Townsend v. The State

• Decision Date: 18 May 1897
• Docket Number: 18,123
• Parties: Townsend v. The State
• Court: Indiana Supreme Court

47 N.E. 19

147 Ind. 624

Townsend v. The State

No. 18,123

Supreme Court of Indiana

May 18, 1897

From the Blackford Circuit Court.

Affirmed.

John Cantwell, S.W. Cantwell and L. B. Simmons, for appellant.

W. A Ketcham, Attorney-General, Merrill Moores, Jay A. Hindman, A M. Waltz, J. C. Blacklidge and C. C. Shirley, for appellee.

OPINION

McCabe, J.

The appellant was prosecuted before a justice of the peace by affidavit charging that on the 9th day of October, 1895, and at divers other times at said county of Blackford and State of Indiana, before that, he did then and there knowingly and unlawfully use, light, and burn natural gas for illuminating purposes in what is known as flambeau light. The justice overruled a motion to quash the affidavit and upon a trial found the defendant guilty, assessing his fine at $ 1.00 and rendered judgment upon the finding and for costs, from which he appealed to the Blackford Circuit Court. He there renewed his motion to quash which that court overruled, and upon his plea of not guilty a jury upon a trial found him guilty, fixing his punishment at a fine of $ 1.00, upon which the court rendered judgment over appellant's motion for a new trial. The assignment of errors calls in question the rulings above named, which rulings are the only questions presented by this appeal.

The statute, with a violation of which appellant was charged in the affidavit, provides that: "The use of natural gas for illuminating purposes, in what are known as flambeau lights, is a wasteful and extravagant use thereof, and is dangerous to the public good, and it shall therefore be unlawful for any company, corporation, or person, for hire, pay or otherwise, to use natural gas for illuminating purposes in what are known as flambeau lights in cities, towns, highways or elsewhere: Provided, That nothing herein contained shall be construed as to prohibit any such company, corporation, or person from the necessary use of such gas in what are know as 'jumbo' burners enclosed in glass globes, or lamps or by the use of other burners of similar character so enclosed, as will consume no more gas than said 'jumbo' burners." Section 2316, Burns' R. S. 1894 (Acts 1891, p. 55, section 1).

Section 3 of the act provides that on conviction the person so convicted shall be deemed guilty of a misdemeanor and fined in any sum not exceeding $ 25.00, and for a second offense in any sum not exceeding $ 200.00. Section 2318, Burns' R. S. 1894 (Acts 1891, p. 55, section 3).

It is contended that the circuit court ought to have sustained the motion to quash the affidavit because the act violates the provision in the fourteenth amendment to the federal constitution that no state shall "deprive any person of life, liberty or property without due process of law," in that it deprives the owner of a gas well of his property in the gas; and also that it violates the fifth amendment of the federal constitution providing that "no person shall be deprived of life, liberty or property without due process of law." Also that it violates section 1, of the Bill of Rights of the state constitution, declaring "that all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty and the pursuit of happiness;" also the twenty-first section providing that: "No man's property shall be taken by law without just compensation;" and also section twenty-three providing that: "The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities which upon the same terms shall not equally belong to all citizens." Counsel have not pointed out or explained how the act violates this last provision in the Bill of Rights, nor do we see or know how it can do so and hence we conclude that it does not.

Nor have they pointed out or explained how it violates the provision securing the inalienable right to life, liberty and the pursuit of happiness to each individual, and we are unable to perceive how it does so. While our republican government guarantees the right to pursue one's own happiness, yet that government is charged with the duty of protecting others than appellant in the pursuit of their happiness, and hence the inalienable right to pursue one's own happiness must necessarily be subject to the same right in all others. Hence when that right is asserted in such a manner as to conflict with the equal right to the same thing in others, it is not an inalienable right, nor a right at all, but is a wrong. This demonstrates the wisdom of the maxim that true liberty must be regulated and restrained by law. If, therefore, it makes appellant happy to waste natural gas for the want of which others are made to suffer and be unhappy, as the direct result of such waste, then the pursuit of such happiness is not an inalienable right but a positive wrong. That leaves no objection to consider except that it deprives the individual of property without due process of law, or without compensation in violation of the provisions quoted from the federal and state constitutions.

It is agreed on both sides that the act is an exercise of, and that it calls into exercise the police power of the State.

It is true that natural gas when brought to the surface and secured in pipes is property belonging to the person in whose pipes it is secured. State, ex rel., v. Indiana, etc., Mining Co., 120 Ind. 575, 22 N.E. 778; Jamieson v. Indiana, etc., Oil Co., 128 Ind. 555, 28 N.E. 76.

But the act in no way deprives the owner of the full and free use of his property. It restrains him from wasting the gas to the injury of others, to the injury of the public.

It might present a very different and serious question whether the legislature has the power to prevent him from wasting his own property, if by so doing he in no way injured others as appellant's learned counsel erroneously assume.

In People's Gas Co. v. Tyner, 131 Ind., at pp. 281, 282, this court, appropriating the language of the Supreme Court of Pennsylvania in Westmoreland, etc., Gas Co. v. DeWitt, 130 Pa. 235, 18 A. 724, said: "Water and oil, and still more strongly gas, may be classed by themselves, if the analogy be not too fanciful, as minerals ferae naturae. In common with animals, and unlike other minerals, they have the power and tendency to escape without the volition of the owner. Their 'fugitive and wandering existence within the limits of a particular tract is uncertain.' * * * They belong to the owner of the land, and are a part of it, so long as they are on or in it, and are subject to his control; but when they escape, and go into other land, or come under another's control, the title of the former owner is gone. Possession of the land, therefore, is not necessarily possession of the gas. If an adjoining, or even a distant, owner, drills his own land, and taps your gas, so that it comes into his well and under his control it is no longer yours but his." It is not to prevent an adjoining or a distant owner from doing this that the act in question was passed. But it was to prevent him from needlessly wasting the gas which he is drawing from the general reservoir which nature has furnished, and which experience and prudence teach is liable to be exhausted. It was further said in the Tyner case, from which we have just quoted: "The rule that the owner has the right to do as he pleases with or upon his own property is subject to many limitations and restrictions, one of which is that he must have due regard for the rights of others. It is settled that the owners of a lot may not erect and maintain a nuisance thereon whereby his neighbors are injured."

By the Tyner case, supra, this court has likened natural gas and laws regulating the same to wild animals and laws regulating the taking of such animals. The Supreme Court of Minnesota in State v. Rodman, 58 Minn. 393, 59 N.W. 1098, having under consideration the constitutionality of a certain game law of that state, said: "We take it to be the correct doctrine in this country that the ownership of wild animals, so far as they are capable of ownership, is in the State, not as proprietor, but in its sovereign capacity, as the representative, and for the benefit, of all its people in common. The preservation of such animals as are adapted to consumption as food, or to any other useful purpose, is a matter of public interest; and it is within the police power of the State, as the representative of the people in their united sovereignty, to enact such laws as will best preserve such game, and secure its beneficial use in the future to the citizens, and to that end it may adopt any reasonable regulations, not only as to time and manner in which such game may be taken and killed, but also by imposing limitations upon the right of property in such game after it has been reduced to possession."

Fish laws are of the same general nature. And their constitutionality has been upheld.

In Gentile v. State, 29 Ind., at pp. 415, 417 it was said: "The proposition is, that the legislature 'has no power to pass a law denying or abridging the right of the people of the State to fish in their own waters, and upon their own soil, at pleasure;' that land owners derive titles from the United States, and their grants include all unnavigable streams of water passing over their lands, with the exclusive right to fish therein, within their own boundaries; and that where the land bounds on such a stream, the stream is the common property of the adjoining proprietors, who have the exclusive right of fishing. And it is claimed that this right to fish may be exercised at all times, at the will of the land owner, and is not subject to be controlled, restrained or abridged by the legislature...