
    Railroad Company v. Skillman.
    1. Under the act of March 30, 1875 (72 Ohio L. 143), which provides that “ any corporation operating a railroad, in whole or in part in this state, may demand and receive for the transportation of passengers on said road, not exceeding three cents per mile for a distance of more than eight miles: provided the fare shall always he made that multiple of hve nearest reached by multiplying the rate by the distance,” a charge of twenty-five cents for carrying a passenger a distance less than eight miles and more than six miles, will not, as a matter of law, be declared unreasonable.
    
      2. A railroad company may charge a higher price for carrying passengers when the fare is paid on the train, than it does at its ticket offices, provided the price thus charged is reasonable, and the fare charged on the train, does not exceed the maximum allowed by law.
    3. A person entering the cars, without having purchased a ticket, and persistently refusing to pay the usual and reasonable fare, upon demand by the conductor, and after reasonable time in which to determine whether he will or will not pay the same, may lawfully be removed from the train.
    
      4. The expulsion of such person may be at a place other than a railroad depot, or usual stopping place, provided care is taken not to expose him to serious injury or danger.
    5. Such person acquires no right to remain on the train, by offering to pay the usual fare after the train has been stopped for the purpose of ejecting him.
    Error to the District Court of Logan county.
    Martin N. Skillman brought suit in the court of common pleas of Logan county, against the Cincinnati, Sandusky & Cleveland Railroad Company, to recover damages which he claimed that he had sustained by being wrongfully removed from the cars of the defendant.
    On the trial of the case, evidence was given to the jury tending to prove that on June 8, 1875, the plaintiff entered a passenger car of the defendant, at Huntsville, in Logan county, to be conveyed as a passenger to Bellefontaine, in the same county, ,on that day; that after going upon The train, lie presented to the conductor, in the smoking car, a paper purporting to be a blank drover’s pass, issued by the Cincinnati, Hamilton & Dayton Railroad Company, and demanded to be carried thereon to Springfield, free of charge, which paper the conductor refused to accept; that afterwards, in the passenger car, the conductor demanded of the plaintiff a ticket or his fare, when the plaintiff again presented the same paper, and demanded that the conductor indorse and fill it up, and carry him over defendant’s road, thereon free of charge; which the conductor refused to do, stating to the plaintiff that he could not accept the paper, but that plaintiff could pay his fare to Bellefontaine, and then procure a ticket for the residue of his journey ; that plaintiff asked the conductor what the fare to Bellefontaine was, who replied that it was twenty-five cents ; that plaintiff responded that he was not entitled to twenty-five cents' but only twenty cents, which he was willing and ready to pay, and would go to Bellefontaine and see if he could not find some agent there gentlemanly enough to accept, indorse and fill up said paper authorizing him to ride over defendant’s road free of charge; that the conductor replied that the ticket rate of fare from Huntsville to Bellefontaine was twenty cents when the ticket was pre-purchased, but that twenty-five cents was the fare when a ticket was not pre-purchased; that the plaintiff then said to.the conductor that he would not pay twenty-five cents, but only twenty cents, to which the conductor replied that he would have to pay twenty-five cents or leave the cars; that the plaintiff responded to the conductor, “You will have to put me off thenthat the conductor said, “ If I stop the train I will not accept your fare,” and the plaintiff still refusing to pay the twenty-five cents, the conductor caused the train to be stopped, after which the plaintiff offered to pay the conductor the twenty-five cents, which he refused to accept, and caused the plaintiff to leave the train. Evidence was also given tending to prove that the plaintiff tendered the twenty-five cents before the train was stopped or materially checked. Evidence was given tending to prove that from January, 1875, to January, 1877, the defendant charged at its railroad office at Huntsville, twenty cents for tickets from that place to Bellefontaine, and that the fare on the cars was twenty-five cents, and that printed notices were posted in the railroad office giving notice that the ticket rate was twenty cents, and the car fare twenty-five cents, and that the plaintiff knew that the tickets were sold at twenty cents. The evidence tended to prove that the plaintiff was required to leave the train at a point about three miles from Huntsville, where there was no depot, or usual stopping place, and that there was no such-depot or usual stopping place between Huntsville and Bellefontaine.
    It was admitted on the trial that the conductor demanded of the plaintiff twenty-five cents for his fare from Huntsville to Bellefontaine, and that the distance between those places is less than eight miles, and more than six miles.
    
      The verdict of the jury was in favor of the defendant, and the court overruled a motion for a new trial, and rendered a judgment upon the verdict. A bill of exceptions was taken, containing the charge of the court, as w7ell as the instructions requested by the plaintiff and refused by the conrt.
    The district court, on error, reversed the judgment of the court of common pleas, and this proceeding is prosecuted to reverse the judgment of reversal.
    
      West, Walker & West, for plaintiff in error.
    
      William Lawrence and Joseph II. Lawrence, for defendant in error:
    The court below held that the railroad company “is authorized to charge twenty-five cents for eight miles.” This overlooks the fact that the statute fixes no rate for eight miles but only distances “more than eight miles ” — that is for nine miles and more. The statutes of April 20,1874, and of March 30, 1875 (4 Sayler Stat. 3288-3516, Laws of- 1874, p. 147, and Laws of 1875, p. 143), provide that any railroad company “ may receive for the transportation of passengers on said road, not exceeding three cents per mile for a distance of more than eight milesprovided the fare-shall always be made that multiple of five nearest reached by multiplying the rate by the distance.”
    This statute controls in this case. State v. Sherman, 22 Ohio. St. 411; 1 Ohio Railway Rep. 80, 165, 166 (1870); C. H. & D. R. R. Co. v. Cole, Law & Eq. Rep. April 4, 1877, p. 412; P. C. & St. L. R. R. v. Moore, 33 Ohio St. 384; 29 Ohio St. 126; 23 Ohio St. 190; 1 S. & C. Stat. 281, 309. The statute does not fix any rate under eight miles. The effect is that the railroad company can charge only a reasonable rate. What is a reasonable rate may be in some cases a question of fact and in some a question of law.
    I. When a railroad company fixes a ticket rate there is no authority to charge a higher car rate, and the court will, as a question of law, hold that the ticket rate is a reasonable rate.
    1. On December 16, 1867, the attorney general of Ohio (Hon. W. H. West) gave an opinion on this question, which arose to the Pittsburgh, Ft; Wayne & Chicago R. R. Co., under General Corporation Statute of May 1, 1852, 50 Stat. 274, Sec. 18; 1 Swan & O. Stat. 278, sec. (30) xiii.; Act-April 4, 1863, 60 Stat. 54, the only difference being that under that statute the rate for distances over thirty miles was three cents per mile, and the company could fix reasonable rates for distances under that, while now the statute applies to distances over thirty miles with reasonable rates for less. The attorney,general said the statute fixed the rate for distances over thirty miles at three cents per mile, and as to the power to charge more against passengers who did not pre-purchase tickets, he said :
    “ Have railroad companies authority to exact rates greater than those prescribed by law, from passengers destined to stations distant more than thirty miles ? I think not. This authority is assumed as to passengers who fail to purchase tickets. The claim rests on two grounds, one of personal convenience to the company’s agents ; the other, and chief, of protection against dishonesty.
    
      “ 1. If the exaction of 'these greater rates be considered in "the light of a penalty for the violation of a coi’porate regulation, it is wholly unauthorized, for the imposition of penalties is not an incident of- corporate powers. - If it be •'considered in the light of a burden imposed on the traveling public to compensate for the crimes of the company’s agents, it is equally unauthorized for the punishment of the innocent for the crimes of the guilty and faithless, is still less an incident of corporate power. On either ground it contravenes the positive and express terms of the statute, which is an answer sufficient and conclusive.
    “ 2. It may be said that the exercise of this power is warranted and justified by public policy. But neither self-protection, public policy, or any pretext whatever can override a public statute. Reasons of public policy may be grounds for legislative interference and relief, but I have only to consider the powers of these corporations in the absence of such legislation.
    3. The limitations of the statute are dependent on no conditions, either of public policy, self-protection, pre-purchase of a ticket, or otherwise, except distance alone. No corporate regulation can disregard this positive enactment. If it were otherwise, the creator of these corporate beings would be subject and subordinate to the creature. Hence, when a passenger enters the ears with the bona fide intention of being transported a continuous journey of thirty miles or more, the exaction from him of fare at a rate more than that prescribed by the statute, on any pretext whatever is unauthorized. No breaking of the journey into fragments, and charging for shorter distances between intermediate points, can sanction or legalize excessive rates.”
    “ Are discriminating rates for distances less than thirty miles authorized as against passengers failing to pre-purchase tickets? The statute of 1852 (1 S. & C. p. 278, § 30) to the restriction of which the Pittsburgh, Ft. Wayne & Chicago Railroad Company is subject, provides that for less distances than thirty miles, such ‘ reasonable rates ’ may be charged ‘ as may from time to time be fixed by the company or prescribed by law.’
    “ 1. It is a sufficient answer to the proposition to say that no authority exists for fixing a multiplicity of rates between the same points. A'reasonable rate may be fixed, and not many rates for the same class of passengers.
    “ 2. The legislature having prescribed what is regarded as a ‘reasonable’ compensation for thirty miles distance, it is not ‘reasonable’ that the company shall be authorized to fix any, rate for a less distance which will exact a greater gross sum.
    “If it be, in legislative contemplation, unreasonable to exact more than ninety cents for thirty miles, it would certainly seem unreasonable for the company to exact a greater sum for any less distance.”
    II. The statute by implication limits the fare to twenty cents. 1. It is clear on reason and authority that the company could not charge as much fare for six miles as for nine. Smith v. P. Ft. W. & C. R. R. Co., 23 Ohio St. 10, 16; Campbell v. R. R. Co., 23 Ohio St. 168, 190; State v. Sherman, 23 Ohio St. 411.
    
      2. Ail important question arises on the construction of the statute of 1815 for distances over nine miles. The general rate is three cents per mile. But at this rate nine miles would be twenty-seven cents,'eleven miles-, thirty-three cents, and so on. These sums, if exacted, would make great inconvenience in “making change ” under our decimal and half-decimal system of money. To remedy this the statute says: “ The fare shall always be made that multiple of live nearest reached by multiplying the rate by the distance.” Thus, if the distance is nine miles, multiplying the rate, three cents, by the distance, nine miles, we have a result of twenty-seven cents. But as this is not a multiple of five, the statute says the fare shall be, in such case,'“that multiple-of five nearest reached,” that is nearest to twenty-seven. What is the nearest multiple of five to twenty-seven? There are only two multiples to choose from — twenty-five and thirty — for these are both multiples of five. Now between twenty-seven and twenty-five there is only one number, while between twenty-seven and thirty there are two numbers; therefore, twenty-five is “that multiple of five .nearest reached,” and is the authorized fare for nine miles. As a question of law it is manifestly unreasonable to charge as much for six miles as for nine. The construction of the statute made in the common pleas cannot be supported.
    1. It assumes that thirty is as near to twenty-seven as it is to twenty-five.. This is about as absurd as it would be to say that a point two miles distant from an object is nearer the object than a point only one mile distant.
    2. This construction enlarges corporate authority by construction against the plain words of a statute, which is against every authority of every court.
    3. It is an unjust discrimination against the traveling public, by requiring every passenger (except dead-heads) to lose three cents rather than a railroad company shall lose two cents ; that is assuming that twenty-seven cents are the exact but unattainable just compensation to be made for nine miles’ travel.
    • 4. The statute and usage under it show that no -such strained construction is authorized. A railroad company can not charge for fractions of a mile. For ten and three-quarter miles only ten miles fare can be taken. The statute recognizes no fractions, this is the usage under it. Hence, the legislature intended all questions as to fractions to be resolved in favor of the public.
    III. The plaintiff could only be lawfully ejected at a station. Ill. Central R. R. v. Sutton, 42 Ill. 438; 23 Ohio St. 10, 15.
    IV. , No tender of fare is necessary where more than the legal rate is demanded. 23 Ohio St. 10, 16, 18, 19.
    V. As to damages. 23 Ohio St. 11, 17.
   Upson, J.

— The first question to be decided in this case is, whether, under the statute then in force, the defendant was justified in demanding from the plaintiff the sum of twenty-five cents, as the fare from Huntsville to Bellefontaine, the distance being conceded to be more than six, and less than eight miles. Upon this ]foint the court of common pleas charged the jury that the “ defendant had the right to charge any rate not exceeding twenty-five cents for a distance less than eight miles and more than six miles,” to which charge the plaintiff excepted. The words of the statute, in force on June 8, 18T5, are; “ Any corporation operating a railroad in whole, or in part, in this state, may demand and receive for the transportation of passengers on said road, not exceeding three cents per mile for a distance of more than eight miles; provided the fare shall always be made that multiple of five nearest reached by multiplying the rate by the distance.” T2 Ohio Laws, 143; Revised Statutes, § 33T4. It will be observed that while the statute limits the fare which may be demanded when the distance is more than eight miles, it imposes no limit when the distance is not more than that. In that case the railroad company is allowed to exercise its own discretion in fixing the rate, subject only to the implied condition that it must not prescribe a rate which the law would pronounce unreasonable. In giving a construction to that }3art of the same statute which provides, that for the transportation of property, the corporation may demand and receive, “ in case the same is transported a less distance than thirty miles, such reasonable rate as may be from time to time fixed by such corporation, or prescribed by law,” this court held that it was unreasonable, as a matter of law, that the company should fix a greater sum for a less distance than thirty miles, than the maximum allowed for full thirty miles. Campbell v. Cincinnati & Marietta Railroad Company, 23 Ohio St. 168. And similar language in section 12 of the act of February 11, 1848 (S. & C. 271), relating to rates for carrying passengers, received the same construction in the case of Smith v. Pittsburgh, Fort Wayne & Chicago R. R. Co., 23 Ohio St. 10.

The amount demanded in this case did not exceed the maximum allowed by the rule approved in those eases. In the arguments of counsel there is much discussion as to the meaning of .the proviso, that “ the fare shall always be that multiple of five nearest reached by multiplying the rate by the distance,” the court instructing the jury that this proviso requires that the .multiple which is equal or next above the product thus reached, shall govern, and not the multiple short of, or below such product,” which the defendant claimed to be the proper construction. The plaintiff contending that the multiple nearest reached is the nearest multiple of five, whether above or below such product.

It is not material in this case, however, whether the construction given to the proviso by the court of common pleas is the .correct one or not; for it is clear that for any distance greater than eight miles the railroad company might charge at least twenty-five cents, and we are of opinion that for a distance not more than eight miles, any reasonable sum not exceeding that might be charged. There was in that respect no error in the charge of the court of common pleas.

It is next contended that the court of common pleas erred in charging the jury that “ the railroad company had the right to prescribe rates for pre-purchased tickets, and car rates when tickets were not pre-purchased, for distances less than eight miles and more than six miles, provided that neither of such rates exceeded twenty-five cents.”

It is insisted that when a railroad company fixes a ticket , rate, there is no authority to charge a higher car rate, and the court will, as a question of law, hold that the ticket rate is. a reasonable rate,” and that a higher car rate is unreasonable. We cannot assent to that proposition. The company cannot impose as a penalty for not purchasing a ticket such a sum that the fare demanded on the cars, including such additional amount, shall exceed the maximum allowed by law; but within that limit a just discrimination is clearly proper. The first duty of the conductor is to provide for the safety of the passengers on the train of which he has charge, and next to promote their comfort and convenience. lie also has the general supervision and control of those who are employed on the train. It is plain that the practice of paying fare on the train, instead of purchasing tickets, might be carried so far as to prevent the faithful performance of the conductor’s duties, and when that is found to be the case, railroad companies not only have the right to make, but often do make and enforce, rules to prevent any persons from going upon their trains without having previously purchased tickets. The small additional sum required in this case when the fare was paid on the cars was certainly reasonable, and it was not error to so charge the jury.

The plaintiff also excepted to the charge of the court of common pleas, that when payment of the fare demanded was refused, the defendant had the right to eject him from its train, and also to the refusal of the court to charge, as requested by the plaintiff, that the defendant railroad company had no right to expel the plaintiff from its cars, except at a railroad depot, or stopping-place.” Of the defendant’s right to eject the plaintiff from its car for a persistent refusal to pay his fare from the station at which ho entered the ear to the next station, there can be no serious question, provided he was not removed with unreasonable violence, or at a place where he would be exposed to serious injury or danger. When he refused to pay the usual fare, he had no right to remain on the train, or to claim the lights of a passenger, but might rightfully be treated as a trespasser, and be at once expelled. To hold that this could only be done at a railroad depot, or stopping-place, would deprive a railroad company of its chief safeguard against that kind of fraud or imposition, and we know of no principle of law, or public policy, which requires that every one who prefers not to pay his fare shall be carried without charge from the station at which he gets on the train to the next station.

We see no error in the charge of the court of common pleas, that “ when, for such refusal to pay, the train was stopped for the purpose of ejecting the plaintiff, his right to transportation was not restored by afterward offering to pay the fare so demanded,” especially when taken in connection with the instruction also given to the jury, that the plaintiff was entitled to a reasonable time, after the demand was made, to consider whether he would pay the sum demanded. To concede that privilege to a person who has willfully violated the obligations of the implied contract under which he was allowed to enter the cars, would enable him to attempt the perpetration ofa fraud at the leastpossible risk of loss or inconvenience to himself, and the greatest annoyance and inconvenience to the railroad company, and the passengers on its train. By denying such privilege no right is violated, for the rights and privileges of a passenger have been abandoned, under circumstances which justify the company in refusing to permit such person to come again upon the train.

Considering the entire charge given to the jury, and the instructions refused, we are of opinion that there was no error in the rulings of the court of common pleas, and that the district court erred in reversing the judgment of that court.

Judgment of the district court ■ reversed, and judgment of the court of common pleas affirmed.  