Plaintiffs Brief — Wilmington Star Mining Co. v. Fulton

FILE COPY. Office Supreme Court

FILED

NOV 5 19

139. JAMES H. McKEN

IN THE

| Supreme Court of the United States.

Octoper Term, A. D., 1906.

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WILMINGTON STAR MINING COMPANY,

Plaintiff in Error,

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MINNIE FULTON,

Defendant in Error.

INERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR

THE NORTHERN DISTRICT OF ILLINOIS.

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Brief and Argument for Plaintiff in Error

--—- _—-_~ > & .- - ——-

CHARLES S. HOLT,

ARTHUR D. WHEELER,

WILLIAM P. SIDLEY,

ATTORNEYS FOR PLAINTIFF IN ERROR.

BARNARD & MILLER, PRINTERS, CHICAGO

IN THE

Supreme Court of the United States,

Octoser Term, A. D., 1906.

No. 139.

WILMINGTON STAR MINING COMPANY,

PLAINTIFF IN ERROR,

vs.

MINNIE FULTON,

DEFENDANT IN ERROR.

——>

SS

IN ERROR TO THE CIRCUIT COURT OF THE UNITED

STATES FOR THE NORTHERN DISTRICT

OF ILLINOIS.

Brief and Argument for Plaintiff in Error.

May IT PLEASE THE CouRT:

The question arising upon the record in this case,

which brings it directly to this court for re-

view, relates to the constitutionality of the

Illinois Mining Act of 1899 which renders the owner

or operator of a coal mine liable in damages for

personal injuries resulting from the wilful act of

an employe, viz: the mine manager or mine exam-

iner, notwithstanding other provisions of the same

act impose the duty, whose violation has caused the

2

injury, exclusively and in express terms and under

penalties of fine and imprisonment, upon such mine

manager or mine examiner, and then require his

employment by the mine owner under pain of sim-

ilar punishment in case of disobedience. The act

in question is set out in fuli as an Appendix to this

argument.

The Supreme Court of [linois in Henrietta Coal

Co. v. Martin, 221 ITll., 460, and other cases cited

therein has construed this Act as imposing liability

upon the owner of the mine under the circumstances

above noted, and while we believe that a simple

reading of the Act plainly indicates that it was the

intention of the Legislature to commit to the in-

spectors, mine managers, mine examiners and hoist-

ing engineers, whose duties it prescribes, and for

whose comvetency the board of examiners which it

created is to vouch, the interior management and

control of the mine and to hold them severally liable,

both civilly and criminally, for any wilful violation

of such duties, we must accept, as final, the interpre-

tation placed upon the Act by the highest court of

the state. As thus construed, however, the Act is

in violation of the Fourteenth Amendment of the

Constitution of the United States, forbidding a state

to make or enforce any law which shall abridge the

privileges or immunities of any citizen of the United

States, or to deprive any person of life, liberty or

property without due process of law or deny to any

person within its jurisdiction the equal protection

of the laws.

The facts in this case upon which the action is

predicated, are, briefly, as follows:

Samuel Fulton, husband of defendant in error,

and a track layer in the employ of plaintiff in error

at its mine near Coal City, in Grundy County, IIli-

nois, descended the mine with other employes one

Sunday morning when the mine was not in opera-

tion, for the purpose of laying switch tracks in the

west roadway, so-called, in preparation for the work

of the regular miners on the following day. Both

the mine manager and the mine examiner accom-

panied Fulton into the mine. The west roadway

generated gas at all times, a fact well known to the

mine manager and mine examiner, and all other em-

ployes of the mine; and a fan had been installed at

the entrance of this roadway as required by law for

the purpose of driving air into it and thus insuring

the safety of the employes therein. This fan was

ample for the purposes designed.

When the men entered the mine this Sunday

morning the fan was not in operation and had not

been since the preceding day and in consequence the

west roadway was filled with gas, facts known to all

present in the mine. A brief delay in starting the

fan was caused by the absence of a monkey-wrench

which was customarily used to epen the valve in a

steam pipe connected with the fan. As soon as Wil-

son, the mine manager, had procured another one

from the top of the shaft all the men assisted in

starting the fan and shortly after it was started and

before it had cleared the gas out of the west road-

way Fulton and another employe named Schmitz

entered this roadway for the purpose of laying

switch tracks, carrying open miners’ lamps upon

their heads. They encountered the gas in the road-

bale ll all a clin eaaietitin |

way, an explosion occurred and Fulton was killed,

his companion, Schmitz, escaping with serious in-

juries.

Defendant in error brought suit under Section 33

of the Illinois Mining Act against the owner of the

mine, charging eight separate wilful violations of

the Act in as many counts. The violations charged,

all of which related to duties imposed by the Act

upon the mine manager or mine examiner, not upon

the owner or operator, are as follows, the page ref-

erences being to the printed transcript of record:

First Count. (p. 4.) This count is based upon

one of the provisions of Section 19 which defines in

greater detail than is given in the preceding sec-

tions the nature and amount of ventilation which

the mine examiner shall see ‘‘is traveling in its

proper course and proper quantity’’ (Sec. 18 (a)),

and the mine manager shall measure and otherwise

supervise (Sec. 16 (b) and (c)). The trial judge in

his instructions placed this duty upon the mine man-

ager. (Rec., 96.)

Seconp anp Turrp Counts. (pp. 5, 6.) These

counts are based on Sec. 16 (b), ‘‘It shall be the

duty of the mine manager to see that cross cuts are

made at proper distances apart to secure the best

ventilation at the face of all working places and that

all stoppings along air ways are properly and

promptly built.’’

Fourtn Count. (p. 16.) See See. 18 (a) requir-

ing the mine examiner to ‘‘inspect all places where

men are expected to pass or to work and observe

whether there are any * * * accumulations of

gas’’ therein.

Firra Count. (p.19.) See Sec. 18 (b) preserib-

ing, with other duties of the mine examiner, ‘‘No

one shall be allowed * * * to enter the mine to

work therein, except under the direction of the mine

manager, until all conditions shall have been made

safe.’’

Sixta (ount. (p. 22.) See Sec. 16 (b). The

mine manager ‘‘shall keep careful watch over all

ventilating apparatus and the air currents in the

mine and in case of accident to fan or machinery

by which the currents are obstructed or stopped he

shall at once order the withdrawal of the men and

prohibit their return until thorough ventilation has

been re-established. ’’

SeventH Count. (p. 23.) The Act nowhere re-

quires the owner of the mine to cause its mine

examiner to visit the mine before the men are per-

mitted to enter it and to see that the air current

is traveling in its proper course and in proper quan-

tity. Such a duty is imposed, however, upon the

mine examiner by Sec. 18 (a) and in so far, if at all,

as this count states a statutory cause of action, it is

based on this provision.

Eicutu Count. (p. 24.) See Sec. 18 (b). The

mine examiner, when working places are discovered

in which accumulations of gas exist, ‘shall place a

conspicuous mark thereat as notice to all men to

keep out.’’

The question of unconstitutionality was raised

upon the trial in various ways—by motion made at

the close of all the evidence to instruct the jury to

find for the defendant upon the ground, with others,

that the provisions of the Illinois Mining Act upon

which the action and each of the counts is based, are

contrary to the Fourteenth Amendment of the Con-

stitution of the United States (p. 92); by exception

to the court’s charge to the jury that any act or

omission of the mine manager or mine examiner

was the act or omission of the defendant, and that

if the jury found from the evidence that such mine

manager or mine examiner acting in the usual and

ordinary course of his employment and in the scope

of his duties, did wilfully and knowingly fail to com-

ply with the provisions of said statute declared upon

in any count in the plaintiff’s declaration and such

wilful failure to comply with the law as aforesaid

was the proximate cause of decedent’s death, they

should find the issue for the plaintiff (pp. 101-2) ; by

requesting instructions as to each of the eight counts

of the declaration that no recovery could be had

thereunder for the reason that the provisions of the

Illinois Mining Act upon which such count was based

were contrary to said Constitution (pp. 105-6); by

motion in arrest of judgment (p. 108). In each in-

stance proper exception to the court’s adverse rul-

ing was preserved, and error assigned thereon.

Other errors complained of and hereinafter pre-

sented for the court’s consideration in case it should

rule adversely to our contention upon the consti-

tutional question, are as follows:

1. The court erred in its instruction to the jury

that the question whether Wilson’s order to Fulton

to enter the west roadway was the proximate cause

of his death turned upon the further questions

whether there was gas there at the time and whether

7

such gas was necessary to his death. This question

was raised by exception to the court’s charge upon

this point. (Ree., 101.) (See Assignments of Error,

6 and 7.)

2. The undisputed evidence shows that Fulton

entered the west roadway, where he met his death

and where he knew at the time that gas existed,

either as the result of an order from the mine man-

ager, Wilson, to enter this roadway, or upon his own

initiative and under circumstances which amounted

to a willful act on his part, whereby the lives and

health of persons working in the mine and the se-

curity of the mine or its machinery became endan-

gered; an act forbidden by Section 31 of the statute.

If he entered by reason of Wilson’s order, then such

order was the proximate cause of his death. If he

entered willfully, then his action was in violation of

the statute. In either case plaintiff was barred from

a recovery herein upon familiar principles of law.

This question was raised by defendant’s motion to

instruct the jury to find for the defendant, made at

the close of all the evidence (Rec., 92), and also by

exception to the entry of judgment herein. (Ree.,

108.) (See Assignment of Errors, 4 and 40.)

3. The evidence strongly indicated that the cir-

cumstances under which the decedent, Fulton, en-

tered the west roadway constituted a willful act, for-

bidden by Section 31 of the statute, and that such

willful act contributed to his death, or at least that

his death resulted in part from his reckless disre-

gard of consequences in view of his known surround-

ings, ete. Defendant was entitled to instructions

denying its liability if such facts were established.

Its requests for such instructions were, however, de

nied by the court. (Rec., 107.) (See Assignments

of Error, 36 and 37.)

4. No evidence was introduced in support of de-

fendant’s liability as charged in the second and third

counts, the undisputed evidence showing that this

was a ‘‘long-wall mine,’’ so-called, and that cross-

cuts and stoppings are unknown in such mines. De-

fendant’s motion to strike out these counts and re

quest for instructions to the jury that no recovery

could be had thereunder should have been granted.

‘Rec., 61, 102.) (See Assignments of Error, 12 and

13.)

5. There was uncontradicted evidence that Ful-

ten had entered the mine to work therein on the

morning in question under the direction of the mine

manager, Wilson. Defendant was entitled to an in-

struction denying its liability, under Section 18 (b)

of the Act, in case such fact was established. The

court refused, however, to give to the jury the re-

quested charge upon that point. (Rec., 107.) (See

Assignment of Error 38.)

There was, in any event, no basis in the evidence

for the liability charged in the fifth count, and de-

fendant’s motion to strike out and request for an

instruction that no recovery could be had thereunder

should have been granted. (Rec., 61, 103.) (See

Assignment of Error, 15.)

6. No evidence was introduced of any accident to

fan or machinery whereby the air currents in the

mine became obstructed and stopped, as charged in

plaintiff’s sixth count. Defendant’s motion to strike

—

9

out and request for an instruction that no recovery

could be had under said count should have been

granted. (Rec., 61, 103.) (See Assignment of

Error 16.)

ERRORS RELIED UPON.

4. Said court erred in overruling the motion of

defendant’s counsel, made at the close of all the evi-

dence offered or received upon the trial of this

cause, that the court instruct the jury to find the

defendant not guilty, which motion was in writing

and in the words following, to wit:

‘*Minnie Futon

vs.

Wiiminoeton Star Minine Company.

‘‘Now comes the defendant, by Holt, Wheeler &

Sidley, its attorneys, at the close of ail the evidence

offered in this cause, and moves the court to instruct

the jury to find the defendant not guilty.

Hott, Wueeter & Siptey,

Attorneys for the Defendant.’”’

Said motion should have been granted and said

instruction given to the jury for the following rea-

sons, with others, each of which is hereby sepa-

rately assigned as a ground of error herein:

First. That the evidence introduced upon the

trial of this cause wholly failed to support any of

the counts of the declaration.

10

Second. The evidence introduced upon the trial

of this cause showed conclusively either that Samuel

Fulton, the deceased, went into the west entry of the

mine where he was killed by direction of the mine

manager, Wilson, which direction thereby became

the proximate cause of his death, or else that said

deceased entered said west entry under circum-

stances which amounted to a willful act on his part,

whereby the lives and health of persons working in

the mine and security of the mine or its machinery

became endangered, and in either of these cases the

plaintiff was barred from a recovery herein.

Third. That none of the counts in the declaration

state a cause of action against the defendant.

Fourth. That the provisions of the Illinois Min-

ing Act upon which each and every of the counts in

the declaration is based are contrary to the Four-

teenth Amendment of the Constitution of the United

States, to the effect that no state shall make or en-

force any law which shall abridge the privileges or

immunities of citizens of the United States, nor shali

any state deprive any person of life, liberty or prop-

erty without due process of law, nor deny to any

person within its jurisdiction equal protection of the

laws.

6. Said court erred in its ruling in the course of

its definition to the jury of proximate cause, that if

the presence of gas in the mine was necessary to the

death of the deceased, Samuel Fulton, then the direc-

tion of the mine manager, Wilson, to such deceased

to go into the west roadway of the mine would not

be the proximate cause of his death, as shown by the

following portion of the charge of the court to the

jury, to wit:

“Tf you believe from the evidence that Wilson, the

mine manager, directed Fulton to go into the west

roadway, and that said Fulton did so in obedience to

such order, and such order was the proximate cause

of Fulton’s death, without the giving of which Ful-

ton would not have been killed, then the jury is in-

structed that the plaintiff cannot recover in this

case, and the verdict should be for the defendant.

You will note there that it follows, if you believe

that this instruction, if there was one, to Fulton was

the proximate cause of his death, note that in pass-

ing upon that question you must determine whether,

first, if there was gas there at that time; and wheth-

er, if there was, that was or was not the proximate

eause of his death. Now, by proximate cause is

meant efficient cause. In other words, if the gas had

not been there, would his death have followed? And

was gas being there necessary to his death? Or was

the instruction, if there was one, their willfully send-

ing him there, the thing which caused his death,

which was the greater cause? That is a question of

fact for you to determine.”’

7. Said court erred in its ruling that the question

of proximate cause of Fulton’s death turned upon

the presence of gas in the mine and the necessity

of such presence for Fulton’s death, as shown in the

following statement made by the court in connection

with that portion of its charge last above set forth:

“T said it was for them to determine what was the

proximate cause if there was an order for this de-

ceased to go into the mine, or whether it was the gas

being there. Let the instruction be what I stated

now, the last time; that covers it.’’

8. Said court erred in its ruling that the defend-

ant was bound by the act of any of its agents or serv-

ants in respect to the matters complained of in this

suit, as shown by the following portion of the fore-

going charge of the court to the jury:

‘‘The defendant in this case is a corporation, and

therefore can only act by and through its officers,

agents or employes; and you are instructed that any

act or omission of any of its said officers, agents or

employes done or omitted in the usual manner and

course of their employment, and in the scope of their

duties as such officers, agents or employes was the

act or omission of the defendant; and if the jury

find from all the evidence and under the instructions

of the court such officers, agents or employes, or any

of them, acting in the usual and ordinary course of

their employment, and in the scope of their duties,

did willfully and knowingly fail to comply with the

provisions of the said statute of Illinois declared

upon in any count in the plaintiff’s declaration, and

such willful failure to comply with the law as afore-

said is the proximate cause of the death of the de-

ceased husband, Samuel Fulton, then you should find

the issue for the plaintiff.’’

9. Said court erred in its ruling that the defend-

ant would be liable in this suit for the act of any

agent or representative other than the officers of

the defendant, as shown by the following statement

of the court made in connection with that portion of

its charge last above set forth: ‘‘I will amend that

by saying any agent, employe or whatever word to

a

13

indicate officer, agent or employe; that is, the repre-

sentative who has power to do the business of the

defendant. ”’

10. Said court erred in its ruling that the jury

should find the issues for the plaintiff if they found

from all the evidence, and under the instructions of

the court that the defendant’s mine manager or mine

examiner, acting in the usual and ordinary course of

their employment in the scope of their duties, did

willfully and knowingly fail to comply with the pro-

visions of the statute of Illinois declared upon in

any count in the plaintiff’s declaration, and such

willful failure to comply with the law, as aforesaid,

was the proximate cause of the death of the de-

ceased husband, Samuel Fulton, as shown by the

following statement made by the court in its charge

to the jury in connection with and in reference to

that portion of its charge to the jury hereinabove

set forth under the eighth assignment of error, and

its amendment of such portion of such charge here-

inabove set forth under the ninth assignment of

error:

‘That is limited to the superiors; it is limited to

the mine manager and the mine examiner.’’

12. Said court erred in refusing the request of

defendant’s counsel to further charge the jury as

follows :

“The jury are instructed that the plaintiff cannot

recover under the second of the eight counts of her

declaration upon which this action proceeds.’’

Said instruction should have been given, for the

reason that there was no evidence introduced upon

14

the trial of this cause in support of the defendant’s

liability as charged in said count.

13. Said court erred in refusing the request of

the defendant’s counsel to further charge the jury

as follows:

‘‘The jury are instructed that the plaintiff cannot

recover under the third of the eight counts of her

declaration upon which this action proceeds.”’

Said instruction should have been given, for the

reason that there was no evidence introduced upon

the trial of this cause in support of the defendant’s

liability as charged in said count.

15. Said court erred in refusing the request of

defendant’s counsel to further charge the jury as

follows:

‘‘The jury are instructed that the plaintiff cannot

recover under the fifth of the eight counts of her

declaration upon which this action proceeds.’’

Said instruction should have been given, for the

reason that there was no evidence introduced upon

the trial of this cause in support of the defendant’s

liability, as charged in said count.

16. Said court erred in refusing the request of

defendant’s counsel to further charge the jury as

follows:

‘‘The jury are instructed that the plaintiff cannot

recover under the sixth of the eight counts of her

declaration upon which this action proceeds.”’

Said instruction should have been given, for the

reason that there was no evidence introduced upon

the trial of this cause in support of the defendant’s

liability as charged in said count.

15

27. Said court erred in refusing the request of

defendant’s counsel to further charge the jury as

follows :

‘‘The jury are instructed that the plaintiff cannot

recover uncer the first of the eight counts of her

declaration upon which this action proceeds; for the

reason that the provisions of the Illinois Mining Act

upon which said count is based are contrary to the

Constitution of the United States.’’

28. Said court erred in refusing the request of

defendant’s counsel to further charge the jury as

follows:

‘‘The jury are instructed that the plaintiff cannot

recover under the second of the eight counts of her

declaration upon which this action proceeds; for

the reason that the provisions of the Illinois Mining

Act upon which said count is based are contrary to

the Constitution of the United States.”’

29. Said court erred in refusing the request of

defendant’s counsel to further charge the jury as

follows :

‘‘The jury are instructed that the plaintiff cannot

recover under the third of the eight counts of her

declaration upon which this action proceeds; for the

reason that the provisions of the Illinois Mining Act

upon which said count is based are contrary to the

Constitution of the United States.”’

30. Said court erred in refusing the request of

defendant’s counsel to further charge the jury as

follows:

‘‘The jury are instructed that the plaintiff cannot

reeover under the fourth of the eight counts of her

16

declaration upon which this action proceeds, for the

reason that the provisions of the Illinois Mining Act

upon which said count is based are contrary to the

Constitution of the United States.’’

31. Said court erred in refusing the request of de-

fendant’s counsel to further charge the jury as fol-

lows:

‘‘The jury are instructed that the plaintiff cannot

recover under the fifth of the eight counts of her

declaration upon which this action proceeds; for the

reason that the provisions of the Illinois Mining Act

upon which said count is based are contrary to the

Constitution of the United States.’’

32. Said court erred in refusing the request of

defendant’s counsel to further charge the jury as

follows:

‘‘The jury are instructed that the plaintiff cannot

recover under the sixth of the eight counts of her

declaration upon which this action proceeds; for the

reason that the provisions of the Illinois Mining Act

upon which said count is based are contrary to the

Constitution of the United States.’’

33. Said court erred in refusing the request of

defendant’s counsel to further charge the jury as

follows:

‘‘The jury are instructed that the plaintiff cannot

recover under the seventh of the eight counts of her

declaration upon which this action proceeds; for the

reason that the provisions of the Illinois Mining Act

upon which said count is based are contrary to the

Constitution of the United States.’’

34. Said court erred in refusing the request of

17

defendant’s counsel to further charge the jury as

follows:

‘‘The jury are instructed that the plaintiff cannot

recover under the eighth of the eight counts of her

declaration upon which this action proceeds; for the

reason that the provisions of the Illinois Mining Act

upon which said count is based are contrary to the

Constitution of the United States.’’

36. Said court erred in refusing the request of

defendant’s counsel to further charge the jury as

follows:

‘‘You are instructed that under the laws of this

state in force at the time of Samuel Fulton’s death

it was unlawful for any miner or other workman in

a mine to do any willful act whereby the lives or

health of persons working in mines or the security

of the mine or machinery thereof was endangered,

and such unlawful act was punishable by a fine not

exceeding $500, or by imprisonment in the county

jail for a period not exceeding six months, or both,

at the discretion of the court. You are further in-

structed that if you believe from the evidence that

Samuel Fulton at the time he was killed, was en-

gaged in a wilful act which endangered the lives or

health of persons working in the mine with him or

the security of the mine or its machinery, and that

such wilful act on his part contributed to his death,

then the plaintiff cannot recover in this action and

your verdict must be for the defendant.

37. Said court erred in refusing the request of

defendant’s counsel to further charge the jury as

follows:

18

‘Tf you believe from the evidence that the death

of Samuel Fulton resulted in part from his reckless

disregard of consequences in view of his surround-

ings and knowledge of the conditions existing in the

mine as disclosed by the evidence, then you are in-

structed that the plaintiff cannot recover herein.’’

38. Said court erred in refusing the request of

defendant’s counsel to further charge the jury as

follows:

‘*If you believe from the evidence that the de-

cedent Fulton just before the time of his death en-

tered the mine to work therein under the direction

of the mine manager, Wilson, then you are directed

to find the defendant ‘not guilty,’ even though you

may further believe from the evidence that all the

conditions of the mine had not been made safe at

such time, as charged in the declaration.’’

39. Said court erred in overruling the motion in

arrest of judgment requested by counsel for the de-

fendant, it appearing upon the face of the record

that no cause of action against the defendant was

-stated in the declaration filed herein.

40. Said court erred in rendering judgment in

this cause against the defendant in the following re-

spects with others, each of which is hereby assigned

as a ground of error herein:

First. There is no evidence in the record of this

cause sustaining the declaration or any of its counts.

Second. It conclusively appears from the evi-

dence introduced upon the trial of this cause either

that the deceased, Samuel Fulton, entered the west

entry of the mine, where he was killed, by direction

19

of the mine manager, Wilson, which direction there-

by became the proximate cause of Fulton’s death,

or, that Fulton entered the said west entry under

such circumstances as amounted to a wilful act on

his part whereby the lives and health of persons

working in the mine and the security of the mine

or its machinery became endangered, in either of

which cases the plaintiff was barred from recovery

herein.

Third. The declaration fails to state any cause

of action against the defendant.

Fourth. The provisions of the Illinois Mining

Act, upon which each and every of the counts in the

declaration is based, are contrary to the fourteenth

amendment of the constitution of the United States,

to the effect that no state shall make or enforce any

law which shall abridge the privileges or immuni-

ties of citizens of the United States, nor shall any

state deprive any person of life, liberty or prop-

erty without due process of law, nor deny to any

person within its jurisdiction equal protection of

the laws.

BRIEF OF ARGUMENT.

I.

The Supreme Court of Illinois has interpreted

the Mining Act of this state, passed in 1899, as ren-

dering the mine owner or operator liable in damages

for death or injury resulting from the violation by

any mine official, i. e., the mine manager, hoisting

engineer or mine examiner, of any duty imposed by

the Act upon such official. See Henrietta Coal Co.

v. Martin, 221 IIl., 460, and cases cited therein. Such

interpretation by the highest court of the State is

final and conclusive as to the meaning of the Act.

Backus v. Fort Street Union Depot Co.,

169 U.S., at 566.

I.

As thus interpreted, the Act is in contravention

of the Fourteenth Amendment for the following rea-

sons:

(a) lt destroys the relationship between the

owner and mine official upon which the doctrine

of respondeat superior is based, by compelling the

official’s employment under penalty and then di-

rectly imposing duties upon him instead of permit-

ting their delegation by the employer. (See Appen-

dix and summary of statute under I of argument.)

To hold the owner of the mine liable under such cir-

21

cumstances for the officials’ defaults is to make one

man answerable for the acts of another over whom

he has no control and thereby to deny to him inher-

ent and inalienable rights and abridge his privileges

and immunities as a citizen of the United States.

— v. Kingston Coal Co., 171 Pa. St.,

193.

Williams v. Thacker Coal & Coke Co., 40

L. R. A., 812.

mene Coke Co. v. Roby, 115 Pa. St.,

Colorado Coal & Iron Co. v. Lamb, 6 Colo.

App., 205.

Fulton v. Wilmington Star Mining Co., 133

Fed. Rep.. at 198.

(b) No recognized principle of law permits an

employer to be held liable for the acts of a com-

pulsory servant.

14 Am. & Eng. Enc. of Law, (1st Ed.), 809.

20 Am. & Eng. Enc. of Law, (2nd Ed.), 180.

Reno Employers Liability Acts, 33.

James v. San Francisco, 6 Cal., 528.

Frazier v. Railroad Co., 180 Mass., 427.

Homer Ramsdell Co. v. La Compagnie, etc.,

182 U.S., 406.

Carruthers v. Sydebotham, 4 M. & S., 85.

Crisp v. U. S. etc., Co., 124 Fed. Rep., 748.

Harrison v. Hughes, 125 Fed. Rep., 860.

(c) The Act, by fixing upon the mine owner a

civil liability not imposed upon other employers of

labor in Illinois, whereby his property may be taken

to pay for a stranger’s defaults, deprives him of

liberty and property without due process of law, and

denies to him the equal protection of the laws.

Millett v. The People, 117 Iil., 301.

ed Const. Lim. (1st Ed.), 352-3, 391,

Van Zandt v. Waddell, 2 Yerger, 269.

Wally’s Heirs v. Kennedy, 2 Yerger, 554.

A., T. é St. F. Ry. Co. v. Matthews, 174 U.

S., 104-5

* bs é St. F. Ry. Co. v. Ellis, 165 U. S.,

The fact that the Illinois Mining Act may be re-

garded as a police measure does not prevent the

application of the constitutional guaranty in ques-

tion.

Connelly v. Union Sewer Pipe Co., 184 U.

8., 558.

The constitutional provision for the security of

person and property should be liberally construed.

Boyd v. U. S., 116 U.8., at 635.

G., C. & St. F. Ry. Co. v. Ellis, 165 U. S.,

at 154.

The Act is wholly void by reason of the unconsti-

tutional provision in question, as it cannot be pre-

sumed that its framers would have enacted it with-

out this provision which alone deals with the subject

of civil liability for its violation.

Connolly v. Union Sewer Pipe Co., 184 U.

S., at 565.

23

III.

Recovery can be had under this Mining Statute

only when the defendant’s act complained of is the

proximate cause of the injury.

Odin Coal Co. v. Denman, 185 Tll., 418.

This statute in derogation of the common law

must be strictly construed (see authorities herein-

after cited under VI), and no recovery should be

permitted except for a vioiation of some duty clearly

imposed by the Act.

The duty of refraining from ordering miners into

gaseous portions of the mine is nowhere laid upon

the mine manager. On the contrary Section 18 (b)

would seem to clearly negative such a duty.

Defendant was entitled to an accurate instruc-

tion by the court to the effect that if the act of

Wilson, the mine manager, in ordering decedent

into the gaseous part of the mine was found to be

the proximate cause of the accident, no recovery

could be had against the defendant, and it was er-

ror for the court to charge the jury in that connec-

tion that the question of proximate cause turned

upon whether or not there was gas in the mine which

was necessary to his death, and without which his

death would not have followed. (Rec., 97-8.) The

gas was merely the instrumentality producing

death, equally necessary to that result whether Wil-

son’s or decedent’s act was the proximate cause of

the explosion.

The jury were still further confused upon this

important question by the further instruction of the

24

court that they should take into consideration

whether the gas being there or Wilson’s order was

the greater cause of his death. (Rec., 98)—a com-

parison which had no proper place in the solution

of the question.

IV.

The evidence discloses but three possible sets of

circumstances under which Fulton could have

entered the west roadway in which he met his death

and to whichever set of circumstances his death

is attributed the defendant is free from liability.

These possible circumstances are as follows:

1. Either Wilson, the mine manager, ordered

Fulton to enter the roadway and he did so in obedi-

ence thereto, or

2. Wilson cautioned him not to enter the road-

way until the gas had cleared out under the opera-

tion of the fan and Wilson had tetsted the roadway

with a safety-lamp and Fulton entered in spite of

such warning, or

3. No order or caution was given by Wilson,

but Fulton entered the roadway upon his own voli-

tion, well knowing, as the evidence discloses, with-

out dispute or contradiction, that there was gas in

the roadway which his open lamp would in all like-

lihood explode.

The evidence supporting these three possible the-

ories is shown in the record as follows:

1. The testimony of Schmitz (Rec., 55-6).

2. The testimony of Wilson (Rec., 66, 73), and

Capet’s corroborating testimony (Rec., 88).

i

25

3. As to Fulton having with him an open light

at the time of the explosion, see Rec., 33, 45.

As to Fulton’s experience and knowledge of the

mine conditions see Rec., 35, 40, 49, 62, 64, 65, 76,

77, 83.

If Fulton entered under command from Wilson

(No. 1), such command was the proximate cause

of his death, and no recovery can be had upon the

grounds already considered. ;

If Fulton’s entry in the west roadway was made

in spite of a caution (No. 2), or upon his own voli-

tion with knowledge of the conditions producing

danger (No. 3), then he was engaged at the time

of his death in an unlawful act contrary to the ex-

press prohibition of Section 31 of the Mining Act,

and such unlawful act having contributed to his

death, barred the right of recovery herein.

A willful act, as used in the Mining Statute, means

that the person performing the act knows what he is

doing and intends to do what he is doing, and is

a free agent. An act consciously performed is wil-

fully performed under this statute as construed by

the Illinois Supreme Court.

Odin Coal Co. v. Denmam, 185 Ill, 413.

Carterville Coal Co. v. Abbott, 181 Ill. at

502.

See further for a construction of the term ‘‘wil-

ful’’, as used in such statutes, Southern Ry. Co. v.

Carroll, 138 Fed. Rep., 638.

The foregoing definition of the term ‘‘willful’’ is

that given to the jury on the trial of this case at

the request of the plaintiff (Rec., 99), and it must

26

be equally applicable to the acts of the plaintiff’s

intestate and of the defendant.

Fulton’s act, then, being willful and such as to en-

danger the lives and health of persons working in

the mine and the security of the mine and the ma-

chinery therein, as evidenced by the result of the

explosion on this occasion, was unlawful within the

meaning of Section 31 of the Act. It therefore

barred the right of recovery herein. ‘‘It is the es-

tablished law that when a plaintiff’s own unlawful

act concurs in causing the damage he complains of he

cannot recover compensation for such damage.’’

Heland v. City of Lowell, 3 Allen, 407.

‘‘The general principle is undoubted, that courts

of justice will not assist a person who has partici-

pated in a transaction forbidden by statute to as-

sert rights growing out of it, or to relieve himself

from the consequences of his own illegal act. Wheth-

er the form of the action is in contract or in tort

the test in each case is whether when all the facts

are disclosed the action appear to be founded in a

violation of law, in which the plaintiff has taken

part.’’ Citing many authorities.

Hall v. Corcoran, 107 Mass., 253.

As long ago as Holman v. Johnson, Cowper 343,

Lord Mansfield said: ‘‘The principal of public pol-

icy is this, Ex dolo malo non oritur actio—no court

will lend its aid to a man who founds his cause of

action upon an immoral or illegal act.’’

In Coppell v. Hall, 7 Wallace, 558, this court said:

‘‘The instruction given to the jury, that if the

contract was illegal the legality had _ been

27

waived by the reconventional demand of the de-

fendants, was founded upon a misconception of

the law. In such cases there can be no waiver.

The defense is allowed, not for the sake of the

defendant, but of the law itself. The princi-

ple is indispensable to the purity of its admin-

istration. It will not enforce what it has for-

bidden or denounced. The maxim, ex dolo malo

non oritur actio, is limited by no such qualifi-

cation.’’

And again page 559:

‘‘The principle to be extracted from all the

cases is, that the law will not lend its support

to a claim founded upon its violation.’’

See further Gilmore v. Fuller, 198 Ill., 130, and

authorities cited therein.

¥»

There being evidence in the record from which

the jury might have found Fulton’s action in enter-

ing the west roadway to have been willful and un-

lawful under the statute, it was the defendant’s

right to have this question submitted to the jury

under the form of instruction requested in that con-

nection. (Rec., 107.) The court’s refusal to give

this instruction was error, upon the authorities

cited under IV, supra.

Defendant’s further request for an instruction

along the same line to the effect that no recovery

could be had if Fulton’s death resulted in part from

his own reckless disregard of consequences in view

of his surroundings and the conditions in the mine

as disclosed by the evidence (Rec., 107), should also

ht

have been given, as such action on his part, if found

by the jury, would have amounted to a willful act

under the authorities already cited and would have

effectually neutralized the effect of any willful act

on defendant’s part upon the same principle, that

ordinary contributory negligence on plaintiff’s part

is a defense to ordinary negligence on defendant’s

part.

VI.

Under proper construction of this mining statute

no evidence was introduced in support of the sec-

ond, third, fifth and sixth counts of the declaration

and defendant’s motion to exclude these counts

from consideration, made at the close of plaintiff’s

case (Rec., 61), or its requests for instructions as to

each of said counts that no recovery could be had

thereunder (Rec., 102, 103), should have been

granted.

Second and Third Counts.

The evidence showed that this was a ‘‘long wall’’

mine, so called, in which ‘‘cross-cuts’’ and ‘‘stop-

pings’’ are unknown. (Rec., 33, 41-3.) The stat-

ute, therefore, had no application in this respect

to the mine in question and the evidence relating

to the absence of ‘‘cross-cuts’’ and ‘‘stoppings’’

should have been excluded from the jury.

Fifth Count.

The uncontradicted evidence showed that Fulton

was in the mine in question under the direction of

29

defendant’s mine manager. (Rec., 55-6, 64, 65.)

The charge to the contrary in the fifth count was,

therefore, directly negatived and this count should

likewise have been eliminated from the case.

Siath Count.

This count is based upon Section 16 (b). Evi-

dence of the temporary loss of the monkey-wrench,

by means of which the fan was customarily started,

did not support the allegation that an accident to

the mine machinery had occurred by which the cur-

rents of air were obstructed or stopped, as there

were no air currents in the mine at the time and

no danger to the miners resulted f.c™ the occur-

rence testified to. The provision of the statute in

question was made to cover the case of accidents

occurring while the mine and its ventilating ma-

chinery were in operation by which the lives of the

miners would be endangered. The Mining Act must

be strictly construed, being in derogation of the

common law, and cannot be extended to cover the

incident in question.

Cole v. Mayne, 122 Fed. Rep., 843.

Hamilton v. Jones, 125 Ind., 178.

Shaw v. Railroad Co., 101 U. S., at 565.

Johnson v. Southern Pacific Co., 117 Fed.

Rep., 466.

ARGUMENT.

I.

THE MINING ACT, IN 8O FAR AS IT UNDERTAKES TO REN-

DER THE OWNER OF THE MINE LIABLE FOR VIOLATIONS

OF DUTY IMPOSED BY THE ACT UPON MINE OFFICIAIs

WHOM THE OWNER IS COMPELLED TO EMPIAY, I8 IN

CONTRAVENTION OF THE FOURTEENTH AMENDMENT,

The Illinois Mining Act of 1899 is a radical de-

parture from all preceding legislation in the state

upon the subject, in that it effectually takes from

the mine owner the subterranean management of

his property and commits it into the hands of in-

spectors, mine managers, mine examiners and hoist-

ing engineers, whom he must employ, yet whose du-

ties and conduct he cannot prescribe or control, for

they are laid down by the state authority, which cre-

ates and certifies these officials. Prior to 1899 the

mining statutes, while they prescribed in increasing

detail the duties of the owner or operator, imposed

not a single duty upon inspectors, managers, exam-

iners or hoisting engineers, but left them subject to

the direction of the mine owner who employed them,

and upon whom was specifically placed the respon-

sibility for the operation of the mine.

With the revision of 1899 came a complete change

of policy by the state in providing for the health

and safety of miners. The location of the mine, its

31

material equipment and external supervision, are

still left to the operator or owner; for example, he

shall make accurate maps (Sec. l-a) and surveys

(1-i); have steam boilers inspected (4-i); provide

seales (24-a); station top and bottom men (28-a) ;

maintain lights at shaft (28-b) ; furnish safety lamps

(29-a), ete., ete.; but as to all that concerns the im-

mediate health and safety of the miners while at

work in the mine the state inspector, mine manager,

mine examiner and hoisting engineer are made di-

rectly responsible. That there might be no mistake

upon this point, Section 6 (a) of the act states that

“for the purpose of securing efficiency in the mine

inspection service and a high standard of qualifica-

tion in those who have the management and opera-

tion of coal mines, the State Commissioners of

Labor shall appoint a board of examiners to be

known as the State Mining Board, whose duty it

shall be to make formal inquiry into and pass upon

the practical and technical qualifications and per-

sonal fitness of men seeking appointment as state

inspectors of mines, and of those seeking certificates

of competency as mine managers, as hoisting engi-

neers, and as mine examiners.’’ In the minds of the

legislators who made this revision the mine mana-

gers, hoisting engineers and mine examiners are the

persons ‘‘who have the management and operation

of coal mines,’’ whose standard of qualification must

be kept high, just as the inspector is the official who

has charge of the ‘‘mine inspection service’’ whose

efficiency must be secured. The mine owner or

operator is not mentioned or referred to in that

connection.

i ct

Section 7 specifies the character and qualifications

which the State requires of candidates for these sey-

eral positions. Inspectors must produce satisfac.

tory evidence that they are citizens of Illinois, at

least thirty years of age, that they have had a prac.

tical mining experience of ten years, and that they

are men of good repute and temperate habits. They

must submit and satisfactorily pass an examination

as to their practical and technical knowledge of min-

ing engineering and mining machinery and appli-

ances, of the proper development and operation of

coal mines, of ventilation in mines, of the nature

and properties of mine gases, of the geology of the

coal measures in said State and of the laws of said

State relating to coal mines.

Mine managers must produce evidence that they

are citizens of Illinois, at least twenty-four years

of age; that they have had at least four years’ min-

ing experience and are men of good repute and tem-

perate habits, and must satisfactorily pass such an

examination as to their experience in mines and in

the management of them, their knowledge of mine

machinery and appliances, the use of surveying and

other instruments, the properties of mine gases, the

principles of ventilation and the specific duties and

responsibilities of mine managers as the board shall

see fit to impose.

Hoisting engineers must produce evidence that

they are citizens of the United States, at least twen-

ty-one years of age; that they have had at least

two years’ experience as fireman or engineer of a

hoisting plant and are of good repute and temperate

habits. They must satisfactori!y pass an examina-

tion as to their experience in handling hoisting ma-

chinery and as to their practical and_ technical

knowledge of the construction, cleaning and care

of steam boilers, the care and adjustment of hoist-

ing engines, the management and efficiency of

pumps, ropes and winding apparatus and the knowl-

edge of the laws of said State in relation to sig-

nals, and the hoisting and lowering of men at mines.

Mine examiners must be citizens of Illinois, at

least twenty-one years of age and of good repute

and temperate habits. They must satisfactorily pass

an examination as to their experience in mines gen-

erating dangerous gases, their practical and tech-

nical knowledge of the nature and properties of fire

damp, the laws of ventilation, the structure and uses

“of the safety lamps, and the laws of Tllinois relating

to safeguards against fires from any source in the

mines.

The foregoing requirements call for a high degree

of intelligence, character and experience in those

who would serve as inspectors, managers, hoisting

engineers and examiners in coal mines. They must,

in fact, be specialists in their several vocations, as

intelligent and competent at least, and probably

much more so, than the average owner or operator

who would regulate and control the operations of a

mine in the absence of this legislation. See, in this

connection, Williams v. Thacker Coal & Coke Co.,

40 L. R. A., at 812, hereafter quoted.

Section 8 provides for the issuance of certificates

of competency to candidates for the positions of

mine managers, hoisting engineers and mine exam-

iners, who have successfully passed the examina-

tions, which certificates qualify them to act in any

mine in the state, and make it unlawful for the

operator of any coal mine to employ or suffer to

serve as mine manager, mine examiner or hoisting

engineer any person who does not hold such certifi.

cate of competency issued by the State Mining

Board.

Sections 12, 16, 17, 18 and 19 impose distinct and

separate duties upon inspectors, mine managers,

hoisting engineers and mine examiners, defining

with great particularity the precautions which each

shall take in the interest of health and safety in the

mines.

State inspectors of mines shall devote their whole

time and attention to the duties of their office, make

personal examination of every mine within their re-

spective districts, see that every necessary precau-

tion is taken to insure the health and safety of the

miners; that the requirements of the Mining Law of

Illinois are faithfully observed and obeyed and the

penalties for violation of the same promptly en-

forced. He shall post notices in the mines as di-

rected by Section 12 (f); shall act as sealer of

weights (g) and test the accuracy of track and all

smaller scales at mines (h); shall make report at the

close of the year to the Burewu of Labor Statistics

of his acts as such inspector during the year with

recommendations as to legislation, and shal! collect

and tabulate statistics of mines and miners to ac-

company said report. (i.)

The mine manager shall instruct employes as to

their respective duties; shall visit and examine the

working places in the mine as often as practicable;

shall provide a sufficient supply of props, caps and

timbers, etc., for the miners; shall see that cross

cuts are made at proper distances apart to secure

the best ventilation at the face of all working places,

and that all stoppings along airways are properly

and promptly built; shall keep careful watch over

all ventilating apparatus and the air currents in the

mine, and, in case of accident to fan or machinery

by which the currents are obstructed or stopped,

shall at once order the withdrawal of the men and

prohibit their return until thorough ventilation has

been re-established; shall measure the air current

and keep a record of such measurements for the in-

spector; shall examine roadways to escapement

shafts, ete., and make a record thereof; shall give

special attention to and instructions concerning stor-

age and handling of explosives, etc.; shall see that

dusty roads are sprinkled and that all dangerous

places are properly marked; shall give attention to

the hoisting ropes and test the same; shall have

cages, safety catches, etc, frequently examined;

shall have the mine examined every morning by the

mining examiner before the men are allowed to go

to work, and know that top and bottom men are

on duty, and that sufficient lights are maintained

at the landings. The mine manager or his agent

shall be at his post at the mine when the men are

lowered for work, and shall keep a record of such

men, and he or his agent shall remain at night until

all the men have been hoisted out. (Section 16f.)

Where the duties devolving upon the mine manager

are too extensive to be discharged by one man, com-

petent persons may be appointed as assistants to the

mine manager, who shall exercise his functions wn-

der his instructions. How could language more

clearly indicate the complete independence of the

mine manager from the control of the owner or op-

erator of the mine with respect to the duties as-

signed to the manager by the statute?

A hoisting engineer shall be in constant attend-

ance at his engine or boilers at al! times where there

are workmen underground. He shall not permit any

one to enter or to loiter in the engine room except

those avthorized by their positions or duties to do

so, and he shall hold no conversation with any of-

ficer of the company or other person while the en-

gine is in motion or while his attention is occupied

with the signals. A notice to this effect shall be

posted on the door of the engine house. He shall

perform the other duties in connection with his ma-

chinery minutely set forth in paragraphs (c), (d)

and (e) of Section 17. Here again we note, even

more conspicuously, the interference of the state be-

tween master and servant, and the statutory abol-

ishment of that familiar common law relationship

upon which the doctrine of respondeat superior has

been reared.

A mine examiner shall be required at all mines.

He shall visit the mine before the men are permitted

to enter it, and first see that the air current is trav-

eling in its proper course and in proper quantity,

and then inspect all places where men are expected

to pass or to work, and observe whether there are

any recent falls or obstructions in rooms or road.

ways, or accumulations of gas or other unsafe condi-

37

tions. He shall especially examine the edges and

accessible parts of recent falls and old gobs and air

courses, and note his examination upon the wall;

shall place a conspicuous mark wherever working

places are discovered in which accumulations of gas

or other dangerous conditions exist, and report his

findings to the mine manager. He shall not allow

any one to remain in any part of the mine through

which gas is being carried into the ventilating cur-

rent, nor to enter the mine to work therein except

under the direction of the mine manager until all of

the conditions shall have been made safe. He shall

make a record of the conditions of the mine, which

shall be preserved in the office of the company, ete.

By way of more explicit definition of the duties

already imposed upon the mine manager and mine

examiner Section 19 points out that the air currents

referred to shall be sufficient for the ‘‘health and

safety of all men and animals employed in the mine;

that they shall be not less than 100 cubic feet per

minute for each person, or less than 600 cubic feet

per minute for each animal in the mine, which may

be increased at the discretion of the inspector; and

that said currents shall be forced into every work-

ing place throughout the mine, so that all parts shall

be reasonably free from standing powder-smoke and

deleterious air of every kind.’’

The foregoing duties constitute a complete code

of procedure for the interior management of the

mine, in whieh, neither by name nor inference, is

the owner or operator of the mine included in con-

nection with the duties imposed.

Having thus established a stringent code of du-

ties for owners and operators, inspectors, mine man-

agers, hoisting engineers, mine examiners and min-

ers (see Sections 16a and 31 re miners), the act in-

sures its enforcement by providing penalties, both

by fine and imprisonment, and denouncing as a mis-

demeanor ‘‘any wilful neglect, refusal or failure to

do the things required to be done by amy section,

clause or provision of this act, on the part of the

person or persons herein required to do them, or any

violation of any of the provisions or requirements

hereof, etc.’’ (Section 33.)

The conclu: ing paragraph of Section 33 gives the

right of action asserted in this case in the following

language:

‘‘For any injury to person or property occa-

sioned by any wilful violations of this act or

wilful failure to comply with any of its provi-

sions, a right of action shall accrue to the party

injured for any direct damages sustained there-

by; and in case of loss of life by reason of such

wilful violation or wilful failure as aforesaid, a

right of action shall accrue to the widow of the

person so killed, his lineal heirs or adopted chil-

dren, or to any other person or persons who

were before such loss of life dependent for sup-

port on the person or persons so killed, for a

like recovery of damages for the injuries sus-

tained by reason of such loss of life or lives,

not to exceed the sum of $5,000.’

We submit that a law, such as that above sum-

marized, which singles out one class of individuals

in the community, i. e., the owners of coal mines,

and imposes upon them liability for another’s mis-

deeds, such as it imposes upon no other persons,—

aoe ——

holding them accountable in damages for the viola-

tion, by persons whom they are compelled by law

to employ, of statutory duties enjoined upon such

person solely,—abridges the privileges and immuni-

ties to which they are entitled as citizens of the

United States, deprives them of liberty and prop-

erty without due process of law and denies to them

that protection of the law which the state accords

to others within its jurisdiction.

The exact question now under consideration came

before the Supreme Court of Pennsylvania in Dur-

kin v. Kingston Coal Co., 171 Pa. St., 193. The de-

cision is of especiai value as coming from the high-

est court of the greatest coal producing state in the

Union, where the relative rights of mine owners

and mine workers and the safety of the latter are

of paramount importance.

One Durkin recovered judgment against the

Kingston Coal Company and its mine foreman on

account of the death of his son, due to the neglect

of the mine foreman to examine the locality where

the accident occurred as required by the act of 1891,

entitled, ‘‘An act to provide for the health and

safety of persons employed in and about the anthra-

cite coal mines of Pennsylvania and for the pro-

tection and preservation of property connected

therewith.’’ The Pennsylvania act was substanti-

ally the same as the Illinois act now under consid-

eration, as appears from the court’s synopsis of its

material provisions at page 200. It differed from

the Illinois act in specifically providing that which

the Illinois Supreme Court has read into this act,

viz., a right of action against the owner or operator

40

for any failure of the mine foreman to comply with

its provisions. In reversing the judgment as against

the company and affirming it as against the fore.

man, the court say:

‘*The first article of the constitution of this

state, known as the bill of rights, declares that

all men are possessed of certain inherent and

inalienable rights. One of these is the right to

acquire, possess and protect property. The

preservation of this right requires both that

every man should be answerable for his own

acts and engagements, and that no man should

be required to answer for the acts and engage-

ments of strangers over whom he has no con-

trol. A statute that should impose such a lia-

bility or that should take the property of one

person and give it to another, or to the public,

without making just compensation therefor, |

would violate the bill of rights, and would be

for that reason unconstitutional and void. (Har-

vey v. Thomas, 10 Watts, 66; Ervine’s Appeal,

16 Pa., 265; Kneass’ Appeal, 31 Pa., 87; Wol-

ford v. Morgenthal, 91 Pa., 30; Godcharles ¢

Co. v. Wigeman, 113 Pa., 431.) It is in further-

ance of the right to acquire, possess and pro-

tect property that Sec. 18 of the bill of rights

prohibits the enactment of laws that shall inter-

fere with or impair the obligation of contracts.

The tendency toward class legislation for the

protection of particular sorts of labor has been

so strong, however, that several statutes have

recently been passed that could not be sustained

under the provisions of the bill of rights. Such

was the case in Godcharles v. Wigeman, supra.

Such was the case with some recent provisions

relating to mechanics’ liens, and such is alleged

by the appellant to be the case with some of the

provisions of the Act of 1891, P. L. 176, under

which this action was brought.’’

The court then reviews the provisions of the act

and continues:

41

‘‘ After having thus most effectually taken the

management of his mining operations out of his

hands and committed it to officers of its own

creation, whose employment is made compul-

sory upon him, the statute, in Sec. 8 of Art. 17,

imposes upon the mine owner a liability for the

neglect or incompetency of the men whom he

is compelled to employ, in these words: ‘That

for any injury to person or property occasioned

by any violation of this act or any failure to

comply with its provisions by any * * *

mine foreman, a right of action shall ac-

crue to the party injured against said owner

or operator for any direct damages he may

have sustained thereby; and in case of loss of

life by reason of such neglect or failure afore-

said, a right of action shall accrue to the widow

and lineal heirs of the person whose life shall

be lost for like recovery of damages for the in-

jury they shall have sustained.’ This statute,

regarded as a whole, is an extraordinary piece

of legislation. Through it the lawmakers say

to the mine owner, ‘You cannot be trusted to

manage your own business. Left to yourself,

you will not properly care for your own em-

ployes. We will determine what you shall do.

In order to make it certain that our directions

are obeyed we will set a mine foreman over your

mines with authority to direct the manner in

which your operations shall be conducted, and

what precautions shall be taken for the safety

of your enployes. You shall take for this posi-

tion a man whom we certify to as competent.

You shall pay him his salary. What he orders

done in your mines, you shall pay for. If, not-

withstanding our certificate, he turns out to be

incompetent or untrustworthy, you shall be re-

sponsible for his ignorance or negligence.’ Un-

der the cperation of this statute the mine fore-

man represents the commonwealth. The state

insists o2 his employment by the mine owner,

and in the name of the police power turns over

to him the determination of all questions rela-

ting to the comfort and security of the miners,

and invests him with the power to compel com-

pliance with his directions. Incredible as it may

seem, obedience on the part of the mine owner

does not protect him, but if the mine foreman

fails to do properly what the statute directs

him to do, the mine owner is declared to be re-

sponsible for all the consequences of the incom-

petency of the representative of the state. This

is a strong case of binding the consequences of

the fault or folly of one man upon the shoulders

of another. This is worse than taxation with-

out representation. It is civil responsibility

without blame and for the fault of another.’’

The court then further considers the case from

the standpoint of the fellow-servant doctrine, de-

elares the certified mine foreman is responsible for

the consequences of his own negligence, and con-

cludes as follows:

‘“‘The ground on which we place our judg-

ment is not, therefore, that the act is local, but

that the provisions of it which we have con-

sidered are in violation of the bill of rights.”’

In Williams v. Thacker Coal & Coke Co., 40 L. R.

A., 812, which arose under a mining statute based

upon that of Pennsylvania, the Supreme Court of

Appeals of West Virginia say:

‘“‘The statute requires that the operator or

agent of every coal mine shall employ a compe-

tent and practical inside overseer. For what

purpose? To better secure the proper ventila-

tion of the coal mine, and promote the health

und safety of persons employed therein. Op-

erators and agents are not supposed to have

the practical knowledge necessary to look after

these matters which are of so much importance

to the interests of the miners and employes in

——————————

43

and about the mines; therefore the Legislature

with proper solicitude for the welfare of those

who brave the dangers of the mines in order

to make a living for those dependent upon them

asserts its prerogative, and so far interferes

with the private business of the capitalist who

engages in the mining business as to require him

to take into his employment a person whose ex-

perience in the business and sound judgment

equip hin for such management and oversight

of the conduct of the mine as to reduce the

dangers thereof to a minimum.’’

The court then refers with approval to the holding

of the Pennsylvania court in the Durkin case,

(supra,) that the Pennsylvania Act, in so far as it

imposed liability on the mine owner for the failure

of the mine foreman to comply with the provisions

of the act which compelled his employment and de-

fined his duties, was unconstitutional and void, and

concludes :

‘‘The duty of the operator or agent is to em-

ploy a competent mine boss according to the

provisions of the statute, and when he has done

so, he has discharged his duties to his employes

in relation to those duties which the statute

prescribes shall be performed by such mine

boss, and the operator or agent is not liable

for injuries arising from the negligence of the

mine boss, who is not a vice principal as his du-

ties are not delegated to him by his employer,

but are prescribed by statute.’’

In Redstone Coke Co. v. Roby, 115 Pa. St., at 368,

the court say: :

‘*Tt has been held in a number of recent cases

that the mine owners are not responsible for

the negligence of their mining boss. Reasona-

ble care must be exercised in selecting a com-

petent person for such position. But when

44

such care has been exercised the cases are

clear that the company employing him is not

liable for his negligence. This results neces-

sarily from the Act of April 28, 1877, P. L., 58,

which imposes upon the company the duty of

providing a miners’ boss. This act was passed,

as its title shows, to protect the health and

safety of the persons employed in the bitumin-

ous coal mines, and is a wise and just measure,

The one great danger of such mining opera-

tions has always been the accumulation of foul

air and gases, and it was to avoid this and se-

cure proper ventilation that the fifth section of

the act requires the mine owner, nolens volens,

‘to employ a competent and practical inside

overseer, to be called a mine boss,’ etc. The

section then proceeds to define his duties, the

principal of which is to see that the mine is kept

properly ventilated. The mining boss is there-

fore a creature of the Legislature, selected by

the mine owner, in obedience to the command

of the law, and im the interest and for the pro-

tection of the miners themselves. It has there-

fore been properly held that where the mine

owners have exercised reasonable care for the

selection of a competent mining boss, they are

not liable for injuries resulting from his neg-

ligence.’’

In Colorado Coal & Iron Co. v. Lamb, 6 Colo. Ap-

peals, at 205, it is said:

‘‘We are unable to see how it is possible to

compel a company to employ a mine boss, upon

whom is laid the responsibility and the duty by

statute to attend to the mine and its safety as

a place to work in, clothe him with full author-

ity and power in this respect, and subject him

to punishments and responsibilities in case of

failure, and then hold the master responsible

for his acts. He is in no sense the representative

of the master, from whom the statute attempts

to take entire control of this part of his min-

45

ing operations. The master may supervise him

and he may, so far as may be, direct such

changes to be made as his judgment indicates

to be necessary, but when the statute put the

control of this particular matter into the hands

of the boss and left to his judgment both the

question of safety and the means to be used to

that end, we are unable to see how he is in any

sense, either as vice principal or otherwise, the

representative of the master, or how he can

stand in any other relation to his co-laborers

than that of a fellow-servant.’’

The same result as to the unconstitutionality of

this Illinois Act is reached by a consideration of

the authorities holding that an employer is not liable

at common law for the defaults of servants whose

employment by him is compulsory. This doctrine

is somewhat developed in the cases already cited

and is squarely dealt with by other authorities,

which we shall now consider.

‘‘Where a person or a corporation is com-

pelled by law to employ an individual in a given

manner, no liability attaches for his tortious or

negligent acts.’’

14 Am. & Eng. Enc. of Law (1st Ed.), 809.

“To constitute the relation of master and

servant, and to fix the liability of the former

for the negligence of the latter, resulting in in-

juries to third persons, there must exist a right

to select the person claimed to be a servant,

and also the power and duty to control his acts

in regard to the transaction out of which the

injury arose.’’

20 — & Eng. Enc. of Law (2nd Ed.), p.

180.

‘‘When the law compels a corporation to give

out a contract for grading a street to the lowest

46

bidder, it takes away from the corporation the

responsibility arising from the acts of the per.

son taking the contract.’’

James v. San Francisco, 6 Cal., 528.

‘‘But it seems that a statute which under.

takes to render an employer liable for the neg.

ligence of a compulsory employe, is unconsti-

tutional and void.’’

Reno Employers’ Liability Acts, 33.

In Frazier v. Railroad Co. 180 Mass., 427, the

court held that the defendant was not liable for in-

jury to a passenger occurring in a station which

the railroad company was compelled by law to use.

This subject has been repeatedly before this court

in the Pilotage cases, so-called, and while for many

years there was considerable uncertainty in the Fed-

eral Courts upon this question owing to the conft-

sion of the rules of maritime and the common lav,

it was finally set at rest in Homer Ransdell Co. v.

LaCompagnie, etc., 182 U. S., 406.

The New York Pilotage statute c 1857 provided

that every master of a foreign vessel bound to or

from the port of New York by the way of Sandy

Hook ‘‘shall take a licensed pilot, or, in case of re-

fusal to take such pilot, shall himself, owners or

consignee, pay the said pilotage as if one had been

employed. and such pilotage shall be paid to the

pilot first speaking or offering his services as pilot

to such vessel.’’ It further provided that any per-

son not holding a license as pilot under this act who

should pilot any vessel to or from the port of New

York by the way of Sandy Hook should be punished

47

by fine or imprisonment, and that all persons em-

ploying a person to act as pilot and not holding a

license under said act or under the laws of New

Jersey should pay a fine.

This Court held that this statute clearly

imposed compulsory pilotage; that the action in the

case was at common law. and that at common law no

action can be maintained against the owner of a

vessel for the fault of a compulsory pilot, and this

upon the ground that the pilot could not be consid-

ered under the circumstances as the representative

or agent of the owner. The court quotes with ap-

proval the opinion of Lord ELLEnsorovex, in Car-

ruthers v. Sydebotham, 4 M. & S., 85, as follows:

‘‘Now, to make the pilot the representative

of the master, and consequently to exempt the

underwriters from liability for his acts, it must

first be shown that there is a privity between

the pilot and the master, so that the one may be

considered as the representative or agent of the

other; but does the master appoint the pilot?

Certainly not; the regulations of the general

pilot act impose a penalty upon the master of

every ship which shall be piloted by any other

person than a pilot duly licensed within any

limits for which pilots are lawfully appointed.

* * But if the master cannot navigate

without a pilot except under a penalty, is he

not, under the compulsion of law, to take a pi-

lot, and if so, is it just that he should be answer-

able for the misconduct of a person whose ap-

pointment the provisions of the law have taken

out of his hands, placing the ship in the hands

and under the conduct of the pilot? The conse-

quence is that there is no privity between

them.’’

48

To the same effect see Crisp v. U. S., etc., Co.,

124 Fed. R., 748, and Harrison v. Hughes, 125 Fed.

R., 860.

The objection that the Illinois Act in question does

not in express terms, such as those employed in the

statute of other states heretofore considered, obli-

gate the owner to employ these mine officials and

that, therefore, there is a distinction between the

cases cited and the one at bar, is completely met

by the reasoning of Judge Jenkins in his dissenting

opinion filed in Fulton v. Wilmington Star Mining

Company, 133 Fed. Rep., 198, on appeal from a

judgment in favor of the defendant, rendered upon

an earlier trial of this case, when he says:

‘“‘The cases of Carruthers v. Sydebotham, 4

M. & S., 77, 85, Homer Ramsdell Transporia-

tion Company v. LaCompagnie Generale Trans-

Atlantique, 182 U.S8., 406, Crisp v. United States

& Australasia S. S. Company, 124 Fed., 748,

Durkin v. Kingston Coal Company, 171 Pa.

State, 193, and Williams, Admz., v. Thacker

Coal and Coke Company, West Virginia, 40 L.

R. A., 812, are distinguishable from the case

in hand in this one respect, that by the terms of

the statute laws there considered it was obliga-

tory upon the master to employ the servant for

whose act he was sought to be held liable, while

here, the obligation to employ a mine manager

or boss is not rendered obligatory by the ex-

press terms of the statute. Is not, however, the

distinction more imaginary than real? By the

act in question the Legislature was dealing

practically with a practical subject, the opera-

tion of mines, known of all men necessarily to

require the aid of men and in divers service. Is

it just to assert that the owner may himself

serve aS mine manager? The same argument

would hold with respect to hoisting engineer

——

49

and others engaged in service about the mine.

The owner could not act in either capacity un-

less licensed by the state, subject to revocation

at the discretion of the State Mining Board.

The mine owner, whether individual or corpora-

tion, desiring to use the property, could not

possibly do it without employment of servants

in the different departments specified in this

act. Practically, therefore, the act is an inhi-

bition upon the owner to operate the property

unless he employ men of the class selected for

him and licensed by the state. If the master

is to be held for the act of his servant, he should

have free choice in the selection of that servant.

Liability fur omission of duty by the servant

cannot rightfully be an incident of employment

under compulsion. The principle of law that

justly holds one liable for the act of his agent

within the scope of his employment, implies vol-

untary action upon the part of the master in

engaging his agent, and unrestrained choice in

his selection. Such unrestrained choice seems

wanting here.’’

The foregoing reasoning is likewise a complete

refutation of the position taken by the court in Hen-

rietta Coal Company v. Martin, 221 Tll., at 466, in

refusing to follow the lead of the Pennsylvania Su-

preme Court in declaring the mining law of that

state unconstitutional in the Durkin case. They say:

‘*We think the effect of the statute is to re-

quire of the owner of the mine the performance

of those duties which the statute prescribes for

the mine examiner and the mine manager. The

proprietor, if an individual, may himself act

in either capacity if he possesses the necessary

certificate, otherwise he is required to perform

such duties through the manager or through the

examiner. They stand for him and are vice-

principals, and perform those duties, which he

may not delegate to others in such manner as to

relieve himself of responsibility. For any will-

ful violation of the statute by either of them

or for any willful failure of either of them to

observe its provision, he is liable.’’

We submit that the argument thus advanced by

the court is entirely fallacious, both because the stat-

ute, in terms not open to construction, imposes the

duties upon the mine examiner and the other mine

officials exclusively, and not upon the owner, who,

therefore, has no duties of this character which can

be delegated by him, and for the further reason that

it is obviously impossible for the proprietor to act in

the various capacities and perform the various du-

ties required by the act. The latter point is the one

relating to compulsory employment in which we are

now especially interested. As Judge Jenkins says,

‘*Ts it just to assert that the owner may himself serve

as mine manager? The same argument would hold

with respect to hoisting engineers and others en-

gaged about the mine.’’ Reference to the synopsis

of the qualifications and duties required by the Iili-

nois Act of mine inspectors, examiners, managers

and hoisting engineers presented at ar earlier stage

of this argument, shows the impossibility of any

owners performing these multiplied and diversified

duties, even if he could qualify for all of the posi-

tions. How could an individual proprietor, for ex-

ample, acting as his own hoisting engineer, mine

manager and mine examiner, comply with section

17 (a), requiring the hoisting engineer at any mine

to be in constant attendance at his engines or boil-

ers at the top of the mine at all times when there

are workmen underground, and also with sections

51

16 and 18 requiring his attendance underground in

the performance of the numerous duties therein spe-

cified while the workmen are in the mine? As a

practical vocation coal mining would cease in the

State of Illinois if all of the duties imposed by the

act upon the officials mentioned had to be performed

by a single proprietor. That mining officials, such

as managers, examiners and hoisting engineers,

are indispensable to the operation of a coal mine

has been recognized in Illinois by years of legisla-

tion upon the subject, wherein these officials are re-

ferred to by their titles, and their presence in coal

mines assumed. So far as mine examiners are con-

cerned, the statute expressly provides ‘‘a mine ex-

aminer shall be required at all mines’’ (Section 18a.)

When, therefore, the statute in addition provides in

express terms that it shall be unlawful for the opera-

tor of any coal mine to employ or suffer to serve as

a mine manager, a hoisting engineer or a mine ex-

aminer, one who does not hold a certificate of com-

petency issued by the state’s duly authorized Board

of Examiners (Section 8 (e), (f) and (g) ), it, in

effect, and as fully for all legal and practical pur-

poses as the Pilotage Law and other acts referred

to, requires him either to employ such certificated

officials or to cease doing business within the state.

_ If, then, the common law exempts all other em-

ployers of labor in Illinois from liability for the de-

faults of compulsory servants, while this act fas-

tens such liability upon the owners of coal mines,

how can it be maintained that the latter are accord-

ed the equal protection of the laws? And when, by

reason of such act, the owner’s property is taken

52

under judgment of a court to pay for an injury

which such compulsory servant has inflicted in vio-

lation of a duty specifically imposed upon him, the

servant, why is not the owner deprived of property

and liberty without due process of law?

‘‘The words, ‘due process of law’,’’ says the IIli-

nois Supreme Court in Millett v. The People, 117

Ill., 301, ‘‘are held to be synorymous with the words

‘the law of the land’,’’ citing Cooley on Constitu-

tional Limitations (1st Ed.), pages 352-3. ‘‘And

this means general public law, binding upon all the

members of the community under all circumstances,

and not partial or private laws affecting the rights

of private individuals or classes of individuals,”’ cit-

ing with other cases, Van Zandt v. Waddell 2 Yer-

ger, 269.

The Illinois Court in the same case quotes with

approval the following statement from the opinion

in Wally’s Heirs v. Kennedy, 2 Yerger, 554:

‘“‘The rights of every individual must stand

or fall by the same rule of law that governs

every other member of the body politic or land

under similar circumstances and every partial

or private law which directly proposes to de-

stroy or affect individual rights, or does the

same thing by affording remedies leading to

similar consequences, is unconstitutional and

void. Were it otherwise, odious individuals or

corporate bodies would be governed by one law,

the mass of the community, and those made the

law, by another, whereas a like general law af-

fecting the whole community equally could not

have been passed.’’

‘*Everyone,’’ says Cooley’s Constitutional

Limitations, (1st Ed.), p. 391, ‘‘has a right to

demand that he be governed by general rules,

WALTRIP A ELIE LANL ERE IEE ILLITE NEL PEE N EL LILLE RLSOAL

53

and a special statute that singles his case out

is one to be regulated by a different law from

that which is applied to all similar cases would

not be legitimate legislation but an arbitrary

mandate, unrecognized in free government.’’

And again, at p. 393:

‘‘The man or class forbidden the acquisition

or enjoyment of property in the same manner

permitted to the community at large would be

deprived of liberty in particulars of primary

importance to his or their pursuit of happi-

ness.”’

‘‘On the other hand, it is also true that equal

protection guaranteed by the Constitution for-

bids the Legislature to select a person, natural

or artificial, and impose upon him, or it, bur-

dens and liabilities which are not cast upon oth-

ers similarly situated. It cannot pick out one

individual or one corporation and enact that

whenever he or it is sued, the judgment shall

be for double damages or subject to an attor-

ney’s fee in favor of the plaintiff, when no other

individual or corporation is subjected to the

same rule. Neither can it make a classification

of individuals or corporations which is purely

arbitrary and impose upon such class special

burdens and liabilities. Even where the selec-

tion is not obviously unreasonable and arbi-

trary, if the discrimination is based upon mat-

ters which have no relation to the object sought

to be accomplished, the same conclusion of un-

constitutionality is affirmed.’’

A., T. € St. Fe Ry. Co. v. Matthews, 174 U.

S., 104-5.

The fact that the Illinois Mining Act may be re-

garded as a police measure does not prevent the

application of the constitutional guaranty in ques-

tion.

Sh ea Lea

ONE

ELAR LOA ELL INN ELD SEWED EAT EINE AS NE EHTS BNP IRE RR

54

‘‘The question of constitutional law to which

we have referred,’’ says the court in Connolly

v. Union Sewer Pipe Co., 184 U.S.., 558, ‘‘ cannot

be disposed of by saying that the statute in

question may be referred to what are called the

police powers of the state, which, as often stat-

ed by this court, were not included iz the grants

of power to the general government, and there-

fore were reserved to the state when the Con-

stitution was ordained. But as the Constitu-

tion of the United States is the supreme law of

the land, anything in the Constitution or stat-

utes of the states to the contrary notwithstand-

ing, a statute of a state, even avowedly enact-

ed in the exercise of its police powers, must

yield to that law. No right granted or secured

by the Constitution of the United States van be

impaired or destroyed by a state enactment,

whatever may be the source from which the

power to pass such enactment may have been

derived. ‘The nullity of any act inconsistent

with the Constitution is produced by the decla-

ration that the Constitution is the supreme

law.’ The state has undoubtedly the power, by

appropriate legislation, to protect the public

morals, the public health and the public safety,

but if, by their necessary operation, its regula-

tions looking to either of those ends amount to

a denial to person within its jurisdiction of the

equal protection of the laws, they must be

deemed unconstitutional and void.’’

Furthermore, the constitutional provision for the

security of person and property should be liberally

construed. See the opinion of Mr. Justice Bradley

in Boyd v. U. S., 116 U.S., 616, 635, quoted with ap-

proval in Gulf Colorado & St. Fe Ry. Co. v. Ellis,

165 U. S., at p. 154.

What is the essential difference between the busi-

ness of coal mining as carried on in this state and

55

that of railroads, rolling mills, saw mills, and other

equally hazardous pursuits which justifies the impo-

sition of a civil liability in the one case which is un-

known in the others? It may he that the police power

will justify the regulation of the interior management

of a coal mine by the state in the manner set forth

in this act, by reason of the great dangers incident

to such employment, but it is not regulation of the

physical operaticu of the mine, in which, alone, the

state is interested, to decree that in case the rules

laid down for such operation are violated by the

persons specially chosen to perform them, a third

party, the owner, who is assigned no part in such

operation, and can not regulate them if he would,

shall be responsible in damages therefor.

This legislation cannot be justified upon the

ground that the discrimination against owners of

coal mines involved in the provision that they shall

be liable for the willful defaults of these compul-

sory servants promotes the object for which the stat-

ute was passed as announced in its title, viz., pro-

viding for the health and safety of persons employed

in coal mines. If the relations of owner and

mine manager or examiner were left as at common

law, then under the familiar rules governing master

and servant, the operator would have a direct con-

trol over ihe acts of the manager and examiner and

enjoy the privilege and be under the obligation of

prescribing their duties and superintending the

same, and would have such direct and immediate

interest therein that a fine or penalty or right of ac-

tion against him for injury caused by these servants

would spur him to greater diligence and care in their

—— DSREY$ OBIE ALAR ENS EO SIRE EGRET LENE SELDEN OSS

RON ae 3 pases :

56

selection and supervision and in the framing of

their rules of conduct, and to that extent it could be

claimed that the imposition of such penalty or

right of action would be promotive of the health and

safety of the miners in his employ. But under this

mining act, which invades and overturns the famil-

iar common law relations of master and servant,

the owner is powerless to protect his miners as te

those matters which are committed by the state to the

mine manager, hoisting engineer and mine examiner,

and no amount of penalties or liability for injuries

directed against him can improve his position or the

miners’ in that respect. He would be guilty of an il-

legal act if he attempted, for example, in the interest

of his employes, to regulate the air currents in his

own mine, or direct the manner in which explosives

should be handled therein, without first passing an

examination and procuring a state certificate as a

mine manager or examiner, and the statute imposes

no such obligation upon him.

Furthermore, the reasonable view to take of this

legislation is that its object will be best promoted

by imposing a civil liability upon those officials

who are made directly responsible for the safety of

the workers in the mine, for it accords with reason

to hold that a mine manager would be more diligent

in complying with the requirements of the act and

thus more surely preserve the lives and health of

the miners, if he knew that in case of his default

he would be held liable in damages therefor, than

he would while knowing that his employer would be

the one to suffer in such a case. Every argument

which justifies his criminal liability for violation of

'

ae a i a

57

the Act—and it will not be contended that the pen-

alties prescribed by Section 33 could be inflicted

upon the owner as punishment for the mine mana-

ger’s default—calls for his civil liability for the

same offense.

Finally it is to be said, that, all question of dis-

crimination aside, such an act as this mining statute

could not be upheld as against the Fourteenth

Amendment, even if all employers of labor in the

state were placed on the same basis of liability as

there laid down, for the reason that it would deprive

such employers of % privilege and immunity to which

they are entitled as citizens of the United States.

As said by Judge Cooley in the work above cited,

such an act ‘‘would not be legitimate legislation, but

an arbitrary mandate, unrecognized in free govern-

ment.’’

To again quote from the opinion in the Durkin

case, supra, ‘This is a strong case of binding the

consequences of the fault or folly of one man upon

the shoulders of another. This is worse than taxa-

tion without representation. It is civil responsibil-

ity without blame and for the fault of another.’’

As stated at an earlier place in this same opinion,

any law which arbitrarily rendered a person an-

swerable for the acts and engagements of strangers,

over whom he had no control, would violate one of

the inherent and inalienable rights which all per-

sons possess. The holding of the master for the

act of his servant is justified in law solely upon the

doctrine of respondeat superior, predicated upon

the theory of delegated duties, and this theory has

already, especially in cases of wilful «cts on the part

|

58

of the servant, been strained to its utmost limita-

tions in an effort to secure a responsible defendant,

It is incapable of further extension under the IIli-

nois Mining Act to include the mine owner, in the

face of express negation of his position as superior,

without resort to a new and revolutionary doctrine

as yet unrecognized in American jurisprudence. If

the Illinois legislature has the right contended for

in the present action, of declaring those persons

master and servant who are, upon every established

principle of law, strangers, then it has the right to

arbitrarily declare other strangers to be principal

and agent, or husband and wife, or parent and child,

irrespective of the facts in the case, and hold them

liable before the law for tke performance of the

duties attendant upon those relationships.

As construed by the Illinois Supreme Court, we

must read into Section 33 of the Act the following

provision: ‘‘For any injury to person or property

occasioned by any wilful violations of this Act, or

wilful failure to comply with any of its provisions,

a right of action against the owner or operator of

the mine shall accrue to the party injured for any

direct injuries sustained thereby.’’ This is the only

civil liability imposed and it extends to every pro-

vision of the Act which imposes a duty upon or pro-

hibits an act by the mine officials or the miners, and

these provisions make up the bulk of the Act. As

it ean not reasonably be presumed, in view of this

section, that the legislature would have enacted this

statute without any provision for civil liability, and

as the only provision upon that subject in the Act

has been shown to be unconstitutioral, it follows

ee Se RR rc eR oe a a a Ne

59

that the entire Act is invalid (see Connolly v. Union

Sewer Pipe Co., 184 U. S., at p. 565), and should

be blotted out to make way for a sane and reason-

able law upon this subject.

II.

THE COURT’S ERRONEOUS INSTRUCTION AS TO ‘* pROXI-

MATE CAUSE.”’

The Court instructed the jury that if they believed

from the evidence that Wilson, the mine manager,

directed Fulton to go into the west roadway and

that Fulton did so in obedience to such order, and

such order was the proximate cause of Fulton’s

death, without the giving of which Fulton would not

have been killed, then the plaintiff could not recover.

(Rec., 97.) This instruction was proper both be-

cause such act of the mine manager would not be a

violation of the statute, there being no prohibition

of such act therein, and for the further reason that

if such order from the mine manager was the prox-

imate cause of Fulton’s death, then none of the acts

charged in the eight counts of the declaration would

be such proximate cause, as it was requisite that

some one or more of them should be to justify a

recovery herein. (Denman case, 185 Ill., 418.) The

court, however, then proceeded to define to the jury

the meaning of ‘‘proximate cause’’ as used in the

foregoing instruction, and in so doing used the fol-

lowing language (Rec., 97-8) :

‘‘You will note there that it follows, if you

believe that this instruction, if there was one,

to Fulton, was the proximate cause of his death,

—— PE HA RRREIEE EIR TOTO MRE IE ET OEP ALT

note that in passing upon that question you

must determine whether, first, if there was gas

there at that time and whether, if there was,

that was or was not the proximate cause of his

death.

Now, by ‘proximate cause’ is meant efficient

cause. In other words, if the gas had not been

there would his death have followed?

And was gas being there necess to his

death? Or was the instruction, if there was

one, their wilfully sending him there the thing

which caused his death; which was the greater

cause? That is a question of fact for you gen-

tlemen to determine.’’

We submit that the necessary result of this in-

struction was to hopelessly confuse the jury as to

the true issue then under consideration. It may be

conceded that if the gas had not been there Fulton’s

death would not have followed, and that the pres-

ence of gas there was necessary to his death, and

still the question whether Wilson’s order was the

proximate cause of death remains unanswered. The

gas was merely the instrumentality through which

Fulton’s death was brought about, just as the water

beneath the vessel is the instrumentality that pro-

duces the death of one who drops overboard. Each

element is necessary to the death in the given case,

yet neither is the proximate cause of the death, in

the legal sense of that term, nor does the fact that

it is so necessary throw any light on the question of

proximate cause. If the man went overboard as the

result of a deliberate attempt at suicide, then his

own act was the proximate cause of his death. If

he was ordered by the captain to jump overboard

and did so because of such order, and against his

AD PRON RG (aa

—

own wishes, then the captain’s act was the proxi-

mate cause of death. In either case the water plays

the same part in the tragedy. So with the gas in

the mine. If Fulton entered the gaseous roadway

because of Wilson’s command, and would not other-

wise have done so, then such act on Wilson’s part

was the proximate cause of his death. If he entered

for some other reason than the command from Wil-

gon, then such act of Wilson’s was not the proximate

cause of death. In either event the gas was essen-

tial to the fatal result, but not in law its efficient

cause. Yet the court, in effect, told the jury that if

the presence of gas in the roadway was necessary to

Fulton’s death, then such gas and not Wilson’s or-

der, was the proximate cause of death and the de-

fendant would be liable therefor; and this statement

was repeated by the court after defendant’s counsel

had taken an exception to the original instruction.

(Ree., 101.) Furthermore, the court said to the

jury, ‘‘Was gas being there necessary to his death?

Or was the instruction, if there was one, their wil-

fully sending him there, the thing which caused his

death; which was the greater cause?’’—a compari-

son which had no proper place in a consideration of

proximate cause and which still further tended to

mislead the jury as to the true issue before them.

The testimony of the witness Schmitz (Rec., 56)

that Wilson had ordered Fulton to enter the west

roadway just before his death was the turning point

of the case before the jury. Plaintiff had introduced

this testimony to show a wilful, deliberate act on the

part of the defendant conducing to Fulton’s death.

Defendant sought to show that such act, if it oc-

62

curred, furnished an independent and proximate

cause of death not counted on in the declaration nor

covered by the statute. The defendant was entitled

to an accurate instruction upon this vital point, in.

stead of the misleading definition which made de.

fendant’s liability turn upon the question whether

the presence of gas in the mine was necessary to

Fulton’s death. We submit that this instruction

constituted reversible error.

IIT.

FULTON’S DEATH WAS DUE TO HIS ENTRY INTO THE

WEST ROADWAY OF THE MINE EITHER BY REASON OF

WILSON’S ORDER SO TO DO OR ELSE UNDER CIRCUM-

STANCES THAT AMOUNTED TO AN UNLAWFUL ACT ON

HIS PART, CONTRARY TO THE PROVISIONS OF SECTION

31 OF THE MINING ACT. IN EITHER CASE PLAINTIFF

WAS BARRED FROM A RECOVERY HEREIN.

In referring in this connection to the evidence in-

troduced upon the trial we do so not with a view to

asking this court to weigh the evidence upon any

disputed fact, but for the purpose of showing that

upon a set of facts established upon the trial which

can not and wiil not be disputed the plaintiff is abso-

lately barred from recovery herein. The questions

considered are solely questions of law, depending

for their soluticn upon the meaning of certain pro-

visions of the Mining Act.

There are three, and only three, possible explan-

ations of Fulton’s entry into the gaseous west road-

way of the mine on the morning of his death, which

m2 USL CERT LALO LLET RE ILLITE LILO EIEN BEC LOLS

63

_

the evidence discloses. Either (1) Wilson, the mine

manager, ordered him to enter and he did so in

obedience thereto, or (2) Wilson cautioned him not

to enter until the gas had cleared out and he entered

in spite of such warning, or (3) no order or caution

was given by Wilson, but Fulton entered of his own

volition, well knowing that there was gas in the

roadway which his open lamp would, in all likeli-

hood, explode. Upon theory number 1, Wilson’s act

was the proximate cause of Fulton’s death and the

defendant was not liable as the court undertook,

though in misleading terms, to tell the jury. (Rec.,

97-8.) Under theory number 2 Fulton was guilty

of the unlawful act of entering the roadway against

caution (see Sec. 31 of Statute), thereby directly

contributing to his own death and the court properly

instructed the jury to that effect. (Rec., 98.) Un-

der theory number 3 Fulton, if he knew that there

was gas in the roadway which was liable to explode

upon contact with his open light, was in the per-

formance of a ‘‘wilful act whereby the lives or

health of persons working in mines or the security

of the mine or machinery thereof’’ was endangered,

which is expressly made unlawfu! by the concluding

provision of said Section 31, as the Court should

have instructed the jury, upon request of defendant,

but which the court refused to do (Ree., 107), an

error on its part which we shall hereafter consider.

The evidence bearing upon these t’ ree possible

theories of Fulton’s action is as follows:

(1) The witness Schmitz, who was with Fuiton

at the time of the accident, testified (Rec., 55-6) that

while he and Fulton and Wilson were at the bottom

—

|

" 64

of the shaft Wilson told Fulton to go into the west

roadway. This is all the evidence in support

of such order. Schmitz further testified that Wil-

son gave no order to wait until the gas was out of

the roadway.

(2) Wilson testified (Rec., 66, 73) that he gave

no instructions to Fulton to go into the west road-

way, but on the contrary, cautioned him against go-

ing into it until the fan had cleared out the gas and

he, Wilson, had gone in and tested it with a safety

lamp. This, and Capet’s corroboratory testimony

at page 88 of the Record, was all the evidence in

support of such warning.

(3) It is of course possible that neither Schmitz

nor Wilson told the truth and that neither order

nor warning was given by the latter, in which

event, and in the absence of all other explanation,

it must be assumed that Fulton entered the road-

way upon his own volition. He and Schmitz had

with them the naked lights that caused the explo-

sion (Ree., 33, 45). It only remains to show that

Fulton knew that there was gas in the roadway and

that an explosion was likely to follow, in order to

establish his action as grossly reckless and unlaw-

ful under the statute.

Fulton was 36 vears old at the time of his death

and for more than seventeen years had been a track

layer in the mines of the defendant (Rec., 49, 62).

He had been working in the mine where he met his

death for some time before the accident—Wilson

says two or three months (Ree., 62)—and had laid

all the track that had been laid in the mine, includ-

ing that in the west roadway (Rec., 40, 62), and

65

had brushed gas out of it. (Ree., 83). There was

always gas in the west roadway from the time it

was opened until the time of the accident (Rec.,

40, 64) and the fan which had been installed in this

roadway some two months prior (Jbid.), was, as

every workman in the mine of course knew, put in

to overcome this difficulty. Fulton was with Wilson

on the previous afternoon when the latter had

stopped the fan in the mine, after the men quit

work (Rec., 60), and on the morning in ques-

tion he had helped to start the fan (Rece., 35,

65, 83) and therefore knew that the gas had been

accumulating in the west roadway over night.

Furthermore, the testimony of Callegaro and

Bromley (Rec., 76-7) shows that an explosion had

previously occurred in this very roadway, and that

Fulton knew about it; also that he had shown Brom-

ley how the gas could be set off with a miner’s

lamp.

None of the foregoing testimony is disputed or

contradicted by a syllable of evidence in the record.

It establishes beyond the possibility of doubt Ful-

ton’s acquaintance with the gaseous condition of the

west roadway and the risk he ran in entering it

with an open lamp, and such being the case, his act

was willful under the definition of that term adopt-

ed by the Illinois Supreme Court.

‘¢* Willful’ is a word of familiar use in every

branch of law and although in some branches

of law it may have a special meaning it gen-

erally, as used in courts of law implies nothing

blamable but merely that the person of whose

act or default of expression is used as a free

ayont and that what has been done arises from

66

the spontaneous action of law. It means but

nothing more than this, that he knows what he

is doing, and intends to do, what he is do-

ing, and is a free agent. (29 Am. & Eng.

Ene. of Law, 113.) An act consciously omitted

is wilfully omitted, in the meaning of the word

willful as used in these enactments of our Leg-

islature relative to the duty of miners. In

Carterville Coal Co. v. Abbott, 181 IIl., 495, we

said (p. 502): ‘Where an owner, operator or

manager so constructs or equips his mine that

he knowingly operates it without conforming

to the provisions of this act he wilfully disre-

gards its provisions and wilfully disregards

the safety of miners employed therein.’ ’’ (Odin

Coal Co. v. Denman, 185 IIl., 413.)

See also Southern Ry. Co. v. Carroll, 138 Fed.

Rep., 638, holding that where a traveler, knowing

of the existence of a roailroad crossing, approached

it at night in a carriage with drawn side curtains,

without looking or listening for the approach of a

train, which was within sight and hearing, he was

guilty of willful negligence, such as barred him

from recovery therein.

Fulton’s willful act, therefore, in entering the

west roadway with full knowledge of its condition

and the risks involved, both to himself and to oth-

ers and to the mine, constituted an unlawful act

under the concluding provision of Section 31 of the

Mining Statute, and absolutely barred him from a

recovery herein, under the familiar doctrine that

when a plaintiff’s own unlawful act concurs in

causing the damage that he complains of, he can-

not recover therefor. See, for a full exposition of

this doctrine, the authorities cited under IV of the

Brief of Argument. The Illinois rule that contrib-

Soe eae —

67

utory negligence is no defence to an action brought

under this statute, has. no application where the act

of the plaintiff is one forbidden by the statute and

expressly denounced as unlawful.

From whatever standpoint the evidence is viewed

no cause of action against the defendant company

was shown, and the court should have taken the

ease from the jury as requested at the close of all

the evidence.

IV.

THE QUESTION OF FULTON ’S UNLAWFUL ACT IN WIL-

FULLY ENTERING THE WEST ROADWAY SHOULD HAVE

BEEN SUBMITTED TO THE JURY UNDER PROPER IN-

STRUCTIONS.

The defendant requested the court to give to the

jury the following instruction (Rec., 107):

‘‘You are instructed that under the laws of

this state in force at the time of Samuel Ful-

ton’s death, it was unlawful for any miner or

other workman in a mine to do any wilful act

whereby the lives or health of persons working

in mines or the security of a mine or the ma-

chinery thereof was endangered, and such un-

lawful act was punishable by a fine not exceeding

five hundred dollars ($500), or by imprisonment

in the county jail for a period not exceeding six

months, or both, at the discretion of the court.

You are further instructed that if you believe

from the evidence that Samuel Fulton at the

time he was killed was engaged in a wilful act

which endangered the lives or health of persons

working in the mine with him, or the security of

the mine or its machinery, and that such wilful

act on his part contributed to his death, then

the plaintiff cannot recover in this action.’’

EERE LPR BESOIN I LOPLI TI STN SAG SEA REPS LI

68

The foregoing instruction is based upon Sections

31 and 33 of the statute, and the first half is substan-

tially a quotation from the language employed in

the Act. The Act says in express terms that any

wilful act, such as that described in the instruction,

shall be unlawful, and we are at a loss to understand

why the court refused to submit to the jury the

question whether or not Fulton’s conduct preceding

his death constituted such wilful act. There was

certainly sufficient evidence to go to the jury of ex-

perience and explicit knowledge on his part as to the

conditions prevailing in the west roadway, and also

a categorical denial by Wilson of Schmitz’ charge

that he had ordered Fulton into this roadway. The

court’s refusal is the more surprising in view of its

submission to the jury of the question whether Ful-

ton was cautioned by Wilson not to enter the west

roadway until the fan had cleared the gas therefrom

and Wilson had run up with a safety lamp and

tested the air, and its instruction that if such caution

was given and was disregarded by Fulton and his

death resulted therefrom, then the plaintiff could

not recover. (Rec., 97.) Certainly, if the latter in-

struction was proper under Section 31 of the Act,

the refused instruction now in question was equally

appropriate. In fact, both instructions were proper

and should have been given to the jury, for it cannot

be questioned that under the familiar doctrine al-

ready alluded to, if the unlawful act denounced by

the statute was done by Fulton and contributed to

his death, the plaintiff could not recover in this

action.

Another instruction along this same line which

PAAR YBN ELLIE ANETTA TIE IEG EM Seem gin RAiay ge

69

was asked and improperly refused by the court

(Rec., 107) was that referred to in the 37th as-

signment of error, to the effect that no recovery

could be had if Fulton’s death resulted in part from

his own reckless disregard of consequences in view

of his surroundings and knowledge of the condi-

tions in the mine as disclosed by the evidence. While

the Act does not in terms declare a reckless disre-

gard of consequences unlawful, and it could not,

therefore, perhaps, be relied upon as a defense un-

der Section 31, still such conduct would be clearly

wilful, and sufficient to bar a claim against the de-

fendant for willful violation of the statute. While

the Illinois courts have held mere contributory neg-

ligence no defense to an action under this Act, they

have never declared that willful conduct on plain-

tiff’s part would not bar recovery thereunder, and

it would seem, upon principle, that if, as is the law

even in Illinois, ordinary contributory negligence,

is a defense to ordinary negligence, then plaintiff’s

willful conduct should constitute a defense to de-

fendant’s willful conduct, where it contributes to the

injury. Whether viewed as generally reckless and

willful, or as willful within the definition of Section

31, Fulton’s conduct should bar the plaintiff’s re-

covery, but the jury were given no opportunity to

pass upon either question.

70

V.

THE JURY SHOULD HAVE BEEN INSTRUCTED THAT NO RE-

COVERY COULD BE HAD UNDER THE SECOND, THIRD,

FIFTH AND SIXTH COUNTS OF THE DECLARATION BE-

CAUSE OF THE ABSENCE OF ANY EVIDENCE TO SUSTAIN

THEM UNDER A PROPER CONSTRUCTION OF THE STAT-

UTE.

Second and Third Counts. (Rec., 5-6.)

These counts charge the defendant with wilfully

failing to provide ‘‘cross-cuts’’ and ‘‘stoppings”’ in

the mine. It conclusively appears from the evidence,

however, without any attempt at contradiction, that

the defendant’s mine in question was a ‘‘long-wall”’

mine, so-called, in which kind of mines ‘‘cross-cuts”’

and ‘‘stoppings’’ are unknown, it being only ‘‘room

and pillar’’ mines, which are constructed with paral-

lel entries, in which ‘‘cross-cuts’’ and ‘‘stoppings’’

are used. (Rec., 32, 41-3.) The statute, therefore,

had no application in this respect to the defendant’s

mine, and the court, for the purpose of simplifying

the intricate issues before the jury, and removing

from their consideration questions of fact which

were not legally before them under a proper con-

struction of the Mining Act, should have eliminated

these two counts, and also the fifth and sixth, herein-

after next dnseussed, by granting defendant’s mo-

tion to strike out these counts, made at the close of

plaintiff’s case (Rec., 61), or defendant’s request

for instructions to that effect. (Rec., 102.)

Fifth Count. (Rec., 20.)

INORG TELENON SIS SAI INAS MALL NAL LTI REE BARES TIL DNL HEA GALI SEW SALESETN

71

This count charges that the defendant permitted

Fulton to enter the mine to work therein before the

dangerous gas had been removed and the mine made

safe, said Fulton not being then and there under the

direction of said defendant’s mine manager. This

charge is based upon Section 18 (b) of the Act, pro-

viding that no one shall be allowed to enter the mine

to work therein except under the direction of the

mine manager until all conditions shall have been

made safe.

Undisputed evidence shows that Fulton was in the

mine on this Sunday morning under direction of the

mine manager, Wilson. That Wilson was present

in the mine before and at the time of the accident

is conceded. Furthermore, he testifies (Rec., 64, 65)

that on the preceding afternoon he had a conversa-

tion with Fulton in the mine, in which Fuiton asked

if it would not be well for him to get some of his

work ahead, he then being behind in his track laying,

and Wilson told him ‘‘ Yes, it would be all right.’’

Fulton accordingly came to the mine on the follow-

ing morning, where Wilson saw him at the top of

the shaft and assisted him in carrying props, switch

points, ete., down the shaft. At the bottom of the

shaft, just before the accident, Wilson had a further

conversation with Fulton, which he details as fol-

lows:

‘*The conversation I had with Fulton was in re-

gard to the directions of this roadway”’ (i. e., the

west roadway where Fulton was killed). ‘‘They got

off the bearing a little too much to the right. I di-

rected them to keep close to the right-hand side and

keep it to the proper course. The track was laid

72

past (indicating) the point marked D (indicating).

Our conversation was in regard to the course of

that road. I was telling him to put the track so as

to get it back to its regular course and after we had

talked the matter over he wanted to know if there

was not going to be some one to help him. I said,

‘Yes, I will give you Schmitz,’ ’’ ete.

This testimony is no where contradicted. On the

contrary, Schmitz’ testimony, upon which plaintiff

strongly relied, was to the effect that Fulton was

ordered into the west roadway by Wilson just prior

to his death. That Fulton was in the mine that morn-

ing under the mine manager’s direction must, there-

fore, be conceded, and such being the case the charge

to the contrary in the fifth count was fully negatived,

and the question of liability involved therein should

not, therefore, have been submitted to the jury.

(Rec., 61, 103.)

There is another error alleged in connection with

this fifth count which may be conveniently discussed

at this point.

The provisions of Section 18 (b) of the Act that

‘‘no one shall be allowed to remain in any part of

the mine through which gas is being carried into the

ventilating currents, nor to enter the mine to work

therein except under the direction of the mine man-

ager, until all conditions shali have been made

safe,’’ clearly implies that one acting under the di-

rection of the mine manager shall be allowed to re-

main in a part of the mine through which gas is be-

ing carried into the ventilating current, or to enter

the mine to work therein before all conditions shall

have been made safe. Unless thus interpreted the

BA EL TR OEY SS ;

73

proviso, ‘‘except under the direction of the mine

manager,’ is meaningless. We contend that, it ap-

pearing in this case that Fulton, in entering the mine

to work in the west roadway where gas was being

carried at the time by the fan into the ventilating

current, was acting under the immediate direction

and in the presence of the mine manager, Wilson,

no liability exists as against the defendant for his

death occurring under such circumstances and by

reason thereof. In any event, the defendant was

entitled to have the jury instructed that if they

found that Fulton, in so entering the mine, was act-

ing under the direction of the mine manager, they

should find the defendant not guilty. This request

was made of the court (Rec., 107) and refused, and

we insist that error was committed thereby.

Siath Count. (Rec., 22.)

Plaintiff ’s sixth count is based upon Section 16(b)

of the Act requiring the mine manager to keep a

careful watch over all ventilating apparatus and the

air currents in the mine, and in case of accident to

fan or machinery by which the currents are ob-

structed or stopped, to at once order the withdrawal

of the men and prohibit their return until thorough

ventilation has been re-established.

It would seem to be too clear to require argument

that the contingency referred to in the foregoing

provision is some sudden and unexpected casualty or

event occurring while the mine and its ventilating

machinery is in operation which obstructs, or alto-

gether stops the air currents which are serving the

miners at their work, thereby endangering their

74

lives and safety. The reference to the re-establish.

ment of the ventilation by its very terms implies the

existence of ventilation before the accident in ques-

tion.

In support of this count evidence was introduced

that when the men entered the mine that Sunday

morning the monkey wrench which was customarily

used upon the stem of the pump valve in place of

the wheel, which was originally attached thereto, to

turn it and let steam into the pipe which led to the

fan, was missing, and that a delay of a few mo.

ments was thereby caused while Wilson went to the

top of the shaft and procured another monkey

wrench for the purpose stated. (Rec., 54,65.)

This is the sum and substance of plaintiff’s evi-

dence in support of the charge of an accident to the

fan and machinery, and it is uncontradicted. There

is no evidence whatever that any currents in the

mine were obstructed or stopped, and there could

not be, for it is conceded that there were at the time

no currents of air in the mine, as the fan was not

then in operation and had not been since the middle

of the preceding afternoon. The incident was wholly

devoid of any danger to the men in the mine, as they

merely waited at the foot of the shaft until the fan

had been started and the ventilation begun. The

loss of the monkey wrench was, at the most, an acci-

dent which delayed the starting of the fan or ma-

chinery in the mine and of the air currents resulting

therefrom, as to which no prehibition or duty is im-

posed by the Act. Under the strict construction

which must be placed upon this mining statute, with

its numerous requirements in derogation of the com-

—

75

mon law, it cannot be held that the incident referred

to was a violation of the Act for which the defendant

should be held liable.

Upon this question of strict construction, we call

attention to the following authorities:

In Cole v. Mayne, 122 Fed. R., at 843, the court

says, in reference to the Missouri Mining Act then

under consideration, quoting from Hamilton v.

Jones, 125 Ind., 178:

‘Statutes in derogation of the common iaw

are to be construed meee and one who seeks

to maintain an action which was within the pro-

hibition of the common law must be able to

point to a statute which in plain and explicit

terms authorizes the action to be maintained. A

plaintiff who sues on a right of action given by

statute must present a case clearly within the

statute which creates the right.’’

‘‘No statute is to be construed as altering the

common law as making any innovation upen the

common law which it does not fairly express.’’

Shaw v. Railroad Co., 101 U. 8., at 565.

‘Again, this act of Congress changes the common

law. Before its enactment, servants coupling cars

used in interstate commerce without automatic coup-

lers assumed the risk and danger of that employ-

ment, and carriers were not liable for injuries which

their employes suffered in the discharge of this duty.

Since its passage the employes no longer assume this

risk and, if they are free from contributory negti-

gence, they may recover for the damages they sus-

tain in this work. A statute which thus changes

the common law must be strictly construed. The

common or the general law is not further abrogated

by such a statute than the clear import of its lan-

76

guage necessarily requires. Shaw v. Railroad Co,,

101 U. S., 557, 565; 25 L. Ed., 892; Fitzgerald y,

Quann, 109 N. Y., 441, 445; 17 N. E., 354; Brown y,

Barry, 3 Dall., 365, 367; 1 L. Ed., 638.

Johnson v. Southern Pacific Co., 117 Fed.

Rep., at 466.

We contended before the trial court that the

proper construction of the provision of the Mining

Act referred to required an instruction to the jury

that no recovery could be had under this sixth count

and that it should be stricken from the pleadings

submitted to the jury. The court, however, refused

to give such instruction or motion (Ree., 61, 103)

and further error is assigned thereon.

Upon the foregoing considerations we submit that

the Illinois Mining Act of 1899, as interpreted by

the Illinois Supreme Court, is wholly unconstitu-

tional and void and gave no right of action in this

case. Should the court, however, sustain the Act,

then we insist that material errors were committed

upon the trial of the case in the Cireuit Court in

repect to the matters argued herein which call for

its reversal.

Cuar.es 8. Hott,

Arruur D. WuHee.er,

Wim P. Siwiey,

Attorneys for Plaintiff in Error.

717

APPENDIX.

—_—

Aw Act to revise the laws in relation to coal mines

and subjects relating thereto, and providing for

the health and safety of persons employed there-

in. In force July 1, 1899. ;

Section 1. Be it enacted by the People of the

State of Illinois, represented in the General Assem-

bly:

MAPS OR PLANS OF MINES.

Maps necessary, (a) That the operator of every

coal mine in this State shall make, or cause to be

made, an accurate map or plan of such mine, drawn

to a scale not smaller than 200 feet to the inch, and

as much larger as practicable, on which shall appear

the name, the state, county and township in which

the mine is located, the designation of the mine, the

name of the company or owner, the certificate of the

mining engineer or surveyor as to the accuracy and

date of the survey, the north point and the scale to

which the drawing is made.

Surrace survey. (b) Every such map or plan

shall correctly show the surface boundary lines of

the coal rights pertaining to each mine, and all sec-

tions or quarter section lines or corners within the

same; the lines of town lots and streets, the tracks

and sidetracks of all railroads, and the location of

all wagon roads, rivers, streams, ponds, buildings,

landmarks and principal objects on the surface.

78

UNDERGROUND suRvEY. (c) For the underground

workings said maps shall show all shafts, slopes,

tunnels or other openings to the surface or to the

workings of a contiguous mine; all excavations, en-

tries, rooms and cross-cuts; the location of the fan

or furnace and the direction of the air currents; the

location of pumps, hauling engines, engine planes,

abandoned works, fire walls and standing water; and

the boundary line of any surface outcrop of the

seam.

Map For EVERY SEAM. (d) A separate and similar

map, drawn to the same scale in all cases, shall be

made of each and every seam, which, after the

passage of this act, shall be worked in any mine, and

the maps of all such seams shall show all shafts,

inclined planes, or other passageways connecting

the same.

SEPARATE MAP FOR THE SURFACE. (@€) A separate

map shall also be made of the surface whenever the

surface buildings, lines or objects are so numerous

as to obscure the details of the mine workings if

drawn upon the same sheet with them, and in such

case the surface map shall be drawn on transparent

cloth or paper, so that it can be laid upon the map of

the underground workings, and thus truly indicate

the local relation of lines and objects on the surface

to the excavations of the mine.

THe pip. (f) Each map shall also show by pro-

file drawing and measurements, in feet and decimals

thereof, the rise and dip of the seam from the bot-

tom of the shaft in either direction to the face of the

workings.

ie —

RPE ATTEN A PELE

79

CopIgs FOR INSPECTORS AND RECORDERS. (g) The

originals or true copies of all such maps shall be

kept in the office at the mine, and true copies thereof

shall also be furnished to the State Inspector of

Mines for the district in which said mine is located,

and shall be filed in the office of the recorder of the

county in which the mine is located, within thirty

days after the completion of the same. The maps

so delivered to the inspector shall be the property

of the State and shall remain in the custody of said

inspector during his term of office. and be delivered

by him to his successor in office; they shall be kept

at the office of the inspector and be open to the ex-

amination of all persons interested in the same, but

such examination shall only be made in the presence

of the inspector, and he shall not permit any copies

of the same to be made without the written consent

of the operator or the owner of the property.

AnnvaL surveys (h) An extension of the last

preceding survey of every mine in active operation

shall be made once in every twelve months prior to

July 1, of every year, and the result of said survey,

with the date thereof, shall be promptly and accu-

rately entered upon the original maps and all copies

of the same, so as to show all changes in plan or

new work in the mine, and all extensions of the old

workings to the most advanced face or boundary of

said workings, which have been made since the last

preceding survey. The said changes and extensions

shall be entered upon the copies of the maps in the

hands of the said inspector and recorder, within 30

days after the last survey is made.

ABANDONED MINES. (i) When any coal mine is

CASEMENT NER TEI SR SEL OES SRST SES

: ms rae ; e

80

worked out or is about to be abandoned or indefi-

nitely closed, the operator of the same shall make or

cause to be made a final survey of all parts of such

mine, and the results of the same shall be duly ex-

tended on all maps of the mine and copies thereof,

so as to show all excavations and the most advanced

workings of the mine, and their exact relation to the

boundary or section lines on the surface.

SpectaL survey. (j) The State Inspector of

mines may order a survey to be made of the work-

ings of any mine, and the results to be extended on

the maps of the same and the copies thereof, when-

ever, in his judgment, the safety of the workmen,

the support of the surface, the conservation of the

property or the safety of an adjoining mine requires

it.

PENALTY FOR FAILURE. (k) Whenever the oper-

ator of any mine shall neglect or refuse, or, for any

cause not satisfactory to the mine inspector, fail, for

the period of three months, to furnish to the said in-

spector and recorder the map or plan of such mine

or a copy thereof, or of the extensions thereto, as pro-

vided for in this act, the inspector is hereby author-

ized to make oz cause to be made, an accurate map

or plan of such mine at the expense of the owner

thereof, and the cost of the same may be recovered

by law from the said operator in the same manner

as other debts by suit in the name of the inspector

- and for his use, and a copy of the same shall be filed

by him with said recorder.

PDP ON OA SF FREE IIR IIE ES PIT ERT

81

THE MAIN SHAFT.

§ 2. SINKING SUBJECT TO INSPECTION. (a) Any

shaft in process of sinking, and any opening pro-

jected for the purpose of mining coal, shall be sub-

ject to the inspection of the State Inspector of Mines

for the district in which said shaft or opening is

located.

PASSAGEWAY AROUND THE BoTTOM. (b) At the bot-

tom of every shaft and at every caging place there-

in, a safe and commodious passageway must be cut

around said landing place to serve as a traveling

way by which men or animals may pass from one

side of the shaft to the other without passing under

or on the cage.

Gares AT THE TOP. (c) The upper and lower land-

ings at the top of each shaft, and the opening of

each intermediate seam from or to the shaft, shall

be kept clear and free from loose materials, and

shall be securely fenced with automatic or other

gates, so as to prevent either men or materials from

falling into the shaft.

GexeraL Equipment. (d) Every hoisting shaft

must be equipped with substantial cages fitted to

guiderails running from the top to the bottom. Said

cages must be safely constructed; they must be fur-

nished with suitable boiler-iron covers to protect

persons riding thereon frem falling objects; they

must be equipped with safety catches. Every cage

on which persons are carried must be fitted up with

iron bars or rings in proper place and sufficient num-

ber to furnish a secure hand-hold for every person

— ESTRELA LEL ILO LT EN

= see RS NERITIR ms

82

permitted to ride thereon. At the top landing, cage

supports, where necessary, must be carefully set and

adjusted so as to act automatically and securely hold

the cages when at rest.

THE ESCAPEMENT SHAFT.

§ 3. Two pLAcEs oF EGRESS. (a) For every coat

mine in this State whether worked by shaft, slope

or drift, there shall be provided and maintained, in

addition to the hoisting shaft, or other place of deliv-

ery, a separate escapement shaft or opening to the

surface, or an underground communicating passage-

way between every such mine and some other con-

tiguous mine, such as shall constitute two distinct

and available means of egress to all persons em-

ployed in such coal mine.

The time allowed for completing such escapement

shaft or making such connections with an adjacent

mine, as is required by the terms of this act, shall

be three months for shafts 200 feet or less in depth,

and six months for shafts less than 500 feet and

more than 200 feet in depth, and nine months for

all other mines, slopes or drifts or connections with

adjacent mines. The time to date in all cases from

the hoisting of coal from the main shaft.

UNLAWFUL TO EMPLOY MORE THAN TEN MEN.] (b)

It shall be unlawful to employ at any one time more

men than in the judgment of the inspector is abso-

lutely necessary, for speedily completing the connec-

tions with the escapement shaft or adjacent mine;

and said number must not exceed ten men at any

one time for any purpose in said mine until such

ecsapement .or connection is completed.

AERIS SONNE OLE ELL SREP ILE EE ILE LIEGE IONE LE ODE EE LIE IE LL RE IGE GLOBE ——

83

PASSAGEWAYS TO ESCAPEMENT.] (c) Such escape-

ment shaft or opening, or communication with a con-

tiguous mine as aforesaid, shall be constructed in

connection with every seam of coal worked in such

mine, and all passageways communicating with the

escapement shaft or place of exit, from the main

hauling ways to said place of exit, shall be main-

tained free of obstruction at least five feet high and

five feet wide. Such passageways must be so graded

and drained that it will be impossible for water to

accumulate in any depression or dip of the same, in

quantities sufficient to obstruct the free and safe

passage of men. At all points where the passage-

way to the escapement shaft, or other place of exit,

is intersected by other roadways or entries, con-

spicuous sign boards shall be placed, indicating the

direction it is necessary to take in order to reach

such place of exit.

DisTANCE FROM MAIN SHAFT.] (d) Every escape-

ment shaft shall be separated from the main shaft

by such extent of natural strata as may be agreed

upon by the inspector of the district and the owner

of the property, but the distance between the main

shaft and escapement shaft shall not be less than

300 feet without the consent of the inspector, nor

more than 300 feet without the consent of the owner.

BUILDINGS ON THE SURFACE.](e) It shall be unlaw-

ful to erect any inflammable structure or building

in the space intervening between the main shaft and

the escapement shaft on the surface, or any powder

magazine, in such location or manner as to jeopard-

ize the free and safe exit of the men from the mine,

by said escapement shaft, in case of fire in the main

shaft buildings.

are LOR ELIE NONE

84

Srarrways or caces.] (f) The escapement shaft

at every mine shall be equipped with safe and ready

means for the prompt removal of men from the

mine in time of danger, and such means shall be a

substantial stairway set at an angle not greater than

45 degrees, which shall be provided with hand rails

and with platforms or landings at each turn of the

stairway.

In any escapement shaft which may, at the time

of the passage of this act, be equipped with a cage

for hoisting men, such cage must be suspended be-

tween guides and be so constructed that falling ob-

jects cannot strike persons being hoisted upon it.

Such cage must also be operated by a steam hoisting

engine, which shall be kept available for use at ali

times, and the equipment of said hoisting appara-

tus shall include a depth indicator, a brake on the

drum, a steel or iron cable and safety catches on the

cage.

OBSTRUCTIONS IN SHAFT.] (g) No accumulation of

ice, nor obstructions of any kind shall be permitted

in any escapement shaft, nor shall any steam, or

heated or vitiated air be discharged into said shaft;

and all surface or other water which flows therein

shall be conducted by rings or otherwise to recepta-

cles for the same, so as to keep the stairway free

from falling water.

WEEKLY Inspections.] (h) All escapement shafts

and the passageways leading thereto, or to the works

of a contiguous mine, must be carefully examined

at least once a week by the mine manager, or a man

specially delegated by him for that purpose, and the

PERO ERR to a ——

oo

85

date and findings of such inspection must be duly

entered in the record book in the offices at the mine.

If obstructions are found, their location and nature

must be stated together with the date at which they

are removed.

CoMMUNICATION WITH ADJACENT MINE.] (i) When

operators of adjacent mines have, by agreement,

established underground communication between

said mines, as an escapement outlet for the men em-

ployed in both, the roadways to the boundary on™

either side shall be regularly patrolled and kept

clear of every obstruction to travel by the respective

operators, and the intervening door shall remain

unlocked and ready at all times for immediate use.

When such communication has once been estab-

lished between contiguous mines, it shall be unlaw-

ful for the operator of either mine to close the same

without the consent both of the contiguous operator

and of the State Inspector for the district: Pro-

vided, that, when either operator desires to abandon

mining operations, the expense and duty of main-

taining such communication shall devolve upon the

party continuing operations and using the same.

THE ENGINE AND BOILER HOUSE.

§ 4. Location.] (a) Any building erected after

the passage of this act, for the purpose of housing

the hoisting engine or boilers at any shaft, shall be

substantially fire-proof, and no boiler house shall be

nearer than 60 feet to the main shaft or opening or

to any building or inflammable structure connecting

therewith.

ee ANN PRO AES oe

‘ Dey rauES RINE st ‘iat as

86

BrakE ON prRuM.] (b) Every hoisting engine

shall be provided with a good and sufficient brake on

the drum, so adjusted that it may be operated by

the engineer without leaving his post at the levers,

Fiances.] (c) Flanges shall be attached to the

sides of the drum of any engine used for hoisting

men, with a clearance of not less than four inches

when the whole rope is wound on the drum.

CaBLE FASTENINGS.] (d) The ends of the hoisting

cables shall be well secured on the drum, and at least

two and a half laps of the same shall remain on the

drum when the cage is at rest at the lowest caging

place in the shaft.

Inpicator.] (e) An index dial or indicator, to

show at all times the true position of the cages in

the shaft, shall be attached to every hoisting engine

for the constant information and guidance of the

engineer.

Sienazs.] (f) The code of signals as provided

for in this act, shall be displayed in conspicuous let-

ters at some point in front of the engineer when

standing at his post.

Gauces.] (g) Every boiler shall be provided

with a steam gauge, except when two or more boilers

are equipped and connected with a steam drum,

properly connected with the boilers to indicate the

steam pressure, and another steam gauge shall be

attached to the steam pipe in the engine house, the

two to be placed in such positions that both the engi-

neer and fireman can readily see what pressure is be-

ing carried. Such steam gauges shall be kept in

good order and adjusted and be tested as often at

least as every six months.

SFL A ELL ONE BNE LOY TEMES EI ELLE PLCS EUR

87

Sarery VALVEs.] (h) Every boiler or battery of

poilers shall be provided with a safety valve of suf-

ficient area for the escape of steam, and with weights

and springs properly adjusted.

INSPECTION OF BOILERS.](i) All boilers used in gen-

erating steam in and about coal mines shall be kept

in good order, and the operator of every coal mine

where steam boilers are in use shall have said boil-

ers thoroughly examined and inspected by a compe-

tent boilermaker or other qualified person, not an

employe, of said operator, as often as once in every

six months, and oftener if the inspector shall deem

it necessary, and the result of every such inspec-

tion shall be reported on suitable blanks to said in-

spector.

THE POWDER HOUSE.

§ 5. All blasting powder and explosive material

must be stored in a fire-proof building on the sur-

face, located at a safe distance from all other build-

ings.

THE STATE MINING BOARD.

§ 6. MANNER AND PURPOSE OF APPOINTMENT.] For

the purpose of securing efficiency in mine inspection

service, and a high standard of qualification in those

who have the management and operation of coal

mines, the State Commissioners of Labor shall ap-

point a board of examiners, to be known as the State

Mining Board, whose duty it shall be to make for-

mal inquiry into and pass upon the practical and

technical qualifications and personal fitness of men

seeking appointments as State inspectors of mines,

————— Ac RS NS SNR AS IS EONS PE UNE ATA

and of those seeking certificates of competency as

mine managers, hoisting engineers and as mine ex-

aminers.

This board shall be composed of five members,

two of whom shall be practical coal miners, one an

expert mining engineer, and who shall, when prac-

ticable, be also a hoisting engineer, and two shall be

coal operators.

DATE AND TERM OF APPOINTMENT.] (b) Their ap-

pointment shall date from July 1, 1899, and they

shall serve for a term of two years, or until their

successors are appointed and qualified; they shal!

organize by the election of one of their number as

president, and some suitable person, not a member,

as secretary, after which they shall all be sworn to

a faithful performance of their duties.

SUPPLIES FURNISHED By Secretary or Stare.} (c)

The Secretary of State shall assign to the use of the

board suitably furnished rooms in the State House

for such meetings as are held at the Capitol, and

shall also furnish whatever blanks, blank books,

printing and stationery the board may require in

the discharge of its duties.

FREQUENCY OF MEETINGS.] (d) The board shall

meet at the Capitol in regular session on the second

Tuesday in September of the year 1899, and bien-

nially thereafter, for the examination of candidates

for appointment as State inspectors of mines; for

the examination of persons seeking certificates of

competency as mine managers, hoisting engineers

and mine examiners. The board shall hold meetings

at such times and places within the State as shall,

arama

89

in the judgment of the members, afford the best fa-

cilities to the greatest number of probable candi-

dates. Special meetings may also be called by the

Commissioners of Labor whenever, for any reason,

it may become necessary to appoint one or more in-

spectors. Public notice shall be given through the

press or otherwise, announcing the time and place

at which examinations are to be held.

Rutes oF procepuRE.] (e) The examinations

herein provided for shall be conducted under such

rules, conditions and regulations as the members of

the board shall deem most efficient for carrying into

effect the spirit and intent of this act. Such rules,

when formulated, shall be made a part of the per-

manent record of the board and such of them as

relate to candidates shall be published for their in-

formation and goverance prior to each examimation ;

they shall also be of uniform application to all can-

didates.

EXAMINATIONS,

§ 7. For rnspectors.] (a) Persons coming be-

fore the State Mining Board as candidates for ap-

pointment as State Inspectors of Mines must pro-

duce evidence satisfactory to the board that they

are citizens of this State, at least thirty years of

age, that they have had a practical mining experi-

ence of ten years, and that they are men of good

repute and temperate habits; they must also submit

to and satisfactorily pass an examination as to their

practical and technical knowledge of mining engin-

eering and mining machinery and appliances, of the

proper development and operation of coal mines, of

— Pn AER RA IE EN ETTORE 7 8

ventilation in mines, of the nature and properties

of mine gases, of the geology of the coal measures

in this State and of the laws of this State relating

to coal mines,

NAMES CERTIFIED TO THE GOVERNOR.] (b) At the

close of each examination for inspectors the board

shall certify to the Governor the names of all candi-

dates who have received a rating above the mini-

mum fixed by the rules of the board as properly

qualified for the duties of inspectors.

INSPECTORS APPOINTED.] (c) From those so named

the Governor shall select and appoint seven State

inspectors of mines; that is to say, one inspector for

each of the seven inspection districts provided for

in this act, or more, if, in the future, additional

inspection districts shall be created, and their com-

missions shall be for a term of two years from Octo-

ber first: Provided, that any one who has satisfac-

torily passed two of the State examinations for in-

spectors, and who has served acceptably as State

Inspector for two full terms, upon making written

application to the board setting forth the facts, shall

also be certified to the Governor as a person prop-

erly qualified for appointment. But no man shall

be eligible for appointment as a State Inspector of

Mines who has any pecuniary interest in any coal

mine, either as owner or employe.

For Ming MANAGERS.] (d) Persons coming be-

fore the board for certificates of competency as

mine managers must produce evidence satisfactory

to the board that they are citizens of this State, at

least twenty-four years of age, that they have had

at least four years of practical mining experience,

CO ——

91

and that they are men of good repute and temperate

habits; they must also submit to and satisfactorily

pass such an examination as to their experience in

mines and in the management of men, their knowl-

edge of mine machinery and appliances, the use of

surveying and other instruments, the properties of

mine gases, the principles of ventilation and the

specific duties and responsibilities of mine manag-

ers, as the board shall see fit to impose.

For HOISTING ENGINEERS.] (e) Persons seeking

certificates of competency as hoisting engineers

must produce evidence satisfactory to the board

that they are citizens of the United States, at least

twenty-one years of age, that they have at least

two years’ experience as firemen or engineer of a

hoisting plant, and are of good repute and temper-

ate habits. They must be prepared to submit to and

satisfactorily pass an examination as to their expe-

rience in handling hoisting machinery, and as to

their practical and technical knowledge of the con-

struction, cleaning and care of steam boilers, the

care and adjustment of hoisting engines, the man-

agement and efficiency of pumps, ropes and winding

apparatus, and their knowledge of the laws of this

State in relation to signals and the hoisting and

lowering of men at mines.

For MINE EXAMINERS.] (f) Persons seeking cer-

tificates of competency as mine examiners must pro-

duce evidence satisfactory to the board that they are

citizens of this State, at least twenty-one years of

age, and of good repute and temperate habits. They

must be prepared to submit to and satisfactorily

pass an examination as to their experience in mines

a eres

92

generating dangerous gases, their practical and

technical knowledge of the nature and properties of

fire-damp, the laws of ventilation, the structure and

uses of the safety lamps, and the laws of this State

relating to safeguards against fires from any source

in mines.

CERTIFICATES.

§ 8. IssuED BY THE BOARD.] (a) The certificates

provided for in this act shall be issued under the

signatures and seal of the State Mining Board, to

all those who receive a rating above the minimum

fixed by the rules of the board; such certificate shall

contain the full name, age and place of birth of the

recipient, and the length and nature of his previous

service in or about coal mines.

REGISTER TO BE PRESERVED.|] (b) The board shall

make and preserve a record of the names and ad-

dresses of all persons to whom eertificates are

issued, and at the close of each examination shall

make report of the same to the Commissioners of

Labor, who shall cause a permanent register of all

certificated persons to be made and kept for public

inspection in the office of the State Bureau of Labor

Statistics in the State capitol.

EFFecT OF CERTIFICATES.] (ce) The certificates

provided for in this act shall entitle the holders

thereof to accept and discharge the duties for which

they are thereby declared qualified, at any mine in

this State where their services may be desired.

ForeIGN CERTIFICATES.] (d) The board may ex-

ercise its discretion in issuing certificates of any

class, but not without examination, to persons pre-

93

senting, with proper credentials, certificates issued

by competent authority in other states.

UNLAWFUL TO EMPLOY OTHER THAN CERTIFICATED

MINE MANAGERS.] (e) It shall be unlawful for the

operator of any coal mine to employ, or suffer to

serve, as mine manager at his mine, any person who

does not hoid a certificate of competency issued by

a duly authorized Board of Examiners of this State:

Provided, that whenever any exigency arises by

which it is impossible for any operator to secure the

immediate services of a certified mine manager, he

may place any trustworthy and experienced man,

subject to the approval of the State inspector of the

district, in charge of his mine, to act as temporary

mine manager for a period not exceeding 30 days.

UNLAWFUL TO EMPLOY OTHER THAN CERTIFICATED

HOISTING ENGINEERS.] (f) It shall be unlawful for

the operator of any mine to employ, or suffer to

serve, as hoisting engineer for said mine, any per-

son who does not hold a certificate of competency

issued by a duly authorized Board of Examiners of

this State, or permit any other to operate his hoist-

ing engine except for the purpose of learning to

operate it, and then only in the presence of the cer-

tified engineer in charge, and when men are not be-

ing hoisted or lowered: Provided, that whenever

any exigency arises by which it is impossible for

any operator to secure the immediate services of

a certificated hoisting engineer, he may place any

trustworthy and experienced man, subject to the

approval of the State Inspector of the district, in

charge of his engines, to act as temporary engineer,

for a period of not to exceed 30 days.

UNLAWFUL TO EMPLOY OTHER THAN CERTIFICATED

MINE EXAMINERS.] (g) It shall be unlawful for the

operator of any mine to employ, or suffer to serve,

as mine examiner, any person who does not hold a

certificate of competency issued by the State Mining

Board: Provided, that any one holding a mine man-

ager’s certificate may serve as mine examiner. Any

one holding a certificate as fire boss, on presentation

of the same to the State Mining Board, may have it

exchanged for a mine examiner’s certificate.

CANCELLATION OF CERTIFICATES.] (h) The certifi-

cate of any mine manager, hoisting engineer or mine

examiner may be cancelled and revoked by the State

Mining Board whenever it shall be established to

the satisfaction of said board that the holder thereof

has become unworthy of official endorsement, by

reason of violations of the law, intemperate habits,

manifest incapacity, abuse of authority, or for other

causes satisfactory to said board: Provided, that

any person against whom charges orcomplaints are

made shall have an opportunity to be heard in his

own behalf. And he shall have 30 daz’s notice in

writing of such charges.

FEES FOR EXAMINATIONS.

§ 9. An applicant for any certificate herein pro-

vided for, before being examined, shal! register his

name with the secretary of the board, and file with

him the credentials required by this act, to-wit: an

affidavit as to all matters of fact establishing his

right to receive the examination, and a certificate of

good character and temperate habits signed by at

least ten of the citizens who know him best in the

place in which he lives.

—

Each candidate, before receiving the examination,

shall pay to the secretary of the board the sum of

one dollar as an examination fee, and those who pass

the examination for which they are entered, before

receiving their certificates, shall also pay to the sec-

retary the further sum of $2 each as a certificate

fee. All such fees shall be duly accounted for by

the board, and covered into the State treasury at

the close of each fiscal year.

PAY OF THE BOARD,

¢ 10. The members of the State Mining Board

shall receive as compensation for their services the

sum of $5 each per day, for a term not exceeding 100

days in any one year, and whatever sums are neces-

sary to reimburse them for such traveling expenses

as may be incurred in the discharge of their duties.

The salary of the secretary shall be determined

by the board, but shall in no case exceed the sum of

$1,000 per annum, and he shall be reimbursed for

any amounts expended for actual and necessary

traveling expenses in the discharge of his duties.

All such salaries and expenses of the board and of

its secretary shall be paid upon vouchers duly

sworn to by each and approved by the president of

the board and by the Governor, and the Auditor of

Public Accounts is hereby authorized to draw his

warrants on the State Treasury for the amounts

thus shown to be due, payable out of any money in

the treasury not otherwise appropriated.

96

INSPECTION DISTRICTS (OMITTED).

DUTIES OF INSPECTORS.

§ 12. Bonp.] (a) Those who receive appoint-

ment as State Inspectors of Mines must, before en-

tering upon their duties, as such, take an oath of

office, as provided for by the constitution, and enter

into a bond to the State in the sum of five thousand

($5,000) dollars, with sureties to be approved by

the Governor, conditioned upon the faithful per-

formance of their duties in every particular as re-

quired by this act; said bond, with the approval of

the Governor endorsed thereon, together with the

oath of office, shall be deposited with the Secretry

of State.

InstruMENTs.] (b) For the more efficient dis-

charge of the duties herein imposed upon them, each

inspector shall be furnished at the expense of the

State with an anemometer, a safety lamp and what-

ever other instruments may be required in order to

earry into effect the provisions of this act.

EXAMINATIONS OF MINES.] (c) State Inspectors

of Mines shall devote their whole time and attention

to the duties of their office, and make personal ex-

amination of every mine within their respective dis-

tricts, and shall see that every necessary precaution

is taken to insure the health and safety of the work-

men employed in such mines, and that the provi-

sions and requirements of all the mining laws of

this State are faithfully observed and obeyed, and

the penalties for the violation of the same promptly

enforced.

AUTHORITY TO ENTER.] (d) It shall be lawful for

State Inspectors to enter, examine and inspect any

and all coal mines and the machinery belonging

thereto, at all reasonable times, by day or by night,

but so as not to obstruct or hinder the necessary

workings of such coal mine, and the operator of

every such coal mine is hereby required to furnish

all necessary facilities for making such examination

and inspection.

PROCEDURE IN CASE OF OBJECTION.] (e) If any

operator shall refuse to permit such inspection or to

furnish the necessary facilities for making such ex-

amination and inspection, the inspector shall file his

affidavit, setting forth such refusal, with the judge

of the circuit court in said county in which said

mine is situated, either in term time or vacation, or,

in the absence of said judge, with the master in

chancery in said county in which said mine is situ-

ated, and obtain an order on such owner, agent or

operator so refusing as aforesaid, commanding him

to permit and furnish such neeessary facilities for

the inspection of such coal mine, or to be adjudged

to stand in contempt of court and punished accord-

ingly.

Notices To BE PosTED.] (f) The State Inspector

of Mines shall post up in some conspicuous place at

the top of each mine visited and inspected by him, a

plain statement of the condition of said mine, show-

ing what in his judgment is necessary for the better

protection of the lives and health of persons em-

ployed in said mine; such statement shall give the

date of inspection and be signed by the inspector.

He shall also post a notice at the landing used by

— .

aaa oe es PoRRRE aay Pe oA itil sea teatiae per a —

98

the men, stating what number of men will be per.

mitted to ride on the cage at one time, and at what

rate of speed men may be hoisted and lowered on

the cages. He must observe especially that a proper

code of signals between the engineer and top man

and bottom man is established and conspicuously

posted for the information of all employes.

SEALER OF WEIGHTS.] (g) State Inspectors ot

Mines are hereby made ex Officio sealer of weights

and measures in their respective districts, and as

such are empowered to test all scales used to weigh

coal at coal mines. Upon the written request of

any mine owner or operator, or of ten coal miners

employed at any one mine, it shall be his duty to

try and prove any scale or scales at such mine

against which complaint is directed, and if he shall

find that they or any of them do not weigh correctly,

he shall call the attention of the mine owner or op-

erator to the fact, and direct that said scale

or scales be at once overhauled and readjusted so

as to indicate only true and exact weights, and he

shall forbid the further operation of such mine until

such scales are adjusted. In the event that such

tests shall conflict with any test made by any county

sealer of weights, or under and by virtue of any

municipal ordinance or regulation, then the test by

such mine inspector shall prevail.

Test weicuts.] (h) For the purpose of carry-

ing out the provisions of this act each inspector shall

be furnished by the State with a complete set of

standard weights suitable for testing the accuracy

of track seales, and of all smaller scales at mines;

said test weights to be paid for on bills of particu-

lars, certified by the Secretary of State and ap-

proved by the Governor. Such test weights shall

remain in the custody of the inspector for use at

any point within his district, and for any amounts

expended by him for the storage, transportation or

handling of the same, he shall be fully reimbursed

upon making entry of the proper items in his quar-

‘terly expense voucher.

INSPECTORS’ ANNUAL REPORTS.] (i) Each State

Inspector of Mines shall, at the close of the official

year, to-wit: After June 30, of every year, prepare

and forward to the secretary of the Bureau of Labor

Statistics a formal report of his acts during the

year in the discharge of his duties, with any recom-

mendations as to legislation he may deem necessary

on the subject of mining, and shall collect and tab-

ulate upon blanks furnished by said secretary all

desired statistics of mines and miners within his

district to accompany said annual report,

REPORTS TO BE PUBLISHED.] (j) On the receipt of

said inspectors’ reports the secretary of the Bureau

of Labor Statistics shall proceed to compile and

summarize the same as a report of said bureau, to

be known as the Annual Coal Report, which shall

be duly transmitted to the Governor for the infor-

mation of the General Assembly and the public. The

printing and binding of said reports shall be pro-

vided for by the Commissioners of State Contracts

in like manner and in like number as they provide

for the publication of other official reports to the

Governor.

The Secretary of State shall furnish to said in-

spectors, upon the requisition of the secretary of

bcaitien tiie een vo a

the State Bureau of Labor Statistics, whatever in-

struments, blanks, blank books, stationery, print-

ing and supplies may be required by said inspectors

in the discharge of their official duties; said instru-

ments to be paid for on bills of particulars, certified

by the Secretary of State and approved by the Gov-

ernor.

It shall be the duty of every coal operator and

every employer of labor in this State to afford the

State Commissioners of Labor, or their representa-

lives, every facility for procuring statistics of the

wages and conditions of their employes for the pur-

pose of compiling and publishing statistics of labor

and of social and industrial conditions within the

State as required by law. Any person who shall

hinder or obstruct the investigation of the agents

of the commissioners, or shall neglect or refuse, for

a period of ten days, to furnish the information

called for by the schedules of the commissioners as

provided above, shall he adjudged guilty of a mis-

demeanor and be subjected to a fine of $100.

$ 13. Each State Inspector of Mines shall re-

ceive as compensation for his services the sum of

$1,800 per annum, and for his traveling expenses

the sum actually expended for that purpose, in the

discharge of his official duties, both to be paid quar-

terly by the State Treasurer, on warrants of the

Auditor of Public Accounts, from the funds in the

treasury not otherwise appropriated; said expense

vouchers shall show the items of expenditures in

detail, with sub-vouchers for the same so far as it

is practicable to:obtain them. Said voucher shall

be sworn to by the inspector and be approved by

101

the secretary of the Bureau of Labor Statistics and

the Governor.

REMOVAL OF INSPECTORS.

§ 14. Upon a petition signed by not less than

three coal operators, or ten coal miners, setting

forth that any State Inspector of Mines neglects

his duties, or that he is incompetent, or that he is

guilty of malfeasance in office, or guilty of any act

tending to the injury of miners or operators of

mines, it will be lawful for the Commissioners of

Labor of this State to issue a citation to the said

inspector to appear, at not less than fifteen days’

notice on a day fixed before them, when the said

commissioners shall proceed to inquire into and in-

vestigate the

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