Fulmer v. Southern Railway Co.

The opinion of the Court was delivered by Mr. Justice Gary. 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, 18 S. C., 38. The act of 1882 placed the whole subject of freight and passenger rates under the control of the railroad commissioner, who was required to “make reasonable and just rates of charges for freight and passenger carriage, to be observed by all railroad companies doing business in this State on the railroads thereof.” This act was amended by the act of 24th December, 1883 (18 Stat., 480), as follows: “Section 7. That the following section be inserted in the General Statutes of this State, to be known as section 1451 f: From and after the passage of this act, no railroad company in this State operating, owning or controlling any line of railroad whose passenger earnings exceed $1,200 per mile *264 of road per annum, shall charge more than three cents per mile for each passeng'er, with 100 pounds of baggage. On roads whose passenger earnings are over $700 and not more than $1,200 per mile per annum, the rate shall not exceed three and one-half cents per mile, except the Charleston and Savannah Railway Company, which shall have the right to charge four cents per mile for first and three cents per mile for s.econd class passengers. On roads whose passenger earnings do not exceed $700 per mile per annum, such rate shall not exceed four cents per mile. The charge for children for under twelve and over six years of age shall not exceed two cents per mile. Each railroad shall also run a second class or’smoking car for passengers, in which they shall sell tickets at a rate not to exceed two and one-half cents per mile on the first class and three cents per mile on the second and third class of railroads as above prescribed: Provided, That railroad corporations may charge for short distances where the charge by the mile would be less than twenty-five cents, the sum of twenty-five cents for the first class passage and fifteen cents for the second class passage, and children for such distances. The provisions of this section shall not prevent railroads from issuing thousand mile, excursion, commutation and season tickets at a lower rate than is herein provided.” 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 eqch 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 the rate for transportation of passengers on all railroads to which the provisons 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 byffhe 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 circfilar 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., 62 S. C., 252, 40 S. E., 556, decides that it was repealed by the act of 1900. The general rule as to the payment of fare on the train, is thus stated in 25 A. & E. Enc., 1104: “A railroad company may establish a rate of fare for passengers failing to' provide themselves with tickets before entering the train, higher than *269 the ticket rate, the extra charge being regarded as a compensation to the company for the additional- inconvenience to which it is subjected by being compelled to receive the fare by the hands of the conductor. * * * But the car rate can, in’ no case, exceed the maximum allowed the company by its charter, or a statute fixing rates.” 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 pro *270 vided 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 baggag-e 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 of Williamson v. Association, 54 S. C., 582, the Court says: “It is a well settled principle that when the construction to be given a contract is rendered doubtful by the language thereof, the interpretation of the contract by the parties themselves, is entitled to great weight.” Let us, therefore, see in what light the defendant has construed the charges for excess fare, in its instructions to its conductors and ticket agents in South Carolina, hereinbefore mentioned. The circular shows that the defendant has two rates for transportation of passengers — a conductor’s rate and an agent’s rate. It also refers to the conductor’s rate as a charge. It also speaks of the twenty-five cents excess cash fare, thus showing that the defendant did not regard the excess charge as a mere regulation. Another significant fact disclosed by the circular is the following direction to conductors: “Special attention is called to the fact that these rebate tickets are to be issued exclusively for excess 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 used for fares collected at agent’s rate within‘the State of South Carolina which do not require a rebate.” This shows that the defendant had in view the financial benefit to be derived from charging excess fares. 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. Ci-iiee 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 in dissenting opinion of Mr. Justice Jones.