128 P. 496 | Okla. | 1912
This is an original proceeding instituted in this court by plaintiff against the Corporation Commission, seeking a writ of prohibition to prevent the enforcement of certain portions of order numbered 482 of the Corporation Commission. On the 2d day of June, 1911, the Corporation Commission made an order whereby plaintiff is required to put in appliances for a grade crossing at Fourth avenue in the town of Stroud. The order also requires the plaintiff to remove certain of its stock pens situated where said avenue crosses plaintiff's railway tracks, and to make certain repairs in its depot platform, by building approaches thereto in safe condition and keeping the platform properly lighted and the premises free from stagnant water. From those portions of the order requiring plaintiff to establish a grade crossing and to remove its stock pens at Fourth avenue, plaintiff attempted to prosecute an appeal to this court; but upon motion of the Attorney General the same was dismissed. St. L. S. F. R. Co. v. Miller et al.,
It follows, under the rule announced by this court in St. L. S. F. R. Co. v. Love et al.,
The present attitude of the Attorney General's department is directly opposite to that assumed in St. Louis S. F. R. Co.v. Miller et al., supra, where the motion to dismiss was urged upon the theory that the order did not require a public convenience or facility to the patrons of the railway company and those portions of the public traveling on its line of railway. If the effect of the order were as now contended for by the Attorney General, it would be an appealable order and should have been reviewed by this court on appeal. After re-reading the record in St. L. S. F. R. Co. v. Miller etal., supra, and all the briefs in that case, as well as in this, we find no reason to recede from the construction of the order given by the Attorney General in his brief filed in the former case and adopted by the court. It is true that there is some language in the findings of fact of the Corporation Commission, made at the time the order was issued, that indicates that the commission may have had in view some convenience that would result from the order to that portion of the public who transact business at the depot of plaintiff; but the complaint filed with the commission, considered in connection with the evidence introduced at the hearing, makes it clear that what was sought and the primary purpose of the order was to require a *169 public crossing at the point named in the order as a crossing in the public street for the benefit of the traveling public generally, and that such is the requirement of the order made, which, under the authority of St. Louis S. F. R. Co. v. Loveet al., supra, the commission was without power to make, and may be restrained from enforcing by writ of prohibition.
But the writ will not issue, unless after notice of this decision to the Corporation Commission it shall be made to appear upon application and showing that there is a necessity therefor.
All the Justices concur.