§ 887. Extra charge when fare is paid on train. 888. No opportunity to obtain ticket.

889. Ticket agent's mistake.

890. Mistakes of the conductors. 891. Argument for the passenger. 892. Argument for the carrier.

§ 860. The function of regulations.

The part which regulations play in the conduct of a public business is very considerable. Public businesses are usually carried on upon a large scale, and for their proper conduct established regulations are plainly necessary. In recognition of this fact great scope is given to regulations by the law, large discretion being given to those who are confronted with the problem of reducing to order a complicated business. As a result the rule usually followed by the courts is to hold justifiable a regulation which is made by a company in good faith and enforced by it without discrimination unless it is plainly outrageous in its general operation. Whether the court might have itself done differently, or even if it sees hardship in particular cases, is not, as will be seen, enough to induce it to set the regulation aside or hold it no justification. This discloses the real addition which the right to make regulations brings to the ordinary law of public service. Without regulations a company may refuse to accede to particular requests, but it must then show that the particular request is unreasonable. But with a general regulation a service may be refused to anyone notwithstanding his particular hardship unless the whole rule is shown to be unreasonable.

Topic A. Establishment of Regulations § 861. Who may make regulations.

The regulating power that is possessed by those who conduct a public employment is part of that right of management of their business which the law concedes to remain

in them. Proper regulations may be made at each stage of the hierarchy of the administration by the officer in authority. Thus general managers may make regulations for the whole system, and district managers additional ones for their own territory; and even minor officials such as conductors or station agents may sometimes make regulations. All such regulations take effect upon the officers or employés subordinate to the official who has made the regulations; and it follows that inferiors cannot waive the regulations of a superior or make regulations inconsistent with them.2 Thus a railroad company is not bound by a conductor's agreement to let a passenger off at a station at which the published regulations of the company do not allow the train to stop; but a superior can of course, set aside the regulation of an inferior; and indeed the person who has made the regulations himself may do so.

§ 862. Publication of regulations.

By the general rule regulations are not binding unless there has been due notification of them.3 This does not mean that in every individual case they must have been

For authority for the text which follows, see Miller v. Georgia Ry. & B. Co., 88 Ga. 565, 18 L. R. A. 323, 15 S. E. 316, 30 Am. St. Rep. 170 (1891); and Commonwealth v. Power, 7 Met. (Mass.) 596 (1844).

2 For authority for the text which follows, see Ohio & M. R. W. Co. v. Hatton, 60 Ind. 12 (1877); and Schiffler v. Chicago & N. W. Ry. Co., 96 Wis. 141; 71 N. W. 97, 65 Am. St. Rep. 35 (1897).

California.-Griffith v. Cave, 22 Cal. 534, 83 Am. Dec. 82 (1863). Indiana.-Chicago, St. L. & P. Ry. Co. v. Holdridge, 118 Ind. 287, 20 N. E. 837 (1889).

Kansas.-Brown v. Kansas City, F. S. & G. R. R. Co., 38 Kan. 634, 16 Pac. 942 (1888).

Maryland.-Western Maryland Ry. Co. v. Herold, 74 Md. 510, 22 Atl. 323, 14 L. R. A. 75 (1891).

Michigan.-Carland v. Western Union Telegraph Co., 118 Mich. 369, 76 N. W. 762, 43 L. R. A. 280, 74 Am. St. Rep. 394 (1898).

New York.-McGowan v. New York City Ry. Co., 99 N. Y. Supp. 835 (1906).

Pennsylvania.-Pennsylvania R. R. Co. v. Spicker, 105 Pa. St. 142 (1884).

Texas.-Eddy v. Rowell (Tex. Civ. App.), 26 S. W. 875 (1894).

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brought home to the person who is held to be governed by them; it simply means there must be such publication of them as should fairly affect the patrons concerned with knowledge of them.1 Publication may be by notices posted upon the premises, by provisions printed upon tickets 2 by advertisements or handbills or in any other way that promises sufficient publicity. Private instructions given to its employés to disregard established regulations in certain circumstances will not usually affect patrons at all; and generally speaking regulations governing the conduct of officials among themselves need not be made known. Indeed there are certain instances where it is requisite that the regulations should be kept secret. 5

1 California.-Wright v. California Central Ry. Co., 78 Cal. 360 (1889).

Georgia.-Macon & W. R. R. Co. v. Johnson, 38 Ga. 409 (1868).

Maryland.-Baltimore City Pass. Ry. Co. v. Wilkinson, 30 Md. 224 (1869).

Michigan.-Van Dusan v. Grand Trunk Ry. Co., 97 Mich. 439, 37 Am. St. Rep. 354, 56 N. W. 848 (1893). Pennsylvania.-Whitsell v. Crane, 8 Watts & S. 369 (1845).

Tennessee.-Knoxville

Traction

Co. v. Wilkerson, 117 Tenn. 482, 99 S. W. 992, 9 L. R. A. (N. S.) 579 (1906).

Texas.-Western Union Tel. Co. v. McMillan (Tex. Civ. App.), 30 S. W. 298 (1895); Gulf C. & S. F. Ry. Co. v. Moody (Tex. Civ. App.), 30 S. W. 574 (1895).

Virginia.-Norfolk W. Ry. Co. v. Wysor, 82 Va. 250 (1886).

2 Connecticut.-Coupland v. Housatonic R. R. Co., 23 Atl. 870, 15 L. R. A. 534, 61 Conn. 531 (1892).

Massachusetts.-O'Neill v. Lynn

& B. Ry. Co., 155 Mass. 371, 29 N. E. 630 (1892).

V.

New Hampshire.-Johnson Concord R. R. Corp., 46 N. H. 213, 88 Am. Dec. 199 (1865).

Tennessee.-Trotlinger v. East Tennessee, Va. & Ga. R. R. Co., 11 Lea, 533 (1883).

'However passengers while bound by the conditions printed on tickets are not necessarily bound by conditions affecting transfers of which they are not so notified.

Pennsylvania.-Perry v. Pittsburg Union Pass. Ry. Co., 153 Pa. St. 236, 25 Atl. 772 (1893).

West Virginia.-De Board V. Camden Int. Ry. Co., 62 W. Va. 41, 57 S. E. 279 (1907).

See also Lake & M. S. R. R. Co. v. Brown, 123 Ill. 162, 14 N. E. 197, 5 Am. St. Rep. 510 (1887).

'See, however, Philadelphia, W. & B. R. R. Co. v. Rice, 64 Md. 63 (1885), discussing a private marking system.

§ 863. Changing regulations.

The power to make regulations of course includes the power to suspend them or to modify them, to alter them or to do away with them altogether. But such suspension, modification, alteration or withdrawal must keep within the limitations of the original power. When regulations are changed there must be due notice, the same rules applying as in the publication of the original regulation.1 Probably it will not do to go so far as to say that exactly the same steps must be taken to give publicity to the change as were taken in the establishment; it is enough doubtless if equal publicity is given to the change although the same methods be not employed.

By the regulations which were posted and printed at the various stations "live animals" were "allowed as baggage men's perquisites." As no special notice of this rule was brought home to the owner, the company was held liable for loss of the dog by the baggage man. Cantling v. Han. & St. Joe R. R. Co., 54 Mo. 385 (1873).

So merely posting a notice as to the conditions governing limited tickets is not sufficient to bring these home to the passenger; the ticket itself should refer to them. Railroad Co. v. Turner, 100 Tenn. 213, 47 S. W. 223 (1898).

This case apparently goes too far to one extreme a rule adopted by a telegraph company regulating its relations with its patrons is not binding upon them without their assent, although they have knowledge thereof. Webbe v. Western Union Telegraph Co., 169 Ill. 610, 48 N. E. 670, 61 Am. St. Rep. 207 (1897).

This case apparently goes too

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far to the other—a consignee of goods impliedly contracts to submit to all reasonable rules for the regulation of shipments adopted by a railroad company, and the fact the shipper was not consulted in framing such rules does not affect their validity. Pennsylvania R. R. Co. v. Midvale Steel Co., 201 Pa. St. 624, 51 Atl. 313, 88 Am. St. Rep. 836 (1902).

1New Jersey.-Consolidated Traction Co. v. Taborn, 58 N. J. L. 1, 32 Atl. 685 (1895).

New York.-Pearsall v. Western Union Telegraph Co., 124 N. Y. 256, 26 N. E. 534, 21 Am. St. Rep. 662 (1891).

Pennsylvania.-Lake Shore & M. S. R. R. Co. v. Greenwood, 79 Pa. St. 373 (1875).

Tennessee.-Knoxville Traction Co. v. Wilkerson, 117 Tenn. 482, 99 S. W. 992, 9 L. R. A. (N. S.) 579 (1906).

2 Sears v. Eastern R. R. Co., 14 Allen (Mass.), 433. 92 Am. Dec. 780 (1867).

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Even a provision in the original regulation that there may be change therein without notice, should be unavailing, as it is inconsistent with the general requirement that all patrons should be notified of anything to which they are required to conform.1 Two allied cases which In one have arisen on this topic should be stated here. it was held that if a time-table is altered and the change is not notified to all local agents, so that at one station a passenger buys a ticket under misapprehension, he may sue the company. In the other 3 it was held that where a railroad company fails to inform its conductor of a change in rules as to the sale of tickets and stoppage of trains, and such conductor, through want of such information, wrongfully refuses to carry a passenger and ejects him from the train, the company is liable therefor.

§ 864. Waiver of regulation.

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Likewise regulations may be waived either expressly or by custom. Of express waiver all that it is necessary to say is that the waiver must be made by an official having at least apparent authority in the premises. If it should be apparent that the agent has no such authority, his waiver is ineffectual. But where a conductor on the road informed the passenger that he could stop off at an intermediate point, and wrote on the ticket to that effect, it has been held that this waiver was effectual, although the ticket stated that no agent could modify the contract."

1 Geer v. Michigan Central Ry. Co., 142 Mich. 511, 106 N. W. 72 (1905).

2 Van Camp v. Michigan Central R. R. Co., 137 Mich. 467, 100 N. W. 771 (1904).

3 Sheets v. Ohio River Ry. Co., 39 W. Va. 475, 20 S. E. 566 (1894).

4 Indiana.-Pennsylvania Co. v. Bray, 125 Ind. 229, 25 N. E. 439 (1890).

Missouri.-McGee v. Missouri Pacific Ry. Co., 92 Mo. 208, 4 S. W. 739 (1887).

Oakes v. Northern Pacific Ry. Co., 20 Oreg. 392, 26 Pac. 230, 12