that the holder of a pass who had compensated the corporation therefor could not be regarded in any just sense as a gratuitous passenger. Smith v. N.Y. C. R. R. Co., 24 N.Y. 227. "
It was the obvious intention of the Constitution, not only to prohibit public officers of the state from receiving from corporations privileges or favors that might improperly influence them in the discharge of their official duties, but also that the general public should have equal facilities and conveniences of transportation without discrimination in the charges therefor.
Section 1 of article 15 of the Constitution reads as follows:
"Senators and representatives, and all judicial, state and county officers, shall, before entering upon the duties of their respective offices, take and subscribe to the following oath or affirmation: 'I, _____, do solemnly swear (or affirm) that I will support, obey, and defend the Constitution of the United States, and the Constitution of the state of Oklahoma, and will discharge the duties of my office with fidelity; that I have not paid, or contributed, either directly or indirectly, any money or other valuable thing, to procure my nomination or election (or appointment), except for necessary and proper expenses expressly authorized by law; that I have not knowingly violated any election law of the state, or procured it to be done by others in my behalf; that I will not, knowingly, receive, directly or indirectly, any money or other valuable thing, for the performance or non-performance of *Page 10 any act or duty pertaining to my office, other than the compensation allowed by law, and I further swear (or affirm) that I will not receive, use, or travel upon any free pass or on free transportation during my term of office.' "
Policemen, firemen, and mail carriers are evidently not officers contemplated by said section. Policemen and firemen are not required under the provisions of this Constitution to take this form of an oath; and hence it cannot be said that it was, or is now, against public policy for the relator, the municipality, to contract for the "free passage" of its policemen and firemen and the mail carriers. Nor is it against public policy for said relator to contract for a special rate for school children whilst traveling to and from school; for it is undoubtedly the policy of this state to support and maintain public schools. And so an undertaking for reduced fare to the end that the entire public may have the benefit of it for children whilst traveling to and from school is not violative of the spirit or the intention of section 13 of article 9 of the Constitution. Further, it is good policy for the United States mail to be delivered free, being approved not only by the federal, but also by the local, government, and the relator acting with a view of promoting free delivery did not contract against public policy, nor does the Constitution either in letter or spirit prohibit such undertaking which would neither reasonably tend to improperly influence such officers nor discriminate against the public; for the preservation of the peace, the attendance of children upon the public schools, and the free delivery of the United States mails are all conducive to the public welfare.
The reduced transportation for the children and the free transportation for the policemen and firemen, the children of certain age, and mail carriers does not come from the respondent railway company, but from the city. It is the result of the city's act just as much so as if it had by bonded undertaking raised the money and paid a moneyed consideration to the respondent corporation, as a result of which said corporation had undertaken and bound itself to carry the school children under the terms named *Page 11 in that franchise, and to carry the policemen, firemen, mail carriers, and certain children of a designated age free of charge; for the franchise was an undertaking granting privileges of great value.
We are of the opinion that this contract which existed between Oklahoma City, the relator herein, and the Oklahoma Railway Company, the respondent herein, was not only a valid contract prior to the adoption of this Constitution, but is also now a valid contract, and not in conflict with section 13 of article 9 of said Constitution, and that the former is entitled to the relief prayed for. Let the peremptory writ of mandamus issue.
All the Justices concur.