and the passenger, in the absence of any evidence to the contrary. If the passenger insists that under his contract, by virtue of general usage, or the custom upon the road, he is entitled to be carried at his pleasure either by one or by different trains, and at different times, over various portions of his journey, the burden of proof was upon the state. No such usage was established, although some evidence was offered upon the trial, for the purpose of proving it.

The defendant offered evidence to show that some years previous to the transaction, the company had adopted a rule, and given public notice, that a conductor's check was not transferable from one train to another. This, properly considered, is a simple warning to passengers, that they would be carried strictly according to the terms of their contract. Even if a previous custom had been proved (which it was not) for passengers to be carried over different parts of their journey by different trains, it was a mere warning that in the future the custom would not prevail. Upon the trial, this action of the company was presented to the court, and by them submitted to the jury, as if it were a by-law or regulation of the company affecting the rights of passengers, upon the reasonableness and consequent validity of which the jury were to decide. The court clearly intimated its opinion, that the regulation of the company was valid, but under the influence of the ruling of another tribunal, submitted the validity of the regulation as a matter of fact to the jury.

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In this the court erred. Here was no evidence of any by-law, or of any regulation made by the company, affecting the rights of passengers upon the reasonableness or validity of which either court or jury were called upon to decide. The right of the passenger rested upon his contract. The notice given by the company was in strict conformity with his rights under the contract. on the evidence in the cause, if no proof had been offered of the notice given by the company, that conductors' checks were not transferable, the defendant would have been entitled to a verdict. Proof of that notice certainly placed him in no worse position. The company have an unquestionable right, under their charter, independent of any by-law or regulation, to charge different rates by different trains, or a higher price for travelling over the road as a way-passenger, by different journeys, than for a through passenger. This was in reality all that was involved in the evidence

of the action by the company, as proved upon the trial. The case does not fall within the operation of the principle, by which it was held to be controlled.

Assuming at the bar, as was done upon the trial, that the guilt or innocence of the defendant depended upon the validity of a regulation made by the company, affecting the rights of passengers, the question was elaborately argued whether the validity of such regulation can in any case be submitted as a question of fact to be decided by a jury, and the broad principle was assumed that the validity of every regulation made by a railroad company, regulating the concerns and affecting the rights of the road, is a question of law, to be decided by the court, and never can be submitted to a jury; that the company is bound to make regulations for the comfort and convenience of passengers; that the power is regulated by their charter; that what is lawful is reasonable; and that, therefore, every regulation is reasonable that is not unlawful. The validity of the by-law of a corporation is purely a question of law. Whether the by-law be in conflict with the law or with the charter of the company, or be in a legal sense unreasonable, and therefore unlawful, is a question for the court and not for the jury. Commonwealth v. Worcester, 3 Pickering, 462; Paxon v. Sweet, 1 Green, 196; Ang. and Ames on Corps. 357. But the by-laws of a private corporation bind the members only by virtue of their assent, and do not affect third persons. All regulations of a company affecting its business, which do not operate upon third persons, nor in any way affect their rights, are properly denominated by-laws of the company, and may come within the operation of the principle. Within this limit it is the peculiar and exclusive office of the court to decide upon the validity of the regulation.

But there is another class of regulations, made by corporations as well as by individuals, who are common carriers of passengers, which operate upon and affect the rights of others which are not, properly speaking, by-laws of the corporation, and which do not fall within the operation of the principle. Of this character are all regulations touching the comfort and convenience of travellers, or prescribing rules for their conduct to secure the just rights of the company. It is not perceivable of this class of regulations, that they are never unreasonable unless they are unlawful. On the contrary, they are unlawful because they are unreasonable, or an unnecessary infringement of the rights and liberty of the pas

sengers. The reasonableness and validity of a regulation, that passengers by railroad or steamboat should exhibit their tickets when reasonably requested, that they should not smoke or indulge in other filthy or offensive practices; that male passengers should not enter a car or a saloon, especially appropriated to females, might be conceded, and the right of the company to enforce them, even by excluding, in case of necessity, the offending passenger from the train. But it would scarcely be contended that a regulation requiring passengers continually, or as often as the caprice or malice of a conductor might require it, to exhibit their tickets; forbidding them to speak, or change their seats from one part of a car or saloon to another, when the right of no other passenger was affected, was a regulation lawful in itself, or which might safely be enforced. This latter class of regulations are no more in violation of the charter of the company, or of any particular statute, than the former. But they would be held unlawful because they are unreasonable, and an unnecessary infringement of the rights and liberty of travellers. The distinction between such regulations as are necessary, and conducive to the comfort and convenience of travellers, or to protect the rights of the company, must from its very nature be a question of fact rather than of law. The reasonableness and unreasonableness of the regulation is properly for the consideration, not of the court, but of the jury.

In Jenks v. Coleman, 2 Sumner, 221, the action was brought to recover damages against the defendant, for refusing to receive the plaintiff as a passenger on board of a steamboat, of which the defendant was commander. The defence was, that an agreement had been entered into by the proprietors of the boat, with a line of stages, to carry their passengers from and to Providence and Boston. That the plaintiff was the agent of another line of stages, and that his object in going on board of the boat was to procure passengers, and thus interfere with the arrangement made by the steamboat proprietors. Justice Story, in his charge to the jury, said, "The true question is, whether the contract is reasonable and proper in itself, and entered into with good faith, and not for the purpose of an oppressive monopoly. If the jury find the contract to be reasonable and proper in itself, and not oppressive, and they believe the purpose of Jenks in going on board was to accomplish the objects of his agency, and in violation of the reasonable regulations of the steamboat proprietors, then their verdict ought

to be for the defendant, otherwise to be for the plaintiff." If the question whether a contract entered into by common carriers be reasonable and proper, and one which may be enforced, even by excluding passengers from the conveyance, be a question of fact, to be decided by a jury, there is surely no violation of principle in submitting to their decision, the necessity or propriety, and consequent validity, of a regulation affecting the comfort or safety of passengers.

But there was in reality no such question involved in the present case. The right to transfer conductors' checks, resulted upon a contract which the company had a clear and unquestionable legal right to enforce. The question was improperly submitted to the jury, and the verdict is against law, and contrary to the evidence.

The Oyer and Terminer should be furnished with the advisory opinion of the court, that the verdict ought to be set aside, and a new trial granted.

When one purchases a ticket, entitling him by the rules of the company regulating the tariff of fares, to a continuous passage through, but not to stop at an intermediate station and complete his passage in another train, and avails himself of the reduction in price allowed to such passengers, and at the time of purchasing the ticket is ignorant of the rules, it has been made a question whether he ought to be affected by them. In Cheney v. Boston & Maine Railw. Co., 11 Met. 123, the court say, "This might very properly be insisted upon in his behalf, if it were attempted to charge him with any liability created by such rules, especially if it were attempted to enforce any claim for damages by reason of them.

The question as to the right of the plaintiff to be transported as a passenger, does not depend upon his knowledge, at the time of the purchase of his ticket, of the difference of the price to be paid for a passage through the whole distance by one train, or that of a passage by different trains. The plaintiff might have inquired and informed himself as to that. If he did not, he took the mode of conveyance, the price of the ticket, and the superscription thereon, secure to him under the rules and regulations of the company." And this is unquestionably the true construction. If one is ignorant of the regulations of the company affecting the duty imposed by the issue of a particular ticket, he is bound to inquire or in some way inform himself on that point.

REQUIRING PASSENGERS TO EXHIBIT THEIR TICKETS ON PAIN OF EXPULSION FROM THE CARS.

Hibbard v. N. Y. & Erie Railway Co., 15 New York Reports, 455.

A regulation of a railway company requiring passengers to exhibit their tickets, when requested to do so by the conductor, and in case of refusal authorizing their removal from the cars, is a reasonable and proper regulation, and binding upon the passengers.

It seems that a passenger having once forfeited his right to proceed further in the cars by refusing to show his ticket, it is for the company or its agents to say whether he shall be retained upon subsequently showing it. Per Denio, C. J. If his expulsion, after such subsequent showing of his ticket, is unlawful, it seems the railway company would not be liable, but only those who committed the trespass. Per Comstock, J. [Sed quære.]

If the servants of a railway company, in removing a passenger from the cars, wantonly use unnecessary force, they, and not the company, are responsible for the consequences. Per Brown, J. [Quære.]

OPINIONS.

DENIO, C. J. In my opinion, the learned judge before whom this case was tried, committed two capital errors: First, he refused to charge the jury that the plaintiff was bound to conform to the rules and regulations of the company, by showing his ticket to the conductor when requested so to do. As a substitute for this direction, he charged that a passenger was bound to exhibit his ticket when reasonably requested; and, he added, that if the conductor knew the plaintiff had paid his fare, he had no right to expel him from the cars, although he refused to show his ticket. The defendant was entitled to the instruction asked for, without qualification.

It was proved that the defendant's company had established a regulation by which passengers were required to exhibit their tickets when requested to do so by the conductor, and that in case of refusal they might be removed from the cars. If this was a reasonable regulation, the plaintiff was bound to submit to it, or he forfeited his right to be carried any further on the road. In my opinion the rule was reasonable and proper, and in no way oppressive or vexatious. In the first place, it was easy to be complied with. The railroad ticket is a small slip of paper or pasteboard, which may be conveniently carried about the person; and it in