Com. by Shapp v. National Gettysburg Battlefield Tower, Inc.
Decision Date | 03 October 1973 |
Citation | 454 Pa. 193,311 A.2d 588 |
Parties | , 5 ERC 1949, 3 Envtl. L. Rep. 20,876 COMMONWEALTH of Pennsylvania by the Honorable Milton J. SHAPP, Governor and the Honorable J. Shane Creamer, Attorney General and as Trustee for the people of the Commonwealth, Appellant, v. NATIONAL GETTYSBURG BATTLEFIELD TOWER, INC., et al., Appellees. |
Court | Pennsylvania Supreme Court |
Israel Packel, Atty. Gen., Harrisburg, for appellant.
Jerome H. Gerber, Harrisburg, for appellees.
Louis J. Lefkowitz, Atty. Gen. of New York, for the State of New York, amicus curiae.
Robert E. Woodside, Harrisburg, for amicus curiae.
Before, JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
On July 3, 1971, National Gettysburg Battlefield Tower, Inc. (the Tower Corporation) and Thomas R. Ottenstein, two of the appellees, negotiated an agreement with the United States Government, acting through the Director of the National Park Service, in which the Tower Corporation conveyed certain land to the government and agreed to abandon construction of an observation tower near the Gettysburg Battlefield, at an area found objectionable to the Park Service, in exchange for the government's cooperation and permission to build the tower in another area near the battlefield. The Tower Corporation also agreed to establish a charitable foundation to support the Park Service's activities at Gettysburg and at the Eisenhower Farm Historical Site and to construct the tower in accordance with certain specifications, with the height of the tower to be limited to 307 feet. The Park Service also conveyed a right of way for limited access to the proposed observation tower site.
What the National Park Service was originally willing to permit, 1 the Commonwealth of Pennsylvania, appellant herein, sought to enjoin. On July 20, 1971, the Commonwealth brought an action in the Court of Common Pleas of Adams County, to enjoin construction of the proposed 307--feet tower, alleging that the proposed construction was 'a despoilation of the natural and historic environment,' because, in the words of one critic:
'The tower as proposed . . . would disrupt the skyline, dominate the setting from many angles, and still further erode the natural beauty and setting which once was marked by the awful conflict of a brothers' war.' 2
At the trial, the Commonwealth produced a number of witnesses who generally agreed that they found the tower, in their opinion, to be detrimental to the historic, scenic, and aesthetic environment of Gettysburg. Appellees, on the other hand, produced experts who found the geometric form of the tower to be aesthetically pleasing and its design, while unobtrusive, to be of great educational value because it would provide 'the full sweep or overview of a landscape where a significant event in American history took place.'
The chancellor, after making detailed findings concerning the location and characteristics of the tower and the neighborhood of the park, concluded that the Commonwealth had failed to show by clear and convincing proof that the natural, scenic, historic or aesthetic values of the Gettysburg environment would be injured by the erection of the tower. In order to reach the ultimate issue, the chancellor first found to be without merit the defense interposed by appellees that Article 1, § 27 of the Pennsylvania Constitution, P.S.--upon which the Commonwealth relied for the authority of the Attorney General to bring this suit--was not self-executing and, therefore, legislative authority was required before the suit could be brought.
On appeal to the Commonwealth Court, 8 Pa. Cmwlth. 231, 302 A.2d 886, all members of the Court agreed that the Commonwealth had failed to carry its burden of proof on the issue of whether the tower would injure the Gettysburg environment. However, President Judge Bowman filed a concurring opinion in which he stated he believed that it was not necessary to reach the difficult question of whether the amendment was self-executing and Judge Mencer filed a concurring and dissenting opinion in which he dissented from the majority's holding that Article 1, § 27 was self-executing. Because of the importance of the questions involved, we granted allocatur and, on June 8, 1973, we granted the Commonwealth's petition for a supersedeas to stop further construction of the tower pending the outcome of this appeal.
Initially, it should be stated that, as was recognized by Judge Rogers, speaking for the majority of the Commonwealth Court:
Similarly, there is no statute of the Pennsylvania Legislature, which would authorize the Governor and the Attorney General to initiate actions like the law suit in the instant case. Rather, authority for the Commonwealth's suit is allegedly based entirely upon Article 1, § 27 of the State Constitution, ratified by the voters of Pennsylvania on May 18, 1971, which reads as follows:
It is the Commonwealth's position that this amendment is self-executing; that the people have been given a right 'to the preservation of the natural, scenic, historic and esthetic values of the environment,' and 'that no further legislation is necessary to vest these rights in the people.'
The general principles of law involved in determining whether a particular provision of a constitution is self-executing were discussed at length in O'Neill v. White, 343 Pa. 96, 22 A.2d 25 (1941). In that case, we explained at pages 99--100, 22 A.2d at page 26--27:
'The constitutional provision invoked by appellees is unavailing in this case, for this provision is not self-executing and its mandate cannot be carried out because the legislature has not provided the means for doing so. 6 R.C.L. section 52, p. 57.
'Cooley's Constitutional Limitations, 8th Ed., Vol. 1, p. 165 says:
'In Davis v. Burke, 179 U.S. 399, 403, 21 S.Ct. 210, 212, 45 L.Ed. 249, the United States Supreme Court said: 'Where a constitutional provision is complete in itself it needs no further legislation to put it in force. When it lays down certain general principles, as to enact laws upon a certain subject, or for the incorporation of cities of certain population, or for uniform laws upon the subject of taxation, it may need more specific legislation to make it operative. In other words, it is self-executing only so far as it is susceptible of execution.''
The Commonwealth makes two arguments in support of its contention that § 27 of Article 1 is self-executing. We find neither of them persuasive.
First, the Commonwealth emphasizes that the provision in question is part of Article 1 and that no provision of Article 1 has ever been judicially declared to be non-self-executing. The Commonwealth places particular emphasis on the wording of § 25 of Article 1. See Erdman v. Mitchell, 207 Pa. 79, 56 A. 327 (1903). Section 25 of Article 1 reads as follows:
'To guard against transgressions of the high powers which we have delegated, we declare that everything in this article is excepted out of the general powers of government and shall forever remain inviolate.'
However, it should be noted that Article 1 is entitled 'Declaration of Rights' and all of the first twenty-six sections of Article 1 which state those specific rights, must be...
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