On Rehearing.
Plaintiff admits that it has selected a site for a station and depot at Gonzales.
The only difference between plaintiff and defendant is as to where shall the depot be constructed.
Passenger depots are constructed mainly for the accommodation, convenience, and comfort of passengers.
“The location of railroad depots has much to do with the accommodation of the wants of the public.” This is from Marsh v. Fairbury, 64 Ill. 414, 16 Am. Rep. 564, in which the court held that agreements to establish depots at a certain point were void, as it was against public policy. But of this agreement between plaintiff and a firm about the situs of the depot later.
In accordance with agreement among the parties before the suit was brought, the question of the situs of the depot was left to be settled by the Commission. Two of the members of the Commission repaired to Gonzales. In the presence of some of the officers of the railroad, the two commissioners concluded to order that the depot be erected as prayed for by appellees. This was ratified by the whole Commission.
Continuing with our statement of the case, it appears that at the time the representatives of the railroad company were obtaining rights of way for their railroad, which they obtained free of charge from a number of landowners on the way, they indicated to these landowners, as an inducement for them to sign, where the depot site should be.
This same site was selected by the Commission.
This may not bind the company, that is the fact that these officers held out the hope to the landowners that the situs would be at the place afterward selected by the commissioners ; at the same time it goes far to relieve the Commission from the charge of arbitrariness. It was not, it is true, inserted in the deed making transfer of right of way. But it was held out as an inducement.
Furthermore, there was an agreement entered into between one of the officers of the company and two joint owners of an old field that the railroad would own part of the *860tract on which the railroad company was about to erect the depot. The agreement was that part of the land to be divided into lots would be owned by the railroad company. Every alternate lot, or something of the kind, was to be the interest of the railroad company. That agreement has not been denied.
Upon that point, in People v. Chicago, 130 Ill. 175, 22 N. E. 857, the court held, “that contracts binding the power to locate depots are against public policy.”
Again, “Railway company by contract with individuals cannot maintain stations at particular points.” The company must be free to establish or re-establish its depots.
The same doctrine is laid down in Holladay v. Patterson, 5 Or. 177. Even stronger expressions are found in Texas & P. R. R. v. City of Marshall, 136 U. S. 393, 10 Sup. Ct. 846, 34 L. Ed. 385, and there is something to the same effect in Heirs of Burney v. Ludeling, 47 La. Ann. 75, 16 South. 507.
The Railroad Commission, part of whose function is to regulate the service in some respect at least, has the authority to prevent the consummation of such agreement.
The Commission having the power “to govern and regulate railroads” (Const, art. 284), “to correct abuses and prevent unjust discrimination, and require railroads to build and maintain suitable depots,” has the authority to prevent a railroad from building a depot in accordance with an agreement such as that before indicated, and should have the authority to direct the railroad to place it at a place the most convenient, provided it is entirely feasible, not arbitrary, and to the best interest of those for whose accommodation a depot is built.
Eor reasons stated, it is ordered, adjudged, and decreed that our former decree be reinstated and reaffirmed. It is made 'the judgment of this court and fully reinstated in every respect. It follows that applicant’s demand on rehearing is rejected.
MONROE and PROVOSTY, JJ., dissent.