The Sabine Tram Company instituted this suit in the District Court of Jefferson County against the Texarkana Ft. Smith Railway Company to recover overcharges of one cent per hundred pounds on lumber shipped from Ruliff over the railroad to Port Arthur, alleging that the Railroad Commission of Texas had fixed a rate of four cents per hundred pounds for lumber shipped from the station Ruliff to Port Arthur, also plaintiff sought to recover the statutory penalty prescribed for such overcharges.
We copy from the opinion of the Court of Civil Appeals, as follows: "The rate, as fixed by the Commission from points on appellant's line north of Beaumont, was in this language: `To Beaumont, Port Arthur, Sabine Pass four cents per hundred pounds.' `Port Arthur docks' was not situated within the city limits of Port Arthur. It was something over three miles from the station in Port Arthur. The city limits were about a quarter of a mile from appellant's station, and from there the distance was about two and a half miles. In going from the station to Port Arthur docks the lumber was carried over the rails of appellant about one mile, and then over the rails of the Port Arthur Canal and Dock Company a distance of 2.6 miles to the docks. Appellant had a trackage arrangement with said Canal Dock Co. by which it used the latter's tracks. A passenger train was operated between Port Arthur and Port Arthur docks, and a minimum charge of twenty-five cents was the passenger fare between the two points; and an agent was kept at the docks to sell tickets to Port Arthur, and the agent at Port Arthur sold tickets to the docks; there was no houses between the yards, depot and warehouse in Port Arthur and Port Arthur docks, the space being unoccupied except by railroad tracks that run across it. A witness stated: `Any cars we have brought from the docks to town we pay switching charges on them, or any we sent out from town * * *. On one occasion they set a car out there for me to load some chain and I shipped them to Deweyville, they issued me a bill of lading in town when I went for it, other than freight charges they made a charge of $3.00 or $6.00 for switching charge for bringing the car into Port Arthur, that has existed a long time.'
"It was testified to that all this lumber was taken charge of by a separate train crew when it arrived at Port Arthur, which crew operated a train between Port Arthur and the Port Arthur docks and carried it there; that on local shipments the cars would be side-tracked at Port Arthur and the lumber delivered locally there, but *Page 35 all lumber for export and interstate shipments by coastwise movement was carried out to the Port Arthur docks, 3.7 miles beyond Port Arthur.
"Up to and about the time when the five cent rate was collected appellant had been collecting of plaintiff and same consignees the four cents rate for the same service. There was no separate station at the docks, and any local freight going to or from the docks was billed to or from Port Arthur. In like manner when freight was shipped to the Gulf Refining Company, at Port Arthur, which plant also was beyond the tracks of appellant and the Dock Company's track had to be used in reaching it, the cars were switched there. These points in the immediate vicinity of Port Arthur reached by switching appear to have been understood and acted upon as within the designation `Port' in matters affecting freight, both by appellant and by these shippers."
There was sufficient evidence to sustain the finding by the Court of Civil Appeals that the rate of the Commission applied to Port Arthur and not Port Arthur docks, which finding is conclusive upon this court. Indeed, under the undisputed evidence the question became one of law, that the order of the Commission did not apply to Port Arthur docks.
We agree with the Court of Civil Appeals that there being no rate to Port Arthur docks, therefore, there could be no penalties incurred.
It is ordered that the judgment of the Court of Civil Appeals be affirmed.
Affirmed.