CONNER, C. J.
This suit was duly instituted by the state of Texas, acting by her Attorney General, to recover a penalty for an alleged violation of article 4573, Rev. St., in that appellant demanded and received a greater sum for freight than allowable under the rate fixed by the Railroad Commission of Texas upon a shipment of corn by the Samuel Hardin Grain Company from Texarkana, Tex., to Goldthwaite, Tex. The trial was before the court without a jury, and resulted in a judgment in favor of the state. The facts as found by the trial court seem to be practically undisputed; the same not having been challenged, save in a single particular, as to which, however, we think the evidence is sufficient to support the finding, and which therefore need not be further noticed. The trial court's conclusions of fact are as follows:
"(1) The Railroad Commission of Texas, after due notice of the time and place where the rates would be fixed by it, fixed and established the rates which might be charged by a railroad, or by two or more lines of railroad, whether under the same management and control, or not, for the transportation of corn between points within the state of Texas, in car-load lots, at 12½ cents per one hundred pounds for a distance of over 165 miles, which rate became effective on March 10, 1899, and remained effective until the present time, of which action the defendant and the Texas & Pacific Railroad Company received legal notice before the rates prescribed became effective.
"(2) The distance from Taxarkana, Texas, to Goldthwaite, Texas, over the Texas & Pacific Railway to Ft. Worth, and from Ft. Worth over the G., C. & S. F. Ry. to Goldthwaite, Texas, is more than 165 miles.
"(3) The Texas & Pacific Railway Company owns and operates a railroad from Texarkana, Texas, to Ft. Worth, Texas, and the defendant from Ft. Worth, Texas, to Goldthwaite. Texas, and each of these points and all intermediate points on each of said roads are entirely within the state of Texas.
"(4) The Texas & Pacific Railway Company executed a bill of lading, dated Texarkana, Texas, January 13, 1902, which bill of lading purported to acknowledge the receipt from the Samuel Hardin Grain Company, at Texarkana, Texas, of one car of sacked corn, same being car 3845, P. & G., and which bill of lading purported to show that the said corn was consigned to shipper's order, notify Saylor & Burnett, Goldthwaite, Texas.
"(5) Said car load of corn was transported by the Texas & Pacific Railway Company to Ft. Worth, and there delivered to the defendant, and was by it received and transported to Goldthwaite, Texas, where it arrived on the 17th day of January, 1902; and Saylor & Burnett, who were acting for Samuel Hardin Grain Company, tendered to the defendant's agent at Goldthwaite $82.50 in payment of the freight charges thereon. The said agent declined to accept said amount of $82.50 in payment of said charges, and demanded $165 for the transportation of said car load of corn from Texarkana, Texas, to Goldthwaite, Texas.
"(6) The agent of the defendant at Goldthwaite, Texas, charged, collected, demanded, and received from Samuel Hardin Grain Company $165 for the transportation of said car load of 66,000 pounds of corn from Texarkana, Texas, to Goldthwaite, Texas. In so charging, collecting, demanding, and receiving said $165 the said agent of the defendant was acting under instructions from the executive officers and attorneys of the defendant company, who believed and advised that said shipment was interstate commerce, and his action in so doing was subsequently ratified by the defendant.
"(7) The Samuel Hardin Grain Company made complaint to the Railroad Commission of Texas of the action of the defendant in charging more than 12½ cents per hundred pounds for transporting said corn, whereupon the Railroad Commission investigated such complaint, and ordered this suit to be instituted, in accordance with the provisions of article 4568 of the Revised Statutes of Texas.
"(8) On December 23, 1901, the Samuel Hardin Grain Company, at Kansas City, Mo., offered to sell Saylor & Burnett, at Goldthwaite, Texas, No. 2 mixed corn at 86½ cents per bushel for delivery on railway track at Goldthwaite, and this offer was accepted for two car loads of corn. This offer and acceptance was by telegraphic communication between the parties at their respective places of business. The Hardin Grain Company did not at that time have the corn, but on December 24, 1901, to fill the order, it contracted with the Harroun Commission Company, at Kansas City, for the purchase of two 66,000-pounds cars of No. 2 mixed corn at 75½ cents per bushel, to be delivered at Texarkana, Texas, to the Hardin Grain Company. Previously to this the Harroun Commission Company had contracted for the
purchase of two cars of corn to be delivered to it at Texarkana, Texas, and with these two cars it expected to, and did, fill the order of the Hardin Grain Company. These cars had originated at Hudson, S. D. The receiving carrier at Hudson was the Chicago, Milwaukee & St. Paul Railway Company, who issued bills of lading limiting its liability to losses occurring on its road, with a like limitation of liability of all other carriers who should handle said corn in transit to its destination. By the terms of said bills of lading the corn was consigned to `Forrester Bros., Texarkana, Texas,' and shipment made in cars of C., M. & St. P. Ry. Co., care of Kansas City Southern Railway at Kansas City, Mo., with the privilege to stop the corn at Kansas City for inspection and transfer. The corn reached Kansas City on December 17, 1901, was there unloaded, sacked, and transferred to the Kansas City Southern Railway Company, who on December 31, 1901, issued bills of lading reciting that the corn was loaded in cars No. 3,845, P. G., and No. 4,189, P. G.; that same was received of Forrester Bros., and consigned as follows, `Shipper's order, notify Harroun Commission Company, Texarkana, Texas," and reciting further that freight, 14 cents per hundred lb., was prepaid; and one of these cars, to wit, car No. 3,845, P. G., is the car in controversy in this suit.
"(9) The Harroun Commission Company paid no freight on the corn from Hudson, S. D., to Texarkana, Texas, as it had purchased it to be delivered at Texarkana.
"(10) The freight on the corn from Hudson to Texarkana was as follows, 18 cents per 100 lb. from Hudson to Kansas City, and 14 cents from Kansas City to Texarkana, all of which was paid by the vendors of Harroun Commission Company. The minimum interstate rate from Hudson, South Dakota, to Goldthwaite, Texas, was 46 cents per 100 lb., which would have been apportioned as follows: 18 cents from Hudson to Kansas City, and 28 cents from Kansas City to Goldthwaite, Texas. The G., C. & S. F. Ry. Co., the T. & P. Ry. Co., and the Kansas City Southern Railway Company, together with other connecting lines from Kansas City, Mo., to Goldthwaite, Texas, had established a joint tariff of 35 cents per 100 lb. on shipments from Kansas City to Goldthwaite via Texarkana, and originating in Kansas City, had agreed on a division of that rate between them, and had filed tariffs establishing such rate with the Interstate Commerce Commission, and by such steps had brought itself within the provisions of the interstate commerce laws.
"(11) The Hardin Grain Company's officers kept themselves informed of interstate commission freight rates and of the state commission rates, and the reason why they contracted for the corn to be delivered to them at Texarkana was because they could fill their contract with Saylor & Burnett at Goldthwaite at about 1½ cents per bushel cheaper than they could if they had bought the corn for delivery to them at Kansas City, and had shipped from Kansas City to Goldthwaite.
"(12) At the time of the purchase contract between the Hardin Grain Company and the Harroun Commission Company, Hardin, the manager of the former company, intended that the corn to be thereby acquired should go to Saylor & Burnett, and should be shipped to Goldthwaite from Texarkana as soon as practicable; and on December 26, 1901, two days after this contract for purchase had been made, Hardin was informed that the corn with which Harroun Commission Company expected to fill his order would be sacked in Kansas City, and be shipped out of Kansas City to Texarkana, but at the time of making the contract he did not know from whence the corn would come.
"(13) On December 31, 1901, the date of shipment from Kansas City to Texarkana, Harroun Commission Company informed the Hardin Grain Company that the corn to fill the latter order had been loaded to start to Texarkana, and requested instruction as to how the corn should be shipped from Texarkana, for the guidance of F. L. Adkins, their agent at that place, who would attend to such reshipping for the Hardin Grain Company, as per former understanding. Thereupon, and in compliance with such request, blank bills of lading were made out by the Hardin Grain Company in Kansas City, and furnished to the Harroun Commission Company, to be forwarded to F. L. Adkins. These bills of lading were to be executed by the Texas & Pacific Railway Company and F. L. Adkins, as agent for the Hardin Grain Company, and were for shipment of the corn to Goldthwaite, Texas, consigned to `Shipper's order, notify,' etc., giving the numbers and initials of cars, which information had been furnished by the Harroun Commission Company; and on January 14, 1902, the reshipment having been made as per...
