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decided: October 3, 1973.


Appeal from order of Commonwealth Court, Nos. 120 and 753 C.D. 1972, affirming decree of Court of Common Pleas of Adams County, July T., 1971, No. 2, in case of 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 v. National Gettysburg Battlefield Tower, Inc. et al.


Israel Packel, Attorney General, with him Lawrence Silver, Justin Blewitt and David Kurtz, Deputy Attorneys General, for appellants.

Jerome H. Gerber, with him Handler, Gerber, Widmer and Weinstock, for appellees.

Philip Weinberg, Assistant Attorney General, with him Joel H. Sachs, Assistant Attorney General, Samuel A. Hirshowitz, First Assistant Attorney General, and Louis J. Lefkowitz, Attorney General, for State of New York, amicus curiae.

Robert E. Woodside, for amicus curiae.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Nix concurs in the result. Concurring Opinion by Mr. Justice Roberts. Mr. Justice Manderino joins in this concurring opinion. Dissenting Opinion by Mr. Chief Justice Jones. Mr. Justice Eagen joins in this dissenting opinion.

Author: O'brien

[ 454 Pa. Page 195]

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 Sight, 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 sight.

What the National Park Service was originally willing to permit,*fn1 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

[ 454 Pa. Page 196]

    once was marked by the awful conflict of a brother's war."*fn2

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 -- 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, 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

[ 454 Pa. Page 197]

    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: "There are no regulations of Cumberland Township, Adams County, the municipality in which the site is located, governing the construction of towers; indeed, there is not one zoning ordinance in all of Adams County. The plans for the tower have, however, been approved for safety by the Department of Labor and Industry of the Commonwealth. By familiar principles, the appellees, as the owners of the site, may use their property as they please, provided they do not interfere with their neighbors' reasonable enjoyment of their properties and subject to reasonable regulations for the public good imposed under the police power of the State, of which there are none here. This right derives from Article I, Sections 1 and 10 of the Pennsylvania Constitution and the Fourteenth Amendment to the Federal Constitution."

Similarly, there is no statute of the Pennsylvania Legislature, which would authorize the Governor and the Attorney General to initiate actions like the lawsuit 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: "The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania's public natural resources are the common

[ 454 Pa. Page 198]

    property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people."

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:

"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. 'A Constitution is primarily a declaration of principles of the fundamental law. Its provisions are usually only commands to the legislature to enact laws to carry out the purposes of the framers of the Constitution, or mere restrictions upon the power of the legislature to pass laws, yet it is entirely within the power of those who establish and adopt the Constitution to make any of its provisions self-executing.' 6 R.C.L., section 52, p. 57.

"Cooley's Constitutional Limitations (8th ed.), Vol. 1, p. 165 says: 'But although none of the provisions of a constitution are to be looked upon as immaterial or merely advisory, there are some which, from the nature of the case, are as incapable of compulsory enforcement as are directory provisions in general. The reason is that, while the purpose may be to establish rights or to impose duties, they do not in and of themselves constitute a sufficient rule by means of which such right

[ 454 Pa. Page 199]

    may be protected or such duty enforced. In such cases, before the constitutional provision can be made effectual, supplemental legislation must be had; and the provision may be in its nature mandatory to the legislature to enact the needful legislation, though back of it there lies no authority to enforce the command. Sometimes the constitution in terms requires the legislature to enact laws on a particular subject; and here it is obvious that the requirement has only a moral force: the legislature ought to obey it; but the right intended to be given is only assured when the legislation is voluntarily enacted.'

"In Davis v. Burke, 179 U. S. 399, 403, 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 nonself-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."

[ 454 Pa. Page 200]

However, it should be noted that Article I is entitled "Declaration of Rights" and all of the first twenty-six sections of Article 1 which state those specific rights, must be read as limiting the powers of ...

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