GAINES, Associate Justice.
This case was before this court at a former term, and was reversed and remanded for a new trial in accordance with an opinion which is reported in 69 Texas, 707. The question then presented is not now involved. The action was brought by appellee against appellant to recover the penalty prescribed by the Act of May 6, 1882, for the failure of the company to deliver to him certain merchandise transported by it upon his tender of the charges for carriage specified in the bill of lading. The defendant interposed an exception to the petition and now insists that the court erred in overruling it.
The bill of lading was for a certain car load of nails received at the city of Pittsburg, in the State of Pennsylvania, by the Pittsburg, Cincinnati & St. Louis Railway Company, and bound that company to transport the merchandise from that city to the city of Brenham, in the State of Texas, for a freight charge of 8197.50. The statute under which the proceeding was instituted reads as follows: “That any railroad company, its officers, agents, or employes, that shall refuse to deliver to the owner, agent, or consignee, any freight, goods,, wares, and merchandise of any kind or character whatever, upon the payment or tender of payment of the freight charges shown by the bill of lading, the said railroad [579]*579company shall be liable in damages to the owner of said freight, goods, wares, or merchandise to an amount equal to the amount of the freight charges for every day said freight, goods, wares, and merchandise is held after payment or tender of payment of the charges due as shown by the bill of lading, to be recovered in any court of competent jurisdiction.” Laws of Called Session of 17th Leg., 35.
It is urged that the law as applied to the transaction alleged in the petition is a regulation of commerce between the States, and is such as only the Congress of the United States has the power to make. If so, the Legislature had no power to make such a law in reference to bills of lading for the carriage of goods from another State into this State, and it would be our duty either to construe the act as not applying to such bills of lading, or to hold that as so applied it is in contravention of the Constitution of the United States, and therefore void. We would not, however, in construing the act, give it an application that would render any part of it void unless the intent to so apply it was made manifest by "the language of the act itself.
But the question recurs, is the'provision under consideration in contravention of the Federal Constitution? As to what laws passed by the Legislature of a State are to be deemed a regulation of commerce between the States within the meaning of that Constitution there have been numerous decisions in the courts of the United States. Considering the all-pervading influence of the commerce of the country, and that any State law in relation to commercial transactions not confined to those begun and completed within the State would almost necessarily affect in some degree the commerce between the States, the result is not surprising. From the opinions delivered in the case of the Wabash Railway Company v. Illinois, 118 United States, 557, it would seem that the decisions of the Supreme Court of the United States upon these questions have not been altogether consistent, but it also appears from that and later cases in the same court that the tendency now is to extend the power of Congress over matters affecting interstate commerce, and correspondingly to restrict that of the States. We think, however, that by the decisions of that court (which are authoritative- upon these questions) the following propositions must be deemed to have been settled:
1. That a State can make no law regulating the rate of freight for the carriage of goods between that and another State, although the regulation be construed as applying only to so much of the line of transit as lies within its own borders. Wabash Railway Co. v. Illinois, supra.
2. That it can make no law which imposes either directly or indirectly a burden by way of taxation upon interstate commerce. Pickard v. Pullman, 117 U. S., 1; State Freight Tax Case, 15 Wall., 232; Gloucester Ferry Co. v. Pennsylvania, 114 U. S., 196; Walling v. Michigan, 116 U. S., 446; Telegraph Co. v. Texas, 105 U. S., 460; County of Mobile v. [580]*580Kimball, 102 U. S., 691; Robbins v. Shelby Taxing District, 120 U. S., 489; Leloup v. Mobile, 127 U. S., 640; Asher v. Texas, 128 U. S., 129.
3. That wharves and bridges and ferries across streams constituting the boundaries between the States may be established and regulated by the States in the absence of legislation on the same subject by Congress, provided no burden other than an ordinary charge for their use be imposed upon the commerce passing over them. Gilman v. Philadelphia, 3 Wall., 713; Escanaba Company v. Chicago, 107 U. S., 678; Transportation Co. v. Parkersburg, 107 U. S., 691.
4. That in the exercise of their police powers, the States may enact laws which, though they affect commerce between the States, are not to be considered regulations of that commerce within the meaning of the Constitution of the United States. Railroad Co. v. Fuller, 17 Wall., 560, and cases there cited; Smith v. Alabama, 124 U. S., 465.
Is the law in question in this suit a proper exercise of the police power of the State? This power relates to such a number and variety of subjects that it is impossible to define it, except in terms so general that the definition is of but little practical utility in any case difficult of solution. We think, however, the opinions in the cases last cited throw much light upon the question before us.
In Railway Company v. Fuller the question was as to the validity of a statute of Iowa, which required all railway companies in the State, in September of each year, to fix their rates of fare for passengers and freight, and on the 1st day of October following to post up at their depots a printed copy of such rates, and to cause a copy to remain posted during the year, and subjected the companies to penalties in case of a failure to comply with its provisions. In the conclusion of their opinion the court use this language: “If the requirements of the statute here in question were * * * regulations of commerce, the question would arise whether, regarded in the light of the authorities referred to, and of reason and principle, they are not regulations of such a character as to be valid until superseded by the paramount power of Congress. But as we are unanimously of the opinion that they are merely police regulations, it is unnecessary to pursue the subject.”
In Smith v. Alabama, supra, the court say: “A carrier exercising his calling within a particular State, although engaged in the business of interstate commerce, is answerable, according to the law of the State, for acts of nonfeasance or misfeasance committed within its limits. If he fail to deliver goods to the proper consignee at the right time or place, he is liable to an action for damages under the laws of the State in its courts; or if by negligence in transportation he inflicts injury upon the person of a passenger brought from another State, a right of action for the consequent damage is given by the local law. In neither case would it be a defense that the law giving the right to redress was void, as being [581]*581an unconstitutional regulation of commerce by the State. This, indeed, was the very point decided in Sherlock v. Ailing, 93 United States, 99.”
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GAINES, Associate Justice.
This case was before this court at a former term, and was reversed and remanded for a new trial in accordance with an opinion which is reported in 69 Texas, 707. The question then presented is not now involved. The action was brought by appellee against appellant to recover the penalty prescribed by the Act of May 6, 1882, for the failure of the company to deliver to him certain merchandise transported by it upon his tender of the charges for carriage specified in the bill of lading. The defendant interposed an exception to the petition and now insists that the court erred in overruling it.
The bill of lading was for a certain car load of nails received at the city of Pittsburg, in the State of Pennsylvania, by the Pittsburg, Cincinnati & St. Louis Railway Company, and bound that company to transport the merchandise from that city to the city of Brenham, in the State of Texas, for a freight charge of 8197.50. The statute under which the proceeding was instituted reads as follows: “That any railroad company, its officers, agents, or employes, that shall refuse to deliver to the owner, agent, or consignee, any freight, goods,, wares, and merchandise of any kind or character whatever, upon the payment or tender of payment of the freight charges shown by the bill of lading, the said railroad [579]*579company shall be liable in damages to the owner of said freight, goods, wares, or merchandise to an amount equal to the amount of the freight charges for every day said freight, goods, wares, and merchandise is held after payment or tender of payment of the charges due as shown by the bill of lading, to be recovered in any court of competent jurisdiction.” Laws of Called Session of 17th Leg., 35.
It is urged that the law as applied to the transaction alleged in the petition is a regulation of commerce between the States, and is such as only the Congress of the United States has the power to make. If so, the Legislature had no power to make such a law in reference to bills of lading for the carriage of goods from another State into this State, and it would be our duty either to construe the act as not applying to such bills of lading, or to hold that as so applied it is in contravention of the Constitution of the United States, and therefore void. We would not, however, in construing the act, give it an application that would render any part of it void unless the intent to so apply it was made manifest by "the language of the act itself.
But the question recurs, is the'provision under consideration in contravention of the Federal Constitution? As to what laws passed by the Legislature of a State are to be deemed a regulation of commerce between the States within the meaning of that Constitution there have been numerous decisions in the courts of the United States. Considering the all-pervading influence of the commerce of the country, and that any State law in relation to commercial transactions not confined to those begun and completed within the State would almost necessarily affect in some degree the commerce between the States, the result is not surprising. From the opinions delivered in the case of the Wabash Railway Company v. Illinois, 118 United States, 557, it would seem that the decisions of the Supreme Court of the United States upon these questions have not been altogether consistent, but it also appears from that and later cases in the same court that the tendency now is to extend the power of Congress over matters affecting interstate commerce, and correspondingly to restrict that of the States. We think, however, that by the decisions of that court (which are authoritative- upon these questions) the following propositions must be deemed to have been settled:
1. That a State can make no law regulating the rate of freight for the carriage of goods between that and another State, although the regulation be construed as applying only to so much of the line of transit as lies within its own borders. Wabash Railway Co. v. Illinois, supra.
2. That it can make no law which imposes either directly or indirectly a burden by way of taxation upon interstate commerce. Pickard v. Pullman, 117 U. S., 1; State Freight Tax Case, 15 Wall., 232; Gloucester Ferry Co. v. Pennsylvania, 114 U. S., 196; Walling v. Michigan, 116 U. S., 446; Telegraph Co. v. Texas, 105 U. S., 460; County of Mobile v. [580]*580Kimball, 102 U. S., 691; Robbins v. Shelby Taxing District, 120 U. S., 489; Leloup v. Mobile, 127 U. S., 640; Asher v. Texas, 128 U. S., 129.
3. That wharves and bridges and ferries across streams constituting the boundaries between the States may be established and regulated by the States in the absence of legislation on the same subject by Congress, provided no burden other than an ordinary charge for their use be imposed upon the commerce passing over them. Gilman v. Philadelphia, 3 Wall., 713; Escanaba Company v. Chicago, 107 U. S., 678; Transportation Co. v. Parkersburg, 107 U. S., 691.
4. That in the exercise of their police powers, the States may enact laws which, though they affect commerce between the States, are not to be considered regulations of that commerce within the meaning of the Constitution of the United States. Railroad Co. v. Fuller, 17 Wall., 560, and cases there cited; Smith v. Alabama, 124 U. S., 465.
Is the law in question in this suit a proper exercise of the police power of the State? This power relates to such a number and variety of subjects that it is impossible to define it, except in terms so general that the definition is of but little practical utility in any case difficult of solution. We think, however, the opinions in the cases last cited throw much light upon the question before us.
In Railway Company v. Fuller the question was as to the validity of a statute of Iowa, which required all railway companies in the State, in September of each year, to fix their rates of fare for passengers and freight, and on the 1st day of October following to post up at their depots a printed copy of such rates, and to cause a copy to remain posted during the year, and subjected the companies to penalties in case of a failure to comply with its provisions. In the conclusion of their opinion the court use this language: “If the requirements of the statute here in question were * * * regulations of commerce, the question would arise whether, regarded in the light of the authorities referred to, and of reason and principle, they are not regulations of such a character as to be valid until superseded by the paramount power of Congress. But as we are unanimously of the opinion that they are merely police regulations, it is unnecessary to pursue the subject.”
In Smith v. Alabama, supra, the court say: “A carrier exercising his calling within a particular State, although engaged in the business of interstate commerce, is answerable, according to the law of the State, for acts of nonfeasance or misfeasance committed within its limits. If he fail to deliver goods to the proper consignee at the right time or place, he is liable to an action for damages under the laws of the State in its courts; or if by negligence in transportation he inflicts injury upon the person of a passenger brought from another State, a right of action for the consequent damage is given by the local law. In neither case would it be a defense that the law giving the right to redress was void, as being [581]*581an unconstitutional regulation of commerce by the State. This, indeed, was the very point decided in Sherlock v. Ailing, 93 United States, 99.”
The statute we have under consideration, like every other law which gives a remedy to the shipper against the carrier for a violation of his contract, does in some remote degree affect interstate commerce when applied to a contract of carriage from one State to another. But it imposes no tax; it neither fixes nor regulates any rates; it makes no discrimination between commerce wholly within the State and that between the State and other States; it imposes no duty upon any carrier not already imposed by the common law. It applies to all railroad companies in the State and to all contracts of carriage alike, and merely provides a penalty for the purpose of enforcing a compliance with an obligation which already existed at common law. In respect of the question before us the statute is not distinguishable from any other law affording a remedy for the breach of a contract of carriage of goods between two States.
We conclude that the statute was a proper exercise of the police power ■ reserved to the State and is therefore valid. The court therefore did not err in overruling the defendant's exception to the petition.
In answer to the petition the defendant pleaded that the shipment which gave rise to this controversy was over the Pittsburg, Cincinnati & St. Louis Railway to St. Louis, and thence over the Texas & St. Louis Railway to McGregor, Texas, where the freight was delivered to its road for transportation to Brenham; that the Pittsburg, Cincinnati & St. Louis company had no authority to contract for the carriage of the nails over its road, and that its agents at McGregor received the freight for transportation to Brenham at its customary rates without having any knowledge of the bill of lading executed by that company; that upon receipt of the freight it-paid the accrued charges as shown by the waybill to be §197.50, and that its charges in addition amounted to §35. The entire charges as shown by the bill of lading were §197.50.
The defendant introduced evidence of the facts alleged in its answer, and the court charged the jury as follows: “If the court believe from the evidence that the defendant company received the nails at the town of McGregor from another company and transported them to the town of Brenham, this would constitute an affirmance of the original contract of shipment, and the defendant thereby became bound by the terms of the shipment as shown in the bill of lading.”
In this we think there was error. Our statutes make it obligatory upon every railroad company in this State to draw over their road without delay the passengers, merchandise, and cars of every other railroad company which may enter and connect with their road. Rev. Stats., art. 4251; see also arts. 4226, 4227, 4251, 4254. In the absence of a provision of this character it might be proper to hold that a carrier who has received freight from another carrier upon a through bill of lading, without any [582]*582express agreement as to the charges, should be presumed to have ratified the bill of lading, though made without its authority, and to have become a party to the contract. But certainly when the carrier is bound by statute to receive and transport the goods without delay upon tender by the connecting carrier no such presumption should be indulged. Such a rule would be to force a contract upon a carrier to which he had not given his consent, and compel him to carry at a rate fixed by- another company. The result of the construction of the law by the court below is that a railroad company is not permitted to refuse to receive the goods for transportation, yet if it does receive them it ratifies by that act a bill of lading made without its authority. This, in our opinion, can not be tolerated.. We so held at the last Tyler Term in a case not yet reported. Should a. railroad company in Arkansas receive freight to be transported to El Paso,, in this State, for a less charge for the whole distance than the customary charge of the Texas road for the transportation over its own line, could the latter be forced to accept the contract? We think not. We do not think the Legislature intended that such a construction should be given to the statute under consideration. Our opinion is that the act only applies when the railroad company that is sought to be charged in damages has either itself executed the bill of lading of authorized another company to execute it, or has ratified it by some voluntary act on its part. Instead of the charge complained of, the court should have given an instruction in substance the same as charge Ho. 1 requested by defendant.
We think the court should not have excluded the original 'waybill when offered in evidence. In connection with other testimony it showed that defendant paid at the time it received the nails accrued charges amounting to as much as the entire charge agreed upon in the bill of lading for the transportation of the property for the whole distance, and tended to show that it never intended to ratify that contract.
We infer from the statement appended to the bill of exceptions that the depositions of the witnesses Murray and Dodge were objected to in writing, and were suppressed at a term of the court previous to the trial. If so the bill of exceptions should have been then taken, and the depositions were properly excluded when offered on the trial.
The plaintiff has filed cross-assignments of error. The goods were first, demanded on the 15th of December, 1884, and again on the 27th of January, 1885. On both occasions the charges shown by the bill of lading were tendered. There was a dispute whether or not the bill of lading was presented at the time of the first demand. It was formally exhibited to the company agent when the second tender and demand were made. Dnder these circumstances the court charged the jury, in effect, that in order to make the demand effectual under the statute the plaintiff must at the time have exhibited his bill of lading; and refused to charge that such presentation of the instrument was not necessary. We are of opinion that. [583]*583the court erred in these rulings. The statute does not expressly require that the bill of lading shall be shown to the agent of the railroad company when the goods are demanded; nor do we find anything in either the words of the act or the nature of the business from which it ought reasonably to be inférred that the Legislature so intended. It is to be presumed, as a matter of law, that a party to a contract knows its contents; and as a matter of fact it is not unreasonable to suppose that the agents of a railroad company who receive freight at its destination know the charges which the company is entitled to receive, as shown by the bill of lading. We think, therefore, that it was not intended that the exhibition of the bill of lading at the time of the tender of the money and demand of the goods should be a condition precedent to the recovery of the damages. But the statute is strictly penal, and the penalty is severe, and we think a case may arise in which the owner of the goods should not recover if he has refused to exhibit his contract. It is only for a willful disregard of the law that its penalties should be inflicted. Hence, if there should be a mistake, if the agent of the company should not in fact know the contents of the bill, and should the owner of the goods, having it in his power, refuse to produce it, he would not be entitled to recover.
In regard to appellee’s second assignment of error it is sufficient to say that it was decided upon the former appeal that the defendant had no right to require of plaintiff a receipt for the overcharge, and that if such a right should be insisted upon on another trial, it would be proper to instruct the jury that it did not exist. If no issue should be again made upon the question we do not see that such an instruction would be either necessary or proper.
For the errors pointed' out the judgment is reversed and the cause remanded. Each party will pay one-half of the costs of this appeal.
Reversed and remanded.
Delivered January 14, 1890.