Belington progressive. [volume] (Belington, W. Va.) 1912-1927, 1922-12-14
PENN LAW IS HELD
UNCONSTITUTIONAL
Supreme Court Decides That the
Pennsylvania Law Is Held
Unconstitutional.


WASHINGTON, Dec. IA. The
United States supreme court decides
that tie Pennsylvania law forbidding
the mining Of anthracite coal which
affects surface structures is uncon-
stitutional as it deprives property
without compensation. The decision
was based on test case brought by
H. j. Mahon to prevent the Pennsyl-
vania Coal Company from furthering
mining under his house. The deci-
sion is of Importance to West Vir-
ginia and every other state in which
coal is mined and similar situations
have developed or are bound to some
timk in the future. Justice Brandeis
did not agree with the court and rem
dered dissenting opinion, contend
ing that the Pennsylvania law was in
the interest Of public safety.
Government hardly could go on if
to some extent values incident to
property could not be diminished
without paying for every such change
in the general law" said Justice
Holmes in multiplying the law, which
had been sustained previously by the
Pennsylvania supreme court, from
which appeal had been taken by the
defendant company. 1--WE are in dan
ger of forgetting that strong pub
lie desire to improve the public con-
dition is not enough to warrant
achieving the desire by shorter cut
than the constitutional way of paying
for the change.
$50 far as private persons or COM
munities have seen fit to take the risk
Of acquiring only surface rights, we
cannot see that the fact that their
risk is becoming danger warrants
the giving to them greater rights
Than they bought. 1t purports to
abolish what is recognized in Penn
sylvania as an estate in land--a very
valuable estate The case has been
treated as one in which the validity
of the act should be discussed. The
act cannot be sustained as an exer-
else of the police power so far as it
affects the mining of coal under
streets or cities in places where the
right to mine such coal has been re-
served.
1.-THE right to coal consists in the
right to mine it. What makes the
right to mine coal valuable is that it
can be exercised with profit. To
make it commercially impracticable
to mine certain coal is very nearly
the same effect for constitutional
purposes as appropriating or destroy
ing it. The rights Of the public in a
street purchased or laid out by emf
nent domain are those that it has
paid for. If in any case its repre-
sentatives have been SO short-sighted
as to acquire only surface rights
without the right of support we see
no more authority for supplying the
latter without compensation than
there was for taking the right of way
in the first place, and refusing to pay
for it because the public wanted it.
"The protection of private property
in the fifth amendment presupposes
that it is wanted for public use, but
provides that it shall not be takensfor
such use without compensation. Sim
liar assumption is made in decisions
upon the fourteenth amendment.
When this seemingly absolute pro-
lection is found to be qualified by the
police power the natural tendency OF
human nature is to extend the quail
fication more and more until at last
private property disappears. That
cannot be accomplished in this way
under the constitution"