"By an order made and entered by the railroad commission of Texas on the 21st day of June, 1895, said commission established and promulgated `Commodity Tariff No. 1-A,' whereby it prescribed a schedule of rates in cents per hundred pounds, to apply by direct short-line mileage on all shipments of cotton in bales, actual weight, in quantity transported by any railroad between points in Texas and ordered that the same should take effect July 15, 1895, there being no difference in the schedule in the rates on compressed and uncompressed cotton; and in the same order established for the government of appellee, as well as all other railway carriers in the state, the following rules and regulations:
"`First. A shipper, desiring his cotton to be delivered at destination uncompressed, shall give to the railroad company notice of such desire by inserting in his bills of lading the notation, "To go through uncompressed," or other plain words of similar import, and it shall be the duty of the railroad company accepting such shipment to make delivery at destination accordingly.
"`Second. A shipper, desiring his cotton delivered at destination compressed, shall, when no compress is in operation at shipping point, give to the railroad company notice of such desire by inserting in his bills of lading the notation, "To be compressed in transit," and it shall be the duty of the railroad company accepting the shipment to comply with such instructions, if there is an accessible compress at a station directly intermediate between shipping point and destination.
"`Third. Railroad companies shall assume the cost of compressing cotton which is to be delivered at destination compressed, only on the following conditions: (1) Cotton shall be compressed at shipping point when an accessible compress is in operation at such point. (2) When no compress is in operation at shipping point, the cotton shall be compressed at a station directly intermediate between shipping point and destination, and distant seventy miles or more from such destination. Compresses being in operation at two or more stations directly intermediate between shipping point and destination, the compress nearest to shipping point shall be selected to compress such cotton. (3) The amount of the cost of compressing assumed by railroad companies shall not exceed ten (10) cents per 100 pounds out of rates that are not less than 45 cents per 100 pounds between stations subject to rates prescribed in table of rates, section 1 of this tariff, nor less than 45 cents per 100 pounds to Houston from points specified in exceptions, section 2, of this tariff. When the rates between such stations are less than 45 cents per 100 pounds, the railroad company shall assume only so much of the cost of compressing as will make the aggregate of such cost and the current freight rate not to exceed 45 cents per 100 pounds.
"`Fourth. For the purpose of concentration, cotton may be shipped at full tariff rates to compress stations distant from all points on the Gulf coast, 100 miles or more of railroad mileage, with the following adjustment of freight charges before and after such concentration, provided that there shall be no compress in operation at original shipping point or at a station intermediate between such point and the point at which it is desired to concentrate. (1) Each railroad company shall refund only its own charges for the services of concentrating. (2) The entire charge for concentration shall be refunded when the point of concentration is directly intermediate between shipping point and final destination, as reached by the line on which such cotton originates, and the rates from original shipping point and concentrating point to such destination are the same. (3) When the concentrating point is not in the direction of final destination, as reached by the line upon which the cotton originates, such line, on receiving the cotton for reshipment, shall refund an amount sufficient to make the following charges per bale over and above the current rate from concentrating point to final destination: For distances of 50 miles and less, 25 cents; 75 miles and over 50 miles, 35 cents; 100 miles and over 75 miles, 50 cents. Cotton concentrated out of the direction of final destination for distances exceeding 100 miles shall be subject to full tariff.'
"Subsequently, on October 7, 1895, said commission made and entered an order, and promulgated the same as `Circular No. 173,' amending `Commodity Tariff No. 1-A,' for the government of appellee, as well as all other railway companies of the state, as follows:
"`Circular No. 173.
"`Austin, Texas, October 7, 1895
"`It is ordered and adjudged by the railroad commission of Texas, that "Commodity Tariff No. 1-A," issued by said commission on June 21, 1895, to apply on shipments of cotton in bales transported by railroad between points in Texas, and made effective July 15, 1895, be, and the same is hereby, amended by
adding to section 3 thereof the following rules and regulations:
"`Fifth. Cotton which is to be delivered in compressed condition at destination shall be compressed, that the density of each bale at destination will be not less than 22½ pounds per foot, cubic measurement.
"`Sixth. When a railroad company receives uncompressed cotton which is to be delivered in compressed condition at destination, said railroad company shall require of the compress company, entitled under these rules to perform the work, a written guaranty, with good and sufficient sureties, to reimburse said railroad company the amount of expenses it may incur by having such cotton recompressed, in case the first compressing is found to be defective, and so declared by competent inspectors.
"`Seventh. In case a compress company shall fail or refuse to execute such guaranty, it shall then be the duty of the railroad company transporting such cotton to deliver the same for compression to the next nearest compress, located in the direct route to destination, which will perform the work under the required guaranty, provided that other requirements with regard to compressing in transit, as set forth in paragraphs 2 and 3 of third rule above, shall be complied with in all instances.
"`Eighth. To establish, through a railroad company, the responsibility of a compress company for defective compressing, the shipment of cotton involved shall be inspected within four days after its arrival at the point where such matter is to be decided, and a copy of the certificate or report of the condemnation, embracing a detailed account of the result of the inspection, shall be forwarded to this commission by the agent of the railroad company.
"`Ninth. When a railroad company receives compressed cotton for shipment, the bills of lading issued for such cotton must be made to bear notations relieving said railroad company of any obligation to require or enforce a guaranty of the work performed by the compress company; but this provision is not intended to relieve the compress company from liability to the shipper or owner of the cotton for the cost of recompressing when that shall be found to be necessary.
"`This order shall take effect October 14th, 1895.'
"Appellee, the Houston & Texas Central Railroad Company, at the time of the establishment of such rules and regulations, owned and operated, and now owns and operates, a line of railway from the city of Houston, in Harris county, to Denison, in Grayson county, with a branch line, extending from the main line at Hempstead, in Waller county, to Austin, in Travis county, and is subject to and bound by the above-recited rules and regulations if the same are valid. October 31, 1895, appellee, the Houston & Texas Central Railroad Company, being dissatisfied with the above-recited rules and regulations, instituted this proceeding, in conformity with the provisions of section 6 of the act of April 3, 1891, establishing the railroad commission (Rev. St. 1895, art. 4565), by filing a petition setting forth, appropriately and in detail, the particular causes of objection to such rules and regulations, against said commission as defendant, and praying that the commission be enjoined from enforcing the said rules and regulations as against it, and for a judgment finding and decreeing that the above-recited rules and regulations are unreasonable, unfair, unjust, and unlawful, and that the same be canceled and held for naught, etc. And, while alleging, and offering evidence tending to show, that the effect of such rules and regulations was to hamper and restrict it in its legitimate business and proper performance of its public duties, subject it to expense, loss, and inconvenience, and injure, inconvenience, and annoy its patrons and the shippers over its lines, without advantage or benefit to shippers or to the public at large, appellee did not allege or claim that said rules and regulations would, after deducting all losses in revenue, and considering increase in expense of operation as alleged results thereof, amount, in view of its whole...
