as security, and send it to the general office with the ticket, with an explanation, and that, if it was all right, on reaching her destination, at Claremore, she could get her baggage, and, if it was not all right, she could call at the station in Claremore and pay the amount of fare and get her baggage; that he endeavored to persuade her to do this, and then left her, and went to the front of the train to finish taking up tickets, and supposed she would reconsider and pay her fare, though she had positively refused to do so; that he was at the front end of the car when they reached Pacific, and did not see her leave the train, and did not know that she and her sister had left the train until he went into the sleeper after the train left Pacife; that he did not direct the porter to see that she got off at Pacific; and that the train porter did not assist her in getting off, and had nothing whatever to do with the matter. As to this latter statement the conductor is corroborated by the Pullman condoctor, who testified that he told her that, if she intended to get off, this was Pacific, and, upon being informed by her that she intended to get off and take the next train, he and the Pullman porter assisted them off the train, the porter carrying the baggage, and be the little girl; that neither Conductor Gillis nor the train porter were present at the time plaintiff left the train; that he refunded or transferred her Pullman ticket, so she would have the full benefit of it on the next train. The conductor denied that he used any rude or insulting language to the plaintiff. Miss Davis testified that when the controversy was going on between her sister, the plaintiff, and the conductor, she went over to where her sister sat, and her sister said to her, "The conductor says my ticket is no good, and wants to make me pay fare," and thereupon the conductor turned to witness and began to explain about scalpershow expert they had become in fixing up tickets and fooling the conductors-and she said to him, "That is a scalper's ticket?" "He said, 'Yes, madam;' and I says, 'So you say your agent did not sell this ticket to her at Joplin? and he said, 'No, sir; he did not;' and I said, 'You are not a gentleman, to dispute a lady's word like that.'" She testified that his tone "was just very insulting," and that in this way he accused her sister of telling a falsehood. The evidence tended also to show that, under the rules of the company, it was the duty of the conductor to refuse to honor the ticket, and compel the passenger to either pay fare, or retire from the train at the next station, and that, if he had violated this rule and accepted the ticket, he would have had to pay for it out of his own pocket. Under the instructions of the court, the jury returned the issues in favor of the Flaintiff, allowing her $125 as damages. Nine of the jurors concurred in this verdict, and three were against it. Other facts may be noted in the course of the opinion.

1. Under the recent decisions of this court in banc, and of both divisions, had this appeal been taken to or transferred to this court after the decisions in Russell v. Croy, 164 Mo. 69, 63 S. W. 849, and Gabbert, Adm'r, v. C., R. I. & Pac. Ry. Co., 171 Mo. 84, 70 S. W. 891, in which it was held that the amendments to article 10 of the Constitution by adding thereto two sections, to be known as sections 22 and 23, and to section 28 of article 2, were duly and legally adopted, so far as the publication of the notices of the election and the submission of the same to the qualified voters was concerned, this appeal should be remanded to the St. Louis Court of Appeals, as the sole ground upon which it is transferred to this court is that the amendment to section 28 of article 2, permitting nine jurors in a civil case to make a verdict, was never legally adopted; but inasmuch as the appeal, when taken, fairly raised the constitutional question whether such amendments had in fact become a part of the Constitution, and was taken prior to the settlement of that question by this court in the cases above cited, we will retain the appeal as properly in this court; otherwise we would not. Lee v. Jones (Mo. Sup.) 79 S. W. 927; Carpenter v. Hamilton (Mo. Sup.) 84 S. W. 863.

2. On both sides it is conceded that this action is one sounding in tort, to wit, the wrongful ejection of plaintiff from defendant's train on the night of April 6, 1900, by one of the defendant's conductors in charge thereof. The allegation as to the contract of transportation, to wit, the ticket described in the petition, is matter of inducement, to show that plaintiff was rightfully on the train, and hence that her expulsion was unlawful. Book v. C., B. & Q. R. Co., 75 Mo. App. 604; Ry. Co. v. Reynolds, 55 Ohio St. 370, 45 N. E. 712, 60 Am. St. Rep. 706; Ry. Co. v. Roberts, 91 Ga. 513, 18 S. E. 315.

At the root of the case lies the question whether the ticket which plaintiff offered to the conductor entitled her to passage on the train, or by its terms had expired, and therefore the conductor was justified in demanding fare to Monett, and, upon plaintiff's refusal to pay fare, to require her to leave the train. The question is by no means a new one. It may, we think, be safely stated that the general rule is that when a passenger purchases a ticket for transportation from one point to another over the road of a common carrier, and pays full or regular ordinary fare, the ticket is not intended as a contract itself, but as a mere token or evidence of a contract which the law creates, and which lies behind the ticket. In such case the law makes the contract and regulates the reciprocal rights and duties of both carrier and passenger, and the ticket is a mere token that such contract exists, and under it the passenger is entitled to be carried to and from the points named, without

a

On the other hand it has been held by a number of the highest courts in the United States, including the Supreme Court of the United States, that when, as in this case, the ticket on its face purports to be a special contract of carriage, and is based upon a valuable consideration (that is to say, sold at a reduced rate), then the ticket itself constitutes a contract of carriage between the parties, and the provision limiting the time within which it shall be good, and providing that it shall be stamped as of the date when the return passage is commenced, by the ticket agent at that place, and that the holder of the ticket must identify himself or herself to such agent as the original purchaser thereof, and sign the same in his presence, and the signing and attestation must be dated and indicated by punch marks on the ticket, and that such ticket should only be good for a continuous return passage commenced on that date, is a reasonable regulation, and binding upon the holder of such a ticket. Thus in Mosher v. St. Louis, etc., R. Co., 127 U. S. 390, 8 Sup. Ct. 1324, 32 L. Ed. 249, it appeared that the St. Louis, Iron Mountain & Southern Railway Company owned railroad from St. Louis to Malvern, Ark., and the Hot Springs Railroad Company owned and operated a railroad from Malvern to Hot Springs, Ark., and the Iron Mountain Company sold a ticket at a reduced rate of fare for a passage from St. Louis to Hot Springs and return, and the ticket contained stipulations by which the purchaser agreed that in selling the ticket the St. Louis, Iron Mountain & Southern Railway Company acted only as agent, and was not responsible beyond its own line, and that the ticket was good for going passage only five days from the date of sale stamped on the back and written below, and would not be good for return passage unless the holder identified himself as the original purchaser to the satisfaction of the authorized agent of the Hot Springs Railroad at Hot Springs, Ark., within 85 days from date of sale, and, when officially signed and dated in ink and duly stamped by said agent, the ticket should then be good only five days from said date; and it was expressly agreed that the purchaser would, whenever called upon, identify himself to any conductor or agent of the lines over which the ticket read, and that no agent or employé of any of the lines named in the ticket had any power to alter, modify, or waive any of the conditions named on the ticket; and it appeared that the plaintiff went to Hot Springs, and, within the time limited by the ticket, desiring to return to St. Louis, presented himself and

said ticket at the business and ticket office and depot of the Hot Springs Railroad, in the city of Hot Springs, during business hours, and a reasonable time before the departure of its train for St. Louis, for the purpose of identifying himself as the original purchaser of said ticket, and of having the same officially signed, dated, and stamped by said agent, but the Hot Springs Railroad Company failed to have said agent there at any time between the time when the plaintiff so presented himself and his ticket and the time of departure of the train, whereby, as it was alleged, the Iron Mountain Company and its agent and the agent of the Hot Springs Railroad at Hot Springs, without any just cause or excuse, failed to identify plaintiff as the original purchaser, or to officially sign, date, and stamp said ticket; and the plaintiff thereupon boarded the train of the Hot Springs Railroad, and was carried thereby to Malvern, where on the same day he boarded a regular passenger train of the Iron Mountain Company for St. Louis, and, upon the conductor demanding his fare, presented his ticket, and informed the conductor of the failure of the agent at Hot Springs to be at the office so that he could identify himself, and offered to sign his name and otherwise identify himself to the conductor, and demanded to be carried to St. Louis by virtue of his said ticket, but the conductor re fused and put him off the train-it was held that the ticket was a valid contract, and binding upon the holder thereof, and, by its express terms, the plaintiff had no right to a return passage under the ticket unless it bore the stamp of the agent at Hot Springs, and that such a stamp was made by the contract a condition precedent to the right of a return passage, and no agent or employé of the defendant was authorized to waive that condition. It was held that, by the first condition of the contract, the defendant was not responsible beyond its own line, and was not responsible to plaintiff for failing to have an agent at Hot Springs; that, by the contract, the agent who was to identify plaintiff and stamp his ticket was the agent of the Hot Springs Railroad Company, and it was the duty of that company to identify plaintiff, and not the defendant; that the conductor of the defendant's train had no authority to dispense with the want of such stamp, or to inquire into the previous circumstances. The rule announced in that case was reasserted in Boylan v. Hot Springs Railroad Co., 132 U. S. 146, 10 Sup. Ct. 50, 33 L. Ed. 290; and it was further held that the purchaser of a ticket from a railroad company, at a reduced rate of fare, for passage to a certain station and back, containing a contract, signed by him, that the ticket should not be good for return passage unless stamped by the agent of the company at that station, and that no agent of the company was authorized to alter or modify any

condition of the contract, was bound by tacse conditions, whether he knew them or not, and neither the action of the baggage master in punching the ticket and checking the plaintiff's baggage, nor that of the gateman in admitting him to the train, could bind the defendant to carry him, or estop it to deny his right to be carried. To the same effect, see Watson v. L. & N. R. Co. (Tenn.) 56 S. W. 1024, 49 L. R. A. 454; Edwards v. R. Co., 81 Mich. 364, 45 N. W. 827, 21 Am. St Rep. 527; Bowers v. Pennsylvania Co. (Pa.) 27 Atl. 893; 4 Elliott on Railroads, § 1593, p. 2484; Pennington v. P., W. & B. R. Co., 62 Md. 95; West Md. R. Co. v. Stocksdale, 83 Md. 245, 34 Atl. 880, and cases cited; Moses v. R. R., 73 Ga. 356. In the last-cited case the circumstance noted by the plaintiff on this appeal, to wit, that the St. Louis, Nashville & Chattanooga Railroad Company accepted plaintiff's ticket on her return, and waived the limitations as to time in the contract, was commented on by Chief Justice Jackson, who said: "The ticket passed him over two roads, but each had a right to stand on the contract. If one passed him, the other was not bound thereby to pass him also, in the teeth of the contract he had made." See, also, Dangerfield v. Railway Company (Kan. Sup.) 61 Pac. 405; Comer V. Foley (Ga.) 25 S. E. 671; Abram v. Railway Company, 83 Tex. 61, 18 S. W. 321; Rahilly v. Railway Company, 66 Minn. 153, 68 N. W. 853.

It is asserted, however, by the plaintiff in this case that this line of authority is not the law in this state, and we are cited to McGinnis v. R. R., 21 Mo. App. 399, and to Cherry v. Railway Company, 52 Mo. App. 499, as sustaining this contention. It is evident, however, from the reading of those cases, that neither of them reached the point now under discussion. In the Cherry Case the passenger had purchased a first-class passenger ticket, which read, "Good to stop over at all points." It was held that this justified the passenger in stopping off at a station short of his destination, and subsequently, within the life of the ticket, taking another train to his destination, and though on his presentation to the conductor of his ticket, with notice of his intention to stop over, the conductor took up the going coupon, and gave no check or token in lieu thereof, the passenger's rights were not affected, and the same conductor, with a knowledge of all the facts, was not justified in ejecting him from the train on his subsequent resumption of his journey. With that case we are entirely satisfied. The passenger had compiled with every condition on his part, and had violated no rule of the company, and the same conductor who had wrongfully taken up the going coupon without preserving to the passenger any evidence of his right to resume his journey after the stop-over, with a full knowledge of all the facts and a persocal acquaintance with the passenger,

wrongfully ejected him. In the McGinnis Case the passenger held a return ticket, but the date of it was blurred, and the conductor was of the opinion that there had been an alteration in the date, and for that reason refused to honor the return coupon; but the ground of recovery was that it turned out that the blurring of the ticket was caused by the defendant's own agent in dating it when he sold it, and the rude and offensive and insulting manner of the conductor in ejecting the plaintiff. That case likewise does not reach the point before us. In Hot Springs Railroad Company v. Deloney, 65 Ark. 177, 45 S. W. 351, 67 Am. St. Rep. 913, the authorities are collected with much industry, and the conclusion reached that the efforts of the court to reconcile the conflicting views as to the right of the conductor, in collecting tickets and fares, to rely entirely upon the face and appearance of a ticket presented to him, in determining his duty as to the acceptance of the same, had not met with any degree of success. In that case it was held that notwithstanding the conductor had only carried out the company's rules and regulations, and that they were reasonable, and he therefore was blameless personally, inasmuch as the company which was sued, through its ticket agent, acting for it, had been guilty of doing that which produced the injury to the plaintiff, it was liable for such neglect, and could not shield itself behind the faithfulness of its servant, the conductor. We think that decision was unquestionably correct, and was but the application of the common-law of principal and agent. In that case the company was rightfully held responsible for the natural and reasonable consequences of the neglect of its own agent. But that case does not reach the question before us-whether the defendant company in this case is responsible for the neglect of the plaintiff to read the contract on her ticket, and in not complying therewith, and the mistake or negligence of the agent of the connecting line at Chickamauga, Ga. It is plain that no such question was involved in the Deloney Case, supra.

We have laboriously gone through the long line of cases cited to us by respondent, and find that in most of them the action was directly against the company whose agent had been guilty of the neglect or negligence which produced the inconvenience and injury to the passenger, or they were cases in which the ticket was apparently regular on its face, and the passenger misled thereby, and various other circumstances in which it was held that the defendant company was liable for the wrongful and negligent acts of its own servants; and, in our opinion, without attempting a review of all those cases or reconciling them, we think they are clearly distinguishable from the facts upon which the case is bottomed, and, in our opinion, the correct doctrine is stated in

Mosher v. Railway, 127 U. S. 390, 8 Sup. Ct. 1324, 32 L. Ed. 249, and Boylan v. Railroad, 132 U. S. 146, 10 Sup. Ct. 50, 33 L. Ed. 290. We think the provisions of the ticket in this case were reasonable regulations, and that the agent at Chickamauga had no authority to bind the defendant company by waiving any of the contract provisions which inured to the benefit of all the roads which were parties to that contract, and the fact that the other roads waived the conditions in no manner affected the defendant's rights. By the terms of the contract, plaintiff was only entitled to a continuous return passage within the limits of the ticket, commencing on the date that she was identified and the ticket stamped and punched at Chickamauga for the return passage, and that consequently when it was presented to the conductor of defendant's road on the 6th of April, 1900, it had expired, according to the limitations plainly printed thereon, and did not entitle plaintiff to a passage from St. Louis to Monett, and that the conductor was justified in refusing to accept the ticket for passage between those points. And it is no justification of plaintiff's insistence that she had not read the contract which she had signed. The stipulations of the contract were plainly printed on the face of the ticket, in a way not calculated to escape observation, and the plaintiff's own evidence shows that she knew she was receiving a special rate, and went to Joplin for the express purpose of getting a ticket for a reduced fare; and, under the circumstances, it was her duty to read it when she received it, and, in the absence of proof of fraud, imposition or deceit, the law presumes she had knowledge of its contents, and must be held to have assented to the terms thereof. Snider v. Adams Ex. Co., 63 Mo., loc. cit. 383; Watson v. L. & N. R. Co. (Tenn.) 56 S. W. 1024, 49 L. R. A. 454. Hence the instruction given for the plaintiff as to the right of the plaintiff to rely upon the statement made by the agent of the Chattanooga, Rome & Southern Railroad that she could be identified and have said ticket stamped on the 22d of March, 1900, and it would be good for her return passage at a later date, was erroneous.

But notwithstanding plaintiff had no right to passage over the defendant's road by virtue of said ticket after the same had expired by virtue of its limitations, and the failure of plaintiff to comply with the provisions of her contract with defendant, and while we think that when plaintiff was notified of the invalidity of the ticket and refused to pay the fare to Monett, the conductor had the right to remove her from the train, he had no right to use unnecessary and insulting language to her, and thereby hurt her feelings and humiliate her; and, if he did so, she was entitled to recover compensatory damages for such injured feelings and humiliation, but nothing in the way of punitory or exemplary damages. There is no pretense that the con

ductor offered the plaintiff any personal violence, or that any other servant of the company did. On the contrary, it appears that the Pullman conductor and his porter rendered her every assistance that was possible when she left the train. If plaintiff's evidence is to be accepted, her leaving the train in obedience to the command of the conductor to the porter to see that she got off at Pacific must be regarded as an ejection from the train, and she very properly avoided the humiliation of being forcibly removed from the train. If, however, plaintiff left the train of her own free will and accord, and against the advice of the conductor, and refused to remain on the train and permit the conductor to hold her baggage check as security for her passage, if the general officers of the company should agree with the conductor that her ticket had expired, or, if they should decide the ticket was good, then she need not pay any other fare, then there was no ejection from the train within the meaning of the law, and plaintiff has no cause of action whatever against the company. That plaintiff suffered no appreciable damages in the way of delay in reaching her home, or of any discomfort by changing from one train to another, is perfectly apparent.

From the statement of facts in this case it must be apparent that the liability of the defendant in this case hinges upon the consideration whether the agent at Chickamauga of the connecting lines was the agent of the defendant in this case, by reason of the contract of carriage over the several lines mentioned in the ticket, and what force is to be accorded to the clause stipulating that the defendant in this case acted simply as agent, and was not responsible beyond its own line. If the defendant is to be held as agent for all the other roads over which this ticket reads, then there is much reason and authority for holding it liable for the misleading representation of the agent at Chickamauga waiving the agreement that the ticket should be stamped and the passenger identified on the day of the commencement of the return passage. If, on the other hand, the ticket and contract therein, properly construed, is the separate contract of each of the companies over which it reads, and the defendant, in issuing the ticket, is to be held only as an agent of the others, and not responsible for their defaults, then we can discover no legal reason why the defendant should be held responsible for the misrepresentation of the agent of the connecting line at Chickamauga. Judge Elliott, in his work on Railroads, vol. 4, § 1596, says: "There is some conflict among the authorities upon the subject of through tickets over several different roads, but the rule which is supported both by the better reason and by the weight of authority is that, even when the ticket does not expressly provide that the first company is acting for the other companies merely as their agent in selling it, the rights of the passenger

and the duties and responsibilities of the different companies are substantially the same as if the ticket had been purchased at the office of each company separately, unless there is something in the contract making the first company responsible beyond its own Ere." And this statement of the law is supported by the decision of the Supreme Court of the United States in Mosher v. Railroad Company, 127 U. S. 390, 8 Sup. Ct. 1324, 32 L. Ed. 249, already noted; and Mr. Hutchinson, in his work on Carriers, § 152, indorses this statement of the rule; and to the same effect is Railway Co. v. Looney, 85 Tex. 158, 19 S. W. 1039, 16 L. R. A. 471, 34 Am. St. Rep. 787; Harris v. Howe, 74 Tex. 534, 12 S. W. 224, 5 L. R. A. 777, 15 Am. St. Rep. 862; Central Trust Co. v. East Tenn., etc., Co. (C. C.) 65 Fed. 332. The only case directly in point opposing this statement of law is that of Head v. Railway Company, 79 Ga. 358, 7 S. E. 217, 11 Am. St. Rep. 434. In that case, it is true, the learned and distinguished jurist Chief Justice Bleckley, upon a similar ticket, held that the agent at New Orleans, the point of the destination, was the representative of the selling company, but he enters into no discussion whatever of the prindple upon which he bases this conclusion; and, profound as is our respect and admiration for that gifted jurist, we think his conelusion is opposed by the great weight of authority and the elementary principles of the law of principal and agency. Moreover, we think that the Supreme Court of Georgia could have reached the conclusion which it did by applying the doctrine of numerous cases on this subject, and holding that it was clearly the mistake of the selling agent at Tallapoosa, in placing the stamp on the wrong margin, and in having the passenger sign at the wrong place, and the action in that case was properly against the selling company for its own default and the damages resulting therefrom.

Our conclusion is that the agent at Chickamauga was not the agent of the defendant in this case, and that the defendant cannot be held responsible for his neglect or misconstruction of the contract, and that the conductor of the defendant was bound, under the rules and regulations of the defendant, to deeline to recognize said ticket after it had expired according to the contract embodied in it. And as already said, we can see no possible ground upon which plaintiff can recover of this defendant, save and except that the conductor, in the performance of a perfectly legal right, performed it in a rude or insultng manner, as to which the evidence is in strong conflict, and in such case is a question of fact for the jury.

As the judgment of the circuit court must be reversed for the reasons above given, it becomes unnecessary to decide whether the perdiet, in the form in which it was rendered, would constitute reversible error, as that objection can be readily obviated on another

Const. Mo. art. 9, § 16, provides that any city having a population of more than 100,000 may frame a charter for its own government, "consistent with and subject to the Constitution and laws of this state," etc. The socalled "Enabling Act" of 1887, providing the means for cities to avail themselves of that constitutional privilege, provides (Acts 1887, p. 51, 50; Rev. St. 1899, § 6408) that such city shall have exclusive control over its public highways, streets, etc. Section 51 (Rev. St. 1899, § 6409) declares that it shall be lawful for any such city in such charter, or by amendment thereof, to provide for regulating and controlling the exercise by any person or corporation of any public franchise or privilege in any of the streets or public places of such city, whether such franchises or privileges have been granted by said city, or by or under the state or any other authority. Under such act and constitutional provision, Kansas City in 1889 adopted its charter, literally embodying therein said two sections. Article 3, § 1, of the charter provides that the city shall have power by ordinance to regulate the prices to be charged by telephone companies, and to compel them and all persons and corporations using, controlling, or managing electric wires for any purpose to put and keep their wires under ground, and to regulate the manner of doing the same. The "general welfare" clause of the charter authorizes the city to pass any ordinance that "may be expedient in maintaining the peace, order, good government, health and welfare of the city * * * or that may be necessary and proper for carrying into effect the provisions of this charter.' Held that, while the enactment by the city of an ordinance fixing the maximum rate to be charged by telephone companies for telephone service in the city was expressly authorized by the charter, the state had not delegated to the city the power to exercise such authority in framing its charter, and the ordinance was void.

2. SAME.

The regulation of prices to be charged by a corporation intrusted with a franchise of a public utility character is within the sovereign power of the state granting the franchise or suffering it to be exercised within its borders, which power may be conferred on a municipal corporation; but it is not a power appertaining to the government of the city, and does not follow as an incident to a grant of power to frame a charter for a city government.

3. SAME-GRANT OF RIGHTS IN STREET-PowER OF LEGISLATURE.

The General Assembly, except as limited in the Constitution, has jurisdiction to grant franchises to be exercised in the streets of the cities and other public highways in the state. [Ed. Note.-For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, § 175.] Brace, C. J., dissenting.