I concur in the decree holding the act, in its application to the Coal & Coke Railway Company, unconstitutional as confiscatory in limiting the rate so low as not to allow a fair return on the cost of the railroad, the capital invested in it. But I do not agree to all of the foregoing opinion. Upon the question, whether the act is violative of the Fourteenth Amendment this Court must follow the national Supreme Court. That court has settled it that where the penalties for violation of a rate act are so severe that they intimidate the railroad company from appealing to the courts for relief, from fear of ruin, from multiplied .penalties pending litigation to test the act, it deprives the company of property without due process of law, and denies the equal protection of the law by shutting them out from the courts. Ex parte Young, 209 U. S. 123; Wilcox v. Consol. Gas Co., 212 Id. 19; Beale & Wyman Rate Regu., sections 351, 382. Now, let a school boy take pencil and slate, and he will tell us what the total penalties would come to against this railroad company in only a few months litigation at $50 for each ticket. His figures would show ruin, bankruptcy, confiscation, to the company. But the act allows any penalty up to $500 per passenger. What the total at $100 ? At $150 ? At $200? Colossal wreck! This shows the penalty section void under the Fourteenth Amendment, by those cases. The same line of reasoning would say that it violates the state constitution, article 3, section 10, that no person shall be deprived of property without due process of law. Then there is section 5, -same article, “excessive fines shall not be imposed”. To think of a fine of $500 for an overcharge of a few cents for a passage ticket. To think of multitudes of fines being imposed. *205An ordinary offender may incur one or two or three or a half dozen penalties; he can quit; but a railroad company must go on to save its charter from non-user, and save it from suit after suit for failure to carry, and perform its public duty, and every hour of its performance of duty but piles higher the mountain of its penalties. The fines are excessive when we reflect that they must be innumerable, wholly incommensurate with the of-fence. So, I regard the statute on its face void as to the penalty section. We take judicial notice that thousands of penalties will be incurred in a few weeks. But this, penalty section 2 is distinct from section 1; and I would hold section 1 fixing two cents per mile as valid as far as its face is concerned, and section 2 void. True, that leaves the act without penalty; but the company .would be liable to repay overcharges, thus leaving a means of enforcing, as in many other cases, by action. I have ho .doubt that an act containing reasonable, fair penalty would be good. The Supreme Court of the United States took this, course in the case of an act before' it holding the penalty enacted void, leaving the rate enactment stand. Wilcox v. Consol. Gas Co., 212 U. S. 19. Courts often hold a part of an act void, leaving the balance to operate, if its provisions are severable. C. & O. R. Co. v. Miller, 19 W. Va. 408; State v. King, 63 Id. 546, pt. 24. I decline to hold the act entirely void. Beyond question it is void under Ex parte Young, 209 U. S. 123, unless the proviso or exception adopted by the majority stand on solid ground. As I cannot thus sustain the act, I adopt the course of the. United States Supreme Court, and hold only the drastic, severe penalty clause void on its face. I maintain the state power to regulate rates, and enforce them by reasonable penalty. I think no court would deny this power to the state for the public weal. Federal cases like Smyth v. Ames, 169 U. S. 466, and Munn v. Illinois, 94 Id. 127, and Chicago &c. v. Grand Trunk Co., 143 Id. 339, assert this power in the state. This Court has sustained this power. W. Va. Transportation Co. v. Railroad, 25 W. Va. 324. I can see no other way of avoiding impeachment of the act except by the elimination of the separate penalty section. The above opinion by Judge Poe-EENBARGEK avoids this fact of unconstitutionality by emasculating the statute of all force pending litigation, however long *206continued. This would relieve the railroad company from civil and penal liability. I am unable to see-any authority in this Court to suspend the operation of the act pending litigation. Even if the act after years should be sustained, still there is no liability to penalty or civil suit by passengers. .In the interim the statute is a blank. Is it anything but judicial legislation? The constitution imperatively says — I say the constitution — says this act shall be in force ninety daj^s after its passage; but this Court avoids the imputation of voidness based on supreme court opinions, by putting in a proviso to this effect: “Provided, that if any railroad company shall go to a court to test the validity of this act, this act shall be suspended in operation until the termination of litigation involving it, and until then no penalty shall be incurred under this act”. The legislature made no such provision. It seems to me that the contesting railroad company has right to judgment on the act as it is, has right to relief on the act as it is. The letter of the act is plain. The constitution puts it in force at ninety days after it is passed.
I cannot concur in the construction of the proviso as to the union of railroads under fifty miles in length in the above opinion. It seems to me to render that proviso inoperative, and to be against the letter and plain meaning of its words; but I shall not discuss this matter. I think one road of less than fifty miles may lease another, though they make over fifty miles together. A lease, after this consolidation, of a third might change it. I do not think it necessary to do so,' as I do not think1 this proviso an arbitrary „ discrimination denying equal protection of the law. I admit that the question is grave and nice; but 1 must remember the rule universally applied, that courts never hold an act void as repugnant to the constitution unless such decision is unavoidable. I am inclined to think this discrimination is within the power of the state under the Fourteenth Amendment; but lot that be as it may, in doubt I would refuse to overthrow the act under this head.
As I have said at the outset I agree to hold the act as confiscatory as applied to this railroad, neither section enforceable It appears that the rate forbids the railroad from earning a fair *207and reasonable return and is therefore confiscatory. As this appears talcing the whole earnings, passenger and freight, the court has concluded not to pass on the question whether in estimating earnings as compared with capital invested, we must consider both passenger and freight earnings, it not being necessary for decision. I have not closely examined, this question, under these circumstances, but I incline to the opinion that both must be taken into consideration.
Being of opinion that the penalty section is void, and this suit being an injunction to prevent prosecution under it only, I ■ would sustain the injunction. I would sustain it also because, as applied to this particular railroad, it'is confiscatory. If the act had reasonable penalties, I would regard the penalties valid and enforceable, and overcharges recoverable by civil action, against a railroad company earning a fair return. As it is, it is civilly enforceable against such companies. And it will be civilly enforceable against this company when its earnings warrant it; but I do not believe it is penally enforceable.
MilleR, Judge,(concurring) :
I concur in the conclusions reached on all points covered by the syllabus. The question on which I have had the greatest difficulty is covered by points 25 to 31, inclusive, of the syllabus. I am thoroughly satisfied now that the fines and penalties imposed by section 2 of the Act of 1907, when wil-fully- incurred, are not so excessive as to be void, either under the Federal constitution, or the provisions of our State constitution against the imposition of “excessive fines,” and “cruel and inhuman punishment.” They are not out of proportion to fines imposed for violations of many other statutes. The statute which the Act of 1907 repealed in part imposed a fine of not less than one hundred nor more than five hundred dollars for each offense. Besides, from 1872 to 1879 the statute gave right of action in favor of the aggrieved party for five hundred dollars, with costs and a reasonable attorney’s fee, this provision having in the latter year been repealed. Grant v. B. & O. R. R. Co., 66 W. Va. 175. These fines were never regarded excessive, and no railroad ever suffered from them by reason of mistake or otherwise. Other instances of *208lines not regarded excessive are as follows: Section 47, chapter 3, Code 1906, for breach of the peace and disorder at the polls, not less than one hundred nor more than five hundred dollars; section -1, chapter 5, Code 1906, commissioners and clerks of elections, for certifying false returns, not less than one nor more than two years in the penitentiary; section 121, chapter 29, Code 190'6, for making false entries by assessors or clerks, three hundred dollars; section 3, chapter 32, Code 1906, for selling intoxicating liquors without license, for first offense not less than twenty five nor more than two hundred dollars, ’and not less" than two nor more than six months in jail; for second offense, confinement in the penitentiary for one year, or in the discretion of the jury, not over one hundred dollars and imprisonment in the county jail not less than six nor more than -twelve months; section 5, chapter 32, Code 1906, illegal sales by druggists, not less than fifty nor more than two’ hundred dollars, and for second conviction, not less than one hundred nor more than five hundred dollars, and in the. discretion of the court imprisonment in the county jail not less than thirty nor more than ninety days; section 123, chapter'32, Code 1906, upon corporations for failure to pay land tax, not less than twenty five nor more than five hundred dollars; and, section 136 of the same chapter, for doing business after being proclaimed delinquent by the Governor, imprisonment in the county jail not exceeding one year and a fine not exceeding one thousand dollars; section 61, chapter 54, Code 1906, against an engineer or fireman for failure to blow the whistle or ring the bell when approaching a crossing, not exceeding one hundred dollars. And it will be found that the penalties imposed for violations of similar statutes of other states regulating railroad rates are much higher than those imposed by our statute. Having given the construction we have to the Act of 1907, what good reason can be given for holding it in conflict either with the federal constitution or with sections 5 and 10 of Article 3 of our state constitution? I can perceive none.
It can not be assumed that the statute will be wilfully violated, and the penalties so successively incurred as to become confiscatory of the property of the offending railroad. The statute can be condemned only because it imposes upon railroad com-*209panics too great risk of incurring the penalties, pending litigation to test their rights in the courts. The construction we have given the .statute relieves it of all constitutional objections and allows it to operate freely and with, full force where-ever and whenever applicable. While no exact precedent has been found, and perhaps- none can be found for our decision of the question covered by tire points of the syllabus referred to, yet I am satisfied it is supported by sound legal principles, and that it should commend itself -to the litigants and also 'to bench and bar, as well as to the public in general.