Appellees Brief — Lower Vein Coal Co. v. Industrial Bd. of Ind.

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ALPHABETICAL LIST OF CASES REFERRED TO.

Trriz oF Cases. Page.

Atchison, Topeka R. RB. Co. v. Mathews, 174 U. 8. 104..20, 36

Arizona Copper Co. v. Hammer, 250 U. 8. 400... .23, 38, 59

ee Gh ey Es Enccosocccosecocococcooecoes a“

American Coal Co. v. Alleghany, 98 At. 143......... r)

Brown v. Buzan, 24 Ind. 194.......... 2... 66 cccues 4

Bush v. City of Indianapolis, 120 Ind. 476........... 23

ee Oy a ab Eb ccccccccccccccccoocees 26, 48

Booth v. State, 179 IeS. G06. ... 0... cece ccccccccees 26

Booth v. State, 59 Law Ed. U.S. 1011............... 26

Booth v. Indiana, 237 U. 3. 391... ...... 6-6. cece cues 45

Barbier v. Connelly, 113 U. 8. 27..............05. 63

Sa Gy GED Dibncccseocwscscoccecoccescess 22

Craig v. Western Paving Co., 143 Ind. 358........... 23

kN prt

Cc, C., C. & St. L. Ry. Co. v. Backus, 133 Ind. 513... .. p23)

Davis Coal Co. v. Polland, 158 Ind, 607............. 26, 42

Grelle v. Wright, 145 Ind. 699...................... 23

Groesch v. State, 43 Ind. 547.......... 6.666 o cee eee “4

Hawkins v. Bleakly, 243 U.S. 210.................. 23, 51

Hovey v. Carson, 149 Ind. 395..................... 23,24

Horning v. Wendell, 57 Ind. 171.................... 4

Hirth, Krause Co. v. Cohen, 177 Ind. 10............ 25

Indianapolis Unien Ry. Co. v. Hulihan, 157 Ind. 494.. 22

Ives v. South Buffalo R. R. Co., 200 N. Y. 271........ 51

Johnson v. Kennecott Copper Corp., 248 Fed. 407... .50, 63

Trrue or Cases.

Michigan Central Ry. Co. v. Powers, 201 U. 8. 245... .21, 62

Mountain Timber Co. v. Washington, 243 U. 8S.

Maule Coal Co. v. Partingheimer, 155 Ind. 100

N. Y. Central R. BR. Co. v. White, 243 U. S. 188

Plymouth Coal Co. v. Penn, 232 U. 8. 540

Pelton v. National Bank, 101 U. 8. 143

Parker v. Stete, 33 Ind. 178

State v. Barrett, 172 Ind. 169....................45-

Solznea v. Ryan & Reilly Co., 101 At. 711............

Schmidt v. Cook Brewing Co., 120 N. E. 19..........

Terre Haute Ry. Co. v. Weddle, 183 Ind. 305........

Walcott v. Wigton, 7 Ind. 44

Warren v. Sohm, 112 Ind. 213..................005-

Vandalia Ry. Co. v. Stillwell,

Zapf v. State, 145 Ind. 696. .

181 Ind. 267...........

oe eee eee meee eee eer eree

IN THE

Supreme Court of the United States

Octoser Term, 1919.

Lower Vetn Coat Company,

Appellant,

vs. No. 573.

InpustRIAL Boarp oF INDIANA, ET AL.,

Appellees.

APPEAL FROM THE DISTRICT COURT OF THE

UNITED STATES.

QUESTION INVOLVED.

In 1915, the General Assembly enacted an elective

Workmen’s Compensation Act (Act 1915, p. 392).

The original Act left either the employer or employee

with the option of rejecting its terms; excepting, however,

the Act was made compulsory, under the original provisions

SCRE iil a See ee PME

- OE. EP eatin ae

of Section 18, as to municipal corporations, and any polit-

ical division of the State, and the employees thereof.

In 1917, the original Act was amended and railroad

employees engaged in train service were expressly ex-

empted from the provisions thereof.

In 1919 (Acts 1919, p. 158), the General Assembly of

the State of Indiana amended Sections 1, 5, 8, 9, 13, 14, 15,

18, 22, 23, 25, 31, 37, 38, 39, 42, 43, 45, 46, 47, 48, 50, 51, 56,

58, 63, 65, 68, 69, 70, 73 and 76, and repealed all laws and

parts of laws in conflict with said amendment.

As set out in Appellant’s brief, Section 18 of said

amended Act of 1919 changed the elective, or permissive

system, by extending the compulsory features of the Act

to persons, partnerships and corporations engaged in min-

ing coal, and to the employees thereof.

Appellant, by a Bill in Equity, filed in the District Court

of the United States for the District of Indiana, sought an

injunction enjoining the defendants from enforcing the

compulsory features of the Workmen’s Compensation Act,

upon four grounds, to-wit:

(1) That Section 18, as amended, violates the due

process of law clause of the Fourteenth Amendment to the

Constitution of the United States.

(2) That it violates the equal protection clause of the

Fourteenth Amendment to the Constitution of the United

States.

(3) That it violates Section 23 of the Indiana Bill of

Rights, reading as follows: ‘‘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.’’ (Article I, Sec. 23, Bill of Rights

of the Indiana State Constitution.)

eee

(4) That Amended Section 18 violates Section 21 of

the Indiana Bill of Rights, reading as follows: ‘‘No man’s

particular services shall be demanded without just com-

pensation. No man’s property shall be taken by law with-

out just compensation; nor, except in the case of the State,

without such compensation first assessed and tendered.’’

(Article I, Sec. 21, Indiana Bill of Rights.)

The question presented before the District Court, and

now before this Court, is whether Section 18, as amended,

and making compulsory the payment of compensation to

persons, partnerships and corporations engaged in mining

coal, and the employees thereof, is constitutional.

CONDENSED STATEMENT OF PLEADINGS.

Plaintiff, in its Bill, alleged that it was a corporation

organized under the laws of the State of Indiana, and

engaged in mining and marketing coal, and employing five

hundred men in its business, in the State of Indiana, and

that the contracts for hiring its employees are made within

the State of Indiana, and that the defendant, Industrial

Board of Indiana, is a Board created by the Workmen’s

Compensation Law of 1915, and the individual defendants

are members of said Board; and that the General Assembly

of 1915 enacted a Workmen’s Compensation Law, which

was amended in 1917, and amended in 1919, as set out in

plaintiff’s Bill; that the Act of 1915, and as amended in

1917, was a permissive Act, and that plaintiff had elected

to reject the provisions of the law of 1915, and conduct its

business under the Liability Laws of the State of Indiana,

and that said election had never been withdrawn; and

that after the amendment of Section 18, and other amend-

ments by the General Assembly of 1919, plaintiff served

an additional notice in writing, that it refused to comply

with the amendments, particularly Section 18, as amended,

because such Section 18, as amended, was unconstitutional

and void, as claimed by plaintiff, for the reasons set out,

that it deprives plaintiff of its property without due process

of law, the equal protection of the law, and that it was in

violation of Sections 21 and 23 of the Bill of Rights of the

Indiana State Constitution ; that defendant claimed that all

of the amendments of 1919, including amended Section 18,

were constitutional, and purposed carrying out the pro-

visions of said amendments, unless enjoined by the Court.

Plaintiff further averred in said Bill that there had

occurred, from time to time in the past, and would, in the

future, accidents to its employees, resulting without neg-

ligence on plaintiff’s part, while employed by plaintiff in

the course of their employment, and that claims for com-

pensation for such injuries would be filed by said injured

employes, or their dependents, with the Irdustrial Board

of Indiana, and that compensation would be awarded in

practically all of said cases; and plaintiff says that it be-

lieved that during the remainder of the year 1919, there

would be more than twenty-five accidents, for which com-

pensation would be claimed, and that the compensation

would exceed twenty-five thousand dollars, and that in the

defense of certain claims it would be compelled to expend,

in attorneys fees and expenses, five thousand dollars, dur-

ing the remainder of 1919.

Plaintiff wholly failed to allege how many cases there

would be during the year 1919, resulting from its negli-

gence, and whether there would be collected, by way of

—————

damages, in litigation, settlement, or compromise, sums

that would exceed twenty-five thousand dollars; and plain-

tiff wholly failed to allege whether it would expend more

than five thousand dollars by way of attorneys fees and

expenses, in the settlement and defense of such liability

claims during the remainder of the year 1919; and plain-

tiff wholly failed to allege how much said compensation

claims would exceed the cost of liability claims, and whether

or not plaintiff would, in fact, be damaged at all.

Plaintiff further alleged in its Bill that the business of

mining coal was a hazardous one, and claimed, in such Bill,

that many other businesses conducted in the State, in

which thousands of men are employed, were more hazard-

ous than the business of mining coal, and many other busi-

nesses in which thousands of men are employed annually

in the State, which are equally as hazardous as the business

of mining coal.

| The Bill then sets out the number of injuries for the year

| ending October 1, 1917, to the year ending October 1, 1918,

to employees on steam railroads, in iron and steel indus-

tries, manufacturing and machine shops, auto manufactur-

ing and repairing, coal mining, general contractors, furni-

ture manufacturers, car manufacturing and repairing, foun-

dries and glass manufactories, and claimed, in said Bill,

that the mining business was fifth in point of hazard.

Said Bill claimed that amended Section 18 was uncon-

stitutional and void, and that the singling out of the coal

industry, together with the employees of municipal cor-

porations, and the political divisions of the State, was an

unfair, arbitrary and discriminatory classification, not

based upon any just or reasonable grounds, and that the

Legislature enacted said law without any fair reason in

making said Workmen’s Compensation Act compulsory and

mandatory on persons, partnerships and corporations

engaged in the business of mining coal; and that plaintiff

was denied the equal protection of the law, because the

law was not equal, or uniform in its operations, and that

it imposed onerous burdens upon such business, and de-

prived plaintiff of its property without due process of

law, and that said Act was partial, unreasonable, oppres-

sive, unequal and arbitrary.

Said Bill further alleged that plaintiff’s property would

be taken by awards made by the Industrial Board, where

there was no negligence or fault upon the part of the

plaintiff.

The prayer of the Bill was for an injunction after notice,

and that said injunction be made perpetual, restraining

the defendants and their successors in office, from enfore-

ing, in any manner, the provisions of said Act, as amended.

AMENDMENT TO BILL OF COMPLAINT.

Plaintiff, by leave of Court, afterwards amended its Bill,

and averred that various corporations, copartnerships and

individuals engaged in the business of mining coal, had

hundreds of employees who were employed above the

ground in clerical work, hauling, carpentering, and similar

occupations, and that plaintiff had many of such employees

who were not coal miners, and did not dig coal, and that

all of said employees are covered by the provisions of

Section 18, and if said Section 18 is valid, these employees

are entitled to compensation without regard to plaintiff’s

negligence, for any injuries sustained by them.

It was further averred in said amended Bill that all

persons engaged as employes in the actual mining of coal

are members of the United Mine Workers of America,

which is a labor union, organized and maintained for the

protection of its members, and that said United Mine

Workers Union employs, in Indiana, attorneys whom it

pays by the year to attend to the interests of its members,

which attorneys are employed to, and do, prosecute without

expense to injured employees or their dependents, all suits

for personal injuries, brought by said members, in the

State of Indiana; whereas, in other occupations industrial

workers have large sums of money to pay, frequently, on

a contingent basis, to lawyers representing them in their

suits for personal injuries, injured coal miners and their

dependents, receive, without abatement, or payment of

attorney fees, all damages recovered by them for personal

injuries; that persons actually employed in Indiana, in the

coal mining business, are paid for their services a higher

rate of wages, or compensation, than any other individual

worker in Indiana, and that many of them carry policies

of insurance protecting themselves and their families

against injuries resulting in accident and death.

DEFENDANTS’ ANSWER.

Defendants, and each of them, separately and severally,

for answer to Plaintiff’s Amended Bill, averred as follows:

1. They admit all that part of the averments of plain-

tiff’s bill contained in specification One (1) thereof.

2. They admit all that part of the averments of plain-

tiff’s bill contained in specification Two (2) thereof.

3. They aver that the value of matter in dispute in

this cause is speculative, colorable, and is not susceptible

of proof and demonstration with certainty, all which ap-

pears upon the fact of plaintiff’s bill, and from the matters

and facts alleged therein with reference to the value of the

matter of dispute.

4. They admit all that part of the averments of plain-

tiff’s bill contained in specification Four (4) thereof.

5. They admit all that part of the averments of plain-

tiff’s bill contained in specification Five (5) thereof.

6. They admit all that part of the averments of plain-

tiff’s bill contained in specification Six (6) thereof.

7. They admit all of the averments contained in sub-

division seven (7) of plaintiff’s bill except that part thereof

which avers that the Workmen’s Compensation Act of 1915

as amended in 1917 was a permissive Act, and defendants

aver that said Act of 1915 and as amended in 1917 was not

& permissive Act but was compulsory as to the State of

palities and the employes thereof, and expressly exempted

from the provisions thereof casual laborers, farm agri-

cultural laborers, domestic servants and their employers

unless such employees and their employers voluntarily

elected to be bound by said act, by giving affirmative notice

as specified herein to be bound by the specifications of

said Act.

8. They admit that the Industrial Board of Indiana

claims that said amendatory Act of 1919 is valid and effee-

tive, and particularly Section 18, thereof, as amended by

said Acts of 1919, that the provisions thereof compel and

require all coal mining companies in the State, including

the plaintiff, to come under said law as amended, and the

jurisdiction of said Industrial Board, and that defendant

Industrial Board of Indiana and each defendant hereto

assert that the compulsory features of said Section 18 is a

valid law, and assert that it is their intention to assume

jurisdiction in all personal injury cases and to administer

the provisions of said law including Section 18, as pro-

vided in said law as amended unless enjoined from so doing

by this Court, but defendants and each of them aver that

plaintiff has not rejected the provisions of the Workmen’s

Compensation Act as amended in 1919 by the General

Assembly of Indiana. Defendants and each of them further

aver that said act is constitutional and valid and that plain-

tiff is bound thereby.

9. They aver that as to the matters and facts set out

in specification Nine (9) of plaintiff’s bill, with reference

to accidents which have and will occur in and about plain-

tiff’s mines and the consequent expense of defending claims

arising therefrom, defendants and each of them are with-

out knowledge but defendants and each of them aver that

the General Assembly of the State of Indiana in enacting

the amendatory Act of 1919, and particularly Section 18

thereof, based the classification made in said Section 18

partially upon the following facts, viz.: That many acci-

dents had theretofore occurred in the operation of the coal

mines of Indiana, including the mines of plaintiff, which

accidents resulted in the death of and injuries to employees

working in said mines in the course of and arising out of

their employment, and that in many of such cases such em-

ployees and defendants had no redress at law, and that in

such cases when such employees and defendants were

10. Defendants and each of them aver for anewer to

specification Ten (10) of plaintiff's bill that they admit all

the allegations contained in said specification except the

averment ‘that there are businesses conducted in the State

of Indiana that are more hazardous than that of mining

coal, and defendants and each of them aver that the busi-

ness of mining coal is more hazardous than any other /vusi-

ness, oocupation or industry carried on and conducted in

Indiana, in this, viz.: That in proportion to the men em-

ployed in the business of mining coal and in the operation

of coal mines, the percentage of casualties is grater than

in any other business, industry or occupation ; that the per-

tit

;

assembly of 1919 based the classification in part upon the

foregoing facts alleged in this specification.

10%. Defendants and each of them say for anewer to

said District No. 11 in legal matters, all from funds volun.

tarily paid by each and all of said employees; that prior

firms and corporations composing «aid reciprocal insur-

ance organization have rejected the provisions of the Work.

men's Compensation Act of 1915, and as amended in 1917,

and were not operating such mines under the provisions

of said act at the time of the enactment of said Section 18

of said law as amended in 1919, and defendants and each

of them further aver that if said Section 18 as amended

im 1919 is declared to be unconstitutional and void, that

the members of said organization will continue to operate

their said mines under the lisbility laws of the «tate and

will reject the provisions of the Workmen's Compensation

Law, and that the employees and dependents thereof will

thereby be deprived of the benefits of the Workmen's Com.

actions in the courts and will be entirely defeated and with-

out any remedy or redress and will become the objects of

charity. Defendants and each of them farther aver that

the allegation in plaintiff's amended bill in said specifica.

tion 10% thereof, that persons employed in Indians in

mining coal are paid a higher rate of wages than any other

industrial workers in Indiana is based upon statistics for

the period of world war, during which time the coal mines

of Indiana, including plaintiff, operated fall time and full

capacity, which resulted in an abnormal increase in wages,

but defendants aver that prior to said war period and

subsequent thereto that the earnings of the miners were

——

that the earnings of coal miners are now materially less

than many industrial workers.

11. They aver in answer to specification Eleven (11)

of plaintiff’s bill that Section 18 of the Compensation Law

of Indiana as amended in 1919 is constitutional and valid

for the reasons following, to-wit:

(a) The General Assembly of Indiana had the power

under the Fourteenth Amendment of the United States

Constitution to make the classification as specified in Sec-

tion 18 as amended in the exercise of its police power.

(b) That the classification as adopted by the Legisla-

ture as amended in 1919 is founded upon reasonable basis

and does not offend as against the equal protection clause

of said Fourteenth Amendment.

Assembly in Section 18 as amended in 1919 should be sus-

tained upon the following facts which can have reasonably

been conceived to have existed in the State of Indiana and

in fact did exist at the time of the enactment of said Section,

viz. :

That at said time there were in operation in the State

of Indiana approximately Two Hundred Thirty-nine (239)

coal mines employing approximately Thirty Thousand

(30,000) men. That said mines in the main were conducted

and operated by means of shafts sunk from the top of the

ground to the vein of coal operated, and that over the

top of said shafts tipples were built and constructed of

iron and steel about one hundred feet high in which were

constructed and built, screens, shakers, crushers, dumps

and chutes so as to convey coal down to the railroad cars

underneath. Railroad tracks were constructed in, about

_—

and around said tipples; engine houses, boiler houses, wash

houses, blacksmith shops, and other houses were built

close to said tipples, and that in said engine houses there

were constructed mechanical apparatus, including ecylin-

drical drums, around which were attached wire rope for

hoisting and lowering said cage from the top of said tipples

to the bottom of said shafts, and large dynamos were built,

constructed and operated which generated electricity of

high and dangerous voltage for the operation of motor cars

and mining machines in said mines, and from the bottom

of said shafts there were cut, dug and driven entries, cross

entries and air courses, and on the bottom thereof there

was laid trackage ways which followed said seams and veins

of coal up and down grades of various degrees of incline

and decline. That over said veins and seams were roofs of

limestone, sandstone, slate and other substances, which

roots were filled with slits and faults which made said roofs

liable to fall at any time without notice or warning, and

that said roofs were supported by timbers, props, caps

and cross bars; that off of said entries and cross entries

there were work rooms several feet apart in which miners

were digging and loading coal, and that in certain mines

commonly called and designated machine mines, large min-

ing machines would undercut the coal, which machines

were propelled by means of electricity of high and danger-

ous voltage supplied by means of uninsulated copper wires

strung along said entries and air courses, and that after

said rooms and faces of said entries were undercut, holes

were drilled in said coal and powder placed therein and

said coal shot and blasted down, and the loaders would

load the same in coal cars which were propelled by means

7) > - Cx ——

as iar en

of mules and ponderous electric motors propelled by means

of trolley wires strung along near the top of said entries,

which entries ranged from seven to fourteen feet in width,

and were filled with timbers, props, gob, loose slate, debris,

trolley wires, machine wires and other obstructions that

endangered the lives and limbs of said mule drivers, motor-

men and trip riders, and that said veins of coal, of which

five veins were working in the bituminous fields and at least

two veins were working in the block coal fields of Indiana,

emitted dangerous and deadly noxious and inflammable

gases which would collect in pockets in abandoned work-

ings and other workings, and which gases frequently

ignited by the lights and lamps of miners thereby causing

explosions and great destruction of health and lives of

numerous employees, and many of said mines contained

what is commonly known as black damp that insidiously

overcame and asphyxiated miners therein. That in the

operation of said mines there were many and divers

different ways of work and occupations and that men

were injured, wounded and killed in many various ways,

both below and above the ground, to-wit: on and in

and on account of railroad cars, screens, shakers, engine

rooms, boiler rooms, pulleys, belts, dynamos, wash

houses, scales, blacksmith shops, tipples, cages, bottoms

of shafts, entries, cross entries, trackways, haulage-

ways, switches, frogs, uninsulated machine wires, unin-

sulated trolley wires, trimming flats, motor cars, coal

cars, mules, mule trips, mining machines, cutter bars,

falls from roof, falls from loose coal, erectrocution, falling

down shafts, black damp, white damp, marsh gas, dust ex-

plositions, windy shots, shots, powder explosions, falling

timbers, rubbing ribs of coal, coupling cars, falling from

——_

tail chains and many other ways and manners both acci-

dentally and through the carelessness, negligence, fault and

omission of duty of other persons and co-employees, all

of which happened prior to the meeting of the General

Assembly of the State of Indiana of 1919, and which will

continue to happen, and that owing to the peculiar nature

of the ways and methods of mining coal in said coal mines

in Indiana, said business was, is and will continue to be

more hazardous, and accidents have and will occur in more

varied ways than ‘n any other business, industry or occu-

pation, and that practically all of the other industries, and

business of the state, except the operators of coal mines,

had voluntarily accepted the provisions of the Workmen’s

Compensation Law, and were paying compensation for

injuries and that said coal industry was the only industry

in Indiana that was refusing to avail itself of the pro-

visions of the workmen’s Compensation Law of Indiana

and that a large majority of the coal operators and persons,

firms and corporations operating said mines had elected to

reject the provisions of said Act, and the only other indus-

try or occupation that was not operating under the pro-

visions of said Act were the railroads, which, at the time

of the meeting of the General Assembly of 1919 were being

controlled and operated by the United States Government,

and that the United States Railroad Administration and

the employees thereof were subject to an act of Congress

of the United States for the year of 1916 entitled ‘‘An Act

to provide compensation for the employees of the United

States suffering injuries while in the performance of their

duties, and for no other purpose.’’ And that the employees

of said railroads so working for the United States Railroad

Administration were not military employees but civil em-

ployees of the United States within the meaning and terms

of said act of Congress.

Defendants and each of them further aver that said act

is not invalid because it violates Section 23 of Article I of

the Bill of Rights of the Constitution of the State of Indi-

ana as charged in subdivision 2 of specification 11 of plain-

tiff’s bill, for the following reasons and each of them,

namely: A

(a) Said act is a fair and reasonable classification,

and the Legislature in the exercise of its police power was

not limited by the Indiana Constitution from making the

classification named in the act.

(b) That the classification is not unjustly or unrea-

sonably discriminatory against plaintiff and othr persons,

firms, partnerships and corporations engaged in the busi-

ness of mining coal, and in favor of other equally hazard-

ous and dangerous businesses, as alleged, but defendants

and each of them aver that in the exercise of its police

power the classification made within said act was legitimate,

reasonable and constitutional.

classification fixed by said act is just and reasonable, and

founded upon conditions and facts justifying the classi-

fication.

Defendants and each of them aver that said act is valid

and does not violate Section 21, Article I, of the Bill of

Rights of the Indiana Constitution, as alleged in plaintiff’s

bill, for the following reasons, to-wit:

(a) Because the Legislature had the constitutional

right in the exercise of its police power to require the

plaintiff to pay compensation to its employees pursuant to

awards made by the Industrial Board of Indiana in cases

where there was no negligence or fault on the part of the

plaintiff, even though other persons, firms and corporations

would not be subjected to the same liability because the

classification contained in the act is supported upon a rea-

sonable basis.

(b) Because in the exercise of its police power the

Legislature has the right to require plaintiff to pay com-

pensation to its employees pursuant to the awards of the

Industrial Board as provided in said act, regardless of

whether said injuries were proximately caused by the negli-

gence of plaintiff.

12. The defendants and each of them aver that as to

each and every averment of plaintiff’s bill, not herein

specifically admitted, denied or explained, defendants say

that they and each of them are without knowledge.

13. Defendants and each of them aver that inasmuch

therefore that plaintiff is not entitled to the relief prayed

for in its bill, and that said act is valid and constitutional,

as to the United States Constitution and as to the Indiana

Constitution, defendants and each of them prayed that the

injunction as prayed for be in all things denied, and that

the interlocutory injunction be in all things dissolved, and

that said Section 18 as amended be declared constitutional

and valid and not in violation of the Constitution of the

United States and the Constitution of the State of Indiana,

and for such other and further relief in the premises as

may be required by equity and good conscience.

BRIEF OF ARGUMENT.

POINTS AND AUTHORITIES.

1. A Legislature is presumed to have acted within con-

stitutional limits, upon full knowledge of the facts, and

with the purpose of promoting the interests of the people

as a whole, and the courts will not lightly hold that an act

duly passed by the Legislature, was one in the enactment

of which it has transcended its power.

Atchison, Topeka R. R. Co. v. Mathews, 174

U. S. 104.

2. So long as legislation applies impartially to all the

constituents of a class, so that the law shall operate equally

and uniformly upon all persons in similar circumstances,

both in privilege conferred and liability imposed, it cannot

be said to be violative of the equal protection clause of the

Fourteenth Amendment.

Magoun v. The Illinois Trust and Savings Bank,

170 U. S. 293.

3. That the business of coal mining is attended with

dangers that render it the proper subject of regulation

by the State, in the exercise of the police power, is entirely

settled.

Plymouth Coal Co. v. Pennsylvania, 232 U. 8.

540.

4. It is the province of State courts to construe and

interpret State statutes when called upon to do so, as to

7 ————————__

whether they violate their State Constitution, and such

construction, adopted by the State courts, will be the one

adopted by the Federal courts.

L. and N. R. R. Co. v. Garrett, 231 U. 8. 298;

Pelton v. National Bank, 101 U. 8S. 143;

Michigan Central Ry. Co. v. Powers, 201 U. 8S.

245.

5. The Indiana Legislature (Burns R. S., 1914, See.

8624a; Acts 1911, p. 658, in force April 1, 1911) provided,

among other things, ‘‘That the business of mining coal is

hereby declared a dangerous occupation, industry and busi-

ness.’’

6. The Indiana Workmen’s Compensation Act is de-

clared to be, in the title, ‘‘ An Act to promote the prevention

of industrial accidents,’’ etc.; Acts 1915, p. 392, in force

March 8, 1915.

_ 7. The police power reserved in the State is as broad

and plenary as the taxing power.

Mountain Timber Co. v. Washington, 243 U. 8.

219;

Kidd v. Pearson, 128 U. 8. 1.

The Supreme Court of the State of Indiana has held

the power of taxation to be inherent in the State, and a

legislative power limited only by the provisions of the

Indiana State Constitution itself.

State v. Halter, 149 Ind. 292.

8. It is competent and within the power of the Indiana

a t

———— -

Legislature, under the Indiana State Constitution, in the

exercise of police power, to take steps for the protection

of the lives and limbs of all persons who may be exposed

to dangerous agencies in the hands of others, and enact

classifying legislation on the basis of peculiar hazards in

a given industry, and the Indiana Employers’ Liability

Act (Acts of 1893, p. 294) was upheld because a particular

classification of the Act was made on the basis of peculiar

hazards in railroading, and because it applied equally to

all employers and employees within the class, and, hence,

violated neither Section 23 of the Indiana Bill of Rights

nor the equal protection clause of the Fourteenth Amend-

ment to the Constitution of the United States.

Indianapolis Union Ry. Co. v. Hulihan, 157 Ind.

494.

9. The enforcement of regulations enacted in the

proper exercise of the police power of the State cannot be

resisted as the taking of private property without compen-

sation, in violation of Section 21 of the Indiana Bill of

Rights.

Stone v. Fritts, 169 Ind. 361;

State v. Richereek, 167 Ind. 217;

Levy v. State, 161 Ind. 251;

City v. West, 9 Ind. 74.

10. No existing State compensation law has ever been

declared by the Supreme Court of the United States to be

in violation of the due process, or equal protection clauses

of the Fourteenth Amendment.

N. Y. Cent. R. R. Co. v. White, 243 U. S. 188;

Hawkins v. Bleakley, 243 U. 8. 210;

Mountain Timber Co. v. Washington, 243 U. 8.

219;

Middleton v. Texas Power & Light Co., 249

U. 8. 152;

- Arizona Copper Co. v. Hammer, 250 U. 8. 400.

11. A liberal construction of statutes and a strict con-

struction of constitutional provisions are a safe and reason-

Waleott v. Wigton, 7 Ind. 44;

Lafayette v. Geiger, 34 Ind. 185.

12. The Indiana State Constitution is not a grant of

power to the Legislature, but a limitation of its general

power.

Hovey v. Carson, 149 Ind. 395.

13. A statute will not be held unconstitutional merely

because it is unjust and repugnant to general principles of

justice, liberty, or rights not expressed in the Indiana State

Constitution.

Craig v. Western Paving Co., 143 Ind. 358;

State v. Gearhart, 145 Ind. 439;

Zapf v. State, 145 Ind. 696;

Grelle v. Wright, 145 Ind. 699.

14. Courts may not declare an act void merely be-

cause, in their opinion, it is opposed to the spirit supposed

to pervade the Constitution.

Horning v. Wendell, 57 Ind. 171;

Logansport v. Seybold, 59 Ind. 225.

15. The courts will presume in favor of the constitu-

tionality of a law until the contrary clearly appears.

State v. Cooper, 5 Blackford 258;

Stocking v. State, 7 Ind. 326;

Brown v. Buzan, 24 Ind. 194;

Groesch v. State, 43 Ind. 547;

Lacas v. Beard, 44 Ind. 524;

State v. Denny, 118 Ind. 382.

16. In determining whether a statute is constitutional

it is the duty of the courts to give such construction to it,

if possible, as will uphold the act.

Main v. State, 4 Ind. 342;

Aker v. State, 5 Ind. 193;

Hovey v. Carson, 119 Ind. 395.

17. A statute will not be declared unconstitutional

unless no doubt exists on the question.

Clore v. State, 60 Ind. 17;

Parker v. State, 33 Ind. 178;

Smith v. Indianapolis Ry. Co., 158 Ind. 425.

18. The power of the courts to declare a statute of the

State unconstitutional is a high one, and is never exercised

in doubtful cascs. To doubt is to resolve in favor of the

constitutionality of the law.

Bush v. the City of Indianapolis, 120 Ind. 476.

19. Where two constructions of a State statute are

open, that is to be adopted which preserves the constitu-

tionality of the act.

Cc. C., C. & St. L. Ry. Co. v. Backus, 133 Ind.

513;

State v. Lowry, 166 Ind. 372.

20. The Supreme Court of Indiana has held that

Article 1, Section 23, of the Bill of Rights of the Indiana

State Constitution, is suostantially the same as the privi-

leges and immunities clause of Section | of the Fourteenth

Amendment to the Constitution of the United States, in

upholding the validity of the bulk sales statute.

In the case of Hirth, Krause Co. v. Cohen, 177 Ind. 10,

the court said :

“The provisions of Article 1, Section 23, of our

Constitution, so far as the question here involved is

concerned, are substantially the same as the privi-

leges and immunities clause of Section 1 of the Four-

teenth Amendment to the Constitution of the United

States, and as the Act from which the Act in question

was copied has been held by the Supreme Court of

the United States not violative of the Fourteenth

Amendment, we are constrained to hold that it does

our Constitution, but, on the other hand, is a proper

exercise of the police power of the State."’

Booth v. State, 59 Law Ed. U. 8. 1011;

Warren v. Sohn, 112 Ind. 213.

Vandalia Ry. Co. v. Stillwell, 181 Ind. 267;

Terre Haute Ry. v. Weddle, 183 Ind. 305,

Kingan & Co. v. Clements, 184 Ind. 213.

ARGUMENT.

LEGAL PROPOSITIONS.

Plaintiff contends that Section 18 of the Workmen's

Compensation Act, as amended by the General Assembly

of Indiana, for the year 1918, is unconstitational, for the

reason that compelling coal mining cvympanies to operate

under a law, and permitting other business corporations,

firms and individuals to reject its provisions, is a diserimi-

natory classification, founded on no differences in the busi-

nesses, and that the facts adduced by the evidence in those

clauses support this contention.

For the purpose of sustaining this contention plaintiff

has alleged, in its Bill, that certain industries are much

more hazardous than the mining of coal, and, on the trial,

introduced evidence presumably for the purpose of sus-

taining the facts alleged in the Bill.

The issue of facts tendered by plaintiff is one of com-

parative hazard, and also the fact that the United Mine

Workers are a favored class because they employ attorneys

at ap annual salary, to represent the membership in per-

Board of Indiana, and that certain employees of the plain-

tiff, and other coal companies, are persons who do not dig

trarily brought under the provisions of Section 18 as

amended

No other iseue of fact whatever has been tendered by

the plaintiff in support of this contention, and no other

——

reason whatever has been advanced, or suggested by it,

in support of this contention.

It is the contention of the defendants that the suggested

bases of facts set out in the Brief of Plaintiff, and urged

by it in support of its contention that the law is invalid,

unless they are sufficient under the law, to overturn the Act,

it must be upheld, unless, under the law, the courts find,

outside the evidence, some reason other than as assigned

by plaintiff for holding Section 18 invalid.

The burden of proof is upon the plaintiff. The pre-

sumption is in favor of the validity of the law, and that

presumption must be overcome by real, tangible evidence.

Mere criticism that it does not extend to other classes of

employment does not, and cannot, amount to a constitu-

tional objection.

Plaintiff has chosen the issue of hazard as the chief test

of the validity of the law, and on page 38 of Appellant’s

Brief, has admitted and conceded that it is within the

constitutional authority of the Indiana Legislature to enact

a Workmen’s Compensation Act, in which a fair and rea-

sonable classification is made, and uses the following lan-

guage:

‘‘While admitting that it is within the constitu-

tional authority of a State Legislature to pass a

Workman’s Compensation Act, in which a fair and

reasonable classification is made, the question here

to be considered is whether the Legislature may en-

act a general compensation law applicable to all

employers and employees within the State, and make

it compulsory as to one hazardous employment, and

elective as to all others, except railroad employees in

train service, to whom it does not apply at all.’’

Appellant having conceded that it is within the power

of the Indiana General Assembly to enact a compulsory

compensation law, provided that the Act is fair and reason-

able in its classifications, disposes of its fourth objection,

that it violates Section 21 of the Indiana Bill of Rights,

reading as follows:

‘*No man’s particular services shall be demanded

without just compensation. No man’s property shall

be taken by law without just compensation; nor ex-

cept in the case of the State, without such compensa-

tion first assessed and tendered.’’

In other words, plaintiff has conceded that Section 18,

as amended, does net interfere with its rights under the

Indiana Constitution, as to due process of law.

We respectfully cite that in Appellant’s Brief, on page

25, we find this statement:

‘*These figures demonstrate that even conceding

that hazard is the proper test to determine whether

a fair and reasonable classification has been made

(which we do not admit) that the risks ordinarily

incident to other occupations are much greater than

those prevailing in the mining of coal.’’

Having tendered hazard as one of the tests of the valid-

ity of Section 18 of the Amended Act, and having, in the

above quotation, not admitting that hazard is the test, we

respectfully wish to inquire, What, then, is the proper test?

If the test is some other than that of hazard, what facts

have been proven by the plaintiff, in support of some test

other than that of hazard, from which the courts can ad-

OIA OED Oh Oe ae ee DEES GE. EERE I IIT POE TAU OGNG PEGE IT ap

judge the law to be unfair, unreasonable, arbitrary and

discriminatory against the plaintiff? Does the naked

showing of a classification furnish a proper test? If not,

and if as plaintiff says, hazard is not a proper test, then

the defendants contend that the question at issue must be

determined from consideration other than the evidence

adduced by plaintiff in support of its contention.

This leaves no other test except the issues presented

by Plaintiff’s Amended Bill, set out under Section 101,

p. 44 of the Transcript of Record, and reading as follows:

‘*Plaintiff alleges that the various corporations,

co-partnerships and individuals engaged in the coal

mining business in the State of Indiana, have hun-

dreds of employees who are not engaged in the haz-

ardous part of such business, but are employed above

the ground, in clerical work, hauling, carpentering,

and other similar occupations; that plaintiff, itself,

has many employees so engaged, and that said em-

ployees last referred to, are not coal miners, and do

not dig coal, and that all of said employees are, as

plaintiff believes, covered by the provisions of See-

tion 18, as amended; that plaintiff is compelled, if

said Section 18, as amended, is a valid and effective

law, to pay compensation to all of such employees

last specifically referred to, without regard to its

negligence in the premises, while other persons, co-

partnerships and corporations engaged in other busi-

nesses, are not compelled to do so.

‘*Plaintiff avers that practically without excep-

tion, all persons engaged as employees in the actual

mining of coal, in the State of Indiana, are members

a —————

of the United Mine Workers of America, which is a

labor union organized and maintained for the pro-

tection of its members; that said United Mine Work-

ers Union employs, in Indiana, attorneys whom it

pays by the year to attend to the interests of its mem-

bers, and which attorneys are, by said union, em-

ployed to, and do, prosecute, without expense to in-

jured employees, or their dependents, all suits for

personal injuries brought by said members in the

State of Indiana, and that, whereas in other oceupa-

tions, the industrial workers have large sums of

money to pay, frequently on a contingent basis, to

lawyers prosecuting their suits for personal injuries,

injured coal miners, and their dependents, receive,

without abatement, or payment of attorney’s fees,

all damages recovered by them for personal injuries.

‘*Plaintiff further avers that the persons actu-

ally employed in Indiana in the mining of coal, are

paid for their services a higher rate of wages, or

compensation, than any other industrial workers in

Indiana, and that they are able, and many of them

do, carry policies of insurance, protecting themselves

and their families against the injuries resulting in

accident and death.

‘*Said act is invalid because it includes within its

terms all employees of coal mining companies,

whether engaged in the hazardous part of the coal

mining business, or not, and is mandatory as to all

such employees, and as to the employers of all such

employees; whereas, as to employees of other private

business corporations, co-partnerships and individ-

beat FEL Ge PEO PEO OT IER EO Pepe,

uals, it is not mandatory as to those engaged in the

non-hazardous part of such employments, but is per-

missive only, and excludes from its operation railroad

employees engaged in train service.’’

(a) Briefly stated, plaintiff contends that Section 18

is unconstitutional by reason of a certain contract of em-

ployment between the United Mine Workers of America

and their attorneys.

(b) That the persons actually employed in Indiana, in

mining coal, are paid for their services a higher rate of

wages, or compensation, than any other industrial workers

in Indiana, and they are able, and many of them do, carry

policies of insurance protecting themselves and their fami-

lies against the injuries resulting in accident and death.

its terms all the employees of coal mining companies,

whether engaged in the hazardous part of the coal mining

business or not.

In answer to the objection that the United Mine Work-

ers employ attorneys, and that they are a favored class,

we call the attention of the court to the fact that appellant’s

counsel have cited no authorities showing that the consti-

tutionality of an act may be dependent upon any contracts

between client and attorney.

Plaintiff’s allegation that the persons employed in the

mining of coal are paid for services a higher rate of wages

than the employees in any other industry in Indiana, is not

borne out by any evidence in the record, because plaintiff

never introduced any evidence as to the wages of other

industrial employees in the State of Indiana, and that the

allegation is wholly unsupported by any evidence intro-

duced at the trial of the cause.

As to proposition ‘‘c’’, that there are certain employees

not engaged in the hazardous part of the coal mining busi-

ness, plaintiff has failed to demonstrate such charge, and

we respectfully call attention to the Tables, Nos. 170 and

171, p. 90, of Transcript of Record, as follows:

170

‘‘Table of Accidents No. 1.

Arranged according to occupation of the injured party,

the fatal, permanent, serious and slight accidents being

shown separately.

Occupation of Perma-

Injured Party Fatal. nent. Serious. | Slight. | Total.

aaa oe bi baie 6 6s 42 1 103 315 461

Machine runners......._.. | ee 24 52 78

Machine helpers........... | PINS 14 36 52

Motormen es 13 37 53

eis re wien > u ee 80 261 353

ee is oo a on | Se 5 26 32

ee Hibeeete ceeded oes 4 heweenenwre a a .

PGivtieedbieeveel Me Ercece cece

GE 5 Oh bet00seeddns conde yscadacse 15 25 40

ti tevtnadeedouds S Eeverauween 5 4 10

Blectriciams............... Rr 1 14 17

i sibbs neeeeese-c , ee 36 91 134

NR REE Unatedinabenty 9 19 28

— ERERRTOEE yee Seebeet 3 2 5

Boss drivers.............. i) ES 1 6 s

171.

Mine bosses.............. Me irgascecsies 2 4 7)

Mbvchtbedwiedhicc cM cc. 554 1 3 4d

OCGA a etaeee Sentinels 1 3 4

ta decvcee dl cc. Mee eedce ce: 1 1 2

es firers. . yu _ | SS 8 . *

ngineers an ee? Eereeey SS

Flat trimmers............. —§ Rey 3 16 20

eimbermen Fdadlicoecednias Daves eucis 10 a =

“lle iia | SR ahaeste pandas 9 30 45

is dnd deeeieunc BD livewesddes 1 2 4

RRO ERaR: INT shinee cats 1 s 9

ii ca aie Me 9 4 13

ows cevecsedeed 114 1 391 1,805 | 1,591

Se eee

A CE Ty FR En

‘*That the figures in the above table show the reports

of accidents to the Mining Department and the Industrial

Board; that these reports are from mines employing ten

or more people.”’

These tables demonstrate that there were injuries as

follows: To top men: pumpers, 10; electricians, 17; engi-

neers and firemen, 5; weighmen, 2; top hands, 45; top

bosses, 4; blacksmiths, 9; making a total of 92 injuries; and

if hazard is a test, such figures, or statistics, might have

been considered by the Legislature in enacting Section 18.

The clause of the Fourteenth Amendment of the Con-

stitution of the United States, especially invoked, is thet

which prohibits a State denying to any citizen the equal

protection of the law. Plaintiff contends that this clause

has been violated. What satisfies this equality? Under

what principles of law is this question to be determined,

and from what point of view must the court consider the

facts? What must be shown by one who asserts the inequal-

ity of the legislative enactment? What test is there of

reasonableness, or unreasonableness of the classification,

under the facts adduced by the evidence in this case?

It is the contention of the defendants that a considera-

tion of these questions is necessary to a just determination

of the issues in this case, and that the answe’s are to be

found in the cases involving the discussion of the main

question, namely: Is the Act open to the criticism that it

is unjustly discriminatory?

We would call the Court’s attention to the case of Plym-

outh Coal Co. v. Pennsylvania (232 U. 8. 531). This was a

case involving the constitutionality of a section of the

Anthracite Mining Laws of the State of Pennsylvania,

being Section 10 of Article III of the Act of June 2, 1891,

in which the State Legislature of Pennsylvania, acting

under its police power, made certain provisions that were

obligatory upon the owners of adjoining coal properties,

to leave, or cause to be left a pillar of coal in each seam,

or vein of coal worked by them, along the line of the adjoin-

ing property, of such width, taken in connection with the

pillar to be left by the adjoining property owner, would be

a sufficient barrier for the safety of employees of each mine,

in case the other should be abandoned and allowed to fill

with water, etc.

The Court, in that case said:

“That the business of mining coal is attended

with danger that renders is the proper subject of

regulation by the State, in the exercise of the police

power, is entirely settled."’

The Court again said:

**We may once more repeat what has often been

said, that one who would strike down a State statute

as violative of the Federal Constitution, must show

that he is within the class with respect to whom the

Act is unconstitutional, and must show that the

alleged unconstitutional feature injures him, and so

operates as to deprive him of —_ protected by

the Federal Constitution.’’

So, in the case at bar, plaintiff has alleged in its Bill

certain facts assuming to make hazard a test, and, as we

have pointed out, has then admitted that hazard is not the

test ; and has failed to prove any other allegations respect-

ing any other issues than that of hazard.

The Supreme Court of the United States, in the case

of Atchison, Topeka R. R. Co. v. Matthews, 174 U. 8. 104,

used the following language :

“It is also a maxim of constitutional law that a

Legislature is presumed to have acted within con-

stitutional limits upon full knowledge of the facts,

and for the purpose of promoting the interests of the

people as a whole, and courts will not lightly hold that

an Act duly passed by a Legislature, was one in the

enactment of which it has transcended its power.”’

The Supreme Court of the United States also, in the

case of Magoun v. Illinois Trust and Savings Bank, 170

U. 8. 293, in discussing the equality clause of the Fourteenth

Amendment to the Constitution of the United States, used

the following language :

*‘What satisfies this equality has not been, and

probably never can be, precisely defined. Generally

it has been said that it only requires the same means

and methods to be applied impartially to all the con-

stituents of a class, so that the law shall operate

equally and uniformly upon all persons in similar cir-

cumstances. It does not prohibit legislation which is

limited either in the objects to which it is directed,

or by the territory within which it is to operate. It

merely requires that all persons subjected to such

legislation shall be treated alike, under like circum-

stances and conditions, both in the privilege con-

ferred and the liabilities imposed. Similar citations

could be multiplied, but what is the test of likeness

and unlikeness of circumstances and conditions?

These expressions have almost the generality of the

principles they are used to expound, and yet they are

definite steps to precision and usefulness of defini-

tion, when connected with the facts of the cases in

which they are employed. With these for illustration

it may be safely said that the rule prescribes no rigid

equality, and permits to the discretion and wisdom

of the State a wide latitude, as far as interference by

this Court is concerned. Nor with the impolicy of a

law has it concern. Mr. Justice Field said in Mobile

County v. Kimball, 102 U. 8. 691, that this Court is

not a harbor in which can be found a refuge from ill

advised, unequal and oppressive State legislation.

And he observed in another case: ‘It is hardly neces-

sary to say that hardship, impolicy or injustice of

State laws is not necessarily an objection to their

constitutional validity.’

The rule, therefore, is not a substitute for munici-

pal law; it only prescribes that that law have the

attribute’vf equality of operation, and equality of

operation does no* mean indiscriminate operation on

persons merely as such, but on persons according to

their relations. In some circumstances it may not

tax A more than B, but if A be of a different trade

or profession than B, it may. And in matters not

of taxation, if A be of a different kind of corporation

than B, it may subject A to a different rule of re-

sponsibility to servants than B.’’

In Arizona Employers’ Liability cases, 250 U. 8. 419,

Mr. Justice Pitney, in delivering the opinion of the Court,

used the following language :

“Some of the arguments submitted to us assail

the wisdom and policy of the Act because of its nov-

elty, becaues of its one sided effect in depriving the

employer of defenses, while giving him (as is said)

nothing in return, leaving damages unlimited and

giving to the employee the option of several remedies,

as tending not to obviate, but to promote, litigation,

as pregnant of danger to the industries of the State.

With such considerations this Court cannot concern

itself. Novelty is not a constitutional objection.

Since, under constitutional forms of government each

State may have a legislative body endowed with

authority to change the law. In what respects it shall

be changed, and to what extent, is, in the main, con-

fided to the several states, and it is to be presumed

that their Legislatures, being chosen by the people,

understand and correctly appreciate their needs. The

States are left with a wide range of legislative dis-

cretion, notwithstanding the provisions of the Four-

teenth Amendment, and their conclusions respecting

the wisdom of the.r legislative acts are not reviewable

by the courts.”’

Applying the principles of law above cited to the facts

adduced by the evidence in this case, it is the contention of

the defendants that Section 18 is not an unjust and arbi-

trary discrimination against the plaintiff. The law does

not prohibit legislation which is limited, either in the object

to which it is directed, or by the territory within which it is

to operate. It merely requires that all persons subjected

to such legislation shall be treated alike, under like cireum-

stances and like conditions, both in the privilege conferred

and the liabilities umposed and that sach classification may

be made with reference to the coal industry, is not an open

question

Plaintiff does not contend, and has not proven that it

is discriminated against, as against any other competitor

engaged in the coal mining business in the State of Indiana.

All persons, firms, partnerships and corporations are

treated alike, under like circumstances and conditions, both

in the privileges conferred and the habilities imposed.

The Workmen's Compensation Act relieves plaintiff a»

it does every other person, firm and corporation, from

being sued under the common law, or any liability law. All

are treated alike, and all hive this privilege conferred apon

them.

On the other hand, plaintiff and every other mining

company, person and individual engaged in the coal busi-

ness in the State of Indiana, are treated with the same

provisions, and, so far as the Indiana Workmen's Com-

pensation Law is concerned, competition is absolutely fair

between them.

And so, in making classifications, the Legislature had a

right to deal, as it has often done in Indiana, with the

coal industry as a class by itself. It is perfectly obvious

that the coal industry as a class, does not compete with

any other industry, as a class. All the competition is by

and between the different persons, firms, partnerships and

corporations engaged in the coal mining business.

As set out in Appendix A of this Brief, it can be readily

seen that the coal industry is an industry in which the State

has provided an inspector, and that the State, on various

occasions, and in many ways, in exercising its police power,

has dealt with this industry because it concerns the safety,

peace, well being, health, life and limb of a large portion of

the citizens and employees engaged in the coal business,

numbering, according to the evidence, in a sam approximat.

ing 30,000 men.

Each of these various enactments are special in their

character, and discrimination has often been made by

singling out the industry to the exelumon of all other indus-

tries, and yet, in every case where these special laws have

been attacked vpon constitutional grounds, the Supreme

Court of Indiana has sustained them, without a single

exception.

The Indiana Legislature (Sec. 5471, BR. 8. 1881) pro-

vided for the giving of miners and other persons employed

in and about coal mines a prior lien on the mining property,

for work and labor, and the land owners a prior lien for

royalty, and in the case of Warren et al. v. Sohn et al, 112

Ind. 213, the Supreme Court, in upholding the validity of

sach legislation, said

‘* Appellant's counsel claim that the statutory pro

visions heretofore quoted are in conflict with Section

23 of Article 1 of our State Constitution, which de-

clares ‘that the General Assembly shal’ not grant to

any citizen, or class of citizens, privileges or iummuni-

ties which by their terms shall not equally belong \o

all citizens. Counsel farther claim that such sta! u-

tory provisions contravenes so much of Section | of

Article XIV, of the Federal Constitution, as declares

in effect, that no State shall deny any person within

its jurisdiction the equal protection ot the law.’

**We cannot see, however, that the statatory pro-

visions quoted are in conflict with either one of the

declarations of our fundamental law, State or Fed-

eral, cited and relied upon by appellant's counsel.

Certainly it cannot be said, with any degree of legal

accuracy, that these statutory provisions denied to

any person within the jurisdiction of this State, in

any manner, or to any extent, the equal protection of

the law. Nor can it be correctly said, we think, that

the General Assembly can, or, by the enactment of

such statutory provisions, has granted any citizen, or

class of citizens, privileges or immunities which, upon

the same terms, would equally belong to all citizens.

“We do not doubt that if appellant, or any one

or more of them, had performed work and labor in

and about the mortgagor's coal mines, they might

have acquired liens under the statutory provisions

quoted, in the same manner, and upon the same terins

as the appellees acquired their liens, and of equal

priority therewith.

** As applied to the facts of this case, as found by

the trial court, we are of the opinion that the state-

tory provisions, ae above quoted, are not in contra-

vention or in conflict with our fundamental laws,

State and Federal, and are a constitutional and valid

expression of the legisiative will upon the subject of

such statutory provisions."’

This was a statute that gave only miners the right to

have liens, under the provisions of the law, and as it treated

all coal companies and owners alike, under like circum-

stances, both in privileges conferred and liabilities imposed,

it was not held to be in contravention of the Indiana Bill of

Rights, or of the Fourteenth Amendment.

In the case of Davis Coal Co. v. Polland, decided in 158

Ind. 607, the Coal Mining Act was attacked on the grounds

that it was class legislation, and the Indiana Supreme

Court used the following language: (Quoting from p. 616.)

‘*Freedom of contract should not be lightly inter-

fered with. As a general rule, the right of contract-

ing as one sees fit stands untrammeled. But the

State has power to restrict this right in the interest

of public health, morals, and the like. When, in the

present case, it is pointed out that the Legislature

has failed in terms to deny the employee’s right to

assume the risks from his employer’s disregard of

the statute, the question is not ended. If the Legis-

lature has clearly expressed the public policy of the

State on a matter within its right to speak upon au-

thoritatively, and if that public policy would be sub-

verted by allowing the employee to waive in advance

his statutory protection, the contract is void as un-

mistakably as if the statute in direct words forbade

the making of it. If mines and factories and stores

and railroads were to stand vacant, were not to be

operated by citizens in whose lives and limbs the

State has interest, it is inconceivable that the Legis-

lature would have spoken as it has, even if it had

authority to do so. To promote safety to life and

limb, as indisputably as to advance public health,

_ —————

education and morals, to prohibit usury, to provide

for exemption and stay of execution, the Legislature

has the right to act.

‘*The statute in question is not class legislation.

Employments differ in degree of hazard. Each has

its separate dangers, which must be guarded against

in the appropriate way. To classify legislation by

distinctions that naturally inhere in the subject mat-

ter is not to indulge in class legislation. A law is

general and uniform if all persons in the same cir-

cumstances are treated alike.

‘‘The purpose of this statute to promote the safety

of miners being clear, and the right of the Legisla-

ture to pass it being unquestionable, the court should

not declare it a dead letter. If the employer may

avail himself of the defense that the employee agreed

in advance that the statute should be disregarded, the

court would be measuring the rights of the persons

whom the lawmakers intended to protect by the com-

mon law standard of the reasonably prudent person,

and not by the definite standard set up by the Legis-

lature. This would be practically a judicial repeal

of the act.’’

In the Act of 1907, p. 193, the Indiana General Assembly,

exercising its police power, enacted what was commonly

known and designated as the ‘‘Wash House Law,’’ which

applied ‘‘To only persons in charge of coal mines and col-

leries, and other places where laborers employed are sur-

rounded by, or affected by similar conditions as employees

in coal mines.”’

The validity of this law was attacked as being in viola-

tion of the Fourteenth Amendment to the Constitution of

the United States, and in violation of Article I, Section 21,

and Article I, Section 23, of the Bill of Rights of the Indi-

ana State Constitution. And, in the case of Booth v. State,

179 Ind. 411, the Indiana Supreme Court used the following

language:

‘‘It rests solely with the legislative discretion,

inside the limit fixed by the Constitution, to deter-

mine when public safety or welfare requires the

exercise of the police power. Courts are authorized

to interfere and declare a statute unconstitutional

only when it conflicts with the Constitution. With

the wisdom, policy or necessity of such enactment,

they have nothing to do. The Act is not open to

the infirmity suggested by the appellant, in that it

only applies to coal mines, and not other classes of

business. ’’

This same question was raised in the case of Soon Hing

v. Crowley, 113 U. S. 703, and decided adversely to the con-

tention of appellant. Justice Field uses the following lan-

guage in the latter case:

‘‘The specific regulations of one kind of business,

which may be necessary for the protection of the

public can never be the just ground of complaint,

because like restrictions are not imposed upon other

businesses of a different kind. The same doctrine

was declared in Barbier v. Connelly, 113 U. 8. 27. ‘It

will not be doing violence to any of the authority

__—

cited by the learned counsel for the appellant to say

that the question of whether the Act is reasonable

is only for the Legislature, provided it shall operate

alike on all members of a particular class.’ ”’

The wash house case was transferred, on Writ of Error,

to the Supreme Court of the United States, and the judg-

ment of the Indiana Supreme Court was affirmed in the

case of Booth v. Indiana, 237 U. S. 391. Mr. Justice Me-

Kenna, in delivering the opinion of the Court, on p. 396,

used the following language:

‘‘But a distinction is sought to be made between

what a Legislature may require for the safety and

protection of a miner, while actually in service below

ground, and that which may be required when he has

ceased, or has not commenced, his labor. Cases are

cited which, upon that distinction, have decided that

when a miner has ceased his work, and has reached

the surface of the ground, his situation is not differ-

ent from that of many other workmen, and that, there-

fore, his rights are not greater than others, and will

not justify a separate classification. We are unable

to concur in this reasoning, or to limit the power of

the Legislature by the distinctions expressed. Hav-

ing the power, in the interests of the public health,

to regulate the conditions upon which coal mining

may be conducted, it cannot be limited by moments

of time and differences of situation. The legislative

| judgment may be determined by all the conditions

and their influence. The conditions to which a miner

passes, or returns from, are very different from those

which an employee at work above ground passes to

or returns from, and the conditions and actual serv-

ive in the cases are very different, and it cannot be

judicially said that a judgment which makes such dif-

ference a basis of classification is arbitrarily exer-

cised. Certainly not in use of the wide discretion

this Court has recognized, and necessarily has recog-

nized, in the Legislature, to classify its objects.’’

This reasoning of the court readily disposes of the con-

tention of plaintiff that Section 18 discriminates between

the men employed on top of the ground and those employed

underneath; and we might remark, in passing, that that,

in itself, is a question of hazard, under the plaintiff’s own

contention.

The Legislature of the State of Indiana (Acts 1907,

p. 334) enacted what is commonly known and designated

as the ‘‘Wide Entry Law,’’ and provided that it should be

‘‘unlawful for any owner, lessee, agent, or operator of any

coal mine within the State of Indiana, to make, dig, con-

struct, or cause to be made, dug, or constructed, any entry,

or trackway, after the taking effect of this Act, in any coal

mine in the State of Indiana, where drivers are required

to drive, or man a car, or cars, unless there shall be a space

provided on one, or both sides, continuously of any track,

or tracks, measured from the rail, in any such entry, of at

least two feet in width, free from any props, loose slate,

debris, or other obstruction, so that the driver may get

away from the car, or cars, and track, in event of collision,

wreck or other accidents,’’ ete.

The statute made an additional classification as between

——

particular veins of coal, and provided that “the geological

veins of coal numbers three and four, commonly known as

the lower and upper veins in the block coal fields of Indiana,

shall be exempt from the provisions of this Act.’’

The validity of the above mentioned statute was at-

tacked in the Supreme Court of Indiana, in the case of

State v. Barrett, 172 Ind. 169, where one Barrett claimed

that the Act was unconstitutional by reason of being class

legislation, upheld the Act, and in passing (on p. 178) said:

**The statute makes the distinction, or exemption,

apply to block mining only, so that the Act applies to

all bituminous fields alike. Is it, then, an arbitrary

or Capricious classification to require conformity to

the Act by the bituminous operators, and not by the

block coal operators? The rule of equal protection of

shall be treated alike, or that the law Shall be appli-

cable alike to all who are in the same class. Equal

ual rights, as those maxims prescribe for the class of

cases to which the one being dealt with belongs.”’

And again, on page 180, in the same opinion, the Court

says:

“‘Employments differ as to hazard. Each has its

Separate dangers, which must be guarded against in

—_—.y

is not to indulge in class legislation. A law is general

and uniform if all persons in the same circwnstances

are treated alike. The provisions with respect to the

operation of mines in the various States, for the pro-

tection of health, life and limb, are extensive and

varied, and yet their constitutionality is searcely

questioned. Another familiar example is that of fire

escapes and fire appliances upon hotels, theaters and

other buildings above certain heights, in which people

congregate, or labor, and in the requirements for

guarding machines. The classifications of cities by

population, for the purpose of different local self-

government, though the difference may consist only

in a few less than the classification, is upheld. It

results that the Act is constitutional, the affidavit is

good, and the appellee’s answer was not good for

failing to bring himself within the exemption of the

proviso.’’

This same case was transferred, upon Writ of Error,

to the Supreme Court of the United States, and the judg-

ment of the Indiana Supreme Court was affirmed, in the

case of Barrett v. State of Indiana, 229 U. 8. 26, and the

Court, on p. 229, used the following language :

‘*That the mining of coal is a dangerous business,

and therefore, subject to regulation is also well set-

tled. It is an occupation carried on at varying

depths, beneath the surface of the earth, amid sur-

roundings entailing danger to life and limb, and has

been, as it may be, the subject of regulation in the

coal mining states, by statutes which seek to secure

the safety of those thus employed. The Legislature,

in fact, the judge of the means necessary, and proper

to that end, and only such regulations as are pal-

pably arbitrary can be set aside because of the re-

quirements of due process of law, under the Federal

Constitution. When such regulations have a reason-

able relation to the subject matter, and are not arbi-

trary and oppressive, it is not for the courts to Say

that they are beyond the exercise of the legitimate

powers of legislation.”

On p. 30, the same court, in the same opinion, quoted

with approval, the reasoning of the Indiana Supreme Court

in the same case, which quotation is as follows:

“It is not unlikely that there is, in fact, a differ-

ence in the degree of danger in mining the two kinds

of coal. We, at least, cannot say to the contrary. If

so, it must be presumed that the Legislature informed

itself upon that subject. It may be that mining coal

at a distance of 165 feet from the surface is more

hazardous than mining it at 90 feet. These matters,

with the relative output, the relative number of

mines, and persons employed, may have entered in‘

the consideration as requiring the Act in one case

and not in the other, and while a relative number of

employees, mines, and the output, might not be a

proper classification if applied to parties in the same

class of work, or under the same conditions, we can-

not say that they are not different at different depths,

and different kinds of coal, and must presume that

they are. At least we cannot say that as applied

to all persone alike employed in mining bituminous

coal, the Act is invalid because not applicable to block

coal mining, and we cannot say that the Act is unrea-

sonable, or determine as to its propriety, or impro-

priety, as, to doubt its constitutionality is to resolve

in favor of its constitutionality.’’

The State of Montana singled out the coal industry and

enacted a peculiar compensation insurance law applicable

to the coal industry of that State, and the Supreme Court

of the State held that because the employee could collect

his insurance, and also sue and collect doubly, that par-

tinguished the Washington and Maryland laws, for the rea-

son that the employee, under those laws, had his right of

action in a negligence case abolished. The territorial Leg-

islature of Alaska enacted a compulsory compensation law

that applied only to the mining industry, and that Act was

upheld in the case of Johnson v. Kennecott Copper Cor-

poration, 242 Federal 407.

The Legislature of Maryland enacted a peculiar law

tion of the law to the mining industry in two counties, and

to only two counties in the State. The validity of this law

was attacked as being in contravention of the Fourteenth

Amendment of the Constitution of the United States, and

the law was sustained in the following cases:

American Coal Co. v. Alleghany, 98 At. 143;

Solzuca v. Ryan & Reilly Co., 101 At. 711.

After the decision in the case of Ives v. South Buffalo

R. R. Co., 200 N. Y. 271, the New York Legislature enacted

a compulsory compensation law, the validity of which was

attacked upon the grounds set out in plaintiff’s Bill in the

case at bar, and in dealing with the question of classifica-

tion under the equal protection clause of the Fourteenth

Amendment, Mr. Justice Pitney, in the case of N. Y. Cent.

R. R. Co. v. White, 243 U. S. 188, delivered the opinion for

the Court, in upholding the New York Act, and on p. 208,

said:

‘*The objection under the equal protection clause

is not pressed. The only apparent basis for it is in

the exclusion of farm laborers and domestic servants

from the scheme. But manifestly this cannot be judi-

cially declared to be an arbitrary classification, since

it reasonably may be considered, for the risks inher-

ent in these occupations are exceptional, patent,

simple and familiar.’’

The State of lowa enacted an elective compensation

law, and its validity was attacked in the case of Hawkins v.

Bleakley, et al., 243 U. S. 210, and in dealing with the

peculiar features of that law Mr. Justice Pitney again, on

p. 218, used the following language :

‘“‘We cannot say that there is here arbitrary

classification within the inhibition of the equal pro-

tection clause of the Fourteenth Amendment. All

employers are treated alike, and so are all employees,

and if there be some differences between employer

and employee, respecting the inducements that are

held out for accepting the compensation feature of the

Act, it goes no further than to say that if neither

call the attention of the Court to the language of Mr.

Justice Pitney in rendering the majority opinion for the

court, found on p. 235, in which he says:

**The only serious question is that which is raised

under the due process of law, and equal protection

Clauses of the Fourteenth Amendment. It is con-

tended that since the Act unconditionally requires

employers in the enumerated octupations, to make

payment to a fund for the benefit of en.ployees, with-

out regard to any wrongful act of the employer, he

is deprived of his property, and of his liberty to ac-

quire property, without compensation, and without

due process of law. It is pointed out that the oocu-

pations covered inciude many that are private in their

character, as well as others that are subject to regu-

lations as public employments, and it is argued that

with respect to private occupations, including those

of plaintiff in error, a compulsory compensation act

does not concern the interests of the public generally,

but only the particular interests of the employe, and

is unduly oppressive upon employers, and arbitrarily

interferes with and restricts the management of pri-

vate business operations."’

And, continuing on p. 236, Judge Pitney says:

“If the legislation could be regarded merely as

substituting one form of employers’ liability for an-

other, the points raised against it would be answered

sufficiently, in our opinion, in N. Y. Cent. RB. R. Co. v.

White, where it is pointed out that the common law

rule confining the employers’ liability to cases of neg-

ligence on his part, or on the part of others, for whose

conduct he is made answerable, the immunity from

responsibility to an employee for the negligence of a

fellow employee, and the defenses of contributory

negligence and assumed risk, are rules of law that are

not beyond alteration by legislation in the public

interest; that the employer has no vested interest

in them nor any constitutional nght to insist that they

shall remain unchanged for his benefit; and that the

States are not prevented by the Fourteenth Amend-

ment while relieving employers from liability for

damages measured by common law standards and

payable in cases where they or others for whose con-

duct they are answerable are found to be at fault,

from requiring them to contribute reasonable

amounts and according to a reasonable and definite

seale by way of compensation for the loss of earning

power arising from accidental injuries to their em-

ployees, irrespective of the question of negligence,

instead of leaving the entire loss to rest where it may

chance to fall, that is, upon particular injured em-

ployees and their dependents."’

And, coutinuing on p. 238, Mr. Justice Pitney says:

“The authority of the State to enact such laws

as reasonably are deemed to be necessary to promote

the health, safety and general welfare of their peo-

ple, carries with it a wide range of judgment and

discretion as to what matters are of suffeent general

importance to be subject to State legislation and ad-

ministration. The police power of a state is as broad

and plenary as its taxing power."’

Kidd v. Pearson, 128 U. S. 1.

The State of Texas, through its Legislature, enacted a

workmen's compensation act, regulating the rights and

liabilities of employers and employees, respecting disabling

and fatal injuries in employment, and was made expressly

inapplicable to domestic servants, farm laborers, common

carrier railway employes, laborers in cotton gins and em-

ployers employing not more than five persons. It will be

seen that one of the particular objections, when the valid-

ity of this law was questioned, was that railroad employees

were exempted under the provisions of the Texas Act, as

Fourteenth Amendment, and on p. 157, in the opinion, Mr.

Justice Pitney, in speaking for the court, used the following

“There is a strong presumption that the Legis-

view that the Act might as well have been extended

to other classes of employment, this would not

amount to a constitutional objection. The burden

ing for grounds of distinction to sustain a classifica-

—

ity for negligence, and exempting from liability in the

absence of negligence, in all cases within its reach,

and the difficulty that so often arises in determining,

in particular instances, whether the employee was

employed in interstate commerce at the time of the

injury, reasonably may have led the Legislature to

the view that it would be unwise to attempt to apply

the new system to railroad employees in whatever

kind of commerce employed, and that that may better

be left to common law action, with statutory modi-

fications, already in force.’’

In passing we would remark that at the time that the

Federal Workmen’s Compensation Law was enacted, in

March, 1919, the railroads were being operated by the

United States Railroad Administration, in addition to the

reasons cited in the Texas case, by Mr. Justice Pitney.

The evidence, uncontradicted, as shown by the Tran-

script of the Record, was that only 10 per cent of the coal

operators had come under the compensation law, prior to

1919, and that 90 per cent of the coal operators had re-

jected the Act. (See evidence of Samuel R. Artman, on

p. 101 of Transcript.)

We, also, in passing, wish to cite from Howe S. Landers’

testimony, set out on p. 71 of the Transcript, and quote the

following language from his testimony:

‘‘That the injuries to men engaged in the storage

and warehouse business are, as a rule, minor injuries;

that the injuries to employes engaged in the coal min-

ing business are, as a rule, severe; that the injuries

to persons engaged in the coal mining business as to

—

| 57

disfigurement, and marring the appearance of the

employees, are very severe; that the reports of em-

ployees injured in the coal mining business show a

greater per cent of disfigurements and marring of the

appearance of the persons, on the head and face, than

any other industry in the state.’’

Again we wish to call the attention of the Court to the

testimony of Samuel R. Artman, found on p. 95 of the

Transcript, which reads as follows:

‘In dealing with coal mining injuries there are

three classes that stand out very prominently, that

| are very severe, burns, to the face, injuries to the

| back and spine, and injuries to the sacro ilial regions;

that burns about the face, in the coal mining indus-

| try, are the most severe of any industry in the State,

and that injuries to the back and sacro ilial regions

are confined largely to the coal mining industry, and

are peculiar to it, and are very severe; that disfigure-

ments in the coal mining business are frequent.’’

And, again, Samuel R. Artman’s testimony, on p. 101

of the Transcript, as follows:

‘**That in the reports made to the Inspection De-

partment of the Industrial Board, for the year end-

ing September 30, 1918, there were included 114 fatal-

ities in the coal mining business; whereas, in the

reports made to the Industrial Board, only 70 fatali-

ties are shown.’’

‘‘That the evidence heretofore introduced in this

case shows that in the report made to the Industrial

; me

Board of Indiana, for the year ending September 30,

1918, the total injuries to persons engaged in the coal

mining business numbered 2,162; whereas, in the re-

ports to the Mine Inspection Department, the total

number of employees injured is given as 1,591; that

the figure of 2,162, for total injuries, reported directly

to the Industrial Board, approximately and substan-

tially include the total figure of 1,591 to the Mine

Inspection Department.

‘‘Witness testified that there were 10 per cent. of

the coal operators that came under the Compensation

Law prior to 1919; that the compensation cases which

were passed upon were restricted wholly to those

injuries which occurred at the mines of eperators

who came under the law; that the questions passed

upon by the witness, as a member of the Board, do

not include any question of negligence. As to the

other 90 per cent. of the coal operators, he had no

occasion to hear any evidence with reference to inju-

ries, or what caused them; that witness gave no fig-

ures as to the percentage of injuries in the coal min-

ing business which were caused by negligence, but

that the figures given applied to all industries.

‘‘Note:—That only 10 per cent. of the accidents

in Indiana in all business were the result of action-

able negligence.’’

In passing, and applying the reasoning of Mr. Justice

Pitney, our Legislature, being elected by the people and

knowing the needs of the people, is presumed to take into

consideration the reason why Section 18 of the Amended

Act should apply to the coal industry.

__ —

Here was an industry where 90 per cent. of the opera-

tors had refused to avail themselves of the provisions of

the elective act, an industry in which, according to the

testimony of Mr. Landers and Judge Artman, the injuries

were usually severe in character, and which had produced

114 fatalities, might be a basis for the Legislature in bring-

ing the coal mining business under the provisions of the

Workmen’s Compensation Law compulsorily.

The State of Arizona has, perhaps, as varied a system

of liabilities and compensation as any State in the Union,

and this system was brought in review before the Supreme

Court of the United States.

Under the laws of Arizona an employee who is injured

in the couse of his employment has open to him three ave-

nues of redress, any one of which he may pursue accord-

ing to the facts of his case. They are (1) the common law

liability, relieved of the fellow servant's defense, and which

the defenses of contributory negligence and assumption of

the risk are questions to be left to the jury; that (2) em-

ployers’ liability law, which applies to a hazardous occu-

pation, where the injury or death is not caused by his own

negligence; (3) compulsory compensation law applicable

to equally dangerous occupations, by which he may recover

compensation without fault upon the part of the employer.

And the Supreme Court of the United States, in the

case of Arizona Employers’ Liability Cases, 250 U. 8. 400,

upheld the system in Arizona, as a valid exercise of the

police power of that State.

The Supreme Court, in defining what constitutes the

test of the validity of am act, as to whether it is in con-

travention of the Fourteenth Amendment, in the case of

Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, Justice

VanDevanter, on p. 78, used the following language:

“The rules by which this contention must be

tested, as is shown by repeated decisions of the Court,

are these:

‘1. The equal protection clause of the Four-

teenth 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.’’

“9 <A classification having some reasonable

basis does not offend against that clause merely be-

cause it is not made with mathematical nicety, or

because, in practice, it results in some equality.

‘68 When the classification in such a law is called

in question, if any state of facts reasonably can he

conceived that would sustain it, the existence of that

state of facts at the time the law was enacted mast

be assumed.

‘4 One 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 arbi-

trary.’’

One of the latest exercises, by the General Assembly of

the State of Indiana, of the police power, was in the enact-

ment of the State-Wide Prohibition Law (Acts 1917,

Chap. 4). The validity of this law was attacked, and

among the grounds of attack were that it was unconsti-,

tutional, as being class legislation, in that it discriminated

in favor of certain registered pharmacists. The Indiana

Supreme Court, in Schmidt v. F. W. Cook Brewing Co.,

120 N. E. 19, decided the law to be constitutional, and on

p. 23, the Court said:

“*It is next insisted that the Act is void because

it gives the right to registered pharmacists to deal

in intoxicants, under certain restrictions, and because

those who have liquors manufactured in the State,

which are in bond, may have possession and tax pay,

and dispose of such liquors outside of the State,

while all others must get rid of the intoxicants which

they have on hand, within ten days’ time after the

law goes into effect.

“The privileges and immunities sections of our

Constitution, the class section, and the general law

section, are not violated, if an act is reasonably de-

signed to protect the health, morals, or welfare of

the public. The Legislature must classify, in nearly

every act which it passes, to protect society. To hold

that it may not would be to overthrow nearly all the

laws that are now made for the public welfare. If

the Legislature thought that this law could be better

enforced by compelling a person to remove liquor

from the State, except those having liquors manu-

factured in the State, and in bond, it had a perfect

right to do so. It is not for this Court to try to

expel legislative wisdom on the question of expe-

diency.’’

It has always been the policy of the Federal Courts, in

matters involving the validity of State statutes, respecting

State Constitutions, to leave such matters for determina-

tion, with the State tribunals; and, in the case of L. & N.

R. R. Co. 1. Garrett, 231 U. 8. 298, in deciding a case involv-

ing the constitutionality of a Kentucky statute, on p. 305,

Mr. Justice Hughes used the following language :

‘So far as we are advised the Court of Appeals

of Kentucky has not passed upon the validity of the

act in question; and this Court has often expressed

its reluctance to adjudge a State statute to be in con-

flict with the Constitution of the State before that

question has been considered by the tribunals to which

it properly belongs, unless the case imperatively de-

mands such a decision.

Pelton v. National Bank, 101 U. 8. 143;

Michigan Cent. R. R. Co. v. Powers, 201 U. 8.

245.

‘*Here the argument against the statute is not of

that compelling character.’’

So, in line with the policy of the Indiana Supreme Court

we insist that there is no imperative necessity, and the

argument of Appellant is not of such a compelling charac-

ter as to warrant this Court in deciding Section 18 of the

Amended Act to be unconstitutional and in violation of

any provision of the Indiana State Constitution.

The Workmen’s Compensation Act of Alaska (Laws

1915, C. 71) applied only to mining concerns employing five

(5) or more persons and was attacked on the ground that

Court, who was speaking for the Court, applied the doc.

tine of Barbier v. Connelly, 113 U. 8. 27, and Lindley v.

Natural Carbonic Gas Co., 220 U. 8. 61, and said.

class, namely, mining concerns employing five (5) or

more persons in the work. This pertains again to

the equal protection of the laws clause of the Four.

teenth Amendment. Classification of subjects for

regulation by law is a f i belonging to the legis-

lative department of government. Generally speak-

ing class legislation is prohibited, but legislation

which is limited in its application, if the sphere of its

if any state of facts can be reasonably conceived that

will sustain the law, the existence of that state of

facts at the time it was enacted must be assumed,”

Johnston v. Kennecott Copper Corporation, 248

Federal 407.

ARGUMENT.

FACTS SHOWN BY THE EVIDENCE.

It is the contention ef the defendants that plaintiff has

failed to show a state of facts that would justify the Court

in declaring Amended Section 18 as being unconstitutional,

and in conflict with the Fourteenth Amendment to the Con-

stitution of the United States, or in conflict with either

Sections 21 or 23 of the Indiana Bill of Rights; and that

from the evidence itself, and applying the doctrine of the

case of Lindsley v. Natural Carbonic Gas Co., we insist

that there are many reasons that can reasonably be con-

ceived, that would sustain it, and that plaintiff has failed

to produce sufficient evidence to justify the Court in de-

claring that the section in question does not rest upon any

reasonable basis.

Practically every one of the forty compensation laws

that have been enacted by the several Legislatures have

classified certain occupations, have exempted some, brought

in others, and practically without exception each of these

laws has been held to be constitutional.

NUMBER OF WORKMEN AFFECTED.

Plaintiff makes the point that Samuel R. Artman testi-

fied that only one out of seventeen accidents happened in

coal mines during the year 1918, according to the statistics

ietanfieesh be entit

We wish to call the Court’s attention to the fact that

the plaintiff has only chosen sixteen out of two hundred

and thirty-three industries in the State as the basis for

its comparison. (See Table 125, p. 71, Transcript of Ree-

ord.)

A very salient and striking bit of evidence was devel-

oped in the cross examination of one Howe 8. Landers.

He testified that he was formerly Secretary of the Indns-

trial Board of Indiana, and was familiar with the Year

Book of Indiana, so far as the statistics from the Indus-

trial Board were concerned, which Year Book was pre-

pared under his supervision and direction, excepting those

statistics relating to the Inspection Department.

When the General Assembly of Indiana convened in

1919, the coal industry, a basic industry, which, in 1918, had

produced 28,795,682 tons of coal and employed 27,032 men,

had suffered 114 fatalities, with a death rate of 4.08 per

1,000 (see Table 180, p. 94, Transcript of Record) and was

the only industry that, in the main, had refused to accept

the provisions of the then elective Workmer’s Compensa-

tion Law.

We quote from the testimony of Mr. Landers (p. 70,

Transcript of Record) :

“That witness has not made any computation

from the official record that would assume to show the

gross number of employees, and the gross number of

accidents within the several particular industrial oc-

cupations; that this information could only be com-

piled after a long and laborious amount of work; that

witness did not go into the relative degree of dis-

ability at all; that in compiling the data on the coal

mining industry, witness included the gross number

of employees reported to the License Department,

including those working above ground, as well as un-

der the ground ; that the great majority of employers

ef labor in Indiana, other than the coal mining busi.

ness, have elected to operate under the Compensation

Law.”’

Thus, of all the two hundred and thirty-three industries

in the State, the majority had accepted the law, and about

90 per cent. of the coal operators had rejected it

The Legislature is now condemned by the Appellant for

Using its police power sparingly, and because it only made

compensation compulsory to the one class that in the main

had rejected the Act, a class that was engaged in an inher.

ently peculiar business, and who had singled Lemeelves

out by refusing to pay compensation and who were operat.

ing under an archaic common law and liability system

The Legislature, in 1911 (Barns’ BR. 8. 1914, See. 8624-0),

among other things, said, ‘The business of mining coal is

hereby declared a dangerous cocupation, industry and

business "'

We wish to call the attention of the Court to the word-

ing of the tithe of the Indiana Workmen's Compensation

Law (Chap. 106, Acts 1915): “Am Act to Promote Pre-

vention of Industrial Aceidents,"’ ete.

Under Section 52 of said Act, st out in Appellant”

brief (p. 81), it will be observed that “By virtue of the

Compensation Law the mehts, powers and duties conferred

by law upon the State Bureau of Inspection, are hereby

continved in full force, and are hereby transierred to the

Industrial Board '’

The law also provided that the Deputy Inapectors ap-

pointed by the Governor as Deputy Inepectors, in the State

Bureau of Inspection, to wit, Inspector of Buildings, Fae

tories and Work Shops, Boilers, and Inepector of Mines

and Mining, were translerred to the juriediction of the

Industral Board

DISMEMBERMENTS.

Appellant complains because, according to the figures

it intreduced in evidence, coal mining stands fifth in the

percentage of dismewberments to the number of emploves.

We submit that the table shown on p. 24 of Appellant's

brief does not disclose the severity or the character of

these dismemberments, Figures are only submitted of

five industries out of the 233 industries of the State, as

set out in Table 125, pp. 71, 72, 73, 74, 75, 76, 77, 78 and 79

of the Transcript of Record.

TOTAL NUMBER OF ACCIDENTS.

We insist that the most serious kind of accidents are

fatal acedents These are the accidents that not only

—_—_—_——e

We herewith set out the Table of Accidents, No. 3, p. 94,

of Transeript of Record, as follows:

year from 1898 to 1918,

tons of coal produced, num-

and the number of killed

number of fatalities, the

per fatality,

employed, for each

“Table of Accidents No. 3.

per thousand

}| SBRBRsegeRss = seenenes

i NNN mom orere cs “= NANA

= \¢ Se net

SESSSEESI2ERR © gzeRETE

il RRSRRERRERRCY «© RERRZERE

i R2SKR2EGSRSR5 aESexEEs

| FAERRSSSREREE eRezbaay

| Dossscnsasss RARRRSAK

SGERESECEZEER © ReEEEGy

2 | SeneeRcauaees casggaze

ssorsees=a=ns 6 sneaszq

WnGaueEEENEE: 5 Eezzzezs

“1911 report for nine (9) months only.

, Would justify the

power in singling out

Table, alone

its police

An examination of this

Legislature j

pent

industry.

the coal

convened in 1919, statistics available to it showed that they

had mounted to the appalling number of 114.

We also wish to submit Table No. 1 (p. 91, Transcript

of Record), setting out United States Government statis-

tics compiled by the Bureau of Mines, which Table is as

follows:

‘*TABLE I.

‘‘Estimate of Fatal Industrial Accident in the United

State in 1913 by Industry Groups.

‘*(The fatality rates used in this estimate are approxi-

mations. They are slightly at variance with the exact

rates for certain industries, particularly mining, for the

year 1913. For metal mines in 1913 the fatality rate, ac-

cording to the Bureau of Mines, was 3.54 per 1,000; for coal

mines, 3.73 ; for quarries, 1.72. In the estimate it is assumed

that for these industries in particular the approximate

rates indicate more accurately the average risk for a period

of years, it being considered that even the official rates fall

short of absolute accuracy and completeness in the absence

of a Federal law making the reporting of mine accidents

compulsory upon all operators. The estimate was arrived

at before Technical Paper 94 of the Bureau of Mines was

published. )

——————

Industry group. Fatal

Number. industrial Rate

Males. employees.* | accidents.* | per 1,000.

es uewese rari es 170 ,000 680 4.00

la ere 750 ,000 2 625 3.50

ee entoid beg niles oe Ae e 150 ,000 450 3.00

RS dence ewow de kon .eee 150 ,000 450 3.00

Railroad employes................ 1,750 ,000 4,200 2.40

Electricians (light and power)...... 68 ,000 153 2.23

Navy and marine corps........... 62 ,000 115 1.85

Quarrying Dei ha ain Wo w a gh cite wr we 4 150 ,000 255 1.70

IN lows wv Vine oe ws 531 ,000 797 1.50

Soldiers, United States Army...... 73 ,000 109 1.49

Building and a meme ong eS 1 500 ,000 1 ,G75 1.25

Draymen, teamsters, etc........... 686 ,000 686 1.00

Telephone and oe i (Includ-

Pr ee ere 245 ,000 123 50

Agricultural pursuits, including

forestry and animal ~pemmmnedy 12 ,000 ,000 4,200 35

Street railway employes. . a si 320 ,000 320 1.00

Watchmen, policemen, firemen..... 200 ,000 150 -75

174 Manufacturing (general)....... 7 277 ,000 1,819 .25

All other occupied males.......... 4 ,678 ,000 3,508 .75

All occupied males............ 30 ,760 ,000 22,515 .73

All occupied females.......... 7,200 ,000 540 .075

*Partly estimated.

These statistics show that only one class of work is

more hazardous, in point of fatalities, than coal mining,

and that is metal mining. The record does net disclose any

evidence of a metal mine in Indiana.

These statistics were available to the Legislature, and

might have been used as a justification for its action.

On pp. 24 and 25 of Appellant’s brief, Appellant has

claimed that the ratio of total accident to the number of

employees of certain selected classes, coal mining stands

twelfth in the list. We have taken these similar classes

of occupations and have given the number of fatalities per

class, which disclosed the following:

FATALITIES.

General contractors................++- 21

Gas manufacturing.................. None

Transfer, storage and warehouse...... 2

Wee Wat teederecdvccdticcesese 1

Stone quarrying and cutting.......... 2

Glass manufacturing................. 4d

Be Me ivavdedeusctéczeceverss 46

Veneer manufacturing................ None

Cement manufacturing............... None

Furniture manufacturing............. None

ED cubunrsivedeseerseatseeds None

SE AME hevau veavddeteavess 76

(See pp. 95, 96 and 97 of Transcript of Record.)

This same year, ending October 1, 1918, shows coal min-

g, 114 deaths.

The number of employees engaged in the above named

usinesses (see p. 69, Transcript of Record) is as follows:

Transfer, storage and warehouse 604

General contracting............ 5,357

Gas manufacturing............. 2,508

BN NE Bab ices cverdeeess 27,720

Se MI fe Fide sce ccdeedcdse 5,129

Glass manufacturing........... 8,377

Stone quarrying and cutting.... 2,315

Iron, steel and allied industries,

including metal finishers, saw

manufacturing, stove manufac-

———

ing, foundry castings and forg-

SE ck eh vedu coonstveareseose 59,516

Veneer manufacturing.......... 1,279

Cement manufacturing......... 2,037

Furniture manufacturing and re-

UNE co decease cveecscseneccece 11,158

Manufacturing of explosives... . 817

I weteseereredévdenense 126,817 employees,

producing 76 deaths.

Whether there is a repetition in the addition of the

employees of the iron and steel industry, we are unable to

say, but deducting 27,720, from 126,817 employees, still

leaves 99,097 employees, out of which there occurred 76

deaths.

In the same Table (p. 69, Transcript of Record), among

26,877 coal miners, there were 114 deaths.

Appellant states in its brief, ‘‘The undisputed evidence

shows that this unusual death rate cannot continue.”’

Taking the same Table (p. 94, Transcript of Record),

in the year 1913 there were 21,683 men employed in the

coal industry of Indiana, out of which 59 men suffered

death. This was before the world war. Our answer is

that the undisputed evidence shows that for more than

twenty years the death rate in the coal industry has been

more than in any other industry in the State.

Cannot the State of Indiana, exercising its police power,

provide a compulsory system of compensation to deal with

this appalling situation? Can the Court say that it is

arbitrary, oppressive and unjust? Could not the Legis-

FATALITIES.

General contractors................+.- 21

Gas manufacturing.................. None

Transfer, storage and warehouse...... 2

Se Sc esccersesestcsossececsse 1

Stone quarrying and cutting.......... 2

Glass manufacturing................- 4

EE Have swesecvececenecsess 46

Veneer manufacturing................ None

Cement manufacturing............... None

Furniture manufacturing............. None

PED eunvecbetesecccevssucesese None

Be Se cdictcendedéevucneds 76

(See pp. 95, 96 and 97 of Transcript of Record.)

This same year, ending October 1, 1918, shows coal min-

ing, 114 deaths.

The number of employees engaged in the above named

businesses (see p. 69, Transcript of Record) is as follows:

Transfer, storage and warehouse 604

General contracting............ 5,357

Gas manufacturing............. 2,508

EE SE ic bucdeceetenscben 27,720

Pe Ma kacdscchecécvercss 5,129

Glass manufacturing........... 8,377

Stone quarrying and cutting.... 2,315

Iron, steel and allied industries,

including metal finishers, saw

manufacturing, stove manufac-

————————

ing, foundry castings and forg-

EME oc cccccccccceccesesscons 59,516

Veneer manufacturing.......... 1,279

Cement manufacturing......... 2,037

Furniture manufacturing and re-

POETS 2. ccc ccccscccccscccsces 11,158

Manufacturing of explosives.... 817

» PRE vvccccccescscesecves 126,817 employees,

producing 76 deaths.

Whether there is a repetition in the addition of the

employees of the iron and steel industry, we are unable to

say, but deducting 27,720, from 126,817 employees, still

leaves 99,097 employees, out of which there occurred 76

. deaths.

In the same Table (p. 69, Transcript of Record), among

26,877 coal miners, there were 114 deaths.

Appellant states in its brief, ‘‘The undisputed evidence

shows that this unusual death rate cannot continue.’’

Taking the same Table (p. 94, Transcript of Record),

in the year 1913 there were 21,683 men employed in the

coal industry of Indiana, out of which 59 men suffered

death. This was before the world war. Our answer is

that the undisputed evidence shows that for more than

twenty years the death rate in the coal industry has been

more than in any other industry in the State.

Cannot the State of Indiana, exercising its police power,

provide a compulsory system of compensation to deal with

this appalling situation? Can the Court say that it is

arbitrary, oppressive and unjust? Could not the Legis-

——y

lature know of the expenses and uncertainties of liability

litigation, and the vexatious delays and appeals which were

a matter of common knowledge, and enact a compulsory

compensation law applying it to the coal industry, in order

to more properly care for the dependents of deceased coal

miners? Could not the Legislature transfer a large burden

from the taxpaying public and place it where it properly

belongs?

CHARACTER OF INJURIES.

Appellant attempts to make the point that as the State

has a very comprehensive system of mining statutes, and

assumes that the several persons, firms and corporations

are presumed to obey them, the character of the injuries

are not sufficient to justify the Legislature in the enactment

of a compulsory compensation law.

Did the Lower Vein Coal Company come into Court

with clean hands?

Did it comply with the law and assist the State authori-

ties in compiling accurate statistics?

We respectfully call the attention of the Court to the

testimony of Mr. Clifford Hoffman (p. 100, Transcript of

Record) and Mr. Samuel R. Artman, Chairman of the

Industrial Board (p. 100, Transcript of Record) :

Mr. Hoffman testified that he was employed by the

Indiana Coal Operators’ Reciprocal Organization, which

has for its purpose the inspection of mines and the investi-

gation of accidents, and the adjustment of personal injury

claims; that the mine boss, or superintendent of the mine,

sends a report to this organization of accidents that occur

in and around the mine; that those reports sometimes come

in a day or two, and sometimes in a week or two; that at

the present time 115 or 120 mines are members of this or-

ganization; that approximately 2,500 accidents were re-

ported to this Association, between the Ist day ef June,

1918, and the last day of June, 1919; that the reciprocal

organization includes a large percentage of the coal pro-

ducing business, approximating 75 or 80 per cent. of the

tonnage.

Mr. Hoffman also testified (p. 100, Transcript of Rec-

ord) that during almost the identically same period of

time, all of the coal companies of the State only reported

1,591 accidents to the Mine Inspection Department, and

that all of the coal companies of the State reported to the

Mine Inspection Department 900 less aacidents than merely

the members of the Indiana Coal Operators’ Reciprocal

Organization reported to their own insurance concern. In

other words, the coal operators of Indiana are responsible

for the statistics compiled by the Industrial Board, and

which they used in evidence, and from which they ask

equity.

The plaintiff, the Lower Vein Coal Company, from Sep-

tember 30, 1917, to October 1, 1918, reported 12 injuries to

the Industrial Board and 6 to the Mine Inspector. The

Vandalia Coal Company, during the same period, did not

report any injuries to the Industrial Board; Zeller MeClel-

lan Company reported 9 to the Industrial Board and none

to the Inspector of Mines; J. Woolley Coal Company did

not report any to either; Shirkey Coal Company reported

31 to the Industrial Board and 2 to the Inspector of Mines;

Ayrshire Coal Company reported 78 to the Industrial

Board and 2 to the Inspector of Mines; Coal Bluff Mining

Company reported 6 to the Industrial Board and 1 to the

Inspector of Mines; Grant Coal Company, 6 to the

198. Industrial Board, none to the Inspector of Mines;

Jackson Hill Coal and Coke Company reported 162

to the Industrial Board and only 18 to the Inspector of

Mines.

Judge Artman, continuing (p. 102, Transcript of Ree-

ord), testified as follows:

**T think that the actual fact is that neither one of

these reports or both of them combined is or are re-

liable. In other words, I don’t think if you take the

accidents reported in both of them in the aggregate

for the year 1918, for the period September 30th,

1917, to October Ist, 1918, we have over sixty-six and

two-thirds per cent. of the injuries that actually oc-

curred in the coal mines of Indiana. For instance,

here is the J. Woolley Coal Company that do not

report any to anybody. I think if you held an inquisi-

tion on that company you would find out facts that

would justify the reports of a great many.”’

Also, on p. 102, Transcript of Record, Mr. Clifford

Hoffman testified that the J. Woolley Coal Company re-

ported to the Indiana Operators’ Reciprocal Organization

46 accidents, substantiating the claim of Mr. Artman.

On p. 104, Transcript of Record, when Mr. Clifford

Hoffman was recalled, he testified that the plaintiff, Lower

Vein Coal Company, was a subscriber and a member of the

Indiana Coal Operators’ Reciprocal Organization, and that

from the 1st day of October, 1917, to the 1st day of October,

1918, it reported 135 accidents to the Indiana Coal Opera-

tors’ Reciprocal Organization.

And yet plaintiff, which is asking equity, reported only

12 accidents to the Industrial Board and 6 to the Mine

Inspector for substantially the same period of time.

If this ratio of discrepancy was kept up it could fairly

be assumed, from the evidence in this case, that in truth

and in fact there oceurred between four and five thousand

injuries in the coal mines of Indiana, in the year ending

October Ist, 1918, and a great many more than 114 deaths.

Perhaps the Legislature knew this condition existed in

Indiana.

The burden rests upon the plaintiff to show that the

Act was unconstitutional. The record shows that the Lower

Vein Coal Company has only reported 18 accidents to the

State authorities, and 135 accidents to its own private insur-

ance concern. It was within the peculiar power of plaintiff

to dluminate the District Court of the United States by

facts, figures and statistics, through this same Indiana Coal

Operators’ Reciprocal Organization, and it has cons picu-

ously failed so to do.

The Lower Vein Coal Company, plaintiff in this case, did

not rejort 117 accidents to the State authorities. It did

not report but 1314% of the accidents that occurred in prac-

tically the same period. We indire: Has it done equity?

(n this basis we insist that the plaintiff has made no

showing as to whether, under the Compensation Law, it

will be required to pay more money than it would under

the Liability Law. Plaintiff has failed to show what per-

certage of these 135 accidents occurred by reason of neg-

ligence or contributory negligence—whether the risks were

assumed or not, how much it cost the company under lia

bility or the common law, and how much it would have cost

the company under the Compensation Law.- Plaintiff hae

failed to show that it has been harmed in any property

right, and before it can ask equity it is incumbent upon it

to show this by convincing evidence. The court cannot

say under the evidence that the compensation law has or

will cost a dollar in excess to the common law or liability

laws.

NUMBER OF DEATHS.

It is the contention of plaintiff that the number of death»

does not determine the hazard of occupation, from a com

pensation standpoint.

Under the Compensation Law, in the event of a work.

man’s death, his dependents receive 55 per cent. of hix

average weekly wage, for a period of 300 weeks, but we wish

to call the attention of the Court to Section 40, quoted in

Appellant's Brief (p. 76), which reads as follows:

“Section 40. In computing compensation under

the foregoing section, the average weekly wages of an

employee shall be considered not more than $24, nor

less than $10; and, provided further, that the total

compensation payable under this Act, shal! in no case

exceed $5000.""

In other words, the most that any employee or depend.

ent may receive is 55 per cent. of $24, making the maximum

average weekly wage $13.20 per week. The Government

statistics show that coal mining is more hazardous in point

of fatality than any other industry, except metal mining.

tionality of Amended Section 18, as to what were the wage

conditions in the coal industry in Indiana.

Appellant did not cite that part of Mr. Penna’s testi-

mony, when, upon cross examination (p. 8, Transcript of

Record) he testified -

“‘simee the signing of the armistic about one-third of

the mines have been in operation; that is, that about

33 per cent. of the potentiality has been working, unti!

recently, and now is close to SO per cent. Several

mines have suspended operation eltogether and

closed down ; that at the present time in the bitami-

nous field the coal mines are operating about three

days a week.”’

Plaintiff, in its Brief, sets out the fact that because the

coal miners employ lawyers who represent them in per-

sonal injury and compensation suits, they are a favored

class

The plaintiff also says that in other industries in Indi.

ana, where the employer has rejected the Act, the industria!

worker is required to pay his own attorney.

This is another assumption of facts which is not borne

However, we wish to call the attention of the Court to

the fact that plaintiff has not cited any authority in which

any statute has ever been declared unconstitutional because

its validity depended upon a contract between client and

attorney. Such a contention is irrelevant, and in the ab-

that had persistently refused to accept its provisions

The statistics that were available for plaintiff were those

sarily inaccurate, and would not justi/y the striking dows

of Am-nded Section 18.

" @¥

; ae

system has o1 would cost it, and what it would pay out

under the Compensation Law and, therefore, has not made

any showing of any property damage suffered or likely to

be suffered.

Counsel for Appellant, in their Briefs, have shown many

citations of authority, which are remarkable in that prac-

tically every compensaticn law has been upheld and its

classifications have been sustained by the Court. The law

shows, upon its face, that both in privileges conferred and

liabilities imposed every person, firm, partnership, indi-

vidual and corporation in the State is treated alike, under

like circumstances, and that each of the employees thereof

is treated alike under like circumstances.

By reason of said facts we believe that the exercise of

the police power by the State, in the enactment of the sec-

tion in question, was a valid one.

We, for the purpose of assisting the Court, have com-

piled a sylabus of the mining laws of Indiana, for the

purpose of showing to what extent the Legislaiure has

gone in dealing with this peculiar industry, which we set

out herein as ‘‘ Appendix B.’’

Practically all of the provisions of the State mining

laws have been attacked from time to time, and, as we have

heretofore set out, no act of the Legislature of the State

of Indiana, that related to the business of mining coal, has

ever been set aside.

Respectfully submitted,

ELE STANSBURY, Attorney General,

U. 8S. LESH, Assistant Attorney General,

TAYLOR, WHITE & WRIGHT,

JOHN A. RIDDLE,

HAROLD A. HENDERSON,

Attorneys for Appellees.

LAWS RELATING TO COAL MINES AND

MINING, IN INDIANA

APPENDIX “‘A.”’

(Acts 1905, p. 65. In force April 15, 1905.)

8569. 7429.) ‘‘Mine’’ and ‘‘Operator’’ defined.—

1. That the term ‘‘mine’’ as used in this act includes the

working in every shaft, slope or drift which is used, or has

been used, in the mining and removing of coal from and

below the surface of the ground. The term ‘‘operator,’’

as used in this act, is hereby defined to mean any corpora-

tion, company, firm, person, proprietor, lessee, owner or

occupier of any coal mine in this state or any person upon

whose account the mine is operated.

8570. (7430.) Maps of coal mines, refusal, duties of

inspectors—2. The operator of each mine shall make, or

cause to be made. an accurate map or plan of the working

mines on a scale of not less than two hundred feet to one

inch, showing the area mined or excavated, the arrange-

ment of the haulage roads, air courses, break throughs,

brattices, air bridges or overcasts and doors used in direct-

ing the air currents in such mine, the location and connec-

tion with such excavation of the mine of the lines of

all adjoining lands with the names of the owners of such

lands, so far as known, marked on the map. Such map shall

show a complete working of the mine, and, when completed,

shall be certified to by the owner, agent or engineer making

mi.

the survey or map to be a true and correct working of said

mine. The owner or agent shall deposit with the inspector

of mines a true copy of such map within thirty days after

the completion of the survey of the same, the date of which

shall be shown on each copy, the original map and survey

to be kept at the office of such mine open for inspection of

all interested persons at all reasonable times. Such map

and copy thereof shall be extended each year between the

first day of May and the first day of September, and shall be

filed as required in making the original survey showing the

exact workings of the mine at the date of the last survey.

At the request of any coal mine the owner of the land, the

miners working therein or other persons interested in the

workings of such mine, the inspector of mines shall make,

or cause to be made, an accurate map of the workings

thereof, on a scale of not less than two hundred feet to the

inch, showing the area mined or excavated and the location

and connections of the lines of all adjoining lands therewith

and the names of the owners of such lands so far as known.

Such map shal! be sworn to by the surveyor to be a correct

map of the workings of such mine, and shall be kept on file

in the office of the inspector of mines for examination at all

times. All expenses shall be paid by the party causing

such survey and map to be made. In case the operator of

any mine shall fail or refuse to furnish a map as required

by this law, it shall be the duty of the inspector of mines to

appoint a competent mining engineer to make the survey

and maps and file and deposit them as required by law, and

for his services he shall be entitied to a reasonable fee to

be paid by the party whose duty it was to make such survey

and map, and shall be entitled to a lien on the mine and

a——————————

machinery to the same extent as is now provided by law

for other work and labor performed in and about the mines

of this state. Before a mine or any part of a mine is

abandoned the owner or agent shall make a survey showing

the farthest extremity of the workings of such mine, and a

map thereof made and filed within thirty days thereafter

at the office of the county recorder in the county where

such mine is located; said map shall have attached thereto

the affidavit of the mining engineer making the map, and of

the mine boss in charge of the underground workings of said

mine. Such map shall be properly labeled and filed by the

recorder and preserved as a part of the records of the land

on which said mine is located, and the recorder shall receive

for said filing from said owner or agent a fee of fifty cents.

Upon payment of the fees, the inspector of mines shall

make, within a reasonable time, and deliver to the party

so demanding the same an accurate copy of any map or

plan on file in his office. The original map or plan of any

coal mine or the copy filed with the inspector of mines or

a certified copy, issued under the hand and seal of such

inspector, shall be evidence in any court of justice in this

state. In order that the maps, reports and other records

pertaining to the office of inspector of mines may be prop-

erly preserved, a room in the state house shall be st aside

and furnished in a suitable manner as an office for said

officer. (As amended Acts 1911, p. 626.)

8571. (7431.) Number of workmen, outlet —3. It

shall be unlawful for any operator to allow more than ten

(10) persons to work in any mine at any one time after five

thousand (5,000) square yards have been excavated until

a second outlet shall have been made: Provided, That all

. _

air and escape shafts sunk hereafter, shall be separated

from the hoisting shaft by at least two hundred (200) feet

of natural strata and shall be provided with stairways not

less than two (2) feet in width, at an angle of not more

than fifty (50) degrees with landings at easy and convenient

distance and with guard rails attached to each set of stairs

from the top to the bottom of the same, and shall be avail-

able at all times to all employes engaged in such mines:

also Provided, That the stairways, landings and guard rails

shall be of suitable design and strength to accomplish the

purpose for which they are intended, and shall be kept free

from obstructions. And that when the escape and air

shafts are combined, the escape shaft and air shaft be sepa-

rated by a good substantial partition from top to bottom:

Provided further, Where the approach or approaches to

the escape shaft crosses an air course, entry or other pass-

ageway used as an air course, either as an intake or return,

the air current shall be conducted by an overcast or under-

cast, over or under the point where such approaches cross }

the air course, and that all approaches to escape shafts shal!

be kept free from slate, mine cars, mine tracks and other

debris and shall be used only as a means of ingress or |

egress to or from the escape shaft. All water coming from

the surface or out of any strata in such shaft shall be con-

ducted by rings or otherwise to prevent it from falling down

the shaft and wetting persons who are descending or ascend-

ing the shaft. The operator may provide at such outlet or

escape a hoisting apparatus, which shall be at all times

available to all persons in the mine, the same signals to be

used as provided by law for use at hoisting shafts. The

traveling roads or gang-ways to said outlet shall be sepa-

——————————

rated from the hoisting shaft by at least two hundred (200)

feet of natural strata and not less than four (4) feet in

height and four (4) feet wide and shall be kept as free from

water as the average haulage roads in such mines. At all

points where the passageway to the escapement shaft, or

other place of exist, is intersected by other roadways or

entries conspicuous boards shall be placed indicating the

direction it is necessary to take in order to reach such

place of exit. It shall be unlawful to erect any inflammable

structure or building or powder magazine on the surface

so near the escapeway as to jeopardize the safety of the

workmen in case of fire. And no boiler house shall be erect-

ed nearer than thirty-five (35) feet of the mine opening.

All explosive materials shall be stored in fire proof build-

ings on the surface located not less than three hundred

(300) feet from any other building. Fans shall be located

and mantained at such place as not to be directly over the

opening of an air shaft or escapement shaft, and all fans

hereafter installed shall be arranged so as to enable the

operator, when desirable, to reverse the air current: Pro-

vided, further, That escape shafts already constructed un-

der the provisions of the law herein amended shall not be

affected by this act except they shall be maintained accord-

ing to the provisions herein. (As amended, Acts 1913, p.

701.)

8572. (7432.) Cages, safety catches, riding in—4. The

rope used for hoisting and lowering in every mine shall be a

wire rope, and it shall be securely fastened to the shaft of

the drum where two separate ropes are used, and at least

one whole lap shall remain on the drum when the cage is at

rest on the lowest caging place in the mine, and it shall

be examined by some competent person every morning

before the men descend into the mine. The operator of

every mine shall provide a cover of %-inch boiler plate

overhead on all carriages or cages used for lowering or

hoisting persons into and out of the mines, and on top of

every shaft an improved safety gate; also, an approved

safety spring on the top of every slope. Approved safety

catches shall be attached to every cage used for the purpose

of hoisting or lowering persons. All persons are prohibited

from riding on the cages when coal or dirt is being hoisted,

und in no case shall more than six men ride on any cage or

car at one time.

8573. (7433.) Brake—5. An adequate brake shall

be attached to every drum used for lowering or raisng

persons into or out of all shafts or slopes.

7574. (7434.) Indicator—6. A proper indicator shall

be attached to every hoisting apparatus in addition to any

mark on the rope, which shall show to the hoisting engi-

neer the position of a cage or load in the mine.

8575. (7535.) Fencing, lights, speaking tubes, sig-

nals.—7. The operator of every mine shall keep the top

of every mine and the entrance thereof securely fenced off

by vertical or flat gates covering and protecting the mouth

of such mine. Two lamps shall be kept lighted at all times

when the mine is in operation, except when electric lights

are used, one on each side of the shaft, not more than ten

(10) feet from said shaft in each vein where men get on or

off the cages. There shall be gates hung at each vein, other

than the lower one, so that at all times except when coal

is actually being placed on the cage or when empty cars are

being taken off the cage there shall be a barrier prevent-

ing any one falling into the shaft. The operator of such

mine, upon receiving notice from the inspector that one or

more safety lamps are necessary to the safety of the men

in such mine, shall at once procure and keep for use such

number of safety lamps as may be necessary. All safety

lamps used for examining mines or for working therein

shall be the property of the operator and shall remain in

the custody of the mine boss or other competent person,

who shall clean, fill, trim, examine and deliver the same

locked and in safe condition to the men when entering the

mine, and shall receive the same from men at the end of

their shift. Said person or persons shall be responsible

for the condition and proper use of safety lamps while in

their possession and the safe return of said lamps to the

place from whence they received them. The operator of

any mine shall provide and mrintain a metal tube from the

top to the bottom of the mine, suitably adapted to the free

passage of sound, through which conversation may be held

between persons at each vein with a signal bell at the top

and bottom of each mine. There shall be a code of signals

at all mines, with a signal bell at the top and bottom of each

mine, one bell shall signify to hoist coal or empty cage, and

also to stop either when in motion, two bells shall signify

that men are coming up; when return signal is received

from the engineer men will get on the cage and ring one

bell to hoist; four bells shall signify to hoist slowly, imply-

ing danger. The engineer’s signal for men to get on the

cage shall be three bells. A whistle may be used at the

top of the mine instead of a bell. A copy of the above code

of signals shall be printed and conspicuously posted at the

top and bottom of the shaft and in the engine room.

8576. (7436.) Abandoned mine, fencing —6. The en-

trance of an abandoned mine shall be securely fenced off,

so that no injury can arise therefrom.

8577. (7437.) Scales, weighmen, inspection —9. The

operator of any mine at which the miners are paid by

weight shall provide suitable and accurate scales of stand.

ard manufacture for weighing of coal which may be pro-

cured from such mines; such operator shall be required

to keep United States standard weights to test said scales.

At every mine where the coal mined is paid for by weight

it shall be the duty of the weighman and the check-weigh-

man to examine and balance the scales each morning, and

in no case shall any coal be weighed until such scales are

tested by the United States standard weights and found

to be correct. Said weighman shall accurately weigh and

he shall, together with the check-weighman, record the

weight of each miner's car of coal delivered, which record

shall be kept open at all reasonable hours for inspection

of all miners or other persons pecuniarily interested in the

product of such mine: Provided, That if the weighman

and check-weighmap shall disagree work may continue until

the inspector of mines can be present and any erroneous

weights made during such times shall be rectified. When

differences shal] arise between the weighman and check-

weighman, or operator, of any mine as to the correctness of

the scales, the same shall be referred to the inspector of

mines, whose duty it shal] be to see and regulate the same

at once. The inspector of mines and miners employed in

the mine, the owner of the land and others personally inter-

ested in the royalty of such mine shall, at all proper times,

have full right of access to and examination of scales or

used for weighing coal in or about said mine,

iueluding the bank book in which the weights of coal are

cubic feet of air per minute for each and every person

employed, and three hundred (300) cubic feet per minute

for each mule, horse or other animal used in said mine,

measured at the foot of the downcast, and as much more as

the circumstances may require. It shall be forced and cir-

culated around the main entries, cross entries and working

places throughout the mine so that said mine shall be free

from standing gas of whatsoever kind to such an extent

that the entire mine shall be in a fit state at all times for

men to work therein, and will render harmless all noxious

or dangerous gases generated therein. Every place where

fire damp is known, or supposed to exist, shall be carefully

examined with a safety lamp by a competent fire boss imme-

diately before each shift, and in making said examinations

it shall be the duty of the fire boss, at each examination, to

leave at the face of every place examined evidence of his

presence, and it shal] be unlawful for any person to enter

any mine, or part of mine, generating fire damp until it

has been examined by the fire boss ad reported by him to

be safe. The ventilation required by this act may be pro-

vided by any suitable appliance, but ia case a furnace is

used for ventilation purposes it shall be built in such a

manner as to prevent the communication of fire to any

part of the works by lining the upeast with incombustible

material for a sufficient distance up from the said furnace.

But in no case shall a furnace be used at the bottom of the

shaft in the mine for the purpose of producing a hot upcast

of air where the hoisting appliances and buildings are built

directly over the shaft. The operator shall employ a com-

petent mine boss, who shal] be an experienced coal miner,

end shall keep careful watch over the vertilating apparatus

and the airways, and shall see that, as the miners advance

their excavations, all loose coal, slate and rock overhead

are taken down or carefully secured against falling therein

on the traveling and airways. He shall measure the air

currents at least once a week at the inlet and outlet, and at

ez near the face of the entries; he shall keep a record

of such measurements, which shall be entered in a book

kept for that purpose, the said book to be open for inapec-

tion of the inspector of mines. He shall also on or about

the first day of each month mail to the inspector a true copy

of the said air measurements, stating also the wamber of

persons employed in or about said mine, the number of

mules and horses used, and the number of days worked in

each month. Blanks for this purpose shall be furnished by

the state to the inspector and by the inspector to each mine

boss. The currents of air in mines shall be «plit so as to

give separate currents to at lenat every fifty (50) persons

at work, and the inspector of mines shall have discretion to

order a separate current for a smaller number of men if

special conditions render it necessary. Whenever the in-

spector of mines shall find men working without sufficient

air or under any unsafe conditions he shall first give the

operator a notice giving the facts and reasonable time to

rectify the same, and upon his failure to do so he may order

the men out of the mine or portion of said mine and at once

order said mine, or part thereof, stopped until such mine or

part of mine shall be put in proper condition. And the

inspector of mines shall immediately bring suit against

such operator for failure to comply vith the provisions of

this section. “‘Break throughs”’ or airways shall be made

in each room and entry at jeast every forty-five feet. All

“break throughs"’ or airways, except those last made near

the working faces of the mine, shall be closed up and made

air tight. The doors used in assisting or directing the

ventilation of the mine when coal is being hauled through

them, shall be opened and closed by persons designated to

do the same, so that the drivers or other persons may not

cause the doors to stand open, but nothing herein shall pre-

vent the use of automatic or mechanical doors, subject to

the approval of the inspector of mines. In case the road-

ways or entries of any mine are so dry that the air be-

comes charged with dust, such roadways or entries shall be

regularly and thoroughly sprinkled. And it shall be the

duty of the inspector to see that this provision is carried

out.

8580. (7440.) Examinations by mine boss, duties, acci-

dent.—12. The mine boss shall visit and examine every

working place in the mine, at least every alternate day

while ‘he miners of such places are, or should be, at work,

and shall examine and see that each and every working

place is properly secured by timbering and that the safety

of the mine is assured. . He shall see that a sufficient supply

of timbers are always on hand at the miners’ working place.

He shall also see that all loose coal, slate and rock overhead

wherein miners have to travel to and from their work, are

taken down or carefully secured. Whenever such mine boss

shall have an unsafe place reported to him, he shall order

and direct that the same be placed in a safe condition; and

until such is done no person shall enter such place except

for the purpose of making it safe. Whenever any person

working in said mine shall learn of such unsafe place he

shall at once notify the mine boss thereof and it shail be the

duty of said mine boss to give him, properly filed out, an

acknowledgment of such notice of the following form:

I hereby acknowledge receipt of notice from ..........

of the unsafe condition of the mines as follows: ...........

Dated this ........ Ge iisuveevus - ver

EB Ss ee eg ee al ee Ney ee ICR , Mine Boss.

The possession by the person of such written acknowledg-

ment shall be proof of the receipt of such notice by said

mine boss whenever such question shall arise; and upon

receipt of such notice said mine boss shall at once inspect

. such place and proceed to put the same in good and safe

condition. As soon as such unsafe place has been repaired

to the approval of said mine boss, he shall then give per-

mission for the men to return to work therein, but no person

shall return to work until such repairs have been made and

permission given. Whenever any accident whatsoever has

occurred in any mine which shall delay the ordinary and

usual workings of such mine for twenty-four consecutive

hours, or has resulted in such injury to any person as to

cause death or require the attendance of a physician or

surgeon, it shall be the duty of the person in charge of such

mine to notify the inspector of mines of such accident with-

out delay and it shall be the duty of said inspector to inves-

tigate and ascertain the cause of such accident as soon as

his official duties will permit: Provided, That if loss of life

shall occur by reason of any such accident said inspector

shall immediately, with the coroner of the county in which

such accident may have occurred, go to the scene of the

accident. They shall investigate and ascertain the cause

of such loss of life and have power to compel the attend-

ance of witnesses and administer oats or affirmations to

them and the costs of such investigations shall be paid by

the county in which the accident occurred, as costs of coro-

ner’s inquests are now paid.

8581. (7441.) Traveling way, outlet, provisions for

injured—13. There shall be cut out at the bottom of the

shaft a traveling way sufficiently high and wide to enable

persons to pass the same in going from one side to the

other, without passing over or under the cage. On ail

single track hauling roads wherever hauling is done by

power, and on all gravity or incline planes in mines, upon

which the persons employed in the mine must travel on

foot to and from their work, places of refuge must be pro-

vided in the side wall, not less than three (3) feet in depth,

measuring from side of car, and four (4) feet wide, and

not more than twenty (20) yards apart, unless there is a

clear space of at least three (3) feet between the side of

the car and the side of the wall, which space shall be deemed

sufficient for the safe passage of men. On all hauling roads

in which the hauling is done by draft animals, whereon men

have to pass to and from their work on foot, places of

refuge must be cut in the side wall at least two and one-half

(214) feet deep, measuring from the side of the car, and

not more than twenty yards apart, but such places shall

not be required in entries from which rooms are driven at

regular intervals not exceeding twenty yards, and whenever

there is a clear space of two and one-half (214) feet between

the car and the rib, such places shall be deemed sufficient

for the safe passage of men. All places of refuge shall be

kept clear of obstructions and no material shall be stored

therein, excepting in cases of emergency, nor be allowed to

accumulate therein. At every mine where ten or more men

are employed inside, it shall be the duty of the operator

thereof to keep always on hand, readily accessible and near

the mouth of the mine, a properly constructed and comfort-

able stretcher; a woolen and water-proof blanket; a roll of

bandages in good condition for immediate use for bandag-

ing and dressing wounds of any one injured in such mine;

a supply of linseed oil, lime, camphor, turpentine, anti-

septic gauze, dressing and surgeon’s splints for the dress-

ing of broken bones; also to provide comfortable apart-

ment near the mouth of the mine, in which any one so

injured may rest while awaiting transportation to his home,

and to provide for the speedy transportation of any one

injured in such mine to his home.

(Acts 1907, p. 334. In force April 10, 1907.)

8582. Width of entries —1. That it shall be unlawful

for any owner, lessee, agent or operator of any coal mine

| within the State of Indiana to make, dig, construct, or

cause to be made, dug or constructed any entry or track-

way after the taking effect of this act, in any coal mine in

the State of Indiana where drivers are required to drive

with mine car or cars unless there shall be a space provided

on one or both sides continuously of any track or tracks

measured from the rail, in any such entry of at least two

(2) feet in width, free from any props, loose slate, debris

or other obstruction so that the driver may get away from

the car or cars and track in event of collision, wreck or

other accident. It shall be unlawful for any employe, per-

son or persons to knowingly, purposely or maliciously place

any obstruction within said space as herein provided: Pro-

vided, That the geological veins of coal numbers three and

four, commonly known as the lower and upper veins in the

block coal fields of Indiana shall be exempt from the pro-

visions of this act.

8583. Penalty.—2. Any such owner, lessee, operator,

person or persons, violating any of the provisions of this

act shall be guilty of misdemeanor and upon conviction

thereof shall be fined in any sum not to exceed two hundred

dollars, and to which fine may be added imprisonment in the

county jail, not to exceed sixty days.

(Acts 1905, p. 65. In force April 15, 1905.)

8584. (7442.) Approaching abandoxed workings,

water or gas.—14. When approaching abandoned work-

ings which are supposed to contain dangerous accumula-

tion of water or gases, the excavation approaching such

places shall not exceed eight feet in width, and there shall

be constantly kept, at a sufficient distance (not less than

three yards in advance) one bore hole near the center of

the workings, and sufficient flank bore holes on each side.

When two or more veins are worked in the same mine they

shall be so operated that no danger will occur to the miners

working in either vein.

8585. (7443.) Timber supply, blackboard—15. The

operator of any mine shall keep a sufficient supply of timber

at the mine, and deliver all props, caps and timber (of

proper lengths) to the rooms of the workmen, when needed

and required, so the employes may, at all times, be able to

properly secure the workings from caving in. Every opera-

tor operating mines in this state shall place a blackboard

near the mine entrance sufficienty large, stating thereon in

figures the lengths of all timber in use in said mine. The

miners shall register thereon, when needing timber for

securing their working places, their respective numbers,

under the figures indicating the proper lengths of timber

required.

8586. (7444.) Injury to safety appliances—16. Any

person who shall, knowingly, injure or interfere with any

—— ee

safety lamp, air course, or with any brattice or obstruct or

throw open doors, or disturb any part of the machinery, or

ride upon a loaded car or wagon in any mine, or do any

act whereby the lives or health of the persons or the secur-

ity of the mines or machinery are endangered, shall be

deemed guilty of a misdemeanor.

8587. (7445.) Explosives, blastnig or shooting, tools.—

17. Whenever any person is about to open a keg or box

containing powder, or other explosives, he shall place and

keep his light at least five feet distant from said explosive,

and in such a position that the air current can not carry

sparks to it; and no person shall approach nearer than

five feet to any open box or keg containing powder or other

explosives with a light or pipe or any other thing contain-

ing fire. In any mines of this state, where coal is mined

by “‘blasting off the solid’’ it shall be unlawful for any

miner or other person to drill any hole, for the purpose of

blasting, more than one foot past the end of his cutting or

‘loose end”’ or to prepare a ‘‘shot’’ in such a way that the

distance from the hole to the loose end shall be more than

five feet, measured at right angles to the direction of the

hole. In the process of charging or tamping a hole, no

person shall use any iron or steel needle or tool, except as

herein provided. The needle used in preparing the blast

shall be made of copper, and the tamping bar shall be tipped

with at least five inches of copper. No coal dust or any

material that is inflammable, or that my create a spark,

shall be used for tamping and some soft material shall be

placed next to the cartridge or explosive.

8588. (7446.) Illuminating oils—18. Only a pure ani-

mal or vegetable oil, or other oils that shall be as free

—————

100

from smoke as a pure animal or vegetable oil, and nig¢ gh.

product of rosin, and which shall, in inspection, ¢Gmppjy

with the following list, shall be used for illuminating, pyr.

poses in the mines of this state: All such oils must be tested

by the state supervisor of oil inspection or his deputijes o¢

70 degrees Fahrenheit. The specific gravity of the oil post

not exceed 24 degrees. The test of the oil must be mayo jy

a glass jar one and five-tenths (1 5-10) inches in diatyetey

by seven (7) inches in depth. If the oil be above 45 deigroes

and below 70 degrees Fahrenheit, it must be raised ¢, 4

temperature of about 80 degrees Fahrenheit, when, ‘after

being well shaken, it shall be allowed to cool gradually, to

temperature of 70 degrees Fahrenheit before being fijally

tested. In testing the gravity of the oil the hydrontneter

must be, when possible, read from below, and the last. jing

which appears under the surface of the oil shall be regarded

as the true reading. In case the oil under test shoulig pe

opaque or turbid, one-half of ‘he capillary attraction sj)

be deemed and taken to be “he true reading. When the

oil is tested under difficult circumstances, an allowaney of

one-half degree may be made for possible error before eon.

demning the oil for the use in the mine. All oil sold ty pe

used for illuminating purposes in the mines of the state

shall be contained in barrels or packages, branded @oy.

spicuously with the name of the dealer, the specific gravity

of the oil and the date of shipment. Any individual, fijpy),

corporation or company that sells or offers for sale any, oj)

other than provided in section 18 to be used for illuminating

purposes in coal or other mines of the state, or the itjqj.

vidual, firm, corporation, company or person having jp

charge the operation or running of any mine, who pernajts

101

the use in his or their mine of any oil for illuminating pur-

poses other than provided for in section 18, or any employe

in any mine of this state, who uses with a knowledge of its

character, a quality of oil other than is provided for in

section 18, shall be deemed guilty of a misdemeanor, and

upon conviction thereof shall be fined in any sum not less

than five ($5) dollars nor more than twenty-five ($25)

dollars.

8589. (7447.) Check-weighmar.—19. Whenever the

mining of coal is paid for by weight, the miners employed

in mining the same shall have the right of selecting and

keeping in the weigh office, or at the place of weighing coal,

a check-weighman, who shall be vested with the same rights

as described in section 9 of this act, said check-weighman

to be paid by said miners.

8590. (7448.) Inspector of mines, appointment, assist-

ants, salaries, duties —20. The state geologist shall ap-

point an inspector of mines, who shall hold his office for

two years or until his successor shall be appointed and

qualified, and he shall require all applicants for such office

to pass an examination touching their qualifications and

fitness to discharge the duties thereof before making such

appointment. And the state geologist is hereby empowered

to make such rules and regulations in conducting such ex-

aminations as in his judgment will test the competency

and fitness of such applicants: Providing, further, That

the state geologist shall give a certificate of appointment

to the person appointed, which certificate shall entitle such

appointee, when qualified, to do and perform ali duties of

his office as inspector of mines. The inspector of mines

shall appoint two assistants, who have each passed such

102

examination touching their qualifications for such position

as may be prescribed by him. The inspector of mines shall

execute certificates of such appointments and deliver the

same to each of such assistants, who shall qualify by each

executing a bond and taking an oath in the manner and

form provided by this act, and when so qualified, each such

assistant is authorized and empowered to draw his salary

and to perform all duties of his office as prescribed by this

act. Each of such assistants shall be subject to orders and

directions of the inspector of mines, and, in pursuance of

such orders and directions, is empowered to do any and all

acts to perform all duties incumbent upon the inspector

of mines. They shall each make a detailed and itemized

report as often as required, to the inspector of mines, of the

work performed by him and shall hold his office subject

to removal at any time by such inspector of mines for

cause. The inspector of mines and his assistants, shall be

residents of the State of Indiana for at least five (5) years

immediately preceding their appointment to office, and shall

be practical miners of at least ten years’ experience in

actual mining, and no person shall be eligible to hold the

office of inspector of mines or assistant inspector of mines

who is or may be pecuniarily interested in any coal mine

within this state either directly or indirectly. The inspector

of mines and his assistants before entering upon the duties

of their offices, shall each execute a bond payable to the

State of Indiana, with good and sufficient surety, in the

sum of one thousand dollars ($1,000), and shall take and

subscribe to an oath to be indorsed upon the back of each

bond for the faithful performance of the duties of the office,

which bond shall be approved by and filed with the secre-

103

tary of state. The inspector of mines shall receive as com-

pensation for his services the sum of one thousand eight

hundred dollars ($1,800) per annum, and each assistant

inspector of mines shal] receive as compensation for his

services the sum of one thousand two hundred dollars

($1,200) per annum. And for expenses they shall receive

the sum actually and necessarily expended for that pur-

pose, in the discharge of their cfficial duties, all to be paid

quarterly by the state treasurer from funds in the state

treasury not otherwise appropriated. A!) expense bills

shall be sworn to and shall show the items of expense in

detail. Said inspector of mines may also appoint a secre-

tary to assist him in the discharge of his duties, who shall

receive a salary of six hundred dollars ($600) per annum.

It shall be the duty of the inspector of mines appointed

under this act to enter, examine and inspect any and all

coal mines, and the works and machinery belonging thereto,

at any reasonable time, by day or by night, but so as not

to hinder or obstruct the working of any coal mine more

than is reasonably necessary in the discharge of his duties;

and the operator of such coal mine is hereby required to

furnish the necessary facilities for such entry, examination

and inspection. Should the operator fail or refuse to per-

mit such inspection or furnish such facilities the operator

so failing shall be deemed to have committed a misde-

meanor, and it is hereby made the duty of such inspector

to charge such operator with such violation, under oath, in

any court having jurisdiction. The inspector appointed

. under this act shall devote his entire time and attention to

the duties of his office. He, or his assistants, shall make

personal inspection, at least twice each year, of all coal

shall freely set forth in an annual report to the state geolo.

gist, together with his recommendation as to such other

legislation on the subject of mining as he may think proper.

It shall be the duty of the inspector of mines, in addition

to his other duties, to examine all scales used at any mine

for the purpose of weighing coal taken out of said mine.

The scales shall be tested by sealed weights; the same shall

be furnished to said inspector of mines by the auditor of

state on requisition, the cost of which shall be audited by

the auditor of state and paid out of any money in the state

treasury not otherwise appropriated. And on inspection,

if the scales are found incorrect, and after written notice

by the inspector of mines, it shall be unlawful for any

operator to use or suffer the same to be used until the scales

are adjusted to weigh correctly. The provisions of this

law shall apply to all mines except to mines employing

less than ten men. And it shall be the duty of the inspector

of mines to see to the strict enforcement of all laws relating

to mines and mining, to investigate all violations of the law

relating thereto, file complaints and make affidavits against

such violators before the proper court of justice and to see

to the enforcement of all penalties prescribed by the stat-

utes of the state for disobedience to its provisions relating

to mines and mining, and failure to do so may be sufficient

cause for his removal from office. The inspector of mines

shall make an annual report to the state geologist of all

matter now required by law to be reported, which report

shall be published with the report of the state geologist, and

shall in every respect comply with the laws pertaining to

the inspection of mines.

8591. (7449.) Examinations by inspector, places, fee,

notice —21. It shall be the duty of the inspector of mines

to hold examinations for certificates of service and com-

petency in each of the cities of Brazil, Terre Haute, Wash-

ington and Evansville, and to publish notice of such exam-

nations, stating the time and place where examinations are

to be held, and shall make and publish rules and regulations

under which such examination shall be conducted. For the

purpose of providing for the expense of holding the exami-

nations and issuing the certificate herein provided for, each

applicant, before entering upon examination, shall pay the

inspector of mines one dollar, a receipt for which must be

indorsed upon each certificate before it becomes effective.

Examinations for certificates of service or competency

8593. (7451.) Monthly report to inspector —23. The

operator of every mine shall be and is hereby required to

report to the inspector of mines on or before the 15th day

visions of this section are not violated.

8595. (7453.) Wages, transfer, payment by check —

3B. Whenever any merchant or dealer in goods or mer-

chandine, or any other person, shall take from any employe

or laborer for wages, who labors in or about any mine

in thie state, an assignment of such employe’s wages,

earned or wnearned, due or to become due, or shall take

from such employe or laborer any order on his employer

for any such wages, and shall issue or give to any such

employe or laborer in consideration of or in payment for

any such assignment or transfer or order, any check, other

than a check on a solvent bank, or any ticket, token or

device payable or redeemable, or purporting to be payable

or redeemable, or agreed to be payable or redeemable, in

goods, wares, or merchandise or anything other than lawful

—

108

money of the United States, such check, ticket, token or

device shall at once become due and payable in lawful

money of the United States, for and to the extent of the

full amount of the wages assigned or relinquished for it,

and the holder of such checks, ticket, token or device shall,

after demand, have the right to collect the same, with rea-

sonable attorney’s fees, by suit in any court of competent

jurisdiction.

8596. (7454.) Liens, labor or royalty—26. The min-

ers and other persons employed and working in and about

the mines and others interested in the rental or royalty

on the coal mined therein, shall have a lien on said mine

and all machinery and fixtures connected therewith, and

everything used in and about the mine, for work and labor

performed within two months, and for royalty on the coal

mined for any length of time not exceeding two months;

and such liens shall be paramount to and have priority

over all other liens, except the liens of the state taxes;

and such liens shall have priority, as against each other,

in the order in which they accrued, and for labor over that

for royalty on coal. Any person to acquire such lien shall

file in the recorder’s office of the county where the mine is

situated, within sixty (60) days from the time the payment

became due, a notice of his intention to hold a lien upon

such property for the amount of his claim, stating in sucb

notice the amount of his claim, and the name of the coal

works, if known, or any other designation describing the

location of said mine; and the recorder shall record the

said notice, when presented, in a book used for recording

mechanic’s liens, for which the recorder shall receive a

fee of twenty-five cents. Suits brought to enforce any

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lien herein created shall be brought within one year from

the date of filing in the recorder’s office; and all judgments

rendered on the foreclosure of such liens shall include the

amount of the claim found to be due, with interest or same

from the time due, and with a reasonable attorney’s fee,

the judgment to be collected without relief from valuation,

appraisement or stay laws.

8597. (7455.) Injuries, liability—27. For any inju-

ries to person, or persons, or property, occasioned by any

violation of this act, or failure to comply with any of its

provisions, a right of action against the operator shall

zecrue to the party injured for the direct injury sustained

thereby; and in case of loss of life by reason of such viola-

tion, a right of action shall accrue in favor of the personal

representatives of the deceased against such operator, if

the deceased might have maintained an action, had he

lived, against the operator for an injury for the same act

or omission

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