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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appellees Brief
- **Published:** January 1, 1921
- **Citation:** 255 U.S. 144

## Text

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

2

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

3

(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-

4

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.

7

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-

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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

——

14

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.

(c) The classification made by the Indiana General
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

_—

15

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

ee

16

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

——_

17

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

18

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.

(c) Defendants and each of them further aver that the
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

SS

19

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 ————————__

21

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
———— -

22

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

——

28

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.’’

29

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

30

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 —————

31

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.

(c) That said Act is invalid because it includes within
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.

ay

33

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-

37
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

42

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,

_ —————

43

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.”’

44

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

__—

45

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

46

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

50
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

51

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.

__ —

59

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
Mine inspector may close down a mine after notice

&

g

SS KES

to operator of unsafe conditions, when the op-
erator shall refuse to rectify the same.

Break throughs shall be constructed every 45 feet,
and those, except near the working faces, shall
be closed and made air tight.

Providing for trappers and automatic or mechan-
ical doors, subject to the approval of in«pector
of mines.

All dry roadways and entries that are charged
with dust shall be regularly and thoroughly
«prinkled.

Mine boss to examine every working place at least
every alternate day.

Shall supply sufficient timbers, props and caps of
proper lengths to working places to secure the

Written form of receipt of notice prescribed.

Accidents and deaths to be reported to inspector,
and deaths reported to coroner.

Traveling ways provided.

Places of refuge three feet deep and not more than
20 yards apart in certain mines of gravity or
incline planes.

On hauling roads where hauling is done by animals
refuge places must be cut in the side wall at
least 2). feet deep, measured from side of the
car.

At all mimes employing 10 or more men, the opera-
tor must provide a comfortable stretcher, a
woolen water proof blanket, a roll of bandages,

ae

HH
|
iit

one injured in such mine to his home
61. Entries shall be cut and constructed so a space

shall be provided on one or both sides contina

65. Lights shall be placed at least five feet distant from

powder kegs or boxes when being opened.
6. Wha blasting off the solid holes shall not be

67. No steel or iron needle or tool shall be used in
tamping, but the needle and tamping bar shall
be copper.

6. No coal dust or inflammable material shall be used
in tamping and seme soft material shall be
placed next to the cartridge.

69. Only pure animal or vegetabl oil or oils free from
smoke sha!) be used for illuminating purposes,
all oils to be tested by state oil inapector, or
his deputies, at 70° Fahrenheit. The specific
gravity of of] must not exceed 24°. An elab-
orate system of testing is further provided.

70. A check-weighman is provided for and his wages
shall be paid by the miners.

71. The law somewhat elaborately provides for the
creation of the office of inspector of mines and
deputies, who shall have certain qualifications,
and who shall hold examinations for the pur-
pose of issuing mine boss and fire boss licenses
to those passing the examinations. and in all
mines containing dangerous gases operators
are required to employ competent licensed fire
bosses. The inepector of mines, under the law,
gathers and publishes statistical data for pub-
he information.

72. The mining laws provide for the payment of wages
and gives miners’ wage for labor liens and pri-
ority of payment.

TR. It also gave injured employes and dependents cer-
tain civil rights of actions and remedies, since
supplanied by the employers’ liability act of

“Hy

1911, and since supplanted by the amended sec-
tion 18 of the workmen’s compensation law,
which singled out the coal industry and made
it compulsory to all operators and employes
engaged in the business of mining coal.

74. Adjacent owners or occupants of coal lands are
given the right of examination, exploration,
surveying and inspection.

75. It is made unlawful without consent of the mine
management to take any dynamite or dynamite
cap or other high explosive into any mine.

76. It shall be unlawful for any person for the purpose
of blasting coal in any mine in this state to pre-
pare any ‘‘shot’’ in such a way that the dis-
tance from the drill hole to the ‘‘loose end,”’’
chance or end of cutting shall be more than
five feet measured at right angles to the direc-
tion of the hole; or to place any charge of pow-
der or other explosive in any drill hole pre-
pared for any ‘‘shot’’ in which the breast of
coal to be dislodged is of greater width than
the depth of the drill hole; or to use in prepar-
ing any ‘‘shot’’ more than six pounds of pow-
der; or to place any powder in any drill hole |
for the purpose of preparing any ‘‘shot’’ with-
out measuring the amount so placed therein
with a substantial measure so made as to indi-
cate the weight of blasting powder measured
therein; or to open a keg, can or other pack-
age containing powder by means of a pick or
in any other manner except in pursuance of the

136

137

manner provided in the manufacture of such
keg, can or package; or to sell or offer for sale
any keg, can or package containing powder,
unless such can, keg or package be provided
with a sufficient device for opening the same
and permitting the discharge therefrom of all
the powder therein contained; or to store any
blasting powder, dynamite or other high explo-

‘ sive in any coal mine; or to prepare any drill
bit more than 31, inches in diameter to be used
in boring holes for the purpose of preparing
any shot or to use any dynamite or other high
explosive in conjunction with black powder.
It shall be unlawful for any owner, operator
or lessee of any coal mine, coal shaft or slope
coal mine to refuse, fail or neglect to sharpen
and prepare for use any bit for preparing drill
holes, if such bit is 31%4 inches in diameter, or
less, and such owner, operator or lessee, or
his representatives, has been requested to pre-
pare and sharpen the same by any owner of
such bit or bits.

77. Section 8605 provides certain facts shall constitute
prima facie evidence of guilt.

78. Section 8606 provides: It shall be unlawful in any
coal mine for any person to explode or light
any shot in any working place simultaneously
with the explosion or lighting of any shot by
the same or any other person in any other
working place on the same entry, except in
working places where the coal is under cut by
machinery.

PERE TIN LONG IB LES TNE IG NET SOE UR oy rr mas

79.

81.

82.

83.

85.

138

Operators shall provide suitable materials for
tamping.

Section 8610, Burns’ Rev. 1914, provides: That at
any coal mine in the state where the miners
working therein so elect, persons may be em-
ployed to act as shot firers and their wages
shall be paid by the miners working therein:
Provided, That nothing herein contained shall
affect any existing contract as to shot firing.

The inspector of mines and his deputies are em-
powered to act as police officers.

Certain penalties are provided for the failure of
an inspector to perform his lawful duties or
any other law relating to the health and safety
of persons employed in coal mines and matters
connected therewith.

Section 8618 Burns’ supra, provides: That the
chemist to the state board of health shall at
stated times hold examinations for coal miners
21 years of age, and possessing a good moral
character, and who has had at least five years’
practical experience as a coal miner, as eligible
for inspector of mines.

Section 8623 provides for wash houses and penal-
ties for the violation of the provisions of said
act.

Section 86241, inclusive, provides for the creation
of a miners’ examining board in certain coun-
ties and the issuance and rejection of certifi-
cates of competency. The legislature used
these words: ‘‘That the business of mining

139

coal is hereby declared a dangerous occupation,
industry and business. Under the provisions
of this law no one can lawfully engage in the
business of mining coal until he has passed
the prescribed legal requirements.

As an Example of how 45 States and Territories have made different
Classifications as to employments, covered and not covered as to Com-
pulsory Compensation, varied and different kinds of Insurance, Maximum
and Minimum periods and amounts of money for Medical Services, and
Waiting Periods, we herewith submit the following Table, prepared by the
United States Department of Labor, Bureau of Labor Statistics, covering
the principal features of Laws relating to Workmen's Compensation and
Insurance, according to the Chart, revised January 1st, 1920. These States
are in operation and none have been declared unconstitutional.

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SUPREME COURT OF THE UNITED STATES.

No. 196. —Octrorer Team. 1920

Lower Vein Coal © ,

. - — Ap | Appeal from the District Court
” . of the United Mtates for the
District of Indiana

os ,

Indust rial Board of Indiana et a! j
|Pebruary 28, 1921.)

Mr. Justice McKeww, delivered the opimen of the Court

Appellant, the Lower Vein Coal Company, ix a corporation of
the State of Indiana. The Industrial Board of Indiana ix a board
ereated by an Act of the General Assembly of Indiana, approved
March 8, 1915, known as ‘’The Indiana Workmen's (om pensation
Act”. The personal appelices are members of the board

This suit was brought by the Coal Company to enjom the In-
dustrial Board. the Governor and Attorney General of the State,
from enforcing in any manner, Section 18 of the Workmen's
Compensation Act of the State, as amended by the General As
sembly in 1919, from asserting that plaintiff is compelled to
operate under the Compensation Act. from hearing any claim for
compensation awerted by any employe of the plaintiff so long
= plamtil elects not to come within the provisions of the act
from making any award to any injured employe, or his or her
dependents, during «ach time. and from doing any other act or
thing prejudicial to the rights of the plamtiff, so long as it elects
net to be bound by the act

The grounds for this relief were at forth in « complamnt of con-
siderable length to whieh the defendants seperately and severally
anewered. After trial of the imwes thus presented the District
Court entered its decree dimmixsing the Will for want of equity.
This appeal was then prosecuted

The Compensation Act is very long and declares its Purposes to
be to promote the prevention of industrial accidents: to cause pro
vison to be made for adequate medical and surgical care for in-

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_0431%3A3. Public record. Not legal advice.