
    TRINITY & B. V. RY. CO. et al. v. EMPIRE EXPRESS CO.
    (No. 2979.)
    (Commission of Appeals of Texas, Section A.
    Feb. 23, 1921.)
    Error to Court of -Civil Appeals of Fifth Supreme Judicial District.
    Action by th^ Empire Express Company against the Trinity & Brazos Valley Railway Company and another. Judgment for plaintiff was affirmed by the Court of Civil Appeals (173 S. W. 217), and defendants bring error.
    Reversed, and judgment rendered for defend-' ants.
    N. H. Lassiter, of Ft. Worth, Morrow & Morrow, of Hillsboro, and Baker, Botts, Parker & Garwood, of Houston (H. M. Garwood, of Houston, Jesse Andrews, of Kansas City, Mo., and Walter H. Walne, of Houston, of counsel), for plaintiffs in error.
    Collins & Cummings, of Hillsboro, J. E. Gilbert, of Dallas, and Clark & Leddy, of Gaines-ville, for defendant in error.
   SONFIELD, P. J.

The Empire Express Company, defendant in error, brought this action against the plaintiffs in error, seeking the issuance of a writ of mandamus requiring the railway company to permit defendant in error to do an express business over the railway company’s lines in Texas, to enjoin the American Express Company from interfering with defendant in error in conducting such business, and seeking recovery of damages from defendant railway company. The suit was based upon the act of 1887, constituting articles 6616 and 6617, R. S. 1911.

Plaintiffs in error demurred generally to the petition, and by special exceptions and in their answers questioned the validity of the act- of 1887. Defendant in error filed a supplemental petition, containing a general demurrer and numerous special exceptions to the answers of plaintiffs in error.

The court overruled the general demurrer and all exceptions, save one, urged by plaintiffs in error, and sustained all of the exceptions of defendant in error to the answers of plaintiffs in error. Damages being waived, the court, without hearing any evidence, entered a decree enjoining the American Express Company as prayed for, and granted the writ of mandamus requiring defendant railway company within 20 days to furnish defendant in error the same facilities for the conduct of an express business over its railway lines as furnished to the American Express Company under the terms of the contract between defendant railway company and the American Express Company. On appeal, the judgment of the Court of Civil Appeals was affirmed. 173 S. W. 217.

This case, for the purpose of submission, was consolidated with that of Missouri, Kansas & Texas Railway Co. of Texas and American Express Co. v. Empire Express Co., 221 S. W. 590, and is controlled by the disposition made Of that case. The points differentiating the two cases are immaterial, and need not here be pointed out.

We are of opinion that the judgment of the Court of Civil Appeals should' be reversed, and judgment here rendered „ for plaintiffs in error.

PHILLIPS, C. J.

The judgment recommended in this case by the Commission of Appeals is adopted, and will be entered as the judgment of the Supreme Court.  