DISSENT: Richards, C.J., and Stiger, J. This cause concerns a complaint, entered by the Train Service Legislative Association of Iowa, alleging that the Chicago, Rock Island and Pacific Railway Company is operating trains between East Des Moines and Gowrie and between Gowrie and Sibley with a lesser number of trainmen than is consistent for the safety of the employees and the public, and asking that the Iowa State Commerce Commission make an order requiring the use of an additional brakeman.
The original complaint was filed by the Brotherhood of Railroad Trainmen on November 19, 1932. Hearing was had thereon and, on February 23, 1933, relief was denied. On October 14, 1937, a supplemental complaint was filed, asking for a rehearing and for an order requiring the use of the additional brakeman. The rehearing was granted, a hearing was had, evidence was taken, and, on April 1, 1938, the Commission ordered the railroad to provide an additional brakeman between East Des Moines and Gowrie.
Appellees, as trustees for the railroad, commenced an action in the district court of Polk county, pursuant to section 7887 of the Code, 1935, to secure the vacation of the order, asserting that the order is illegal, unreasonable, inequitable, and unjust. The Commission admitted the allegations of the petition, except those which challenged the validity of the order, denied the latter, and prayed that the petition be dismissed, that the order be affirmed and that judgment be entered, pursuant to section 7889 of the Code, 1935, for costs and attorney fees.
At the trial, the record made before the Commission was introduced in evidence. From it the court determined that the order of the Commission is unreasonable, inequitable and unjust. Judgment was entered vacating the order, from which the Commission appeals.
The principal contentions of the parties, particularly appellants, relate to the extent of the jurisdiction of the court. To *Page 528 pass upon such contentions it is necessary to consider some rather fundamental features of the statutes applicable herein.
Sections 7874 to 7877, inclusive, of the Code, 1935, confer upon the Commission broad powers of supervision over railroads. Sections 7883 to 7887, inclusive, provide the necessary procedure to enforce or vacate an order made by it.
Sections 7883 and 7884, providing for enforcement of an order through equitable proceedings, were originally enacted as chapter 133 of the Acts of the Twentieth General Assembly. Considering the original statute and amendments thereto with the provisions as now codified, it is clear that the court is warranted in enforcing an order of the Commission only if it find that it "is reasonable and just, and that in refusing compliance therewith said railway company is neglecting and omitting the performance of any public duty or obligation * * *." [§ 7884, C., '35]
Section 7887, which provides for vacating an order on application of the railroad, was originally enacted as chapter 129 of the Acts of the Thirty-third General Assembly. Considering such statute as originally enacted with amendments thereto, it is clear that the court is empowered to vacate any order, "If found by the court, after due trial, not to be reasonable, equitable, or just * * *." [§ 7887, C., '35] This conclusion is the only logical conclusion to be drawn when we consider that the opposite finding is necessary to warrant enforcement of the order.
In the case of State v. Mason City Ft. D. Ry. Co., 85 Iowa 516, 524, 52 N.W. 490, 493, we state: "The order of the board, as a result of its investigation, is not the judgment or conclusion that binds the parties. It is merely by the law made the basis of an action wherein the rights of the parties are investigated and determined by the prescribed rules of judicial inquiry." When proceedings are had to enforce or vacate the order, the judicial inquiry by the court is whether the order is reasonable, equitable and just. Cases wherein this court determined that an order of the Commission was unreasonable, inequitable or unjust and accordingly denied enforcement of the same include the following: State v. Des Moines Ft. D. Ry. Co., 84 Iowa 419, 51 N.W. 38; Smith v. Chicago, M. St. P. Ry. Co., 86 Iowa 202, 53 N.W. 128; State v. Chicago, M. St. P. Ry. Co., 86 Iowa 304, 53 N.W. 253; *Page 529 State v. Des Moines K.C. Ry. Co., 87 Iowa 644, 54 N.W. 461.
In the case of State v. Des Moines Ft. D. Ry. Co., supra, we state (page 429 of 84 Iowa, page 41 of 51 N.W.) as follows:
"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 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 * * *."
Again (page 431 of 84 Iowa, page 42 of 51 N.W.) we state:
"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."
In the case of State v. Chicago, M. St. P. Ry. Co., supra, in refusing to enforce an order requiring installation of an overhead crossing, we state (page 309 of 86 Iowa, page 254 of 53 N.W.) as follows:
"Of course, all railroad crossings at grade are dangerous. Some are more dangerous than others, owing to obstructions to a view of approaching trains by reason of cuts, trees, or other obstacles; but there is no competent evidence in this case showing that there is more danger at this crossing than at any other situated at the end of a cut. We do not determine that there may not be cases where an overhead crossing may properly be required, but, in view of the fact that grade crossings are the *Page 530 rule in this state, it would require a much stronger case than is here presented to warrant this court in holding that such an order `is reasonable and just.' To authorize such a finding, there should be some certainty in the evidence instead of random statements, founded upon the mere opinions of witnesses that the open crossing is very dangerous. In our opinion, there is nothing so unusual or extraordinarily dangerous in this crossing as to require the defendant to construct and maintain a bridge which the evidence shows must span a cut fifty-seven feet wide, and be replaced, if built of wood, every ten years, by reason of the natural decay of the material of which it is built."
In the case of Smith v. Chicago, M. St. P. Ry. Co., supra, in refusing to enforce an order requiring construction of a connection between two railroads, we state (86 Iowa 202, 210, 53 N.W. 128, 130) as follows:
"The commissioners found that there was no commercial necessity for it, and we are justified by the language of their decision in concluding that in their opinion the connection should not be ordered if not required by the statute. It is not the policy of the law, however, to require the connection in question, and if we may rely upon the showing made by the record, it would be oppressive and unjust."
In the case of State v. Des Moines K.C. Ry. Co., supra, we state (87 Iowa 644, 647, 54 N.W. 461, 462) as follows:
"The income of the road did not warrant the maintenance of expensive stations, but demanded the strictest economy. It was thought by the management that, by establishing two stations at points nearer the junction of the other roads named, the defendant would be able to control more traffic, by being nearer to the inhabitants residing in the vicinity of Osceola and Van Wert. It appears to us that the owners of the road should not be interfered with in the management of their property, including the location of their stations, where, as in this case, there is no competent evidence that any patron of the road has been deprived of reasonable facilities for transacting business with the defendant."
The record, that is the basis for an action in court, is stated *Page 531 in the case of State v. Chicago, M. St. P. Ry. Co., 86 Iowa 641, 652, 53 N.W. 323, 326, as follows:
"While technical precision should not be required in proceedings before the board of commissioners, yet, in view of the provisions of the statute, and their manifest intent, it is necessary that the record before the board should show upon what complaint, or state of facts, they were called upon or proceeded to exercise the power with which they are vested; and it is upon such complaint or state of facts that the district court must act. In other words, it is the case, as made before the commissioners, that the court is to pass upon, and determine whether the order made is reasonable * * *."
The complaint herein made to appellants merely asserted that appellees operate their trains between East Des Moines and Gowrie with a lesser number of trainmen than is consistent with considerations of public safety. Pursuant to such complaint the Commission undertook to fix the number of the train crew for such trains. Appellees' refusal to comply with such order would have to be "neglecting and omitting the performance of any [a] public duty or obligation" to warrant enforcement of the order pursuant to section 7884 of the Code, 1935. We are unable to find any neglect of such public duty or obligation that would require enforcement of this order.
The testimony in the record, from which the Commission undertakes to determine that, in the operation of appellees' trains between East Des Moines and Gowrie, the use of an additional brakeman is desirable, was chiefly opinions and conclusions, based upon contingencies which apparently have not arisen, because the record is undisputed that at no time has there been an accident on this run which resulted in either damage to property or injury to any person.
In the case of State v. Chicago, M. St. P. Ry. Co., supra (86 Iowa 304, 53 N.W. 253), we recognized that there must of necessity be some element of danger in connection with the operation of a railroad and refused to enforce an order that was based solely upon opinions that a particular crossing was dangerous. We held that there must be some certainty in the evidence. In State v. Des Moines Ft. D. Ry. Co., supra (84 Iowa 419, *Page 532
51 N.W. 38), we held that, in determining whether an order of the Commission is reasonable and just, the court will determine the question from equitable considerations and that it will not lend its aid where the party seeking enforcement is not injured or prejudiced by the alleged neglect. In Smith v. Chicago, M. St. P. Ry. Co., supra (86 Iowa 202, 53 N.W. 128), we recognized that the duty of the railroad ordinarily must be one that is imposed by statute. In State v. Des Moines K.C. Ry. Co., supra (87 Iowa 644, 54 N.W. 461), we held that the owners of the railroad will not be interfered with in the management of their property if there is no competent evidence of any patron being deprived of reasonable facilities.
In view of the foregoing decisions, and the principles therein applied, we hold that the court properly determined that the order of the Commission is unreasonable, inequitable and unjust. The court is given express power and authority to determine whether appellants' order is "reasonable, equitable or just", before the order can be enforced. If the court does not so find, it has the authority and the duty to vacate the order. The trial court determined that the order of the Commission is unreasonable, inequitable and unjust. There is abundant support for such finding. The order was properly vacated.
The judgment is affirmed. — Affirmed.
SAGER, BLISS, HALE, and HAMILTON, JJ., concur.
RICHARDS, C.J., and STIGER, J., dissent.