45 S.E. 196 | S.C. | 1903
Lead Opinion
No arguments furnished.
July 29, 1903. The opinion of the Court was delivered by
The only question presented by this appeal is whether his Honor, the presiding Judge, erred in charging the jury, as set forth in the appellant's sole exception, which is as follows: "Because he erred in charging the jury that the defendant had the right to demand and collect of the plaintiff an excess fare of twenty-five cents, if the plaintiff tendered his fare in money on board of the train after an opportunity had been given him to purchase a ticket at the regular ticket office of the defendant; and that it had the right, if the plaintiff refused to pay this excess fare, to eject him from its train, although the plaintiff had tendered the fare at three cents per mile for every mile he proposed to travel." Before proceeding to discuss this question, it may be well to review the legislation upon the subject of railroad fares for the transportation of passengers. Prior to the act of 21st December, 1882 (18 Stat., 10), there had been no general legislation, in this State, on this subject. Under the common law rule governing common carriers of passengers, the railroads were required to charge reasonable rates for transportation, but were not otherwise limited in fixing the rates for transportation. Ex parte Benson,
This act was again amended by the act of 24th December, 1884 (18 Stat., 759), which after making changes with regard to the rates fixed by the act of 1883, provided as follows: "Section 2. That section 1451 f (A.A. 1883, p. 485-6), be amended by adding at the end thereof the following: And railroad companies shall have the right to charge twenty-five cents extra when the fare is not more than two and 50-100 dollars, and fifty cents when it is over that amount in all cases where passengers who get on at stations where tickets are offered for sale, neglect or refuse to purchase tickets: Provided. This shall not apply to passengers on accommodation trains: Provided further. That offices for the sale of such tickets shall in all cases be open not *265 less than thirty minutes before the time fixed for the departure of trains."
On 19th of December, 1892 (21 Stat., 8), an act was passed providing for the election of three railroad commissioners. Section 5 of that act provides, "that the commissioners elected as hereinbefore provided shall, as provided in the next section of this act, make reasonable and just rates of freight and passenger tariffs to be observed by all railroad companies doing business in this State on the railroads therein." Section 6 of the said act contains the provision, "that the said railroad commissioners are hereby authorized and required to make for each of the railroad corporations doing business in this State, as soon as practicable, a schedule of just and reasonable rates of charges for transportation of passengers and freights and cars, on each of said railroads."
In 1896, an act was passed (22 Stat., 116), the first section of which was as follows: "Section 1. That from and after the passage of this act, the rates of transportation of passengers by railroad companies chartered and doing business in this State shall be for first class fare, three and one-fourth cents per mile for every mile traveled, and for second class fare, two and three-fourths cents per mile for every mile traveled, and shall sell first and second class tickets:Provided, This rate may from time to time be altered and changed by the railroad commission as to any railroad or railroads as in the judgment of said railroad commission the circumstances of such railroad or railroads may warrant or require." This act contains the usual repealing clause, and was approved on the 9th of March.
The last enactment on the subject is the act of 1900 (22 Stat., 457), the third section of which is as follows: "Section 3. That sixty days after the approval of this act therate for transportation of passengers on all railroads to which the provisions of this act shall apply shall not exceed three cents per mile for every mile traveled, and such railroads shall not be required to have second class coaches or to *266 sell second class tickets." This act also contains the usual repealing clause.
The defendant introduced in evidence the following circulars:
"(Circular No. 32.) Office of Railroad Commissioners, Columbia, S.C. August 13th, 1894. On and after August 17th, 1894, the railroads of this State are hereby authorized to charge passengers twenty-five cents extra where fare is not more than two 50-100 dollars, and fifty cents where it is over that amount, in all cases where the passengers get on at stations where tickets are offered for sale, neglect or refuse to purchase tickets: Provided, That offices for sale of such tickets shall in all cases be open not less than thirty minutes before the time fixed for the departure of trains. By order of the Board. D.P. Duncan, Chairman. M.T. Bartlett, Secretary."
"(Circular No. 37.) Office of Railroad Commissioners, Columbia, S.C. May 4th, 1895. On or after June 10th, 1895, Circular No. 32, issued by the board 17th August, 1894, shall have added thereto the following: Provided, That the conductor shall give the passenger a return check for the amount of excess charged, to be redeemed upon presentation at any ticket station of the company. W.D. Evans, Chairman. D.P. Duncan, Secretary."
"(Circular No. 42.) South Carolina, office of Railroad Commissioners, Columbia, S.C. April 2, 1896. To enable the railroad companies operating in this State to prepare and promulgate their passenger rate sheets in accordance with the act of the General Assembly, approved March 9th, 1896, and the action of this commission pursuant thereof, the passenger rates now in force will be continued until the first day of May next. On and after that date the following rates will be enforced by the commission on the railroads doing business in South Carolina, to wit: Three and a quarter cents (3 1-4 cents) per mile for first class fare; two and three-quarter cents (2 3-4 cents) per mile for second class fare, on the following roads: * * * On all railroads a half fare of not *267 more than two cents per mile for children under twelve years old or over six years of age shall be charged. No railroad company shall be allowed to charge more than ten cents as a minimum, full or half rate between regular stations, when the fare would be less than that amount. The fare should always be made that multiple of five or nearest reached by multiplying the rate by the distance. In addition to these rates, passengers unprovided with tickets, when opportunity has been afforded them by the railroads to procure the same, may be required by the railroads to pay to the conductor twenty-five cents (25 cents) excess of the fare, upon receiving from the conductor a draw back ticket for the twenty-five cents, which shall be cashed on presentation at any ticket office of the company within twenty days after date. This circular supercedes all other circulars in conflict. W.D. Evans, Chairman. D.P. Duncan, Secretary."
The following circular was also introduced in evidence:
"Southern Railway Company, Passenger Department, Circular No. 1900-3, Superceding Circular No. 797, File No 42, 226, Washington, D.C., January 27, 1900 — Rebate Ticket in South Carolina. To all conductors and ticket agents in South Carolina: Conductors have been supplied with rebate tickets, Form C.R.C., a fac simile of which is printed below, for use under the following instructions: A rate 25 cents higher than agent's rate should be charged for each fare collected in cash between any two stations within the State of South Carolina, under the rules governing the collection of conductor's rates.
"A rebate ticket, Form C.R.C., should be issued to the passenger for each excess cash fare collected between any two stations within the State of South Carolina. These tickets should be written up to show: (a) Name of conductor. (b) Points between which fares are collected. (c) Train number, and punched to show date of issue, whole or half fare and amount collected, as designated. The duplicate ticket should be examined carefully to see that it agrees *268 with the original and forwarded to the ticket auditor with report of cash fare collections. Special attention is called to the fact that these rebate tickets are to be issued exclusively for rebate fares collected within the State of South Carolina, and are not to be issued for fares collected between interstate points, nor are they to be issued for fares collected at agent's rates within the State of South Carolina, which do not require a rebate.
"Conductors will continue to use the Blanchard form of cash fare receipt for fares collected at agent's rates and between interstate points.
"The excess rate of twenty-five cents will be refunded to passengers upon the surrender of the original rebate ticket to any ticket agent within the State of South Carolina within twenty (20) days after date of issue cancelled on the margin.
"Ticket agents should stamp all rebate tickets redeemed and forward the same to ticket auditor with report, Form 1950, at the end of each month. The total amount of this report should be entered on credit side of Summary Passenger Traffic, Form 1684, opposite heading, `Excess Cash Fares Refunded.'"
As the act of 1900 provides that the rate for transportation of passengers shall not exceed three cents per mile for every mile traveled, it will at once be seen that the important question to be determined is whether the requirement that the passenger should pay an excess fare of twenty-five cents when he neglects to purchase a ticket, is inconsistent with the statute by reason of the fact that such requirement would be regarded as an extra charge. It cannot now be successfully contended that the defendant had the right, under the act of 1884 hereinbefore mentioned, to charge the excess fare; for the case of Kibler v. Ry. Co.,
What was the object of the legislature in repealing the act of 1884? It was unquestionably for the purpose of depriving the railroad company of the power to enforce the collection of excess fares, whether the money went permanently or temporarily into the treasury of the company. One of the definitions of the word "charge," in A. E. Enc., 889, is as follows: "`Charge' is the price required or demanded for services rendered, or less frequently for goods supplied." This definition is approved in Reese v. Penn. R.R. Co., 6 L.R.A. (Pa.), 529, which is the main case upon which defendant relies to sustain the proposition that the excess fare is not a charge. In that case the Court says: "`Charge' is a word of very general and varied use. Webster gives it thirteen different meanings, none of which, however, expresses the exact sense in which it is used in this charter. The great dictionary of the Philological Society gives it twenty-seven principal definitions, besides a nearly equal number of subordinate variations of meaning. Of these definitions one (106) is, `The price required or demanded for services rendered, or (less usually) for goods supplied,' and this expresses accurately the sense of the word in the present case. The essence of the meaning is that it is something required, exacted or taken from the traveler as compensation for the services rendered, and, of course, something taken permanently, not taken temporarily and returned." The reasoning of the Court in the case last mentioned is fallacious in making the price, or something required, exacted or taken from the traveler, to depend upon the fact that it is taken permanently, not temporarily and returned. In order to show that this is not the correct test, it is only necessary to say that if the rebate check had provided *270
that the excess fare should be refunded after a certain number of days, months or years, it would at once appear that the railroad company had received more than three cents per mile for every mile traveled, as the use of the money is a valuable consideration. If the railroad company had adopted a rule that a passenger should not be permitted to board its train or check his baggage until he exhibited a ticket, it might well be contended that this was a mere regulation;
but not so, when the passenger is required to pay more money for his transportation than is permitted by the statute, even though under certain circumstances he may have the excess charges refunded to him. In the case ofWilliamson v. Association,
It is the judgment of this Court, that the judgment of the *271 Circuit Court be reversed, and the case remanded to that Court for a new trial.
MR. CHIEF JUSTICE POPE and CIRCUIT JUDGES JAMES ALDRICH, ERNEST GARY, J.C. KLUGH, CHAS. G. DANTZLER and R.O. PURDY, concur.
MESSRS. JUSTICES JONES and WOODS and CIRCUIT JUDGES D.A. TOWNSEND and GEO. W. GAGE, dissent, and concur indissenting opinion of MR. JUSTICE JONES.
Concurrence Opinion
I concur in the opinion of Mr. Justice Gary for the following reasons: The relations between the carrier and passenger is contractural. The carrier being a party to the contract, is clothed with great authority in saying when and upon what terms he will enter into the relation of carrier of passengers. For instance, the carrier has the authority to say to the public before this relation shall exist between us, you must provide yourself with a ticket, and until this requirement has been complied with by the would-be passenger, the carrier would have the right to refuse him admittance upon its cars. The exercise of such power would simply be the enforcement of a reasonable rule and regulation. In the case at bar, however, we find no such rule or regulation. We find the carrier permitting the public to board its trains as passengers either with or without a ticket. In this case clearly the relation of carrier and passenger existed at the time the plaintiff tendered to the conductor of defendant's train the full fare provided by statute. And when the conductor of such train exacted from the passenger any sum in excess of the maximum fare provided by statute, he exceeded his authority; for the reason that he was exacting of the passenger more than the statute authorized. What, then, was the passenger's right? It was to pay or tender to the agent of the defendant the maximum charge fixed by the statute and be transported to his destination. *272
Dissenting Opinion
In this action for damages for ejection from defendant's passenger train there was verdict and judgment for defendant, which plaintiff seeks to reverse upon the following exception to the charge of the presiding Judge: "Because he erred in charging the jury that the defendant had the right to demand and collect of the plaintiff an excess fare of twenty-five cents, if the plaintiff tendered his fare in money on board of the train after an opportunity had been given him to purchase a ticket at a regular ticket office of the defendant; and that it had the right, if the plaintiff refused to pay this excess fare, to eject him from its train, although the plaintiff had tendered the fare at three cents per mile for every mile he proposed to travel." It is not disputed that plaintiff had full opportunity to purchase a ticket from the station agent at Prosperity, where he boarded, the train for Newberry, but failed to do so; that when the conductor demanded the regular fare from Prosperity to Newberry, twenty-one cents for seven miles and twenty-five cents additional as "excess fare," plaintiff tendered the regular fare but declined to pay the "excess fare;" that upon his refusal to pay the "excess fare" the conductor stopped the train and lead plaintiff off; that the regulations of the defendant company required conductors to collect such "excess fare" in such cases and to give the passenger a "rebate check" containing these words: "The excess rate of 25 cents will be refunded to passenger upon surrender of the original rebate ticket to any ticket agent within the State of South Carolina within twenty (20) days after date of issue cancelled on margin;" and that plaintiff was informed by the conductor that such rebate ticket would be given him.
The charge of the presiding Judge to which the exceptions relate is as follows: "I charge you that railroad companies have a right to adopt reasonable rules as to the method of paying fares by passengers who use their passenger trains for the purpose of being transported from one place to another, and to discriminate between fares paid on board *273 their trains at stations, and to remove from their cars in a proper manner and at a proper place, persons who refuse to comply with such regulations; and that regulation requiring passengers who do not procure tickets at stations where tickets are sold before boarding their trains and commencing their journey, to pay an extra amount of fare, and providing that if the coupon shall be given to the passenger on which he may collect extra fare from an agent at a station, and exempting from its operation such passengers as board their trains at stations where tickets are not sold, that such would be, in my opinion, a reasonable regulation; and I, therefore, charge you that I hold it would be a reasonable and valid regulation. There is no question that railroad companies may make such regulations as I have charged you, provided passengers are given a convenient place and sufficient opportunity to procure tickets previous to boarding trains to become passengers, and such regulations would not be unreasonable nor oppressive nor open to the objection that the excess so imposed is a part of the fare and makes the fare charged higher than the rate allowed by law, which in this State by statutory provision is three cents per mile." Without raising any objection as to the general form of the exception, in that it does not accurately represent the charge of the presiding Judge, we will consider the question designed to be presented — whether a railroad company in this State may, in a lawful manner, eject from its train a person who boards it to become a passenger but having no ticket, although opportunity had been afforded for purchasing the same, and upon demand of the conductor for the regular fare and twenty-five cents "excess fare" under the "rebate check" regulation of the company, tenders the regular fare of three cents per mile, but fails or refuses to pay the "excess fare." I think this question should be answered in the affirmative, in accordance with the instructions to the jury, upon the ground that a railroad company may enforce in a lawful manner its regulations which are reasonable and not inconsistent with the law of the State. The reasonableness *274 of the regulation in question is apparent from a consideration of the matters brought out in the testimony of W.A. Turk, general passenger agent of the Southern Railway Company, who testified as follows: "The necessity for this rule is brought about by the fact that a very large percentage of fares paid on the trains are paid by passengers traveling short distances, and as the conductors in charge of passenger trains have onerous duties to perform in connection with the safe conduct of their trains in the matter of receiving and giving close attention to telegraphic orders and carefully observing schedule so as to make meeting points and passing trains in safe and proper manner, and for the further purpose of giving due and careful attention to the general conduct of their trains and the careful transportation of the passengers thereon, it is of great importance that they should not be further burdened by having to collect money fares from passengers who have failed to provide themselves with tickets. The making of change, the entering of cash fares in their cash books and the keeping of records necessary for report of such transactions to the accounting department of the company, requires more time than a conductor would have at his disposal if he were compelled to collect cash fares from all passengers. If conductors' rates were the same as agents' or regular ticket rates, then there would be no inducement for a passenger to purchase a ticket from the agent before entering the train. A passenger would rather pay his fare to the conductor, that being more convenient, than to secure a ticket before getting on the train, thus placing a burden of work upon the conductor which he has not the time to perform. Another, and probably one of the most important reasons for the necessity of a railroad company's requiring passengers to purchase tickets before entering the trains, is that it enables the company to have a much better check upon its revenues and a better assurance that the business is conducted in a safe and businesslike manner. Q. Please state if the rule and practice of requiring the collection of excess fares has the effect of encouraging the *275 purchase of tickets and of saving the railroad company the risk and trouble incident to the collection of cash fares by conductors on trains? A. There is no question in my mind that the rule and practice of requiring passengers who board trains without tickets to pay excess fares, even though such excess fares be refunded, has a decided tendency to induce passengers to purchase tickets; thus eliminating, to a very great extent, the annoying habit of paying fares to conductors on trains, and of generally promoting the better conduct of business on passenger trains. Q. How long have you been connected with the passenger departments of railroad companies? A. I have been in the passenger business in various capacities for about twenty-two years. Q. Is the rule requiring the collection of excess fares from passengers unprovided with tickets generally in effect on railroads throughout the county? A. Yes, sir; I do not now recall a single railroad that does not have such a rule in effect. Q. Is this rule, or a similar one, in effect in all of the States traversed by the lines of the Southern Railway Company? A. We have in effect such a rule in the eight States in which the Southern Railroad Company operates."
There is no conflict among the authorities on the rule that when a reasonable opportunity is afforded for the purchase of a ticket and none is purchased, a railroad company may lawfully collect a small sum in excess of regular fare, provided the maximum rate allowed by law is not exceeded, and that such a regulation is reasonable and may be enforced by ejection for non-compliance. Moore v. R.R. Co.,
The important question remains whether such a regulation as we have under consideration is in conflict with the act of 1900, 23 Stat., 457, providing, "That sixty days after the approval of this act, the rate for transportation of passengers on all railroads shall not exceed three cents a mile for every mile traveled." This statute contains a clause repealing all inconsistent statutes. The act of December 24, 1884, *276
18 Stat., 760, must be regarded as repealed, in so far as it allows any rate or charge for transportation in excess of the maximum rate provided by the act of 1900. Kibler v. R.R. Co.,
