skinned up; that one cow had her hock knocked out of place, which he thought was done after they were unloaded at Austin; that one calf was badly trampled, and died after it got to the pasture; that, when he took the cattle from the pens at Kyle, about 50 of them were skinned up. fourth and seventh assignments of error and led off, and the balance were hooked and reverse the case. The bill of exception upon which the fourth assignment is predicated shows that the trial court admitted in evidence, over appellant's objection, testimony similar to that which was held not to be admissible in this class of cases in Railway Co. v. Roberts, 101 Tex. 418, 108 S. W. 808. The bill shows that the court permitted the plaintiff Hawkins, while testifying as a witness, to give his opinion as to what would have been the value of the cattle at Kyle, the place of destination, if they had been transported "within a reasonable length of time and after ordinary and reasonable handling en route." Conceding that a witness, who has qualified himself, may express an opinion as to value, still it was decided by our Supreme Court in the Roberts Case, supra, that an opinion or conclusion similar to the one under consideration involves both a question of law and fact, and therefore is not permissible. So it seems there was some testimony tending to show that the cattle were not injured at all when appellant delivered them to the International & Great Northern Railway Company, and other testimony tending to show that only two of them were injured at that time, while the testimony of the plaintiff Hawkins tended to show that many others were injured at the time the International & Great Northern delivered the cattle to him at Kyle. Therefore we hold that there was testimony tending to show rough handling of the cattle while in possession of the International & Great Northern Railway Company, although its employés who handled the shipment testified that there was no rough handling, etc. And, such being the case, the court erred in giving the instruction complained of. [3] It is true that the plaintiffs are not complaining of the action of the court in giving that instruction, but their failure to complain does not preclude appellant from complaining. If the charge referred to had not been given, it may be that the jury would have found that the International & Great Northern Railway Company was liable for some of the damages, which would have resulted in diminishing the amount of damages awarded against the Houston & Texas Central Railroad Company. [2] The seventh assignment complains be cause the court gave a charge requested by the International & Great Northern Railway Company, instructing the jury that there was no evidence which would warrant a finding that the cattle were roughly handled while in possession of that defendant. The contract of shipment stipulated that the Houston & Texas Central Railroad Company was not to be liable for any injury or damage to the property after it was delivered to the connecting carrier, and the case was tried upon that theory, and the court so instructed the jury. There was testimony given by two witnesses who handled the shipment for the Houston & Texas Central Railroad Company, the initial carrier, to the effect that when the cattle were delivered to the other defendant at Austin, Tex., they were in good condition; and the agent of the International & Great Northern Railway Company at Austin testified that he knew of his own knowledge the condition of the cattle at the time he re-evidence which would warrant a finding to ceived them, and that, so far as could be seen, they were in good condition, with the exception of two cows, one of which had a horn knocked off and another had a diseased hind leg. He testified that both of those injuries appeared to have been caused before the time the cattle were shipped. His testimony was corroborated by the agent of the International & Great Northern Railway Company at Kyle, but the plaintiff Hawkins testified that, when he received the cattle from the International & Great Northern Railway Company at Kyle, two cows had their hips knocked down, one a horn knock-part affirmed. [4] It is also true that the charge referred to did not instruct the jury that there was no testimony tending to show that the cattle were injured while in possession of the International & Great Northern Railway Company, but instructed them that there was no that effect. But the fact remains that the charge was upon the weight of testimony, which is prohibited by statute; and therefore, in view of the testimony pointed out above, we hold that the giving of that charge constitutes reversible error, as against appellant. For the reasons stated, the judgment is reversed, and the cause remanded, as to appellant but affirmed as between appellees Hawkins & Nance and the International & Great Northern Railway Company. Reversed and remanded in part, ang in GULF, C. & S. F. RY. CO. et al. v. STATE. (No. 5350.) (Court of Civil Appeals of Texas. Austin. April 29, 1914. Rehearing Denied 1. CONSTITUTIONAL LAW (8_62*)—RAILROADS (§ 58*)-DELEGATION OF POWER TO RAILROAD COMMISSION-UNION DEPOT. Gen. Laws (2d Extra Sess.) 31st Leg. c. 10 (Rev. St. 1911, arts. 6695, 6696), declaring that, where two or more railroads reach the same city, the Railroad Commission shall ascertain whether a union depot is practicable, and, if it is, the Commission shall give notice to them and, after investigation and public hearing, may require the construction and maintenance of such union depot, provided the construction and maintenance is just and reasonable to the railroads and demanded by public interest, and that the Commission may specify the requirements of such depot, is in effect a declaration that railroads shall, under certain conditions, construct and maintain a union depot, leaving to the Commission merely the deconditions exist, which is not a delegation of legislative power and does not invalidate the termination in the first instance whether these law. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 94-102; Dec. Dig. § 62;* Railroads, Cent. Dig. §§ 130, 131, 133, 135, 136; Dec. Dig. § 58.*] 5. MANDAMUS (§ 176*)-RAILROAD DEPOTSCOMPELLING SUBMISSION OF PLANS. In mandamus to compel railroad companies to obey an order of the Railroad Commission requiring them to present plans and specifications for the construction of a union depot, the court may issue a writ commanding the railroad companies to submit plans and specifications for a union depot to the Railroad Commission, for the court is not restricted to the mere issuance of a writ of mandamus commanding the construction of a union depot which might neither meet the approval of the Commission nor serve the public. [Ed. Note.-For other cases, see Mandamus, Cent. Dig. §§ 392-394; Dec. Dig. § 176.*] Appeal from District Court, Travis County; C. A. Wilcox, Judge. Action by the State of Texas against the Gulf, Colorado & Santa Fé Railway Company and another. From a judgment for the State, defendants appeal. Affirmed. Terry, Cavin & Mills and A. H. Culwell, all of Galveston, Alex S. Coke, of Dallas, Fiset, McClendon & Shelley, of Austin, and A. H. McKnight, of Dallas, for appellants. B. F. Looney, Atty. Gen., and Luther Nickels, Asst. Atty. Gen., for the State. Statement of the Case. RICE, J. For many years prior to the in 2. CONSTITUTIONAL LAW (§ 297*)-DEPRIVATION OF PROPERTY WITHOUT DUE PROCESS-stitution of this suit, appellants have operatWHAT CONSTITUTES. Such statute works no deprivation of property without due process of law, contrary to Const. U. S. Amend. 14, and Const. Tex. art. 1, $ 19, because, before any action can be taken by the Commission after determining that a union depot is practicable, the Commission must give notice to the companies, after which follows an investigation and public hearing, before any order can be made requiring the construction of such depots. [Ed. Note. For other cases, see Constitutional Law, Cent. Dig. §§ 832-834; Dec. Dig. 8 297.*] 3. CONSTITUTIONAL Law (§ 62*)—DELEGATION OF LEGISLATIVE POWER. Such statute is not invalid as investing the Railroad Commission with power at their option to enforce or waive it; it merely placing upon the Commission the duty of ascertaining whether facts exist at any particular place which would authorize the Commission to order the construction and maintenance of a union depot. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 94-102; Dec. Dig. § 62.*] 4. RAILROADS (58*)-RAILROAD COMMISSION -ORDER FOR UNION DEPOT. An order by the Railroad Commission under Gen. Laws (2d Extra Sess.) 31st Leg. c. 10 (Rev. St. 1911, arts. 6695, 6696), for the construction of a union depot by two railroad companies, whose lines intersected in a town, is not too vague for enforcement because it left to the railroad companies the right to determine the location and the character of the depot, and merely required them within 30 days from the date of the order to report the kind and character of the building they expected to erect, together with plans and specifications thereof for approval by the Commission. [Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 130, 131, 133, 135, 136; Dec. Dig. § 58.*] ed their respective lines of railway into and through the town of Celeste in Hunt county, crossing each other practically at right angles, during most of which time they have maintained distinct and separate depots about 440 yards apart, necessitating a transfer of passengers and baggage from one depot to the other. On May 3, 1910, a petition, signed by 109 citizens of said town, was presented to the Railroad Commission of Texas, complaining of such conditions, and requesting it, after to build and maintain a union passenger depot stating the above facts, to order appellants at said place. In response thereto, the Railroad Commission of Texas, on the 11th day of July, 1910, made and entered the following order, to wit, after stating the number and style of the case: "The above numbered and entitled cause, in pursuance of notice duly given, having been called for hearing by the Railroad Commission of Texas at its June term, 1910, and the Commission having heard the evidence offered and facts presented pertaining to the matters covered by the petition and the notice herein, and having duly considered the same, and having also inspected the physical conditions with respect to the location of a union passenger depot building at said station, is of opinion that the present passenger depot facilities of the railway lines entering the town of Celeste are inadequate and insufficient to the needs of the traveling public, and that the construction, operation, and maintenance of a union passenger depot in said town of Celeste, jointly by the railway companies hereinafter named, and whose lines enter said town, is both feasible and practicable, is just and reasonable to the railroad companies involved, is demanded by the public interest, and will be mutually beneficial to said railroad companies and the traveling public: Therefore, by virtue of the authority conferred upon it by law, it is hereby ordered by the Railroad Commission of Texas that the Missouri, Kansas & Texas Railway Company of Texas and the Gulf, Colorado & Santa Fé Railway Company be and they are hereby ordered and required to construct, operate, and maintain a union passenger depot building in the town of Celeste, Tex.; said depot building to be located so as to best serve the purpose for which it is intended, and the expense of construction, maintenance, and operation of said depot to be prorated between the said railway companies upon such basis as they may determine among themselves. It is further ordered by the Railroad Commission of Texas that, upon the completion of said union passenger depot building, all passenger trains operated by the above-named railway companies to or from the town of Celeste shall be operated to or from said union depot. It is further ordered, that, within 30 days from this date, plans and specifications for the depot building, hereinbefore required to be constructed, be prepared and submitted to this Commission at its office in the Capitol at Austin, in order that it may judge of the adequacy thereof and for its approval, and said depot building be constructed and ready for occupancy on or before October 15, 1910." It judgment further required said companies to prepare and submit to said Commission, within 30 days from final judgment, plans and specifications of such union passenger depot for the approval of the Commission. further required appellants to agree among themselves upon a basis for the division and prorating the cost of such building, and that, in the event they could not do so within 30 days from the date of final judgment, then such fact should be certified to the Railroad Commission, which would then apportion the costs between them. It was further ordered that the state recover nothing by way of penalties on account of the failure and refusal to obey said order, from which judgment this appeal is prosecuted. The trial court found the following conclusions of fact and law, which we adopt: "Findings of Fact. "(1) I find that on the 11th day of July, 1910, and for a long time prior thereto, and continuColorado & Santa Fé Railway Company and the Missouri, Kansas & Texas Railway Company of Texas, has each controlled and operated a line of railroad within this state, running into and through the town of Celeste, in Hunt county, road, and tracks intersect and cross at and in Tex., and that defendants' said lines of railsaid town of Celeste. This order was wholly ignored by the ap-ously since said date, the defendants, Gulf, pellants, and this suit was thereafter, on January 19, 1912, brought by the state, at the instance of the Railroad Commission, against both of them to enforce compliance therewith, and to recover the penalty of $5,000 on account of their failure so to do. Appellants answered by general and special exceptions, by which they assailed the validity of said order (1) on the ground that the act conferring authority on the Railroad Commission to make same was unconstitutional and void, in that it conferred legislative authority upon said Commission; (2) on the ground that it was the taking of the property of said appellants without due process of law and in violation of the fourteenth amendment to the Constitution of the United States, and of section 19, art. 1, of the Constitution of this state; (3) that it conferred authority upon said Commission to suspend or put in operation the law, at its option; (4) that said order was too vague and indefinite, in this, that it failed to name the place where said depot should be located; and (5) that the order did not prescribe the kind, character, quality, size, cost, or otherwise describe or define the depot that was to be erected thereunder. They also pleaded the general issue and specially averred that their present depots were adequate and confortable, and no necessity existed for the construction of a union depot at said place; that the public interest did not require it; and that the order of the Commission, as set up in the petition, was unreasonable, arbitrary, and unjust. The case was tried before the court without a jury, and resulted in a judgment on the 21st of October, 1913, overruling all of said exceptions, and awarding mandamus and mandatory writs of injunction compelling said railway companies to construct a union passenger depot at said place, and to have the same completed and ready for occupancy within 90 days from the date thereof. The "(2) I find that on the 11th day of July, 1910, the Railroad Commission of Texas, after legal notice to the defendants, and after a hearing upon the matters involved, ordered the said defendants to construct, operate, and maintain a union passenger depot building in said town of ment of facts being here referred to and incorCeleste; said order as it appears in the stateporated as a part of this finding. "(3) I find that the defendant Gulf, Colorado above referred to, and at this time, owns and & Santa Fé Railway Company upon the date operates a depot in said town of Celeste, which depot is old and inadequate for the reasonable needs at said place; said depot is situated so the citizens of Celeste having occasion to use as to be reasonably convenient and accessible to the same. "(4) I find that the defendant Missouri, Kansas & Texas Railway Company of Texas owns and operates a depot within the town of Celeste situated about 440 yards, by the most practicable route, from the Gulf, Colorado & Santa Fé depot. The depot of the Missouri, Kansas convenient and accessible to the people of Ce& Texas is reasonably adequate and reasonably leste. "(5) I find that it would be feasible and practicable for the defendant railway companies to construct and operate a union passenger depot at or near the junction of their lines of railroad. Such point would be about an equal distance from the main business portion of the town as is the present depot of the Gulf, Colorado & Santa Fé Railway Company, and would be about 100 yards nearer to the main business portion of the town than is the present depot of the Missouri, Kansas & Texas Railway Company. (6) I find that from four to five passengers having through tickets requiring a transfer from one of said roads to the other at said town of Celeste transfer at said point each month. I find further that each day a number of persons entering the town of Celeste over the line of one of said defendants upon local tickets leave the other defendant. said town on the same day upon the line of the Some of these, in order to make their connections, are required to go im mediately from one station to the other; and these, together with the through passengers mentioned above, would be accommodated by a union depot. However, many passengers entering the town upon one line of railway and leaving by the other have business in the town of Celeste between trains, and would not be especially accommodated by a union depot. "(7) I find that the union depot, if constructed at the junction of the two roads, would be reasonably convenient and accessible to the people of Celeste. "(8) I find that it would not be practicable for the defendant railway companies to consolidate their freight depots, and that the maintenance of a union passenger depot would require the employment of one or two additional persons to operate same, at a monthly expense of about $50 to each company, over and above the cost of the service under the present arrangement. "(9) The construction of a union depot at the junction of the two roads would require each of the defendants to remove or rearrange some of their tracks; and that the stopping of passenger trains at such point would probably operate at times to slightly delay trains on the other line. "(10) I find that, under the present arrangements, the railroad companies pay the expense of transferring through passengers and mail from one depot to the other, which expense would be obviated, should a union depot be built. “(11) I find that each of the defendant railroad companies failed and refused to obey the order of the Commission requiring the construction of a union depot; they being doubtful of the power of the Commission in the premises, and desiring to test the validity of said order. "(12) I find that the order of the Commission above referred to is not shown, by clear and satisfactory evidence, to be unreasonable or unjust to the defendants or either of them. "Conclusions of Law. "(1) I conclude that the act of the Legislature, under which the order of the Commission was entered, is valid and constitutional. "(2) I conclude that the Railroad Commission of Texas had the authority to enter the order requiring the defendants to construct a union depot at Celeste, and that said order is valid and binding upon the defendants, and each of them, and that the state is entitled to the writs of mandamus and mandatory injunction compelling the enforcement of said order." Opinion. [1] The first exception urged by appellants is that said order was void for the reason that the act of the Legislature upon which it was based did not impose the duty upon railway companies of constructing and maintaining union depots, but undertook to confer this power upon the Commission itself, and was therefore in contravention of the Fourteenth Amendment to the Constitution of the United States, and of section 19, art. 1, of the Constitution of Texas. The law upon which this order is based reads as fol lows: "Where two or more railroad companies reach the same city or town in this state, it shall be the duty of the Railroad Commission of Texas to ascertain whether it is practicable and feasible for such railroad companies to use a joint or union passenger depot; and, if the Railroad Commission finds upon investigation that it is practicable for such railroad compa. nies to join in the construction and use of a passenger depot, then it shall give notice to tion and public hearing, may require the construction and maintenance of such union passenger depot by the railroad companies entering any such city or town: Provided, that it shall appear to the Railroad Commission that the construction and maintenance of such joint or union passenger depot are just and reasonable to the railroad companies involved, and demanded by the public interest. The Railroad Commission may specify the requirements of such union depot as to kind and character; and said Railroad Commission may apportion the cost of constructing and maintaining the same to each railroad company in cases where the interested railroad companies cannot themselves agree. Failure upon the part of any railroad company to observe and obey the orders of the Railroad Commission, issued in compliance with the preceding article, shall subject such railroad company to the fines and penalties prescribed by law for failure to obey the lawful requirements, orders, judgments and decrees made by the Railroad Commission of Texas." Articles 6695 and 6696 of the Revised Statutes of 1911. See, also, Gen. Laws 31st Legis. 1909, p. 399. With reference to said insistence it is suffi cient to say that the question is no longer an open one in this state; it having been determined adversely to appellants' contention by this court in the case of State of Texas v. St. Louis Southwestern Railway Co. of Texas, 165 S. W. 491, in an opinion rendered May 21, 1913, not yet officially reported, in which a writ of error was denied by the Supreme Court of this state on December 10, 1913, in which opinion Mr. Justice Jenkins, in discussing this question, says: "We think a reasonable paraphrase of this act is that, when two or more railroads reach the same town, they shall be required to construct and maintain a union depot of the kind and character suitable to the needs of the station and demanded by the public interest, if the erection of such depot is practicable and feasible and just and reasonable to the railroads; and the existence or nonexistence of such facts shall be determined by the Railroad Commission. It is not left to the Commission to enact the law requiring railroads to build union depots, as appellees contend. The Legislature has done that. It is only left to the Commission to ascertain the existence of the facts upon which said law becomes applicable. Had the be built wherever the facts above set out exLegislature enacted that union depots should isted, without naming any tribunal to determine their existence, any one having the requisite interest in the subject-matter could, by suit in the district court, have compelled the erection of such depot upon proof of the existence of such facts. Is the law any less valid because it leaves the determination of these facts, in the first instance, to a commission of able and experienced men, rather than to a court? Is the Railroad Commission less capable of determining the existence or nonexistence of these facts than a judge or jury? Ought railroad companies be heard to complain that the ascertainment of these facts is referred in the first instance to such a commission, when they are given the right of appeal to a district court? We must answer these questions in the negative." And after discussing and quoting with approval both from Locke's Appeal, 72 Pa. 491, 13 Am. Rep. 716, and Moers v. City of Reading, 9 Harris (21 Pa.) 188, and Slack v. Railroad Co., 13 B. Mon. (Ky.) 25, con "We have no doubt as to the constitutionality of the law requiring railroads to build union depots at such places and of such character as the Railroad Commission shall find necessary for the accommodation of the public, when it shall also have found the other facts required by the statute; but, if any doubt existed on this subject, it would be our duty to resolve it in favor of the statute. Courts should not hold laws unconstitutional, unless they are clearly So. Petterson v. Commissioners, 24 Tex. Civ. App. 42, 57 S. W. 1002. The power of the courts to nullify a law enacted by the lawmaking department of the government is one that should be exercised with great caution, especially so in matters pertaining to governmental policies, the public health, and public utilities." Without undertaking to add further reasons to those given in said opinion, we overrule the first assignment presenting this question. [2] As to the second question raised, we differ with appellants in their contention that the statute above quoted deprives or tends to deprive them of their property without due process of law, or that it denies to them the equal protection of the law, within the meaning of the fourteenth amendment of the Constitution of the United States, or of section 19, art. 1, of our own Constitution, because before any action can be taken by the Commission, after determining that it is practicable and feasible for such railroad companies to use a joint or union passenger depot, it is made incumbent upon it to give notice to such companies, after which follows an investigation and public hearing, before any order can be made by the Commission requiring the construction of such depot. well said by the Attorney General in his brief: As district court they had and exercised the right of appeal, as in other cases. They have not been denied any right of procedure, but, on the contrary, they were accorded and exercised every right which the law gives to any citizen by its judicial machinery. It is apparent at a glance, therefore, that no objection can be leveled at the judgment because of any departure from the forms of the law." For the reasons stated, we overrule appellants' contention. See T. & N. O. Ry. Co. et al. v. Sabine Tram Co., 121 S. W. 256; Reagan V. Farmers' Loan & Trust Co., supra; Railway Co. v. Minnesota, 134 U. S. 458, 10 Sup. Ct. 462, 702, 33 L. Ed. 970. [3] We do not think there is any merit in appellants' insistence that the act in question invested the Commission with power, at their option, to enforce or not enforce the statute. It merely placed upon the Commission the duty of ascertaining whether or not such facts exist at any particular place as would authorize it to act. Statutes similar in principle have been upheld by the courts of our own state. See M., K. & T. Ry. Co. v. Shannon, 100 Tex. 379, 100 S. W. 138, 10 L. R. A. (N. S.) 681; Baldacchi v. Goodlet, 145 S. W. 325; Arnold v. State, 71 Tex. 239, 9 S. W. 120; Langenberg v. Decker, 131 Ind. 471, 31 N. E. 190, 16 L. R. A. 108; State v. Wood, 110 Ind. 82, 10 N. E. 639; Kuntz v. Sumption, 117 Ind. 1, 19 N. E. 474, 2 L. R. A. 655. The question at issue is entirely dissimilar, we think, to that presented by the facts in the case of Jannin v. State, 42 Tex. Cr. R. 631, 51 S. W. 1126, 62 S. W. 419, 96 Am. St. Rep. 821, wherein a law was declared unconstitutional which required agents of railway companies to stamp tickets before they could be used, making it a penal offense for a passenger to use such ticket without being stamped. Besides, if this case could be held in point, it would not be applicable here, since no penalty was imposed by the judgment for violation of the order of the Commission. We do not mean to hold by this suggestion, however, that a court could not impose the penalty denounced by statute against companies for a willful refusal to comply with a valid order of the Commission in this respect, nor that this act is invalid for the reason stated. "In this instance the notice was given in due time and form to appellants, the matter was duly set down for public hearing by the Railroad Commission, and the appellants both appeared, answered, and contested the issuance of the order by argument and the presentation of evidence; these facts appearing in the face of the order. There was certainly no denial of due process or of equal protection of the law up to this point. The order having been made and promulgated, the appellants had the right, under the provisions of articles 6657 and 6658, R. S. 1911, to bring their suit in any court of competent jurisdiction in Travis county, state or federal. Reagan v. Farmers' Loan & Trust Co., 154 U. S. 395 [14 Sup. Ct. 1047, 38 L. Ed. 1014]. This they did not choose to do. They simply neglected and refused to comply with [4] It is urged by demurrer that the order the order. Thereupon this suit was instituted was too vague and indefinite to be complied by the state to enforce the order. The suit hav- with, in that it did not designate the location ing been instituted, the appellants thereupon of such depot, and failed to state the kind filed their several answers contesting by allegation, as they had a legal right to do under and character of building or structure rethe terms of articles 6695 and 6696, as con- quired. We think it is unquestionably true strued by this court in the case of State of Tex- that the Commission under this statute had as v. St. Louis Southwestern Railway Co. of the right to determine for itself the location, Texas, supra, not only the authority of the commission to make the order, but also every fact as well as the character and kind of depot upon which the order rested for reasonableness. that should be erected; but it was permissiThe case was tried as an original action, and ble, we think, for it to leave these matters of the matters of fact were traversed de novo, in the district court, and appellants were allowed detail open to appellants, for the reason that to present by pleading, proof, and argument these questions might be best determined by every defense, both of law and fact, which they them. Their common interests would cause had or desired to present. After a full and com- them, it seems to us, to select some point for plete presentation of the issues, the questions of law and of fact were by the trial court re- the location of such depot where their own, |