other apply them; the two provinces are distinct. Where a statute or a well-defined rule of the common law gives a positive command, creates a clear right, or imposes a definite disability, he who has to administer the law must obey it literally and exactly. Many laws, such as the rule of primogeniture, are conceived rightly or wrongly as being in the interests of the community and to be effective must be applied without exception or reserve, though in many individual cases the "fundamental principles of justice" appear to be outraged.

It is, generally speaking, for the lawgiver, not the judge, to consider these fundamental principles. Arbitrarily to depart from definite legal rules is to go backwards. Progress in law has been from the individual despotic judgments the "themistes," or "dooms," or archaic communities to the generality and certainty of the legislation of advanced societies.

The fundamental principles of justice are perhaps not difficult to ascertain. They seem to be summed up concisely in the opening paragraph of Justinian's Institutes: "Justice is the fixed will always to give each his due." The hard part is to determine what is any particular man's due and that determination will inevitably vary according to the mentality of the judge, even assuming every judge to be perfectly honest and unbiased in the usual sense of that word. To reduce the variation within the narrowest limits is the province of legislation. Legislation in this country, Dicey asserts (and to our thinking proves his assertion), lags behind general public opinion. It demonstrably does not lag behind judicial opinion: it is the new-fangled laws which try the mettle of the judge, and unhappy would often be the state of the suitor if a long tradition of observance of the law, however repugnant to the judge, had not made an impartial hearing fairly secure. It is wicked to "decree injustice by a law."

It would lead to utter confusion to allow the judge free hand to right injustice as he thought fit.

We notice that in a recent lecture on

"Judicial Law-Making," in University College, London, Sir John MacDonnell, the Professor of Comparative Law, put forward a "reasoned plea in defense to a certain extent of the practice of extending legislation by judicial interpretation. His arguments follows:

may be summarized as

The legislature, however careful and provident, could not fully foresee the course of events; could not provide for the infinite changes which would occur; could not guard against the shifting meaning of words, as well as the complexity of affairs. The fact was that the socalled "intention of the legislature," and the same might be fairly said of the "will of the legislature" and the like expressions, were often legal fictions: the legislature had no clear "intention," the people no will, in regard to questions or situations which had not arisen and could not be foreseen. The consequence deducible from so-called "intention" might become strange when applied to a law or constitution some centuries old, or to one dating from a period wholly different from ours. Great judicial discretion, in effect the power of making law, was recognized by some codes. Thus, in one of the latest and most carefully prepared codes, the Swiss Civil Code, it was in terms stated that "the Civil Code applies to all cases in which it contains provisions either according to its letter or its spirit. If the Code contains no provision applicable to the question at issue the judge shall decide according to customary law, and where it is also absent according to recognized legal doctrine and science. In the absence of these sources he shall render judgment accordingly in accordance with such rules as he would enact if he were legislator." According to the Australian

Civil Code, "Where the case cannot be decided according to the literal text or the natural meaning of a statute, regard shall be had to analogous provisions chiefly contained in the statute and to the principles applying to similar matters. If the case is still doubtful it shall be decided, after carefully collecting and considering the principles of natural justice." He thought he would be right in saying that the most conspicuous example of a judicial law-making which the world had seen was to be found in the jurisprudence of the United States. He did not refer to the doctrine first fully developed by Marshall of the supremacy of the judiciary over the legislature when the latter overstepped the limits set by the Constitution, though the doctrine necessarily armed the former with immense powers exercised in the name of interpretation. He had specially in mind the doctrine more recently and at present being rapidly evolved of ✓ so-called "police powers," in virtue of which the American bench was called upon to decide the most important questions of public duty, to declare this statute valid, and that inoperative; in short, to determine the limits of modern legislative activity. In virtue of these powers the American judiciary had built up a body of law far surpassing in volume and novelty the additions in recent times made by English judges. Having considered the question of what, according

to the decisions of the United States Supreme Court, was meant by "police powers," the lecturer said that a warm advocate of judge-made law had said: "There is no guaranteeing of justice except the personality of the judge;" and these words came near the truth. There was growing up a form of equity, none the less real because it was termed judicial discretion. This meant justice in a larger measure, but it also meant uncertainty. The "socialization of law," as it was sometimes called, necessarily meant the en

largement of judicial discretion. It specially meant this when the legislature dealt, as often happened, with abstruse questions as to which science speaks with uncertain sound. There were sections, phrases and terms in the statute books where the legislature, in effect, said to the courts: "We have no clear meaning; you will have to find one for us." The personal element of the judge counted for more and more-his wide knowledge, his sagacity, his sympathy with the forces that move things with life in its many sides.

This is attractively stated, but in our opinion the committal to the judge of a discretion so wide as in effect to operate as legislation is a retrograde step and should only be resorted to in exceptional cases. A recent writer in the Central Law Journal, taking as his text the maxim, "The law is fairer than men,” reinforces by weighty general arguments the old rule. Dealing with the favorite argument that the effect of wide judicial discretion would be to make decisions more practical, he points out that "men are in the habit of calling those things. practical which are most accessible and may be enjoyed with least effort. Slight reflection should be sufficient to remind them that such things are also earliest to pass away." And he proceeds to show that to reduce it to particular ends would that the basis of law is generalization and

be to debase it to selfish aims. The modern charge that the law and its machinery. are nothing but a system of reactionary tyranny comes from persons or organiza tions of them who expect the law to con tain nothing but that which they see to be peculiarly advantageous to them, where as all reasoning men know that security for the law is gone, if it depart from those universal principles which are the guaranty of justice to mankind as a whole. The very gist of the law's justice lies in its universality. His closing observations

Where plaintiff boarded a train with a ticket to F., and before arriving at F. informed conductor that he had decided to go on to W., and conductor directed him to get off at F. and buy a ticket, and he got off, but could not get a ticket because the agent was not in the ticket office, and he could not find him, carrier was liable for damages for ejecting him because he did not pay an excess fare chargeable in addition to the regular fare when the fare is paid in cash.

THOMAS, J. The question is, Had the plaintiff the right to ride upon the train without paying the extra fare required by defendant, if its conductor had informed or arranged with plaintiff that the latter would have a reasonable opportunity to purchase a ticket at Falkville, from that point to Wilhite, and defendant failed to give or provide him such an opportunity.

Under the law the conductor in charge of the train, in the discharge of the duties of his employment, is vested with the power of the defendant company in the collection of fares from passengers, and to that end is its vice principal, and may subject said company to liability for his acts while he is so acting. Republic I. & S. Co. v. Self, 192 Ala. 403, 407, 68 So. 328, L. R. A. 1915F 516; A. G. S. R. R. Co. v. Baldwin, 113 Tenn. 409, 82 S. W. 487, 67 L. R. A. 340, 3 Ann. Cas. 916. Railroad conductors make reasonable arrangement as to passengers transported under their direction, and may inform passengers what will be required of them, and bind the company by such information so given, in the discharge of the duties of their employment.

Wright v. Glens Falls, etc., R. R. Co., 24 App. Div. 617, 618, 48 N. Y. Supp. 1,026; Chicago, etc., R. R. Co. v. Burns (Tex. Civ. App.), 104 S. W. 1,081, 1,083; Dwinelle v. N. Y. C. & H. R. R. Co., 120 N. Y. 117, 127, 24 N. E. 319, 8 L. R. A. 224, 17 Am. St Rep. 611.

Plaintiff, testifying, said that he had boarded the defendant's train going south to Falkville, with a ticket he had purchased thereto and which he surrendered to the conductor; and, before arriving at the point of destination, he informed that official that he had decided to go to Wilhite, a point on said road beyond Falkville, and that the conductor directed him to "get a ticket at Falkville"; that on arrival at this place he went to the ticket office (the place provided for the sale of tickets to prospective passengers), but did not find an agent therein; that he looked for the agent without success; that the train started before he was given an opportunity to purchase a ticket, and he returned to the train, and informed the conductor of the absence of the agent and of his inability to purchase a ticket; that he offered to pay the regular cash fare, which he gave the conductor, and that said official, after taking the money, informed plaintiff that he would have to pay the increased cash or "excess fare," and, failing to do so, was put off the train. Witness testified on cross-examination, "I had 5 cents more than the 15 cents" given the conductor, who demanded as the excess cash fare 25 cents, which was more than the witness possessed. Witness further admitted that he did not tell the conductor that he had not the 25 cents demanded as the cash fare, but stated that he “did not get on the train and buy a ticket to Falkville for the purpose of trying to go to Wilhite without paying the excess fare, so as to get a suit against the company"; that the price of a ticket from Falkville to Wilhite was 10 cents.

Defendant's conductor in charge of said train testified that plaintiff had a ticket, and that when he "got to Falkville he got off and ran over to the depot there, and the train was there about a minute"; that, returning, he "jumped on the front end of the smoking car," and asked the plaintiff where he was going, and, after his reply, "told him the fare was a quarter, and he said he would pay 10 cents, but not a quarter"; and witness said he "would have to let him get off, and he did, and that was all. ***”

Defendant insists that plaintiff made an admission that he knew about the cash fare, and did not tell the conductor whether he had other money or not. This is immaterial to the question of liability vel non for ejecting the plaintiff. The insistence is further made that the

plaintiff was seeking a claim for damages. The record does not sustain this, but shows plaintiff to have been a bona fide passenger to the points in question.

It was not necessary that the fare be paid to establish the relation of carrier and passenger, for if the plaintiff had entered the car in good faith, with the implied invitation or consent of the company's agent, to take passage and with the intention of paying, the relationship is established. B. R. L. & P. Co. v. Bynum, 139 Ala. 389, 395, 36 So. 736; N. B. R. R. Co. v. Liddicoat, 99 Ala. 545, 549, 13 So. 18. In L. & N. R. R. Co. v. Hine, 121 Ala. 234, 237, 238, 25 So. 857, 859, the court said:

"It does not appear from the complaint, however, that there was any rule of the defendant which required absolutely one who has actually obtained such permission to himself exhibit to the conductor the written evidence of such permission. In the absence of notice to the plaintiff of such absolute requirement, he had a right to assume that the defendant's ticket and telegraphing agent knew his duties and would perform them. If, therefore, as appears from the complaint, the plaintiff was induced to board the train and begin the journey disarmed of the written permit by the conduct of the defendant's agent and in reliance upon his advice and his undertaking to give the permit to the conductor, the defendant could not rightfully eject him from the train for failure to exhibit a written permit to the conductor. The carrier cannot shield itself from the consequences of misconduct or mistake on the part of one of its agents, acting within the scope of his duties, which has naturally betrayed another of its agents into the final act of injury to the passenger."

A condition precedent to the enforcement of a regulation exacting extra charges in case of failure to purchase a ticket is that the carrier afford the passenger a reasonable opportunity to purchase a ticket; not so affording, such passenger is entitled to have transportation on payment (or tender for acceptance to the conductor in charge of the train) of the regular fare for his transportation. Kennedy v. B. R., L. & P. Co., 138 Ala. 225, 230, 35 So. 108; Evans v. M. & C. R. R. Co., 56 Ala. 246, 28 Am. Rep. 771; Kozminsky v. Oregon S. L. R. R. Co., 36 Utah 454, 104 Pac. 570, 24 L. R. A (N. S.) notes 758, 761.

The judgment of the circuit court is affirmed. Affirmed.

ANDERSON, C. J., and MAYFIELD and SOMERVILLE, JJ., concur.

NOTE-Ejecting Passenger for Refusal to Buy Tickets Upon Reasonable Opportunity.-The facts in the instant case are quite scant. At all events they seem to make it the duty of a carcier to hold a ticket office open for the purchase of tickets up to the very last moment before departure of a train. Thus in the instant case the

passenger who was ejected for not paying the excess between special and regular fare arrived on the train and went from it to purchase a ticket for the special fare. At most it ought to be thought, that this arriving passenger was not contemplated in the carrier's regulations as a customer from the particular station at which he sought to purchase a new ticket. He at least took chances of the agent not having time to issue to him a new ticket, so that with safety he could board the train. The carrier ought not to be compelled to look to the discretion of its agent selling tickets as to whether it was safe to issue a ticket.

Thus it has been ruled that where a carrier may charge a non-ticket holder an extra charge when a reasonable time has been given to purchase tickets, it is not required to keep a ticket office at a small station open until the very moment a train is starting. Everett v. C. R. I. & P. R. Co., 69 Iowa 15, 28 N. W. 410, 58 Am. Rep. 207.

The rule considered there provided for procuring a ticket "within a reasonable time before the departure of the train." The plaintiff did not start to the station until the train was about to stop and be got there after it came to a full stop. Then the agent at a small station had gone to the platform to attend to other duties. The Trial court instructed the jury that: "Regard should be had to the importance of the station and the number of people who have occasion to purchase tickets there; and the ticket office should be kept open at such time as people in general who travel by rail are in the habit of repairing, and find it convenient to repair, to the station to purchase tickets and get aboard the train." The judgment in favor of the carrier was affirmed.

In State v. Hungerford, 39 Minn. 6, 38 N. W. 628, there was a prosecution for assault by a conductor on a passenger. The defendant pleaded the use of only such force as was necessary to eject the passenger for non-payment of proper fare, an excess above regular ticket fare. The proof showed that prosecuting witness rushed to depot to board a train which had just arrived. He ran to the ticket office but the agent was not in and he boarded the train after it began to move. The court said: "The requirement of a reasonable opportunity to purchase tickets does not make it the company's duty to keep the ticket office open within such time, before the departure of a train, that persons purchasing tickets cannot get on the train before it begins to move. Railroad companies ought not to sell tickets within that time. As a matter of public policy no one except those operating it ought to be permitted to get upon a railroad train when it is in motion." Also it seems to this annotator that an agent can refuse to sell a ticket when applied for so very near this time that fairly he does not think it can be used on a departing train.

In C. R. I. & P. R. Co. v, Brisbane, 24 Ill. App. 463, there was judgment for passenger for not paying train, instead of ticket, fare. Wherefor he was ejected, and this was reversed. The trial court instructed the jury that the railroad should have kept its office open for the sale of tickets up to and until the departure of the train. It was said this was not so but only "for a reasonable time before the departure of each train, but not up to the actual departure." The passenger

"got on the train without a ticket and the train almost immediately thereafter pulled out from the station." He had gotten to the station at the same time the train did and the ticket office was closed.

In Easton v. Waters, 4 Tex. App. 111, 16 S. W. 540, the facts bear a very close resemblance to those in the instant case. The plaintiff was a passenger on the train and left it to purchase a new ticket, requesting the conductor to hold the train until he could purchase it. The court said: "We are of opinion that the evidence fails to show any cause of action for damages."

The same conclusion was reached in So. R. Co. v. Fleming, 128 Ga. 241, 57 S. E. 481, 10 Ann. Cas. 921, where the facts were greatly the same as in the Everett case supra. See also Swan v. Manchester, etc., R. Co., 132 Mass. 116, 42 Am. R. 432, for facts on a par with those in the Brisbane case supra.

It seems to this annotator that the instant case was wrongly ruled and the logic therefrom excludes reasonable interpretation of a rule or regulation and takes away all discretion in the enforcement thereof. And such lack of discretion militates against safety of the public and needlessly exposes carriers to claims for damages when no public purpose is subserved.

HUMOR OF THE LAW.

C.

The jury, composed entirely of women, had been brought back into the courtroom after ten hours' deliberation.

"And does the jury want instruction from me?" asked the judge solemnly.

"No, your honor. What we want is a pack of cards suitable for a game of bridge," replied the forewoman.-Yonkers Gazette.

"This bill of yours is lamentable as regards syntax."

"Didn't we make that high enough?" anxiously demanded Senator Spug.-Life.

A North countryman charged with having set fire to a large hayrick was defended on the ground that he was not altogether responsible for his actions. One of the witnesses testified to the belief that the prisoner was "wrang in his heid."

"Can you mention any occasion on which the prisoner behaved in a manner to warrant your statement?" he was asked by the learned counsel.

"Yes," answered the witness. "Once at work he got half a crown too much for his wages, an' "

"Well?" said the counsel as the witness hesitated.

"He took it back to th' manager," concluded the witness.-Edinburgh Scotsman.

"Our Bolsheviki," said Clarence H. Mackay at a dinner in New York, “are ignorant men, and they appeal to ignorant audiences.

"A young cable expert attended, out of curiosity, a Bolshevik meeting on the east side. He listened to a lot of absurd statements. Then, when question time came, he rose and said:

""You told us a good deal of nonsense about capitalism, the evils of the banking system, the Malthusian law and so forth, but I can't help thinking that you don't know as much about figures as you pretend. How do you find, for instance, the greatest common divisor?"

"The Bolshevik orator pointed his finger at the heckler scornfully, and shouted in a voice of thunder:

"How do you find the greatest common divisor? Why, I advertise for it, you lunkhead!' "And then the hall rang with such triumphant applause that the heckler slunk out, quite abashed."-Washington Star.