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 *Page 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 *Page 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 *Page 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., 38 S.C. 1,16 S.E., 781, and numerous cases cited in note 20 L.R.A., 483.
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, *Page 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., 62 S.C. 271, 40 S.E., 556. But the point here is, not whether the regulation of the company as to "excess fare" is sustainable under the act of 1884, which allowed the right to charge twenty-five cents extra when the fare did not exceed two and 50-100 dollars, but whether such regulation as was attempted to be enforced in this case is in conflict with the act of 1900, because it increases "the rate for transportationof passengers." I do not think there is any conflict between the regulation and the statute. The rate for transportation, is the standard price or charge for the service of transportation, and involves the absolute right to retain it when received. The so-called "excess fare" is, in fact, no fare, charge or rate, in the sense of the statute, because it is refundable to the passenger on demand at any station within twenty days from date of payment. How is the rate of transportation increased by the excess fare when the passenger has the absolute right to have it returned to him on demand? But it is said the exaction is called an excess charge or fare by the railroad company, and it must be such. To this it is sufficient to say that the law has regard for substance and meaning rather than for mere forms of expression adopted for the sake of brevity and convenience. But it is said the railroad company has no right to compel a passenger to become its creditor for the amount of the extra sum. Such is not the design of the regulation. Its purpose is to induce all passengers to purchase tickets at designated agencies at the rate authorized by law. The passenger may easily avoid the inconvenience arising from the regulation by doing his duty in purchasing a ticket at the lawful rate from a regular ticket agent provided for the mutual convenience and benefit of both passenger and carrier. The inconvenience to which the passenger is subjected by the regulation is one which arises from his own want of regard for the reasonable convenience of the carrier in the proper conduct of its *Page 277 business. Again, it is argued that the requirement that the passenger must make demand for return of the "excess fare" within twenty days, makes the regulation unlawful. Whether the passenger may not rightfully require return of the excess at any time within the statute of limitations is not now before us for decision, as the case involves no refusal to pay on demand after the expiration of twenty days, but I am inclined to think return of the money may be enforced after the expiration of the time mentioned. But be that as it may, the limitation of itself could not make the "excess fare"a rate or charge in the sense of the statute; for if the money is not demanded within the specified time, the loss to the passenger is not due to any increase in the charge for transportation, but merely because of his own choice or negligence. The case of Reese v. Pennsylvania R. Co., 6 L.R.A., 529, is squarely in point. In that case it was decided that an extra demanded of ten cents from a passenger without a ticket which will be refunded at any regular ticket office on presenting a check given him by the conductor, is not a part of the fare or "charge for transportation," within the meaning of a statute fixing the maximum rate of fare. The statute of Pennsylvania provided: "In the transportation of passengers no charge shall be made to exceed three and one-half cents per mile, c. "In construing the meaning of the word charge, the Court says: "The essence of the meaning (charge) 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 purpose of the restriction in the charter is the regulation of the amount of fares, not the mode of collection; the protection of the traveler from excessive demands, not interference with the time, place or mode of payment. These are mere administrative details, which depend upon varying circumstances, and are, therefore, left to the ordinary course of business management." As there is no substantial distinction between a charge for transportation and a rate for transportation, the *Page 278 case cited is in point; and while, of course, it has no binding force here as an authority, it is persuasive because of the learning and ability of the Court which rendered it and because of the force of the reasons given in support of it. It is argued, however, that the point has already been adversely ruled in the case of Kibler v. R.R. Co., 64 S.C. 242. I do not think it can fairly be contended that the case decides the point. In that case the defendant's eighth request to charge was as follows: "The railroad company has the right to impose an excess charge of twenty-five cents upon passengers who fail to buy tickets when opportunity is offered and rebate checks furnished." The request was refused, the trial Judge stating: "I refuse to charge you that, because it is in conflict with the statute law of this State. The statute has defined what they shall charge, and they have no right, under any construction, to charge in excess of that amount." Judge Gary further charges that the railroad company has no right to charge any excess either by rebate check or drawback check or otherwise. Exception was taken to the refusal to charge on the following specifications of error: "(1) The right to impose this excess has been settled upon the former trial of this case by the decision of Judge Izlar, from which there was no appeal. It is the law of the case. (2) The imposition of this excess is not a charge, but a reasonable regulation conductive to the orderly conduct of business, and is valid. (3) The defendant had the right, under the statute of this State and under the regulations of the railroad commissioners offered in evidence, to impose this excess." It cannot be doubted that the question under consideration was presented for the consideration of the Court, but whether it was, in fact, decided, must be determined by the legal effect of the response made by the Court to the exception. I quote all that was said by the Court as follows: "Third. The Circuit Judge refused to charge defendant's eighth request, which request is copied in the third exception already quoted in this opinion. The legality of Judge Izar's charge during the first trial in relation to the *Page 279 right of railroads to charge an excess of twenty-five cents when a person fails to purchase tickets, was not involved in the former appeal in this case. Hence this Court could not and did not pass upon Judge Izlar 's charge. It is only where this Court passes upon a question brought before it by exception that our judgment is conclusive upon parties to a cause in a second or new trial. 4. We think Judge Gary was right in refusing to charge the eighth request of defendant. But whether he was right or wrong in such declaration of the law, it will not affect this case, for the reason that defendant railroad had no tickets for sale at its agency in Newberry for less than ten cents. Its own agent testified that he would not have sold the plaintiff a ticket from Newberry to Helena for three cents, or rather for any amount less than ten cents. This being so, such ruling was not necessary in this cause; it became an abstract question of law. The ruling, as before said, whether right or wrong, did not affect this case. So, therefore, subdivisions (1) (2) (3) of the third exception do not fairly arise upon the record, and are, therefore, overruled." The point we have been discussing was embraced in second and third specifications above; but the Court expressly said those matters did not fairly arise upon the record and were, therefore, dismissed. This manifestly was not a decision of the question now under consideration. It is true, the writer of that opinion said: "We think Judge Gary was right in refusing to charge the eighth request;" but if that statement needs to be reconciled with what follows, it may easily be done, for clearly, in the opinion of the Court, the request to charge stated an abstract proposition of law not applicable to the undisputed facts in the case, and, therefore, was properly refused. For these reasons, I think the judgment of the Circuit Court should be affirmed. *Page 280