# Plaintiffs Brief — Wilmington Star Mining Co. v. Fulton

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_0188%3A02

## Record

- **Collection:** Supreme Court brief
- **Document type:** Plaintiffs Brief
- **Published:** January 1, 1907
- **Citation:** 205 U.S. 60

## Text

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.

oe > - ms ey ae ~ ag
Lira Ss Be Pe a a ots Sst? ac
Pett hse Pack 5 ete eh nS te a ae
Vang n ear Seen: Ney ens TE Set Pe

WILMINGTON STAR MINING COMPANY,
Plaintiff in Error,

aa 4 oy fps
ELE ES
BLA pee ese

US.

MINNIE FULTON,
Defendant in Error.

INERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR
THE NORTHERN DISTRICT OF ILLINOIS.

Sieteaind Aen Re Bi PEt ie

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

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_0188%3A02. Public record. Not legal advice.