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uals, doing the same kind of business. are not so favored, nor can the statute permit a small corporation to engage in the same business with a larger corporation, the latter having burdens which the former has not, or the former having privileges which the latter has not. Connolly v. Sewer Pipe Co., 184 U. S. 558; State v. Petroleum Co., 58 W. Va. 109; Re Grice, 79 Fed. Rep. 628; Cotting v. Kansas City Stock Yards Co., 183 U. S. 85.

A state railroad statute which imposes such excessive penalties that the parties affected are deterred from testing its validity in the courts, denies the carrier the equal protection of the law, without regard to the question of insufficiency of the rates prescribed. Ex parte Young, 209 U. S. 123; Willcox v. Consol. Gas Co., 212 U. S. 19.

While the length of the road may furnish in some instances a proper basis for classification, such classification must be called for by facts justifying it, and if it has the effect of denying equal protection to parties engaged in the same kind of business, and is so worded that it applies to some corporations in the class, and excludes others, it is invalid. Kentucky R. R. Tax Cases, 115 U. S. 321; Cotting v. Kansas City Stock Yards, 183 U. S. 79; St. Louis Coal Co. v. Illinois, 185 U. S. 203; Louis. & Nash. R. R. Co. v. Melton, 218 U. S. 36; Mo., Kans. & Tex. Ry. Co. v. May, 194 U. S. 267; Ozan Lumber Co. v. Union National Bank, 207 U. S. 251; McLean v. Arkansas, 211 U. S. 539; N. Y., N. H. & H. R. R. Co. v. New York, 165 U. S. 628; Chi., R. I. & Pac. Ry. Co. v. Arkansas, 219 U. S. 453, distinguished; Heath & Milligan Mfg. Co. v. Worst, 207 U. S. 338; Engel v. O'Malley, 219 U. S. 128, are all inapplicable to this case.

The Two-Cent Fare Act of West Virginia imposes burdens and restrictions upon interstate commerce, and is for that reason also invalid.

Congress having, under authority of the Constitution, prescribed rates and regulations governing the charges of interstate carriers, no State can impose burdens upon or

enact statutes that actually do conflict with and nullify the regulations of the Interstate Commerce Commission. Hall v. DeCuir, 95 U. S. 489; Gulf, Colo. & Santa Fe Ry. Co. v. Hefley, 158 U. S. 99; Wabash &c. Ry. v. Illinois, 118 U. S. 557; Cleveland &c. Ry. v. Illinois, 177 U. S. 514; Employers' Liability Cases, 207 U. S. 463.

The statute, by reason of the extreme penalties pronounced, is in violation of the constitution of West Virginia.

It makes a distinction that should not be upheld; and no case passed upon by this court has ever sustained such an arbitrary statute as the one in question.

It is a clear effort on the part of the legislature of West Virginia to make the statute applicable to the trunk lines engaged in interstate commerce, and thereby affect and control the rates published and approved under the regulation of the Interstate Commerce Commission.

Mr. William G. Conley, Attorney General of West Virginia, for defendants in error.

MR. JUSTICE HUGHES 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 State, 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

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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, but the fare shall always be made the multiple of five nearest 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 passenger; 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 greater 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 excessive as to bring the act within the inhibition of Article Eight of the Constitution of the

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Opinion of the Court,

United States, and under the Fourteenth Amendment to the Constitution of the United States deprives the plaintiff of its property without due process 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 makes 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 Legislature 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 act."

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 opportunity would be invalid (Ex parte Young, 209 U. S. 123), it is clear that the provisions for penalties of the statute in question, aside from their separable character, are not open to this objection, in the light of the construction placed upon them by the state court. In construing the act, the Supreme Court of Appeals of West Virginia held:

"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 clain 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 a statute, silent on the subject of remedy, has no application, while suit is pending, in good faith, for the determination of such question. By the application of these rules and principles, a railroad 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 was 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 fares, 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