Dufour v. Maize

The Bituminous Coal Open Pit Mining Conservation Act (Act of 1945, P. L. 1198, 52 PS Section 1396.1 et seq.) violates Article 3, Section 7 of the Pennsylvania Constitution¹ and the equal protection clause of the Fourteenth Amendment to the Federal Constitution.² The purpose of the Act is to provide "for the conservation and improvement of areas of land affected in the mining of bituminous coal by the open pit or stripping method, to aid thereby in the protection of birds and wild life, to enhance the value of such land for taxation, to decrease soil erosion, to aid in the prevention of the pollution of rivers and streams, to prevent combustion of unmined coal, and generally to improve the use and enjoyment of said lands." The record does not reveal any material differences between persons subject to the Act and persons similarly situated but not subject thereto. There has been classification within a class based upon the fact of industry, not upon real and substantial differences relating to the primary purpose to be achieved.

Legislation based upon classification can be sustained only where there is "a necessity springing from manifest peculiarities, clearly distinguishing those of one class from each of the other classes, and imperatively demanding legislation for each class, separately, that would be useless and detrimental to the others": Ayars Appeal, 122 Pa. 266, 281,16 A. 356; Heisler v. Thomas Colliery Co. et al., 274 Pa. 448,454, 118 A. 394; Ashworth v. Pittsburgh Rys. Co., 231 Pa. 539,542, 80 A. 981. Classification, to be valid, must rest not merely upon a difference of conditions (Commonwealth v. Casey,231 Pa. 170, 179, 80 A. 78) but those differences must bear a substantial, natural, reasonable and just relation to the evil which the legislature seeks to remedy or remove. It must be reasonably adapted to secure a legitimate public interest: 12 Am. Jur. 147, Constitutional Law, Section 480.

The existence of an evil in the instant case may readily be conceded — the destruction of land by erosion, deforestation, pollution of streams, and depreciation of land value for purposes of taxation. The power of the legislature to remedy that evil may likewise be conceded. That power must, however, be exercised consistent with constitutional principles requiring enactment of equal laws to be equally applied. InCommonwealth v. Clark, 195 Pa. 634, 46 A. 286, this Court said (p. 637): "It is true, as urged, that the equal protection of the laws herein enjoined is a pledge of the protection of equal laws (Yick Wo v. Hopkins, 118 U.S. 369); but it does not forbid a classification of persons or property for various purposes, nor enjoin upon the legislative authorities the impossible duty of making the same or equal laws for the several classes. It does compel the equal application of the laws to all members of the same class, allowing classification, which should be based upon reasonable grounds and is not a mere arbitrary selection: Gulf, Colorado Santa Fe Ry. v. Ellis, 165 U.S. 165."

The constitutional basis for legislative classification under Article 3, Section 7, differs materially from classification under Article 9, Section 1. In the latter the legislative power to classify subjects of taxation is expressly recognized; in the former the legislature is specifically enjoined from passing any local or special law. In Heisler v. Thomas CollieryCo. et al., supra, this Court, in comparing the two sections of the Constitution, said (p. 454): ". . . . it is clear that an entirely different situation exists when the question arises under article III, section 7, for there no power to classify is conceded, indeed, impliedly at least, it is denied; hence legislation, based on classification regarding the subjects there specified in it, can be sustained only where there is 'a necessity springing from manifest peculiarities clearly distinguishing those of one class from each of the other classes, and imperatively demanding legislation for each class, separately, that would be useless and detrimental to the others' (Ayars's App., 122 Pa. 266, 281; Com. v. Schumaker,255 Pa. 67, 70), a statement wholly inappropriate when speaking of cases arising under article IX, section 1." It is clear, therefore, that the legislature, in the exercise of its police power to secure a legitimate end — conservation of land — cannot constitutionally restrict the orbit of its regulation to a given person in the absence of "a necessity springing from manifest peculiarities clearly distinguishing those of one class from each of the other classes, and imperatively demanding legislation for each class, separately, that would be useless and detrimental to the others." It cannot be doubted that all engaged in open pit and strip mining operations could properly be placed in a separate class. Here the classification is challenged for the reason that those persons engaged in the stripping of bituminous coal have been singled out from all who are similarly engaged in the open pit or strip mining of minerals. The Act does not apply to all within the class, i. e., to all persons engaged in open pit or strip mining, but only to those engaged in the mining of bituminous coal. Cf.Chalmers v. City of Philadelphia, 250 Pa. 251, 255, 95 A. 427.

Justification for singling out this special industry is centered upon the following differences: There is no evidence that in other stripping operations there has been found water in a cut that the operations adjoin a deep mine or that a vein of coal was left exposed at the bottom of the cut. Consequently there are differences as regards danger from fire, flooding, or interrupting ventilating systems of deep mine, and a higher combustion point of anthracite coal. The majority opinion states: "These are substantial and real differences which, in our opinion, justify the classification made by the Act." Appellant's points for charge, which were affirmed by the hearing judge, would establish the following facts: There is a seam of bituminous coal above fireclay; the latter is recovered by open pit or stripping methods identical to that employed in the stripping of bituminous coal; spoil pits resulting from clay stripping are wider and bituminous coal found above the clay is usually mixed with the spoil pile; spontaneous combustion may occur in spoil piles but there is no evidence that spontaneous combustion has occurred in an exposed vein of bituminous coal anywhere in the United States. "Ganister, employed in the manufacture of silica brick, shale from which is manufactured sewer pipe, flint clay, limestone, iron ore and cannel coal are all mined in the State of Pennsylvania by the open pit or strip mining method identical to that employed in the stripping of bituminous coal, all of which operations are productive of spoil banks."

Having regard for the stated purposes of the legislation, supra, the industries which create those conditions cannot be treated differently. They are, insofar as the purposes of the legislation are concerned, similarly situated and must be subjected to equal regulation. The singling out of the bituminous industry is without reasonable basis in fact, and constitutes an unconstitutional classification denying to appellant substantive rights under both the Pennsylvania and the federal Constitutions.

The majority opinion seeks to avoid the inequality of application by stating that "there is authority for the proposition that when an evil is conspicuously in need of correction, action may be taken, although other evils exist which are not corrected." Admitting the rule, it is inapplicable here. Maurer v. Boardman et al., 336 Pa. 17,7 A.2d 466, is illustrative of the authority to which the majority refers. In that case this Court held constitutional the Act of 1937, P. L. 2329, 2401, forbidding operation upon the highways of this Commonwealth of a vehicle carrying an automobile over the cab or head of the operator of the carrier vehicle. This Court said (p. 26): "Here the evil sought to be prevented is the practice of carrying an automobile over the cab of a vehicle. The legislature by enacting Section 1033(c) has efficiently directed its effort toward the prohibition of that practice. That other persons in the trucking business may continue to engage in practices not prohibited by Section 1033(c), but equally and similarly dangerous, is not enough to render the Section in question unconstitutional, because the right of the legislature to classify with reference to the particular evil sought to be prevented is undoubted. An act designed to remedy an existing ill may not be declared invalid because it leaves other ills unremedied. It is not required that the entire field of possible abuses be covered: Patsone v. Com. of Pa.,232 U.S. 138; Keokee Consolidated Coke Co. v. Taylor, 234 U.S. 224; Clark v. Paul Gray, Inc., et al., 83 L.Ed. (Adv.) 736." All similarly situated were subject to the Act and that there were other dangers which were not prevented was held not to invalidate the statute in question. In the instant case all similarly situated are not subject to the Act and instead only those persons engaged in open pit or strip mining of bituminous coal have been regulated.

The legislature has arbitrarily created a class. There are no substantial, natural and reasonable differences which bear a just relation to the evil which the legislature seeks to remedy. The Bituminous Coal Open Pit Mining Conservation Act violates Article 3, Section 7 of the Pennsylvania Constitution and denies to appellant the equal protection of the law guaranteed by the Fourteenth Amendment to the federal Constitution.

The decree of the Court below should be reversed.

¹ "The General Assembly shall not pass any local or special law: Regulating labor, trade, mining or manufacturing": Pennsylvania Constitution, Art. 3, Section 7.

² "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; nor deny to any person within its jurisdiction the equal protection of the laws": Constitution of the United States, Art. 14, Section 2.