On Motion for Rehearing.
[2] This case was on a former day of this" term affirmed by this court, its ruling being based on the statement contained in the brief of the Attorney General to the effect that the coal involved in the order of the Railroad Commission was not shown to be company coal; tjut a careful review of the record convinces us that we were mistaken in this regard, and that in fact the coal in question referred to in said order was company coal. This makes it necessary for us to pass upon the several questions raised and urged in the brief of appellant, as to whether or not the Railroad Commission, under the facts, had a right to make an order permitting participation by the Texas Mexican Railway Company in the division of a through rate on its own line in the carriage of its own property. Since the submission of this case, the exact question, so far as the principle here involved is concerned, has been passed upon by the San Antonio Court of Civil Appeals, in the case of Rio Grande & Eagle Pass Ry. Co. v. Texas & Mexican Railway Co., 173 S. W. 236, wherein that court held that in an intrastate shipment a railroad company is not entitled to the benefit of the through rate on its own line for carrying its own property in i the absence of a contract granting such right, i This’ ruling is approved by us. We therefore ■ conclude that appellant’s assignments assailing the validity of this order on the ground that it permitted tlje Texas Mexican Railway Company to charge freight rates for hauling its own property over its own road, and participated in a division of a through rate for so doing, thereby permitting an unjust discrimination in violation of articles 6670 and 6671, Rev. Civ. Stats. 1911, are well taken.
We also sustain those assignments assailing said order on the ground that it was unjust and unreasonable. I-Ience the motion for rehearing in this case should be granted, and the judgment heretofore rendered by us set aside, and the judgment of the court below reversed, and here rendered in" favor of appellant, and it is so ordered.