This is an appeal from a judgment and decree declaring a certain order of the board of railroad commissioners to be void and illegaL. The facts giving rise to the controversy are these:
Some time prior to April 29, 1954, plaintiff requested permission from the board of railroad commissioners to remove trains numbered 223 and 224, operating between Havre, Montana, and Williston, North Dakota, but the request was denied on the ground that the board was without jurisdiction over the matter.
On April 29, 1954, the Great Northern Railway Company discontinued the operation of those trains without approval by the board of railroad commissioners. On the next day the board issued its Order No. 2445 restoring train service between Havre and the Montana-North Dakota state line on the same schedules theretofore governing such operation. Thereafter the district court of Hill County on complaint of plaintiff issued a temporary restraining order restraining the defendants from enforcing Order No. 2445. After hearing and trial a permanent injunction was issued against the defendants enjoining the enforcement of the order upon the ground that it was void and illegal in that no notice was given or hearing held before the order was made. Judgment was entered accordingly and from this judgment the defendants have appealed.
In the complaint filed by plaintiff challenging the validity of the order, the plaintiff alleges in substance that it is operating the trains in question at a financial loss and that their operation is unnecessary and wasteful and places an unreasonable burden on it.
It should be noted that the order of the board did not install new service, it simply ordered reinstated service that theretofore had been abandoned without permission from the board.
Under R.C.M. 1947, section 72-119, the board “shall have *252the general supervision of all railroads * * * engaged in the transportation of passengers or property in this state, in all matters appertaining to the duty of said board and within its power and authority under the provisions of this act * * *” And section 72-123 provides, “The board shall have the power, and it shall be its duty, to compel any and all railroads subject hereto, to provide, maintain, and operate sufficient train service, both freight and passenger, for the proper and reasonable accommodation of the public, and to provide and maintain suitable waiting-rooms for passengers, and suitable rooms for freight and baggage at all stations.”
Order No. 80 of the board passed in January 1914 and in full force and effect ever since that time provides in part:
“* * * there shall be no curtailment or discontinuance of passenger train service between points within the State of Montana, except when such curtailment or discontinuance has been authorized by this Commission * * *
“Passenger train service as referred to herein is held to include ‘mixed’ (freight and passenger), and applies also to the stopping of trains at stations, whether regularly or on flag, and no stops, whether regular or irregular, shall hereafter be discontinued except upon the authority of the Commission.”
This order of the board is in line with the authorities throughout the country to the effect that a public utility may not discontinue its service without approval of the public service commission. This has been held in a great many states under statutes no broader than ours. Among the cases so holding are Southern Ry. Co. v. Public Service Commission, 195 S.C. 247, 10 S.E. (2d) 769; State ex rel. Daniel v. Broad River-Power Co., 157 S.C. 1, 153 S.E. 537; State ex rel. Caster v. Kansas Postal-Telegraph-Cable Co., 96 Kan. 298, 150 Pac. 544; Spring-Brook Water Co. v. Village of Hudson Falls, 269 App. Div. 515, 56 N.Y.S. (2d) 722; City of Cincinnati v. Public Utilities Commission, 137 Ohio St. 437, 30 N.E. (2d) 797; and see 73 C.J.S., Public Utilities, section 8, page 1001, and 43 Am. Jur., Public Utilities & Services, section 78, page 621.
*253This is not an “empty form” as was true in Brooks-Scanlon Co. v. Rairoad Comm., 251 U.S. 396, 40 S.Ct. 183, 64 L.Ed. 323, where after trial and hearing the commission ordered train service reinstated that had been discontinued with the assent of the railroad commission. In that case the order amounted to the institution of new service after all the facts were heard showing the extent of loss from the operations. The court properly ruled in that ease that the seeking of permission from the board to discontinue the service would have been an idle ceremony.
The order of the board complained of here simply requires the railroad company to continue the operation of its trains until it obtains approval of the railroad commission, upon a proper showing, to abandon such service. In such proceedings the burden of proof rests upon the railway company to make a showing warranting the abandonment of the service within the principles laid down by this court in Chicago, M., St. P. & P. R. Co. v. Board of Railroad Commissioners, 126 Mont. 568, 255 Pac. (2d) 346. The railway company may not, by abandoning the service without permission of the board of railroad commissioners and without a hearing, shift the burden of proof to the board to submit sufficient proof authorizing an order for the continuance of such service. Rather the proper procedure was followed' by the board here to compel the continuance of the service until the railroad company itself submits adaquate proof in appropriate proceedings that the public interest no longer requires the service within the principles of the above cited case and the cases therein cited.
It may well be conceded that if the board were ordering the institution of new or additional service without notice and without an opportunity to be heard the action and the statute authorizing it would be contrary to the state and federal Constitutions within the principles announced in the case of Chicago, M. & St. P. Ry. Co. v. Board of Railroad Commissioners, 76 Mont. 305, 247 Pac. 162. But as before stated the board here made no findings of fact and in fact heard no *254testimony that would sustain the institution of any additional service. It did not order new or additional service. All that has been done is to order the maintenance of the status quo until the railway company proceeds in the regular way provided by law and the regulations of the board to sustain the burden of proving a sufficient case justifying the discontinuance of the service in question.
The erroneous ruling of the board that it had no jurisdiction over proceedings to abandon the service so far as it affected intrastate transportation did not justify plaintiff in removing the trains. That order of the board was subject to review, R.C.M. 1947, section 72-125, and in any event it did not authorize the doing of that which the board ruled it had no jurisdiction over.
The obligation to have that order reviewed rested on the railway company, as a necessary step' to procure the consent of the board for the abandonment of the train service. To say that the board’s order was tantamount to a declaration that the railway company could do as it pleased about the trains, as stated in the dissenting opinion, is not justified in the face of the rule and regulation of the board made pursuant to the statutes above quoted.
Neither does the fact that the board changed its mind alter the consequences. The railway company also shifted positions in the case. At first it conceded that the consent of the board was necessary before it could discontinue the operation of the trains. It yielded too readily to the finding and conclusion that the board had no jurisdiction over the trains. Instead of contesting that ruling in the proper way, it hastened to' act without the consent of the board and this it had no right to do any more than it could raise its rates by its own unilateral action. Compare United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U.S. 332, 76 S.Ct. 373.
The court erred in holding the order of the board No. 2445 to be invalid. The judgment is reversed.
*255MR. CHIEF JUSTICE ADAIR, and MR. JUSTICES ANDERSON and BOTTOMLY, concur.