W. F. Ogdon, who was at that time appel- anything, and Smith answered that neither lant's cashier. Appellee by answer contro- bank owed the other anything; and wrote verted the allegations of the petition and Roberts the following letter, to wit: "Globe denied all liability for the sum sued for, Bank & Trust Co., Paducah, Ky., Mar. 7th, but admitted as a matter of form, without 1904. Mr. D. S. Roberts, West Point, Ky.any view or purpose of making it liable for Dear Sir: I have your favor of the 29th, in the payment of the note, that the amount regard to the paper of W. F. Ogdon and D. was temporarily credited on its books for the S. Roberts. Mr. Ogdon sent us a paper of purpose hereinafter explained. It appears $2,000.00 signed by himself and you. We from the record that during the year 1901 held this paper in abeyance not discounted, W. F. Ogdon and W. B. Smith, with the intending to help him make good his reserve aid of others in and about West Point, Ky., in case he should need it. You will find no organized appellant bank, and elected Ogdon, acknowledgment of the proceeds of same in a stockholder, its cashier, which position he your records anywhere. Now, if you have held until some time in February, 1903. W. charged against us $1,980.00 passed to his B. Smith also became a stockholder to the credit, you should credit our account by $1,extent of $2,000, and afterwards became a 980.00 and charge same back to his account, stockholder and vice president of appellee then so notify me as an official of your inbank in Paducah, Ky., and was connected stitution, and I will send you the old note. with the management of it. During the lat- Hoping this will be satisfactory to you, I am, ter part of the year 1903 Ogdon, appellant's Yours truly, W. B. Smith." After sending cashier, became short in his accounts with this letter, Smith sent the note to Roberts, the bank. This was not known to Smith, nor who was at the time cashier of appellant to any of the officials of appellant bank, but | bank, and he has retained it ever since. The it seems that they suspicioned that some accountant who was employed by appellant thing was wrong in his accounts. It appears to audit its books did not consider this $1,without contradiction that appellant was 980 claim in making out a statement of the short in its reserve to the extent of about | $2,000, and the 31st day of December was the day on which the report of its financial condition had to be made to the Auditor of the state, and it was necessary for it to obtain that amount of funds to incorporate into the report to save its existence.

bank's affairs. This is shown in the report made by the accountant to the bank, to which he attached this letter by Smith. Thus matters stood until this action was instituted in the year 1906. D. S. Roberts, vice president and assistant cashier of appellant, testified, in substance, that about the 29th day of De

proached him, and said: "Now here, I have got to make my report, and I haven't had time to go up and see Mr. Yancey [president of the bank]. I have been busy, and I have got to have this money right away. * * Witness stated that he started to sign the note as vice president, and Ogdon objected to his signing it that way, and witness said to him: "Why won't you let me sign it as vice president, like I do these other notes?" To this Ogdon answered: "I just want to get my cash reserve up. It will be paid in a few days, and that will be all." He also stated that, after Ogdon left, he and Weaver, the accountant, were appointed a committee to confer with the Globe Bank & Trust Company to see if $1,980 was on deposit there to the credit of appellant bank; that they telephoned and wrote Smith, and he answered by phone that "this bank don't owe your bank, and your bank don't owe this bank a cent." He also testified that as an official of the Kentucky & Indiana Bank he made a request of Smith that the note be returned to him, which was complied with by Smith. Ogdon testified that he signed the note as principal with Roberts as surety with the intention of becoming bound to appellee bank for the purpose of obtaining credit for appellant in the sum of $1,980.

W. B. Smith testified that appellant's cash-cember, 1903, Ogdon, the then cashier, apier, Ogdon, called him over the telephone on the 29th day of December, related these facts to him, and asked for his assistance in the matter; that he agreed that if Ogdon would execute his individual note for $2,000, and send it to him with a letter, signed as an official of the bank, stating in substance that the money should not be withdrawn from appellee bank, but permitted to remain there for the purpose of paying the note when it became due, he would in that way give him the assistance requested. He stated that the letter did not arrive, but that the note reached him in Paducah on the 31st day of December, 1903, after the books of the bank had been balanced for the day; that he interlined a credit of $1,980 for the benefit of appellant, and charged Ogdon and Roberts with $2,000, which was the amount of the note including the discount, and immediately wrote to Ogdon for the separate writing referred to, which he failed to send him. On or about the 7th day of February, 1904, Ogdon left the state, and an accountant was engaged to investigate the books of appellant bank, and it was discovered that Ogdon was short in his account with the bank about $3,500. D. S. Roberts, during this time vice president and assistant cashier of appellant bank, and who had signed this note as surety, called Smith over the telephone, and ask

Several business men of Paducah testified

In the absence of a statute conferring the authority, courts have no power to revise rates made by the Railroad Commission, but in the exercise of their equity powers they may enjoin such rates as confiscatory and violative of the federal and state Constitutions.

[Ed. Note.-For other cases. see Carriers, Cent. Dig. § 20; Dec. Dig. § 18.*] 2. CARRIERS (§ 12*)-REGULATION OF RATESJUDICIAL REVIEW.

4565 and 4566 of the Revised Statutes, which GULF, C. & S. F. R. CO. et al. v. RAILROAD are copied in our former opinion. In the COMMISSION OF TEXAS. case of Railroad Commission v. Houston & (Supreme Court of Texas. March 10, 1909.) Texas Central Railroad Co., 90 Tex. 340, 355, 1. CARRIERS (§ 18*)-REGULATION OF RATES-38 S. W. 750, 756, this court held that in a JUDICIAL REVIEW. proceeding under those articles of the statute it was not necessary for the railroad company to show that the rate attacked was confiscatory, but that the issue was whether or not under all the facts and circumstances the rate was unreasonable and unjust, and, in answer to the second question propounded in that case, the court said: "In actions of this character the courts will determine the question of reasonableness and justice of any matter by the same rules as if it were an issue in other classes of suits, except as to the conclusive character of the evidence." Railroad Commission v. Weld & Neville, 96 Tex. 404, 73 S. W. 529. If articles 4565 and 4566 had not been enacted by the Legislature, the courts would have no authority to revise rates made by the Railroad Commission, but in the exercise of their equity powers the courts could enjoin such rates if found to be confiscatory; that is, violative of

Rev. St. 1895, arts. 4565, 4566, authorizing a railroad company or other person interested, dissatisfied with any rate adopted by the Railroad Commission, to file a petition setting forth the objection, and providing that in actions to contest the reasonableness of rates the burden is on plaintiff to show by satisfactory evidence that the rates are unreasonable, confer on the courts power to examine into the reasonableness and justice of rates fixed by the Railroad Commission, and a citizen, as well as a railroad company, instituting an action, must show by clear and conclusive proof that the rates complained of are unreasonable.

[Ed. Note.-For other cases. see Carriers, Cent. Dig. §§ 11, 19; Dec. Dig. § 12.*] the Constitution of this state or of the Unit3. CARRIERS (§ 18*)-REGULATION OF RATES-ed States. Those articles conferred authority JUDICIAL REVIEW. Where the petition of a railroad company upon the courts to examine into the reasonattacking the reasonableness of a rate fixed by ableness and justice of such rates, and in the Railroad Commission is demurred to, the the exercise of that jurisdiction the courts court, in determining whether the unreasonableness of the rate is established by clear and sat- will try the questions as if they arose in any isfactory evidence, must consider the allegations other proceeding. Article 4566 places the of the petition as facts proved by clear and citizen in such an action as this upon the satisfactory evidence. same footing as it does the railroad corporations and requires of such citizen who may be a shipper upon the railroad to make just as clear and conclusive proof of the unreasonableness or injustice of the rates as is required of a railroad company.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. § 20; Dec. Dig. § 18.*] 4. CARRIERS (§ 12*)—REGULATION OF RATES

JUDICIAL REVIEW.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 11, 19; Dec. Dig. § 12.*]

On rehearing. Former decision overruled.
For former opinion, see 113 S. W. 741.

Where a railroad company attacking the reasonableness of the rate on lumber as fixed by the Railroad Commission showed that the revenue derived from hauling lumber at such rate It is true that by article 4566 the railroad was not sufficient to pay the cost of transporta- company, or shipper, who attacks the rate or tion, the rate was unreasonable, though a rail-order of the commission, has the burden to road company cannot select an unimportant ar- show by "clear and satisfactory evidence" ticle and attack the rate prescribed for that as unreasonable because it does not pay for the that the rate or order, etc., attacked in the transportation thereof. proceeding is unjust and unreasonable in its effect upon such carrier or person. The question presented to us is: If the facts alleged in the applicant's petition shall be established by "clear and satisfactory evidence," would a jury be authorized to find a verdict that such rates, charges, etc., were unreasonable and unjust to the appellant? In passing upon the question we must consider the allegations in the petition as facts proved by "clear, satisfactory, and uncontroverted evidence." It is a matter of common knowledge that lumber is one of the principal articles of transportation on the railroads and a chief source of income. It being true that the revenue derived from hauling lumber over the appellant's road does not yield sufficient revenue to pay for the cost of transporting it, not including inThis action was brought under articles terest on investment, taxes, or other ex

BROWN, J. In making our former answer to the questions propounded by the Court of Civil Appeals, we assumed that the railroad operated by the appellant extended beyond Center to the North, and upon that assumption we based our conclusion. We were mistaken as to that fact. The two railroads by connecting with each other reach from Beaumont to Center and terminate at the latter place; the appellant operating no road beyond Center. Therefore we grant the motion for a rehearing and will re-ex• amine the question.

penses, there could be no reasonable doubt | ervation,' which were taken off the market

that such rate, applied to lumber would be unreasonable and unjust to that railroad.

It does not follow that a railroad company might select an unimportant article and attack the rate prescribed for that as being unreasonable because it would not pay for the transportation of such article alone. Public carriers must of necessity carry many things which of themselves would not compensate them for the carriage.

and reserved from sale by an act approved January 22, 1883, containing valuable mineral deposits, are hereby reserved from sale or other disposition, except as herein provided, and are declared free and open to exploration and purchase under regulations prescribed by law, by citizens of the United States and those who have declared their intention of becoming such; provided, that all who have located and recorded valid claims

The trial court erred by sustaining the under previous valid laws and have not demurrer to plaintiff's petition.

DE MERITT v. ROBISON, Land Com'r. (Supreme Court of Texas. March 10, 1909.) 1. BOUNDARIES (§ 15*) GRANT OF LAND

BORDERING ON NAVIGABLE WATERS. At common law a grant of land bordering on the coast where the tide ebbs and flows conveys title only to the line of ordinary high tide, unless there is something to indicate an intention to extend the grant beyond that line.

[Ed. Note.-For other cases, see Boundaries, Cent. Dig. §§ 108-110; Dec. Dig. § 15.*] 2. NAVIGABLE WATERS (§ 37*)-LANDS UNDER WATER STATUTES-PURCHASE OF "PUBLIC LANDS."

Rev. St. 1895, arts. 3498a, 3498j, declaring that "public school, university, asylum and public lands" shall be open to purchase by any person having the right to purchase, etc., do not give any one the right to purchase lands under water at ordinary high tide and uncovered at low tide. The words "public lands," though meaning different lands from the school, university, or asylum lands, did not include soil lying below the line of ordinary high tide.

[Ed. Note.-For other cases, see Navigable Waters, Dec. Dig. § 37.*

For other definitions, see Words and Phrases, vol. 6, pp. 5793-5795; vol. 8, p. 7772.]

Original petition for mandamus by F. J. De Meritt against J. T. Robison, Commissioner of the General Land Office, to compel respondent to accept relator's application to purchase public land. Denied.

Lock McDaniel, D. W. Doom, and D. H. Doom, for relator. R. V. Davidson, Atty. Gen., and Wm. E. Hawkins, Asst. Atty. Gen., for respondent.

BROWN, J. De Meritt instituted this proceeding in this court to. procure the issuance of a writ of mandamus to the Commissioner of the General Land Office requiring him to accept relator's applications to purchase two tracts of public land situated in Harris county; each tract containing 80 acres. The relator sought to purchase the land by virtue of the following articles of the Revised Statutes of 1895:

abandoned same, but are engaged in developing same, shall have a prior preference right for ninety days after the passage of this title in which to relocate same under this title."

"Art. 3498j. Within twelve months after the filing of the affidavit hereinafter provided for, any person or association of persons qualified as required by article 3498a, shall have the right to purchase and obtain patent by compliance with this title, or any of the lands of the state which are specified or included in article 3498a, containing valuable deposits of kaolin, baryta, salt, marble, fire clay, iron ore, coal, oil, natural gas, gypsum, nitrates, mineral paints, asbestos, marl, natural cement, clay, onyx, mica, precious stones or any other nonmetallic mineral and stones valuable for ornamental or building purposes or other valuable building material, in legal subdivisions, in quantity not exceeding one section; provided, that where any such parties shall have heretofore expended, or shall hereafter expend, five thousand dollars in developing the aforesaid mineral resources of any of said lands, such party shall have the right to buy one additional section and no more, and to include in the purchase any section or part thereof on which the work may have been done," etc.

The relator alleged that in pursuance of the law he had the said lands surveyed and the field notes returned to the General Land Office, which were approved as correct by the commissioner. It is alleged, in detail, that the relator performed every act that the law required of him in order to entitle him to purchase the land. The respondent admitted the truth of all of the facts alleged in the petition, but averred "that the two tracts of submerged lands, which are described in relator's petition in this cause, are, according to the official map of Harris county, Tex., and the chart of the United States Coast and Geodetic Survey, and in fact under the shallow waters of San Jacinto Bay, which is an arm of Galveston Bay, which, in turn, is a portion of the Gulf of Mexico, and that all and every portion of each of the two tracts of land aforesaid is within tide water limits and under the ebb and flow of the tides from the high seas through the Gulf of Mex-. ico, Galveston Bay, and San Jacinto Bay,

"Art. 3498a. All public school, university, asylum and public lands specially included under the operation of this title, all the lands now owned by the state situated within the reservation known as the 'Pacific Res

aforesaid." The facts alleged and admitted to make a grant of such submerged lands; on both sides show the land to be submerged his power being limited to the Gulf coast. lands under the shallow waters of San Ja- The court said: "We think that there is no cinto Bay, which is an arm of Galveston Bay, doubt that the proposition that the title to and that at ordinary tide the land is cov- the land covered by the navigable waters of ered with water to the depth of 18 inches, the bay did not pass by the grants is well but when the tide ebbs the land is uncovered. | founded. According to both the common and The question which arises upon this state of facts is: Does this land come within the terms "public land," as used in article 3498a, copied above, and is it subject to purchase, under article 3498j?

civil law, an ordinary grant of land along the seacoast, made by the ministerial officer of the government, did not pass the title to land under water or beyond the coast line. This line was fixed by the common law at the point reached by ordinary high tide, and by the civil law at the mark of the highest tide. The exterior boundary line of the grant to Power and Hewitson was the seacoast (Sayles' Early Laws, 108; Hamilton v. Menifee, 11 Tex. 718), and no authority was

Neither the title of the state to the land which was sought to be purchased, nor the power of the state to sell the land, is involved in this litigation. Therefore the exhaustive argument of learned counsel for the relator upon those questions is not applicable to the facts in the record. Undoubted-given them over the waters of the sea, or ly the use of the language "all public school, university, asylum and public lands" signifies that "public lands" mean different lands from the school, university, or asylum lands; but it does not necessarily follow that it includes all other lands except those enumerated. This court put a different construction on similar language in the following case: In 1889 the Legislature of this state granted to A. A. Wallace a certificate for land, in which it was recited: "The said certificate may be located upon any of the vacant public lands of the state either within or without the several reservations heretofore created by law." The certificate was located on Mustang Island, and, the land of the island being offered for sale, a bid was made for the land covered by the certificate. The commissioner refused to accept the bid, and an application was made to this court for a mandamus to compel the commissioner to accept the bid. It was contended that the words "any of the vacant public lands of the state" included islands along the Gulf coast, but this court held in an opinion by Judge Williams that the islands were not included in such general language. Roberts v. Terrell, 110 S. W. 733.

The rule at common law is that a grant of land bordering on the coast where the tide ebbs and flows conveys title only to the line of ordinary high tide, unless there be something to indicate an intention to extend the grant beyond that line. Mann v. Tacoma Land Co. (C. C.) 44 Fed. 27; Id., 153 U. S. 273, 14 Sup. Ct. 820, 38 L. Ed. 714; Morris v. United States, 174 U. S. 237, 19 Sup. Ct. 649, 43 L. Ed. 946; Galveston v. Menard, 23 Tex. 349; Roseborough v. Picton, 12 Tex. Civ. App. 113, 34 S. W. 791, 43 S. W. 1033. In Roseborough v. Picton, cited above, the issue was the limits of a grant of land bordering on the Gulf coast made to one Hynes by the commissioner of Power and Hewitson's colony, which grant embraced a part of the shallow waters of a bay where the tide ebbed and flowed. It was held in that

of the bays and inlets, or of the soil under them. These are, by well-settled principles, reserved for common use. Hence the grants by the commissioner of that colony passed ti tle only to land which was not under the waters of the sea. Galveston v. Menard, 23 Tex. 349; Galveston Surf B. Co. v. Heidenheimer, 63 Tex. 562; Arnold v. Mundy, 6 N. J. Law, 1, 10 Am. Dec. 356; Den v. Sawyer, 9 N. C. 226; Martin v. Waddell, 16 Pet. 369, 10 L. Ed. 997." That opinion was approved by this court in Hynes v. Packard, 92 Tex. 49, 45 S. W. 563, saying: "In Roseborough v. Picton, 12 Tex. Civ. App. 113, 34 S. W. 791, the title to the same land was involved, and the Court of Civil Appeals in a very clear opinion by Judge Williams decided that the land was not the subject of grant by the officer who executed the Hynes title, and that no right passed by such grants. We think the decision is correct. Hynes, having no title, conveyed none, and was liable upon his covenant of warranty."

There is nothing in articles 3498a and 3498j which indicate that the Legislature used the words "public lands" in a sense other than that which the law attaches to them. It follows that the relator had no right to purchase, nor had the commissioner power to sell, the soil lying below the line of ordinary high tide. In contemplation of law it was not land, but water.

It is therefore ordered that the applica tion for mandamus be refused, and that th respondent recover of the relator all costs of this proceeding.