Courts of the United States must accept the construction put
upon a state statute by the highest court of the State; and, in
determining the constitutionality of a state statute, this court is
not concerned with provisions thereof which the highest court of
the State has declared invalid.
It is within the power of the State, consistently with due
process of law, to prohibit the owner of the surface by pumping on
his own land, water, gas and oil, to deplete the subterranean
supply common to him and other owners to their injury; and so held
that the statute of New York protecting mineral springs is not, as
the same has been construed by the Court of Appeals of that State,
unconstitutional as depriving owners of their property without due
process of law.
Ohio Oil Co. v. Indiana, 177 U.
S. 190.
This court cannot give effect to statements not supported by the
record and contrary to the situation as it appears to have been
regarded by the highest court of the State, and which is not
inconsistent with the allegations of the bill.
If the facts alleged by one contesting the constitutionality of
a state statute take him out of the operation of the statute, as
construed by the highest court of the State, he is not harmed by
the statute, and cannot draw in question or test its validity.
The equal protection clause of the Fourteenth Amendment admits
of a wide exercise of discretion, and only avoids a classification
which is purely arbitrary, being without reasonable basis; nor does
a classification having some reasonable basis offend because not
made with mathematical nicety or resulting in some inequality.
This court will assume the existence at the time the statute was
enacted of any state of facts that can reasonably be conceived and
which will support a classification in a state statute attacked as
denying equal protection of the law.
The burden of showing that a classification in a state statute
denies
Page 220 U. S. 62
equal protection of the law as not resting on a reasonable basis
is on the party assailing it.
A police statute may be confined to the occasion for its
existence. If there is a substantial difference in point of harmful
results between various methods of pumping gas and mineral water,
that difference justifies a classification, and the burden is on
the attacking party to prove the classification unreasonable; and
so held that the classification in the New York Mineral Springs Act
does not appear to be arbitrary, but to rest on a reasonable
basis.
Where it is not an arbitrary discrimination, and there is a
rational connection between two facts, a State may make evidence of
one of such facts
prima facie evidence of the other, so
long as the right to make a full defense is not cut off,
Mobile
&c. R. R. Co. v. Turnipseed, 219 U. S.
35; and so held that the New York Mineral Springs Act is
not rendered unconstitutional as denying equal protection of the
law by the ruling of the Court of Appeals, read into the statute,
that proof of certain designated facts amounts to
prima
facie proof establishing a reasonable presumption, but one
that can be overcome, that other acts of defendants fall within the
prohibition of the statute.
170 Fed.Rep. 1023, affirmed.
By a bill in equity exhibited in the Circuit Court, the
appellant, as owner and holder of capital stock and bonds of the
Natural Carbonic Gas Company, sought a decree enjoining that
company from obeying, and the other defendants from enforcing, a
statute of the State of New York, approved May 20, 1908, entitled
"An act for the protection of the natural mineral springs of the
State and to prevent waste and impairment of its natural mineral
waters," and containing, among others, this provision:
"Pumping, or otherwise drawing by artificial appliance, from any
well made by boring or drilling into the rock, that class of
mineral waters holding in solution natural mineral salts and an
excess of carbonic acid gas, or pumping, or by any artificial
contrivance whatsoever in any manner producing an unnatural flow of
carbonic acid gas issuing from or contained in any well made by
boring or drilling into the rock, for the purpose of
extracting,
Page 220 U. S. 63
collecting, compressing, liquifying, or vending such gas as a
commodity otherwise than in connection with the mineral water and
the other mineral ingredients with which it was associated, is
hereby declared to be unlawful."
Laws 1908, vol. 2, chap. 429, p. 1221.
In addition to what properly may be passed without special
mention, the bill alleges that the gas company owns 21 acres of
lands in Saratoga Springs, New York, which contain mineral waters
of the class specified in the statute; that these waters are
percolating waters, not naturally flowing to or upon the surface,
and can be reached and lifted to the surface only by means of pumps
or other artificial appliances; that the gas company is engaged in
collecting natural carbonic acid gas from these waters, and in
compressing and selling the gas as a separate commodity; that this
business has come to be both large and lucrative, and, as a
necessary incident to its successful prosecution, the gas company
has sunk upon its land wells of great depth, made by boring or
drilling into the underlying rock, and has fitted these wells with
tubing, seals, and pumps, whereby it lifts the waters and the gas
contained therein to the surface; that these pumps do not exercise
any force of compulsion upon waters in or under adjoining lands,
but lift to the surface only such waters as flow by reason of the
laws of nature into the wells; that, when the waters are lifted to
the surface, the excess of carbonic acid gas therein naturally
escapes and is caught and compressed preparatory to its sale, none
thereof being wasted, and no process being employed to increase the
natural separation of the excess of gas from the waters; and that
many other landowners in Saratoga Springs have like wells, which
are operated in a like way, with a like purpose.
It also is alleged that the gas company bottles and sells for
drinking purposes and for use by invalids and others all of the
mineral waters pumped from its wells "for
Page 220 U. S. 64
which there is any market or demand," but there is no allegation
of the extent of this market or demand, and it was conceded in
argument that a large proportion of the waters pumped from the
company's wells is not used, but is suffered to run to waste.
In terms, the bill predicates the right to the relief sought
upon the claim that the state statute deprives the appellant and
others of property without due process of law, and denies to them
the equal protection of the laws, and therefore is violative of the
Fourteenth Amendment to the Constitution of the United States.
In the Circuit Court, the defendants other than the gas company
demurred to the bill, the demurrers were sustained (170 Fed. 1023),
and a decree dismissing the bill was entered, whereupon this appeal
was prayed and allowed.
Page 220 U. S. 72
MR. JUSTICE VAN DEVANTER, having made the foregoing statement,
delivered the opinion of the court:
The statute against whose enforcement the suit is directed
contains several restrictive provisions more or less directly
connected with the purpose suggested by its title, but we are
concerned with only the one before set forth, because the Court of
Appeals of the State has pronounced
Page 220 U. S. 73
the others invalid, and counsel have treated them as thereby
eliminated from the statute and from present consideration.
Coming to the provision in question, it is necessary to inquire
what construction has been put upon it by the highest court of the
State, for that construction must be accepted by the courts of the
United States, and be regarded by them as a part of the provision
when they are called upon to determine whether it violates any
right secured by the Federal Constitution.
Weightman v.
Clark, 103 U. S. 256,
103 U. S. 260;
Morley v. Lake Shore & M.S. R. Co. 146 U.
S. 162,
146 U. S. 166;
Olsen v. Smith, 195 U. S. 333,
195 U. S. 342.
The Court of Appeals of the State had the statute before it in
Hathorn v. Natural Carbonic Gas Co., 194 N.Y. 326, and
again in
People v. New York Carbonic Acid Gas Co. 196 N.Y.
421, 90 N.E. 441, and the elaborate opinions then rendered disclose
that the court, having regard to the title of the act and to the
doctrine of correlative rights in percolating waters which prevails
in that State, as recognized in
Forbell v. New York, 164
N.Y. 522, construed this provision not as prohibiting the specified
acts absolutely or unqualifiedly, but only when the mineral waters
are drawn from a source of supply not confined to the lands of the
actor, but extending into or through the lands of others, and then
only when the draft made upon that source of supply is unreasonable
or wasteful, considering that there is a coequal right in all the
surface owners to draw upon it. In other words, the court, by
processes of interpretation having its approval, read into the
provision an exception or qualification making it inapplicable
where the waters are not drawn from a common source of supply, and
also where, if they be drawn from such a source, no injury is done
thereby to others having a like right to resort to it.
As so interpreted, the statute presupposes (1) the existence, in
porous rock beneath the lands of several proprietors,
Page 220 U. S. 74
of a supply of mineral waters of the class specified; (2) a
right in each proprietor to penetrate the underlying rock or
natural reservoir and to draw upon the supply therein; and (3) a
practice or tendency on the part of proprietors who exercise this
right in the manner and for the purpose specified, that is, by
boring or drilling wells into the rock and pumping or artificially
drawing the waters for the purpose of collecting and vending the
gas as a separate commodity, to make excessive or wasteful drafts
upon the common supply, to the injury and impairment of the rights
of other proprietors. And what is thus presupposed is treated in
several decisions of the courts of the State and in other public
papers as having actual existence and as being widely recognized.
It is to prevent or avoid the injury and waste suggested that the
statute was adopted. It is not the first of its type. One in
principle quite like it was considered by this Court in
Ohio
Oil Co. v. Indiana, 177 U. S. 190.
There, oil and gas in a commingled form were contained in a stratum
of porous rock underlying the lands of many owners, and because
these fluids were inclined to shift about in the common reservoir
in obedience to natural laws, one surface owner could not
excessively or wastefully exercise his right of tapping the
reservoir and drawing from its contents without injuriously
affecting the like right of each of the others. The oil and gas
were both of value, but as the greater value attached to the oil,
some surface owners whose wells tapped the common reservoir and
brought to the surface both oil and gas, collected and used only
the oil, and suffered the gas to disperse in the air. This and
kindred practices resulted in the adoption of a statute declaring
them unlawful, and the validity of the statute was called in
question. The objections urged against it were much the same as
those now pressed upon our attention, but, upon full consideration,
all were overruled. After commenting upon the peculiar attributes
of oil and gas
Page 220 U. S. 75
which cause them to be excepted from the principles generally
applied to minerals having a fixed situs, and also upon the
prevailing rule that each surface owner in an oil and gas area has
the exclusive right on his own land to seek the oil and gas in the
reservoir beneath, but has no fixed or certain ownership of them
until he reduces them to actual possession, this Court said:
"They [meaning the surface owners] could not be absolutely
deprived of this right which belongs to them without a taking of
private property. But there is a coequal right in them all to take
from a common source of supply the two substances, which, in the
nature of things, are united, though separate. It follows, from the
essence of their right and from the situation of the things as to
which it can be exerted, that the use by one of his power to seek
to convert a part of the common fund to actual possession may
result in an undue proportion being attributed to one of the
possessors of the right, to the detriment of the others, or by
waste by one or more, to the annihilation of the rights of the
remainder. Hence it is that the legislative power, from the
peculiar nature of the right and the objects upon which it is to be
exerted, can be manifested for the purpose of protecting all the
collective owners by securing a just distribution to arise from the
enjoyment by them of their privilege to reduce to possession, and
to reach the like end by preventing waste. . . . Viewed, then, as a
statute to protect or to prevent the waste of the common property
of the surface owners, the law . . . which is here attacked because
it is asserted that it divested private property without due
compensation, in substance is a statute protecting private
property, and preventing it from being taken by one of the common
owners without regard to the enjoyment of the others."
And, taking up subordinate contentions advanced in support of
the principal one, the court also said:
"First. It is argued that as the gas, before being allowed
Page 220 U. S. 76
to disperse in the air, serves the purpose of forcing up the
oil, therefore it is not wasted, hence is not subject to
regulation. Second. That the answer averred that the defendant was
so situated as not to be able to use or dispose of the gas which
comes to the surface with the oil; from which it follows that the
gas must either be stored or dispersed in the air. Now, the answer
further asserted that when the gas is stored and not used, the back
pressure on the best known pump would, if not arresting its
movement, at least greatly diminish its capacity. Hence, it is
said, the law, by making it unlawful to allow the gas to escape,
made it practically impossible to profitably extract the oil. That
is, as the oil could not be taken at a profit by one who made no
use of the gas, therefore he must be allowed to waste the gas into
the atmosphere, and thus destroy the interest of the other common
owners in the reservoir of gas. These contentions but state in a
different form the matters already disposed of. They really go not
to the power to make the regulations, but to their wisdom. But with
the lawful discretion of the legislature of the State we may not
interfere."
If the statute there assailed did not work a deprivation of
property without due process of law, it is difficult to perceive
that there is any such deprivation in the present case. The mineral
waters and carbonic acid gas exist in a commingled state in the
underlying rock, and neither can be drawn out without the other.
They are of value in their commingled form and also when separated,
but the greater demand is for the gas alone. Influenced by this
demand, some surface owners, having wells bored or drilled into the
rock, engage in extensive pumping operations for the purpose of
collecting the gas and vending it as a separate commodity. Usually
where this is done, an undue proportion of the commingled waters
and gas is taken from the common supply, and a large, if not the
larger, portion of the waters from which the gas is collected
Page 220 U. S. 77
is permitted to run to waste. Thus, these pumping operations
generally result in an unreasonable and wasteful depletion of the
common supply and in a corresponding injury to others equally
entitled to resort to it. It is to correct this evil that the
statute was adopted, and the remedy which it applies is an enforced
discontinuance of the excessive and wasteful features of the
pumping. It does not take from any surface owner the right to tap
the underlying rock and to draw from the common supply, but,
consistently with the continued existence of that right, so
regulates its exercise as reasonably to conserve the interests of
all who possess it. That the State, consistently with due process
of law, may do this is a necessary conclusion from the decision in
the case cited. But were the question an open one, we still should
solve it in the same way.
We do not overlook the statement in appellant's brief that the
mineral waters reached by the gas company's wells do not exist in
any underground reservoir, and do not come from any common source,
but we cannot give it any effect. It is contrary to what the courts
of the State apparently regard as the real situation at Saratoga
Springs, and is without support in the present record. While the
bill alleges that the waters are percolating waters, not naturally
flowing to or upon the surface, that description of them is not
inconsistent with their existence in a natural reservoir of porous
rock underlying the lands of several owners. Besides, if we
accepted it as true that they do not constitute a common source of
supply -- that is, one to which other surface owners have an equal
right to resort -- it then would have to be held that the gas
company's acts are not within the prohibition of the statute, as
construed by the Court of Appeals of the State, and therefore that
the appellant, as owner and holder of capital stock and bonds of
the company, is not harmed by the statute, and is not entitled to
draw in question or test its validity.
Page 220 U. S. 78
Clark v. Kansas City, 176 U. S. 114,
176 U. S. 118;
Tyler v. Judge, 179 U. S. 405;
Turpin v. Lemon, 187 U. S. 51,
187 U. S. 60;
Hatch v. Reardon, 204 U. S. 152,
204 U. S.
160.
Neither do we overlook the allegation in the bill that the gas
company's pumps do not exert any force upon waters in or under
adjoining lands, but lift to the surface only such waters "as flow
by reason of the laws of nature into the wells;" but we regard it
as of little importance, because if the wells reach a common source
of supply, excessive or wasteful pumping from them may affect
injuriously the rights of other surface owners, although the force
exerted by the pumps does not reach their lands.
Because the statute is directed against pumping from wells bored
or drilled into the rock, but not against pumping from wells not
penetrating the rock, and because it is directed against pumping
for the purpose of collecting the gas and vending it apart from the
waters, but not against pumping for other purposes, the contention
is made that it is arbitrary in its classification, and
consequently denies the equal protection of the laws to those whom
it affects.
The rules by which this contention must be tested, as is shown
by repeated decisions of this Court, are these: 1. The
equal-protection clause of the Fourteenth Amendment does not take
from the State the power to classify in the adoption of police
laws, but admits of the exercise of a wide scope of discretion in
that regard, and avoids what is done only when it is without any
reasonable basis, and therefore is purely arbitrary. 2. A
classification having some reasonable basis does not offend against
that clause merely because it is not made with mathematical nicety,
or because, in practice, it results in some inequality. 3. When the
classification in such a law is called in question, if any state of
facts reasonably can be conceived that would sustain it, the
existence of that state of facts at the time the law was enacted
must be assumed. 4. One
Page 220 U. S. 79
who assails the classification in such a law must carry the
burden of showing that it does not rest upon any reasonable basis,
but is essentially arbitrary.
Bachtel v. Wilson,
204 U. S. 36;
Louisville & N. R. Co. v. Melton, 218 U. S.
36;
Ozan Lumber Co. v. Union County Nat. Bank,
207 U. S. 251,
207 U. S. 256;
Munn v. Illinois, 94 U. S. 113,
94 U. S. 132;
Henderson Bridge Co. v. Henderson, 173 U.
S. 592,
173 U. S.
615.
Unfortunately, the allegations of the bill shed but little light
upon the classification in question. They do not indicate that
pumping from wells not penetrating the rock appreciably affects the
common supply therein, or is calculated to result in injury to the
rights of others, and neither do they indicate that such pumping as
is done for purposes other than collecting and vending the gas
apart from the waters is excessive or wasteful, or otherwise
operates to impair the rights of others. In other words, for aught
that appears in the bill, the classification may rest upon some
substantial difference between pumping from wells penetrating the
rock and pumping from those not penetrating it, and between pumping
for the purpose of collecting and vending the gas apart from the
waters and pumping for other purposes, and this difference may
afford a reasonable basis for the classification.
In thus criticizing the bill, we do not mean that its
allegations are alone to be considered, for due regard also must be
had for what is within the range of common knowledge and what is
otherwise plainly subject to judicial notice.
Brown v.
Piper, 91 U. S. 37,
91 U. S. 43;
Brown v. Spilman, 155 U. S. 665,
155 U. S. 670;
New Mexico ex rel. McLean v. Denver & R.G. R. Co.,
203 U. S. 38,
203 U. S. 51;
McNichols v. Pease, 207 U. S. 100,
207 U. S. 111.
But we rest our criticism upon the fact that the bill is silent in
respect of some matters which, although essential to the success of
the present contention, are neither within the range of common
knowledge nor otherwise plainly subject to judicial notice. So,
applying the rule that one who assails the classification in such a
law must carry the
Page 220 U. S. 80
burden of showing that it is arbitrary, we properly might
dismiss the contention without saying more. But it may be well to
mention other considerations which make for the same result.
From statements made in the briefs of counsel and in oral
argument, we infer that wells not penetrating the rock reach such
waters only as escape naturally therefrom through breaks or
fissures; and if this be so, it well may be doubted that pumping
from such wells has anything like the same effect -- if, indeed, it
has any -- upon the common supply or upon the rights of others, as
does pumping from wells which take the waters from within the rock,
where they exist under great hydrostatic pressure.
As respects the discrimination made between pumping for the
purpose of collecting and vending the gas apart from the waters,
and pumping for other purposes, this is to be said: the greater
demand for the gas alone, and the value which attaches to it in
consequence of this demand, furnish a greater incentive for
exercising the common right excessively and wastefully when the
pumping is for the purpose prescribed than when it is for other
purposes; and this suggestion becomes stronger when it is reflected
that the proportion of gas in the commingled fluids as they exist
in the rock is so small that to obtain a given quantity of gas
involves the taking of an enormously greater quantity of water, and
to satisfy appreciably the demand for the gas alone involves a
great waste of the water from which it is collected. Thus, it well
may be that, in actual practice, the pumping is not excessive or
wasteful save when it is done for the purpose prescribed.
These considerations point with more or less persuasive force to
a substantial difference, in point of harmful results, between
pumping from wells penetrating the rock and pumping from those not
penetrating it, and between pumping for the purpose of collecting
and vending the gas apart from the waters and pumping for other
purposes.
Page 220 U. S. 81
If there be such a difference, it justifies the classification,
for plainly a police law may be confined to the occasion for its
existence. As is said in
Carroll v. Greenwich Ins. Co.,
199 U. S. 401,
199 U. S.
411:
"If an evil is specially experienced in a particular branch of
business, the Constitution embodies no prohibition of laws confined
to the evil, or doctrinaire requirement that they should be couched
in all-embracing terms."
In conclusion upon this point, it suffices to say that the case,
as presented, instead of plainly disclosing that the classification
is arbitrary, tends to produce the belief that it rests upon a
reasonable basis.
Another objection urged against the statute arises out of a
ruling of the Court of Appeals of the State to the effect that, in
proceedings for enforcement of the statute, one who, for the
purpose of collecting and vending the gas as a separate commodity,
engages in pumping such waters from wells bored or drilled into the
rock is
prima facie within the prohibition of the statute,
and must take the burden of showing that he comes within the
exception or qualification before mentioned, whereby the statute is
made inapplicable where the waters are not drawn from a common
source of supply, and also where, if they be drawn from such a
source, no injury is done thereby to others having a right to
resort to it. Because of this ruling, which is treated as if read
into the statute, it is insisted that the latter impinges upon the
guaranties of due process of law and equal protection of the laws.
But we think the insistence is untenable, and for these
reasons:
Each State possesses the general power to prescribe the evidence
which shall be received and the effect which shall be given to it
in her own courts, and may exert this power by providing that proof
of a particular fact, or of several taken collectively, shall be
prima facie evidence of another fact. Many such exertions
of this power are
Page 220 U. S. 82
shown in the legislation of the several States, and their
validity, as against the present objection, has been uniformly
recognized, save where they have been found to be merely arbitrary
mandates, or to discriminate invidiously between different persons
in substantially the same situation.
Bailey v. Alabama,
219 U. S. 219,
219 U. S. 238;
Board of Excise v. Merchant, 103 N.Y. 143, 148. The
validity of such a statute was brought in question in the recent
case of
Mobile &c Railroad Co. v. Turnipseed,
219 U. S. 35,
219 U. S. 43,
and it was there said by this Court:
"That a legislative presumption of one fact from evidence of
another may not constitute a denial of due process of law or a
denial of the equal protection of the law, it is only essential
that there shall be some rational connection between the fact
proved and the ultimate fact presumed, and that the inference of
one fact from proof of another shall not be so unreasonable as to
be a purely arbitrary mandate. So also, it must not, under guise of
regulating the presentation of evidence, operate to preclude the
party from the right to present his defense to the main fact thus
presumed. If a legislative provision, not unreasonable in itself,
prescribing a rule of evidence, in either criminal or civil cases,
does not shut out from the party affected a reasonable opportunity
to submit to the jury in his defense all of the facts bearing upon
the issue, there is no ground for holding that due process of law
has been denied him."
The statute now before us, as affected by the ruling mentioned,
makes proof of certain designated facts
prima facie, but
not conclusive, evidence of the common source of the waters and of
the injurious effect of the pumping; that is to say, it establishes
a rebuttable presumption, but neither prevents the presentation of
other evidence to overcome it nor cuts off the right to make a full
defense. As respects the source of the waters, the presumption
appropriately may be regarded as prompted by the
Page 220 U. S. 83
fact, now well recognized, that the pervious rock in which the
waters exist usually is of such extent as to reach much beyond the
lands of a single proprietor and to constitute a common source of
supply; and, as respects the effect of the pumping, the presumption
appropriately may be regarded as prompted by the fact, before
stated, that pumping from a common supply in the rock for the
purpose of collecting and vending the gas as a separate commodity
usually is carried on in a manner which is calculated to affect
injuriously, and does so affect, the rights of others to take from
that supply. Regarding the presumption as prompted by these
considerations, as we think should be done, it cannot be said that
there is not a rational connection between the designated facts
which must be proved and the facts which are to be presumed
therefrom until the contrary is shown. What we have said upon the
subject of classification sufficiently answers the suggestion or
claim that, by reason of the presumption, the statute discriminates
invidiously between different persons in substantially the same
situation.
For these reasons, none of the objections urged against the
statute can be sustained, and so the decree dismissing the bill is
affirmed.