State ex rel. Tompkins v. Chicago, M. &. St. P. Railway Co.

Citations

• 11 S.D. 282
• 77 N.W. 104
• 1898 S.D. LEXIS 114

Syllabus

<p>1, Plaintiff filed a petition to compel defendant to comply with an order of the railroad commissioners directing defendant, to establish a daily passenger train between certain points on its line. The petition set up a petition by citizens along the defendant’s line to the railroad commissioners, the order made by the board, and also a report filed on the hearing by defendant showing the receipts from that portion of the road, and the expense of running a separate passenger and a mixed train over the line. Defendants answer admitted the filing of the petition, the hearing thereof, the estimate of the expense óf additional train service, and the order made by the board; but expressly denied the truth of the matters set out in the petition, resolution, findings, and order, and alleged that the business of its road did not warrant the running of a daily p'assenger train on that line. Held, that the denials in the answer put in issue all the material allegations of the petition, and judgment on the pleadings could not be entered for plaintiff.</p> <p>2. Under Laws 1897, c. 110, § 19, providing that, whenever a.ny common carrier shall neglect to obey a lawful order of the board of railroad commissioners, it shall be the duty of the board to apply in a summary way, to the circuit court to compel obedience to the same, and the court shall hear and determine the matter as a court of equity, without formal pleadings and proceedings applicable to ordinary suits in equity, hut in such manner as to do justice, and may make all inquiries needful, a judgment for petitioner on the pleadings is properly denied, since it is doubtful whether the court could in any case enter judgment without first ascertaining the facts upon which the order of the board was made.</p>