dissenting.
I cannot agree with the majority opinion. Section 56-426 reads: “Every raüroad company shall keep its right of way clear and free from weeds, grass, and decayed timber, which from their nature and condition are combustible, liable to take and communicate fire from passing trains to abutting or adjacent property.”
I agree with the railroad’s contention that the court erred in overruling the demurrer which raised the question of the constitutionality of the section because it violates the due process clause of the 14th Amendment of the United States Constitution and of § 11 of the Virginia Constitution in that:
(a) It is so vague and uncertain in its terms that it does not adequately inform the defendant of what must be done to avoid criminal prosecution; and
(b) It bears no substantial relation to public safety since it requires the area of the right of way which is beyond the danger from fire to be cleared.
It appears that the section had its origin in the Acts of 1902-3-4, extra sessions, Chapter 609, page 993. Both sides to this litigation apparently conceded that this is the first appeal from a criminal prosecution under this section in the sixty years of its existence, and therefore its constitutionality has never been challenged.
The majority opinion in rather apologetic terms points out the weakness of the statute which would tend to show that it is void for vagueness. It says:
“It is true that the legislature has not told the railway * # * whether the listed combustible materials should be burned, grubbed and raked, mowed or otherwise disposed of * # # .”
“It is also true that the statute does not # # * say when the right of way is to be cleared in terms of a specific date or of a specific period * * * ”
“Nor * * * does the statute list by each common or technical name, all the species of weeds which must be cleared # *
“The statute does not * * * contain a specific and separate explanation of the term ‘combustible material’.”
“Finally it must be conceded that the statute fails * * * to specify in feet the width of the right of way which must be cleared # * * .” The above faults pointed out in the opinion are apparently answered in the opinion to the satisfaction of the majority. I regret they are not answered to my satisfaction.
*122The constitutional requirement of definiteness is violated by a criminal statute which fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by statute. The principle is that no man shall be held criminally responsible for conduct which he cannot reasonably understand. See United States v. Harriss, 347 U.S. 612, 74 S. Ct. 808, 98 L.ed. 989.
As stated by Chief Justice Eggleston in Caldwell v. Commonwealth, 198 Va. 454, 94 S.E. 2d 537 (1956) “It is elementary that an act creating a statutory offense, to be valid, must specify with reasonable certainty and definiteness the conduct which is commanded or prohibited, that is, what must be done or avoided, so that a person of ordinary intelligence may know what is thereby required of him. 14 Am. Jur., Criminal Law, § 19, pp. 773, 774; 22 C.J.S., Criminal Law, § 24-a, pp. 70-72. The enactment should define the acts to be done or not to be done which constitute such offense with such certainty that a person may determine whether or not he has violated the law at the time he does or fails to do the act, which is charged to be a violation thereof. State v. Lantz, 90 W. Va. 738, 111 S.E. 766, 26 A.L.R. 894. Unless an act creating a statutory offense satisfies this requirement of certainty and definiteness it violates the Due Process Clauses of the Fourteenth Amendment and of the Virginia Constitution, Article I, § 8.”
The vagueness of several terms employed in the section in my opinion, makes it invalid. For example, what are the dimensions of a “right of way”?
It will be seen that the statute affirmatively requires that the “right of way” be kept clear of certain combustible materials, but it fails to describe or define the width of the “right of way”.
The only section in the Code which prescribes the width of a right of way is § 56-347 which limits the land that a railroad can acquire by condemnation for its “right of way” to 100 feet, except where more land is needed for cuts or fill. While the railway is prohibited from condemning more land than 100 feet, it is nowhere prohibited from buying more land to add to its right of way and this practice is more or less universally followed.
The question then arises as to whether a railroad company which has purchased a strip of land 400 feet wide for right of way purposes violates § 56-426 if it fails to keep all 400 feet clear. Or, for example, if the railroad right of way is 100 feet wide at one place and farther along its line the right of way widens to 200 feet the question arises does the statutory duty increase as the width of the right of way in*123creases. If a 100 foot clearance is sufficent protection against fires from passing trains how can the statute lawfully require the clearance of an additional 100 feet? The situation can be magnified to a point of absurdity if, for example, the railroad company acquired for right of way purposes a strip of land a mile wide and constructed its main line through the center. Does the statute require the full width of a mile be cleared?
The significant point is that there is no specified width mentioned in § 56-426. The record in this case discloses that the Southern Railway Company’s rights of way are of varying widths throughout the state. For the statute to be valid the term “right of way” must describe a definite strip of land. Apparently there is no agreement among the authorities as to what the term “right of way” is intended to include. See 74 C.J.S., Railroads, § 82; 44 Am. Jur., Railroads, § 75.
In the instant case the testimony of the Commonwealth witnesses showed that there was disagreement among them as to what the term “right of way” meant. It was apparent that the Forestry Division [of the State] is prevented from uniformly applying the statute. George W. Dean, State Forester, testified that so far as the Forestry Division was concerned there would be sufficient compliance with the statute if the right of way was cleared for a distance of “70, 75 feet in a horizontal distance” as no probable danger of communication of fire would exist beyond this point.
Dallas Wilfong, District Forester for 16 counties in Virginia, stated that “50 to 75 feet” from the ballast should be cleared to comply with the statute. Here the evil of the statute is pinpointed up by this testimony. Further Hunter H. Garth, Chief of Forest Protection, refused to specify a distance that would provide adequate safety. He stated: “I would want to look at a specific area, if I was going to do it. I wouldn’t like to sit here and put a definite figure on it.”
Thus the individual officers of the Forestry Division, the expert witnesses for the Commonwealth, have undertaken without success to cure the deficiency of the statute by prescribing a required clearance distance, and in witness Garth’s case he can prescribe a distance only after studying the right of way at the given point in question.
Under such circumstances is it fair to the railroads of this State that they be left in such doubt as to what must be done to comply with the statute? Clearing 60 feet of the right of way might comply with Wilfong’s requirements, but it would not comply with those *124prescribed by Dean. And compliance with Dean’s 75 foot distance would hardly assure protection against prosecution on warrants issued at the instance of the Commonwealth’s attorney for failing to clear rights of way to their outer boundary.
Such indefiniteness is the basic reasoning behind our decision in Caldwell v. Commonwealth, supra, where we invalidated that portion of § 46-189 which required any occupant of an automobile involved in an accident, or any witness to the accident “to furnish as much of the information hereinbefore required as possible if the driver is unable or unwilling to furnish it”. The failure to comply with this statute was made a misdemeanor and we held that the quoted portion of the statute was invalid because of its uncertainty and particularly since it failed to state when and to whom the information had to be furnished. See 14 Am. Jur., Criminal Law, § 19, p. 774 (p. 459).
It will be seen from the statutes of several of the states which have laws similar to the section under consideration that they definitely prescribe the distance from the track which must be cleared.
Manifestly the statute is deficient in failing to prescribe such distance. Mr. Dean’s opinion as a safe distance differs from Mr. Wilfong’s and Garth’s distance may differ from that of a judge or jury which may be called upon to determine whether the railway has violated the statute. This total lack of an ascertainable standard in my view violates the railway’s rights to due process of law. Courts are not at liberty to supply this fatal omission by Judicial legislation.
The next question that presents itself is when does the right of way have to be cleared? In other words, when must the railroad company remove combustible material from the right of way to avoid prosecution? Must it remove such material as soon as it becomes combustible? The statute does not say. The statutes of many of the states which have passed similar laws give definite dates between which the combustible material must be removed. Under the section here under consideration it immediately becomes important to know when grass and weeds become combustible. Can the railway wait until after the first killing frost in the fall before it clears its right of way or must it clear it in the summertime if a drought makes the grass, weeds, etc. combustible earlier? Manifestly, the failure of the statute to prescribe a specific date, or dates, for the removal of such material places upon the railroad companies the danger of prosecution as a result of management’s poor judgment as to when the statute must be complied with. The offensive material may be combustible *125today and not tomorrow, depending upon weather conditions. Clearly this is not that degree of certainty required of a penal statute.
The rationale of the Caldwell case was followed in Peacock v. Commonwealth, 200 Va. 464, 106 S.E. 2d 659, which latter case involved the constitutionality of the Virginia statute related to records required to be kept by sellers of certain narcotic drugs. There we held the statute unconstitutional because it did not set out the time at which entries relating to sales were required to be made in the record book. There, speaking through Mr. Justice Spratley, we said:
“While it [the statute] specifically sets out that the record of all narcotic drugs sold or otherwise disposed of ‘shall show the date of selling, administering, or dispensing, the name and address of the person to whom or for whose use, # # # the drugs were sold, administered or dispensed, and the kind and quantity of drugs,’ it does not set out the time at which the entry ‘showing’ the above facts shall be made, that is, on the day of the transaction, at the time of the transaction, within a reasonable time thereafter, or as soon as possible. It wholly lacks certainty and definiteness as to the time of such entry and is so vague in that respect that a person of ordinary intelligence cannot determine ‘whether or not he has violated the law at the time he does or fails to do the act, which is charged to be a violation thereof.’ Caldwell v. Commonwealth, infra, 198 Va. 458. Thus, it is clear that the third sentence of § 54-504 utterly fails to measure up to constitutional requirements in the particular respect under review.”
The Caldwell and Peacock cases emphasize the indispensability of requiring that the act be done by a specified time. The fatal omission of the time by which the right of way must be cleared cannot be cured by the arbitrary suggestion of the State Forester that the right of way should be cleared by November 15 of each year. The statute does not say this. Dean’s testimony to this effect accentuates more vividly the deficiency of the statute which makes it a crime not to remove the combustibles from the right of way, but fails to prescribe the time or deadline for removal.
Next, what does “clear and free” as provided in the statute mean? Is the railway company required to grub and rake its right of way or does the statute require that specified material may be mowed or cut from the right of way, or is burning of the right of way proper compliance with the statute?
It is recommended by Commonwealth’s witness Garth of the Forestry Division that the right of way be cleared by burning the *126combustibles. This would be the cheapest method of clearing the right of way, but the very fact that combustibles can be cleared by burning would be an admission on the part of the railroad that it had already violated the law and thus become subject to prosecution by permitting the vegetation on the right of way to accumulate and become combustible. Therefore the railroads of the State could not safely rely on the interpretation placed on the statute by the Forestry Division. It would have been an easy matter for the legislature to have informed railroad companies of the exact nature of the statutory duty in this regard.
Next the statute says that the railroad must remove “weeds, grass and decayed timber” from the right of way. Nowhere does the statute attempt to define these terms. Here again the Commonwealth’s own witnesses could not agree as to what constituted a “weed”. Witness Garth described a weed as a “wooden substance larger than a grass and smaller than a shrub”. While witness Dean defined a weed as “any of the vegetation that does not have an economic, commercial or ascetic value” and he agreed that “as a practical matter” the classification was determined by its location. On this subject the court stated “a weed has been defined as a flower misplaced”.
Mr. Garth went further and characterized wild roses, honeysuckle, blackberry bushes and morning glories not as weeds, but vines. None of these are required to be removed by the code section.
Neither could the State’s witnesses agree on the definition of timber as employed in the statute. The statute uses the phrase “decayed timber”. The word decayed means “rotten”. Webster’s New International Dictionary 2d ed. 1939. Whereas timber means only such trees as would be suitable for converting into lumber. Thus the phrase “decayed timber” is susceptible to varied meanings and lacks the precision required in criminal statutes.
Again one may ask the meaning of the phrase “which from their nature and condition are combustible material, liable to take and communicate fire from passing trains to abutting or adjacent property”. The clause modifies the words “weeds, grass and decayed timber”. Therefore it is not all such material that is required to be removed from the right of way, but only that which is combustible and liable to be set on fire by passing trains and to transmit the fire to adjacent property. Witness Dean testified that this condition of combustibility would require the railroad to begin clearing the right of way by November 15. However he admitted that what may be *127combustible today might not be combustible tomorrow because of differences in humidity, temperature, wind and atmospheric conditions. Obviously a violation of the statute could not occur after the material had become wet from rain and conversely drought conditions might create a combustible condition before November 15. Thus between these two extremes it would be impossible to determine what the nature and condition of the material must be to create a “liability” to be ignited by passing trains. See Griffin v. State, 86 Tex. Cr. R. 498, 218 S.W. 494.
The doubts created by the uncertain terms of this statute clearly emphasize that its vagueness would prevent a railroad company from being sufficiently informed of the elements of the criminal act supposed to be involved.
None of the important terms employed in the statute have been defined by the legislature. Nowhere is the railroad informed of the distance from the track which must be cleared or the time by which the combustibles must be removed. Jurors in one section of the State would vary in their definition of the term “weed” as did the expert Commonwealth witnesses, and the same can be said for the term “timber”. And again it is manifestly clear that no one, be he judge or juror, is capable of telling the day on which “timber” becomes “decayed”. The statute clearly lacks any ascertainable standard to determine when the specified material is combustible and “liable” to communicate fire from trains to adjacent property.
The statute’s failure to prescribe a specified width of right of way which must be cleared requires the railroad to clear those parts of its right of way which the Forestry Division has recognized to be “beyond the area of probable danger from fire”. Thus this requirement of the statute bears no substantial relation to safety and for this reason makes the statute invalid. I would hold the statute unconstitutional.