State v. Des Moines & Ft. Dodge Railway Co.

Granges, J. I. The consideration of the case-involves findings of fact as well as the determination of questions of law. It is importánt to have in mind the precise character of the litigation before us, and the legislation by which it is authorized. The orders of' the railway commissioners which this action is brought, to enforce, are two: (1) That the Des Moines & Ft.. Dodge Bailway Company shall rebuild and restore it® 1. Railroads: orders or railroad commissioners: enforcement. road between Tara station and Ft. Dodge; and (2) that the Chicago, Bock Island and Paci-6-c Railway Company shall, pending-the completion of the work by the Des. Moines & Ft. Dodge company, operate trains as. directed. The record presents separate questions as to-the validity of these orders, and that as to the rebuilding of the road will be noticed first. The district court found ‘ ‘that the order of the board of railroad commissioners * * * is reasonable and just, and that the defendants in refusing compliance therewith, are failing in and omitting the performance of public. — 428 — duties and obligations resting upon them.” The act •of the legislature giving to the court “power to enforce” such orders is chapter 133 of the Laws of 1884, and it provides: “If the court shall find that such rule, regulation or order is reasonable and just, and that in refusing compliance therewith said railway company is failing and omitting the performance of any public duty or obligation, the court shall declare a mandatory and perpetual injunction, compelling obedience to and compliance with such rule, order or regulation, * '* * •and may grant such other relief as may be deemed just and proper.” The act also provides that the proceeding for the enforcement of such order “shall be by equitable action, in the name of the state of Iowa, and shall be instituted by the attorney general whenever ■advised by the board of railroad commissioners that any railway corporation * * * is violating and refusing to comply with any rule, order or regulation made by such board,” etc. It is insisted by the appellants that the finding of the district court' that the order for the rebuilding of the road is reasonable and just cannot be sustained from the record, but that, on the contrary, it appears therefrom that such order is unreasonable and unjust. The statute clearly contemplates that only such orders as are reasonable and just shall be enforced. It does not contemplate that in all cases the reasonableness and justness of such orders should be found by judicial: determination of the courts, but only such as are violated, and then at the instance of the commissioners. 'Thus, if the commissioners refused to make an order, or when an order is made by them and observed by the company, its reasonableness or justness cannot be made a matter of investigation by the courts. It thus quite conclusively appears that, in so far as the public are concerned, the judgment of the commissioners is conclusive as to orders and regulations. This thought as to the legal significance of the statute is of force in con — 429 — nection with, the findings oí fact by the commissioners,, which we think to he of great, if not of controlling, importance on this branch of the case. They find that, the cost of rebuilding the road will be about sixty-five thousand dollars, and that of maintaining it thereafter about seven thousand dollars per annum, and say that it is very considerable compared with the traffic over this piece of line. They further say: ’“The leased road from Ft. Dodge to Tara may be so operated that the advantages, so far as train services are concerned, that would accrue to Ft. Dodge would be as fully realized as if this part of the track was rebuilt on its own line. * * * The rebuilding of the six miles from Tara to Ft. Dodge, while we think it can be legally required, as before stated, would be a burden on the railroad company, without corresponding benefits to the citizens of Ft. Dodge, provided, always, that adequate train service is afforded over the leased line, which can apparently be done, under the terms of the lease.” So far, then, as the facts are concerned the com- ¡ missioners find that the public may be as advan- i tageously served by a train service over the leased line ! as it would be by a service over the line if rebuilt, and in this finding, from our examination of the record, we- i fully concur. If, upon.the facts thus found by the] commissioners, they had refused the application for an order to rebuild the line of road, because to so order would have been unreasonable or unjust, the law would not permit the court to question the correctness of-such a finding of fact, nor to disturb the order based thereon. But the law would permit the court to, in effect, refuse an order to rebuild by refusing to enforce it, if in its- judgment the order was unreasonable or unjust; and hence to enforce such an order by a decree of the court, the court and the commissioners should concur in a finding of such facts; for it would indeed be a strange state of the law were we to hold — 430 — that, without such facts, the commissioners could make the order, but that the courts, because of the absence ■of such facts, should refuse to enforce it. _ Looking again to the record of the. commissioners, j and we find that the order for rebuilding the road is j based entirely on a naked legal obligation of the com-! pany to operate its trains,on its own line, rather than¡ a leased one; for they say: “The Des Moines & Ft." Dodge was organized, among other things, to maintain and operate, not to lease, a line of road from Des Moines to Ft. Dodge. It does not seem to the commissioners that the leasing of part of the line, and abandoning * their own line, is compliance with the laws of 1868, or with the purpose of the organization; and on this proposition they distinctly hold that this proposition of •complaint is sustained, and that the defendant, the Des Moines & Ft. Dodge railroad is legally bound to maintain and operate'a line of road'lying between Ft. Dodge and Tara.” It will clearly be seen that the commissioners have based their conclusion in granting the order entirely on a belief that the road must be maintained as to trackage, for the operation of trains, as it must have been to entitle the company to the grant of lands. But we do not think that such a conclusion necessarily follows. Conceding the rule, that to obtain the lands the company must both construct the road and operate its trains thereon into Ft. Dodge, it does not follow that there may not afterwards be such a change of circumstances that equity would not compel the maintenance of the particular track or the rebuilding of it if abandoned. So long as the citizens of Ft. Dodge, or perhaps the public, receive a train service between Des Moines and Ft. Dodge with the advantages it would have over the line if rebuilt, what are the grounds of complaint? -The company or its lessee is giving the train service to which the public is entitled, or maintains the facilities for giving such a service, as — 431 — fully as it could do with, the .road as originally built; and, in legal contemplation, it is maintaining and operating its line between the two cities. With the line rebuilt, the sufficiency of the service would be- a ■question for the commissioners, and we fail to see wherein it is less so with the leased line on which it now operates its trains under the terms of its lease, there being no limitation as to the number of such trains. What, then, are the results to follow the rebuilding of the road if we enforce the order? It is alone the expenditure of sixty-five thousand dollars, and an additional expenditure of seven thousand ■dollars annually for its maintenance. With this -expenditure, as both the commissioners and ourselves find, no advantage would result to the citizens of Ft. Dodge. The law in terms makes this proceeding ■an equitable one, and the reasonableness or justness of •an order based on such a state of facts is to be determined from equitable considerations. If the order is ■enforced, it is, as to its legal bearings, the equivalent of a decree for specific performance of a contract or •obligation, and equity does not lend its aid to enforce ¡such a performance where the party seeking enforcement is not injured or prejudiced by the neglect. It is under such circumstances that specific performance becomes oppressive, and is in the proper exercise of a discretionary power refused by the courts. A case quite in point is that of Chicago & A. Ry. Co. v. Schoeneman, 90 Ill. 258, where this language is used: “Conceding the abstract right of the appellees, it does not follow that a specific performance must be decreed. It is a settled principle that a specific performance of a contract is not to be decreed as a matter of course because a legal contract is shown to exist, but it rests entirely in the discretion of the court, upon a view of all the circumstances. The case cites Frisby v. Ballance, 4 Scam. 287; McCabe v. Crosier, 69 Ill. 501; Seymour v. Delaney, 6 Johns. Ch. 222. It — 432 — is further said in the opinion: “The effect of a specific performance, so far as now seen, would he to impose upon the appellants a large burden of expense, without any practical benefit to the appellee. It resting in a sound judicial discretion, it strikes us as a proper exercise of discretion for a court of equity to refuse its interference by way of a decree of specific performance to secure such a result.” The supreme court of the United States in Willard v. Taylor, 8 Wall. 557, has said: “In general it maybe said that the specific relief will be granted when it is apparent, from a view of all the circumstances of the particular case, that it will subserve the ends of justice; and that it will be withheld when, from a like view, it appears that it will produce hardship or injustice to either of the parties. It is not sufficient, as shown by the cases cited, to call forth the equitable interposition of the court, that the legal obligation under the contract to do the specific thing desired may be perfect.” Very many authorities are to the same effect, and we know of none announcing a contrary doctrine. The facts, then, are that a line of road is being maintained from Des Moines to Ft. Dodge, and much of the way between Tara junction and Ft. Dodge, but a few feet from the old line, with such facilities for an adequate train service as could be required over the line sought to be- replaced; and we think that so longas the defendants preserve such facilities, and in a way to be as amenable to the laws of the state for the regulation of its service as the line if restored would be, to require an expenditure of sixty-five thousand dollars to replace the line, without a practical advantage to any one, would be unreasonable and unjust, and that the law in a proceeding of this character does not demand it. Nothing in the original undertaking to construct the road and receive the lands and other aid indicates in any way that the company would not afterwards have the right to make such changes as its interest — 433 — might dictate, by placing its train service for some parts of the way on a line either purchased or leased, provided always that such a service is maintained as was contemplated when its obligation to the public was assumed. These considerations are with a view of the law that the defendant company is not released from an obligation to maintain a road and operate trains, in conformity to its original undertaking, between Des Moines and Ft. Dodge, and we think the present controversy is more over the manner than the fact of its doing so. If, instead of leasing from the Illinois Central company trackage for its trains, the defendant company had maintained the line in question, and had made a like lease to the Illinois Central, so that the two companies, would have operated this abandoned line as they do now the Illinois Central line, it would not be questioned but that it was maintaining its line in harmony with its obligation. Under such a state of facts, the sufficiency of the train service would be a question for the commissioners. The legal situation would hardly be different if the defendant company had, instead of leasing, purchased from the Illinois Central this short line, but a few feet distant most of the way from its own, and then given to the Illinois Central company a trackage lease like the one now held by the defendant company, provided in so doing it retained such a use of the line as would permit a train service in accord with its obligation to the public. The present situation as to results to the public is not different from the supposed cases. If we look to the substance rather than the shadow, or if we have in view the fruits that the public may properly derive from its undertaking with the • defendant company rather than the imposition of a useless burden, we have the key to an equitable solution of the question before us. Equity will, with a jealous care, protect the former. It will — 434 — turn aside as unworthy of its protection the applicant with no other claim than the latter. Some importance is attached to the fact that the lease with the Illinois Central Bailway Company will expire in 1892, and there is no assurance of a continued service beyond that time. Inasmuch as a line for the ,r operation of trains has been so far supplied, we do not j think an order to rebuild could be justified by an-' assumption that it will not be supplied in the future. We may rather assume that, if other facilities fail, a line will be constructed. Apprehensions are also expressed that a delay may involve a question of the action to restore the road being barred by the statute of limitations. As we hold that no cause of action has - yet arisen, because of a line being in effect maintained, there would seem no difficulty in that respect. II. The order of the commissioners also required the Chicago, Bock Island & Pacific Bailway Company, 2. -: -: -. as lessee of the Des Moin’es & Ft. Dodge Bailway Company, “to operate one passenger train a day each way between Ft. Dodge and Des Moines, and one freight train a day with passenger accommodations, each way from Ft. Dodge to Des Moines; and that in the operation of such train the time-table thereof be so adjusted as to best accommodate the business of the whole line and all stations- thereon.” The order of the commissioners was that it should be observed “pending the completion” of the work of rebuilding the line, which was ordered -to be completed by November 1, 1889. The decree of the district court was entered in March, 1890, and in some quite important particulars modified the order of the commissioners to make it more definite. The authority of the district court to make such changes is strenuously denied by the appellants, and the correctness of the proposition thus tendered involves the determination of a question of much difficulty, in view of the different provisions of the statute on the — 435 — subject of railroad control or regulation; and, inasmuch as” the order as to the operation of trains appears to be incidental to that for the construction of the line, and was by the commissioners’ order to be, in effect, only during the work of construction, which, under the judgment of this court, is not to occur, we think this order should also be treated as of no force, and the matter of future train service on the line be left to further inquiry and direction by the commissioners. The judgment of the district court is reversed.