Harris-Walsh, Inc. v. Dickson City Borough
Harris-Walsh, Inc. v. Dickson City Borough
Opinion of the Court
Opinion by
This appeal involves a challenge, successful in the court below, to the validity of a borough ordinance which seeks to regulate, within the territorial limits of the borough, the future mining of anthracite coal by the strip mine method.
Since 1950, Harris-Walsh, Inc. (Harris-Walsh), has been engaged in the removal of anthracite coal
On February 18, 1964, Harris-Walsh, averring that the ordinance was “illegal, unlawful and unconstitutional” for seventeen stated reasons and that it had been advised that, if the required bond was not posted,
Initially, we must consider whether the court below, sitting as a court of equity, had jurisdiction, to entertain this action to restrain the enforcement of this ordinance. Although none of the parties to this action question equity’s jurisdiction — in fact, the parties agree equity has jurisdiction — nevertheless, it is our duty to inquire into the existence of jurisdiction. We have recently said: “Jurisdiction can be raised at any' time, even at the appellate level and by the appellate court itself: [citing authorities]”: (Emphasis supplied) Balazick v. Dunkard-Bobtown Municipal Authority, 414 Pa. 182, 185, 199 A. 2d 430.
If at law there exists a remedy, complete and adequate in nature, equity will not assume jurisdiction; absent such a remedy, equity may act. A remedy at law may be provided under the statute or the ordinance the validity of which is attacked, but, unless such statute or ordinance provides a remedy adequate “to the task of resolving plaintiffs’ objections,” the mere existence of such remedy will not preclude the assumption
In the case at bar, does an adequate remedy at law exist? The only section of this ordinance which might be construed as remedy-providing is §8 which provides criminal penalties
By way of contrast, recently in Bliss Excavating Co. v. Luzerne County, 418 Pa. 446, supra, a group of strip mine operators instituted an. action in equity which challenged the validity of a county zoning ordinance which, inter alia, purported to regulate strip mining within the territorial limits of the county. In Bliss, both the zoning ordinance and the enabling statute provided administrative and judicial procedures sufficient to adequately determine all possible questions raised by the strip mine operators; we, therefore, held equity lacked jurisdiction to entertain that action. Unlike Bliss, the instant ordinance provides no such adequate remedy; therefore, equity does have jurisdiction
Although the mining of anthracite coal by the strip mine method has been in p./ogress for many years, it was not until 1947 that the legislature took steps to protect the public’s interests by a regulation of such industry. In the meantime the strip mining of anthracite coal had created in the anthracite coal field in Northeastern Pennsylvania an intolerable situation. In disregard of the interests of the public, the strip mine operators scarred and defaced the region, removed the overburden from the coal and piled it in huge and unsightly refuse banks which constituted potential fire hazards, created holes, open pits and huge craters in the terrain which were left unfilled and in such condition as to constitute potentially dangerous' traps for unwary children and adults, converted vast areas of scenic beauty into unsightly and ugly surroundings and even conducted their mining operations in close proximity to the yards and homes of the public: in short, these operators created a situation which adversely affected the properties, the safety and the general welfare of the public in the area. The complete indifference of government on the state level to the creation and existence of this intolerable situation. up until 1947 is beyond understanding; even now, the condition remains but slightly alleviated.
Prior to 1947, the only legislative step taken in connection with strip mining was the passage of a statute in 1941; the purpose of that statute was to protect “the health and safety of persons employed” in stripping.
On August 13, 1963, the législature extensively revised and amended the 1947 statute and amendments thereto by a statute entitled the “Anthracite Strip Mining and Conservation Act” (Act of August 13, 1963, P. L. 781, §1 et seq., 52 P.S. §681.1 et seq.). The stated purpose of this statute was “the regulation of mim ing of anthracite coal by the open pit or strip mining method and for the conservation and improvement of lands affected directly or indirectly by such mining; requiring operators to be licensed, to pay license fees, to secure permits to engage in strip mining and to file bonds conditioned for compliance with this act; requiring backfilling of stripping pits and leveling and planting lands affected to prevent erosion and the pollution of waters and to protect public health, safety and web fare; .conferring powers and imposing duties upon thé Department of Mines and Mineral Industries; providing for appeals, and imposing penalties, and making appropriations.”
The thrust of the Borough’s contention is that, even though it has enacted legislation dealing with the regu
In a landmark case, Western Pennsylvania Restaurant Association v. Pittsburgh, 366 Pa. 374, 380, 381, 77 A. 2d 616, this Court, speaking through Mr. Justice (later Chief Justice) Steen, enunciated the appropriate criteria for determining whether the Commonwealth, to the exclusion of its political subdivisions, has preempted by legislation the regulation of certain activities: “(1) There are statutes which expressly provide that nothing contained therein should be construed as prohibiting municipalities from adopting appropriate ordinances, not inconsistent with the provisions of the act or the rules and regulations adopted thereunder, as might be deemed necessary to promote the purpose of the legislation. On the other, hand there are statutes which expressly provide that municipal- legislation in regard to the -subject- covered by the State act is forbidden. Then there is a third class of statutes which, regulating some industry or occupation, are silent as to whether municipalities are or are not permitted to enact supplementary legislation or to impinge in any manner upon the field entered upon by the State; in such cases the question whether municipal action is permissible must be determined by an analysis of the provisions of the act itself in order to ascertain the probable intention of the legislature in that regard. It is of course self-evident that a municipal ordinance cannot be sustained to the extent that it is contradictory to, or inconsistent with, a state statute: [citing an authority]. . . . municipalities in the exercise of the police power may regulate certain occupations by imposing restrictions which are in addition to, and not
Section 10 of the “Anthracite Strip Mining and Conservation Act” (Act of 1963, supra, §10, 52 P.S. §681.20c) provides: “Except as herein provided,
What does the phrase “exclusive jurisdiction” commonly and ordinarily connote or mean? Almost a half-century ago, the Superior Court in Commonwealth v. Supt. House of Correction, 64 Pa. Superior Ct. 613, 623, interpreting “exclusive jurisdiction” as used in a statute, said: “Nor can there be any doubt as to the meaning the legislature intended to give to the word exclusive. In its usual and generally accepted sense, as given by lexicographers, and in the ordinary speech of the people, it means, — possessed to the exclusion of others; appertaining to the subject alone, individual, sole; to confer exclusive jurisdiction on one court deprives all other courts of such jurisdiction, whether therefore exclusive or concurrent, conferred by statute. 3, Words and Phrases, 2550; possessed and enjoyed to the exclusion of others; debarred from participation and enjoy
Both by statute and decisional law we are required to construe words and phrases according to their common and approved usage; statutes are presumed to employ words in their popular and plain everyday sense and the popular meaning of such words must prevail unless the statute defines them otherwise or unless the context of the statute requires another meaning: Act of May 28, 1937, P. L. 1019, §33, 46 P.S. §533; Commonwealth v. McHugh, 406 Pa. 566, 569, 178 A. 2d 556; Jury Estate, 381 Pa. 169, 176, 177, 112 A. 2d 634.
It is clear that the legislature has not specifically defined the phrase “exclusive jurisdiction” in the statute. Therefore, as it must, the Borough relies upon the provisions and context of the statute as mandating the assignment to the phrase “exclusive jurisdiction” a meaning other than its usual and ordinary meaning. The Borough contends that, when the legislature employed the phrase “exclusive jurisdiction” in §10 of the statute, an examination of the statute reveals that it intended to grant an undivided and exclusive jurisdiction (a) only in respect to the rules and regulations which affect the health and the safety of workers in the industry or (b) only to administer the provisions of the 1963 statute.
The Borough would limit the exclusive jurisdiction of the state to the area of the safety of the workers in the industry by reason of what might be termed a grammatical argument. The important sentence in §10 con
Neither the 1963 statute nor any prior statutes which it amends, either by title or by provisions, purports to provide measures for the protection of the workers in the industry; the whole thrust of the 1963 statute and its predecessors is the protection of the public. A reading of the provisions of these statutés makes clear beyond any question the .purpose of these statutes. Viewed in such light, it would be absurd to
. The Borough next contends that the phrase “exclusive jurisdiction” must be confined to the administration of the provisions of the statute and, since the Borough does not by its ordinance intend to administer the provisions of the state statute, the field in which the Borough intends to act has not been preempted; In this connection another provision of the 1963 statute must be noted. Section 10 provides, inter alia, for the creation within the Department of Mines and Mineral Industries of the Commonwealth of a new Bureau to be known as the “Bureau of Anthracite Conservation and Reclamation”. To this Bureau, §10 expressly commits the “power” and “duty” to “administer all of the laws of this Commonwealth governing and relating to the mining of anthracite coal by the open pit or strip method and, subject to the approval of the secretary, to exercise all the powers and perform all the duties by law vested in and imposed upon said secretary in relation to such open pit or strip mining”. (Emphasis supplied). Act of 1963, supra, §10, 52 P.S. §681.20b. Having spelled out by whom the provisions of the 1963 statute, as well as all other statutes dealing with anthracite strip mining, are to be administered the legislature would indeed be guilty of redundancy if it intended that the grant of exclusive jurisdiction contained in another sentence of the same section be restricted merely to the administration of the provisions of the statute. When the legislature wanted to make clear by whom the statute was to be administered it did so and no further grant of power to administer the statute was necessary.
In view of the conclusion reached, we need not seek whether the statute by implication has preempted the field nor whether the statute and the ordinance so com flict that the latter must fall. Moreover, we need not inquire into the .validity of the rejection by the court, below of the evidence as to backfill conditions .within and without the Borough, the second question raised on this appeal. . . -
It may not be inappropriate to note that the reason why the Borough passed this ordinance was its belief that the. Commonwealth has not acted adequately in attempting to regulate this industry and that the legislation enacted was simply a “half measure”, weak and supine. The belief of the Borough may be well founded. However, the adequacy of the legislation to cope with the problem and the wisdom or the lack thereof on the part of the legislature in framing this legislation is not for us to determine. Such questions are solely for the legislature to determine and upon, their province wé must not encroach.
Decree affirmed. Eách party to pay own costs.
This coal is owned by Parmoff Corporation and Moffat Coal Company, Inc., which, had a contract of mine-lease with Parmoff to strip mine the coal. Harris-Walsh is strip mining the coal under agreement with both Parmoff and Moffat. By court order, Parmoff and Moffat were permitted to be joined as parties plaintiff in this .litigation.
Section 4 of the ordinance requires that a strip mine operator, within one month after a strip mine operation is abandoned, “back-fill all stripping pits, so that the surface of the soil is restored as close as practicable to its natural condition as it existed prior to such mining.” In implementation of §4, §5 requires the strip mine operator, as a prerequisite to commencing to strip mine, to furnish a bond conditioned on compliance with §4 and the amount of the bond.is to be “based upon the estimate of the reasonable cost of such backfilling.”
The Commonwealth in the court below took the position the ordinance was valid.
A fine of not more than $100 and, in default of the payment thereof, not more than BO days imprisonment: each day’s violation constitutes a separate offense.
Cf. Boggs v. Werner, 372 Pa. 312, 94 A. 2d 50; Palmer v. O’Hara, 359 Pa. 213, 58 A. 2d 574; Commonwealth v. Soboleski, 303 Pa. 53, 153 A. 898.
The Borough Code (Act of May 4, 1927, P. L. 519, §1010, as amended, 53 P.S. §46010), which provides for appeals questioning the legality- of an ordinance, affords no adequate relief. Cf. Wood v. Goldvarg, 365 Pa. 92, 95, 74 A. 2d 100.
Jurisdiction in the dual sense, that is, neither an adequate remedy at law nor an existing statutory procedure.
The Act of June 18, 1941, P. L. 133, §1 et seq., 52 P.S. §1471 et seq. was amended by the Act of September 23, 1959, P. L. 958, §1, 52 P.S. §1472. The 1959 statute amended the 1941 statute in two respects: (a) it made the 1941 Statute’s provisions applicable to every strip mine operation in the Commonwealth; (b) it increased the penalties for violation qf the statute. The 1941 statute was specifically saved from repeal when the legislature in 1947 took the first step toward regulation of the industry with the passage of the “Anthracite Strip Mining Law”, supra (52 P.S. §681.22) and no later legislation has, either expressly or impliedly, repealed the 1941 statute, as amended. In this connection, it might be noted that the Borough, in interpreting §10 of the “Anthracite Strip Mining and Conservation Act of 1963”, supra, argues that, when the 1-941 statute was amended by the 1959 statute, the 1941 statute became a new statute and, therefore, the legislature in 1963, to eliminate the possibility that the 1941 and 1959 statutes might be considered as repealed by the 1963 statute, inserted §10 in the 1963 statute. Such argument is utterly without mérit. Both the 1941' and 1959 statutes, which provide for the health and'the safety of workers in the strip mine industry, remain in full force and effect and would have so remained in effect without the language of §10 of the 1963 statute.
Between 1947 and 1963, the 1947 statute was amended by the Acts of May 18, 1949, P. L. 1471, §1, 52 P.S. §§681.6, 681.8, 681.9;
As to preemption by the Congress of the United States- to the exclusion of state legislation in. a field; see, Commonwealth v. Nelson, 377 Pa. 58, 104 A. 2d. 133; Whitehall Laboratories v. Wilbar, 397 Pa. 223, 154 A. 2d 596.
This clause is of no importance on the issue raised on this appeal.
Concurring Opinion
I concur in and join in the opinion of-the., majority because there is no indication in the opinion that a properly enacted zoning ordinance which would prohibit strip mining in a zoned area would, not. be effective. A properly enacted zoning ordinance is not preempted by the Act
Reference
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- Harris-Walsh, Inc. v. Dickson City Borough, Appellant
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