delivered the opinion of the court.
This suit was brought by the Chesapeake & Ohio Railway Company in the Circuit Court for Kanawha County, West Virginia, against William G. Conley, Attorney General of the State of West Virginia, and the prosecuting attorneys of several counties in the Statе, to enjoin the enforcement of the act of the legislature of West Virginia passed February 24,1907 (Acts, 1907, chapter 41, p. 226), fixing the maximum fare for passengers on railroads, as described, at two cents a mile.
The state court sustained the act and this writ of error is brought.
The act provides:
“Sec. 1. That all railroad corporations organized or *520 doing business in this state under the laws or authority thereof shall be' limited in their charges for the transportation of any persоn with ordinary baggage, not exceeding one hundred pounds in weight, to the sum of two eents per. mile, or fractional part of a mile, but the fare shall always be made the multiple of five neаrest reached by multiplying the rate by the distance, and if for any one passenger the rates herein provided shall be less than five cents, the said sum of five cents may be charged as a minimum; children under twelve years of age shall be carried for one-half fare above prescribed'; provided, that any passenger boarding a train at a station where tickets are sold, without having procured a ticket, may;be charged an additional fare of ten cents, for which sum a rebate slip, redeemable in money, upon presentation to any ticket agent of the company, shall be issued and delivered to such passénger; 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, operated wholly or in part in the state.
“Sec. 2. Any railroad company which shall charge, demand or receive any grеater compensation for the transportation of any passenger- than is authorized by this act, shall be fined for each offence not less than fifty dollars nor more than five hundred dollars; provided, that nothing contained in this act shall apply to electric lines and street railways owned or operated-in this state.”
The questions presented are thus stated by the plaintiff in error:
“First: The statute in question is unconstitutional because of the fact that the penalties pronounced by the statute against any railway which shall fail to .comply with the. same, are so excessivе as to bring the act within the inhibition of Article Eight of the Constitution of the *521 United States, and under the Fourteenth Amendment to the Constitution of the United States deprives the plaintiff of its property without due prоcess of law, and denies to it the equal protection of the law.
“Second: The entire act is unconstitutional, because the classification thereby made of the railways makеs the act applicable to certain railroads of a certain class, and such classification as set out is unfair and unjust, and a mere arbitrary selection imposed by the Legislаture without any relation to the alleged purpose of the act, and not based on any reasonable grounds.
“Third: Because the act necessarily imposes a burden upon the plaintiff as an interstate carrier, and denies it the right to transact and carry on interstate commerce free from the burdens and restrictions imposed by the West Virginia.two cent rate aсt.’’
While the plaintiff in error was entitled to a fair, opportunity to test the constitutional validity of the’prescribed rate, and penal provisions operating to. preclude such an оpportunity would be invalid
(Ex parte Young,
. “By the institution of a suit to determine whether such a statutе 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 thе 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 *522 such а statute, silent on the subject of remedy, has no ápplícation, while suit" is pending, in good faith, for the determination of such question. . . . By the application of these rules and principles, a rаilroad company is excepted from the operation of the penalty clause of chapter 41 of the Acts of 1907, during the prosecution by it, in good faith, of a suit to determine whether said statute is confiscatory in its operation and effect, as applied to such company.” Coal & Coke Railway Co. v. Conley and Avis,67 W. Va. 129 , 133, 134.
Under this ruling, it does not appear that the company is in a position, to attack the validity of the act by reason of its penal provisions. "It has had its opportunity in court, and if the act be otherwise valid it may avoid' penalties hereafter by complying with it. Further, as wаs said in Western Union Telegraph Co. v. Richmond,224 U. S. 160 , 172: “If an oppressive application of them should be attempted, it will be time enough then for the appellant to file'its bill.”
Nor can it be said that the classification of the act is an unreasonable or arbitrary one. In Dow v. Beidelman,125 U. S. 680 , the statute under consideration classified railroads with respect to passenger lares, as follows: “On lines : of railroad fifteen miles or less in length, eight cents per mile. On lines over fifteen miles in length, and less than seventy-five miles in length, five cents. On lines over seventy-five miles in length, three cents per mile.” The court in sustaining the statute said: “The legislature', in the exercise of its power of regulating fares and freights, may classify the railroads according to the amount of the business which they have done or appear likely to do. Whether the classification shall be according to the amount of passengers and freight carried, or of gross or net earnings, during a previous year, or according to the simpler and more constant test of the length of the line of the railroad, is a matter within the discretion of the *523 legislature. If the same rule is applied to all railroads of the same class, there is no violаtion of the constitutional provision securing to all the equal protection of the laws.” (p. 691.)
Again, in
Chicago, Rock Island & Pacific Railway Co.
v.
Arkansas,
It is urged, however, that “control, management or operation” is made the basis of classification for rate purposes, so that, if a railroаd under fifty miles in length be controlled by a railroad of greater length, it would be taken out of the exception although operated wholly independently and not in connection with the longеr line; This contention is fully met by the construction which the state court has given to the statute. Upon this point that court said that the meaning of the words “under the control, management or operation” “is to be ascertained from the connection in which they are used, the act in which they are found, its context, and the mass of legislation of which they form a part. In form, the expressions áre alternative, but, in meaning, they are appositive, signifying the same as the words ‘part of.-’ . ... The suggestion that ownership or control of one railroad by another, when they are not сonnected and operated together, nor susceptible of such connection and operation, makes them one within the meaning of the act, is liks
*524
wise contrary to the spirit аnd beyond the scope thereof. Such an interpretation is not within its reason or purpose, and, therefore, not within its meaning. The legislature must be regarded as having passed the act, in view of existing conditions and methods of railroad Operation, and with the intent that it should operate in harmony with the' spirit and general principles of existing railroad rate legislation, except in so far as the contrary is expressed in terms or’by necessary implication. There is not a word here signifying any intent to depart from the general principle embodied in the act оf 1873, concerning the entity of a railroad for the purposes of the act. It made into one only such railroads as were operated 'in connection’ with one another. Intent to change this settled policy must rest upon something more, in an amendatory act,- than mere inference, surmise or unnecessary implication;”
Coal & Coke Railway Co.
v.
Conley and Avis,
The exception of “electric linеs and street railways” is also made the ground of criticism, but this classification rests upon reasonable and familiar distinctions, long recognizéd as proper in railroad legislation: Omaha & Council Bluffs Street Railway Co. v. Interstate Commerce Commission, ante, p. 324.
The final objеction to' the statute is that-.it cónstitutes an unconstitutional interference with interstate commerce.' It must be regarded, however, as prescribing rates exclusively for intrastate traffic, and, as thus construed, it wás within the power óf the State to enact. The questions presented aré substantially the same as those which were considered in the Minnesota Rate Cases, ante, p. 352.
Judgment affirmed.