ing facilities at the town of Apache were inadequate and insufficient for the needs of the people of Apache and vicinity. It was further established that the location of the switch now at Apache was on low ground, and was very inconvenient to shippers in loading and unloading cars on account of mud, and that the Commission further finds that the extension of the present switch in either direction or in both directions would not give the proper relief, and finds from the evidence that a switch track should be built on said ground, and along the east line of the right-of-way or depot grounds in the town of Apache, as indicated by a yellow line on the blue print submitted by the railway company, now on file in the office of the Commission.

It is hereby ordered by the Corporation Commission of the State of Oklahoma, that the defendant, the Chicago, Rock Island & Pacific Railway Company, build and operate a switch track in the town of Apache on the east line of the depot ground and right-of-way of said defendant as indicated by yellow line on blue print heretofore mentioned. That said switch shall be built and ready for operation as above indicated by the first day of August, 1908. It is so ordered.

Guthrie, Oklahoma, June 26, 1908.

The case was appealed to the Supreme Court of the State and on July 28, 1908, the case made and bill of exceptions were filed. February 5, 1909, Supreme Court rendered opinion as follows:

Filed January 16, 1909, W. H. L. Campbell, Clerk.)

IN THE SUPRE COURT OF THE STATE OF OKLAHOMA.

CHICAGO, ROCK ISLAND & PACIFIC RAILROAD CO., Plaintiff in Error.

VS.

THE STATE OF OKLAHOMA, THE APACHE MILLING COMPANY, AND THE MILLER GRAIN COMPANY, Defendants in Error.

No. 351.

I. The phrase, "such public service facilities and conveniences as may be reasonable and just," as used in section 18, article 9, of the Constitution, means everything incident to the general, prompt, safe and impartial performarce of the duties to the public at large, imposed by the State in the proper exercise of its police power upon transportation or transmission companies.

2. Section 18, article o, of the Constitution, does not require transportation or transmission companies, at their own expense to provide such equal facilities and conveniences between private persons or corporations as to overcome or equalize disadvantages caused. by dissimilarity of location.

(Syllabus by the Court.)

APPEAL FROM THE STATE CORPORATION COMMISSION

REVERSED.

C. O. Blake, H. B. Low, T. R. Beman, Dale & Bierer and Benj. F. Hegler, Attorneys for Plaintiff in Error.

Chas. West, Attorney General, and George A. Henshaw, Assistant Attorney General, Attorenys for Defendant in Error. Opinion of the Court by

Kane, J: The Apache Milling Company and the Miller Grain Company, of Apache, Oklahoma, filed two separate complaints before. the Corporation Commission, which by agreement were consolidated. The original complaint of the Apache Milling Company alleges in substance, that there is a neccessity for additional sidings or side tracks facilities upon the line of the Enid & Anadarko branch of the Chicago, Rock Island & Pacific Railway Company at its station, at Apache, Caddo County, Oklahoma; that the complainant is a corporation organized under the laws of Oklahoma, doing business at the city of Apache, and has been for more than five years last past, engaged in the manufacture and sale of milling products and buying and selling grain at its elevator. That on account of the volume of business transacted at the station of Apache, the side track shipping facilities offered by the railway company at said station are totally inadequate; that at said station there is what is called one house track, and one siding, the siding being the only one by which products or shipments can be received or loaded; that along said siding there are located numerous coal and storage houses, stock yards, elevators, cotton seed houses, etc., which take up practically all the loading ground on the east side of said siding, and that in wet weather, it is impossible to load ard unload cars on the west side of said siding; that at nearly all times said siding is almost entirely covered with cars in transit and otherwise, and that on account of inadequate shipping facilities, at said station, complainant has, during the last five years, been to a vast and altogether unneccessary outlay of money in handling its business. There are further allegations to the effect that the business of complainant from March 1, 1907, to March 1, 1908, amounted to two hundred and sixteen cars, and this volume will be maintained in the future years; that petitioner has for a long time urged said railroad company to furnish reasonable facilities, which it has refused, unless your petitioner would pay said railway company from twelve to fifteen hundred dollars, which in your petitioner's judgment, is unfair and unjust. The relief prayed for is that an order issue directing the railway company to build and maintain a side track up to and adjoining the mill and elevator and other property of the petitioner, all of which is adjacent to and adjoining the right of way of said company.

The complainant, the Miller Grain Company, alleges in substance, that it is a partnership engaged in the grain and elevator business at Apache, in the State of Oklahoma; that the elevator of said company is built on land adjoining the right of way of said railway company, about one hundred feet from the main switch of defendant; that prior to the building of said elevator, it applied to the railway company for permission to build on the defendant's right of way, which was refused; that said elevator had been built about

eighteen months; that during that time one hundred and thirty-five thousand bushels of grain have been handled and transferred to defendant's cars. That by permission of the railway company there is an elevator in the town of Apache, located on its right of way, which location gives it an advantage over complainants; that the complainants have applied to the railway company repeatedly, to have a switch built and constructed to its elevator, which the defendant has refused to do. Complainants say they believe they are entitled to every privilege and advantage given their competitor, and since their competitor was permitted to build on the right of way of said railway company, without cost to said elevator company, complainants. think they are entitled to build on the right of way without cost to them. The prayer for relief is that the commission make an order commanding said railway company to build and construuct a switch to complainants elevator, without cost to complainants.

After wards, the Apache Milling Company filed a supplemental petition, which alleges in substance; that they applied to the defendant railway company for permission to build an elevator in defend. ant's right of way, which was refused; that the railway company is a common carrier and has permitted another elevator in the town of Apache, to be constructed on the right of way, which gives them an advantage over complainants, and is an unjust and unfair discrimination in the loading and unloading of grain; that the complainants are compelled to haul their grair to the siding in wagons and scoop the grain from the wagons to the cars, at considerable cost; all of which prevents them from having fair competition with the elevator on the right of way. The relief prayed for is that the railway company be requuired to answer the charges herein and that after due hearing and investigation an order be made, giving the complainants such relief as the commission may deem necessary and just in the premises.

The part of the answer of the railway company necessary to notice here denies it has intentionally discriminated or is discriminating against any shipper or shippers, and admit that it is transacting business as charged by the complainants, as a railway company, and common carrier, and that its team track facilities have, owing to the growth and development of the town, and increase of business, become inadequate; that upon its attention being called to that fact, it had decided upon increasing its team track facilities at that point, so as to furnish adequate loading and unloading track room for the unloading of all commodities that may be shipped or received, and is willing to, and intends to, in the immediate future, so extend and increase its team track facilities as to furnish good, adequate accommodations for the business that may be reasonably expected, with convenience to the public and shippers of all business that may arise at said point. The railway company claims the right to proceed with the making of such improvements and extensions, in such manner as will best serve the interests of the shippers, not unduly favoring any shipper or shippers, and on such plans as may be approved by the civil engineers having charge of the construction and maintenance of its railway. It denies the right of any shipper or shippers to select a particular location, convenient for their individual purposes, and compel the defendant by complaint to the commission,

and proceedings before it, to accept such location and construct its additional tracks thereon, for the special convenience of such selecting shipper.

The reply to the answer alleges in substance, that the extension of the delivery track proposed by the railway company is located at an inaccessible place for the petitioners, and for the general public, and would not add any material convenience to the shipping public. That the place most accessible and most convenient to the shippers generally and those receiving freight, is on the east side of the right of way, and the same being on higher ground and not susceptible to mud and other impassable obstacles that now surround the track, being used for this purpose. The prayer to this reply is that the railway company be required to build its additional team tracks on the east side of the right of way. Upon the issues thus joined, the cause proceeded to trial.

It

After hearing the evidence adduced by the parties in support of their various contentions, the Corporation Commission made the following order: "On the 9th day of May, case coming on to be heard, the complainant was represented by Geo. A. Henshaw, Assistant Attorney General, and the defendant by C. O. Blake, Attorney, it was admitted during the progress of the trial by the defendant, that switching facilities at the town of Apache were inadequate and insufficient for the needs of the people of Apache and vincinity. was further established that the location of the switch now at Apache was on low ground and was inconvenient te shippers in loading and unloading cars on account of mud, and that the commission finds that the extension of the present switch in either direction or in both directions, would not give the proper relief, and finds from the evidence that a switch track should be built on said ground, and along the east line of the right of way or depot grounds in the town of Apache, as indicated by a yellow line on the blue print submitted by the railway company, now on file in the office of the commission.

"It is hereby ordered by the Corporation Commission of the State of Oklahoma, that the defendant, The Chicago, Rock Island & Pacific Railway Company, build and operate a switch track in the town of Apache, on the east line of the depot ground and right of way of said defendant, by yellow line on blue print heretofore mentioned. That said switch shall be built and ready for operation as above indicated, by the first day of August, 1908. It is so ordered."

From this order, the railway company appealed to this court, assigning various grounds of error. The principal contention of counsel is, that all the power the Corporation Commission possess in this particular case, is by virtue of the terms of section 33, article. 9, of the Constitution, which provides, in part, that: "Any person, firm or corporation owning or operating any coal, lead, iron or zinc mine, or any saw mill, grain elevator, or other industry, whener the Commission shall reasonably determine that the amount of busi-ness is sufficient to justify the same, near or within a reasonable distance of any track, may, at the expense of such person, firm, or corporation, build and keep in repair, a switch leading from such railroad to such mine, saw mill, elevator, or other industry; such railroad company shall be required to furnish the switch stand and

frog and other necessary material for making connection with such side track or spur, under such reasonable terms, conditions and regulations as the said Commission may prescribe, and shall make connection therewith. The party owning such line, saw mill, elevator, or other industry shall pay the actual cost thereof. "On the other hand, the Assistant Attorney General in his oral argument, and printed brief, maintains that it is quite clear that if the Corporation Commission had authority to make the order complained of, that such authority derived from section 18, article 9, of the Constitution, which provides, in part, that, "The Commission shall have the power and authority and be charged with the duty of supervising, regulating and controlling all transportation and transmission companies doing business in this state, in all matters relating to the performance of their public duties and their charges therefor, and of correcting abuses and preventing unjust discrimination and extortion. by such companies; and to that end the Commission shall, from time to time, prescribe and enforce against such companies, in the manner herein authorized, such rates, charges, classifications of traffic, and rules and regulations, and shall require thera to establish and maintain all such public service, facilities and conveniences as may be reasonable and just, which said rates, charges, classifications, rules, regulations, and requirements, the Commission ray, from time to time, alter or amend. All rates, charges, classifications, rules and regulations adopted or acted upon, by any such company, inconsistent with those prescribed by the Commission, within the scope of its authority, shall be unlawful and void. The Commission shall also have the right, at all times, to inspect the books and papers of all transportation and transmission companies doing business in this State, and to require from such companies, from time to time, special reports and statements, under oath, concerning their business; it shall keep itself fully informed of the physical condition of all the railroads of the State, as to the manner in which they are operated, with reference to the security and accommo lation of the public, and shall, from time to time, make and enforce such requirements, rules and regulations as may be necessary to prevent unjust or unreasonable discrimination and extortion by any transportation or transmission company, in favor of, or against any person, locality, community, connecting line, or kind of traffic, in the matter of car service, train or boat schedule, efficiency of transportation, or transmission, or otherwise in connection with the public duties of such comvany.' His contention, as stated in his brief, is, that, "The clause, and shall require them to establish and maintain all such public service facilities and conveniences as may be reasonable and just,' etc., and clause, 'from time to time make and enforce such requirements, rules and regulations, as may be necessary to prevent unjust or unreasonable discrimination and extortion by any transportation or transmission. company, in favor of or against any person, locality, community, connecting line, or kind of traffic, in the matter of car service, train or boat schedule, efficiency of transportation, or transmission, c. otherwise, in connection with the public duties of such company. The word 'Otherwise' in that clause, certainly covers all discriminations that may be the result of any action en the part of those in charge of a public service utility, whether such discrimination be direct or indirect; any favoritism that may grow out of