128 Ind. 555 | Ind. | 1891
Lead Opinion
The complaint of the appellant states these material facts: The Indiana Natural Gas and Oil Company is a corporation organized under the laws of Indiana for the purpose of drilling wells, procuring natural gas and supplying it to consumers. The appellant is a stockholder in that corporation. The Columbus Construction Company is also a corporation and is the owner of natural gas wells in many counties of this State. In June, 1890, the gas company entered into a contract with the construction company wherein it was provided that the latter company should acquire the right of way through Indiana and through Illinois to the city of Chicago; that it should construct for the gas company, on the right of way secured, a line of pipe for the transportation of natural gas, and should furnish all necessary machinery and appliances required to obtain and convey natural gas to consumers. In consideration of the purchase of the right of way and the furnishing and construction of pipe lines, machinery and appliances, the gas company agreed to issue and deliver to the construction company capital stock to the value of one million five hundred thousand dollars, and also to issue to the construction company four million dollars of its corporate bonds, and to secure their payment by a mortgage upon its property and franchises. The construction company, proceeding under the contract, acquired a right of wray as agreed, and did purchase and lay down a line of pipe for a distance of twenty miles, and distributed pipe along the right of way for a distance of forty
The complaint sets forth at full length the act of March 4th, 1891, and in addition to the averments of the facts already outlined contains these allegations: “ The Indiana Natural Gas and Oil Company, by reason of the statute aforesaid, is ¡xrohibited from transporting said gas through said pipe line at more than the natural flow and pressure, or at a pressure in excess of three hundred pounds to the square inch, or from using any artificial device to increase or maintain the natural flow of the gas, the natural gas property, and plant constructed to be furnished and delivered to the defendant as aforesaid, will be of no value for the purpose of such plant, and of little or no value for any purpose to
Plaintiff further avers and charges, that the statute aforesaid has made it unlawful for said defendant, or any person in said State of Indiana, to transport natural gas through said pipe line at a pressure exceeding three hundred pounds per square inch, or the natural flow and pressure of such gas, or to use in such transportation any artificial device for the purpose, or which shall have the effect of increasing, or maintaining, the natural flow and pressure of such gas.
Wherefore plaintiff avers that it has become and is illegal for either of said defendant companies to further proceed with the execution of said contract, and that the defendant the Indiana Natural Gas and Oil Company, especially, ought not to be permitted to further proceed in the execution of said contract, the performance of which will result as aforesaid in a waste and destruction of almost its entire corporate assets, and make it entirely impracticable for it to carry out the objects and purposes of its incorporation, and will also involve it in liability for the payment of heavy penalties for the violation of said statute.
Plaintiff avers that immediately upon the taking effect of said statute he demanded of the board of directors of said the Indiana Natural Gas and Oil Company that they and the said company should at once desist from any other proceedings toward - executing and carrying out said contract; and that they should abandon the said enterprise of transporting natural gas by the use of artificial pressure, or pressure in excess of three hundred pounds to the square inch, or other than the natural flow and pressure of said natural gas, and that they should at once rescind and abandon the said contract, but that said board of directors refused to do so, and declared that notwithstanding said statute, and regardless of the right of this plaintiff, they would proceed to
Plaintiff further avers that in execution of said contract companies have already, and since the taking effect of said statute, connected their said pipe-line with certain gas wells in the county of Howard, in the State of Indiana, being wells which under said contract are to be acquired and used by said the Indiana Natural Gas and Oil Company, and by means of certain artificial devices for pumping, known as a pump, being a part of the machinery to be acquired and used by said the Indiana Natural Gas and Oil Company, did unlawfully transport the natural gas from said wells, through the said line of pipe in said county, at an artificial pressure in excess of three hundred pounds to the square inch, and in excess of the natural pressure and flow of said gas, to wit, at a pressure of four hundred and twenty pounds to the square inch, whereas the natural pressure of such gas was but, to wit, three hundred and twenty-five pounds to the square inch, and ever since have continued to, and still are so engaged in violating the provisions of said statute, whereby the said the Indiana Natural Gas and Oil Company has already incurred liability for the penalty prescribed by said statute, and will be subjected to further liability for such penalties unless the said defendant companies be enjoined as hereinafter prayed, which will result in further waste of the corporate assets and irreparable loss to this plaintiff. And plaintiff further avers that said defendant the Indiana
The trial court carried back the demurrer addressed to an answer filed by the appellees to the complaint, and gave judgment because of the insufficiency of that pleading. The ruling of the trial court in carrying back and sustaining the demurrer to the appellant’s complaint is properly challenged by a specification in the assignment of errors.
We decide the case upon the ruling adjudging the complaint bad, and we neither give nor intimate an opinion upon any other ruling, nor upon any other questions than such as that ruling legitimately presents. We do not feel at liberty to consider any other questions than those designated, and upon none others do we give judgment, nor, indeed, can we decide any other questions without a departure from settled principles of procedure.
To determine what questions are legitimately presented to us, it is necessary to give a construction to the complaint which the trial court condemned, but it is only necessary to state in a very general way what we adjudge to be the nature of the complaint. We adjudge that the complaint is to be construed as charging that the contract of the corporation, of which the appellant is a member,-with the Construction Company, is incapable of performance, because it requires a violation of the act of March 4th, 1891, in this, that it provides for and requires that natural gas be transported in pipes at a greater pressure than the natural pressure, or at an artificial pressure exceeding three hundred pounds to the square inch. We may further affirm it to be our judgment upon this phase of the case that there is here nó question as to the right of a stockholder to maintain such a suit as this, for no such question is presented by the briefs or arguments, and we say, still further, that the essential and controlling question presented by the ruling upon the complaint, is whether a contract which can not possibly be performed with
The complaint avers, and the demurrer admits, that the performance of the contract is impossible without violating the statutory provision that no greater pressure than three hundred pounds to the square inch shall be put upon pipes used for the transportation of natural gas. We are careful to state the questions upon which we give judgment, and to declare the construction which we give to the complaint upon which those questions arise, so that there may be no misconception of our decision.
It is obvious from what we have said that the central question here presented and here to be decided is this: Is the provision of the act of March 4th, 1891, prohibiting the use of more than the natural pressure or an artificial pressure exceeding three hundred pounds to the square inch, invalid because it violates the constitution of the United States or of the State of Indiana? The validity of that provision, and of that provision alone, demands our judgment. If the Legislature of Indiana has no power to require that the pressure put upon natural gas poured into pipes shall not exceed three hundred pounds where pressure is employed, the contract between the two corporations is legal, and the complaint is bad, if it has such power, the complaint is good.
The question, as the record presents it, is one of power. With questions of policy or expediency the courts have no concern. License Gases, 5 How. 504; Hedderich v. State, 101 Ind. 564. If a subject is within the legislative power, the question whether that power is wisely or unwisely exercised is not a judicial one. If the power exists, then the Legislature must determine the mode of its exercise, unless the mode is prescribed by the organic law. If, to descend from a wide generalization to a narrow one, a subject is within the police power of the State, the question as to what reg
It must be true, therefore, that if the Legislature of Indiana has power to regulate the pressure that shall be put. upon natural gas taken from wells in this State and conducted into pipes laid in the soil of the State, it has, presumptively, at least, power to determine what limit the public safety requires to be placed upon the pressure employed. The question as it comes to us is not a broad one, involving the authority of the Legislature arbitrarily to enact a law destructive of property or commercial rights under the guise of exercising police power, for here there is regulation, and not destruction.
If artificial pressure is resorted to it must, as the statute declares, not exceed three hundred pounds to the square inch, and there is nothing in the complaint justifying the inference that this is an unreasonable regulation, or one made to accomplish an unlawful object. There are no facts presented warranting the inference that such a pressure is not reasonable or is not demanded for the public safety.
As the regulation prescribed by the statute is not one which appears on its face to be destructive of commercial interests or property rights, and as there is nothing in the complaint indicating a purpose to oppress or destroy, we can not, nor can any court, presume that there was any other purpose than the just one of regulating the use of essentially dangerous property for the good of the community. As there is power to regulate the use of property,, the measure of regulation must, to a very great extent, be within the discretion of the Legislature. If it is true that the Legislature may not put some limit upon the pressure employed, then those who transport natural gas may, at their pleasure,
The pleading upon which we give judgment, in this instance, does not require us to decide how far the Legislature may go in regulating the use of property not intrinsically dangerous. A distinctive and conspicuous feature of this case is that the property upon which the statute operates is dangerous and is of an extraordinary species and nature. That natural gas is a dangerous agency is a matter of common knowledge, and, hence, courts take judicial notice of that fact. We know, as the Legislature knew, and as every one knows, that natural gas is in a high degree inflammable and explosive. Surely no court would require evidence to inform it that artificial gas will ignite and explode, or that gunpowder and dynamite are intrinsically dangerous, and yet with quite as much propriety might it be claimed that without evidence a court can not know the qualities of any of the things named as to claim that a court can not take judicial notice of the qualities of natural gas. But we need
So far as the facts placed before us by the confessed allegations of the complaint will enable us to judge, there is nothing unreasonable in so regulating the pressure as to keep it down to three hundred pounds to the square inch. If the facts were such as to enable us to declare as matter of law that such a regulation was oppressive, unreasonable, or subversive of commercial rights, we should, perhaps, have a different question to determine, but in the pleading upon which we pronounce judgment there are no facts warranting any inference leading to the overthrow of the statutory provision here involved upon any such ground. When a case arises wherein it legitimately appears that under the pretext of enacting a police regulation the Legislature usurps power, invades property or commercial rights, then the courts will have to deal with questions different from those presented in this case.
The public safety and welfare is the highest consideration in all legislation, and to this consideration private rights must yield. Yo man has a right to so use a dangerous species of propei’ty as to put the safety of others in peril. Liberty does not imply the right of one man to so use pi’operty as to endanger the property of others, nor does ownership imply any sucli right. This is rudimental. It must, therefore, be true that the owner of property of such a dangerous nature as to require regulation to prevent injury to others can have no right paramount to the police power. It is not too much to say that as against the police power there is no such thing as a vested right. If the position of the appellees' counsel is tenable, then after a corporation has invested money in natural gas pipes, machinery and appliances, there can be no subsequent legislation, although the use of the pipes bought might put in peril towns, houses, and even human life along the entire line. The law is subject to no
A familiar application of the principle is that made in the great number of cases which hold that railway companies maybe compelled to fence their tracks. The decisions everywhere prove that the police power may sleep but it does not die. The question, when the dormant power shall be aroused, is, as we have suggested, one for legislative decision. “Under our system,” said the court in Mugler v. Kansas, supra, “ that power is lodged with the legislative branch of the government. It belongs to that department to exert what are known as the police powers of the State, and to determine, primarily, what measures are appropriate or needful for the
It is a mistake to suppose that regulating the use of property under the police power is a taking without process of law. This seems so clear that it is hardly necessary to cite authorities, but, nevertheless, we can not forbear quoting from the opinion in Mugler v. Kansas, supra; “ A prohibition simply upon the use of property for purposes that are declared, by valid legislation, to be injurious to the health, morals, or safety of the community, can not, in any just sense, be deemed a taking or an appropriation of property for the public benefit. Such legislation does not disturb the owner in the control or use of his property for lawful purposes, nor restrict his right to dispose of it.” In the case at our bar there is no taking of property; there is simply a regulation of its use, leaving the ownership untouched. ZSTo owner has a right to use property in such a mode as to endanger the public safety, and hence no rights of ownership are impaired in a statute which protects the public safety by a reasonable regulation of the use of dangerous property.
AVe are satisfied that no provision of our State Constitution is violated by the act of 1891, and that it is not antagonistic to the fourteenth amendment of the Federal Constitution, nor to any provision of that instrument protecting vested or contract rights.
The general question which remains is that presented by the contention that the act of 1891 violates the provisions of the Federal Constitution vesting in Congress power over commerce between the States.
AVe preface our discussion of the principal question stated by saying that we are here concerned only with the general question of the power to regulate the pressure upon natural gas in pipes; for, according to the averments of the complaint, whether natural or artificial pressure be employed, the contract between the two corporations named can not be made effective without violating the act of 1891, by using
Whether the act of 1891 usurps powers vested in Congress is to be determined from the language employed by its framers. If the language expressly or by necessary and unavoidable implication assumes to regulate interstate commerce, the act is a nullity. There is, however, no express regulation of interstate commerce, nor do we think that the necessary effect of the statute, when construed according to settled rules of law,.is to limit or restrain commerce. If it were necessary to sustain the statute, and necessary to a decision of this case as made by the record to construe the statute as simply limiting artificial pressure to three hundred pounds, it would be our duty to so construe it, since that would be a sounder conclusion, in view of the provisions of the statute, than the conclusion that the Legislature intended to enact a statute which must be deemed a nullity. The rule is, that: “Before proceeding to annul, by judicial sentence, what has been enacted by the law-making power, it should clearly appear that the act can not be supported by any reasonable intendment or allowable presumption." People, ex rel., v. Supervisors, 17 N. Y. 235 (241.)
We have no right to presume that the Legislatm'e usurped power, or disregarded the organic law. No precedent will justify such a presumption, nor any reason sustain it. A party who asserts that the Legislature has usurped power,
It is our plain duty to uphold the statute, if it can be done by just intendment and reasonable presumption; and the questions in the record do not require us to do more than decide upon the general question of the power to regulate the conveyance of natural gas in pipes.
Nothing in the words of the statute expresses or indicates a purpose to usurp a Federal power; if there be any such usurpation it is because of the effect of the statute, and not because of any direct attempt to regulate interstate commerce ; but we have no right to ascribe such an effect to the statute, if any other fair and reasonable effect can be given it. We are not to destroy a statute when it can be fairly avoided.
A further prefatory suggestion seems appropriate, and that is this: The statute makes no discrimination ; it operates upon all alike. It affects the citizens of Indiana as it does others, and not differently. We know, as matter of common knowledge, as all courts must know, that there are parts of our State farther distant from the gas fields than are parts of the States by which.ours is bounded. It can not, therefore, be implied that the statute was directed against the citizens of other States.
In considering the principal question, two things are im
The pipes for the transportation of the gas must be laid in our soil; they must cross our farms, pass through our towns, and cross our highways. There are many persons, many houses, and much property along the line, within the borders of our State. There is danger to our inhabitants, and to their property from the use of defective or insecure pipes, as well as from an improper use of them. If a volatile, inflammable, and explosive substance, such as natural gas, can not be conveyed in pipes, under an unsafe pressure, without danger to those whom it is the duty of the commonwealth to protect, then regulation is not unreasonable or illegal in itself. The danger is to our citizens in their own homes, and on our own thoroughfares. It can not, we suppose, be successfully asserted that a gas company could use pipes of paper, or of spider-webs, at their pleasure; and yet, if there is no power in the State to regulate the character of the pipes, or .the like, this conclusion must result. They, indeed, may do what they please. The danger to be avoided is within the State; the protection of the law ought, upon every principle of justice, to be commensurate with the danger. The legislation is local, is for local protection, and for, presumptively, at least, no other purpose. Gas companies acquire the right to lay pipes by virtue of the power of eminent domain resident in the State, and surely if they take the benefit of our laws, and use our lands and minerals, they must yield obedience to such laws as are framed for the local protection. If they seize private property, and occupy highways under local laws, they must conform to those laws in using the privileges vouchsafed to them. The right to lay pipes, to sink wells, and to do similar things, is local in every particular. It is, from first to last, local; it is so in the acquisition of the original right, and in the exercise of the right acquired. It is certainly as essentially and characteristically local as the right to erect telegraph poles,
The local character of such a substance as natural gas is, we repeat, marked and peculiar. It is a natural product, and its source is in the soil, or rocks of the earth. It is as strikingly local as coal or petroleum, and yet no one has ever questioned the power of a State to enact laws governing mining. If it be not true that the mining and conveyance of natural gas may be regulated for the protection of persons and property, it must be true that many mining laws are void. Coal-oil is subject to inspection and regulation, and so must be natural gas, for it is more dangerous than coal-oil. It is so essentially local that only local regulations can be effective or appropriate. It is found in veiy few localities, and the character of locality is impressed upon it more clearly and strongly than upon almost any other natural product in the world.
We have considered (very briefly, however, because time presses) the question of the power to regulate the use of natural gas because of the local character of the product, upon principle, and we now consider the question upon authority. The decisions clearly recognize a distinction be
The principle which we here enforce is thus stated by the Supreme Court of the United States in Western Union Tel. Co. v. Pendleton, 122 U. S. 347 : “Undoubtedly, under the reserve powers of the State, which are designated under that somewhat ambiguous term of police powers, regulations may be prescribed by the State for the good order, peace, and protection of the community. The subjects upon which the State may act are almost infinite, yet in its regulations with respect to all of them there is this necessary limitation, that the State does not thereby encroach upon the free exercise of the power vested in Congress by the Constitution. "Within that limitation it may, undoubtedly, make all necessary provisions with respect to the buildings, poles, and wires of telegraph companies in its jurisdiction which the comfort and convenience of the community may require.” If regulations may be made concerning buildings and wires used by telegraph companies, it is impossible to conceive why they may not be made concerning pumps, pipes, or the like, of natural gas companies. There is infinitely more reason why the power should exist in the one case than in the other, since natural gas is a local product, intrinsically dangerous, and can only be conveyed from place to place in a peculiar mode.
There is another phase of the subject upon which the element of locality exerts an important influence. The local and peculiar character of natural gas makes it almost impossible that it should be the subject of a general national regulation. The principle here involved is affirmed in the strongest case that the appellees have adduced in support of
Upon this point we affirm that natural gas is characteristically and peculiarly a local product, that its production is confined to a limited territory, that because of its local characteristics and peculiarities it is a proper subject for State legislation, and can not, so far as regards local protection, be made the subject of general legislation by Congress; or, at all events, that it does “ not require a uniform system as between the States ” for its regulation.
We come now to a consideration of the question of the inherent dangerous qualities of natural gas as affecting the power of the State to regulate its use. We have already declared that it is a dangerous substance requiring regulation, and we shall only add to what we have said a quotation from the opinion in the case of State v. Hayes, 78 Mo. 307 : “ It was not necessary,” said the court, “ to aver that coal-oil is inflammable or to prove it. Courts and juries will take cognizance of such matters as are of common knowl
The rule that courts take notice of geographical, historical or natural facts extends far and is an unbending one. In the case of Jones v. United States, 137 U. S. 202, the Supreme Court fully reviewed the authorities and declared that averments in a pleading would be disregarded in every instance where the court judicially knew that they were not true. We can not quote at length from the opinion, but must content ourselves with saying that it asserts in the strongest possible terms that what is judicially known to be false no pleading can effectively aver to be true. The practical application of this old and familiar doctrine to this case requires us to assert that the courts judicially know that natural gas is a local product that can not be handled, stored, or transported as an ordinary commercial commodity without imperiling life and property.
If natural gas can not be safely transported to a State distant from its'source, it is because of its natural qualities,and not because of legislation. The restriction upon transportation, if there be any, is in the inherent nature of the thing itself; none is put upon it by the statute, since the statute
It is true that natural gas may be an article of commerce, but it is not an ordinary article of commerce. It is not a commercial commodity while in the earth, it is only so when it ceases to become real estate and becomes personal property. It can not in any event become an ordinary article of merchandise in which no dangerous elements combine. In a limited and qualified sense it is a commercial commodity, but the limitation is not put upon it by any statute. That is done by nature. It is, no doubt, so far a commercial commodity that this State can not prohibit its transportation to another State by direct legislation. State, ex rel., v. Indiana, etc., Co., supra. If it can be taken from the well and transported to another State under a safe pressure the State can not prohibit its transportation, nor can the State establish one standard of pressure for its own citizens and another standard for the citizens of other States. But nothing of the kind is attempted directly or indirectly, for, as we have shown, there is one standard and no prohibition. The standard is for all. If it is such as will allow the transportation of natural gas to other States, there is no restriction or burden upon interstate commerce. If there is a prohibition in any sense, or to any extent, it is in the nature of the commodity itself, but there is no prohibition.
In asserting this we are not unmindful of the decision in Leisy v. Hardin, 135 U. S. 100, but that decision is easily discriminated from the class of cases to which we have referred as well as from the case before us. In Leisy v. Hardin, supra, the State legislation was condemned because it operated directly upon an ordinary and world-wide article of
In Prigg v. Pennsylvania, 16 Pet. 539, Judge Story, speaking for the court, said : “ The police power belonging to the States, in virtue of their general sovereignty, extends over all subjects within the territorial limits of the State and has never been conceded to the United States.” This general doctrine is affirmed in many cases, and it is conceded in the majority opinion in Leisy v. Hardin, supra. We know that the decision in that case affirms that where the whole subject is Federal, the States can exercise no power, but that doctrine we neither dispute nor deny, although we do affirm that it is not applicable to such a case as this. In affirming that State police regulations may rightfully operate upon articles of commerce we do not affirm that commerce may be regulated. If police regulations can not operate upon articles of commerce, then there are few kinds of personal property upon which they can opérate. To deny that State legislation can operate upon commodities that are commercial is to practically annihilate it, for it is difficult, if not impossible, to conceive any species of personal property that is not commercial. But it is by no means only property such as intoxicating liquors upon which the police power of a State may be exercised. In the case of United States v. Dewitt, 9 Wall. 41, a penalty was imposed by a United States statute upon any person who should offer for sale oil manufactured
A similar question came before the court in Patterson v. Kentucky, 97 U. S. 501, and the State statute was upheld. The opinion in that case so fully and ably discusses the question that we can not forbear quoting from it at some length, The learned j udge, by whom the court spoke, said : “ ‘ In the American constitutional system/ says Mr. Cooley, ‘ the power to establish the ordinary regulations of police has been left with the individual States, and can not be assumed by the national government.’ Cooley Const. Lim. 574. While it is confessedly difficult to mark the precise boundaries of that power, or to indicate by any general rule the exact limitations which the States must observe in its exercise, the existence of such á power in the States has been uniformly recognized in this court. Gibbons v. Ogden, 9 Wheat. 1; License Cases, 5 How. 504; Gilman v. Philadelphia, 3 Wall. 713; Henderson v. Mayor of the City of New York, 92 U. S. 259 ; Railroad Co. v. Husen, 95 Id. 465; Beer Co. v. Massachusetts, supra, p. 25. It is embraced in what Mr. Chief Justice Marshall, in Gibbons v. Ogden, calls that ‘immense mass of legislation ’ which can be most advantageously exercised by the States, and over which the national authorities can not assume supervision or control. ‘ If the power only extends to a just regulation of rights, with a view to the due protection and enjoyment of all, and does not deprive any one of that which is justly and properly his own, it is obvious that its possession by the State, and its exercise for the regulation of the property and actions of its citizens, can not well constitute an invasion of national jurisdiction or afford a basis for an appeal to the protection of the national authorities.’ Cooley Const. Lim. 574. By the settled doctrines of this court the police power extends, at least, to the protection of the lives, the health, and the property of the community against the injurious exercise by any citizen
Other decisions assert like principles: Webber v. Virginia, 103 U. S. 348; Turner v. Maryland, 107 U. S. 38; Cooley v. Board, etc., 12 How. 299 ; Crandall v. State, 6 Wall. 35; Knox v. Lee, 12 Wall. 457; Slaughter-House Cases, 16
“ The width of the gauge, the character of the grades, the mode of crossing streams by culverts and bridges, the kind of cuts and tunnels, the mode of crossing other highways, the placing of watchmen and signals at points of special danger, the rate of speed at stations and through villages, towns, and cities, are all matters naturally and peculiarly within the provisions of that law, from the authority of which the modern highways of commerce derived their existence. The rules prescribed for their construction, and for their management and operation, designed to protect persons and property, otherwise endangered by their use, are strictly within the limits of the local law. They are not per se regulations of commerce.”
The provision of our statute of 1891, limiting the pressure upon natural gas confined in pipes, is certainly as essentially a police regulation as any of the acts enumerated by the Supreme Court of the United States in the case from which we have quoted. It is equally as clear that it is not
The decisions relied upon by the appellees do not oppose the conclusion that the use of such an article as natural gas may be regulated. In our own case of State, ex rel., v. Indiana,etc., Co., supra, the .statute was, in terms, a regulation of commerce between the States, and, moreover, was an absolute inhibition upon the exportation of natural gas, so that the decision there made is not in point. Of Leisy v. Hardin, supra,we need only say, in addition to what has been already said, that the State law there overthrown by a majority of the court was a direct prohibition of the sale of a general article of commerce in its original form, not a regulation of its use. It is obvious that regulating the use of a dangerous article is a very different thing from prohibiting its sale, and still wider is the difference where, as here, the article is inherently dangerous, and not of an ordinary commercial character. The cases of Welton v. State, 91 U. S. 275; Brown v. Houston, 114 U. S. 622; Walling v. Michigan, 116 U. S. 446, involved the power of a State to levy a tax upon interstate commerce, and are not of controlling force upon such a question as that before us, because they are not relevant to the point in dispute. The case of Bowman v. Chicago, etc., R. W. Co., 125 U. S. 465, involved the validity of a State statute absolutely prohibiting the importation of a commercial commodity, and it is without influence here, for here we have no such question. County of Mobile v. Kimball, supra, decides that a municipal corporation may be authorized to issue bonds to improve a harbor, but decides nothing that lends support to the appellees’ assault upon the act of 1891. It does, however, contain statements that give strong support to the proposition that local matters may be regulated by State laws although they are connected with interstate commerce. The cases of Chy Lung v. Freeman, 92 U. S. 275, and Henderson v. Mayor, 92 U. S. 259, relate entirely to the power of a State
A regulation of the mode of using property is not necessarily prohibition, or restriction, and the statute before us is no more than such a regulation. The opinions in the cases of Minnesota v. Barber, 136 U. S. 313, and Brimmer v. Rebman, 138 U. S. 78, were written by the same great judge, Mr. Justice Harlan, who wrote the opinions in Patterson v. Kentucky, supra, and in Smith v. Alabama, etc., Co., supra, and there is not in them the slightest intimation of a departure from the doctrine of the former cases ; on the contrary, those doctrines are adhered to, and the meat inspection laws were condemned because they discriminated against the citizens of other States. In the latter case it is said: “ The case, in principle, is not distinguishable from Minnesota v. Barber, where an inspection statute of Minnesota, relating to fresh beef, veal, mutton, lamb, and pork, was held to be a regulation of interstate commerce and void, because, by its necessary operation, it excluded from the markets of that State, practically, all such meats — in whatever form, and although
The difference between the meat inspection cases and the present is essential and clear. Here there is no discriminaton; here there is nothing more than the regulation of a natural, local and intrinsically dangerous product; while in the inspection cases there was discrimination; indeed, absolute prohibition, and the article was not dangerous, nor of a local or unusual character.
In Minnesota v. Barber, supra, the court shows very clearly the difference between that case and the ease of Patterson v. Kentucky (which is cited with approval), and in doing this proves that the principle asserted in Patterson v. Kentucky, rules here, and that the doctrine of Minnesota v. Barber, is not relevant to such a question as the one presented by the ruling upon the complaint before us.
The trial court erred in sustaining the demurrer to the complaint, for in thus ruling it adjudged that the provision of the act of 1891, regulating the pressure that may be placed upon natural gas, confined in pipes, is void. That was the question before it upon the complaint, and it is the question before us. The effect of this ruling was to adjudge that the appellant’s complaint did not state a cause of action, for the reason that the statutory provision referred to was, upon the case stated by the pleading, unconstitutional. Beyond that case the trial court could not justly go, nor can we.
For the error in sustaining the demurrer to the complaint the judgment is reversed.
Individual Opinion.
The Legislature may undoubtedly provide for the regulation of the mode of procuring, using and transporting natural gas. In so far as the act of March 4th, 1891, attempts to do this, it is a legitimate exercise of the police
Section 1 of the act, however, contains a provision which, literally construed, forbids the transportation of natural gas through pipes otherwise than by the natural pressure of the gas flowing from the wells, and section 2 contains a provision which, similarly construed, declares it to be unlawful to use any device or artificial process or appliance to maintain the natural flow of natural gas.
These provisions are not in the nature of regulations, but are prohibitory in their character. They are, however, independent provisions, which may be eliminated from the statute without materially impairing its efficiency, if its purpose is simply to regulate the production, transportation and use of natural gas.
As I understand the principal opinion, it holds that, notwithstanding these provisions of the statute, artificial pressure may be applied, provided it does not exceed three hundred pounds to the square inch. Whether this conclusion is reached by construction, or by eliminating the objectionable features of the statute, is not material. I concur in the conclusion reached.
Dissenting Opinion
Dissenting Opinion.
I can not cfincur in the main opinion in this case. There are many propositions stated in the main opinion, and ably discussed and supported by copious quotations and citations of authorities, with some of which I agree, but do not regard them as decisive of the questions involved in this case.
As it seems to me, the question as to the validity of the complaint depends upon the validity and construction of the act of the Legislature of Indiana passed by the General Assembly March 4th, 1891, which is as follows : ,
*585 “An act to regulate the mode of procuring, transporting and using natural gas, and declaring an emergency.
“ Section 1. Be it enacted by the General Assembly of the State of Indiana, That any person or persons, firm, company or corporation engaged in drilling for, piping, transporting, using or selling natural gas may transport or conduct the same through sound, wrought or cast iron casings and pipes tested to at least four hundred pounds pressure to the square inch : Provided, Such gas shall not be transported through pipes at a pressure exceeding three hundred pounds per square inch, nor otherwise than by the natural pressure of the gas flowing from the wells.
“ See. 2. It is hereby declared to be unlawful for any person or persons, firm, company or corporation to use any device for pumping or any other artificial process or appliance for the purpose, or that shall have the effect of increasing the natural flow of natural gas from any well, or of increasing or maintaining the flow of natural gas through the pipes used for conveying and transporting the same.
“ Sec. 3. Any person or persons, firm, company or corporation violating any of the provisions of this act shall be fined in any sum not less than one thousand dollars nor more than ten thousand dollars, and may be enjoined from conveying and transporting natural gas through pipes otherwise than in this act provided: Provided, That nothing in this section shall operate to prevent the use of nitro-glycerine or other explosives for shooting any well or wells from which the gas is procured.
“ Sec. 4. It is hereby declared that an emergency exists for the immediate taking effect of this act, and the same shall take effect from and after its passage.”
In my opinion the decision is erroneous. This law does not seem to me to have been framed with an intention or with an effort on the part of the General Assembly to exercise the legitimate police power vested in the State. It does not attempt to regulate the transportation of natural gas, but
The statute, upon its face, admits that the transportation of gas at a pressure of three hundred pounds to the square inch through sound wrought or cast iron casings and pipes tested to at least four hundred pounds to the square inch is safe, yet it prohibits the increase of the pressure of a well of less pressure than that degree, and prohibits any transportation by artificial methods, even to this extent, though admitting it is safe to do so.
In the case of State, ex rel., v. Indiana, etc., Co., 120 Ind. 575, this court said : “ In order to give any force to this contention it is necessary to determine, at the outset, whether natural gas can be considered an article of commerce. With this preliminary question we have but little difficulty. Natural gas is as much an article of commerce as iron ore, coal, petroleum, or any other of the like products of the earth. It is a commodity which may be transported, and it is an article which may be bought and sold in the markets of the country.” In support of this proposition the following authorities were cited. Citizens’, etc., Co. v. Town of Elwood, 114 Ind. 332; Carother’s Appeal, 118 Pa. St. 468; Columbia Conduit Co. v. Commonwealth, 90 Pa. St. 307; West Virginia, etc., Co. v. Volcanic Co., 5 W. Va. 382; The Daniel Ball, 10 Wall. 557 ; Kidd v. Pearson, 128 U. S. 1.
This court further said : “■ The gas in the earth may not be a commercial commodity, but, when brought to the surface and placed in pipes for transportation, it must assume that character as completely as coal on the cars or petro
That gas and petroleum are to some extent inflammable, explosive and dangerous, I am free to admit, and that courts take judicial knowledge of the fact. But coal is in common use for fuel; petroleum in common use for lighting purposes, and to some extent for fuel; natural gas, in the communities where it is mined and has been carried through pipes, is in common use as fuel and for heating purposes, and to some extent for lighting purposes; and but few, if any, more accidents or deaths occur from its use than do from the use of coal or petroleum. We read of accidents and deaths occurring in various ways from the use of coal and petroleum as well as natural gas. As well might the Legislatures of the various States, within the borders of which there are oil fields, pass a law prohibiting the pumping of the oil from wells and the transportation of the same to any greater distance than its natural flow from the wells will carry it, while admitting that it. can be safely transported in casks and tanks, as to say that the Legislature, while admitting that natural gas may be transported with safety in pipes at a pressure to the extent of three-fourths of the tested pressure of the pipes, may prohibit its transportation by artificial methods or devices in the same safe manner by a pressure not exceeding three-fourths of the tested pressure of the pipes through which it is transported ; either of which propositions seem to me to be a prohibition, an interfei’ence with commerce against the xfights of citizens in the free disposition of their property, and unfounded ixx law.
It is not necessary in this case to deny that the Legislature has a right to exei’cise police power over the transportation of natural gas, for, admitting that it has, and can exercise it to a reasonable extent, so as to prevent its transportation in a careless, x’eckless and unsafe manner, unnecessarily endan
This statute, conceding that natural gas can be transported in the manner stated, prohibits its transportation beyond the distance it will naturally flow from the wells, which it is admitted in argument is not to exceed sixty or seventy miles at farthest.
As said in the. case of State, ex rel., v. Indiana, etc., Co., supra, natural gas is an article of commerce, and the owner of it may sell it for use within the distance which it may be transported by-the natural flow of the well, or beyond such distance, and it may be transported in a proper and safe manner beyond that distance by artificial methods, and this can not be prohibited by legislative enactment.
In the case of Matter of Application of Jacobs, 98 N. Y. 98 (110), after citing and quoting from numerous authorities, in speaking of the police power of the State, the court says : “ These citations are sufficient to show that the police power is not without limitations, and that in its exercise the Legislature must respect the great fundamental rights guaranteed by the Constitution. If this were otherwise, the power of the Legislature would be practically without limitation. In the assumed exercise of the police power in the interest of the health, the welfare or the safety of the public, every right of the citizen might be invaded and every constitutional barrier swept away. Generally it is for the Legislature to determine what laws and regulations are needed to protect the public health and secure the public comfort and safety, and while its measures are calculated, intended, convenient and appropriate to accomplish these ends, the exercise of its dis
In the case of Mugler v. Kansas, 123 U. S. 623, the eminent jurist, Justice Hablan, speaking for the highest court of the world, said : “ If, therefore, a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.” See Minnesota v. Barber, 136 U. S. 313.
It will not be controverted that the owner of laud is the owner of gas mined upon his own land; that it is his property.
The right of private property includes the right to dispose of all one's legal acquisitions without illegal restraint or diminution. These principles are almost as old as the law itself.
The Constitution of the United States provides that “ No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.”
The Constitution of Indiana, in the bill of rights, declares
See the following authorities, as bearing upon the questions involved in the case : Hennessy v. City of St. Paul, 37 Fed. Rep. 565; Cole v. Kegler, 64 Iowa, 59 ; Harvey v. Dewoody, 18 Ark. 252; State v. Mott, 61 Md. 297; Manhattan Manufacturing, etc., Co. v. Van Keuren, 23 N. J. Eq. 251 ; Glenn v. Mayor, 5 Gill & J. 424; Bills v. Belknap, 36 Iowa, 583 ; Everett v. City of Council Bluffs, 46 Iowa, 66 ; Quenton v. Burton, 61 Iowa, 471; Everett v. City of Marquette, 53 Mich. 450; Ames v. Port Huron Log Driving, etc., Co., 11 Mich. 139; Sedgwick on Stat. and Const. Law, p. 534; New Albany, etc., R. R. Co. v. Peterson, 14 Ind. 112; Acton v. Blundell, 12 M. and W. 324; City of Greencastle v. Hazelett, 23 Ind. 186 ; Haldeman v. Bruckart, 45 Pa. St. 514; Wheatley v. Baugh, 23 Pa. St. 528 ; Taylor v. Fickas, 64 Ind. 167; Angell Watercourses, sections 94, 135; State, ex rel., v. Woodruff Sleeping, etc., Co., 114 Ind. 155 ; Hannibal, etc., R. R. Co. v. Husen, 95 U.S. 465; County of Mobile v. Kimball, 102 U.S.691; Walling v. People, etc., 116 U. S. 446 ; Leisy v. Hardin, 135 U. S. 100; Minnesota v. Barber, supra ; Brimmer v. Rebman, 138 U. S. 78.
It is clearly apparent that the statute in question had for its purpose the prohibition of the transportation of natural gas, and confining its use and sale to a limited territory; curtailing its use, diminishing its value, abridging the rights of the owners, and other persons who might wish *to Buy and transport it to markets beyond the distance which the natural well pressure will carry it, absolutely prohibiting its use and sale beyond a small territory wherein it can be distributed by the natural well pressure; and if subject to be safely transported into other States it necessarily interferes with interstate commerce.
I have hurriedly and briefly stated-some of the objections