
    GALVESTON, H. & S. A. RY. CO. v. WOOD, HAGENBARTH CATTLE CO.
    (Supreme Court of Texas.
    May 1, 1912.)
    1. COMMERCE (§ 33) — Interstate Commerce.
    If, when a shipment originated, its final destination was without the state, and it moved thereto in an uninterrupted journey, without delivery to the consignee within the state, it was an interstate shipment.
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 26, 81; Dec. Dig. § 33.]
    2. Commerce (§ 33) — Interstate Commerce.
    If a shipment of cattle was delivered to the consignee within the state, it was an intrastate shipment, though the shipper intended, at the time of shipment, that it should ultimately be transported to a point outside the state.
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 26, 81; Dec. Dig. § 33.]
    3. Carriers (§ 202) — Live Stock — Actions for Overcharge — Evidence.
    In a shipper’s action against a railroad company to recover an alleged overcharge, on the ground that the shipment was an intrastate shipment, evidence lield to show that the shipper intended to ship the cattle through to a point outside the state by an uninterrupted journey, using plaintiff’s line to a point within the state and another road therefrom.
    [Ed. Note. — For other cases, see Carriers, Dec. Dig. § 202.]
    
      4. Commerce (§ 33) — Interstate Commerce —Delivery Within State.
    Cattle were shipped to E., in Texas, on a local bill of lading; and on their arrival there they remained loaded in the cars. The shipper’s agent directed that the cars he set over on the transfer track of a connecting carrier, and gave no further instructions as to their removal; and the cattle were forwarded to a point outside the state under new contracts of shipment, executed with the connecting carrier at E. Held, that there was no delivery of cattle to the defendant’s agent at E., so as to prevent the shipment from being an interstate shipment.
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. §•§ 26, 81; Dee. Dig. § 33.]
    5. Commerce (§ 33) — Interstate Commerce.
    All of the carriers engaged in an interstate shipment need not be parties to a contract of shipment for the entire route, in order to make the shipment interstate.
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 26, 81; Dec. Dig. § 33.]
    6. Commerce (§• 3) — Interstate Commerce Act — Constitutionality.
    The provision of the Interstate Commerce Act (Act Feb. 4, 1887, c. 104, 24 Stat. 379 rU. S. Comp. St. 1901, p. 3154]), giving the Interstate Commerce Commission authority to regulate commerce between a state and a territory, is not contrary to the federal Constitution.
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. § 3; Dec. Dig. § 3.]
    Error to Court of Civil Appeals of Fourth Supreme Judicial District.
    Action by the Wood, Hagenbarth Cattle Company against the Galveston, Harrisburg & San Antonio Railway Company. Judgment of the Court of Civil Appeals (130 S. W. 857), reversing a judgment for defendant and rendering a judgment for plaintiff, and defendant brings error.
    Reversed, and judgment of the district court affirmed.
    Baker, Botts, Parker & Garwood and J. S. McEachin, all of Houston, and Beall & Kemp, of El Paso, for plaintiff in error. Bates McFarland and S. P. Weisiger, both of El Paso, for defendant in error.
    
      
      For other eases-see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r indexes
    
   PHILLIPS, J.

Wood, Hagenbarth Cattle Company, the defendant in error and the plaintiff below, in June, 1906, made four-several shipments of cattle, consisting in all of 86 cars, from Valentine, Tex., to Columbus, N. M. The carriage from Valentine to El Paso was over the line of the plaintiff in error, and from El Paso to Columbus over that of the El Paso & Southwestern Railway. Each of the several shipments' moved from Valentine to El Paso on a bill of lading issued by the plaintiff in error, by the terms of which it contracted to transport the cattle only to El Paso; the shipment being consigned in each bill to the defendant in error at El Paso, or to be there delivered to the connecting carrier of the plaintiff in error. Each shipment was rebilled at El Paso for transportation from that point to Columbus, N. M., over the line of the El Paso & Southwestern Railway, the connecting carrier.

The freight charges demanded and collected by the plaintiff in error for the transportation of the cattle from Valentine to El Paso, which charges were paid by the defendant in error under protest, were proper and lawful, if the shipments were interstate in character, but amounted to an overcharge of $12.75 per car, according to the tariffs of the Texas Railroad Commission, if they were intrastate. Contending that the movement of the cattle from Valentine to El Paso was purely an intrastate shipment, the defendant in errpr brought this suit against the plaintiff in error to recover the alleged freight overcharge, aggregating $1,096.50, and the further sum of $2,000 as statutory penalties under articles 4573 and 4575. Upon a trial, without a jury, the trial court found, both as a matter of fact and of law, that the shipments were interstate, and rendered judgment for the plaintiff in error. The honorable Court of Civil Appeals has reversed that judgment, and in its opinion holds the shipments from Valentine to El Paso to have been intrastate, having rendered judgment against the plaintiff in error for the alleged freight overcharge of $1,096.50, with interest, and aggregate penalties of $500. The question presented for our determination is whether the shipments were interstate or intrastate.

In its findings of fact, the trial court found that T. S. Kingsbury was the authorized agent and representative of the defendant in error, and empowered to contract for it in respect to these shipments; that some time prior to June, 1906, he purchased for it certain cattle at Valentine, Tex., to be shipped from Valentine to Columbus, N. M., and from there to be driven across the border into Mexico to the ranch of the defendant in error; that with such shipment in view, after the purchase of the cattle, Kings-bury went to El Paso, and there personally arranged with the agents of the two railway companies named for their shipment from Valentine to Columbus, it being agreed by the companies between themselves and with Kingsbury that they would furnish 25 cars for the shipment of the cattle, and, as they were able to furnish only 25 cars at that time, the entire shipment would have to be made in such manner as to enable them to move each consignment from Valentine to Columbus, to be there unloaded, and return the same ears to Valentine, to be there reloaded, and so on until the entire shipment was completed; that it was the intention of Kings-bury, when he bought the cattle and when he shipped them, to ship them from Valentine, Tex., direct to Columbus, N. M.; that each consignment of the cattle was transported direct from Valentine to Columbus in a continuous, uninterrupted journey, and in the same cars in which they were loaded at Valentine, without being unloaded at any intermediate point; that E. H. Anthony, an-otter agent and representative of the defendant in error, under Kingsbury’s directions, accompanied each of the consignments from Valentine to Columbus, and, acting on Kingsbury’s instructions, directed the conductor in charge of each of the trains of plaintiff in error to deliver the cars at El Paso to the connecting carrier, El Paso & Southwestern Railway, for transportation over its line to Columbus.

Kingsbury testified as follows: “I suppose Anthony obeyed my instructions, and told the conductor of the G., H. & S. A. to turn the cars right over to the El Paso & Southwestern. * * * When I shipped them, I had no intention of their stopping in El Paso longer than to transfer them -to the other road, * * * and when at Columbus to be received by the agent, and driven from there onto the ranch in Mexico.”

Anthony, as a witness for the defendant in error, testified as follows: “I went with the cattle to Columbus. * * * X was .on the train all the time from Valentine to El Paso. The same cars went right on through to Columbus. * * * The same cars were returned to Valentine for the next shipment. I would stay in Columbus just long enough to take the train back to Ei Paso. *- * * It was the understanding between Mr. Kings-bury and myself that when I left Valentine with the train I was to take it right on through to Columbus, New .Mexico.”

As to whether the movement of the cattle from Valentine to El Paso was an interstate or intrastate shipment must be determined by the following Questions: What was the ultimate destination of the shipment at the time it was made? Though the ultimate destination may have been without the state, was there any break or interruption in the journey by any delivery of the cattle by the carrier to the consignee at El Paso?

If, at the time the shipment originated, its final destination was without the state, and it moved to such destination in a continuous and uninterrupted journey, unaccompanied by any delivery by the carrier to the consignee within the state, it was clearly an interstate shipment under the well-established rules of this court upon this subject. On the other hand, if there was a delivery of the cattle by the carrier to the consignee within the state, it was an intrastate shipment, notwithstanding it may have been the intention of the shipper, at the time the shipment was made, that it should be transported to a point without the state as its ultimate destination.

In this case, Columbus, N. M., was fixed and determined upon by the shipper as the destination of the cattle, both before and at the time they were shipped. The course of dealing between Kingsbury and the railway companies, in which he arranged for the cars, makes it plain that his purpose was to ship the cattle, not to El Paso, Tex., but to Columbus, N. M., direct, and by a continuous and uninterrupted journey, using the line of the plaintiff in error from Valentine to El Paso for one stage of the journey and the line of the El Paso & Southwestern Railway from El Paso to Columbus for its completion. It is equally plain from the facts found by the trial court that the shipment was thus made; that no delivery of the cattle by the plaintiff in error at El Paso was either contemplated or effected; that, before the arrival of the cattle at El Paso, Anthony, who was in charge of the shipments as the representative of the defendant in error, directed that the cars be delivered to the connecting carrier to which they were delivered, and by it carried to destination, making a continuous journey from Valentine, Tex., to Columbus, N. M., without break or interruption.

In the opinion of the honorable Court of Civil Appeals, it is stated that the trial court, in addition to other facts found by it, hereinbefore substantially stated, found that the cattle were actually delivered by the plaintiff in error at El Paso to Anthony, the agent of the defendant in error; and the learned judge writing the opinion of that court rested it upon this ground. We here incorporate the additional findings of fact of the trial court, referred to in the opinion of the Court of Civil Appeals, as follows:

“First. At the request. of plaintiff, I further find that all the cattle in the four shipments involved in this suit were shipped under local contracts, reading in part as follows: ‘From Valentine, Texas, to El Paso, Texas, W. B. Series L. Nos. - to -, dated June -, 1906, said to contain - head of cows, from Valentine, Texas, station, on the line of the first party to’ EI Paso, Texas, station, the end of the line of road operated by said first party on the route over which such stock are waybilled, there to be delivered to consignee or transferred to-the railway company, over which said live stock are waybilled, for further transportation by said railway company, said stock being consigned to Wood-Hagenbarth Cattle Co.’
“Second. I further find that Valentine and El Paso are both points on the line of road operated by defendant company, in Texas, and that all the line of road of the defendant company between said iwints is in Texas; that upon arrival at El Paso the cars in which said cattle were shipped were set over on the siding or link, of the El Paso & Southwestern Railway Company, under instructions of the plaintiff’s agent in charge, and that defendant company gave no further directions as to the movement of the cattle after they were so set over; that they were after that forwardéd to Columbus, N. M., under new contracts of shipment made and executed at El Paso, by and between the plaintiff and the El Paso & Southwestern Railway Company.
“Third. I find that E. H. Anthony, agent of plaintiff in charge of the four shipments, before the train reached El Paso, ‘instructed the conductor to have that train set over on the Southwestern link’; that in giving said instructions nothing was shown to have been said between plaintiff’s said agent and the conductor in charge of the train as to what they were set over there for, or what was to be done with them after that; that after reaching El Paso, and after the cattle had been set over on the El Paso & Southwestern link, in obedience to the instructions of the plaintiff’s agent, said agent went and looked them oyer, and then went to the Southwestern office, turned in his book, and gave them instructions to ship the cattle, and signed up new contracts, under which they were shipped from El Paso to Columbus, N. M.”

We are unable to construe these findings of the trial court as a finding of fact that there was an actual delivery of the cattle by plaintiff in error to Anthony, the representative of the defendant in error, at El Paso, or conclude from them that there was any such delivery in law. On the arrival of the cattle at El Paso, the cattle remained loaded in the cars. All that Anthony did was to direct that the cars be set over on the siding or link of the connecting carrier, doubtless to facilitate their transportation over its line, inspect the cattle, rebill them over that line, and instruct them to be forwarded. Did this amount to a “delivery” of the cattle to Anthony for the defendant in error? The statement of what occurred forbids any such conclusion. While Anthony directed the plaintiff in error to set the cars over on the siding of the connecting carrier when they arrived at El Paso, the custody of the cattle was never out of the carriers; and his action in this- respect was perfectly consistent with their custody of them. Nor does the fact that the bills of lading, issued by the plaintiff in error, provided for the carriage of the cattle only to El Paso, and that there Anthony rebilled them over the line of the connecting carrier, alter the rule of law applicable to this case, or constitute this a local shipment, as distinguished from an interstate shipment.

It is not necessary that all the carriers engaged in an interstate shipment shall be parties to the contract of shipment for the entire route. Houston Nav. Co. v. Insurance Co. of N. America, 89 Tex. 1, 32 S. W. 889, 30 L. R. A. 713, 59 Am. St. Rep. 17. While, in the hills of lading, the cattle were consigned to the defendant in error at El Paso, to be there transferred to the connecting carrier of the plaintiff in error, the defendant in error did not take possession of them at El Paso. What did occur was their delivery to the connecting carrier for the purpose of the completion of their journey. We regard it as immaterial in this case whether this was done under the direction of Anthony or the plaintiff in error; a delivery, not to defendant in error, but to the connecting carrier, resulted. That the cattle were so delivered to the connecting carrier at El Paso at the express direction of Anthony precludes the view that he intended to there effect a delivery to himself for the defendant in error, or that any such delivery was in fact made.

The ease is plainly distinguishable from that of Gulf, Colorado & Santa Fé Railway Company v. State, 97 Tex. 274, 78 S. W. 495. The facts of that case are familiar, and it is unnecessary to recite them, any further than to say that there the Hardin Grain Company, having made a contract with parties at Goldthwaite, Tex., for the delivery of tsvo car loads of corn at that place, in order to comply with their undertaking, contracted to purchase the same quantity of corn from the Harroun Commission Company, which the latter company had previously arranged-to ship from South Dakota to Texarkana, Tex., and which was in fact shipped from South Dakota to Texarkana; it being intended by the Hardin Grain Company that the corn would be shipped from Texarkana to Goldthwaite as soon as practicable after its arrival at Texarkana, as was done. This court held that the shipment from Texarkana to Goldthwaite was not an interstate shipment, for the reason that, although the intention of the Hardin Grain Company, when it contracted to purchase the corn from the Harroun Commission Company, may have been as stated above, the destination of the corn, as fixed and determined by its consignors and then owners, when it started upon its journey, was, not Goldthwaite, but Tex-arkana; and when it reached that point the carriage so far was at an end.

It is likewise as clearly distinguishable from the case of Texas & Pacific Railway Company v. Taylor, 103 Tex. 367, 126 S. W. 1118, 1200; for, in the opinion rendered by Judge Brown in that case, the holding that the shipment there involved was intrastate was rested upon the fact that an actual delivery of the cattle was made to the shipper at El Paso, although they were finally shipped to a point without the state.

In our view, the case is governed by the rules announced in the opinion rendered in Houston Nav. Co. v. Insurance Company of North America, supra; and in consonance with the holding in that case it is our opinion that the shipments from Valentine to El Paso were interstate in their character.

While not passed upon by the Court of Civil Appeals, because unnecessary to the decision in its view of the case, the defendant in error in that court presented the question that the Interstate Commerce Act, in so far as it attempts to confer upon the Interstate Commerce Commission the authority to regulate commerce between a state and a territory of the United States, is contrary to the federal Constitution. As Congress possesses the undoubted power to legislate directly for a territory, it seems to us that its authority to invest the Interstate Commerce Commission with the right to regulate commerce between a state and a territory must be conceded.

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