SOUTHERN RAILWAY COMPANY v. Commonwealth

135 S.E.2d 160, 205 Va. 114, 1964 Va. LEXIS 153

• Court: Supreme Court of Virginia
• Decided: March 9, 1964
• Docket: Record 5724
• Status: Published

Opinions

Carrico, J.,

delivered the opinion of the court.

Southern Railway Company was charged, in a warrant issued on the complaint of the Chief Forest Warden of Albemarle County, with failing to keep its right of way clear of weeds, grass and decayed timber, in violation of Code, § 56-426. Following its conviction in the County Court, the railway appealed to the Circuit Court.

In the Circuit Court, the railway entered a plea of not guilty and also filed a demurrer which attacked the constitutionality of Code, § 56-426. The Court, sitting without a jury, heard the evidence, overruled the demurrer, convicted the railway and, pursuant to Code, § 56-449, fined it $500.00. We granted the railway a writ of error.

The evidence showed that the railway had failed to clear its right of way in Albemarle County of combustible weeds and grass. It was also shown that in the ten-year period from 1953 to 1962, there were 1320 forest fires caused by railroads in Virginia; that there were 239 such fires in 1962, the highest number in any year of the ten-year period, and that in 1962 forest fires caused by railroads represented 14.8 per cent of all forest fires occurring in Virginia.

The railway does not question that the evidence was sufficient to prove that it had failed to clear its right of way as required by Code, § 56-426. It strongly contends, however, that the Code section is unconstitutional because:

“(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.”

Code, § 56-426, which finds its origin in the Acts of 1902-3-4, Ex. Sess., ch. 609, p. 993, reads as follows:

“Manner in which right of way shall be kept.—Every railroad company shall keep its right of way clear and free from weeds, grass, and decayed timber, which from their nature and condition are combustible material, liable to take and communicate fire from passing trains to abutting or adjacent property.”

This statute is but the legislative establishment of a criminal offense from a common law rule of civil liability. In much the same language as is employed in the statute, this Court, in 1881, more than twenty years before the statute was enacted, in the case of Richmond and Danville Railroad Co. v. Medley, 75 Va. 499, established the rule that a railroad company, “may be guilty of gross negligence in allowing the accumulation of dangerous combustible matter along its track, easily to be ignited by its furnaces, and thence communicated to the property of adjacent proprietors.” The Court ruled that a verdict in favor of an adjacent landowner was supported by sufficient evidence where it was shown that the sparks from the railroad engine had set on fire dry grass and broom-sedge which the company had permitted to remain on its right of way and, “of course liable at any moment to be set on fire. . . .”

Although Code, § 56-426 has been a part of the law of this Commonwealth for sixty years or more, this is the first time we have been called upon to determine its validity. The statute was applied in a civil case, Iron Company v. Railroad Company, 200 Va. 698, 107 S. E. 2d 421, but there no attack was made upon its constitutionality.

We find that similar statutes have been enacted by a number of our sister states, but our research has not disclosed, nor has there been cited to us, any criminal case in which the validity of such statutes has been passed upon. However, the Supreme Court of Illinois in a civil case, Checkley v. Illinois Cent. R. Co., 257 Ill. 491, 100 N. E. 942, 945, in construing a statute quite similar to the one before us, said, “[t]his statute is a valid, constitutional law and binding upon all railroads in this state.”

As has been noted, the railway’s contention is that the statute is void because it is vague and indefinite and bears no substantial relationship to public safety. The gist of the railway’s argument is that the statute fails to state how the right of way is to be cleared; when it is to be cleared; what is to be cleared from it; what is combustible material, and how much of the right of way is to be cleared.

The rules for testing the validity of a statute, in the face of such an attack, were stated in Caldwell v. Commonwealth, 198 Va. 454, 458, 94 S. E. 2d 537:

“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. . . . 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. . . . 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.”

With these principles in mind, we first turn our attention to the purpose to be served by the statute in question, the evil sought to be corrected by the legislature. The purpose was to remove the danger occasioned by fires set out by passing trains and communicated to abutting or adjacent property. The evil which the legislature sought to correct was that combustible material was permitted by the railroads to exist on their rights of way—material which would take and communicate fires and thereby create the danger to abutting or adjacent property.

And how did the legislature seek to carry out this purpose, to eliminate this evil? By the plainest and most direct method at hand— by requiring the railroad companies to keep their rights of way clear and free of combustible material liable to take and communicate fire from passing trains to abutting or adjacent property.

The crucial question is, however, is this legislative requirement laid down in language that is reasonably certain and definite? We are of opinion that the question should be answered in the affirmative. The legislature has used no magic words, no words of legislative art or legal artifice. The language employed is in everyday usage and is commonly understood.

It might well be that questions will arise as to the applicability of the statute, or opinions may differ with respect to what falls within its terms, or difficulty might be experienced in its enforcement. But these matters do not, in and of themselves, render the statute invalid. Fallon Florist v. City of Roanoke, 190 Va. 564, 590, 58 S. E. 2d 316. If such situations develop, it is not because the statute is vague and indefinite but because of the unpredictability of the subject matter of the legislation—fire, and because of the need for flexibility in provisions relating to the control thereof. The statute reasonably informs the railroad companies what must be done or avoided thereunder, and that is all that is demanded by the constitutional requirement of statutory certainty.

It is true that the legislature has not told the railway, as the latter complains, whether the listed combustible materials should be burned, grubbed and raked, mowed or otherwise disposed of. But we cannot declare a statute unconstitutional merely because the legislature has failed to prescribe the precise method by which a common, everyday task, such as ridding land of weeds, grass and decayed timber, is to be performed. The railway might well have a just complaint had the legislature limited it to only one method when several acceptable methods are available.

The District Forester, in his testimony, recommended that the railway plow firebreaks and then burn the combustible material between such firebreaks and its tracks. The railway resists this recommendation, saying that it cannot wait until the weeds, grass and decayed timber on its right of way are so dry that they wül burn, because it would then already be in violation of the statute.

Here, the raüway merely begs the question, but, in any event, its argument fails to sustain the invalidity of the statute. The legislature is not concerned with how the raüway makes its right of way “clear and free”, so long as the method employed is lawful and proper. And the legislature apparently considers burning of such material on the raüway’s right of way to be a proper method. In Code, § 10-62, the legislature has provided that in counties under the direction of the State Forester as to forest fire control, no person shall set fire to, nor procure another to set fire to, any inflammable material, capable of spreading fire, within 300 feet of any woodland or brushland, except between the hours of 4 p. m. and midnight, during the period beginning March 1 and ending May 15 of each year. The legislature has specifically exempted from this restriction, however, those fires, “set on rights of way of railroad companies by their duly authorized employees.”

It is also true that the statute does not, as the raüway argues, say when the right of way is to be cleared, in terms of a specific date or of a specific period. But the statute does, with reasonable certainty, inform the raüway when it must act, and that is all that is necessary.

It must be borne in mind that the danger from which the statute provides protection is the likelihood that fires wül be communicated from passing trains via combustible material on the right of way to adjacent property. The time for the raüway to act to avert this likelihood is when the weeds, grass and decayed timber on the right óf way, which are the means of such communication, become so combustible as to be dangerous to the adjacent property. And it does not take a scientist or other expert to say when broom-sedge wül burn. Any lad who has roamed the field or fished the stream can supply that answer.

Nor, as the raüway points out, does the statute fist, by each common or technical name, all the species of weeds which must be cleared. To the lament of the homeowner, gardener and farmer, the presence of weeds is so easily recognized and the meaning of the word “weeds” is so commonly understood that further definition in a statute would hardly seem necessary. But, in any event, the definition in Webster’s Third New International Dictionary of a weed as, “an economically useless plant: a plant of unsightly appearance; esp: one of wild or rank growth”, is sufficient.

With regard to the term “decayed timber”, the railway first says that the statute fails to inform it when a dead tree has decayed to the extent that it should be removed from the right of way. The statute supplies the answer to this question. Such a tree is decayed, for the purposes of the statute, when it has become, “combustible material, liable to take and communicate fire from passing trains to abutting or adjacent property.”

The railway next asks, “What is timber?” and points out, in its brief, that the word “timber” has been narrowly defined as trees which are suitable for conversion into wood for construction, manufacturing and other commercial uses. But we have held that, as used in the common acceptation of the word, “timber” means trees, without any reference to the uses to which they may be put. Craddock Mfg. Co. v. Faison, 138 Va. 665, 670, 671, 123 S. E. 535.

Which meaning did the legislature intend in Code, § 56-426? Here, the purpose of the statute supplies the answer. The legislature was, in this respect, seeking to eliminate the danger of fire spreading through decayed timber which has become combustible material. Obviously, fire can spread just as easily and quickly through decayed trees which never have had any commercial value as it can through those which once may have had great value.

We are required to give to the statute a reasonable construction-one which will, if possible, give effect to its obvious purpose. Norfolk So. Ry. Co. v. Lassiter, 193 Va. 360, 364, 68 S. E. 2d 641. Viewed in this light, the word “timber”, in the statute before us, can be held to have only one meaning—trees, without any reference to the uses to which the same may be put.

The statute does not, as the railway asserts, contain a specific and separate explanation of the term “combustible material.” But there can be no doubt that the words, taken in their ordinary sense and in the context in which they are used in the statute, mean weeds, grass and decayed timber that are so dry that they are likely to be ignited by a passing train and, in burning, communicate fire to adjacent property. The Court had no trouble in the Medley case, supra, in 1881, in perceiving that similar words meant, “liable at any moment to be set on fire.” We have no difficulty in this respect now, nor in holding that the term is not vague and indefinite.

Finally, it must be conceded that the statute fails, as the railway argues, to specify in feet the width of the right of way which must be cleared. We cannot conceive that such a burden rested upon the legislature, but, in any event, we are of opinion that the statute adequately informs the railway as to how much of its right of way must be cleared.

Here again, it is important to remember that it is the danger of the spread of fire from passing trains via the material on the right of way to adjoining or adjacent property that the statute is designed to protect against. If that danger exists, then as much of the right of way must be cleared of the specified combustible materials as is necessary to remove the danger. What might be necessary in one place and under certain conditions might not be required at another place or under different conditions. And if there is no such danger at all, then no such clearing is necessary.

Thus, it would have been impractical or well-nigh impossible for the legislature to specify the exact area to be cleared in every circumstance. By requiring that only such area be cleared as is necessary to abate the danger of spreading fire, the legislature has provided a flexible, rather than a vague, standard designed to meet the exigencies of each situation. In so doing, the legislature has equated the interests of the public and of the railroad companies and substantially related its action to the public safety.

The railway relies on the cases of Caldwell v. Commonwealth, supra, and Peacock v. Commonwealth, 200 Va. 464, 106 S. E. 2d 659, in support of its contention that Code, § 56-426 is vague and indefinite. A reading of the opinions in those cases discloses substantial differences between the statutes there involved and the one now under consideration. Different subjects were being treated and different results were sought. Those cases are clearly distinguishable from the case now before us and cannot control our decision here.

For the reasons expressed, we find Code, § 56-426 to be a valid and constitutional legislative enactment. Accordingly, the judgment appealed from will be

Affirmed.