dissenting. It seems to me quite clear, under the case of Railroad Commissioners v. Railroad Company, 22 S. C., 220, that the railroad commissioners had no right to establish the rate of fare which should be charged for transporting a passenger from the town of Aiken, in South Carolina, to the city of Augusta, in the State of Georgia, and therefore that the report of the railroad commissioners was incompetent evidence for any purpose in this case and was properly ruled out. While it may be true that the railroad commissioners may be invested with power to regulate the hours for opening the ticket office of a railroad company, so as to afford passengers a reasonable time for the purchase of tickets, so far as travel within the State is concerned, I do not see how such a regulation can be allowed to affect inter-State travel, and hence the report of the commissioners was certainly irrevelant even for the purpose of showing the depot regulations, in a case like this, where the rights of an interstate passenger are in question. It seems to me, therefore, that there was no error in excluding the report of the railroad commissioners.
The next inquiry is, whether the non-suit was properly refused. The defendant undoubtedly had a right to eject the plaintiff from the train if he refused to pay a reasonable compensation for his passage when demanded. The plaintiff certainly did refuse to pay the compensation demanded of him — sixty-five cents — -but, as he alleges in his complaint, he tendered “the sum of fifty-five cents, which was a reasonable and just fare or toll for said passenger, and which was the fare as fixed under the law,” which the defendant’s agent refused to accept. Now, as we have seen that the amount of the fare could not be fixed by the railroad commission, and as it is not shown that the amount of such fare is fixed by defendant’s charter, it is quite clear that the amount tendered could not be “the.fare as fixed under the law;” and the only question is, whether there was any evidence that the amount tendered was “a reasonable and just fare” for the transportation of plaintiff by that train from Aiken to Augusta. I am unable *571to find any evidence upon that point. Certainly no witness has undertaken to say what would be a reasonable and just fare,
It is argued, however, that the testimony of the agent, Wigfall, that at that time the regular passenger fare from Aiken to Augusta was fifty-five cents, and that he sold tickets at that rate, together with the fact testified to by the plaintiff, that about ten days afterwards he was charged only fifty-five cents on the same train, was evidence tending to show that such was a reasonable and just fare, and therefore the question should have been left to the jury. I cannot so regard it, for it will be seen that the witness, Wigfall, was testifying to “the regular passenger fare,’' and not to what was a reasonable compensation for transporting a passenger from Aiken to Augusta, and that his testimony was that he sold tickets at fifty-five cents after the rates had been fixed by the railroad commission, which pretty clearly indicated that this amount was charged, not because it was a reasonable and just fare, but merely in compliance with a regulation which, though unauthorized, the company did not care to contest.
It will further be observed that the train from which the plaintiff was ejected was not advertised as a passenger train, and so far as appears from the evidence, no tickets were ever sold for that train at Aiken, as it passed that point at a very early hour, before the agent was required to open the office. Hence the fact that tickets by the regular passenger train were sold for fifty-five cents, does not, in my judgment, even tend to show that sixty-five cents was an unreasonable charge for passage by the train in question, for it not unfrequently happens that railroad companies are induced by a variety of reasons to charge less than reasonable rates on their regular passenger trains.
It seems to be assumed that the plaintiff was charged sixty-five cents because he had no ticket, but I am unable to find anything in the testimony to warrant such an assumption. The plaintiff certainly does not say that the conductor assigned any such reason for making the charge. On the contrary, the testimony of the plaintiff is this: “Soon after leaving the depot the conductor came round and asked for my fare. I offered him the money and said that fifty-five cents was the regular price. He said, No, it is sixty-five cents, and I said I wouldn’t pay it.” Not a *572word then said about tickets. The conductor did not ask the plaintiff for his ticket, but for his fare, indicating clearly that tickets were not sold for that train. Even after the plaintiff had told the conductor that he had been unable to procure a ticket as the office was not open, nothing was then said to indicate that the sixty-five cents was demanded because plaintiff had no ticket. In fact, according to the plaintiff’s own testimony, all that the conductor ever said about tickets was that “he had nothing to do with the tickets, that was none of his business,” and he all the time insisted that the charge he made was required by his instructions contained in a little book, which he offered to show plaintiff, but which he declined to look at. Indeed, I am unable to find anything in the testimony showing that the railway company had ever established a regulation whereby an extra charge was to be exacted from passengers failing to procure tickets, and it seems to me to be an entire mistake to look at the case in that aspect. Certainly the fact that the plaintiff on a single occasion, some ten days afterwards, was only charged fifty-five cents on the train in question, affords no evidence that the charge of sixty-five cents on the occasion in question was an unreasonable charge.
In the absence of any law fixing the rate of compensation which the defendant had a right to demand for the. service required by the plaintiff, he could only justify his refusal to pay the amount demanded by showing that such amount was unreasonable, and of this I think there was no evidence. It seems to me, therefore, that there was no error in granting the non-suit.
New trial granted.