Dissenting Opinion by
Mr. Justice Kephart :While there are many cases of property damage due to subsidences, and people located thereabouts have been permitted to suffer because of what was then, and is now declared to be, a mistaken idea as to the power of an individual to sell property without surface support, yet that was the Commonwealth’s blunder, and the Commonwealth should pay for its mistakes from general funds or use for this purpose the money now to be received from taxes on this very coal. No great hardship would follow that action; this, indeed, was the solution of this problem reached by the Constitutional Eevision Commission of 1920; an amendment was proposed which, in express words, permitted the legislature to tax only for the purpose of affording compensation to surface owners. Instead of adopting such remedy, the legislature passed two bills known as the Kohler and Fowler Bills, only the first of which is here for consideration. But, in this case, we cause the party, who has paid, to pay again, and still again when some legislature thinks an additional charge advisable.
*508The majority opinion is a long stride in the development of the law of police power. It broadens its hitherto known scope, makes it applicable to subjects never contemplated by the framers of the Constitution, subordinates all other constitutional guarantees in apparent conflict, and the exercise of this power becomes nothing more than the will of the legislature, without being subject to judicial investigation. This may be a proper conception of the science of government, but I think the Constitution of this State and of the United States would not have been adopted had the participants expected such results. The logical result of the majority opinion will go far to bring about the condition so earnestly longed for by those advocating equalization of property. Constitutional mandates and protections are swept aside and the legislature is supreme, while acting within any pretended scope of this power, so long as the statute, in a preamble, asserts: “this is for the public good.” Police power becomes the open door to govern or rule, for, through it, property may be transferred by the legislature from one person to another without compensation ; the limitation of power to so act was heretofore one of the chief obstacles in the way of those favoring this socialistic principle.
It will thus be seen how vital the litigation is, not only with respect to the particular subject-matter involved, but also as to all other holdings by individuals; it is impressively far-reaching, as it legalizes the division of property plan, a socalistic idea that may yet be the law. It is a short step from coal, thus transferred to other forms of property, as money, lands and buildings. The legislation on which this suit is grounded covers property estimated not in tens but hundreds of millions of dollars, and reaches a commodity absolutely essential to our preservation. The lives of the people are dependent on an adequate supply of coal. If the majority view is to be sustained, and its opinion given its logical place, the law not only adversely affects the pro*509curement of this commodity, but might ultimately deprive many people of its use.
Since Jones v. Wagner, 66 Pa. 429, 435, decided in 1870, followed by Scranton v. Phillips, 94 Pa. 15, 22, and a long line of cases thereafter, this court has recognized the absolute right to acquire, possess and protect property, including the right to make a reasonable contract in relation thereto; the right to create different estates in land, selling the sub-stratum, releasing the right to have the superincumbent estates supported or releasing the right of surface support; the right to mine all the minerals, even though it should result in the surface falling in. This court has said such contracts are non contra bonos mores, not prejudicial to general welfare and public policy, — that they should be recognized, and that all persons competent to contract should have the utmost liberty to do so. Based on these opinions (Adinolfi v. Hazlett, 242 Pa. 25, 27; Waters v. Wolf, 162 Pa. 153, 170; Godcharles v. Wigeman, 113 Pa. 431, 437; Graff Furnace Co. v. Scranton Coal Co., 244 Pa. 592, 596), constantly reaffirmed within the last fifty years, we have not only placed the seal of approval on such contracts, but have written our decisions into them.
In Com. ex rel. v. Clearview Coal Co., 256 Pa. 328, under similar facts, this court refused to enjoin a failure to support a public school building or removal of coal thereunder. We there held that to grant the relief asked “practically takes such coal (as was necessary to support the surface) from defendant and vests it in the school district,” which “would, in fact, be taking of private property for public use without compensation, which the Constitution forbids.” Further, in Penman v. Jones, 256 Pa. 416, recently affirmed in Charnetski v. Coal Mining Co., 270 Pa. 459, we have recognized in this State three distinct estates in mining properties; (1) the surface, (2) the underlying coal, and (3) the so-called third estate, or right to have the surface, supported by the underlying strata. This latter estate may be in the sur*510face owner, giving full right of support, or in the coal owner, giving absolute power to mine without interference, or, in a third condition, not material for our present consideration. In the case at bar, this third estate had vested, by virtue of a valid contract between the owner of the surface and the owner of the coal, in the latter. The Kohler Act takes this property-right from defendant and vests it in plaintiff without compensation. This act does more than merely restrict defendant in the use of property; it transfers an independent property right to plaintiffs, vesting the permanent use and perpetual enjoyment of this right in one who is not required to pay anything for what he so acquires, and which he may sell in selling his surface, with the increased value given it by this legislation added.
We have, by the foregoing decisions, encouraged our citizens, and others throughout the nation, t'o invest millions in these enterprises, until we have here developed the great anthracite industry, peculiar to Pennsylvania, and to but few counties in the State. The legislature stood by during all this time, watched the growth of this enterprise, noted the subsidences, and did nothing. When this great anthracite industry reached its most flourishing state of prosperity, the legislature, for redsons hereinafter stated, passed an act that nullifies the contracts under which a great extent of territory was procured; contracts solemnly made on the faith of the word of the highest' court of this State are swept aside, rights summarily destroyed, and property transferred t'o individuals without compensation.
Plaintiffs’ predecessor in title, or, for the purposes of this case, these plaintiffs, together with the many others who purchased similar surface lots in the anthracite region, paid much less for the property purchased because they were willing to acquire it without the right of support, even though the surface fell in. Still others sold the coal beneath their lots, giving the grantee the full right to mine it without any duty to support the *511surface, securing a better price for their bargain than if they had retained support. The first class could have stipulated for support, and the second could have retained it, and the coal owner would have been required to leave standing in pillars from one-fourth to one-third of the coal; but they did not see fit to do so. It now happens they, and others like them, are dissatisfied and have induced the legislature to pass this act, known as the Kohler Act, which forbids mining this same coal from under this same lot without leaving sufficient surface support, — that is, requiring, for all practical purposes, from one-fourth to one-third of the coal to remain in place. The act gives free of chargeto all these surface owners that which they have already been paid for, — all this, under the police power. But, mark the deception of those who wrote the act. At the same session of the legislature, that body, by another act, permits the same coal owner to take out the same coal, provided he pays a certain percentage of the market tonnage price of the coal to a state coal commission; this to be used to reimburse these same plaintiffs for the same rights already paid for. The majority opinion does not discuss the second act, known as the Fowler Act: May 27, 1921, P. L. 1192.
Under the latter act, this commission collects two per cent of the market price of coal mined during the year. During the years 1920 and 1921 ninety million tons of anthracite coal were mined each year, of a market price of approximately $6 a ton, netting the commission and the surface property holders from ten to eleven million dollars per annum, when the acts are in operation. This defendant, who is now enjoined, can go to that commission, under the Fowler Act, pay two per cent on all his tonnage, and procure the privilege of mining this same coal.
Both acts comprehend all coal companies engaged in the anthracite business; while second class townships are eliminated from the Kohler Act, they are very few, *512the majority being first class; but as the majority of coal operations center in some place covered by the act, practically all hard coal operators are included. The price paid is two per cent on all tonnage, no matter where mined or how long the mining continues; he pays, as long as mining continues, on all tonnage for the privilege of taking out coal under any single habitation. Payment to the commission is not restricted to coal taken from under that lot or building, nor does it matter how deep the coal or how unlikely subsidence would affect the surface. The Kohler, Act clearly impairs the obligation of contract, inhibited by section 10 of article I of the federal Constitution, and section 17 of article I of our Constitution. See New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650, 671, 672; Russell v. Sebastian, 233 U. S. 195, 204.
The police power, in the Kohler Act, is supposedly invoked as a protection to life, property and safety; but under this act, these terms are meaningless. If the legislature had desired to protect life and limb it could have required a notice, given sufficient time in advance, from the operator to the surface owner, when mining was to be done under his or her land, Where the right of surface support had been released or conveyed away. Severe penalties could be attached for failure to give the notice in time if mining was proceeded with. It will thus be seen that, regardless of anything else that may be in the act with respect to these purposes, the end does not justify the means, and it is evident, from both acts, the real purpose of the legislature and the framers of the act was in the interest of property, and property alone, — not to prevent the “terrible menace to human life, public safety and morals.”
Nor can we conceive this a proper exercise of police power. The rent cases, recently decided by the United States Supreme Court, do not support the Kohler Act. If the laws there sustained had been effective for all time to come, and if, instead of providing expressly for fair *513compensation, they had denied all compensation, I feel sure the Supreme Court would have held them unconstitutional, even though emergency laws, passed to meet an overpowering necessity. My view of the rent cases is that the war brought on a crisis, presenting a condition wherein landlords generally, through excessive charges, so disturbed the peace and security of the people that states were compelled to regulate the business by limiting them to a fair return. There was no thought or attempt to take landlords’ property, or their use of it, without just compensation. Such laws were to continue only so long as the crisis brought on by the war existed. This failure to provide compensation, in the Kohler Act, brands it as unconstitutional.
The recent decisions by the United States Supreme Court in the Child Labor cases are more applicable; they indicate the duty of the courts to curb attempts by the legislative branch to assume to itself powers denied it by the Constitution, notwithstanding the effort to cover the true nature of the power exercised by a preamble or other provision ostensibly bringing it under another recognized power.
The legislative declaration that a given use is a public one does not conclusively determine the question; it is for the courts to decide whether or not a statute is a legal exercise of the police power. They are not bound by the form of the act, but will look into the substance of things: Nolan v. Jones, 263 Pa. 124, 128; Dobbins v. Los Angeles, 195 U. S. 223, 236; Mutual Film Corp. v. Industrial Commission of Ohio, 236 U. S. 230; C., M. & St. P. R. R. Co. v. Wisconsin, 238 U. S. 491, 500. Here are plaintiffs asserting, for their own benefit as a public use, an act which, in its application, is purely personal to them. The Barrier Pillar Case (Com. v. Plymouth Coal Co., 232 Pa. 141; 232 U. S. 531) is, to my mind, clearly distinguishable. The requirement that the adjoining mine owners leave pillars along their respective boundaries had an obvious and necessary relation to the *514life and safety of their employees, which could be secured in no more reasonable, way. It did not constitute a permanent deprivation of property or transfer its use in perpetuity to another, the restriction imposed being but temporary or incidental. Furthermore, each owner there received a reciprocal benefit, commensurate with the burden imposed, in the protection of his own mine from water in that adjoining. One party was not, as in the Kohler Act, made to suffer all the burden for the benefit of another. .
We have already observed these acts show on their face their intention was not to protect lives or safety generally, but merely to augment property rights of the few; the public generally, as distinguished from this particular class, is not interested, but they are vitally interested in the continued production of this commodity, which is here unduly interfered with, to their prejudice. So we have, by the majority opinion, the police power overriding the constitutional provision as to (a) the obligation of contracts, and (b) a taking of property without compensation. The attempt of .the legislature, in passing these two acts, — the one an effort to exercise presumptively a valid police power, and the other sweeping aside whatever good intent was in the first, — was a mere subterfuge to create the Kohler law a valid act under this power.
We have held defendant’s right to the subjacent mineral was as absolute as it was possible to make it, such strata being expressly relieved from the duty of supporting the surface; and we decided negligent mining would not impose liability where the right of surface support was released: Jordan v. Clearview Coal Co., 270 Pa. 216; Charnetski v. Miners Mills Coal Co., 270 Pa. 459, 463; Atherton v. Clearview Coal Co., 267 Pa. 425, 434. The legislature may have been neglectful in not sooner declaring it against public policy for surface owners to release their right of support and in prohibit*515ing such contracts for the future, but it had no power to nullify them for the past.
We now hold negligent mining constitutes a good cause of action, that our declaration “non contra bonos mores and for the general welfare” is all wrong, as is also our judicial judgment as to what constitutes general welfare, applied to an act of assembly. Our judgment yields to the legislature’s definition of general welfare, and our right to judicially determine this, as applied to a police power act, falls. But, more important, the right of surface support is reestablished where it has been released, and this affects bituminous coal fields as well, for how can we have running parallel a legislature-declared general welfare as to anthracite fields and a court-declared general welfare as to bituminous fields treating the identical subject-matter, — subsidence,—in opposition to each other, where the two rights and the danger to life and safety incident to them, are precisely alike?
Moreover, this is class legislation, — a subsidence is a subsidence, whatever the underlying strata may happen to be: whether it is bituminous coal, anthracite coal, fire clay or any other mineral; this act affects only anthracite coal.
It is said that there are a million people living in this region. That may be true, but the majority opinion does not mean to assert that anything near that number, or, at the most, more than a very small fraction, is affected by these subsidences, which have been confined practically to a small part of Scranton; they ought to be taken care of, notwithstanding the legislature permitted conditions to exist whereby the surface could be let down and properties destroyed. But these owners knew what they were paying for, — put up their buildings notwithstanding this knowledge, — taking chances. But if the first declaration as to the right to release surface support was wrong, the State should pay; the people are responsible for this condition.
*516Our decisions covering public service laws do not apply, for it was distinctly stated that, where a business was recognized as lawful and not against public welfare, and the statute controls only its method and administration, such control is not affected so as to work confiscation or a destruction of property; in all cases of regulation, the courts inquire whether property has been taken without due process of law, or contract rights violated. So we have held that contracts are not interfered with or impaired by such laws, where compensation is reduced. See Suburban Water Co. v. Oakmont Boro., 268 Pa. 243, 253.
But we have never before upheld a statute that confiscates property; nor does the case of Nolan v. Jones, supra, reach the point involved in this case. I do not quite comprehend what is meant by the discussion that the act does not “in any true, legal sense, contemplate the taking of private property for public use, or transferring it to another,” unless it is meant that actual seizure is necessary, for, under this act, it is just as certain as anything can be that one-fourth to one-third of the coal must remain in place for surface support, for the coal owner, under the Kohler Act, will scarcely provide artificial support, by concrete or stone pillars, or otherwise, at a cost greatly exceeding the value of the coal. Of course, later, the Fowler Act permits its removal as indicated.
The fact the bill does not suggest any such purpose has nothing to do with the intent of the legislature, here enforced by injunction; nor does reference to the different acts regulating the mining of anthracite and bituminous coal. Different rules and regulations must be adopted for different mines, according to working conditions.
Decisions cited in relation to the liquor, oleomargerine or other businesses are distinguishable in that they are real exercise of police power, and where relief was not obtainable in any other way. The mining of coal is an *517important factor in onr lives. Coal must be procured that tbe people may live; it is only recently that this court has given expression to such thought: Pioneer Coal Co. v. Cherrytree R. R. Co., 272 Pa. 43, 52. The effect of these laws is to further embarrass the production of coal and reduce the output, as well as confiscate a well-defined property-right in the land.
To summarize, the Kohler Act, as it appears to me, is a confiscatory enactment, under the guise of a police provision, for the following reasons:
1. It is entirely unnecessary, in order to protect life, to forbid mining of coal. A notice such as I have suggested would fully protect all except those who, being of full age and sound mind, voluntarily go where it is not safe for them to be.
2. The provisions of the Fowler Act clearly show that this is merely part of a scheme to force the coal companies to support the surface of owners who have either for value released the right of support or have purchased their lots for a less price by reason of not acquiring this right with their purchase.
3. I can conceive of no reason, — if it be necessary for the public good the surface be supported, — why, as in the case of the Rent Laws, fair compensation should not be provided, save only the desire of the beneficiaries to get something for nothing.
4. If this law were in good faith intended to protect lives and safety from cave-ins caused by underground mining, it would protect from all such subsidences. The paper-books now before us show cases in the appellate courts of this State covering more litigation over subsidences due to bituminous mining than to anthracite.
5. Prior Pennsylvania legislation provided adequate protection to the property of all surface owners except such as had released their protection. It was for the sole benefit of this class that the Kohler Act was passed.
6. The Kohler Act, in effect, confiscates defendant’s coal for plaintiff’s benefit. Defendant’s right to mine *518its coal on condition that it accept the Fowler Act and pay two per cent on the value of its total tonnage, or its right to mine on spending on artificial support many times the value of the coal, are rights so obviously illusory as merely to emphasize the real purpose of the act, — to require the coal to be left for all time for the use of the surface owner.
The entire purpose and design of this legislation is clearly, to my mind, to force the coal companies, who have already paid for this property-right once, to pay for it again, and to give to the surface owners a valuable right for which they have already been paid by the parties from whom they now receive it for nothing.
I would affirm the decree of the court below.