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with the Railway Commissioners of the State of South Dakota, and that afterwards the said complaint or copies thereof was furnished to the defendants herein, and each of them, and after waiting a reasonable length of time, and the said railway companies still failing and refusing to provide the necessary means of transferring as aforesaid, a hearing was ordered by the said Board of Railroad Commissioners at the city of Aberdeen, South Dakota on the 29th day of August, 1899, at which time and place each of the said defendants appeared by their attorneys; also there appeared before the said Board of Railway Commissioners certain citizens of Aberdeen and other citizens of the county of Brown and state of south Dakota, who were interested in the said matter, and the said parties offered testimony which was received by the said Board of Railway Commissioners, and the said Board of Railway Commissioners further made a personal inspection of the point of intersection of the several lines of intersection as aforesaid."

Entirely consistent with the foregoing allegations, the Board of Railway Commissioners thereupon made certain findings of fact, all of which are set out as a part of the complaint together with its final order as follows: "Now Therefore it is Ordered, That the Great Northern Railroad Company, and the Chicago & Northwestern Railroad Company, and Chicago, Milwaukee & St. Paul Railway Company so unite and connect their tracks at the city of Aberdeen, South Dakota, as to permit the transfer from the track of one such corporation to the other of loaded or unloaded cars designed for transfer upon both roads. Each of the foregoing orders to be complied with by May 1, 1900."

After alleging service of this order by copy upon each of the defendants and their failure and refusal to comply therewith, the complaint concludes as follows: "WHEREFORE, plaintiff demands that the said defendants and each of them be required forthwith to comply with the order of the Railroad Commissioners herein before set out, and that the plaintiff have all the remedies provided by law for the enforcement of said order in the premises, and that the Court enforce the order of the said Railroad Commissioners in the manner provided by law, and for such other and further relief in the premises as may be just."

The demurrer to the foregoing complaint, which was in all things sustained by the Court below, is as follows: "1. The said complaint does not state facts sufficient to constitute a cause of action against the defendants. 2. It is manifest upon the face of said complaint that the order of the relators therein set forth as the basis of this action is without force or effect for the following reasons, to-wit: 1. The relators had no power, jurisdiction or authority to make the same. 2. Said order does not specify or fix any particular location for the transfer track required; nor determine its point of beginning, intermediate route and ending; its length, angles, curves or its guage. It does not specify the kinds of rails, ties and ballast to be used; the kind of trestle-work, culverts and bridges, should any be necessary, or the amount of money to be expended for such track. It does not describe the particular land over which the said transfer track or tracks is to be built, nor who is the owner thereof, nor how the title to the same is to be

obtained for such purpose. It provides no tribunal to determine the differences arising between the defendants in regard to any of the foregoing matters, and is void for uncertainty. The plaintiff has no authority under the statutes to prosecute this suit."

By Section 15 of Chapter 110, Laws of 1897, the statute under which this proceeding was instituted, it is expressly made the duty of the commissioners, when anyone has complained as in this case, to forward the petition of the complainant "to the common carrier, who shall be called upon to satisfy the complaint, or to answer the same in writing within a reasonable time to be specified by the commissioners."

This requirement as to demand and notice is not satisfied by the mere act of "furnishing the defendants and each of them the complaint or copies thereof," without calling upon them to satisfy the same or to answer in writing within a specified time, considered reasonable by the commissioners, and in that regard the allegations of the complaint before us are insufficient.

Every doubt is removed as to the correctness of this view by Section 17 of the Act which provides that "Whenever an investigation shall be made by said commissioners, after notice as provided by Section 16 of this act, it shall be their duty to make a report in writing in respect thereto, which shall include the findings of fact upon which the conclusions of the commissioners are based, together with its or their recommendations or orders as to what reparation, if any, should be made by the common carrier to any party or parties who may be found to have been injured."

It is therefore obvious that the common carrier must be called upon to satisfy the initiatory petition of the complainant or to answer the samé in writing within a reasonable time to be specified in the notice before the investigation, culminating in the findings of fact and order made the basis of this action, can lawfully take place.

Proceeding being purely statutory the commissioners must bring themselves within its terms and allege the performance of every material condition precedent. Oswald v. Moran (N. D.) 77 N. W. 28; Old Colony & F. & R. Ry. Co. v. Commissioners, 11 Gray 512.

In the case of the Board of Railroad Commissioners v. Ry. & Nav. Co., 19 Pac. at page 706, the Supreme Court of Oregon say: "The jurisdiction of such commissions is not given by implication Commissions of that character are mere creatures of the statute, and possess no power except what the statute expressly confers upon them."

Even in tax proceedings, summary of necessity in their nature, notice is universally held to be essential to "due process of law." Evans v. Fall River County, 9 S. D. 130; Cooley on Taxation, page 363.

The authority upon which the Board of Railway Commissioners based its order that the defendants “do unite and connect their tracks at the city of Aberdeen, South Dakota," is contained in Section 39 of the Act as fol lows: "Such corporations connecting by intersection as aforesaid, shall also, whenever ordered by the Railroad Commissioners, so unite and connect the tracks of said several corporations as to permit the transfer from the

track of one corporation to the other of loaded or unloaded cars designed for transportation upon both roads."

The necessity of making the order specific as to the aggregate cost, character of material and particular location of the track to be constructed, including its length, angles, curves and the amount of money to be expended by each company in its construction, is very apparent from the far-reaching effect of the requirement and the evident fact that the several companies could not readily agree upon so many details immediately affecting their material interests.

Absolute certainty in the foregoing and other particulars would seem essential to an order enforcible by a proceeding in the nature of mandamus and especially so, when for each day's failure to comply therewith a fine of $25 may be imposed upon each company together with a forfeiture of its franchise or privilege to do business within this state.

Thus, in the case of the City of Roxbury v. B. & P. Ry. Co., 2 Gray 460, the Court say: "An order of county commissioners, passed on the petition of mayor and aldermen or selectmen, under St. 1842, c. 22, which determines that the raising of a highway at a place named, where it is crossed by a rail road on a level, so as to pass over the railroad, is necessary for the security of the public, without defining the height above the railroad to which the highway shall be raised, the grade of the ascent, the mode and material of the structure, or the time within which it shall be made, is too indefinite to be specifically enforced by this Court in equity."

So an adjudication by county commissioners requiring the construction of a highway across a railroad, which does not state whether the highway is to be carried over or under or on a level with the railroad, is void for uncertainty. Old Colony & F. & R. Ry. Co. v. Commissioners, supra.

All material details must be determined by the Board of Railroad Commissioners before they can compel different railroad companies to unite and connect their tracks at points of intersection. People ex rel City of Niagara Falls v. N. Y. Cent. & H. R. R. Co., 52 N. Y. Supp. 234.

As the trial court rightfully found the order under consideration to be too vague and indefinite to sustain an action for its enforcement, it is needless to consider the scope of statutory power granted the commissioners. The order appealed from is affirmed.

The Commissioners regret that the Supreme Court did not determine the duties, powers and authority of the Board of Railroad Commissioners, under existing statutes to order railway companies to construct suitable "Y's" or connecting tracks, and to enforce such order. They had hoped that these questions would have been determined in that case. Had the Court decided that the existing laws gave the Commissioners this authority, it would have been of great assistance to them in the future in like cases. Had the Court decided that the Commissioners had no such powers, the next Legislature could then have enacted proper laws granting to the Commissioners the necessary authority, as well as prescribing rules of procedure in such cases.

Summary of Annual Reports.

The annual reports made to this Commission by the various railroad companies operating in this state show a very gratifying increase in business over previous years and South Dakota has again contributed generously toward the earnings of these companies. It is to be regretted that nearly all of the railroad companies reporting to this Commission have found it impossible or impracticable to keep a separate account of their South Dakota business-of their gross earnings, operating expenses, and freight and passenger traffic movement within the state. If such statistics were available a comparison might be made with the business of these roads in other states and with

the business of former years in this state. Inasmuch as many of the reports of South Dakota business are computed on a "proportional" or "mileage" basis, or are based on the business local to South Dakota and are not uniform, the figures given purporting to show the earnings from traffic within the state of South Dakota are inaccurate and misleading.

Mileage of Railroad.

The total mileage of railroad within the state of South Dakota is now 2,980.45 miles, an increase over that reported last year of 23.68 miles. This new mileage includes the Bonesteel extension of the C. & N. W. line from Verdigree, Neb., a distance of 69.40 miles, 9.63 miles of which are within the state of South Dakota, and the extension of the C. M. & St. P. railroad from Eureka, South Dakota, to Linton, North Dakota, a distance of 49.15 miles, 14.05 miles of which are within the state of South Dakota. The total mileage of all railroad companies reporting to this Commission is now 40,780.73, an increase over that reported last year of 3,084.84. This increase is due largely, of course, to the absorption of other lines by some of the

roads operating in this state, notably the Chicago, Rock Island and Pacific.

Change in Ownership.

On February 16th, 1903, the Fremont, Elkhorn and Missouri Valley Railroad company leased its entire railroad property and franchises to the Chicago & Northwestern Railway company and on February 28th, 1903, sold its remaining interest therein to the same company, the purchasing company assuming the indebtedness of the Fremont, Elkhorn & Missouri Valley Railroad company. The report made to this Commission shows the operations of the latter company from July 1st, 1902, to February 16th, 1903, inclusive.

Capital Stock and Funded Debt.

The capital stock of all railroad companies reporting to this Commission is now $613,480,807.15, an increase over the previous year of $59,864,860. The funded debt is $844, 194,667.86, an increase over the year 1902 of $74,678,753.82.

Earnings, Operating Expenses and Surplus.

The gross earnings of these roads for the year ending June 30th, 1903, were $265,852,355.94, an increase over the previous year $49,035,823.56. The operating expenses were $161,306,579.25, an increase over the year 1902 of $29,966,914.54. The net earnings for the year 1903 were $104,545,776.69, and for the year 1902, $84,876,867.67, an increase for the year 1903 of $19,668,909.02. The surplus for the year of these lines was $18,804,955.74, an increase over the previous year of $6,119,528.73, and the total surplus of all these roads on June 30th, 1903, was $101,298,047.14.

Dividends and Taxes.

Dividends to the amount of $37,502,160.25 have been paid by these railroad companies during the past fiscal year, and taxes to the amount of $291,422.45 have been paid to the state and to the various towns, cities and counties within the state during the past year.

Freight and Passenger Traffic.

The total number of passengers carried by the entire systems of all the roads reporting to this Commission during the

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