lected by him at the time he applies for his and applied so as to require the city comlicense. Any other construction is not war-missioners, in the exercise of the city's police ranted by the general purpose of the ordi-powers, to personally engage "in every step nance as reflected by its various special pro- necessary for the exercise of the function"; visions. We do not agree with counsel that the effect of the quoted provision is to deny any appellant the right to engage in another business when he has complied with the provisions of the one in controversy. It does enact, of course, that certain regulations must be observed in order to legally engage in the business regulated by the ordinance. From that circumstance, however, it surely cannot be said that any one is prohibited from engaging in any other lawful pursuit. If any appellant desires to engage in any other lawful occupation, his right to do so may not be denied, whenever he has complied with any regulations that may be imposed upon such other business or occupa

tion.

[6] It is also urged that section 15 of the ordinance is void. This section requires the operator of each motor bus to submit his vehicle to the city automobile inspector once every week for inspection. If upon examination the inspector finds the vehicle safe for use as a motor bus, he shall issue the operator a certificate permitting its operation for one week. If the inspector finds the vehicle unsafe for use as a motor bus, he shall refuse to issue certificate. Operation of the motor bus without the inspector's certificate displayed conspicuously thereon is made a penal offense. This section is attacked in effect on the ground that it is an attempt upon the part of the municipality to delegate to another the police power intrusted to it by the state, which it is argued it may not do, since the trust is official and personal, and may be exercised only by those to whom it is committed by the state.

but they may "fully discharge their official duty and exhaust the municipal discretion by enacting by-laws or ordinances to be executed by the proper board or officer." 28 Cyc. 694. Another concomitant of the rule invoked by appellants is that the municipality, after exercising its discretion as to the enactment of laws, is not forbidden from delegating its "ministerial or administrative functions to subordinate officials." 28 Cyc. 276. Thus it appears that on either limitation of the general rule section 15 may be sustained. Having the charter authority, as we have determined at another place in this opinion, to regulate every character of motor vehicle engaging in street traffic upon its streets, the city had the right, under the first limitation of the rule noted, to enact an ordinance voicing or exercising its authority on the particular and precise subject, and to confer upon the inspector the authority to enforce the provisions thereof. This was done, and nothing left to the discretion of the inspector, since he is required to inspect every motor vehicle and its mechanism, and determine if it is one that can be safely operated upon the city's streets.

We may, however, discard the broad rule, which holds that the municipality may by exact and precise ordinance confer on another the enforcement of its discretion as declared by duly enacted ordinance, and yet find ample authority for the act complained of in the second limitation of the general rule noted. That is that section 15, taken in connection with the ordinance creating the office of city automobile inspector and defining his duties and authority, evidences nothing more nor less than a transfer by the eity to said officer of its ministerial and administrative functions. The discretion of the city in reference to the matters covered by either ordinance is in the last analysis whether it will require the operators of the motor bus to submit it to inspection, a requirement obviously intended for the protection of the life and property of the citizen. By the enactment of section 15 and the ordinance creating the office of inspector, it clearly and fully exercised that discretion, and directed; that thereafter each motor

In connection with section 15, just referred to, and as a matter to be considered in connection therewith, the city of Dallas, simultaneously with the passage of the ordinance regulating the motor bus, enacted another ordinance creating the office of city automobile inspector. Omitting formal and nonessential portions, the last-mentioned ordinance makes it the duty of and confers upon the inspector the authority to inspect and examine every character of motor vehicle operated for hire in the city of Dallas and keep a record thereof, to require them to secure license or inspection certificates bus should be examined and inspected in required by other ordinances, to examine all applicants for license and enforce ordinances regulating the number of passengers to be carried, etc.

Recurring, then, to the proposition asserted by appellants, it is readily conceded that it states a correct and long-settled principle of law which it is unnecessary to sustain by the citation of authority. Accompanying the rule stated, however, at all times, is the further rule, equally well defined and established, that the former will not be construed

all of its mechanism and parts, in order to determine whether it could be safely operated upon the city's streets. The further provision that such examination shall be made by the inspector confers upon him none of the discretion conferred on the city, since the acts of examining the car and the issuance of the certificate are but ministerial or administrative, as distinguished from legislative and discretionary, authority. Bouvier defines a ministerial act "to be one which a person performs in a given state of facts,

in a prescribed manner, in obedience to the mandate of legal authority, without regard CONSUMERS' LIGNITE CO. v. HOUSTON to or the exercise of his own judgment upon the propriety of the acts being so done," and cites in support of the defined meaning Rains v. Simpson, 50 Tex. 501, 32 Am. Rep. 609, and which case in turn cites Commissioner v. Smith, 5 Tex. 471, and Arberry v. Beavers, 6 Tex. 457, 55 Am. Dec. 791. See, also, Hitchcock v. Galveston, 96 U. S. 341, 24 L.

defendant, and plaintiff brings error. versed and remanded.

Re-1

Etheridge, McCormick & Bromberg and Chas. T. McCormick, all of Dallas, for plaintiff in error. Baker, Botts, Parker & Garwood, of Houston, and Smith, Robertson & Robertson, of Dallas, for defendant in error.

[1, 2] There is evidence to the effect that the plaintiff, which was the consignee, in addition to its rights as such consignee, had by assignment all the rights of the consignor, and that the shipment in question was delivered and received as alleged in plaintiff's petition; that the distance from Ferris to Dallas is 19.4 miles; that the shipment was TALBOT, J. The plaintiff in error, here- not delivered by the defendant to its coninafter referred to as plaintiff, sued the de- necting carrier at Dallas until about 4 fendant in error, hereinafter referred to as o'clock in the afternoon of March 4, 1913; defendant, to recover damages and a penalty that March 2, 1913, was Sunday, and was for delay in the transportation of a ship- also a legal holiday, being Texas Independment of freight over the defendant's line of ence Day; that the banks and post office in railroad. The petition alleges, in substance, Dallas observed March 3, 1913, as a holiday; that the defendant, on the 26th day of Feb- that the defendant, in the matter of demurruary, 1913, accepted at Ferris, Tex., for rage, has a custom, rule, or order with refershipment, a car load of bricks, consigned to ence to holidays; that this custom or rule, the plaintiff at Hoyt, Tex., and that under for which free time can be allowed in demurthe contract of shipment the bricks were to rage record, is that, with the exception of be delivered by the defendant to its connect- Decoration Day, all holidays falling on Suning carrier at Dallas, Tex., a distance of day are observed on Monday. When Decora19.4 miles, from which latter point the car tion Day falls on Sunday, the preceding load was to be carried by defendant's con- Saturday is observed. The Railroad Comnecting carrier to Hoyt; that defendant mission rule pleaded by the defendant was delayed delivery to its connecting carrier introduced in evidence, and so much of it until March 4, 1913, and this delay caused as is material here is as follows: damage to plaintiff, and constituted an unjust discrimination, as defined by article 6670 of the Revised Statutes of 1911, and entitled the plaintiff to the recovery of the penalty provided for in article 6671 of said statutes. The petition further alleged :

"When car load freight of any character proper for transportation is legally tendered to a railroad company at its customary place of receiving shipments, and correct shipping instructions given, such railroad company shall promptly receive the same and issue bills of lading therefor; the same must be carried forward at a rate of not less than an average of thirty (30) miles per day of twenty-four hours, exclusive of Sundays and legal holidays, comfollowing the receipt of shipment. For failure to so receive and transport such shipments the railroad company at fault shall forfeit and pay to the owner or party injured the sum of fifty (50) cents per car for each day or fraction thereof during which the terms of this rule are not complied with: Provided, however, that twenty-four hours additional time shall be allowed at each junction or division terminal where it is necessary to rehandle or transfer additional when it is necessary to transfer conthe car or cars; also, forty-eight (48) hours tents from one car to another."

"That there existed in full effect rules and regulations of the Railroad Commission of Texas, regulating, covering, governing, and requir-puted from 7 o'clock a. m. of the second day ing the interchange of freight from one connecting carrier to another connecting carrier at all points of junction in the state of Texas of all lines of railway being operated therein." The defendant answered, admitting that the car was received and delivered by it on the dates set forth in plaintiff's petition, but set up by way of avoidance: (1) A certain rule of the Railroad Commission of Texas, known as rule 2, entitled "Reception and Transportation of Car Load Freight," and alleged that it had carried the car with

The court's action in admitting in evidence

the foregoing rule of the Railroad Commission is the basis of the plaintiff's first asis that this rule had no application to the signment of error. The proposition advanced issue of whether or not the delay pleaded and proved constituted unjust discrimination

as defined by the statute.

the expedition required by that rule; and (2) that, if any delay had occurred in the delivery of the car, it was due to the fact that the transfer track at Dallas, used in the interchange of freight between it and its connecting carrier, was unduly congested, such congestion being due to the insufficient capacity of the freight yards at Dallas of Article 6670 of the statute provides that if its connecting carrier, and the delay of its connecting carrier in the interchange of such any railroad, directly or indirectly, or by any freight. The defendant further pleaded that special rate, rebate, etc., shall charge or receive from any person or corporation a March 2, 1913, was a Sunday, and that greater or less compensation for any service March 2, 1913, was also a legal holiday, being rendered by it than it charges or receives Texas Independence Day; that there was a from any other person or corporation for general custom that in such a case as this, doing like and contemporaneous service, such when a legal holiday fell on a Sunday, the railroad shall be deemed guilty of unjust next day, Monday, would be and was regard-discrimination; and subdivisions 1 and 2 ed as a holiday. A jury trial, February 14, of said article read: 1914, resulted in a verdict and judgment for (1) "It shall also be an unjust discrimination the defendant, and the plaintiff in due time for any such railroad to make or give any un

any particular person, company, firm, corpo- | Department at Dallas, Tex., to observe the ration or locality, or to subject any particular following Monday as a holiday when a legal description of traffic to any undue or unreason- holiday falls on the Sunday preceding. The able prejudice, delay or disadvantage in any respect whatsoever."

(2) "Every railroad company which shall fail or refuse, under such regulations as may be prescribed by the Commission, to receive and transport without delay or discrimination the passengers, tonnage and cars, loaded or empty, of any connecting line of railroad, and every railroad which shall, under such regulations as may be prescribed by the Commission, fail or refuse to transport and deliver without delay or discrimination any passengers, tonnage or cars, loaded or empty, destined to any point on or over the line of any connecting line of railroad, shall be deemed guilty of unjust discrimina tion."

propositions under this assignment are, first, that a statute cannot be varied by proof of local custom or usage; and, second, that the custom of the post office as to the observance of the day in question as a holiday has no tendency to show a custom upon the part of railways in the city of Dallas as to the observance of such day as a holiday. The 2d day of March, among a number of others, is declared by statute of this state to be a holiday—

"on which all the public offices of the state may be closed and shall be treated and considered as Sunday or the Christian Sabbath for all purposes regarding the presenting for payment or acceptance and of protesting for and giving notice of the dishonor of bills of exchange, bank checks and promissory notes placed by the_law upon the footing of bills of exchange." Rev. St. 1911, art. 4606.

Rule 2 of the Railroad Commission, referred to in discussing the defendant's first assignment of error, prescribes that railroad companies

"shall promptly receive and issue bills of lading for car load freight and transport the same at a miles per day of twenty-four hours, exclusive of rate of not less than an average of thirty (30) Sundays and legal holidays."

Neither the statute nor the rule makes

any provision for the observance of the following Monday when the holiday falls on Sunday, and the question is: Can the defendant excuse itself for not moving the plaintiff's shipment on Monday, March 3, 1913, and avoid the penalty provided by law for unjust discrimination or delay, by showing a custom in such case not to do so? It is well established that a custom or usage repugnant to the express provisions of a statute is void, and that, whenever there is a conflict between a custom or usage and a statutory regulation, the statutory regulation must control. 12 Cyc. 1054. So, too, if a statute has given a definite meaning to any particular word, no evidence of custom will be admitted to attach any other meaning. 12 Cyc. 1055.

We agree with the view, expressed by counsel for the defendant, to the effect that, if any penalty can be recovered under the petition of plaintiff on account of the alleged delay in the transportation of the shipment in question, it is recoverable under subdivision 2 of article 6670 of the statute. As argued, it seems clear that subdivision 1 of said statute is not applicable, because it is dealing with the general subject of preference or advantage in the ordinary handling by railroads of shipments, while subdivision 2 specifically covers the cause of action set out and relied on herein, namely, the case of a railroad company's duty to transport and deliver shipments destined on the line of a connecting carrier, The The case at bar, as shown by our statement of its nature, in the former part of this opinion, is one in which it devolved upon the defendant to transport and deliver the shipment of bricks without delay or discrimination to its connecting carrier at Dallas, and, if it has failed to do so, then a recovery for the penalty sought may be had; but the same must be had under subdivision 2 of the statute, to which we have referred. Subdivision 2 of article 6670 provides, as has been seen, that every railroad which shall, under such regulations as may be prescribed, by the Railroad Commission, fail or refuse to transport and deliver without delay tonnage or cars destined to any point on or over the line of any connecting line of railroad, shall be deemed Railway Co. v. McCown, 25 S. W. 435, was guilty of unjust discrimination. This proThis pro- a suit to recover damages under our statute vision of the statute clearly contemplated, for failure of the railway company to deif it did not require, that the Railroad Com-liver a car load of corn upon tender by the mission of the state should prescribe rules owner of the amount of freight charges, as and regulations upon the subject to which shown by the bill of lading. Among the deit relates, and evidently the Commission, to fenses set up by the company was a custom meet this purpose and intent of the statute, of railroads in the United States to require promulgated the rule admitted in evidence the surrender of the bill of lading before the over the objections of the plaintiff, and of delivery of freight, and that the plaintiff the admission of which it complains in the had refused to do this or give an indemnity assignment of error under consideration. bond demanded in lieu of such surrender. We think, therefore, the rule was properly The court held that the failure of the deadmitted, and the assignment will be over- fendant to comply with article 4258a, Rev. ruled. Civ. St., requiring railway companies to deliver freight on tender by the owner of the freight charges, as shown by the bill of lading was not excused by the refusal of the

[3] The second assignment of error is to the effect that the court erred in admitting the testimony of the witness W. Bruce Luna

give an indemnity bond in lieu thereof, and chairman of the Commission to the effect upon the question of custom said:

"It [the custom] cannot deprive one of a legal right without his consent and without compensation; it cannot make contracts for parties; it can in some cases construe the terms used in a contract; but it is not a good custom if it is unreasonable, or contrary to law. The custom contended for cannot be enforced."

that if a holiday should fall on Sunday, and
there was a custom generally to consider
Monday as a holiday, the Commission would
The telegram
recognize Monday as such.
does not, therefore, in our opinion, sustain
the contention of the defendant, and we think
the admission of the evidence of the custom

sought to be established by the defendant,
over the objection of the plaintiff, was error
which requires a reversal of the case.
Clearly, rule 2, which was introduced in evi-
dence, does not, expressly or by implication,
authorize the observance of Monday as a
holiday when a holiday falls on the Sunday
preceding, and the mere statement, made by
the chairman of the Commission in the tele-
gram referred to, would not warrant this
court in holding that such was the effect of
the rule. Furthermore, we think it may be
gravely doubted that under the custom
shown by the evidence in this case the Rail-
road Commission would "recognize as free
time" Monday, March 3, 1913. The custom
was not shown to be general. The extent of
the evidence is that the post office and the
banks in Dallas and the defendant observed
Monday as a legal holiday when a holiday
fell on Sunday. There is absolutely no evi-
dence, so far as we have been able to discov-

Likewise we think it must be held that the custom set up by the defendant in the case at bar to excuse itself from transporting or delivering the shipment in question to its connecting carrier at Dallas on Monday, March 3, 1913, cannot be enforced under the statute and regulations of the Railroad Commission as they existed on that day. The observance of that day as a legal holiday was not authorized, as heretofore indicated, by either the statute or a rule or regulation prescribed by the Railroad Commission. In the absence of some provision of the statute or rule of the Commission authorizing the observance of Monday as a legal holiday when the holiday falls on the preceding Sunday, a carrier in this state cannot justify and excuse its failure to transport or deliver a shipment received by it on that day, on the ground that a custom prevailed to recognize and observe that day as a legal holiday. The specific day named by the statute as a holiday cannot be varied by evidence of a custom that some other day was ober, showing that such was the custom of

served as such.

[4] But the defendant contends that the evidence introduced in this case, and of which the plaintiff complains, does not have the effect to vary a statute, or the defini

tion thereof, by proof of a local custom or usage; that it is nothing but the application of the rule or regulation of the Railroad Commission in force with respect to the subject. The contention is based upon a telegram received by the attorneys for the defendant, which was introduced in evidence,

any other railroad in or out of Texas, and it may be doubted, from the character of the evidence introduced on the subject, that it Monday as a holiday when a holiday fell on the preceding Sunday, in so far as the movement and delivery of car load shipments were concerned. To prove that such was the custom of defendant, H. J. Fitzgerald was introduced, and he testified that the defendant in the matter of demurrage has a custom, rule or order with reference to holidays.

was the custom of the defendant to observe

He further said:

"The rule in effect in March, 1913, as to free time that the Houston & Texas Central Railroad Company would allow its patrons, is as follows:

Houston & Texas Central Railroad Company.

from the chairman of the Railroad Commission, in reply to one sent by them, stating that March 2, 1913, fell on Sunday, that the post office and banks in Dallas observed March 3d as holiday, and asking if there" was "any ruling of Railroad Commission" "Circular No. 913. All Agents: that in such a case March 3d should be ex"For your information and guidance I quote cluded in movement of car load freight un-free time can be allowed in demurrage record: you below legal holidays in Texas for which der rule 2 as to transportation of car load shipments?" The telegram in question reads as follows:

"Yours 9th. Commission's tariff simply says Sundays and legal holidays, when holidays fall on Sunday the custom being generally to consider Monday as holiday, Commission would recognize Monday as free time.

"[Signed] Allison Mayfield, Chairman." This telegram fails to show that the Railroad Commission had promulgated a rule or regulation to the effect that, when a holiday falls on Sunday, railway companies were authorized to observe the following Monday as such. It is but the statement of the

"March Second. Texas Independence Day. "May Thirtieth. Decoration Day.'

"With the exception of Decoration Day, all holidays falling on Sunday are observed on Monday. When Decoration Day falls on Sunday, the preceding Saturday is observed. Those are the rules we have been following since

1909."

All the evidence admitted on the question of custom should have been excluded, and because of its improper admission, and hurtful effect upon the rights of the plaintiff, the judgment of the court below is reversed, and the cause remanded.

Reversed and remanded.