of said members-the one enjoying favorable circumstances, nor the one suffering from unfavorable circumstances-would furnish the proper criterion by which to judge the rate proposed. Whether it would be just or unjust should be determined by its effects upon those operating under usual and ordinary conditions. The appellant nowhere alleges that the rate fixed by the act in question is unjust as applied to other roads in its class, or that it cannot be adopted by them without any unjust impairment of their earnings. We think it follows, if roads may be classified for regulation, that the justice or injustice of the regulation must be determined with. reference to its effect on the class, and not a particular member of it. Any other rule would lead to confusion, almost chaos, in the law. An act held valid as to one member of a class might be held invalid as to another, and no adjudication would remove or lessen the uncertainties as to the effect of an act. We do not mean to imply that the act, under the construction given it, is free from the objection that the question of its legality is undetermined after the adjudication of any one case. If the question of constitutionality is to be determined by a judicial inquiry into the reasonableness of the limit prescribed, it is obvious that the result in each case would depend upon the facts developed in it, and the conclusions drawn therefrom; thus varying as the facts in proof varied, and as different trial tribunals might differ in viewing them. It would be better for all concerned-the public, the corporations-if the law provided some means for testing the reasonableness of the rates prescribed, before they were to become operative, in a proceeding in which the corporations contesting it, and the public, through its representatives would have an opportunity to be heard. The final determination in such a proceeding should be conclusive as to that fact, and determine the legal status of the act, and, if it was sustained, a defense of its unreasonableness should not be entertained in an action like this. The plaintiff in an action of this character has not the facilities or interest to present the matter as it should be in a controversy so wide in its scope, affected by circumstances so universal and complex. The burden of the litigation is too great for the return. While we think the law should be as we have indicated, we cannot conclude that it is, although a somewhat similar principle was contended for by the late Justice MILLER in a separate opinion in the Minnesota cases. It was ruled in Dow v. Beidelman, supra, that the classification of roads for regulation of rates was proper.

Affirm.

Action for Damages Against Railroad Companies-Entrapping Company into Excuse for Bringing Suit.-See Norfolk & Western R. Co. v. Irvine (Va.), 37 Am. & Eng. R. Cas. 227, note 230.

Action for Overcharge-Effect of Voluntary Payment. See Cook v. Chicago, R. I. & P. R. Co. (la.), 45 Am. & Eng. R. Cas. 291; Mount Pleasant Manufacturing Co. v. Cape Fear & Y. V. R. Co. (N. Car.), 42 Id. 498; Killmer v. New York Central & H. R. R. Co., 23 Id. 656, note 662.

Legislative Regulation of Rates Reasonableness and Justice of Statutory Regulation. See Wellman v. Chicago & G. T. R. Co. (Mich.), 45 Am. & Eng. R. Cas. 249; Chicago, M. & St. P. R. Co. v. State (U. S.), 42 Am. & Eng. R. Cas. 285. note 316; Minneapolis E. R. Co. v. State (U. S.), 42 Id. 316.

Excessive Passenger Charges-Addition of Bridge Toll.-By the act of congress authorizing the construction of a railway bridge across the Arkansas river at Ft. Smith, Ark., it is provided that no higher charge shall be made for the transportation of passengers over the bridge than is paid for similar transportation over the railroad leading to the bridge. Act. Ark. Leg. April 4, 1887, provides that only 3 cents per mile shall be charged for carrying passengers. Held, that a charge of 70 cents for 11 miles of travel -30 cents for transportation 10 miles, and 40 cents for bridge toll-constituted an overcharge within the meaning of the act. St. Louis & S. F. R. Co. v. Stevenson (Ark. Jan. 3, 1891), 15 S. W. Rep. 22.

Evading Payment of Railroad Fare - Public Offense.-Act. Cal. April 1, 1878, § 9, provides that "every person who shall fraudulently evade, or attempt to evade, the payment of his fare for traveling on any railroad shall be fined," etc. Held, a violation of said act constitutes a public offense, within the meaning of Pen. Code, § 15, which provides that a “public offense is an act committed in violation of a law commending or forbidding it, and to which is annexed ** * * a fine." Dyer v. Placer County, (California, July 18, 1891), 27 Pac. Rep. 197.

MCVEETY

ย.

ST. PAUL, MINNEAPOLIS & MANITOBA R. CO.

(45 Minnesota, 268.)

Passenger-Who is Evading Payment of Fare-Fraud.-If a person knowingly induces the conductor of a railway train to violate a rule of the company, and to carry him without charge, he is guilty of a fraud on the company, and cannot claim the rights of a passenger.

APPEAL from Wright District Court.

Action by McVeetv against the St. Paul, Minneapolis & Manitoba Railroad Company, for personal injuries. Judg ment for plaintiff; defendant appeals.

M. D. Grover and R. A. Wilkinson, for appellant.

J.J. Wooley and F. E. Latham, (Wendell & Pidgeon, of counsel,) for respondent.

COLLINS, J.-On the trial of this action, it was defendant's

Case stated.

contention that, although plaintiff was on its train, a freight with a caboose attached, when the accident occurred in which he claims to have been injured, he was not a passenger to whom it owed any duty. Testimony was introduced tending to show that plaintiff had not paid his fare; had no ticket; that on boarding the train he had solicited the conductor, an acquaintance, 'to permit him to ride without paying his fare; and that the latter had consented. The defendant then offered to prove by the conductor that when soliciting that he be carried without paying his fare, the plaintiff knew that the conductor had no authority to allow it. To this offer the court sustained an objection, defendant duly excepting. This ruling was erroneous, and a new trial must be had. It is probable that there is authority for the statement that when the conPlaintiff not a ductor of a train disobeys the rules of the compassenger. pany for which he is acting, in regard to the col lection of fare from a traveller, or in respect to some other matters, such, for instance, as permitting him upon a forbid. den part of the train or upon a train not allowed to carry passengers, the traveler has all the rights of a passenger, if he has no notice of the rule, express or implied, or of the conductor's disobedience. But if a person solicits and secures free transportation, or if he rides upon a part of the train from which passengers are excluded, or takes passage upon a train not allowed to carry passengers, knowing that his act is against the rules of the carrier, and in permitting it the conductor is disobedient, he is guilty of a fraud, and not entitled to a passenger's rights. Toledo, W. & W. R. Co. v. Brooks, 81 Ill. 245; Toledo, W. & W. R. Co. v. Beggs, 85 Ill. 80; Robertson v. New York & E. R. Co., 22 Barb. (N. Y.), 91; Union Pac. R. Co. v. Nichols, 8 Kan. 505; Prince v. International & G. N. R. Co., 64 Tex. 146, 21 Am. & Eng. R. Cas. 152; Gulf, C. & S. F. R. Co. v. Campbell, 76 Tex. 174, 41 Am. & Eng. R. Cas. 100. The defendant had been allowed by the court to introduce testimony tending to establish its claim that the plaintiff had obtained the conductor's consent to his riding without payment of fare, and it should have been permitted to go further and prove, if it could, that plaintiff knew that, in securing this consent, he had induced the conductor to violate a rule of the railway company. Order reversed.

When Relation of Passenger and Carrier Exists-Payment of Fare.-See note 41 Am. & Eng. R. Cas. 63.

Old Employes Accepting Conductor's Invitation to Ride on Freight Train Without Payment of Fare-Liability of Company for Injury.-In Powers v. Boston & M. R. Co., 153 Mass. 188, it was held that it is not within

the apparent scope of the employment of a conductor on a train used exclusively for transporting freight to invite persons to ride on his train, and one who accepts such an invitation, with no intention to pay fare, is not a passenger, and the railroad company is not liable to him for an injury sustained by him in a collision while so riding on the train. A rule of the company forbidding the carrying of passengers on freight trains, is infringed by the carrying of one from whom no fare is expected or collected. The fact that the injured person was an old employe of the railroad company, and that some of the conductors had permitted old employes to ride on their freight trains, is not sufficient to establish a custom which would make the company liable to him as a passenger, in the absence of evidence showing that the general officials of the road had notice of the action of the conductors, or that such action had so long continued as to give rise to a presumption of knowledge by these officials. Even if the injured person was a licensee on the train, the railroad company is not liable for his injuries.

EDDY et al.

V.

HARRIS.

(78 Texas, 661.)

Passengers-Sale of Ticket for Excursion Train-Contract of Transportation.-Defendant's regular ticket agent sold plaintiff a ticket good only on a special excursion train which defendant had hired to a third person and which was in his charge, and whose name was signed to the ticket. Plaintiff was not aware of the arrangement between carrier and such third person. Held, that the sale of the ticket constituted a contract of transportation binding upon defendant.

Failure to Carry Passenger-Excessive Damages. The failure of the defendant to carry plaintiff as agreed caused him to lose one day's time, the opportunity of seeing a celebration, and a free dinner. Held, that a verdict of $50 was excessive.

APPEAL from Hopkins District Court.
Peteet & Crosby, for appellants.

Foster & Henderson, for appellee.

Case stated.

STAYTON, C. J.-Appellants, as receivers, made contract with one Sparks whereby the latter was to have the use of cars on road controlled by appellants, for the purpose of transporting excursionists, on June 19, 1889, from Sulphur Springs and Greenville to Dallas, and return. For the cars Sparks agreed to pay $395, of which $100 was paid in advance, and the balance was to be paid before the cars should leave the two places named. The time for leaving the several points both in going and returning was fixed by the contract with Sparks; but of that contract, or that Sparks had control of the excursion trains, appellee, on the

morning of the 19th of June, was ignorant, but she did know that an excursion train was to run on that day from the places named to Dallas, and return. The sum to be paid for the train between Sulphur Springs and Greenville, and return, and between the latter place and Dallas, and return, seems to have been fixed; and the sum paid by Sparks in advance, with such sum as was received on sale of tickets by the agent of receivers at Sulphur Springs, exceeded the sum to be paid for the train between that place and Greenville. Sparks had tickets printed which were as follows: "Round trip, June 19, 1889. Good only on special train to-day on M., K. & T. R. R., Sulphur Springs to Dallas, and return. J. SPARKS, Manager." These tickets were placed by Sparks in the hands of the receivers' ticket agent for sale; and on the morning of June 19, 1889, appellee, desiring to go to and return from Dallas on the excursion train, which she understood would go on that day, applied to that agent, who was selling tickets at the office and usual place for selling tickets, for a ticket from Sulphur Springs to Greenville, probably thinking, as there was change in the gauge of the road at Greenville, that she would have to buy tickets at each place. The agent informed her that he could not sell her a ticket for the excursion train, then standing at the depot, to Greenville, but that he could sell her a ticket to Dallas, and return; whereupon she paid him $2.40, and received a ticket in the form above set out, she being ignorant that Sparks had any connection with or control of the train. The sum paid was the excursion rate from Sulphur Springs to Dallas, and return. After purchasing the ticket, appellee entered a car, and the train proceeded to Greenville, there being many other persons on board situated as was appellee. When the train reached Greenville, Sparks having failed to pay the sum he had agreed to pay before the train should leave that place, the othcers of the road refused to send the excursion train through; but, on payment of $1.55, appellee was carried to Dallas, and returned to Sulphur Springs, which she reached on the same train and at same time she would have reached that place, had the excursion train gone from Greenville to Dalias, as at first contemplated in the agreement between Sparks and appellants. There was, however, some delay at Greenville, and the train on which appellee went to Dallas did not reach that place by about three hours as early as it would had the excursion train gone through, as contemplated by the agreement with Sparks. It further appears that the train on which appellee returned from Dallas left that place about 5 o'clock P. M. on June 19th, when it was not contemplated that the train which Sparks had contracted for would