Jamieson v. Indiana Natural Gas & Oil Co.

Dissenting Opinion.

Olds, J.

I can not cfincur in the main opinion in this case. There are many propositions stated in the main opinion, and ably discussed and supported by copious quotations and citations of authorities, with some of which I agree, but do not regard them as decisive of the questions involved in this case.

As it seems to me, the question as to the validity of the complaint depends upon the validity and construction of the act of the Legislature of Indiana passed by the General Assembly March 4th, 1891, which is as follows : ,

*585“An act to regulate the mode of procuring, transporting and using natural gas, and declaring an emergency.
“ Section 1. Be it enacted by the General Assembly of the State of Indiana, That any person or persons, firm, company or corporation engaged in drilling for, piping, transporting, using or selling natural gas may transport or conduct the same through sound, wrought or cast iron casings and pipes tested to at least four hundred pounds pressure to the square inch : Provided, Such gas shall not be transported through pipes at a pressure exceeding three hundred pounds per square inch, nor otherwise than by the natural pressure of the gas flowing from the wells.
See. 2. It is hereby declared to be unlawful for any person or persons, firm, company or corporation to use any device for pumping or any other artificial process or appliance for the purpose, or that shall have the effect of increasing the natural flow of natural gas from any well, or of increasing or maintaining the flow of natural gas through the pipes used for conveying and transporting the same.
Sec. 3. Any person or persons, firm, company or corporation violating any of the provisions of this act shall be fined in any sum not less than one thousand dollars nor more than ten thousand dollars, and may be enjoined from conveying and transporting natural gas through pipes otherwise than in this act provided: Provided, That nothing in this section shall operate to prevent the use of nitro-glycerine or other explosives for shooting any well or wells from which the gas is procured.
“ Sec. 4. It is hereby declared that an emergency exists for the immediate taking effect of this act, and the same shall take effect from and after its passage.”

In my opinion the decision is erroneous. This law does not seem to me to have been framed with an intention or with an effort on the part of the General Assembly to exercise the legitimate police power vested in the State. It does not attempt to regulate the transportation of natural gas, but *586its sole purpose is to prohibit the transportation, sale and use of gas beyond the distance which the natural pressure from the well will transport it. Strictly construed, according to the letter, it does not permit its transportation through pipes at the natural well pressure, if such pressure exceed three hundred pounds to the square inch, nor does- it permit any artificial method or device to increase the natural well pressure to that standard if the well pressure should be below the amount of pressure designated.

The statute, upon its face, admits that the transportation of gas at a pressure of three hundred pounds to the square inch through sound wrought or cast iron casings and pipes tested to at least four hundred pounds to the square inch is safe, yet it prohibits the increase of the pressure of a well of less pressure than that degree, and prohibits any transportation by artificial methods, even to this extent, though admitting it is safe to do so.

In the case of State, ex rel., v. Indiana, etc., Co., 120 Ind. 575, this court said : “ In order to give any force to this contention it is necessary to determine, at the outset, whether natural gas can be considered an article of commerce. With this preliminary question we have but little difficulty. Natural gas is as much an article of commerce as iron ore, coal, petroleum, or any other of the like products of the earth. It is a commodity which may be transported, and it is an article which may be bought and sold in the markets of the country.” In support of this proposition the following authorities were cited. Citizens’, etc., Co. v. Town of Elwood, 114 Ind. 332; Carother’s Appeal, 118 Pa. St. 468; Columbia Conduit Co. v. Commonwealth, 90 Pa. St. 307; West Virginia, etc., Co. v. Volcanic Co., 5 W. Va. 382; The Daniel Ball, 10 Wall. 557 ; Kidd v. Pearson, 128 U. S. 1.

This court further said : “■ The gas in the earth may not be a commercial commodity, but, when brought to the surface and placed in pipes for transportation, it must assume that character as completely as coal on the cars or petro*587leum in the tanks.” The doctrine contained in the quotations which I have made from State, ex rel., v. Indiana, etc., Co., supra, is well suppported by authority, and with it I most fully concur.

That gas and petroleum are to some extent inflammable, explosive and dangerous, I am free to admit, and that courts take judicial knowledge of the fact. But coal is in common use for fuel; petroleum in common use for lighting purposes, and to some extent for fuel; natural gas, in the communities where it is mined and has been carried through pipes, is in common use as fuel and for heating purposes, and to some extent for lighting purposes; and but few, if any, more accidents or deaths occur from its use than do from the use of coal or petroleum. We read of accidents and deaths occurring in various ways from the use of coal and petroleum as well as natural gas. As well might the Legislatures of the various States, within the borders of which there are oil fields, pass a law prohibiting the pumping of the oil from wells and the transportation of the same to any greater distance than its natural flow from the wells will carry it, while admitting that it. can be safely transported in casks and tanks, as to say that the Legislature, while admitting that natural gas may be transported with safety in pipes at a pressure to the extent of three-fourths of the tested pressure of the pipes, may prohibit its transportation by artificial methods or devices in the same safe manner by a pressure not exceeding three-fourths of the tested pressure of the pipes through which it is transported ; either of which propositions seem to me to be a prohibition, an interfei’ence with commerce against the xfights of citizens in the free disposition of their property, and unfounded ixx law.

It is not necessary in this case to deny that the Legislature has a right to exei’cise police power over the transportation of natural gas, for, admitting that it has, and can exercise it to a reasonable extent, so as to prevent its transportation in a careless, x’eckless and unsafe manner, unnecessarily endan*588gering its citizens, still I do affirm that the Legislature can only exercise this power to a reasonable extent, so as to secure its transportation in a safe manner, as not to unnecessarily endanger the citizens of the State, and that it can not under the color of exercising a police power absolutely prohibit its transportation and sale in a safe manner to suitable markets, and the latter is what is attempted to be done by this statute.

This statute, conceding that natural gas can be transported in the manner stated, prohibits its transportation beyond the distance it will naturally flow from the wells, which it is admitted in argument is not to exceed sixty or seventy miles at farthest.

As said in the. case of State, ex rel., v. Indiana, etc., Co., supra, natural gas is an article of commerce, and the owner of it may sell it for use within the distance which it may be transported by-the natural flow of the well, or beyond such distance, and it may be transported in a proper and safe manner beyond that distance by artificial methods, and this can not be prohibited by legislative enactment.

In the case of Matter of Application of Jacobs, 98 N. Y. 98 (110), after citing and quoting from numerous authorities, in speaking of the police power of the State, the court says : “ These citations are sufficient to show that the police power is not without limitations, and that in its exercise the Legislature must respect the great fundamental rights guaranteed by the Constitution. If this were otherwise, the power of the Legislature would be practically without limitation. In the assumed exercise of the police power in the interest of the health, the welfare or the safety of the public, every right of the citizen might be invaded and every constitutional barrier swept away. Generally it is for the Legislature to determine what laws and regulations are needed to protect the public health and secure the public comfort and safety, and while its measures are calculated, intended, convenient and appropriate to accomplish these ends, the exercise of its dis*589cretion is not subject to review by the courts. But they must have some relation to these ends. Under the mere guise of police regulations, personal rights and private property can not be arbitrarily invaded, and the determination of the Legislature is not final or conclusive. If it passes an act ostensibly for the public health, and thereby destroys or takes away the property of a citizen, or interferes with his personal liberty, then it is for the courts to scrutinize the act and see whether it really relates to and is convenient and appropriate to promote the public health. It matters not that the Legislature may in the title to the act, or in its body, declare that it is intended for the improvement of the public health. Such a declaration does not conclude the courts, and they must yet determine the fact declared and enforce the supreme law.”

In the case of Mugler v. Kansas, 123 U. S. 623, the eminent jurist, Justice Hablan, speaking for the highest court of the world, said : If, therefore, a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.” See Minnesota v. Barber, 136 U. S. 313.

It will not be controverted that the owner of laud is the owner of gas mined upon his own land; that it is his property.

The right of private property includes the right to dispose of all one's legal acquisitions without illegal restraint or diminution. These principles are almost as old as the law itself.

The Constitution of the United States provides that No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.”

The Constitution of Indiana, in the bill of rights, declares *590that “all men are endowed with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness.” It is also declared that “ No man’s property shall be taken by law without just compensation.”

See the following authorities, as bearing upon the questions involved in the case : Hennessy v. City of St. Paul, 37 Fed. Rep. 565; Cole v. Kegler, 64 Iowa, 59 ; Harvey v. Dewoody, 18 Ark. 252; State v. Mott, 61 Md. 297; Manhattan Manufacturing, etc., Co. v. Van Keuren, 23 N. J. Eq. 251 ; Glenn v. Mayor, 5 Gill & J. 424; Bills v. Belknap, 36 Iowa, 583 ; Everett v. City of Council Bluffs, 46 Iowa, 66 ; Quenton v. Burton, 61 Iowa, 471; Everett v. City of Marquette, 53 Mich. 450; Ames v. Port Huron Log Driving, etc., Co., 11 Mich. 139; Sedgwick on Stat. and Const. Law, p. 534; New Albany, etc., R. R. Co. v. Peterson, 14 Ind. 112; Acton v. Blundell, 12 M. and W. 324; City of Greencastle v. Hazelett, 23 Ind. 186 ; Haldeman v. Bruckart, 45 Pa. St. 514; Wheatley v. Baugh, 23 Pa. St. 528 ; Taylor v. Fickas, 64 Ind. 167; Angell Watercourses, sections 94, 135; State, ex rel., v. Woodruff Sleeping, etc., Co., 114 Ind. 155 ; Hannibal, etc., R. R. Co. v. Husen, 95 U.S. 465; County of Mobile v. Kimball, 102 U.S.691; Walling v. People, etc., 116 U. S. 446 ; Leisy v. Hardin, 135 U. S. 100; Minnesota v. Barber, supra ; Brimmer v. Rebman, 138 U. S. 78.

It is clearly apparent that the statute in question had for its purpose the prohibition of the transportation of natural gas, and confining its use and sale to a limited territory; curtailing its use, diminishing its value, abridging the rights of the owners, and other persons who might wish *to Buy and transport it to markets beyond the distance which the natural well pressure will carry it, absolutely prohibiting its use and sale beyond a small territory wherein it can be distributed by the natural well pressure; and if subject to be safely transported into other States it necessarily interferes with interstate commerce.

I have hurriedly and briefly stated-some of the objections *591to tlie constitutionality of the law. No good can be accomplished by extending this opinion, and discussing each question involved separately, and supporting the position by authority. I believe the law to be unconstitutional and void for several reasons, and the law being void the complaint was bad, and the demurrer was properly sustained. To uphold the law at all it is necessary to strike out all the Legislature has said in such emphatic terms that no artificial methods can be used in transporting natural gas, or even in keeping up its pressure, and interpolate in lieu thereof an allegation that artificial methods may be used to the extent of three hundred pounds to the square inch in pipes tested to the strength of four hundred pounds to the square inch. In view of the absolute and positive prohibition against the use of any artificial methods expressed in the statute, it seems to me no such intention can be attributed to the Legislature, or such a construction given to the law.

Filed June 20, 1891.