67 S.E. 613 (W.Va. 1910), Coal & Coke Ry. Co. v. Conley

Citation:67 S.E. 613, 67 W.Va. 129
Party Name:COAL & COKE RY. CO. v. CONLEY et al.
Attorney:Wm. G. Conley and S. B. Avis, for appellants. Price, Smith, Spilman & Clay, for appellee. H. T. Wickham, Simms, Enslow, Fitzpatrick & Baker, and Chilton, MacCorkle & Chilton, amici curi
Judge Panel:MILLER, J. (concurring). Williams, J., dissenting. WILLIAMS, J. (dissenting).
Case Date:March 08, 1910
Court:Supreme Court of Appeals of West Virginia

Page 613

67 S.E. 613 (W.Va. 1910)

67 W.Va. 129



CONLEY et al.

Supreme Court of Appeals of West Virginia.

March 8, 1910

Syllabus by the Court.

There is no difference between courts of law and courts of equity, in respect to their inability to entertain a proceeding against the state.

Interest on the part of the state, in the subject-matter of a suit to which it is not a formal party upon the record, must be immediate and direct, not merely incidental or consequential, to bring such suit within the inhibition of section 35 of article 6 of the Constitution, declaring, "the state of West Virginia shall never be made defendant in any court of law or equity."

The interest of the state in the penalties, prescribed by a statute, limiting the charges of railroad companies for transportation of passengers, does not constitute an immediate and direct interest in a suit brought by a railroad company to have such statute declared unconstitutional and void. It is sequential and indirect.

In such a suit, the real issue is whether the complainant is entitled to charge a higher rate than that prescribed, and amounts to a controversy between citizens over the validity of a law, analogous to that which arises on a writ of habeas corpus.

On an issue between a citizen and an officer, involving the constitutionality of a law, the state, considered an ideal, intangible person, as contradistinguished from the state government, its agent, stands neutral, impartial, and inactive, deeming the citizen and the government equally within the protection of the organic law, and not favoring either as against the other.

The officers of a state act in a representative capacity and bind it by their acts only in those instances in which they have authority, the law under which they act constituting their power of attorney; and when, for any reason, such law is void, [67 W.Va. 130]the act done under it is likewise void, and amounts to no more than an individual wrong and trespass.

A suit against an officer, acting, or threatening to act, under an unconstitutional statute, with the enforcement of which he is charged, is a suit against him in his individual capacity, as for a wrong done by him, and not a suit against the state, unless it directly involves a contract right or liability on the part of the state government or property belonging to it or in its custody.

It is no objection to the remedy in such case that the statute, the application of which in the particular case is sought to be prevented, is not void on its face, but is complained of only because its operation in the particular instance works a violation of a constitutional right.

Nor is it material that the officer's color of authority for the enforcement of the act is found, not in it, but in the common law or some other statute. That he has some connection with the enforcement of the act is the important and material fact, whatever its source or origin may be.

Unconstitutionality of the act is not alone sufficient to confer jurisdiction of such a suit or proceeding in equity. To this there must be added, for such purpose, some right or injury, respecting the person or property, not adequately remediable by any proceeding at law.

When the two grounds for relief, just mentioned, exist, the remedy in equity is not precluded, though it involves restraint, by injunction, of a criminal proceeding.

Under such circumstances, restraint of a criminal proceeding is merely incidental to adequate protection of a personal or property right, and is not founded upon the mere illegality of such proceeding. Its chief object being the maintenance and protection of such right, the bill is not one merely to enjoin such a proceeding.

A wrong, attempted by an officer under color of a void statute, will be enjoined as readily as one attempted by a private person [67 W.Va. 131]in violation of law and without color of office, if sufficient grounds for injunction, under the rules and principles governing the subject, are shown. Both acts are trespasses.

In ignoring an unconstitutional statute, limiting its charges for transportation of passengers, and appealing to a court of equity for protection against criminal proceedings to compel compliance therewith, a railroad company relies, in part, upon the legal principle, allowing an injured person, under some circumstances, to redress, by his own hands, the wrong done him.

In form, a bill filed for such purpose is a pure bill of injunction, not ancillary to any other suit or other direct relief sought by it, but ancillary to a proceeding out of court. Nevertheless its real and substantial purpose is the determination of the validity of the statute, indirect determination thereof arising ex necessitate from lack of any adequate form of direct adjudication upon the question.

There being no form of action at law appropriate to the protection of possession and enjoyment of property by the owner thereof, and damages and criminal penalties for trespasses, being inadequate, when recoverable and enforceable, injunction is the proper remedy therefor.

Neither physical destruction nor injury of property, nor total deprivation of the use and enjoyment thereof, is a sine qua non to judicial remedy, if wrongful. An unlawful and injurious restraint upon the use and enjoyment thereof in any form, being in law a deprivation of property pro tanto, suffices.

A statute, imposing a limit upon the rates to be charged by a public service corporation differs in nature from many others, in that it relates to the use of private property, and there is a constitutional limit on the powers of the Legislature, respecting the same, dependent upon a question of fact.

A proceeding for the relief of a public service corporation from illegal legislative restraint upon its charges may be prosecuted by such corporation in its own name.[67 W.Va. 132]

Though the public has an interest in the use of private property, devoted to a public service, as in the case of a railroad, and the Legislature may, by statute, limit the charges for such service, it cannot reduce them below the point of fair and reasonable remuneration for the service rendered.

Legislative reduction of such charges so as to prevent the earning of such remuneration amounts to a taking of private property for public use, without compensation to the owner thereof, and a rate regulating statute, so operating, is void, in so far as it has such effect, being in conflict with section 10 of article 3 of the Constitution of this state and the fourteenth amendment to the Constitution of the United States, inhibiting deprivation of property without due process of law, and also with the equality clause of said amendment.

A public service corporation is entitled to a judicial inquiry as to whether, in point of fact, a rate regulating statute is confiscatory, and, if the Legislature has failed to prescribe or designate a mode of determining such question, the party aggrieved may invoke any appropriate remedy therefor in law or equity.

If penalties are prescribed in such a statute as a sanction for the due enforcement thereof, and the persons and corporations affected thereby are not expressly or impliedly excepted from the operation of the penal clause, pending such judicial inquiry, and the penalties are so heavy and severe as to expose such persons and corporations to great risk of loss in prosecuting such inquiry, the entire statute is void on its face in so far as it so interferes, unless the penal clause is separable from the rate prescribing clause, in which case the former only is void to the extent aforesaid.

A statute, so obstructing resort to the courts for inquiry as to a fact, limiting the power of the Legislature respecting the subject-matter thereof, would conflict with section 17 of article 3 of the Constitution of this state, declaring "the courts of this state shall be open, and every person, for an injury done to him, in his person, property or reputation, shall have remedy by due course of law; and justice shall be administered without sale, denial or delay"; and also with the fourteenth amendment [67 W.Va. 133] to the Constitution of the United States, guaranteeing to all persons the equal protection of the laws.

While obeying such a statute, without question, or merely violating it, by exacting higher rates than it allows, such corporation maintains the status or condition, upon which the Legislature intended the penal clause to operate, in the absence of a different intent expressed in the statute.

By the institution of a suit to determine whether such a statute is confiscatory in its operation in a particular case, such corporation alters its status from that of a mere corporation, engaged in the public service, to that of a contestant of the legislative claim of right to take its property without due process of law; and, in the absence of expression of intent to the contrary, it is presumed the Legislature did not intend to affect, or interfere with, the assumption or maintenance of such status, nor to legislate upon the subject of such remedy; and the penal clause of such statute, silent on the subject of remedy, has no application, while a suit is pending, in good faith, for the determination of such question.

In determining the meaning of a statute, it will be presumed, in the absence of words therein, specifically indicating the contrary, that the Legislature did not intend to innovate upon, unsettle, disregard, alter or violate (1) the common law; (2) a general statute or system of statutory provisions, the entire subject-matter of which is not directly or necessarily involved in the act; (3) a right or...

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