State ex rel. Corwin v. The Indiana And Ohio Oil, Gas, And Mining Co.

Decision Date06 November 1889
Docket Number14,928
Citation22 N.E. 778,120 Ind. 575
PartiesThe State, ex rel. Corwin, v. The Indiana and Ohio Oil, Gas, and Mining Company
CourtIndiana Supreme Court

From the Jay Circuit Court.

Judgment affirmed.

L. T Michener, Attorney General, J. M. Smith, W. E. Niblack, J. C Nelson, Q. A. Myers, L. Walker, J. R. Coffroth and C. B Stuart, for appellant.

J. B. Cohrs, R. C. Bell and S. R. Morris, for appellee.


Elliott, C. J.

At the last session of the General Assembly several acts were passed upon the subject of mining, using, and disposing of natural gas. The validity of one of these acts, that of March 9th, 1889, is assailed, upon the ground that it contravenes the provisions of the Federal Constitution. The first section of the act, which is here the direct subject of controversy, reads thus:

"Section 1. Be it enacted by the General Assembly of the State of Indiana, That it shall be unlawful for any person or persons, company, corporation, or voluntary association to pipe or conduct natural gas from any point within this State to any point or place without this State; any person or persons, company, corporation, or voluntary association, now or hereafter incorporated under any law of this or any other State, for the purpose of drilling and mining for petroleum or natural gas, or otherwise acquiring gas or petroleum wells and the products thereof, and to furnish the same to its patrons, or to convert such product into gas for illuminating purposes or fuel, which shall have entered upon and acquired by deed of conveyance or appropriated or condemned any real estate under any law of this State, for the purpose of laying its pipe lines or for any other purpose, which shall permit any gas to be conveyed or carried through its pipes to any place without this State, or for the purpose of being used without this State, shall forfeit all right, title and interest in and to all such real estate so appropriated, conveyed or condemned, and the pipes laid thereunder, and the same shall revert to and become the property of the persons or corporation, their heirs, successors or assigns, who owned the same at the time of such appropriation, conveyance or condemnation: Provided, That the provisions of this act shall not be so construed as to prevent towns or cities divided by any of the boundary lines of the State, and having a majority of the population of such cities or towns residing within this State, from being supplied with natural gas." Elliott's Suppl., section 1785.

On the 23d of February, 1889, an act was passed declaring that the word "mining" shall be deemed to include the sinking of gas wells, and that the incorporation of companies and the subscription of stock under former laws are legalized. Acts of 1889, p. 38. On the 21st day of February, 1883, an act was passed authorizing gas companies to extend their pipes beyond the corporate limits of towns and cities. Acts of 1883, p. 17. On the 20th day of February, 1889, the General Assembly passed an act authorizing natural gas companies to appropriate and condemn property. Acts of 1889, p. 22. Elliott's Suppl., sections 1009, 1014, 1016. All of these acts were put in immediate effect by the proper emergency clause.

The appellee's counsel contend that the act of March 9th, 1889, is invalid, because it is interstate commerce legislation, and such legislation must be exclusively Federal.

In order to give any force to this contention it is necessary to determine, at the outset, whether natural gas can be considered an article of commerce. With this preliminary question we have but little difficulty. Natural gas is as much an article of commerce as iron ore, coal, petroleum, or any other of the like products of the earth. It is a commodity which may be transported, and it is an article which may be bought and sold in the markets of the country. Citizens', etc., Co. v. Town of Elwood, 114 Ind. 332, 16 N.E. 624; Carothers Appeal, 118 Pa. 468, 12 A. 314; Columbia Conduit Co. v. Commonwealth, 90 Pa. 307; West Virginia, etc., Co. v. Volcanic Co., 5 W.Va. 382; The Daniel Ball, 77 U.S. 557, 10 Wall. 557, 19 L.Ed. 999; Kidd v. Pearson, 128 U.S. 1, 32 L.Ed. 346, 9 S.Ct. 6.

The gas in the earth may not be a commercial commodity, but, when brought to the surface and placed in pipes for transportation, it must assume that character as completely as coal on the cars or petroleum in the tanks. We suppose it clear that Pennsylvania could not prohibit the transportation of coal or petroleum to another state, and there is no difference in principle between cases where coal is the commodity affected and those in which it is natural gas. It is no doubt true that there is a point at which a natural or manufactured product is not an article of commerce, but, when it assumes such a form as fits it for transportation from state to state, it is, so far as the law of interstate commerce is concerned, transformed into a commercial commodity. For the purposes of taxation an article of property may not be regarded as a commercial commodity until it has started on its way from one state to another, but property that may become an article of commerce can not be kept in the state where it was produced by a state law forbidding its transportation. Coe v. Errol, 116 U.S. 517, 29 L.Ed. 715, 6 S.Ct. 475. If this were not so, then, not only might coal and petroleum be kept within the state in which they were produced, but so might corn and wheat, cotton and fruit, and lead and iron. If such laws could be enacted and enforced, a complete annihilation of interstate commerce might result, and it was to prevent the possibility of such a result that the provision vesting exclusive power in the Federal government was written in the National Constitution. State, ex rel., v. Woodruff Sleeping Coach Co., 114 Ind. 155, 15 N.E. 814.

The question as to the extent of the power of the State to control the business of mining is not necessarily involved in this controversy. Granting, but not asserting, that procuring natural gas from the earth is mining, still the question of the power of the State over that business is not so involved as to require our judgment upon it. The provisions of the statute are so firmly interlocked that separation is impossible. Where the provisions of a statute are so closely blended that a separation can not be effected without substituting another law for that intended to be enacted, none can be made by the courts. Griffin v. State, ex rel., 119 Ind. 520, 22 N.E. 7. To authorize the courts to reject part and sustain part of a statute "the parts must be capable of separation, so that each may be read by itself;" limitation, by construction, is not separation. Baldwin v. Franks, 120 U.S. 678, 30 L.Ed. 766, 7 S.Ct. 656; Virginia Coupon Cases, 114 U.S. 269; Trade-Mark Cases, 100 U.S. 82, 25 L.Ed. 550; United States v. Reese, 92 U.S. 214, 23 L.Ed. 563. In this instance there is no attempt to regulate the business of mining except in so far as that business may be connected with transporting natural gas out of the state. The principal object--and, indeed, it is not too much to say, the sole object of the statute--is to prevent persons from conveying gas into another state, and the provisions of the act as to the sinking of wells is so bound up with the provisions designed to effect the principal object that separation can not be made without completely destroying the statute and substituting another for it by judicial construction.

The power to regulate commerce between the states is exclusively in the Federal Congress. Inaction by Congress will not authorize the States to legislate in matters of interstate commerce. Whatever doubt the earlier decisions may have created--and certainly there was, for a time, much confusion and conflict--it is completely removed by the recent decisions, and the law now is, that all legislation in regulation of commerce between the states must be enacted by the national legislature.

Transportation of commercial commodities from state to state is interstate commerce, and the state legislatures can neither burden nor restrict it. Henderson v. Mayor, 92 U.S. 259, 23 L.Ed. 543; Chy Lung v. Freeman, 92 U.S. 275, 23 L.Ed. 550; Railroad Co. v. Husen, 95 U.S. 465, 24 L.Ed. 527; Robbins v. Shelby Co. Taxing District, 120 U.S. 489, 30 L.Ed. 694, 7 S.Ct. 592; Corson v. Maryland, 120 U.S. 502, 30 L.Ed. 699, 7 S.Ct. 655; Western, Union Tel. Co. v. Massachusetts, 125 U.S. 530, 31 L.Ed. 790, 8 S.Ct. 961; State, ex rel., v. Woodruff Sleeping Coach Co., supra.

The power of the Federal Congress over all matters of interstate commerce, broad as the modern decisions declare it to be, does not absolutely exclude state legislation touching commerce between the states. Police power not delegated to the general government resides in the states as an inherent attribute of sovereignty. U. S. v. De Witt, 9 Wall. 41; Slaughter-House Cases, 83 U.S. 36, 16 Wall. 36, 21 L.Ed. 394; U. S. v. Reese, supra; Sherlock v. Alling, 93 U.S. 99, 23 L.Ed. 819; Patterson v. Kentucky, 97 U.S. 501, 24 L.Ed. 1115; Civil Rights Cases, 109 U.S. 3, 27 L.Ed. 835, 3 S.Ct. 18; Smith v. Alabama, 124 U.S. 465, 31 L.Ed. 508, 8 S.Ct. 564; Nashville, etc., R. W. Co. v. Alabama, 128 U.S. 96, 32 L.Ed. 352, 9 S.Ct. 28.

The states may, so long as they do no more than legitimately exercise the police power, legislate upon matters connected with interstate commerce. Sherlock v. Alling, supra; County of Mobile v. Kimball, 102 U.S. 691, 26 L.Ed. 238; Smith v. Alabama, supra; Nashville, etc., R. W. Co. v. Alabama, supra.

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  • The rule of capture - an oil and gas perspective.
    • United States
    • Environmental Law Vol. 35 No. 4, September 2005
    • September 22, 2005
    ...for the protection of the persons and property of its inhabitants"). But cf. Corwin v. Indiana & Ohio Oil, Gas & Mineral Co., 22 N.E. 778 (Ind. 1889) (invalidating legislation prohibiting transportation of gas beyond state boundaries on Dormant Commerce Clause (71) See supra note 9 ......

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