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Pa.)

IN RE MEYER'S ESTATE

147

1

has suffered by modern legislation, enough Appeal from Orphans' Court, Philadel. of it remained to call for the protection of phia County. the wife against the husband at least to the In the matter of the adjudication of the extent of leaving existing estates by entire estate of C. A. A. Meyer. From a decree susties untouched. We find nothing in the case taining exceptions to the adjudication, Ersupporting appellant's contention, and there- nést H. Beihl and wife appeal. Modified. fore overrule the assignments of error which

From the record it appeared that Clara challenge the action of the court in denying L. Beihl and her husband, Ernest H. Beihl, him participation in the fund.

were tenants by entireties under the will of [2] It is further complained of as error testator. The fund was awarded to them that the court refused to order proper se notwithstanding the claim of Charles J. curity to be given for the payment to the Weiss, trustee in bankruptcy of Ernest H. trustee of one-half the income arising during Beihi, to one-half of the fund. The trustee the life of the wife from the fund for dis- filed the following exception to the adjudicatribution. Whatever the rights of the trus- tion: "(3) The learned judge further erred in tee may be with respect to the fund in the awarding the whole of the said fund to Clara event of the husband surviving his wife, it L. Beibl and her husband, Ernest H. Beihl, is too plain for discussion that, except as as tenants by entirety, without making any estates by entirety no longer exist, he can provision for the protection of the rights of have no present right of enjoyment. We the said Charles J. Weiss as trustee in bankhave just held that they do still exist. In ruptcy of the said Ernest H. Beihl.” The estates of this kind husband and wife are court in an opinion by Gummey, J., sustained not joint tenants or tenants in common, the exception, and directed that security but both arę suised of the entirety, per tout should be entered in the sum of $11,000 for et non per my. As a consequence neither the protection of the trustee in bankruptcy can dispose of any part without the consent in the event of the husband surviving the of the other, but the whole must remain to wife. the other. It follows that the interest of the Argued before FELL, C. J., and BROWN, appellant in the fund in dispute, under all POTTER, ELKIN, and STEWART, JJ. our authorities defining this kind of estate,

Harvey Gourley, for appellants. George P. and its characteristics, is at most a contin- Rich, for appellee. gent one. He is not presently substituted for the husband, and cannot be. His right to

STEWART, J. This appeal is from the the use and enjoyment of any part of the same decree that was considered in the prefund must await the happening of the conceding case. Meyer's Estate, No. 1, 81 Atl. tingency of the husband surviving the wife. 145. There the appeal was by the trustee in Until that happens, the wife's right to the bankruptcy alleging error in awarding the enjoyment of the whole may not be disputed fund to the appellees, and in the refusal of by any one claiming under the husband. The the court to require security in advance of very enlightening discussion of the subject actual distribution for the payment of onein the able opinion of Judge Thayer, ap-half the income of the fund as it accrued to proved and adopted by this court in McCur- the trustee in bankruptcy of the husband's dy v. Canning, 64 Pa. 39, and which has con- estate. Here the appeal is by the parties sistently been followed, makes further cita- awarded the fund, husband and wife, from so tion of authority for the views here express-much of the decree as required of them, beed unnecessary.

fore receiving the fund, security for the payThis assignment of error is likewise over- ment over to the trustee in bankruptcy of ruled, and the appeal is dismissed.

one-half the fund in the event of the husband surviving the wife.

In the other appeal we held that the trus(232 Pa. 95)

tee in bankruptcy acquired nothing but a conIn re MEYER'S ESTATE.

tingent interest; that, inasmuch as the hus

band and wife held by entireties, no present Appeal of BEIHL et ux.

right of enjoyment resulted to one claiming (Supreme Court of Pennsylvania. May 23, through the husband or in his right; and 1911.)

that the demand for security for the income BANKRUPTCY (8 139*)—BANKRUPTCY OF Hus- was properly refused. The wife's right to BAND-ESTATE BY ENTIRETY.

Where an estate has been giver by will present enjoyment of the estate is not to a to a husband and wife as tenants by entirety,

part, but to all of it; and this may not be the orphans' court in awarding the fund to denied her in order to protect a contingent them cannot require them to enter security for interest of one claiming through the husthe protection of the husband's trustees in

band. To impose such condition upon the bankruptcy, if the husband should survive the wife.

exercise and enjoyment of her right, as was [Ed. Note.-For other cases, see Bankruptcy, here directed, resolves the estate into a tenDec. Dig. $ 139.*]

ancy in common. Being an estate by entire

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

ties neither husband nor wife could, under

(232 Pa. 141) any circumstances, require an accounting by COMMONWEALTH V. PLYMOUTH the other; nor could either restrain the other

COAL CO against consuming more than an equal part. (Supreme Court of Pennsylvania. May 23, The effect of requiring security as a condi

1911.) tion of the wife's enjoyment of her estate 1. MINES AND MINERALS (8 92*)-PILLARS OF would be to restrain consumption by her of COAL-POLICE POWER. her own property in order that her husband's L. 183) art. 3, 10, provides that owners of ad

Anthracite Mining Act June 2, 1891 (P. creditors might be protected. She received joining coal properties must leave a pillar of the estate on no such condition. It is hers coal in each seam worked by them along the to consume if she so desires. The husband line of adjoining property. teld a valid exer

cise of the police power. would be powerless to prevent it by legal proceedings, and those claiming under him have Minerals, Cent. Dig. $8 218-220; Dec. Dig. $

[Ed. Note.-For other cases, see Mines and no higher rights.

92.*] This appeal is sustained, and the decree is 2. CoxSTITUTIONAL LAW (S 296*)-DUE PROmodified by striking therefrom the order for CESS OF LAW. security for the protection of the trustee in L. 183) art. 3, § 10. provides that owners of

Anthracite Mining Act June 2, 1891 (P. bankruptcy, in the event of the husband sur- adjoining coal properties must leave a pillar of viving his wife, in the sum of $11,000, before coal in each seam worked by them along the line distribution is made to the appellants, of the of adjoining property, Held not a deprivation

of property without due process of law. award to them under the adjudication; and,

[Ed. Note.-For other cases, see Constitutionas so modified, the decree is affirmed. The al Law, Dec. Dig. § 296.*] costs on the appeal to be paid by the appel- 3. EMINENT DOMAIN ($ 2*)-RIGHT TO COMlees.

PENSATION.

Anthracite Mining Act June 2; 1891 (P. L.

183), art. 3, $ 10, provides that owners of ad(232 Pa. 97)

joining coal properties must leave a pillar of WEISS v. BEIHL et al.

coal in each seam worked by them along the line

of adjoining property. II eld, that such act does (Supreme Court of Pennsylvania. May 23, not violate Const. art. 1, § 10, providing that 1911.)

private property shall not be applied to public

use without just compensation. BANKRUPTCY (8 301*)-ACTION BY TRUSTEE

[Ed. Note.-For other cases, see Eminent DoALIENATION OF PROPERTY-INJUNCTION.

A trustee in bankruptcy of a husband has .main, Cent. Dig. $$ 3-12; Dec. Dig. $ 2.*] no standing to maintain a bill to restrain the '4. EMINENT DOMAIN ($ 1*)-DEFINITION. husband and wife from alienating property of the state to apply private property to public

The right of eminent domain is the power which they hold as tenants by entireties. [Ed. Note. For other cases, see Bankruptcy, The provision for compensation is no part of

purposes on payment of just compensation. Dec. Dig. § 301.*]

the power, but a limitation on its use imposed

by the Constitution. Appeal from Court of Common Pleas, Phil

[Ed. Note. For other cases, see Eminent Doadelphia County.

main, Cent. Dig. $ 1; Dec. Dig. $ 1.* Bill by Charles J. Weiss, trustee in bank For other definitions, see Words and Phrases, ruptcy, against Ernest H. Beihl and others. vol. 3, pp. 2302-2366; vol. 8, p. 7619.] From a decree dismissing the bill, plaintiff 5. CONSTITUTIONAL LAW (8 81*) – “POLICE

POWER." appeals. Affirmed.

The police power of a state is the right to Argued before FELL, C. J., and BROWN, prescribe regulations for the good order, peace. POTTER, ELKIN, and STEWART, JJ. protection, comfort, convenience, and morals of

the community, and its essential quality as a George P. Rich, for appellant. Harvey governmental agency is that it imposes on perGourley, for appellees.

sons and property burdens designed to promote

the health and safety of the public at large. STEWART, J. The facts on which this suit al Law, Cent. Dig. $ 148; Dec. Dig. $ $1.*

[Ed. Note.-For other cases, see Constitutionin equity was based are fully recited in the

For other definitions, see Words and Phrases, two appeals, next preceding, from the decree vol. 6, pp. 5124–5138; vol. 8, p. 7756.] of the orphans' court of Philadelphia (Mey

Appeal from Court of Common Pleas, Luer's Est., No. 1, 81 Atl. 145, and Meyer's Est.,

zerne County. No. 2, 81 Atl. 147), and need not be here re

Bill by the Commonwealth, on the applipeated. Those appeals superseded this, and the conclusion arrived at in them settles all cation of David T. Davis, Inspector of Mines that was involved in the bill filed in this of the Ninth District of the First Anthracite case. The bill was filed before the trustees

Coal Inspection District of Pennsylvania, had settled their account and prayed an in- against the Plymouth Coal Company. From junction restraining Beihl and his wife from decree in favor of plaintiff, defendant ap

peals. Affirmed. alienating the property and further relief. The bill was demurred to and the demurrer Ferris, J., filed the following opinion: sustained.

"The anthracite mining act of June 2, 1891 The appeal is from that decree, and it is (P. L. 176), is entitled, 'An act to provide dismissed.

for the health and safety of persons employ

Pa.)

COMMONWEALTH V. PLYMOUTH COAL CO.

149

ed in and about the anthracite coal mines of joining coal properties. The purpose of the Pennsylvania and for the protection and enactment is to secure the safety of the preservation of property connected there-workmen in the mines. The law declares with.' Section 10 of article 3 of this act that it shall be obligatory' on the minereads as follows: 'It shall be obligatory on owners to leave such a barrier pillar as the the owners of adjoining coal properties to tribunal of mine experts referred to shall leave, or cause to be left, a pillar of coal in determine to be sufficient for that purpose. each seam or vein of coal worked by them, | It is for them to fix its width. Until they along the line of adjoining property, of such say that none at all is needed for the safety width, that taken in connection with the pil- of the men, the obligation imposed by the lar to be left by the adjoining property own- statute remains. It might, perhaps, be well er, will be a sufficient barrier for the safety argued that the Legislature did not intend to of the employees of either mine in case the impose upon the owners the burden of leavother should be abandoned and allowed to ing a boundary pillar of unmined coal where fill with water; such width of pillar to be it clearly appears to be unnecessary for the determined by the engineers of the adjoin- safety of the employés. If none at all were ing property owners, together with the in- needed, it would seem idle for the inspector spector of the district in which the mine is and engineers to fix a width of, say, one situated, and the surveys of the face of the foot, for the sake, merely, of literal compliworkings along such pillar shall be made in ance with the statutory obligation of leaving duplicate and must practically agree. A a pillar of some width. If, therefore, we copy of such duplicate surveys, certified to, may apply the maxim that the law does not must be filed with the owners of the adjoin. require a vain thing, there is room for the ing properties, and with the inspector of the construction that, investing in the inspector district in which the mine, or property is and engineers the power to determine how situated.' The bill avers that the plaintiff, wide the barrier pillar should be to secure being the mine inspector for the proper dis- safety, the intent of the lawmaking power trict, gave notice to the defendant company was to also empower them to say, if such of a meeting to be held, at which the said be the fact, that the safety of the men does company was notified to instruct its engineer not require a barrier pillar of any width to be present and meet the engineer of the at all. But, be that as it may, it is evident Lehigh & Wilkes-Barre Coal Company, the that the act does not warrant a mine owner owner of an adjoining mine, for the purpose in refusing to permit his engineer to particiof determining the width of a barrier pillar pate in determining the question of the to be left by the said two coal companies width of, or the need for, a barrier pillar between their properties as required by the simply because he, the mineowner, does not mining act, but that the defendant company consider one necessary. In our opinion the refused to permit its engineer to attend such law requires such a pillar to be left, unless meeting, and generally refused to leave any the inspector and engineers, after due exambarrier pillar between its workings and those ination of the premises and consideration of of the Lehigh & Wilkes-Barre Coal Com- the subject, determine that none is needed to pany.

secure the safety of the men employed in “The prayers are (1) for an injunction en- either mine in case the other should be abanjoining the defendant from working its mines doned and allowed to fill with water. or coal property adjoining the mines or coal "The constitutionality of the boundary pilproperty of the Lehigh & Wilkes-Barre Coal lar provision of the act is attacked upon two Company without leaving a barrier pillar grounds: (1) Because it is said to violate of coal of the thickness or width of at least section 10 of article 1 of the Pennsylvania seventy feet in each vein; (2) requiring the Constitution, which provides that private defendant to file with the mine inspector a property shall not be taken or applied to certified copy of a survey as required by public use without authority of law and withlaw; and (3) for general relief. To this bill out just compensation being first made or the defendant has filed an answer admitting secured ; and (2) because it is claimed to be the plaintiff's averments of fact to be true, in conflict with the fourteenth amendment but (1) denying the necessity for such a bar- to the federal Constitution, which provides rier pillar, and (2) averring that section 10 that no state shall deprive any person of of article 3 of the mining act is unconstitu- life, liberty, or property without due process tional.

of law. The defendant contends that by "If the constitutionality of this provision requiring adjoining mineowners to leave a be conceded for the purpose of discussion, barrier pillar of coal between their workings and if the question of the necessity for any the act deprives them of a property right barrier pillar at all between these properties (viz., the right to mine such coal) without may be regarded as an open one, the decision compensation therefor and without due proof that question would seein to be committed cess of law. Both the right of eminent doby the statute to the tribunal of experts main and the police power of the state are thereby constituted, viz., the mine inspector attributes of sovereignty. They are inherent and the engineers of the owners of the ad- rights of the supreme power, founded upon

the social compact and essential to any the interest of the public health, even though form of government.

it referred to a particular class of the puu[4] "In our jurisprudence the right of em-lic, viz., adult women engaged in the kind of inent domain is defined to be “the power of employment mentioned in the act, and eren the state to apply private property to pub- though it did indirectly restrain the emlic purposes on payment of just compensa-ployé's freedom of contract. tion to the owner. 10 Am. & Eng. Ency. of “So, also, in Commonwealth v. Brown, 8 Pa. Law (2d Ed.) 1017. The provision for payment Super. Ct. 339, 351, 352, it was said by Judge of compensation, however, is ng part of the Rice that 'in the exercise of the police power power itself, but a limitation upon its use of the state it (the Legislature) may enact imposed by the Constitution. United States laws in the interest of public morals, and to v. Jones, 109 U. S. 513, 3 Sup. Ct. 346, 27 L. protect the lives, health, and safety of perEd. 1015. [5] 'The police power of the state,' sons following specified callings, and thus says Judge Orlady in Com. v. Beatty, 15 Pa. indirectly interfere with freedom of conSuper. Ct. 5, 15, 'is difficult of definition, but tract—i, e., with individual liberty and the it has been held by the courts to be the right right to acquire and use property. But, of to prescribe regulations for the good order, course, such classification with reference to peace, health, protection, comfort, conven- occupation must be reasonable and dictated ience, and morals of the community, which by a necessity springing from manifest pedoes not encroach on a like power vested in culiarities clearly distinguishing those of one Congress or state Legislatures by the federal class from each of the other classes, and imConstitution, or does not violate the provi- peratively demanding legislation for each sions of the organic law; and it has been class separately that would be useless and expressly held that the fourteenth amend- detrimental to the others. Laws enacted in ment to the federal Constitution was not pursuance of such classification and for such designed to interfere with the exercise of purposes are, properly speaking, neither lothat power by the state [citing Powell v. cal nor special. They are general laws bePenna., 127 U. S. 678, S Sup. Ct. 992, 1257, cause they apply alike to all that are simi32 L. Ed. 253; Powell v. Commonwealth, larly situated as to their peculiar necessi114 Pa. 265, 7 Atl. 913, 60 Am. Rep. 350]. ties. Ayars' Appeal, 122 Pa. 266, 281, 16 Its essential quality as a governmental agen- Atl. 356, 2 L. R. A. 577; Commonwealth v. cy is that it imposes upon persons and prop-Gilligan, 195 Pa. 504, 510, 46 Atl. 124. The erty burdens designed to promote the safety point we desire to emphasize here is that, to and welfare of the public at large. The prin- be a valid exercise of the police power in the ciple that no person shall be deprived of interest of the public safety, a statute need life, liberty, or property, without due process not necessarily be applicable to the whole of law, was embodied, in substance, in the body of the general public, but may affect a Constitutions of nearly all, if not all, of the specified class only. Thus in Holden v. Harstates at the time of the adoption of the dy, 169 U. S. 366, 393, 18 Sup. Ct. 383, 388, 42 fourteenth amendment, and it has never been L. Ed. 780, it was said by our highest court, l'egarded as incompatible with the principle, speaking by Mr. Justice Brown that, 'while equally vital, because equally essential to the the business of mining coal and manufacturpeace and safety of society, that all prop-ing iron began in Pennsylvania as early as erty in this country is held under the implied 1716, and in Virginia, North Carolina, and obligation that the owners' use of it shall Massachusetts even earlier than this, both not be injurious to the community [citing mining and manufacturing were carried on Boston Beer Co. v. Mass., 97 U. S. 25, 24 L. in such a limited way and by such primitive Ed. 989, at page 17 of 15 Pa. Super. Ct.). methods that no special laws were consider“The state still retains an interest in his ed necessary prior to the adoption of the (the wage earner's) welfare, however reckless Constitution for the protection of the operahe may be. The whole is no greater than the tives, but, in the vast proportions which sum of all its parts, and, when the individu- these industries have since assumed, it has al health, safety, and welfare are sacrificed,

been found that they can no longer be carthe state must suffer.” This declaration was health of those engaged in them, without

ried on with due regard to the safety and adopted by the United States Supreme Court in Holden v. Hardy, 169 U. S. 366, 18 Sup. special protection against the dangers necesCt. 383 [42 L. Ed. 780), invalidating a state consequence of this laws have been enacted

sarily incident to these employments. In statute which limited the employment of in most of the states designed to meet these men in underground mines, smelting works, exigencies and to secure the safety of peretc., to eight hours a day. By the decision sons peculiarly exposed to these dangers. from which we have just quoted, it was held * * * * In (states) where mining is the that the act of April 29, 1897 (P. L. 30), for-principal industry, special provision is made bidding the employment of adult women for for the shoring up of dangerous walls, for more than 12 hours a day, etc., was not in ventilation shafts, means of signaling the conflict with the Constitution of Pennsyl- surface, for the supply of fresh air, and the vania nor with the federal Constitution, but elimination of dangerous gases, etc. * *

Pa.)

COMMONWEALTH v. PLYMOUTH COAL CO.

151

ed by the courts of the several states their be a proper exercise of the police power and validity assumed, and, so far as we are in- not unconstitutional in the respect claimed, formed, they have been uniformly held to be the court saying: "This is no undue assumpconstitutional.' Mr. Justice Brown then re- tion of the right to apply the police power fers to certain cases where such laws were to a subject which does not fall within it; held to be constitutional under the police for regulations (on this and other subjects power, and among them to Commonwealth mentioned) have long been recognized as v. Bonnell, 8 Phila. 534, in which the late wholesome and reasonable, and as fit subJudge Harding of this court held the mine Jects for the exercise of the police power, as ventilation act of March 3, 1870 (P. L. 3), to tending to preserve the rights of the citizen be a constitutional exercise of the police and promote the welfare of the commonpower.

wealth. The mining of coal is one of the “So, also, in Chicago, W. & V. Coal Co. v. largest industries carried on in the state. People, 181 Ill. 270, 54 N. E. 961, 48 L. R. A. In mining proper support and ventilation are 554, a provision in the mining act of that necessary

for the health and safestate requiring the mineowner to pay the ty of the miner engaged in a dangerous emfees for the inspection of mines by a state ployment, and for that reason the public welinspector was held to be valid and constitu- fare requires it. * * This rib of solid tional under the police power, though its ef-coal not to be mined into by either of the fect was to deprive the owner of property, to adjoining owners was to be contributed by wit, the money required to be paid as fees. each in equal parts for the mutual benefit of It was there said, as it might equally well each, for the protection of the surface, to be said in the case at bar: 'The mining of secure independent systems of ventilation, coal is recognized as a dangerous and haz- drainage, and workings, and in aid of an ardous business, and is a productive indus- industry so great and widely diffused that try of the greatest importance. For many the state as a whole is interested therein. years in this state many thousands of men

* This regulation works no hardship have been engaged in that character of on one for the benefit of another, but is imwork, and a proper safeguard of their lives partial, just, and reasonable, imposing a and health is a matter of so great interest common burden for the benefit of all such and necessity that no subject can be men-owners.' tioned where there is a more positive neces "The police power is distinguished from sity for the exercise of the police power than the right of eminent domain in that the in seeking to subserve their safety. * * *' state by exercising the latter right takes Speaking of the payment of the inspector's private property for public use, thereby enfees: The expense thus incurred is imposed titling the owner to compensation under the because of the peculiar dangers of the sur- | Constitution, while the police power, foundrounding situation and subserves, not only ed as it is on the maxim, 'Sic utere tuo ut the interest of the miners, but alike protects alienum non lædas,' is exerted to make that the mineowner; and hence the payment of maxim effective by regulating the use and the fee (in this case, the leaving of coal for enjoyment of property by the owner, or, if a barrier pillar) can be properly imposed up- he is deprived of his property altogether, it on the mineowner without violating any pro- is not taken for public use, but rather devision of the Constitution. That case was stroyed in order to conserve the safety, morfollowed by Consolidated Coal Co. v. People, | als, health, or general welfare of the public, 186 Ill. 131, 57 N. E. 880, 56 L. R. A. 266, and in neither case is the owner entitled to where it was held that the same mining act compensation, for the law either regards his (which, in essentials, is similar to our own) loss as damnum absque injuria, or considers did not deny to mine operators the equal him sufficiently compensated by sharing in protection of the laws, nor take their prop- the general (and, in this case, also the speerty without due process of law in violation cific) benefits resulting from the exercise of of the fourteenth amendment of the federal the police power. 22 Am. & Eng. Ency. of Constitution.

Law (2d Ed.) 916, and cases there cited. “Still closer in its facts to the case now [1] "For example, in the case at bar, the before us is Mapel V. John, 12 W. Va. 30, state does not take the coal in the barrier 24 S. E. 608, 32 L. R. A. 800, 57 Am. St. Rep. pillar and convert it to a public use, but 839. There the mining act in question pro- leaves it in the ownership and possession of vided, inter alia, that ‘no owner or tenant of the adjoining mineowners. The coal itself any land containing coal shall open, or sink, is not taken. The property right affected by or dig, excavate or work in any coal mine or the statute is not ownership, but use, of the shaft on such land, within five feet of the material thing—the right to mine it out line dividing said land from that of another Nor does the state take that right for pubperson or persons, without the consent in lic use. The act does not transfer the right writing of every person interested in, or to mine out the coal from the owner to some having title to such adjoining lands,' etc. one else for the public benefit, but prohibits This provision was claiined to be unconsti- that right from being exercised by any onetutional as being an infringement of the that is, destroys it, to prevent a possible rights of private property. It was held to calamity, to wit, the flooding of mines, and

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