State ex rel. Board of Railroad Com'rs v. Duluth, W. & P. Ry. Co.

• Decision Date: 02 March 1910
• Citation: State ex rel. Board of Railroad Com'rs v. Duluth, W. & P. Ry. Co., 125 N.W. 565, 25 S.D. 106 (S.D. 1910)
• Parties: STATE ex rel. BOARD OF RAILROAD COM'RS v. DULUTH, W. & P. RY. CO. et al.
• Court: South Dakota Supreme Court

125 N.W. 565

25 S.D. 106

STATE ex rel. BOARD OF RAILROAD COM'RS v. DULUTH, W. & P. RY. CO. et al.

Supreme Court of South Dakota

March 2, 1910

Appeal from Circuit Court, Beadle County.

Proceedings by the State, on relation of the Board of Railroad Commissioners, against the Duluth, Watertown & Pacific Railway Company and another. Judgment for relator, and defendants appeal. Affirmed.

W. R Beggs and C. H. Winsor, for appellants.

S. W Clark, Atty. Gen., and P. W. Dougherty, Asst. Atty. Gen., for respondent.

McCOY J.

This proceeding was instituted in the name of the state of South Dakota, on the relation of the Board of Railroad Commissioners, against the defendants by the issuing of an order to show cause, in the form of an alternative writ of mandamus, requiring the defendants to show cause before the circuit court why a certain order of the said Board of Railroad Commissioners requiring defendant to operate one passenger train daily on their line of railroad extending between the cities of Huron and Watertown, had not been complied with. This order to show cause was based on a petition in the form of an affidavit made by P. W. Dougherty, Special Assistant Attorney General stating the facts in relation to the operation of defendant's passenger service between said cities, and also stating the procedure had before the said Board of Railroad Commissioners in connection therewith, and the making of said order by the said relators, and the refusal of defendants to comply therewith, and which affidavit or petition had annexed thereto as a part thereof copies of the procedure, findings of fact and conclusions of law, and the said order of said Board of Railroad Commissioners, and such affidavit concluded with a prayer for relief that an alternative writ of mandamus be issued commanding defendants to establish additional facilities in the way of passenger train service on the said line of road between the said cities of Huron and Watertown by operating one passenger train each way daily, and that defendant show cause before the court why a permanent writ of mandamus should not be issued to compel obedience to the said order of the Board of Railroad Commissioners. The defendants were brought into the circuit court by the service of said order to show cause, together with copies of said affidavit or petition and the said proceedings before the said Board of Railroad Commissioners annexed thereto, requiring defendants to appear before the said circuit court, at the courthouse in the city of Redfield, Spink county, S. D., on the 15th day of July, 1908, at the hour of 10 o'clock a. m. On the said return day defendants appeared by attorney, and moved to dismiss the said procedure, and defendants made and filed the following motion: "Now come the defendants above named, and move to dismiss the alternative writ of mandamus herein and all proceedings under it, for the following reasons: That it appears upon the face of the proceedings that neither the Railway Commission, nor any persons interested in the order set forth as a part of the proceedings, have applied in a summary way, by petition to the circuit court, in any county of this state in which defendants or either of them complained of has its principal offices, or in any county through which defendant's line of road passes or is operated, or in which the violation or disobedience of such order or requirement may have happened, alleging such violation or disobedience, as the case may be, and that said circuit court has not heard or determined the matter on any notice, either short or otherwise, to the common carriers, or either of them complained of, as the court shall have deemed reasonable, and that said court has not directed any notice to be served on such defendants, or any of its officers, agents, or servants, and no such notice has been served, and said circuit court has not proceeded without the formal proceedings and pleadings applicable to ordinary suits in equity, or in any other manner, to do justice in the...