Pennsylvania Coal Co. v. Mahon

v: MAHON. PENNA. CO. 393 COAL ‘ Syllabus. COAL COMPANY v. MAHON

PENNSYLVANIA

ET AL. ERROR TO THE OE THE OP SUPREME COURT STATE PENNSYL-

VANIA. Argued 11, No. 549. November 1922. Decided December 1922. 1. deciding private prop- One on consideration in whether limitations

erty, implied police power, exceeded, is favor of the aré degree property, íhé are in which the- values incident to dimin- regulation question; be determined ished and this' to. particular from the facts of the case. P. 413. general regulation goes far rule, least,

2. The at is that if too it will recognized taking compensation be paid. as a for which must P. 415. purchased rights street, The or laid out

3. of the domain, paid has eminent are those that it for. P. 415.. containing deposits of land coal had deeded the 4. Where owner all express reservation of the to remove the coal surface assuming waiving all claim beneath, grantees the risk and mining, damages might from such arise yalid made, under the rights reserved, and contracts thus were mining.in statute, later, way forbade law, state and a enacted any habitation, or as to cause subsidence of human street thereby commercially impracticable building, etc., made or standing unmined, held, very deposits coal still removal valuable prohibition police power, whether viewed as that the exceeded the protection private having only surface owners or to cities rights, of the-coal-owner under and contravened the Due Process the Contract Clause of the and .the Constitution, Clause of the Fourteenth Amendment.1 P. 413.

274 Pa. reversed. St. summary following statute involved taken thé Pennsylvania Supreme Court: opinion regulating mining act is entitled: “An The statute anthra- municipal officers; for certain coal; prescribing duties and im- cite posing penalties.” it shall be unlawful “so-to provides that conduct the

Section caving-in, to cause the anthracite operation of col- Any public building (a) structure lapse, or subsidence cus- J94

Argument Plaintiff in Error. Supreme Pennsyl- Court'of to a decree Error error, enjoin in their vania, for the defendants suit under their Coal Company property the to remove and cause such.way supports subsidence their the surface and of house. Wheaton, Davis with Mr. Frank W.

Mr. John W. whom Drinker, Henry Jr., S. and Reese H. Harris were Mr. Mr. brief, on the error. plaintiff the impairs obligation I. statute the contract parties. between the August 26, 1921,

On the Mahons were bound aby permit covenant to Coal valid had Company, which to or their sold them to ancestor the surface rights only to lot, objection in their exercise without or hindrance tomarily public place by used as a of resort, assemblage, or amuse- ment, including, being to, but not churches, limited schools, hospitals', theatres, hotels, stations; (6) Any street, road, railroad bridge, passageway, public public or other dedicated habitually to use or used'by (c) Any public; track, roadbed, right way, pipe, con- wire, facility, or duit, other used in the public service of by any municipal corporation public or company service by as defined the. Company Law,"--(d) Any Public Service dwelling or other structure ¡used habitation, any factory, store, a human or or other industrial or mercantile establishment in which human labor is employed; (e) cemetery Any ground.” burial 2 5, inclusive, place Sections to certain duties on officialsand persons charge mining operations, to facilitate -the accomplish- purpose of ment of the the act. “ provides 6 apply the act. shall Section not to town- [mines in] ships e., townships having of the second class a population [i. of less persons square mile], any than 300 to nor to area wherein.the overlying operation or mining the mine is wild or unseated land, nor where such surface is owned operator owner or underlying coal and is distant more than one hundred fifty any improved property feet from belonging any person.” other “ penalties; 7 sets forth Section 8 reads: The §" courts of com- pleas injunctions shall have mon award to restrain violations 1921, p. act.” P. L. 1198. this COAL CO. v. MAHON.

PENNA> Argument in Error. for Plaintiff coal, all mine out its reserved them, thereby, occasioned damages them liability without waived as a condition expressly been damages had 1921, statute com- 27, August On grant. for the giving right, them the covenant, by this annulled pletely mining. The fact prevent injunction, does conveyance in a deed was contained contract within a contract the constitu- less make it between A is a contract deed protection. tional grantor is a sovereign though even thereto, parties Peck, 137; Ohio Trust Co. 6 Cr. Fletcher' State. Deholt, How. , Coal Com- takes the The statute

II. of law. due process pany in any way land restricted use of. Whenever taken away which hereditament incorporeal or some taking much a it constitutes as thereto, appurtenant was Tiedeman, been appropriated. if land itself had as the Personal.Property, Control of Real and and Federal State Co., Bay v. Green 166; 13 143; Pumpelly Wall. p. § Co., Coal v. Clearview 256 Pa. St. 238. Commonwealth specifically ah act would be unconstitutional If place of the coal to be left sup- one-third required subterfuge the way by it is no saved surface, the port mining, provided does cause of permitting inevitably result unless which will the subsidence support artificial at a cost exceed- provides Company Coal The to remove right coal. theoretical the value ing á disturbing is, practical the surface right Shylock’s than was to'his matter, no more available of flesh. pound Kephart’s dissenting opinion, out Justice pointed

As three distinct Pennsylvania recognized courts right to üse the (1) sur- property: estates ownership subjacent minerals; (3) (2) face; surface, subjacent by supported have the strata. TERM, 1922. in Error. 260 U.

Argument for Plaintiff S. Estate, has been This called Third right, third sur- ownership so distinct from the recognized and face or of the minerals that transferred by one neither the owner of conveyed who was held n Jones, the coal. Penman surface nor 256 Pa. Young Charnetski v. Coal St. 459; Pá. St. Thompson-, Pa. St. 360. III. The statute is not a exercise' of bona fide power.’ swing

With the of the popular pendulum during recent years, the descendants the able lawyers who, forty were, years ago, employed special draft legislation, are employed now in drafting laws to evade the restric- tions state and. federal constitutions. This legisla- tion divides itself generally into two classes. In the first' class fall those laws which are prompted upright and public spirited progressives who, impelled by the need for the immediate adoption the reforms which they advocate, are at impatient the constitutional restrictions on federal state power, and are unwilling to await the enlargement of powers by constitutional amend- ment. of this Examples class of law are the two recent Child Labor Acts.

The second class consists of passed laws at the in- sistence of a determined organized minority, designed to confiscate for their benefit the rights of producers of passed property, legislature in time of political' stress, its anxiety secure the votes controlled of advocates the measure. a law, Such we submit, is the Kohler Act. To protect a complaisant public from such laws one of primary of the functions courts.

When it is asserted that a statute is not what legislature sought appear, it is necessary attacking those constitutionality its to point, in the itself, statute to evidences which, viewed in the light knowledge the court’s of human nature legislative are practice, sufficient to demonstrate the position taken.

PENNA. COAL CO. v. MAHON. ' n Argufnent for Plaintiff in Error. tested, . So the Kohler Act is in reality what this Court Association Loan Topeka, v.' 655,. char- Wall. legislation,” acterized afe “not but “robbery ünder the forms of law”’

It will be observed that the favored expedient of the draughtsmen legislation of either of the' classes to which alluded,'is we have up dress their statute in.-the garb of a statute properly coming within one of the recognized powers the legislative body enacting it.

The Kohler Act a speaks as regulation of the mining' coal, anthracite protect lives safety public. It begins a vivid preamble, from which it would a appear that part- considerable of the population of Pennsylvania is in immediate danger of the loss of life and limb being incontinently projected into unex- pected abysses formed the sudden subsidence of the reason the mining of anthracite coal. In his dissenting- opinion-, however, Mr. Justice Kephart states damage actual to date is confined to a .that City small portion Scranton. Anthracite mining, is conducted in however, nine counties a surface under comprising area 496 square miles. While preamble may possibly regarded as spontaneous expression by legislature of the reasons for the passage of act, we call attention to the fact that an honest and valid no specious preamble law needs to bolster up its con- stitutionality. Is it not an equally plausible explanation preamble framers of this act full knew really police it was not a regulation well and were seeking to coerce courts into holding it to be such label? affixing it a merely by also contains a clause

The act emphasizing it is legislation craving remedial broad construction/, says is, if the is what it it will which, act not help it, but really confiscatory if which, it is measure masquerading regulation,, merely serves as a to emphasize this 398 ,

Argument Plaintiff in Error. 9 The are the hand of Esau. preamble feature. § Angeles, Section 1 is the of Jacob. v. Los voice Dobbins Steele,. 223; 195 U. Lawton v. 152 S. 133. Does the interest of dis- generally, from the and Mrs. tinguished private interest Mr. require necessity be under no Mahon, they shall removing their temporarily from while the dwelling under lot on, their is or. of mak- going themselves expenditures their house and ing necessary repair fill their sidewalk and after the up cracks lawn- using completed, part purchase subsidence money they by buying saved the lot -.without right of-support? .' of 1

Are the drastic prohibitions reasonably necessary § to protect safety the lives and of persons on the Mahon they or are unduly lot on the oppressive Coal Company? on face The act shows its its is not to purpose protect or safety lives of.the public generally but merely augment rights of a favored few.

Genuine streets or public property where the right support in the public, is vested as private well has, property, where such support sold, been have been amply protected. Under the Mine (3 Law of 1891 Purd. 2555), the (Act Davis Act 26, 1913, P. L. July 6626) 6 Purd. maps underground workings, both past and prospective, must be filed State Inspectors City and Mine Borough Bureaus. Any citizen can at determine time whether his underlying support jeopardized; Actual inspection is always available and injunctions easily obtainable. See Scranton Peoples Coal 256 Pa. St. 332;- Pa. St. 63. All this was true before the Kohler Act. only interests not heretofore fully protected both right to damages injunctive- and to relief, were

those individuals who were owners of surface rights merely, subjacent whose support -had been CO. v. MAHON.

PENNA. COAL Argument for Plaintiff Erroi'l waived, adequate considera- presumably withheld or or bodies of quasi-public who, or instead tion, public or condemning buildings their streets school and thus of securing for and the the paying permanent support at. coal, bargain have obtained them a underlying the only restricted title such as acquired who parties owners, of surface The-right Mahons possess. can rise Pennsylvania properly of held, courts no no matter whether grantor, -that of their higher .than corporation op- be a service present holder Pennsyl- Water Co. v. Spring Brook erating pipes, water Co., a district 380; 54 Pa. Ct. school Super. vania Coal building acquired which has erected its on a lot Clear view Coal right support, Commonwealth a ac- .city similarly or which has Pa. St. from one who himself quired its streets dedication Phillips, Scranton v. 57 Pa. support, -had no Super. 633. Ct. and safety that lives from the consideration

Apart ,they permit and those whom persons such classes than no other protection on their need to come it becomes remove until temporarily a notice to proper Act is not the Kohler return, to it is obvious .safe but is the benefit safety public, directed to the class. solely particular in a situation persons be other private

That there merely these makes act for plaintiffs to that of similar individuals, and not for class particular the benefit of generally. the public the benefit of of the Kohler Act which feature demonstrates A further for the protection not enacted general it that was it all apply its terms does to those The life of a safety endangered. similarly or subjected obviously equal jeopardy irrespective owner falls into which he was formed by hole of whether mining anthracite.coal, or, or for that mat- of bituminous 1922.

Argument for Plaintiff in Error. ore, quartz gravel. of iron Kohler how- ter, Act, only ever, subsidences caused applies anthracite coal.

A further evidence is disingenuous act is found If really were life and safety, protect § municipal authorities naturally empowered, would subsidence, case of threatened off rope endangered and to compel area premises. vacate the occupants Instead, they are merely empowered up to shut the miné and to exclude the workmen therefrom. legislative

Further evidence of true purpose is .the found in the provisions another statute, passed on the day same to be its twin measure. conceded This is Act, so-called Fowler discussed in the dissenting opin- ion. There could be no clearer demonstration than .that afforded evidence of intrinsic these two interrelated the sole acts, design of the framers of both was to coerce companies the coal into donating either to the sur- in place face owner sufficient coal to support the surface, damages him the a which, as paying getting means lot, a chéap he’had.expressly bargained away. The means adopted by the Kohler Act are not reason-

ably necessary the accomplishment of its ostensible and are purpose, unduly oppressive upon individuals. If support IY. the anthracite district is neces- public use, it can' sary constitutionally be acquired just only compensation condemnation to th.e affected. v. parties Commonwealth Clearview Coal 328; 256 Pa. Raub St. v. Lackawanna County, 60 Pa. 462; .Chicago, Ct. Super. Milwaukee & St: Paul Ry. Co. Wisconsin, 238 S. 491. v. U.

The Law, Barrier Pillar in Plymouth involved Coal Co. Pennsylvania, v. U. S. no sense operates to transfer, compensation, a permanent property - or easement from one right party The com- another. to each pensation owner for the .burden maintaining MAHON. 401- COAL CO. v. PENNA. in Error. Argument for Plaintiff reciprocal in the benefit from is found on his side pillar v. neighbor. his See Bowman maintained pillar Furthermore, obviously it has a di- Ross, in coal- safety.of working men to the lives and relation rect temporary is but imposed The restriction mines. of the coal very part small it to but incidental; applies well be-left line, may the land where along point at a until operation with the both interfering without' place as the exhausted, whereupon, Court are almost mines enter into owners knows, adjoining agree- doubtless pillar. remove the ment to Hirsh, 256 (Block U. S. Marcus

The Rent Cases Feldman, 256 Holding 170; Levy Brown Co. 242) authority are not Siegel, TI. S. Leasing Co. v. that a one proposition for the be transferred to another without the police under Quite in time emergency. even compensation, of. contrary. was, in these cases it is principle involved sub- that of eminent domain.

mitted, police power not the but return, rates, railroad the fair regulates the State When guarantees to the the Constitution stockholders analysed, just compensation really, required when Instead of proceedings. condemning in condemnation the railroad with a fair rental for lease on perpetual the road at operating and then cost for-the stockholders the government allows the stock- public, of the entire use them to requires it but serv'e the whole operate to holders them, permits discrimination and to net their return to which fair rental the reasonable would only There is thus an essential amounted. difference safety act and a appliance rate regula- between kind police power, is an exercise a prohibi- The one tion. injurious to the something public, without .of tion or property right of another any property transfer The or without other is in its compensation. either 45646° —23-26 TERM, 1922.

Argument for Plaintiff in Error. essence power exercise of the .in- domain, eminent volving only requirement it that be for the public as distinguished benefit from that of a class, privileged but also requirement of just compensation. Such were the Rent The Laws. majority opinion disclaimed the introduction of any new principle constitutional law;- merely it applicable held a recognized rule to the admitted facts of the case. There has never been doubt that a railroad company prohibited can be charging more than rates, reasonable or that it can be precluded from one putting off passenger its trains to make room for willing another who is to pay a higher fare. There was no suggestion in arguments or minority opinion that adopted means were not neces- sary appropriate to remedy the existing evil'or that any other produce method was available to the same result which would be attended with hardship less to the landlords. was there any attempt law Nor to require the to give landlord the use of his nothing, nor any thóüght the tenant should get something for nothing. All was, law did view temporary suspension of-the law of supply demand, suspend to temporarily the landlord’s right of arbitrary extortion, exercise which was the direct and temporary result national crisis. if

Even owners appeared of all the coal no buildings having under contractual right of support, there presently it, intended no remove would be an- on conditions 'which the alogy validity of the Rent based, thought suggestion Laws since there is no was dwellings, theatres, that all the available hotels and ceme- situated over mines. teries are merely Rent Laws were temporary measure. compensation reasonable They provided landlord; virtually a condemnation the sover- they constituted term November and a transfer of. the. eign PENNA. COAL CO. MAHON. Argument for Plaintiff in Error. at a cost, just

this to the ténant reasonable term com- the Constitution. provided by pensation . however, is a Act, permanent provision. Kohler It .The Estate, for all time the Third to transfers —the Mahon use of this coal—in the lot from perpetual individuals, and that Company private Coal to whatever. any compensation below, counsel,

In court discussing Rent justification for that the the Kohler Cases, contended Act Laws, for the Rent insomuch stronger even than a housing facilities, latter merely provide necessity were “ Kohler life protect whereas the Act is itself.” life, specious argument is, first, obvious answer to unnecessary Act its face' to protect the Kohler is on Mahon, Mr. and Mrs. and will effective lives of neglect to take the they precautions end case only which their restricted their protection their own they Second, take. demand that shall there is property State, entitles a even to protect no law which life rule of of one citizen without com- itself, to transfer to another. pensation into force the distinction between the here comes

Just domain, of eminent so clearly power police the writer of the majority decision in a recent stated bar —Jackman v. Rosenbaum in the case at opinion 158, 166. 263 Pa. St. drugs may, under the dangerous

An owner them without selling license, restricted power,' be prohibited even from- a prescription, or without ' This would constitute at all. them selling exercise power. the police conceivable that a State might it is epidemic

In time of essential medicines hoarding prohibit' temporarily sell them require physicians might druggists reasonable, time, the drug- Even at such rates. at Pennsylvania. Argument for 26ÓU. S. dispense gist could-not be his medicines for required a or baker nolhing, bread, though people his were drugs or for of dying starving want food. If of word in the every preamble Kohler Act were no justification

true there would still for the uncompen- sated transfer the beneficial use of the supporting coal from defendant to No plaintiff. emergency justify will the transfer of or a property tangible right from property one just compensation. citizen another without ' Kohler Act is not police regulation. .The It is not valid exercise of eminent because, domain first, it is not exercised benefit of public gener- ally, second, it provides compensation because no whatever the party is property taken.' whose Pace,

Mr. W.'L. whom Mr. H. J. Mahon was .with on the brief, for defendants in error. Hull, George

Mr. Boss Alter, with whom George Mr. E. Attorney General of State Pennsylvania, on was ' for the brief, Pennsylvania, State by special leave amici court, curiae. problem presented legislature involved the in life, interests health and safety o.f persons living the mining communities, the whole- sale destruction of surface property, and securing yield the maximum of coal from the mines; the interest of the surface owner in his and of the surface own safety; dweller in his the interest of the mine owner in his labor and in supply securing the maximum yield of coal from his property. This problem after elaborate and' investigation, abortive attempts, sought was to be Act,” 1921, met the “Fowler P. L. establishing Mine the State Anthracite Cave Commission' and the Act,” “Kohler here involved. id.

As was said Mr. Chief Justice von Moschzisker, “In determining case: whether the act is a reason- PENNA. CO. v. MAHON COAL Pennsylvania. Argument for may the police power, able within we piece legislation ‘ facts or which calí to our aid all those historical external purpose for this and which led to enact- necessary are ” ment.’ A Act involved reading this.appeal Kohler not reimbursement of discloses that it is directed caused either damage surface owners solely to property, but is dirécted persons pro- life. There abe millions probably tection human of. not improvements which are reached dollars in surface to be and which intended reached provi- were ' In of the historical facts it sions of this actr view good faith of this exercise apparent that the question. beyond of a The determination the- legislative existence to welfare which calls for inimical the situation it-may while be scrutinized power, an exercise of -the clearly not to set aside it is unless courts, appear the not well founded. was Lawton determination Arkansas, v. 211 133; U. S. McLean U. Steele, 152 S. v. Board, Coal Co.v. Industrial 255 U. S. Vein 539; Lower Jones, 124; Levy Leasing 263 Pa. St. v. v. Co. Nolan 144; Siegel, 258 safety health and life, the protection

The is pri- anthracite communities in the Its of the act. interference with mary property purpose incidental.' Commonwealth v. merely Alger, 7 rights v..'Hardy, U. S. 392. Holden 84; Cush. underlaid with coal is a kind

Land which .upon conducted reason it or which, by operations respect it, made with to become reason contracts health and life, safety public. to menace grave to conducted operations on coal dangers-incident The met by extensive and been elaborate codes lands have mining. coal constitutionality The laws regulating danger been long has Since settled laws these OCTOBER TERM, 1922. Argument Pennsylvania, from, the public into arising contracts entered with respect lands, however, recognized was not clearly until years^ recent law relating

As the to 'coal lands developed prior Act, permitted Kohler the crea enactment conveyances, of tion, by three appropriate distinct prop or estates in lánds: (1) erty surface, (2) right coal, (3) of support; and these estates persons might be vested different at the same time. Furnace Co. Scranton Coal 244 Pa. St. Graff Jones, St. 416; Penman Pa. Charnetski vi Coal Co., 270 Mining Pa. St. 459. Owners of coal lands fee. right with their might'part surface, reserving to to mine all of right ’any themselves the coal without obligation support surface and liability fqr : any damage resulting from its subsidence. conveyances It is that when probable of surface rights made, were first to remove coal without liability to the surface was reserved merely owners safeguard against injury might an occasional through occur mining; first and that second mining, the removal of pillars, contemplation. then The large .'Iras extent of territory coal, underlaid anthracite large num- ber of upon its people, living surface, very and the obvious life, menace to the safety health and of these people, ‘ operations clothed these lands and these mining awith interest public manifestly which made- them a proper - subject for the police exercise If power. the public welfare be threatened the existence or the certain occurrence a grave public danger the legality of an prevent exercise of the police to remedy can- not be questioned.

The of the police power exercise to regulate contracts land has relating to been sustained where the disaster was of consequence threatened less serious than that dealt with under which is act now consideration. v: MAHON. PENNA. COAL CO. Argument Pénnsylvania< 'Levy Leasing Co. Hirsh, 256 U. S.

Block v. Siegel, IT. S. are ap- that these cases not urged, however,

It will be for--the consideration, under now to the case plicable emergency- acts involved were them the reason necessity and' temporary meet an urgent passed laws Ordi- period. terms tó a brief limited their expressly regulates supply of economic laws narily the operation are not clothed with dwellings houses so that rent subject, the as would contracts such interest the-regulatory tenant- to exercise landlord-and of/the property, The nature of the power/ police are relating it, regulation contracts and the justified in those acts could character contained be extraordinary/circumstances by the existence /only and the courts knew legislature disappear must which But emergency passed.- we do understand when- if a to mean that situation threatened the Court safety might and welfare with dealt by appropriate not be controlled it could- emergency,* continued. The sound rea- emergency if that regulation of those acts validity during son which sustained emergency reasonably expectéd was when the period change an act which- permanent sustain as a continue will menace to the permanent public. is intended meet principles law which Accordingly the same fundamental during period emergency, the rent laws sustained ' the Kohler Act. sustain will considering the application also It should noted the case at falls within a'class cases, rent bar. dissenting opinion recognized proper of cases which Hirsh, Block v. police power.. exercise for thé the. 135, 167. numerous familiar in line cases Kohler Act is involving the exercise of legislation wherein The well restric- established been sustained. power has 1922. . Argument Pennsylvania. for tion .placed right the upon companies service to fix rates contract, power the to forbid the absolutely sale of oleomargarine for the purpose fireventing pos- sible the frauds, power prevent to the sale of unwholesome meats and -other foods, the power regulate prohibit the manufacture of corn and into rye whiskey, power mining forbid of a with- boundary mine to. out leaving barrier thickness to pillar pre- sufficient vent possible injury flooding of an adjoining mine, are familiar illustrations of exercise of the police power enacted dangers to avoid which are neither so grave certain, nor so as those which the'Kohler Act seeks to prevent.

In its to all lands application right where surface support owner, is still vested the surface effect of the Kohler Act is to prevent making any valid whereby contract right support may sepa- rated from the ownership surface toas manner permit subsidence of of the structures or facilities mentioned the. act. It must be remembered that there is a broad field in which the Kohler Act does thus operate. If the circumstances which now exist the anthracite re- gions could have certainly been foreseen and predicted a half legislature century ago, clearly would been within its limit owner’s to con- tract, by the enactment of such a regulatory measure as the Kohler Act. And we are confident that if it were not for already the existence of contracts entered into, constitutionality of this act would not have been ques- tioned. n act, It is an prospective its operation, regulating future conduct anthracite coal. It operates all generally upon mines, including those now being oper-

ated all which may be opened and in the operated operates private future.- It without regard any. con- may have made relating sup- been tracts PENNA. COAL CO. v. MAHON. Argument Pennsylvania.

.393 port. It alike lands operates upon where tne surface owner still has and upon those where support, right of has support separated been from ownership of surface and is held owner coal or by a third person.

But if the act its operation upon lands where the right of support and the ownership the surface have not separated, been be a constitutional exercise of the it is power, equally valid its operation upon lands where these interests are held different persons.

Persons cannot remove their property from the reach of into police power by entering contracts with respect Holding it. Marcus Brown Co. Feldman, 256 U. S. 170.

All within the property held, State is and all contracts are subject entered into to the future exercise of the police power of Every the State. such agreement was entered into full parties with knowledge that whenever the existence of such contracts and the exercise of the license n reserved should threaten the life, health or safety of the people, Commonwealth its sovereign power might interpose and restrict the use of those rights contract such extent might necessary as in the public interest. lands, Owners of coal who saw highways being laid out and improved, railroads and trolley lines built, sewers gas mains laid, light, telephone and power wires stretched overhead, depots, stores, theatres, hotels and dwellings constructed, who, perhaps many laid out the companies did, building lots dedicating alleys streets use, selling the lots purpose having dwellings erected thereon, —such owners were bound to know that whenever the time should come the exercise of the license they when had re- served would threaten the welfare the communities upon surface, police power of the State might be Scranton v. Public their interposed rights. restrict 1922. . Argument Pennsylvania. 260 U. S. Commission, 192; Service 268 Pa. Light, St. Electric Relief Petition, Heat & Power Company’s 69 Pa. Ct. Super 1, In Sebastian, Russell v. and New Orleans Light Gas Co., Co. Light v. Louisiana no exercise- of the police power was involved; latter, recognized this Court the principle which we have stated. The Kohler Act does take of the plain- Plymouth error. Commonwealth tiff-in Coal Pa. St. s. c. 232 TJ. S. 531. The act not-go does far as the Barrier Pillar It Act. contains no provision requiring any mine owner leave coal in If place. natural other than coal in the support pillars be available, ifor artificial support provided, every pound of coal may- be removed from the mines.

Nor it transfer does of from support the owner of the coal to the surface owner. This right, license or estate in the nothing land is more than an immunity from liability damages civil to the surface owner. Under the Act, immunity Kohler this continues.

If the act were designed, plaintiff as the in error con- tends, for the protection property owners, and not as a bona and reasonable fide exercise of the it contain police power, would two features which are conspicuously absent from it: First, it would provide liability that the of the defendant for damages person or- plaintiffs which was re- leased the contract contained in the deed, should be (cid:127) restored, second, it apply would generally to all valuable upon structures the surface.

- Notice to the surface owner to vacate his property is to prevent injury not sufficient to him or to the public.' objection might This same have been made to the reason- of all' of the legislation ableness which has been enacted -for the protection persons employed mines. Com- munities must exist or near the vicinity of the mines or they cannot be operated, and it is matter of concern to CQ.

PENNA. COAL MAHON.

CO CO'CO persons permitted there in dwell if safety. it possible Even were to remove whole cities from their them present locations, upon reconstruct beyond sites the coal measures, may those sites be so topog- distant the mines separated and so that access to from the col- raphy country lieries and the impracticable would be mines would close Moreover, want labor. cities-are built nature where affords for them. Industrial communi- opportunity ties cannot be nor in perched üpon places mountains always prac- inaccessible to roads and Nor is it railroads.- ticable or for the individual dweller possible upon .the surface to find another house in which to Through- live. Pennsylvania out the State elsewhere this and foreign countries there is' an acute houses shortage due to during war, conditions and there prevailing condition, is no doubt which has elsewhere proven rise to give so serious as to re- legislation (already viewed the Rent Cases has been cited), ag- gravated coal mining in the communities reason of the very conditions rise to gave the Kohler Act. Or dwelling be that the will occupants reck- lessly disregard notice and take the chance of given escaping The not avail injury. prevent notice will Common- necessity folly. disastrous results his See wealth Plymouth Coal Í41, 232 Pa. St. only which the practicable way life, health

and the these safety communities may be adequately safeguarded the by enforcement of such Act, are in the Kohler restrictions as contained and for this reason are those restrictions though reasonable e.ven ' they limit extent to some the of others. Mattes,

Mr. V. Philip by court, leave of filed a brief amicus curiae. City on behalf of Scranton, the Mattes, V. Philip Mr. Mr. Frank M. Mr. Walsh and Roberts, Owen J. court, leave of on a brief behalf .filed TERM,

Opinion of the Court. Association, as amici Protective of the Scranton Surface curiae. Munson, by Edgar Mr.

Mr. Rue Munson and C.-La the Gas on Scranton court, leave of filed a brief behalf curiae. Company, & Water as amici opinion Mr. Justice delivered Holmes Court. the defendants brought by in equity

-This is a bill from Company Coal Pennsylvania erW prevent remove as to way in such under their mining of the surface and cause a subsidence supports thé bill out a deed executed of their house. The sets' claim. 1878, plaintiffs under which the Company Coal re- terms express but conveys surface, The deed same, all under serves the remove risk, with the .premises and the takes the grantee mining damages may that arise waives all claim whatever say But the plaintiffs out the coal. taken they Coal were Company’s rights, been the May Pennsylvania, approved away by an Act there the Kohler Act. 1198, commonly known P. L. if Common found that not restrained Court of Pleas damage cause the to prevent would the defendant holding injunction, but denied an brought,, bilUwas if would uncon- applied statute to this case Supreme Court of the State appeal stitutional On had and property the defendant contract agreed States, Constitution United rights protected legitimate held that the statute was'a exercise^ but for the power" directed decree plaintiffs. granted bringing A of error was the case writ Court. forbids thé of anthracite coal in

The statute of, other way among as to cause subsidence 413 v. MAHON. CO. PENNA. COAL Opinion 393 of the Court. habitation, structure used as a human

things, any among certain them land where the exceptions, including (cid:127) underlying surface is owned the owner coal. fifty and is than one hundred and feet distant more belonging any person. to other improved property admitted to applied destroy this case the statute is As. existing contract. previously property can question police power is whether be stretched so far. on if hardly go

Government could to some extent values incident could diminished without b.e in paying every change general long such law. As enjoyed implied some values are under an recognized; yield limitation and must ob- police power. But viously implied limits, limitation must have its gone. contract and due clauses .are process One fact ip determining limits consideration is the extent of the diminution. certain When it reaches a magnitude, if not in most all cases there must be an exercise of and compensation eminent domain the act. sustain .to depends So the question upon particular facts. The weight is greatest given judgment of the legisla- ture, but always open parties interested to con- legislature tend that gone beyond has its constitu- ' tional power. \ This is the a single private case of house. No doubt there is interest this,' even there is every purchase and sale all that happens within commonwealth. Some existing rights may be modified even in such a case. Rideout Knox, 148 Mass. 368. But usually ordinary private affairs the public interest does not warrant much of this kind of interference. A. damage source of to such a house is not a public nuisance if even similar damage.is inflicted on others in.different places The damage is not common or public. Wesson Washburn Iron 103. Allen, The extent of

Opinion of tbe Court. IT.S. to be limited, is the statute public interest shown does to land ordinarily apply the statute when since owned the owner of the coal. Further thé is justified personal a protection safety. it is not as more, Indeed provided very That could be notice. gave bill that the defendant timely of this is foundation under house.' notice of its intent to mine On the taking great. hand the extent of the is It other pur-. recognized Pennsylvania abolish what ports to as a, very in land — valuable an estate what estate — and .is Court below to contract by the be a hitherto declared upon If we were binding plaintiffs. called to deal alone, position with the we think plaintiffs’ should it clear diselose does not a the statute interest suffi a destruction of the cient warrant so extensive defend ' rights. constitutionally ant’s protected in which gen- But the case has been treated on.e shpuld Attorney The of the act be validity eral discussed. Scranton, and thé City repre- General of the State’ the other were allowed to extensive interests sentatives their argument take in the below and submitted part our It to be seems, therefore, duty to contentions here. of our order that opinion, in the statement go'farther at further suits once, known should be in vain. brought not be act cannot opinion our that the be sustained as am It far so as it affects police power,

exercise in places where the streets or cities right of coal under a has been reserved. As said in Pennsyl mine such coal “ the right For to coal con practical purposes, casp, vania Commonwealth Clear to mine right in the sists it.” view Coal 256 Pa. St. 331. What makes the valuable, is that it can be exercised to mine commercially impracticable Make it to mine To profit; effect for very nearly the same constitu coal has certain destroying appropriating it. This tional purposes PENNA. COAL CO. v. MAHON." Opinion of the' Court: assuming we think that we aré warranted that the statute does. Plymouth Pennsylvania,

It is true Coal Co. v. competent legislature it was held require pillar along adjoin coal to left the line of ing property, pillar that, with the on the other side of the safety line, would be barrier sufficientfor the of the em ployees of either mine in other case the should aban fill doned and allowed to with water. But that a re was. quirement safety employees for. into the invited average advantage, reciprocity mine, and secured recognized justification that has been as a of various laws. purchased in a street or laid by paid out eminent domain are If those it has for. any representatives sighted case its have been so short acquire only right sup as port, without .the of authority supplying

we no for see more the latter compensation taking than there was for way place refusing pay of the first for it because very public protection pri wanted it much. The of presupposes Fifth vate Amendment provides use, it is wanted that it but shall not compensation. taken for such use without be A similar assumption upon made in the decisions the Fourteenth Ry. Amendment. Hairston v. Co., Danville & Western seemingly protec 208 U. 605. S. When this absolute qualified by police power, tion is to be found tendency quali natural of human nature extend e private property and more fication mor until at last disappears. accomplished way But that cannot be in this of under the Constitution the United States. general property may rule is, at least that.while regulation

regulated goes extent, to a certain if too far it recognized taking. may as a will It be doubted far how exceptional blowing up stop cases,like the of a house to go conflagration, they go beyond general if rule, —and ^[05] i—* 1922. J., dissenting. BraNdbis, they do stand as much upon whether tradition upon Boston, Bowditch 101 U. In principle. general v. S. 16. plain it is not that a man’s misfortunes or necessities will shifting his justify damages neighbor’s to his shoulders. 489,. Boston R. R. Lynn v. & Mass. Spade in danger forgetting are of that a desire strong public We enough condition is not to warrant improve aby the desire shorter cut than the achieving constitu for the change. As we way paying already tional question degree therefore cannot be said, this is —^and by general propositions. regard But we disposed of the cases decided this Court. going beyond - upon dealing congestion The late decisions laws with the York, New caused Washington war, dealt intended to meet a temporary emérgency laws ..with determined providing compensation to be reasonable They ah board. went to the impartial verge the law Hirsh, Block present fell far short act. v. but Holding Feldman, 135. Marcus Brown Co. 2 Leasing Siegel, Levy Co. 258 U. U. S. 170. S. that the assume, course, statute was We passed upon an exigency existed that the conviction would war- that an exigency and we assume exists that it, would rant of eminent question the-exercise domain. But the warrant changes whom the loss desired upon bottom is at private persons -fall. So far as or communities should the risk of acquiring only, fit to take have .seen the fact cannot see their risk has rights, we giving warrants the to them danger greater a become they bought. than rights

Decree reversed. Brandéis, dissenting. Mb. Justice conditions, under certain prohibits, Kohler Act city a in within the of anthracite .coal limits “ extent as tó cause the manner or to such an ... such PENNA. COAL CO. v. MAHON. dissenting. J., Brandéis, dwelling or other any structure used as subsidence any factory, store, or or other indus- habitation, human in human labor is establishment which mercantile trial and the of the land; right in is place Coal employed.” may He not so use land is not absolute. his to use owner harmless, nuisance; uses, and once a public it to create seriously threaten conditions, changed to owing may, they do, legislature Whenever há&.. welfare. uses without paying compensa- prohibit to power man- to extends alike to the prohibit tion; power Are and the use. purpose we character ner; Legislature Pennsylvania that the declaring in justified mine right anthracite, exércised restricting in has, arbitrarily as to violate the Fourteenth so power this Amendment? upon property imposed the use restriction

Every deprives the owner of the police the exercise enjoyed, is, sense, some theretofore rights property. the State abridgment pro- But restriction imposed compensation. making dangers from health, safety or morals ject here, in ques- not a The restriction is threatened taking. of a noxious use. The- merely prohibition tion remains of its possession restricted so property not or make appropriate The State does owner. it merely prevents owner The State of it. use interferes paramount with. a use making the use prohibited public. ceases Whenever of further change because local or hoxious, —as will conditions, restriction be removed social —the enjoy be free to his again property will the owner (cid:127) heretofore. the use of upon not, can

The restriction lawfully imposed, purpose its unless course, a restriction does But purpose public. protect some public, to be cease because.inpidentally private 45646° —23-27 TERM, 1922.

.418. Brandéis, dissenting. J., 260 U.S. spe valuable thereby gratuitously receive persons may obtain, buildings owners of low Thus, cial'benefits. may. neigh upon height restrictions the through statutory equivalent easement structures, benefits an boring 214 Swasey, Compare v. U. S. 91. Welch and air. light 61; 220 U. Gas S. Lindsley Carbonic v. Natural Co., 254 U. S. 300. Midland Carbon Further- Walls v. a imposed for restriction, though public purpose, a more, unless restriction is an lawful, appropriate’ not the be will keep end. But coal is place to the means preventing means subsidence (cid:127)surely appropriate only means. ordinarily it the available surface; a not become inappropriate use does upon Restriction only means, merely deprives because owner can then be profitably put. which the property use. .The, oleomargarine and' the cases settled that. liquor Kansas, 123 v. 623, 668, 669; U. S. Powell Mugler v. S. 682. Pennsylvania, U. See also Hadacheck v. 127 Pierce Oil Angeles, 394; Corporation City v. Los Nor S. 498. restriction imposed U. Hope, power inappropriate through exercise the same end merely might because effected’ means, domain, of eminent or power through exercise expense. Every restriction upon at otherwise through secured might acquiring buildings height of. of each owner to build above domain by eminent but it is settled that height; State need limiting Hill Compare Laurel Cemetery to that resort not power. Francisco, U. S. Missouri Ry. Co. San Pacific by mining If Omaha, 235 anthracite I necessarily poisonous unloose gasses, would owner doubt the no one. would State- suppose .of his buying coal fields.. And mining, prevent State, likewise, without com- paying why one from so digging deep excavat- prohibit pensation, surface, community as to expose so- near ing CO. v. MAHON. PENNA. COAL dissefiting. Brandéis, J., ease, former, In the as in latter the dangers? carryi like a nuisance. would be on the business ng g in It is that one fact for consideration said determinin of police power the limits the ex whether been c valúe; of in resulting eeded the extent the diminution and that the destroys existing, rights here restriction of , But are relative. If are property and contract. values we place by to consider the value in the re kept st coal , it with the value of riction, compare we should all other is, the land. That with the not of coal parts value alone, but with value whole' property. The of an rights against owner as are not increased by dividing the interests in his property surface and into . in rights subsoil. The sum the can parts not be than the in greater the whole. The an' estate of grandiloquently in as extending owner land described ’ I orco ad coelum. But usque suppose ab no one*would by selling that contend his interest above one hundred he prevent feet the surface could the State from limiting, by power, height structures city. why And should a sale underground rights bar the State’s power? For that aught appears value of coal place by kept the restriction may be negligible compared with value the whole property, or even that compared part of it which is represented by n remaining in place be extracted despite the statute. Ordinarily a police regulation,' gen eral will operation, held void as to a particular although property, proof is that owing offered to condi peculiar tions to it the restriction could not reasonably applied. Pennsylvania, See Powell v. 678, U. S. 681, 684; Murphy California, v. 623, 226 U. S. 629. But if even the particular facts are tó govern, the statute should, my opinion, be upheld this- case. For the defendant has failed to adduce evidence from which 1922. n J., dissenting. 260IT.S.

Brandéis, to restrict its operations was appears of the police power. unreasonable exercise Compare Rock, Reinman Little 177, 180; Pierce Corporation City Hope, Oil belong Where the surface and the coal to the same per son, ordinarily prevent mining self-interest would' to such a,n was, extent as .to cause súbsidence. It doubtless, for legislature, estimating degrees this reason that statutory unnecessary deemed restriction danger, safety under such conditions. the public single of á dwelling house; is a case It is said upon mining the restriction abolishes a valuable by hitherto secured a contract- with the' plaintiffs; estate cannot upon mining justified, and that the-restriction safety, since that personal could be protection pro- n propriety deferring vided notice. a good the spot repeatedly recog- on has been deal tribunals 214 Swasey, U. 91, 106; nized. Welch v. S. Laurel Hill Francisco, San 216 U. Cemetery 358, 365; S. Patsone v. v. 138, 144. May we-say 232 S.U. Pennsylvania, nbtice protection of the adequate public safety afford would and the legislature highest court of the State, where knowledge of local greater conditions, have declared, If public it not? effect, saféty would is imperiled, grant, contract, nor can surely prevail against neither the police power. Fertilizing Co. Hyde v. exercise Atlantic Coast Line Park, 659; U. S. R. R. 97 Co. v. Union Goldsboro, 548; Dry 232 U. S. Goods Co. v. Corporation, Public Service 248 U. S. St. Georgia 372; Louis, Poster Co. v. St. S.U. Advertising Louis the State’s power The rule that appropriate take meas safety of all guard may who ures be within its may bargained away jurisdiction was applied to grade carriers to compel crossings at their own establish contracts to the contrary; Chicago, Bur expense despite R. Quincy Nebraska, & R. Co. v. lington 170 U. S. 57; COAL PENNA. CO. v. 42Í. MAHON. n ' BRAndeis, J., dissenting. and, likewise, supersede, áct, an employérs’ liability, of á charter provision exempting a railroad from .liability employees, for death of since the civil liability deemed a matter of concern, was and not a mere private right. Texas & New Orleans R. R. v. Miller, Co. Boyd Alabama, 221 U. S. 408. Compare v. 645; 94 U. S. Mississippi, Stone v. 101 U. 814; Butchers’ S. Union Co. City Co., 111 v. Douglas Crescent U. S. 746; Kentucky, v. 168 U. Pennsylvania Hospital S. Philadelphia, 245 U. S. can existing 23. Nor contracts between private preclude exercise of the police power: individuals “ rights, One whose such as they are, subject aré to state restriction, cannot remove them from the by making State á contract about them.” Hudson County Water McCarter, Co. v. 357; Knoxville Knoxville, Co. v. Rast 434, 438; Van Water Deman & Lewis 240 U. 342. The S. fact suit brought by a private is, of im- person course, material to protect the community through invoking aid, litigant, private interested citizens is not a novelty in our law. That it be done Pennsylvania case, was decided in this Supreme its Court And. for a State to say how shall public policy its be enforced.

This case involves only mining which causes subsidence of a dwelling house. But the Kohler Act pro- contains in quoted visions addition to that above; thesé, and as to an also, opinion expressed. is These provisions deal mining under cities.to an such sub- cause extent (cid:127) sidence of—

(a) .Any public building or structure customarily, public used as a of place or resort,-assemblage, amusement, including, but not being to, limited churches, schools, hospitals,-theatres, hotels,, and railroad stations. - or (b) Any street, road, public other bridge, passage- public dedicated to use or way, habitually by the used public.

422 dissenting. 260 If. Brandéis, J., S. (cid:127) conduit, (c) Any roadbed, right way, pipe, track,. public in ;wire, or other used the service facility, company or service by any corporation municipal Company as defined the Public Service Law.

A causes subsidence mining which prohibition for a obviously structures and facilities is such enacted clear, likewise, that mere seems, and it public purpose; not in this connection notice .intention to mine .would provi- Yet it is said that these public-safety. secure as an of the act. cannot be sustained exercise of sions where the to mine such coal has been police- power upon The conclusion seems to rest assump- reserved! in order to exercise of the justify tion “ there, average reciprocity must be of advan- .power ” as between the owner of the tage property restricted and- rest of the and that here such community; reciprocity Reciprocity advantage an-important is absent. con- sideration, essential, even be an where the State’s is exercised for the purpose conferring benefits neighborhood, of a as in upon drainage proj- 114 Hoagland, 606; Wurts v. U. S. Irri ects, Fallbrook Bradley, District v. gation 112; upon adjoin ing owners, by party wall provisions, Jackman v. Co., ante, 22. But Rosenbaum where the police power is to confer exercised, upon benefits property owners, thé protect but detriihent and from danger, is, my opinion, no there considering reci room advantage. There was no reciprocal procity advantage prohibited using to the owner his oil tanks his brickyard, S. 498; 394; his livery U. stable, S. His billiard 171; hall, in 237 U. 225 U. S. 623; his in 127 oleomargarine factory, U. S. 678; his brewery, unless it be the S. advantage U. living and in a business civilized doing community. That reciprocal given advantage by the act to the operators.

Case Details

Case Name: Pennsylvania Coal Co. v. Mahon

Court Name: Supreme Court of the United States

Date Published: Dec 11, 1922

Citation: 260 U.S. 393

Docket Number: 549

Court Abbreviation: SCOTUS