
    RAILROAD COMMISSION OF TEXAS v. RIO GRANDE & E. P. RY. CO.
    (No. 2811.)
    (Supreme Court of Texas.
    May 4, 1921.)
    Carriers <&wkey;>15 — Commission’s order permitting carrier’s participation in division of through rate on coal bought by it shipped from point on other line held valid.
    Under Rev. St. 1911, art. 6654, §§ 5, 6, an order of the Railroad Commission, permitting a carrier, shipping coal purchased by it from a point on another line to a point on its own line, to participate in a division of the through rate, held valid; such order applying only to shipments actually hauled to the point of destination, and not stopped at the junction point of the two lines. >
    
    Error to Court of Civil Appeals of Third Supreme Judicial District.
    Suit by the Rio Grande & Eagle Pass Railway Company against the Railroad Commission of Texas. Judgment for defendant was reversed and rendered by the Court of Civil Appeals (175 S. W. 1116), and defendant brings error. Judgment of Court of Civil Appeals reversed, and that of the district court
    affirmed.
    See, also, 173 S. W. 236.
    B. P. Looney, then Atty. Gen., Luther Nickels, Asst. Atty. Gen., C. M. Cureton, Atty. Gen., Walace Hawkins, Asst. Atty. Gen., for plaintiff in error.
    A. Winslow, of Laredo, and N. A. Rector, of Austin, for defendant in error.
   PIERSON, J.

Defendant in error, the Rio Grande & Eagle Pass Railway Company, owns and operates a line of railway from Minera to Laredo, where it connects with the line of- the Texas-Mexican Railway Company, running eastward through Pescadito to Corpus Christi. Defendant in error’s line also connects at Laredo with the International & Great Northern Railway Company. Prior to the transactions out of which this suit arose, the Railroad Commission of Texas had established a joint through rate of 80 cents per ton on coal from Minera to Pes-cadito, moving over the lines of defendant in error and the Texas-Mexican Railway Company. The local rates on the same commodity for the two roads were, for defendant in error, from Minera to Laredo, 65 cents per ton, and- for the Texas-Mexican Railway Company, from Laredo to Pescadito, 55 cents per ton. The Texas-Mexican Railway Company was the purchaser of coal at the mines at Minera on defendant in error’s line, and billed and shipped same over defendant in error’s line and its own via Laredo to Pesca-dito. The two roads had no agreement as to the division of the through rate, and the controversy arose between them as to the division thereof. In order to determine the controversy the Texas-Mexican Railway Company submitted the matter of the proper division of said rate to the Railroad Commission of Texas for its decision, and in its application to that body set out eight certain carload shipments of coal, which were shipped on through bills of lading from Minera to Pes-cadito, and that afterwards said shipments were distributed by it to certain points on its line; and after setting, out in detail the facts relating thereto, it concluded its application to the Commission in the following language:

“The Texas-Mexican Railway Company desires a ruling from your honorable body whether it is entitled to a division of the through rate upon company coal shipped from Minera, Texas, and which coal actually moves to Pescadito, Texas, and we would be pleased to have this ruling cover all shipments of company coal moving from Minera, Texas, to Pescadito, Texas.”

After a hearing by the Commission it entered the following order relating thereto:

“It is now, hereby, ordered by the Railroad Commission of Texas, that the revenue, accruing imder the freight rates applicable for the transportation of the shipments in question, the same being carload shipments of soft coal from Minera, Texas, to Pescadito, Texas, shall be divided between the carriers, participating in the haul thereof, in proportion to the local rates of said companies actually applying to and from the point of interchange, being Laredo, Texas, through which the shipments actually moved; the local rates to be used as factors, being as follows:
“For the Rio Grande & Eagle Pass Ry. Co. sixty-five (65) cents per ton.
“For the Texas-Mexican Ry. Co. fifty-five (55) cents per ton.”

This suit was brought by defendant in error in the district court of Travis county, before Hon. George Calhoun, district judge, for a writ of injunction to restrain the enforcement and to declare void the Railroad Commission’s order No. 1427, alleging that said order was unreasonable, unjust, and invalid because it authorizes a division pro rata upon a joint tariff rate to a railroad for hauling its own property over its own line. Defendant in error alleges:

“That the Railroad Commission of Texas had no power or authority to make, enter and promulgate said order in hearing No. 1427, dated February 24, 1914, for this: That no railroad in this state is entitled to any dividend pro rata for hauling its own property over its own line.”

Defendant in error further alleged that the said order of the Railroad Commission is unreasonable and unjust to it because the billing by the Texas-Mexican Railway Company of coal to Pescadito was a m'ere scheme to get a reduced freight rate, and that a large number of cars of coal so billed were in fact not hauled to Pescadito, but were stopped at Laredo, and tbat said railway company bad failed and refused to revise tbe billing of cars so stopped, or to advise defendant in error tbat said cars of coal bad been stopped at Laredo, and bad not been bauled to tbe billed point of destination, and tbat said billing was fraudulent.

Plaintiff in error denied tbat tbe order was unreasonable or unjust, and alleged tbat a long time prior to tbe making thereof tbe defendant in error bad voluntarily transported coal from Minera to Laredo and delivered tbe same to tbe International & Great Northern Railway Company under through rates, and bad been voluntarily accepting a proportion of such through rates.

On trial in tbe district court, judgment was rendered sustaining tbe order. In construing tbe order tbe district court held that it applies only to shipments of coal tbat actually moved in transportation from Minera to Pescadito, and only to tbe particular ears of coal mentioned in tbe complaint on which said order was made, and to all similar shipments from Minera, on through shipment to Pescadito, made subsequent to tbe promulgation and notice of said order.

The Court of Civil Appeals in its first opinion sustained tbe validity of tbe order and affirmed tbe trial court’s judgment, out on rehearing held that tbe Texas-Mexican Railway Company bad no right'to participate in tbe division of a through rate on its own line in tbe carriage of its own property, and therefore reversed and rendered the judgment of tbe district court.

The question here presents itself squarely upon tbe issue whether or not tbe Railroad Commission of Texas bad tbe right and authority to issue an order permitting a participation by tbe Texas-Mexican Railway Company in tbe division of a through rate on its own line of tbe transportation of its own property. Tbe other issues raised are only incidental to this one leading proposition.

It is not deemed necessary in this opinion to indulge in a general discussion of the authority and powers of tbe Railroad Commission of Texas under our Constitution and Statutes. This court has fully amplified that subject in an elaborate opinion by Chief Justice Brown in the ease of Railroad Commission v. Galveston Chamber of Commerce, 105 Tex. 101, 145 S. W. 573. Tbe principle is broadly laid down that unless an order of tbe Railroad Commission is shown to be clearly unjust and unreasonable it will be sustained, and tbat tbe burden of so showing is upon the’party attacking it. In this case, aside from the question stated above .as to tbe right of a railroad to participate in a pro rata dividend for hauling its own property over its own lines, there are no sufficient allegations or facts to justify a finding tbat said order is unfair or unreasonable. There is no complaint tbat tbe 80 cent -rate from Minera to Pescadito is not a just and fair rate, and there is no complaint tbat tbe division of tbe rate between those points.as made by tbe said order is not a proper division as applied to commercial shipments. In these respects tbe rate and its division are not challenged. It is only as applied to a division of rate on “company coal” tbat complaint is made, on tbe ground tbat tbe company shipper is not entitled to a division on its own coal; tbat said coal is at home when it reaches tbe junction point, Laredo. Defendant in error specially emphasizes tbe fact that quite a large number of tbe cars were not actually hauled through to Pescadito, but were stopped at Laredo. However, in sustaining the validity of the Commission’s order, tbe able trial judge held tbat it applied only to the cars and shipments that were actually hauled to Pescadito.

It is a well-established ruling of tbe Interstate Commerce Commission of the United States tbat a railroad company as shipper is entitled to tbe same consideration as a commercial shipper, even when tbe shipment moves in part over tbe rails of such railroad company. Its rulings are uniform tbat in such case tbe carrier is entitled to a division of the joint through rate, and tbat tbe division must be fixed by tbe same considerations which would determine divisions upon through commercial shipments in which tbe railroad had no interest other than tbat of carrier, and that it would be discriminatory, and therefore unlawful, for carriers to make other or different divisions of rates. 36 In-terst. Com. Com’n R. 1; 20 Interst. Com. Com’n R. 426. In tbe last named report tbat tribunal announces the rule as follows:

“A carrier * * * as a shipper over the lines of another carrier * * * may lawfully and properly take advantage of legal tariff joint rates applying to a convenient junction or other point on its own line, provided such shipments are consigned through to such point from point of origin, and are, in good faith, sent to such billed destination.”

These rulings of the Interstate Commerce Commission have been held valid and affirmed by the: Supreme Court of the United States. United States and Interstate Commerce Commission v. Butler County Railroad Co., 234 U. S. 29, 34 Sup. Ct. 748, 58 L. Ed. 1196; Interstate Commerce Commission and the United States v. Baltimore & Ohio Railroad Co., Pennsylvania Railroad Co. et al., 225 U. S. 326, 32 Sup. Ct. 742, 56 L. Ed. 1107, Ann. Cas. 1914A, 504.

The very purpose of our constitutional provision and the statutes thereunder creating tbe Railroad Commission of Texas was to create a tribunal through which railroad rates would be fixed and adjusted, and through which the railroad rates would be regulated so as to prevent discrimination, rebates, eta

Sections 5 and 6 of article 6664, R. S. 1911, read as follows:

“5. Bates for Connecting Lines. — The said Commission shall have power, and it shall be its duty, to fix and establish for all or any connecting lines of railroad in this state reasonable joint rates of freight charges for the various classes of freight and cars that may pass over two or more lines of such railroads.
“6. Commission to Bias when There is Disagreement. — If any two or more connecting railroads shall fail to agree upon a fair and just division of the charges arising from the transportation of freights, passengers or cars over their lines, the Commission shall fix the pro rata part of such charges to be received by each of said connecting lines.”

We think these articles of the statute may reasonably be construed to embrace, not only commercial shipments over two or more lines of railroad, but also shipments belonging to one of the carriers.

If a situation is artfully developed, by manipulating the billing and the haul, so as to produce an unjust discrimination or perpetrate a fraud, upon a proper showing the Railroad Commission doubtless would be able to find some means to defeat it; or upon a proper presentation the courts would grant appropriate relief. In this ease it is not so much the application of the Commission’s order, or abuses or fraudulent manipulations that might arise or be developed under it, that is the question for determination, but the validity of the order itself.

Of course, one not satisfied with a division of rate made by the Commission may contest same in any court of competent jurisdiction, as provided by articles 6657 and 6677, of Vernon’s Sayles’ Ann. Civ. St. 1914, as was done in this case; but the order to prorate would be held valid unless the attacking party showed that it was unreasonable and unjust.

Under the findings of fact of the trial court and under its application of the law, the destination named in the waybill, Pescadito, was in fact the real destination, and the order of the Commission applies only to shipments actually hauled to said point as their final destination. The fact that the railroad company, the owner of the coal, thereafter rebilled and shipped the coal elsewhere, could not affect the validity of the order of the Railroad Commission, nor control the merits of the shipments actually made and terminated under the waybill; nor could the fact that the Texas-Mexican Railway Company stopped some of the cars at Laredo, the junction point of the two roads, as alleged by defendant in error, invalidate the order or make it inoperative to the shipments actually hauled to Pescadito. And this would be true even if the Texas-Mexican Railway Company by stopping cars at Laredo, intended to take an advantage of defendant in error. The reasonableness and validity of the order could not depend upon a misuse of it by one of the party carriers.

A railroad not only has the right to participate in a division of rates on shipments of its own over its own lines, but it would work a discrimination among railroads and as against commercial shippers for it not to do so. In the first place, it is just as much a tax upon its resources and equipment for it to haul its own property billed from a connecting carrier as it is to transport a commercial shipment. In rate making and providing for and creating revenue these hauls and other operating expenses would necessarily be taken into account, and a failure to participate would affect the commercial rates. No participation, or a participation based on any other than rates fixed by the Commission for all hauls of the same commodity, would enable railroads to favor or discriminate against one another and commercial shipments. We will not elaborate further, as these results have been fully illustrated and demonstrated in the Interstate Commerce Commission and United States Supreme Court cases supra.

The terms of the order are in accord with the universal practice of railroads; are in accord with the rulings of the Interstate Commerce Commission, sustained by the Supreme Court of the United States; are in accord with the powers given the Railroad Commission of Texas under the Constitution and laws of Texas; and under the facts of this case are not shown to be unreasonable and unjust.

Therefore the judgment of the Court of Civil Appeals is reversed, and that of the district court is affirmed. 
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