On Motion for Rehearing.
A very interesting, able, and elaborate motion for rehearing, embracing all the questions involved in this appeal, supported and enriched by numerous authorities evincing great industry and research, has been filed by the Attorney General and his assistant in behalf of the state, urging that the court erred in its original opinion reversing this case.
[1] Among other reasons so assigned is that the court erred in holding that the order of the commission discussed in the original opinion was void, and not enforceable, because the trains in question originated in St. Louis and Kansas City, and not at Denison, Tex., and hence were instrumentalities of interstate commerce, and could not be regulated and controlled by the Railroad Commission of Texas. After a careful consideration of the matter, we are impressed with the correctness of appellee’s contention. It is true that original train No. 9 was made up of two separate and distinct trains, one operated out of St. Louis and the other out of Kansas City by the Missouri, Kansas & Texas Railway Company to Parsons, Kan., where they were consolidated and run to Denison, Tex., and delivered by said company to appellant; yet at this point the control and authority of the first company ceased, and, in a sense, the identity of the train was lost, and the control of the latter company commenced, because here parts of said train, with other equipment added, were operated by appellant with separate and distinct crews and engines to Hillsboro, Tex., one as No. 9, via Dallas to said point, and the other as No. 209, via Ft. Worth, where some of the cars composing the train were dropped out. At Hillsboro they were reunited and operated to Granger as No. 9, where they were again divided, and thereafter operated by appellant as separate and distinct trains; one part thereof going to Houston, and the other to San Antonio, via Austin. They were advertised and known as appellant’s trains, and were scheduled by it each to leave Denison daily at 6:25 a. m. For which reasons we think, so far as appellant is concerned, said trains Nos. 9 and 209 must be regarded as originating at Denison, Tex. Besides this, under the Constitution and laws of this state, Denison must be regarded as the beginning or starting point of said trains. Appellant had no right to operate its trains beyond the state line, and therefore trains received at the line and operated by it through the state must be regarded as commencing at such point. See Railroad Commission v. C., R. I. & G. Ry. Co., 102 Tex. 397, 117 S. W. 794. Section 1, art. 10, of the Constitution of this state provides that:
“Any railroad corporation or association, organized under the law for the purpose, shall have the right to construct and operate a railroad between any points within this state, and to connect at the state line with railroads of other states.”
The statutes under which appellant is incorporated only authorized it to operate between named points within this state. See R. S. 1911, art. 6408. In Railroad Commission v. C., R. I. & G. Ry. Co., supra, it is said:
“The state line is, in law and in fact, one terminus of the line of a railroad intersecting it constructed by a Texas corporation, because its powers cease at that line.”
It is true, as contended by appellant, that such trains were operated under a contract between it and the Missouri, Kansas & Texas Railway Company, whereby it was required to receive original train No. 9 from said last-named company at the state line and operate it over its lines of railway to San Antonio, its point of destination in Texas, in consideration that the Missouri, Kansas & Texas Railway Company would likewise receive from appellant trains Nos. 10 and 210 at such point and operate them over its respective lines to a named destination beyond the state; by reason of which it is, in effect, contended by appellant that, notwithstanding the fact that it was operated as two distinct trains, known as 9 and 209, south from Deni-son, it should be regarded as originating in *826Kansas City and St. Louis, instead of at Den-ison, and thence operated jointly by said two companies as a through train to its point of destination, constituting it a through train,' and thereby relieving it from the control of the Railroad Commission. Even though it was being operated under and by virtue of said contract, still we are not disposed to think that this would have the effect to change the beginning or initial point, so far as appellant is concerned, to a point outside of the state of Texas; especially in.view of the fact that the law, as we have seen, does not permit appellant to extend its lines beyond the state, but confines its operation to points within the same.
We therefore hold that such train must be regarded as having originated at Denison, Tex., where appellant took charge of it, operating it as separate and distinct trains from said point to destination over its lines in accordance with its contract. This view renders it unnecessary for us to consider and pass upon the many other interesting questions presented in the briefs of the respective parties relating to the right of appellant to operate said trains under the Interstate Commerce Law independent of state control, because, this being an intrastate transaction, as we have held it is, appellant in the operation and management of its trains must be held subject to the control of the Railroad Commission.
[2] Notwithstanding the order was passed in 1907, and the violations are charged to have occurred in 1908, yet we think it is not necessary, as appellant contends, that it should first have been cited by the commission to show cause why it had failed to comply therewith before suit could be instituted to enforce such order. It was a general order, applying to all roads of the state falling within its purview, and hence could be enforced by the courts in the first instance.
[3] Nor do we think there is any merit in appellant’s further contention to the effect that the court erred in assessing the penalty for more than one violation. This was not a continuous offense. Each violation is by the statute made an offense, and punishable as such; hence the trial court did not err in overruling appellant’s contention in this respect. See Baltimore & Ohio S. W. R. R. Oo. v. United States, 220 U. S. 94, 31 Sup. Ct. 368, 55 L. Ed. 384; also, State v. Wisconsin Central Ry. Co., 133 Wis. 478, 113 N. W. 952, 14 Ann. Cas. 1061.
In the first case referred to it was held that, where there were different shipments of cattle under the 28-hour law, which required that they should not be carried for a longer period than 28 hours without being unloaded for feed and water, a separate punishment might be imposed for each shipment. If, however, a number of shipments were made at the same time and place, therefore requiring unloading and watering at the same time to comply with this law, then, and in that event, but one punishment could be imposed.
In the last case cited, where the law limited the speed of trains in cities and villages and imposed a penalty “for each and every” violation, it was held that this would authorize a recovery of cumulative penalties in one action- where several violations are* shown.
The statute in the present case imposes a penalty for every act of violation thereof. See article 6672, R. S. 1911. Hence the court was within the law in imposing a penalty for each violation as shown by the evidence.
Believing that we erred, for the reasons indicated, in reversing and remanding the case, the motion for rehearing is granted, and the order of reversal heretofore made is set aside, and the judgment of the court below is' in all respects affirmed.
Motion granted. Judgment affirmed.