58 Pa. Super. 312 | Pa. Super. Ct. | 1914
Opinion by
The Poland Coal Company is a corporation organized under the laws of the commonwealth of Pennsylvania for the purpose of the mining of coal and the manufacture of coke, the excavation of minerals incidentally developed and the transportation and sale of any or all of the same in crude or manufactured form. Having acquired a body of coal land containing about 1,100 acres, in a part of which its title was limited to one or more seams of coal, it commenced the development of its property. As a preliminary step leading to the efficient organization of its project it made application to the court- of quarter sessions of Greene county for the appointment of viewers to assess the ■ damages which might be sustained by the appellant by reason of the appropriation by the company of a portion of the appellant’s farm which the company desired to occupy and use for openings, for the necessary right of way, for ingress and egress or traveling ways to and from said openings over, along and through lands of the appellant, an airway for ventilating purposes, pillars composed
Is there anything in the language of the title to this act which would reasonably suggest that there was conferred by it authority to one person to appropriate the land of another for the use of a tramway or to take and dispose of coal belonging to another owner or to permanently occupy a portion of land of another for mining purposes? The provision for the condemnation and appropriation of land for transportation of coal or other products of the mine can only be regarded as an aid to the coal company to operate its property more economically than would be the case if it bought a location or operated within its own mines. The testimony taken in the case shows that this was the object of the coal company in instituting this proceeding. About one-third of its property as shown by the testimony of its manager could be drained and worked profitably from the location on the appellant’s land
It is not questioned that the Poland Coal Company is a private business corporation. It was organized and is managed for private gain exclusively. It has no relation to the public different from any other industrial corporation or any individual who is engaged in a productive enterprise beneficial in a sense to the public but whose object is profit to the owner. It is elementary law that the legislature has not the power to transfer the property of one private owner to another private owner without his consent. Private property can only be taken under the right of eminent domain when the use to which it is devoted is a public one. In determining whether it is a public use or not the inquiry is, by whom is it to be taken and what is the purpose? Palairet’s App., 67 Pa. 479; Waddell’s App., 84 Pa. 90; Phila. St. Ry.’s App., 203 Pa. 354; Phila. Clay Co. v. York Clay Co., 241 Pa. 305. In the latter case Mr. Justice Elkin discusses the subject in a convincing opinion in relation to the right of a corporation to lay a tramway on a private road, in which it was held that the clay company was not a common carrier and did not possess the charter powers of a public service corporation and could not in any legal sense be regarded as being engaged in any kind of business in which service
It is contended, however, that it may be supported under the police power of the state, of which power it was said by Mr. Justice Field in Bartemeyer v. Iowa, 18 Wall. 138, that it “extends to all regulations affecting the health, good order, morals, peace and safety of society.” In Beer Co. v. Mass., 97 U. S. 125, it was said that however difficult it may be to render a satisfactory definition of the police power there seems to be no doubt that it does extend to the protection of the lives, health and safety of the citizens and the preservation of good order and the public morals. 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; but they must have- some relation to these objects. Personal rights and private property cannot be arbitrarily invaded in violation of constitutional prohibition or fundamental principles under the guise of police regulations. Where the legislature passes an act which permits the destruction or the taking away of the property of a citizen ostensibly for the public health or comfort the courts may consider the act and determine whether it actually relates to and is appropriate to accomplish this public object. The supreme law must control in such a case: Powell v. Com., 114 Pa. 265; Jacob’s Case, 98 N. Y. 98; Com. v. Bearse, 132 Mass. 542; People v. Salem, 20 Mich. 452; Palairet’s App., supra.
In Phila. v. Scott, 81 Pa. 80, consideration was given to the difference between the power of eminent domain and the police power, the latter, as stated by Mr. Justice Agnew, being generally based on disaster, fault or inevitable necessity whereas the former is conditioned on compensation to the owner and for the most part is founded not on calamity or fault but on public utility. Having regard to these principles in what sense can it be
The various statutes relating to private roads do not aid the contention of the appellee. Such roads are part of the system of public roads of the state and essential to the enjoyment of those which are strictly public and are open to those who have occasion to use them. They exist under the general power of the commonwealth to establish roads and to condemn land for that purpose: Palairet’s Appeal, supra. No one but the coal company would have any right in or lawful use of the tramway and it would be devoted wholly to the private business of the company. It could be operated or abandoned at the company’s pleasure. The appropriation lacks the support of the due process of law which the constitution requires and is in effect the condemnation of private property for private use. A careful consideration of the case brings us to the conclusion that the subjects of the first and fourth sections of the twelfth article of the statute are not embraced in the title and are contrary to section ten of article one of the constitution of the commonwealth. The other provisions of the statute are not affected by the conclusion thus reached.
The order of the court of quarter sessions is reversed and the proceeding set aside at the cost of the appellee.