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has Suffered by modern legislation, enough of it remained to call for the protection of the wife against the husband at least to the extent of leaving existing estates by entireties untouched. We find nothing in the case Supporting appellant's contention, and therefore overrule the assignments of error which challenge the action of the court in denying him participation in the fund. [2] It is further complained of as error that the court refused to order proper security to be given for the payment to the trustee of one-half the income arising during the life of the wife from the fund for distribution. Whatever the rights of the trustee may be With respect to the fund in the event of the husband surviving his wife, it iS too plain for discussion that, except as estates by entirety no longer exist, he can have no present right of enjoyment. We have just held that they do Still exist. In estates of this kind husband and wife are not joint tenants or tenants in common, but both are seised of the entirety, per tout et non per my. AS a Consequence neither can dispose of any part without the consent Of the Other, but the Whole must remain to the Other. It follows that the interest of the appellant in the fund in dispute, under all our authorities defining this kind of estate, and its characteristics, is at most a contingent One. He is not presently substituted for the husband, and cannot be. His right to the uSe and enjoyment of any part of the fund must await the happening of the contingency of the husband surviving the wife. Until that happens, the wife's right to the enjoyment of the whole may not be disputed by any one claiming under the husband. The very enlightening discussion of the subject in the able Opinion of Judge Thayer, approved and adopted by this court in McCurdy V. Canning, 64 Pa. 39, and Which haS COnsistently been followed, makes further citation of authority for the views here expressed unneCeSSary. This assignment of error is likewise Overruled, and the appeal is dismissed.

(232 Pa. 95) - In re MEYER'S ESTATE.

Appeal of BEIHL et ux. (Supreme Court of Pennsylvania. May 23, 1911.)


Where an estate has been given by will to a husband and wife as tenants by entirety, the orphans' court in awarding the fund to them cannot require them to enter security for the protection of the husband's trustees in £ruptcy, if the husband should survive the W11e.

[Ed. Note.—For other cases, see Bankruptcy, Dec. Dig. § 139.*]

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Appeal from Orphans' Court, Philadel. phia County. In the matter Of the adjudication Of the estate of C. A. A. Meyer. From a decree sustaining exceptions to the adjudication, Er

nest H. Beihl and Wife appeal. MOdified.

From the record it appeared that Clara L. Beihl and her husband, Ernest H. Beihl, were tenants by entireties under the Will of testator. The fund was awarded to them notWithStanding the claim Of Charles J. Weiss, trustee in bankruptcy of Ernest H. Beihl, to one-half of the fund. The trustee filed the following exception to the adjudication: “(3) The learned judge further erred in awarding the whole of the said fund to Clara L. Beihl and her husband, Ernest H. Beihl, as tenants by entirety, Without making any provision for the protection of the rights Of the said Charles J. Weiss as trustee in bankruptcy of the Said Ernest H. Beihl.” The Court in an Opinion by Gummey, J., Sustained the exception, and directed that security Should be entered in the sum of $11,000 for the protection of the trustee in bankruptcy in the event of the husband surviving the Wife.

Argued before FELL, C. J., and BROWN, POTTER, ELKIN, and STEWART, JJ.

Harvey Gourley, for appellants. George P. Rich, for appellee.

STEWART, J. This appeal is from the same decree that was considered in the preceding case. Meyer's Estate, No. 1, 81 Atl. 145. There the appeal was by the trustee in bankruptcy alleging error in a Warding the fund to the appellees, and in the refusal of the court to require security in advance of actual distribution for the payment of onehalf the income of the fund as it accrued to the trustee in bankruptcy of the husband's estate. Here the appeal is by the parties a Warded the fund, husband and Wife, from SO much of the decree as required Of them, before receiving the fund, security for the payment over to the trustee in bankruptcy of One-half the fund in the event of the husband surviving the wife.

In the other appeal we held that the trustee in bankruptcy acquired nothing but a contingent interest; that, inasmuch as the husband and wife held by entireties, no present right of enjoyment resulted to one claiming through the husband or in his right; and that the demand for security for the income was properly refused. The wife's right to present enjoyment of the estate is not to a part, but to all of it; and this may not be denied her in Order to protect a contingent interest of one claiming through the huSband. To impose such condition upon the exercise and enjoyment of her right, as was here directed, resolves the estate into a tenancy in common. Being an estate by entireties neither husband nor Wife Could, under any circumstances, require an accounting by the other; nor could either restrain the other against consuming more than an equal part. The effect of requiring security as a condition of the Wife's enjoyment of her estate would be to restrain consumption by her of her own property in order that her husband's creditors might be protected. She received the estate on no Such condition. It is herS to consume if she so desires. The husband would be powerless to prevent it by legal proceedings, and those claiming under him have no higher rightS. This appeal is sustained, and the decree is modified by striking therefrom the order for security for the protection of the trustee in bankruptcy, in the event of the husband Surviving his wife, in the sum of $11,000, before

•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

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STEWART, J. The facts on which this suit in equity was based are fully recited in the two appeals, next preceding, from the decree of the Orphans' court of Philadelphia (Meyer's Est., No. 1, 81 Atl. 145, and Meyer's Est., No. 2, 81 Atl. 147), and need not be here repeated. Those appeals superseded this, and the conclusion arrived at in them settles all that Was involved in the bill filed in this Case. The bill Was filed before the trustees had settled their account and prayed an injunction restraining Beihl and his Wife from alienating the property and further relief. The bill was demurred to and the demurrer Sustained.

The appeal is from that decree, and it is dismissed.


(Supreme Court of Pennsylvania. May 23, 1911.)

1. MINES AND MINERALs (§ 92*)—PILLARs of COAL–POLICE POWER. Anthracite Mining Act June 2, 1891 (P. L. 183) art. 3, § 10, provides that owners of ad: joining coal properties must leave a pillar of coal in each seam worked by them along the line of adjoining property. Held a valid exercise of the police power. [Ed. Note.—For other cases, see Mines and #". Cent. Dig. §§ 218–220; Dec. Dig. §

2. CoNSTITUTIONAL LAW (§ 296*)—DUE PROCESS OF LAW. Anthracite Mining Act June 2, 1891 (P. L. 183) art. 3, § 10, provides that owners of adjoining coal properties must leave a pillar of coal in each seam worked by them along the line of adjoining property. Held not a deprivation of property without due process of law. [Ed. Note.—For other cases, see Constitutional Law, Dec. Dig. § 296.*] 3. EMINENT DOMAIN (§ 2*)—RIGHT To CoMPENSATION. Anthracite Mining Act June 2, 1891 (P. L. 183), art. 3, § 10, provides that owners of adjoining coal properties must leave a pillar of coal in each seam worked by them along the line of adjoining 8', Held, that such act does not violate Const., art. 1, § 10, providing that private property shall not be applied to public use without just compensation. [Ed. Note.—For other cases, see Eminent DOmain, Cent. Dig. §§ 3–12; Dec. Dig. § 2.*] '4. EMINENT DOMAIN (§ 1*)—DEFINITION. The right of eminent domain is the power of the state to apply private property to public purposes on payment of just compensation. The provision for compensation is no part of the power, but a limitation on its use imposed by the Constitution. [Ed. Note.—For other cases, see Eminent Domain, Cent. Dig. § 1; Dec. Dig. $ 1.* For other definitions, see Words and Phrases, vol. 3, pp. 2362—2366; vol. 8, p. 7649.] 5. CONSTITUTIONAL LAW ($ 81*) – “POLICE POWER.” The police power of a state is the right to prescribe regulations for the good order, peace, protection, comfort, convenience, and morals of the community, and its essential quality as a governmental agency is that it imposes on perSons and property burdens designed to promote the health and safety of the public at large. [Ed. Note.—For other cases, see Constitutional Law, Cent. Dig. § 148; Dec. Dig. § S1.* For other definitions, see Words and Phrases, vol. 6, pp. 5424–5438; vol. 8, p. 7756.]

Appeal from Court of Common Pleas, Luzerne County.

Bill by the Common Wealth, On the application of David T. Davis, Inspector of Mines of the Ninth District of the First Anthracite Coal Inspection District of Pennsylvania, against the Plymouth Coal Company. From decree in favor of plaintiff, defendant appeals. Affirmed.

Ferris, J., filed the following opinion: “The anthracite mining act of June 2, 1891 (P. L. 176), is entitled, ‘An act to provide

for the health and safety of persons employ

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ed in and about the anthracite coal mines of Pennsylvania and for the protection and preservation of property connected therewith.” Section 10 of article 3 of this act reads as follows: ‘It shall be obligatory On the owners of adjoining coal properties to leave, or cause to be left, a pillar of coal in each seam or vein of coal worked by them, along the line of adjoining property, of Such width, that taken in connection with the pillar to be left by the adjoining property owner, Will be a sufficient barrier for the Safety of the employees of either mine in case the other should be abandoned and allowed to fill With Water; Such Width of pillar to be determined by the engineers of the adjoining property owners, together with the inspector of the district in which the mine is Situated, and the Surveys of the face Of the workings along such pillar shall be made in duplicate and must practically agree. A COpy Of Such duplicate SurveyS, Certified to, must be filed With the owners of the adjoining properties, and with the inspector of the district in Which the mine. Or property is situated. The bill avers that the plaintiff, being the mine inspector for the proper district, gave notice to the defendant Company of a meeting to be held, at Which the Said company was notified to instruct its engineer to be present and meet the engineer of the Lehigh & Wilkes-Barre Coal Company, the owner of an adjoining mine, for the purpose of determining the width of a barrier pillar to be left by the Said tWO COal COmpanies between their properties as required by the mining act, but that the defendant company refused to permit its engineer to attend Such meeting, and generally refused to leave any barrier pillar between its Workings and those of the Lehigh & Wilkes-Barre Coal Company. “The prayers are (1) for an injunction enjoining the defendant from Working its mines or coal property adjoining the mines or coal property of the Lehigh & Wilkes-Barre Coal Company without leaving a barrier pillar Of COal Of the thickneSS Or Width of at least seventy feet in each vein; (2) requiring the defendant to file with the mine inspector a certified copy of a survey as required by law; and (3) for general relief. To this bill the defendant has filed an answer admitting the plaintiff’s averments of fact to be true, but (1) denying the necessity for such a barrier pillar, and (2) averring that section 10 Of article 3 of the mining act is unconstitutional. “If the constitutionality of this provision be conceded for the purpose of discussion, and if the question of the necessity for any barrier pillar at all between these properties may be regarded as an Open One, the decision Of that question WOuld Seelm to be committed by the statute to the tribunal of experts thereby constituted, viz., the mine inspector and the engineers Of the OWImers of the ad



joining coal properties. The purpose of the enactment is to secure the safety of the Workmen in the mines. The law declares that ‘it shall be obligatory’ On the mineowners to leave such a barrier pillar as the tribunal of mine experts referred to shall determine to be Sufficient for that purpoSe. It is for them to fix its width. Until they say that none at all is needed for the safety of the men, the obligation imposed by the statute remains. It might, perhaps, be Well argued that the Legislature did not intend to impose upon the owners the burden of leaving a boundary pillar of unmined coal Where it clearly appears to be unnecessary for the Safety of the employéS. If none at all Were needed, it would seem idle for the inspector and engineers to fix a width of, say, one foot, for the Sake, merely, of literal compliance with the statutory obligation of leaving a pillar of some width. If, therefore, we may apply the maxim that the law does not require a Vain thing, there is room for the Construction that, investing in the inspector and engineers the power to determine how Wide the barrier pillar Should be to Secure safety, the intent of the lawmaking power Was to also empower them to Say, if Such be the fact, that the Safety Of the men does not require a barrier pillar of any Width at all. But, be that as it may, it is evident that the act does not Warrant a mine OWner in refusing to permit his engineer to participate in determining the question of the Width Of, Or the need for, a barrier pillar simply because he, the mineoWner, does not consider one necessary. In our opinion the law requires Such a pillar to be left, unless the inspectOr and engineerS, after due examination of the premises and consideration of the Subject, determine that none is needed to Secure the Safety of the men employed in either mine in case the other should be abandoned and allowed to fill With Water. “The Constitutionality of the boundary pillar provision of the act is attacked upon two grounds: (1) Because it is said to violate Section 10 of article 1 of the Pennsylvania Constitution, which provides that private property shall not be taken or applied to public use without authority of law and without just compensation being first made or secured; and (2) because it is claimed to be in conflict with the fourteenth amendment to the federal Constitution, which provides that no state shall deprive any person of life, liberty, or property without due process of law. The defendant contends that by requiring adjoining mineowners to leave a barrier pillar of coal between their workings the act deprives them of a property right (viz., the right to mine such coal) without compensation therefor and without due process of law. Both the right of eminent domain and the police poWer of the State are attributes of SOVereignty. They are inherent rights of the Supreme power, founded upon the Social compact and essential to any form of government. [4] “In our jurisprudence the right of eminent domain is defined to be “the power of the state to apply private property to public purposes on payment of just compensation to the owner. 10 Am. & Eng. Ency. Of Law (2d Ed.) 1047. The provision for payment of compensation, however, is no part of the power itself, but a limitation upon its use imposed by the Constitution. United States V. Jones, 109 U. S. 513, 3 Sup. Ct. 346, 27 L. Ed. 1015. [5] The police power of the state,’ says Judge Orlady in Com. V. Beatty, 15 Pa. Super. Ct. 5, 15, ‘is difficult of definition, but it has been held by the courts to be the right to prescribe regulations for the good Order, peace, health, protection, comfort, convenience, and morals of the community, which does not encroach. On a like power Wested in Congress or state Legislatures by the federal Constitution, or does not violate the proviSions of the Organic law; and it has been expressly held that the fourteenth amendment to the federal Constitution was not designed to interfere with the exercise of that power by the state [citing Powell v. Penna., 127 U. S. 678, S Sup. Ct. 992, 1257, 32 L. Ed. 253; Powell V. Commonwealth, 114 Pa. 265, 7 Atl. 913, 60 Am. Rep. 350]. Its essential quality as a governmental agency is that it imposes upon persons and property burdens designed to promote the Safety and welfare of the public at large. The principle that no person shall be deprived of life, liberty, or property, without due process of law, was embodied, in substance, in the Constitutions of nearly all, if not all, of the States at the time of the adoption of the fourteenth amendment, and it has never been regarded as incompatible with the principle, equally vital, because equally essential to the peace and Safety of Society, that all property in this country is held under the implied obligation that the owners’ use of it shall not be injurious to the community [citing Boston Beer Co. v. Mass., 97 U. S. 25, 24 L. Ed. 989, at page 17 of 15 Pa. Super. Ct.]. “The State Still retains an interest in his (the wage earner's) welfare, however reckless he may be. The whole is no greater than the Sum of all its parts, and, when the individual health, Safety, and welfare are sacrificed, the State must suffer.” This declaration was adopted by the United States Supreme Court in Holden v. Hardy, 169 U. S. 366, 18 Sup. Ct. 383 [42 L. Ed. 780], invalidating a state statute which limited the employment of men in underground mines, Smelting works, etc., to eight hours a day. By the decision from which we have just quoted, it was held that the act of April 29, 1897 (P. L. 30), forbidding the employment of adult women for more than 12 hours a day, etc., Was not in conflict with the Constitution of Pennsylvania nor with the federal Constitution, but

the interest of the public health, even though it referred to a particular class of the public, Viz., adult Women engaged in the kind of employment mentioned in the act, and even though it did indirectly restrain the employé's freedom of contract. “So, also, in Commonwealth v. Brown, 8 Pa. Super. Ct. 339, 351, 352, it was said by Judge Rice that “in the exercise of the police power of the State it (the Legislature) may enact laws in the interest of public morals, and to protect the lives, health, and safety of persons following specified callings, and thus indirectly interfere with freedom of contract’—i. e., with individual liberty and the right to acquire and use property. But, of Course, Such classification with reference to occupation must be reasonable and dictated by 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. Laws enacted in pursuance of such classification and for such purposes are, properly speaking, neither loCal nor Special. They are general laws beCause they apply alike to all that are similarly situated as to their peculiar necessities. Ayars' Appeal, 122 Pa. 266, 281, 16 Atl. 356, 2 L. R. A. 577; Commonwealth v. Gilligan, 195 Pa. 504, 510, 46 Atl. 124. The point We desire to emphasize here is that, to be a valid exercise of the police power in the interest of the public safety, a statute need not necessarily be applicable to the Whole body of the general public, but may affect a Specified class only. Thus in Holden V. Hardy, 169 U. S. 366, 393, 18 Sup. Ct. 383,388, 42 L. Ed. 780, it Was Said by our highest court, Speaking by Mr. Justice Brown that, while the business of mining coal and manufacturing iron began in Pennsylvania as early as 1716, and in Virginia, North Carolina, and Massachusetts even earlier than this, both mining and manufacturing Were carried on in such a limited way and by such primitive methods that no special laws were considered necessary prior to the adoption of the Constitution for the protection of the operatives, but, in the vast proportions which these industries have since assumed, it has been found that they can no longer be carried On With due regard to the Safety and health of those engaged in them, without special protection against the dangers necesSarily incident to these employments. In consequence of this laws have been enacted in most of the states designed to meet these exigencies and to Secure the Safety of perSons peculiarly exposed to these dangers. * * * In (states) where mining is the principal industry, special provision is made for the Shoring up of dangerous Walls, for ventilation shafts, means of signaling the surface, for the supply of fresh air, and the elimination of dangerous gases, etc. * * *

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ed by the courts of the Several States their validity assumed, and, so far as we are informed, they have been uniformly held to be ·COnStitutional.’ Mr. Justice BrOWn then refers to certain cases where such laws were held to be constitutional under the police power, and among them to Commonwealth V. Bonnell, 8 Phila. 534, in which the late Judge Harding of this court held the mine ventilation act of March 3, 1870 (P.L. 3), to be a constitutional exercise Of the police power. “So, also, in Chicago, W. & V. Coal Co. v. People, 181 Ill. 270, 54 N. E. 961, 48 L. R. A. 554, a provision in the mining act of that state requiring the mineowner to pay the fees for the inspection of mines by a state inspector was held to be Valid and Constitutional under the police power, though its effect was to deprive the owner of property, to wit, the money required to be paid as fees. It was there said, as it might equally Well be said in the case at bar: “The mining of Coal is recognized as a dangerous and haZardous busineSS, and is a productive industry of the greatest importance. For many years in this state many thousands of men have been engaged in that character of work, and a proper safeguard of their lives and health is a matter of so great interest and necessity that no subject can be mentioned where there is a more positive neceSsity for the exercise of the police power than in seeking to subserve their safety. * * * * Speaking of the payment of the inspector's fees: “The expense thus incurred is imposed because of the peculiar dangers of the Surrounding situation and Subserves, not only the interest of the miners, but alike protectS the mineowner; and hence the payment of the fee (in this case, the leaving of coal for a barrier pillar) can be properly imposed upon the mineowner without violating any proVision of the Constitution.” That Case Was followed by Consolidated Coal Co. v. People, 186 Ill. 134, 57 N. E. 880, 56 L. R. A. 266, where it was held that the same mining act (which, in essentials, is similar to our own) did not deny to mine Operators the equal protection of the laws, nor take their property without due process of law in violation of the fourteenth amendment of the federal Constitution. “Still closer in its facts to the case now before us is Mapel V. John, 42 W. Va. 30, 24 S. E. 608, 32 L. R. A. 800, 57 Am. St. Rep. 839. There the mining act in question provided, inter alia, that “no owner or tenant of -any land containing coal shall open, or sink, or dig, excavate or work in any coal mine or shaft on such land, within five feet of the line dividing said land from that of another person or persons, without the Consent in writing of every person interested in, or having title to Such adjoining lands, etc. This proVision Was Clailmed to be unconstitutional as being an infringement of the "rights of private property. It was held to



be a proper exercise of the police power and not unconstitutional in the respect claimed, the court saying: ‘This is no undue assumption of the right to apply the police power tO a Subject Which does not fall Within it; for regulations (on this and other Subjects mentioned) have long been recognized as Wholesome and reasonable, and as fit Subjects for the exercise of the police power, aS tending to preserve the rights of the citizen and promote the Welfare of the commonwealth. The mining of coal is One of the largest industries carried on in the State. In mining proper support and ventilation are necessary * * * for the health and safety of the miner engaged in a dangerous employment, and for that reason the public Welfare requires it. * * * This rib of solid coal not to be mined into by either of the adjoining owners was to be contributed by each in equal parts for the mutual benefit of each, for the protection of the surface, to Secure independent Systems Of Ventilation, drainage, and workings, and in aid of an industry so great and widely diffused that the State as a Whole is interested therein. * * * This regulation works no hardship On One for the benefit of another, but is impartial, just, and reaSOnable, imposing a common burden for the benefit of all Such OWnerS.” “The police power is distinguished from the right of eminent domain in that the state by exercising the latter right takes private property for public use, thereby entitling the OWner to compensation under the Constitution, while the police power, founded as it is on the maxim, ‘Sic utere tuo ut alientilm non laedaS, is exerted to make that maxim effective by regulating the use and enjoyment of property by the owner, or, if he is deprived of his property altogether, it is not taken for public use, but rather deStroyed in Order to conserve the Safety, morals, health, or general welfare of the public, and in heither CaSe is the OWner entitled to compensation, for the law either regards his loss as dananum absolue injuria, or considers him Sufficiently compensated by Sharing in the general (and, in this case, also the Specific) benefits resulting from the exercise of the police power. 22 Am. & Eng. Ency. of LaW (2d Ed.) 916, and Cases there cited. [1] “For example, in the case at bar, the State does not take the COal in the barrier pillar and convert it to a public use, but leaves it in the ownership and possession of the adjoining mineowners. The coal itself is not taken. The property right affected by the statute is not ownership, but use, of the material thing—the right to mine it out Nor does the state take that right for public use. The act does not transfer the right to mine out the coal from the OWner to Some One else for the public benefit, but prohibits that right from being exercised by any one— that is, destroys it, to prevent a possible calamity, to wit, the flooding of mines, and

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