Corson, P. J.
In September, 1897, the citizens of Chamberlain and towns along the defendant’s railway, between that city and the city of Mitchell, presented a petition to the board of railway commissioners, in which they represented that the defendant company had neglected to furnish to the people along that line between Mitchell and Chamberlain, aforesaid, proper railway facilities, in that they neglected to run a passenger train between the two points mentioned, but in lieu thereof did run a mixed train, consisting of freight and passenger cars, and requested the said board to order the said defendant to institute regular passenger service on said line by running separate passenger trains thereon daily each way. The board of railway commissioners thereupon proceeded to hear the allegations contained in said petition, and the railway company appeared by its attorney, and presented reasons why it should not be required to run a separate passenger train on [285] that portion of its line. Upon such hearing the board found that said railway company neglected its duty by its failure to run a daily separate passenger train between the points mentioned, and made an order requiring said road to immediately proceed to establish a daily passenger train each way between the points named. This order the railway company refused to comply with, and thereupon the relators, in the name of the state of South Dakota, instituted proceedings under the provisions of chapter 110, Laws 1897, in the circuit court of the Fourth judicial circuit. In its petition the board set up the presentation of the petition, the hearing had by the board, and the order by it made, and prayed the court to enforce the said order. In said petition the said board set out what it claimed to be a report filed on the hearing before it by the railway com' pany showing the receipts of that company from the portion of the line of road before referred to, the expense of running a separate passenger train over the above line, the expense of running a mixed train, and in which it was claimed by such company that the business on that portion of the road would not justify the running of a daily separate passenger train. To the petition the defendant interposed an answer, in which it denies ■ ‘each and every allegation therein contained, except as hereinafter expressly admitted. (2) The defendant admits the allegations contained in paragraphs one, two, and three of said petition. (3) The defendant admits that on or about the 4th day of September, 1897, a petition was filed with the said board of railway commissioners in form set forth in paragraph four of the petition herein; and further admits that on or about the 4th day of October, 1897, the resolution in such paragraph was made and served on this defendant, and that a hearing [286] thereon was had on or about the 14th day of October, 1897; and that at said hearing defendant submitted, among other things, the estimates of expense of additional train service and passenger train revenue as alleged in plaintiffs’ complaint; and further admits that on or about the 4th day of November, 1897, the said board of railway commissioners made the findings and order as alleged in said paragraph four of plaintiffs’ petition, but expressly denies the truth of the matters set out in such petition, resolution, findings, and order of said railway commissioners.” The defendant further alleged that the business of its road would not warrant the running of a daily separate passenger train over the said line, and that the receipts from the passenger traffic on that portion of the line were insufficient co pay the expense of running a separate passenger train. The defendant set out various other matters in its answer, not necessary now to be noticed, in the view we take of the case. Upon the answer being filed, the plaintiff’s moved for judgment upon the pleadings, the motion was overruled, and from the order overruling the motion the appeal is taken to this court.
The important question involved in the present appeal is as to whether or not, under the pleadings and proceedings before the court, it was justified in refusing plaintiff judgment upon the pleadings. Respondent contends, in support of the court’s order, that its denials in its answer put in issue the material allegations of the petition, and therefore the court would not have been justified in entering judgment for the plaintiffs upon the pleadings. In this contention we think the respondent is correct. While, as will be noticed, respondent’s answer admits the fact that the petition was filed with said [287] board of railway commissioners as set forth in its petition presented to the circuit court, and that the resolution of the board set forth in the petition was adopted, and that at said hearing defendant submitted, among other things, the estimates of expense of additional train service and passenger train service, and admits that the said board of railway commissioners made the findings and order as alleged in its petition, yet it expressly denies the truth of the matter set forth in said petition, resolutions, findings, and order of said railway commissioners. Therefore, until proof had been offered establishing the facts so alleged in the said petition, the plaintiff was not entitled to judgment, under the ordinary rules of pleading. The admissions, as will be noticed, only go to the fact that such instruments were filed, and orders made, and no further.
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Corson, P. J.
In September, 1897, the citizens of Chamberlain and towns along the defendant’s railway, between that city and the city of Mitchell, presented a petition to the board of railway commissioners, in which they represented that the defendant company had neglected to furnish to the people along that line between Mitchell and Chamberlain, aforesaid, proper railway facilities, in that they neglected to run a passenger train between the two points mentioned, but in lieu thereof did run a mixed train, consisting of freight and passenger cars, and requested the said board to order the said defendant to institute regular passenger service on said line by running separate passenger trains thereon daily each way. The board of railway commissioners thereupon proceeded to hear the allegations contained in said petition, and the railway company appeared by its attorney, and presented reasons why it should not be required to run a separate passenger train on [285] that portion of its line. Upon such hearing the board found that said railway company neglected its duty by its failure to run a daily separate passenger train between the points mentioned, and made an order requiring said road to immediately proceed to establish a daily passenger train each way between the points named. This order the railway company refused to comply with, and thereupon the relators, in the name of the state of South Dakota, instituted proceedings under the provisions of chapter 110, Laws 1897, in the circuit court of the Fourth judicial circuit. In its petition the board set up the presentation of the petition, the hearing had by the board, and the order by it made, and prayed the court to enforce the said order. In said petition the said board set out what it claimed to be a report filed on the hearing before it by the railway com' pany showing the receipts of that company from the portion of the line of road before referred to, the expense of running a separate passenger train over the above line, the expense of running a mixed train, and in which it was claimed by such company that the business on that portion of the road would not justify the running of a daily separate passenger train. To the petition the defendant interposed an answer, in which it denies ■ ‘each and every allegation therein contained, except as hereinafter expressly admitted. (2) The defendant admits the allegations contained in paragraphs one, two, and three of said petition. (3) The defendant admits that on or about the 4th day of September, 1897, a petition was filed with the said board of railway commissioners in form set forth in paragraph four of the petition herein; and further admits that on or about the 4th day of October, 1897, the resolution in such paragraph was made and served on this defendant, and that a hearing [286] thereon was had on or about the 14th day of October, 1897; and that at said hearing defendant submitted, among other things, the estimates of expense of additional train service and passenger train revenue as alleged in plaintiffs’ complaint; and further admits that on or about the 4th day of November, 1897, the said board of railway commissioners made the findings and order as alleged in said paragraph four of plaintiffs’ petition, but expressly denies the truth of the matters set out in such petition, resolution, findings, and order of said railway commissioners.” The defendant further alleged that the business of its road would not warrant the running of a daily separate passenger train over the said line, and that the receipts from the passenger traffic on that portion of the line were insufficient co pay the expense of running a separate passenger train. The defendant set out various other matters in its answer, not necessary now to be noticed, in the view we take of the case. Upon the answer being filed, the plaintiff’s moved for judgment upon the pleadings, the motion was overruled, and from the order overruling the motion the appeal is taken to this court.
The important question involved in the present appeal is as to whether or not, under the pleadings and proceedings before the court, it was justified in refusing plaintiff judgment upon the pleadings. Respondent contends, in support of the court’s order, that its denials in its answer put in issue the material allegations of the petition, and therefore the court would not have been justified in entering judgment for the plaintiffs upon the pleadings. In this contention we think the respondent is correct. While, as will be noticed, respondent’s answer admits the fact that the petition was filed with said [287] board of railway commissioners as set forth in its petition presented to the circuit court, and that the resolution of the board set forth in the petition was adopted, and that at said hearing defendant submitted, among other things, the estimates of expense of additional train service and passenger train service, and admits that the said board of railway commissioners made the findings and order as alleged in its petition, yet it expressly denies the truth of the matter set forth in said petition, resolutions, findings, and order of said railway commissioners. Therefore, until proof had been offered establishing the facts so alleged in the said petition, the plaintiff was not entitled to judgment, under the ordinary rules of pleading. The admissions, as will be noticed, only go to the fact that such instruments were filed, and orders made, and no further.
But if there should be any question as to the correctness of this view, under the general rules of - pleading, we think there can be none under the rules of pleading in the law itself prescribing the powers and duties of the railway commissioners. Section 19 of the law reads as follows: ‘ ‘Whenever any common carrier as defined in and subject to the provisions of this act shall violate or refuse or neglect to obey any lawful order or requirement of the said board of railroad commissioners, it shall be the duty of said commissioners and lawful for any company or person interested in such order or requirement, to apply in a summary way, by petition, to the circuit court in any county of this state in which the common carrier complained of has its principal office, or in in any county through which its line of road passes or is operated, or in which the violation or disobedience of such order or requirement may happen, alleging such viola[288] tion or disobedience as the case may be; * * * and said court shall proceed to hear and determine the matter speedily as a court of equity, and without the formal pleadings and proceedings applicable to ordinary suits in equity, but in such manner as to do justice in the premises; and to this end such court shall have power if it think fit to direct and prosecute, in such mode and by such persons as it may appoint, all such inquiries as the court may think needful to enable it to form a just judgment in the matter of such petition.” It will be noticed by the reading of that section that the circuit court is required to hear and determine the matters speedily, and without formal pleadings and proceedings. This section is not found in the Iowa laiv, from which our railway act was sub stantially taken, but seems to be a new section, adopted by our legislature. And its evident object and purpose was to enable a court to revise and review the proceedings of the board of railway commissioners^! such manner as the court may deem promotive of justice in the premises. In this review and revision such court is not required to proceed in the ordinary' method, but may ascertain the facts upon which it may base a judgment in such manner as the court may direct. Under, this section, therefore, it is doubtful if it is proper for the court in any case to enter judgment upon the pleadings without first ascertaining, in such manner as it may deem proper, the facts and circumstances upon which the order of said board was made. We are of the opinion therefore, that, in either view of the case, whether treated as a proceeding at law or equity, and governed oy the ordinary rules belonging in such proceedings, or treated as a summary proceeding under' the statute, where the ordinary rules of pleading do not apply, iho court below [289] was clearly correct in overruling the motion for judgment, as the case was 'presented to it. The order of the circuit court is affiirmed.