# Coal & Coke Ry. Co. v. Conley

> West Virginia Supreme Court · March 8, 1910 · 67 W. Va. 129

URL: https://www.frixlaw.com/law-library/cases/9042342

## Case

- **Full name:** Coal & Coke Ry. Co. v. Conley and Avis
- **Court:** West Virginia Supreme Court
- **Decided:** March 8, 1910
- **Citations:** 67 W. Va. 129; 67 S.E. 613; 1910 W. Va. LEXIS 13
- **Precedential status:** Published
- **Opinion:** Dissent by Williams
- **Judges:** Brannon, Miller, Poeeenbaegee, Robinson, Williams
- **Cited by:** 132 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9042342

## Opinion text

WilliaMS, Judge,
(dissenting):
I can not agree to the construction given to the act in question by the majority of my associates. I think its language is too plain to admit of judicial construction. The Act provides : “That all railroad corporations organized or doing business in- this state under the laws or authority thereof shall be limited in their charges for the transportation of any person with ordinary baggage, not exceeding one hundred pounds in weight, to the sum of two cents per mile, or fractional part of a mile, * * # *.” So much of the act is certainly clear, and if it stopped at this point it would, without doubt, apply to all railroads in the state, without regard to their length, or by whom owned or operated. But section 1 does not stop here; it contains the following clause: “and provided, further, that nothing in this act shall apply to any railroad in this state under fifty miles in length and not a part of, or under the control, management or operation of any other railroad, over fifty miles in length, operating wholly or in part in the state.” This proviso is a part of the act, and it should he given the effect .which the legislature intended it to have. Its language is no more doubtful than .the first part of the section. It simply excludes from the operation of the two-cent rate all railroads under fifty miles in length which are “not a part of, or under the control, management or operation of any other railroad, over fifty miles in length, operating wholly or in part in this state.” This necessarily includes within the operation of the two-cent rate all railroads, without regard to their length, which are either a part of, or under the control, management or operation of, another railroad- over fifty miles in length, *210 because sucli are ’ not only, excluded from the excepted class, but are also included in the first clause of the section. Can there be any doubt as to what the legislature meant by the words, “a railroad over fifty miles in length,” and one “under fifty miles in length?” I think not. If the meaning of these words, as used in the act, is doubtful, then it must be said that there is no certainty in written language. Does not the length of a railroad mean its distance measured between the two ends along its track? What other meaning can the word “length” have? I think it admits of no more doubt than if the word was used to describe a river as so many miles long; every one would understand it to mean the distance measured from its mouth to its source, and not the added-length of all its tributaries. Notwithstanding this unambiguous language used in the statute, the majority opinion construes the word “length” to mean the sum total of the mileage of lines owned, operated and controlled by a railroad. To illustrate, if a railroad thirty miles long leases another railroad also_ thirty miles long which connects with it in the middle, thus forming a Y, the majority opinion would hold it to be a railroad sixty miles in length, notwithstanding it is only forty-five miles between the two ends farthest apart. Deferentially, I do not think there is any authority, either in etymology or law, for such a construction of the word “length.” The language of the act is too clear and. unequivocal to admit of doubt, and, therefore, there is no room for judicial construction. I agree, that if the language employed were doubtful in meaning, it would be the duty of the court to give it such a construction as would make’it harmonize with the constitution, if it were possible to do so. I concur in the opinion that the act repeals only so much of the railroad rate regulation act of 1872-3 as is 'in conflict with it. The act in question and the un-repealed part of the Act of 1872-3 stand in pari materia, and must be read together. The effect of the two acts, read together and standing now as the law upon the subject of railroad rate regulation, is to divide railroads into two general classes: (1) all railroads owned operated or controlled by a railroad over fifty miles in length; (2) all other railroads in the state under fifty miles in length, whether owned independently or owned, op-' erated and controlled by a railroad under fifty miles in length, *211 excepting independent roads not more than six miles in length, which are in a separate class. The first class are subjected to the two-cent rate- provision, the second class are exempt from it and are regulated in their transportation charges according to their gross earnings per mile, as provided in the Act of 1872-3. The Act of 1907 not only classifies railroads, for the purpose of rate regulation, according to the length of road, but further classifies them according to whether, or not, they are owned, operated or controlled by another railroad over fifty miles in length, or by one under fifty miles in length. In respect to this last mentioned method of classification the act is, in my opinion, class legislation, and contravenes the Fourteenth Amendment to the Constitution of the United States, guaranteeing to all persons equal protection of the law. Cotting v. Kansas City Stock Yards, 183 U. S. 79 ; Connolly v. Union Sewer Pipe Co., 184 U. S. 540 ; State v. Goodwill, 33 W. Va. 179 ; State v. Fire Creek Coal & Coke Co., Id 188. Corporations have been held to be included by the term "persons” as used in this amendment.
What just reason can be assigned for applying the two-cent rate law to a railroad under fifty miles in length, if it happens ' to be operated by another railroad over fifty miles in length, and exempting it from the operation of the two-cent rate law if it happens to be operated by another railroad under fifty miles in length? Is this not denying equal protection of the law to corporations similarly situated? There is no law in this state prohibiting a large railroad company from purchasing the _ property of another, or acquiring control over it, whether the small railroad connects with the tracks of the large one or not. Then why should not the same rule of regulation apply to the small railroad, whether operated by another railroad over fifty miles in length or‘ by one under fifty miles in length? The act does not require the lines to connect. The two-cent rate is made to apply whether the road controlled connects with the line of the controlling road or not.
I do not think any light is thrown upon the Act in question by reference to the old Act of 1872-3, because the classification under the two acts are altogether different. TJnder the Act of 1872-3 the rate was regulated on the basis of gross earnings per mile of railroad, and it had no reference whatever to’ the length *212 of the line of the railroad so regulated. . The classification by the Act of 1907 is based solely on the length of the operating or controlling road, and has no reference whatever to the earnings of the road; it is an unreasonable and arbitrary classification, and is in conflict with the principle laid down by the Supreme Court of the United States in' the cases above cited.
Furthermore, this state is in the process of development. It is necessary for the building of many more miles of railroad before all the natural wealth of the state can be made available, and the policy of the state heretofore has been to encourage railroad building; and certainly the legislature could not have had this policy in mind at the time of the passage of this act, because, instead of encouraging development, it operates to discourage and retard it. No railroad corporation owning a line less than fifty miles in length would want to extend its line beyond fifty niiles, if its earning capacity is to be reduced by such an extension,.thereby subjecting itself to the two-cent rate regulation.
I am fully aware of the delicacy of the task, presented to the court, of passing upon the constitutionality of a legislative enactment, but at the same time courts can not avoid the performance of a plain duty when the task is presented to it. It is the province of the legislature to enact laws; and it is the duty of the courts to interpret and apply them', according to the facts in any given case. Each represents a distinct branch of the state government; and the powers of both are limited by the Constitution of the State, and bjr the Constitution of the United States, and it is the duty of the court, whenever it appears that the legislature has, by the passage of an act, transgressed the constitutional limitations, to. declare the act unconstitutional. The court must administer.justice according to law; the Constitution of the United States is the supreme law of the land. Any legislative enactment that is in conflict with the constitution is not law and must be so declared by the court. In the administration of justice for the protection of individual and property rights, the courts recognize no distinction between persons; the law protects the property of the corporation with the same impartial vigilance that it does the property of the peasant; to the eye of Justice they appear the same, and “weighed in- the balance, hero dust is vile as vulgar clay.'”
*213 There is much in the opinion oí the majority to which I agree, and other questions therein decided to which I do- not agree, but haying expressed my' viéw upon the vital question of whether or not the act is constitutional, I deem it unnecessary to say more.
I would affirm the decree of the lower court without modification, thus making the injunction absolute and perpetual.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9042342. Public record. Not legal advice.