The opinion of the court was delivered by
Me. Chief Justice Simpson.The plaintiff, being a passenger on the South Carolina Railway, travelling -from Aiken, in this State, to Augusta, Ga., was ejected from the train by the conductor of defendant company ; for this the action below was brought, demanding $2,000 damages. In the course of the trial he offered in testimony the 5th annual report of the railroad commission, to show the rates allowed to charge passengers, and also to show the regulations requiring railway companies to have their depot open a reasonable time before the departure of the trains. This testimony was ruled incompetent, and therefore was excluded. At the close of plaintiff’s testimony, the defendant moved a non-suit, which was granted. The appeal raises but two questions: 1st. Was the testimony referred to above, to wit, the report of the railroad commission, properly and legally excluded ? 2d. Was it error to grant the non-suit?
The complaint alleged, in substance, that the price of a ticket from Aiken to Augusta was fifty-five cents ; that he was unable to procure a ticket at Aiken, where he boarded the car, on account of the negligence of the ticket agent in not having the office *567opened in time; that when the conductor called for his fare he tendered fifty-five cents, the ticket price, informing the conductor that, the office not being open, he could not get a ticket before leaving Aiken. The conductor refused the tender and demanded sixty-five cents, which the plaintiff refusing to pay, he was ejected.
His honor, Judge Fraser presiding, held the report of the commission incompetent testimony — we suppose upon the ground that the commission having no right to regulate inter-State commerce, and the plaintiff being on his way from a point in this State to a point in Georgia, its regulations could have no application here, as this was a case governed by the doctrine of interState commerce. Doubtless, this is a case involving inter-State commerce in some of its aspects, as that doctrine applies as well to the transportation of passengers as of goods, and the railroad commission had no authority to fix rates for passenger fare from Aiken to Augusta. See 22 S. C., 236. But even an unconstitutional act, when adopted and acted upon by a party with reference to whom it has been enacted, may be binding upon such party. See Hand v. S. C. & R. R. Co., 21 S. C., 179.
Now, the allegation of the complaint was that the ticket price between these points was fifty-five cents, and the object of the testimony offered was to show that this price was established by the railroad commission as a matter of fact, which seems to have been followed up by evidence from the ticket agent that that was the price adopted by the company. This agent said: “I sold tickets to Augusta for fifty-five cents, sir. That was after the rates had been inaugurated and fixed by the railroad commission, I believe.” So whether the action of the commission was legal and binding on the company or not, yet if the company adopted the regulation made, and held it out to the community as the rate charged, until changed parties would have the right to demand a compliance therewith. In this point of view, we think this testimony should have been admitted as a statement of a fact, having more or less bearing upon the merits of the case, as the judge in his judgment might determine in the further progress of the case, and which he could explain in his charge.
But if we are wrong here, that portion of this report which referred to regulations in reference to having the depot open a *568reasonable time before the departure of trains, we think was competent, under the principle of Munn v. Illinois, 94 U. S., 135, the case of the grain elevator erected in Chicago; also The State Tax Case, 35 Wall., 293, where it was said: “That it is not everything that affects commerce that amounts to a regulation of it within the meaning of the constitution. The warehouses of these plaintiffs in error are situated, and their business carried on exclusively within the limits of the State of Illinois. They are used as instruments by those engaged in State as well as those engaged in inter-State commerce, but they are no more necessarily a part of commerce itself than the dray or cart by which, &c. * * * Incidentally they may become connected with intei'-State commerce, but not necessarily so. This regulation is certainly a thing of domestic concern * *
And in the Railroad Commissioners v. Railroad Company, 22 S. C., 236, this court said: “It may, as we think, also be taken as settled that, as a general rule, each State may control, as a matter of domestic concern, all railroads and other things, proper subjects of public control, which are located entirely within the borders of the State, although such regulating control may affect incidentally general inter-State commerce, with which the subject may connect” — citing Munn v. Illinois, supra. Now, here the depot at Aiken was entirely within this State, its regulation was of domestic concern, and as far as we can see now, the regulations were not illegal; at least, this does not seem to us to have been so certain as to' exclude the testimony offered. It should have been admitted subject to the charge of his honor.
But independent of these questions, did not the plaintiff have enough testimony to prevent a non-suit? The issues were: 1st. The price of a ticket between the points mentioned. 2d. That plaintiff was prevented from obtaining a ticket by the negligence of the company. And, 3d. That he was ejected after offering the ticket,price and explaining to the conductor why he failed to procure a ticket. These were the material issues, and necessary to plaintiff’s action. Was there a total absence of evidence as to any one of these points ? If not, then the case should have gone to the jury. As to the first point, it makes no difference how the company come to establish a ticket price at fifty-five *569cents; whether under the direction of the railroad commission or not. If it was established, and the community so informed by the company, whether this was upon its own judgment or by the illegal direction of the commission, passengers had the right to act upon it until changed. So that the only question as to this was, had a ticket price been established, as alleged, at fifty-five cents? Certainly there rvas some evidence on this point. We think, too, there was evidence as to the allegation that plaintiff was not furnished' an opportunity to procure a ticket on account of negligence — weak it may be, but still some evidence which had to be weighed, the province of the jury. And there was evidence also that plaintiff was ejected, after full information of all the facts connected with the failure of the plaintiff to get a ticket, and after a tender of the ticket price. Under these circumstances we think the ease was a proper one for the jury.
It is the judgment of this court, that the judgment of the Circuit Court be reversed, and the case be remanded for a new trial.