Pennsylvania Coal Company v. Mahon/Dissent Brandeis
Mr. Justice BRANDEIS dissenting.

The Kohler Act prohibits, under certain conditions, the mining of anthracite coal within the limits of a city in such a manner or to such an extent 'as to cause the * * * subsidence of * * * any dwelling or other structure used as a human habitation, or any factory, store, or other industrial or mercantile establishment in which human labor is employed.' Act Pa. May 27, 1921, § 1 (P. L. 1198). Coal in place is land, and the right of the owner to use his land is not absolute. He may not so use it as to create a public nuisance, and uses, once harmless, may, owing to changed conditions, seriously threaten the public welfare. Whenever they do, the Legislature has power to prohibit such uses without paying compensation; and the power to prohibit extends alike to the manner, the character and the purpose of the use. Are we justified in declaring that the Legislature of Pennsylvania has, in restricting the right to mine anthracite, exercised this power so arbitrarily as to violate the Fourteenth Amendment?

Every restriction upon the use of property imposed in the exercise of the police power deprives the owner of some right theretofore enjoyed, and is, in that sense, an abridgment by the state of rights in property without making compensation. But restriction imposed to protect the public health, safety or morals from dangers threatended is not a taking. The restriction here in question is merely the prohibition of a noxious use. The property so restricted remains in the possession of its owner. The state does not appropriate it or make any use of it. The state merely prevents the owner from making a use which interferes with paramount rights of the public. Whenever the use prohibited ceases to be noxious-as it may because of further change in local or social conditions-the restriction will have to be removed and the owner will again be free to enjoy his property as heretofore.

The restriction upon the use of this property cannot, of course, be lawfully imposed, unless its purpose is to protect the public. But the purpose of a restriction does not cease to be public, because incidentally some private persons may thereby receive gratuitously valuable special benefits. Thus, owners of low buildings may obtain, through statutory restrictions upon the height of neighboring structures, benefits equivalent to an easement of light and air. Welch v. Swasey, 214 U.S. 91, 29 Sup. Ct. 567, 53 L. Ed. 923. Compare Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 31 Sup. Ct. 337, 55 L. Ed. 369, Ann. Cas. 1912C, 160; Walls v. Midland Carbon Co., 254 U.S. 300, 41 Sup. Ct. 118, 65 L. Ed. 276. Furthermore, a restriction, though imposed for a public purpose, will not be lawful, unless the restriction is an appropriate means to the public end. But to keep coal in place is surely an appropriate means of preventing subsidence of the surface; and ordinarily it is the only available means. Restriction upon use does not become inappropriate as a means, merely because it deprives the owner of the only use to which the property can then be profitably put. The liquor and the oleomargine cases settled that. Mugler v. Kansas, 123 U.S. 623, 668, 669, 8 Sup. Ct. 273, 31 L. Ed. 205; Powell v. Pennsylvania, 127 U.S. 678, 682, 8 Sup. Ct. 992, 1257, 32 L. Ed. 253. See also Hadacheck v. Los Angeles, 239 U.S. 394, 36 Sup. Ct. 143, 60 L. Ed. 348, Ann. Cas. 1917B, 927; Pierce Oil Corporation v. City of Hope, 248 U.S. 498, 39 Sup. Ct. 172, 63 L. Ed. 381. Nor is a restriction imposed through exercise of the police power inappropriate as a means, merely because the same end might be effected through exercise of the power of eminent domain, or otherwise at public expense. Every restriction upon the height of buildings might be secured through acquiring by eminent domain the right of each owner to build above the limiting height; but it is settled that the state need not resort to that power. Compare Laurel Hill Cemetery v. San Francisco, 216 U.S. 358, 30 Sup. Ct. 301, 54 L. Ed. 515; Missouri Pacific Railway Co. v. Omaha, 235 U.S. 121, 35 Sup. Ct. 82, 59 L. Ed. 157. If by mining anthracite coal the owner would necessarily unloose poisonous gases, I suppose no one would doubt the power of the state to prevent the mining, without buying his coal fields. And why may not the state, likewise, without paying compensation, prohibit one from digging so deep or excavating so near the surface, as to expose the community to like dangers? In the latter case, as in the former, carrying on the business would be a public nuisance.

It is said that one fact for consideration in determining whether the limits of the police power have been exceeded is the extent of the resulting diminution in value, and that here the restriction destroys existing rights of property and contract. But values are relative. If we are to consider the value of the coal kept in place by the restriction, we should compare it with the value of all other parts of the land. That is, with the value not of the coal alone, but with the value of the whole property. The rights of an owner as against the public are not increased by dividing the interests in his property into surface and subsoil. The sum of the rights in the parts can not be greater than the rights in the whole. The estate of an owner in land is grandiloquently described as extending ab orco usque ad coelum. But I suppose no one would contend that by selling his interest above 100 feet from the surface he could prevent the state from limiting, by the police power, the height of structures in a city. And why should a sale of underground rights bar the state's power? For aught that appears the value of the coal kept in place by the restriction may be negligible as compared with the value of the whole property, or even as compared with that part of it which is represented by the coal remaining in place and which may be extracted despite the statute. Ordinarily a police regulation, general in operation, will not be held void as to a particular property, although proof is offered that owing to conditions peculiar to it the restriction could not reasonably be applied. See Powell v. Pennsylvania, 127 U.S. 678, 681, 684, 8 Sup. Ct. 992, 1257, 32 L. Ed. 253; Murphy v. California, 225 U.S. 623, 629, 32 Sup. Ct. 697, 56 L. Ed. 1229, 41 L. R. A. (N. S.) 153. But even if the particular facts are to govern, the statute should, in my opinion be upheld in this case. For the defendant has failed to adduce any evidence from which it appears that to restrict its mining operations was an unreasonable exercise of the police power. Compare Reinman v. Little Rock, 237 U.S. 171, 177, 180, 35 Sup. Ct. 511, 59 L. Ed. 900; Pierce Oil Corporation v. City of Hope, 248 U.S. 498, 500, 39 Sup. Ct. 172, 63 L. Ed. 381. Where the surface and the coal belong to the same person, self-interest would ordinarily prevent mining to such an extent as to cause a subsidence. It was, doubtless, for this reason that the Legislature, estimating the degrees of danger, deemed statutory restriction unnecessary for the public safety under such conditions.

It is said that this is a case of a single dwelling house, that the restriction upon mining abolishes a valuable estate hitherto secured by a contract with the plaintiffs, and that the restriction upon mining cannot be justified as a protection of personal safety, since that could be provided for by notice. The propriety of deferring a good deal to tribunals on the spot has been repeatedly recognized. Welch v. Swasey, 214 U.S. 91, 106, 29 Sup. Ct. 567, 53 L. Ed. 923; Laurel Hill Cemetery v. San Francisco, 216 U.S. 358, 365, 30 Sup. Ct. 301, 54 L. Ed. 515; Patsone v. Pennsylvania, 232 U.S. 138, 144, 34 Sup. Ct. 281, 58 L. Ed. 539. May we say that notice would afford adequate protection of the public safety where the Legislature and the highest court of the state, with greater knowledge of local conditions, have declared, in effect, that it would not? If the public safety is imperiled, surely neither grant, nor contract, can prevail against the exercise of the police power. Fertilizing Co. v. Hyde Park, 97 U.S. 659, 24 L. Ed. 1036; Atlantic Coast Line R. R. Co. v. North Carolina, 232 U.S. 548, 34 Sup. Ct. 364, 58 L. Ed. 721; Union Dry Goods Co. v. Georgia Public Service Corporation, 248 U.S. 372, 39 Sup. Ct. 117, 63 L. Ed. 309, 9 A. L. R. 1420; St. Louis Poster Advertising Co. v. St. Louis, 249 U.S. 269, 39 Sup. Ct. 274, 63 L. Ed. 599. The rule that the state's power to take appropriate measures to guard the safety of all who may be within its jurisdiction may not be bargained away was applied to compel carriers to establish grade crossings at their own expense, despite contracts to the contrary (Chicago, Burlington & Quincy R. R. Co. v. Nebraska, 170 U.S. 57, 18 Sup. Ct. 513, 42 L. Ed. 948); and, likewise, to supersede, by an Employers' Liability Act, the provision of a charter exempting a railroad from liability for death of employees, since the civil liability was deemed a matter of public concern, and not a mere private right. Texas & New Orleans R. R. Co. v. Miller, 221 U.S. 408, 31 Sup. Ct. 534, 55 L. Ed. 789. Compare Boyd v. Alabama, 94 U.S. 645, 24 L. Ed. 302; Stone v. Mississippi, 101 U.S. 814, 25 L. Ed. 1079; Butchers' Union Co. v. Crescent City Co., 111 U.S. 746, 4 Sup. Ct. 652, 28 L. Ed. 585; Douglas v. Kentucky, 168 U.S. 488, 18 Sup. Ct. 199, 42 L. Ed. 553; Pennsylvania Hospital v. Philadelphia, 245 U.S. 20, 23, 38 Sup. Ct. 35, 62 L. Ed. 124. Nor can existing contracts between private individuals preclude exercise of the police power. 'One whose rights, such as they are, are subject to state restriction cannot remove them from the power of the state by making a contract about them.' Hudson Water Co. v. McCarter, 209 U.S. 349, 357, 28 Sup. Ct. 529, 52 L. Ed. 828, 14 Ann. Cas. 560; Knoxville Water Co. v. Knoxville, 189 U.S. 434, 438, 23 Sup. Ct. 531, 47 L. Ed. 887; Rast v. Van Deman & Lewis Co., 240 U.S. 342, 36 Sup. Ct. 370, 60 L. Ed. 679, L. R. A. 1917A, 421, Ann. Cas. 1917B, 455. The fact that this suit is brought by a private person is, of course, immaterial. To protect the community through invoking the aid, as litigant, of interested private citizens is not a novelty in our law. That it may be done in Pennsylvania was decided by its Supreme Court in this case. And it is for a state to say how its public policy shall be enforced.

This case involves only mining which causes subsidence of a dwelling house. But the Kohler Act contains provisions in addition to that quoted above; and as to these, also, an opinion is expressed. These provisions deal with mining under cities to such an extent as to cause subsidence of—

(a) Any public building or any structure customarily used by      the public as a place of resort, assemblage, or amusement,      including, but not limited to, churches, schools, hospitals,      theaters, hotels, and railroad stations.

(b) Any street, road, bridge, or other public passageway,      dedicated to public use or habitually used by the public.

(c) Any track, roadbed, right of way, pipe, conduit,   wire, or other facility, used in the service of the   public by any municipal corporation or public service   company as defined by the Public Service Law, section 1.

A prohibition of mining which causes subsidence of such structures and facilities is obviously enacted for a public purpose; and it seems, likewise, clear that mere notice of intention to mine would not in this connection secure the public safety. Yet it is said that these provisions of the act cannot be sustained as an exercise of the police power where the right to mine such coal has been reserved. The conclusion seems to rest upon the assumption that in order to justify such exercise of the police power there must be 'an average reciprocity of advantage' as between the owner of the property restricted and the rest of the community; and that here such reciprocity is absent. Reciprocity of advantage is an important consideration, and may even be an essential, where the state's power is exercised for the purpose of conferring benefits upon the property of a neighborhood, as in drainage projects (Wurts v. Hoagland, 114 U.S. 606, 5 Sup. Ct. 1086, 29 L. Ed. 229; Fallbrook Irrigation District v. Bradley, 164 U.S. 112, 17 Sup. Ct. 56, 41 L. Ed. 369); or upon adjoining owners, as by party wall provisions (Jackman v. Rosenbaum Co., 260 U.S. 22, 43 Sup. Ct. 9, 67 L. Ed. -, decided October 23, 1922). But where the police power is exercised, not to confer benefits upon property owners but to protect the public from detriment and danger, there is in my opinion, no room for considering reciprocity of advantage. There was no reciprocal advantage to the owner prohibited from using his oil tanks in 248 U.S. 498, 39 Sup. Ct. 172, 63 L. Ed. 381; his brickyard, in 239 U.S. 394, 36 Sup. Ct. 143, 60 L. Ed. 348, Ann. Cas, 1917B, 927; his livery stable, in 237 U.S. 171, 35 Sup. Ct. 511, 59 L. Ed. 900; his billiard hall, in 225 U.S. 623, 32 Sup. Ct. 697, 56 L. Ed. 1229, 41 L. R. A. (N. S.) 153; his oleomargarine factory, in 127 U.S. 678, 8 Sup. Ct. 992, 1257, 32 L. Ed. 253; his brewery, in 123 U.S. 623, 8 Sup. Ct. 273, 31 L. Ed. 205; unless it be the advantage of living and doing business in a civilized community. That reciprocal advantage is given by the act to the coal operators. 

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