Algoma Coal & Coke Co. v. Alexander

• Decision Date: 30 July 1951
• Docket Number: No. 10258,10258
• Citation: 136 W.Va. 521,66 S.E.2d 201
• Court: West Virginia Supreme Court
• Parties: ALGOMA COAL & COKE CO. et al. v. ALEXANDER.

Page 201

66 S.E.2d 201

136 W.Va. 521

ALGOMA COAL & COKE CO. et al. v. ALEXANDER.

No. 10258.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 12, 1950.

Decided Dec. 5, 1950.

Rehearing Denied Feb. 12, 1951.

Dissenting Opinion July 30, 1951.

Syllabus by the Court.

Code, 22-2, as amended, in the circumstances therein set out, requires that an operator of a coal mine employ a qualified person to serve as fire boss of the mine and a different person to serve as mine foreman therein and forbids a mine foreman, assistant mine foreman or section foreman to serve also as fire boss on the same day or shift in the same mine or section.

William C. Marland, Atty. Gen., Londo H. Brown, Asst. Atty. Gen., for appellant.

Hillis Townsend, M. E. Boiarsky, Charleston, for C. E. Jones, amicus curiae.

Charles E. Mahan, Fayetteville, Rolla D. Campbell, Huntington, R. S. Spilman, Jr., R. G. Kelly, Frank R. Lyon, Jr., all of Charleston, for appellees.

GIVEN, Judge.

This proceeding was instituted under the Uniform Declaratory Judgments Act, now Code, 55-13-1, in the Circuit Court of Kanawha County, by the Algoma Coal and Coke Company and fifty-seven other coal mine operators, against Arch J. Alexander, individually, and as Chief of the Department of Mines of West Virginia. The object of the proceeding is to obtain a declaratory judgment as to whether the provisions of Article 2 of Chapter 22 of the Code, as amended, prevent a mine foreman, assistant mine foreman or section foreman from acting as a fire boss during the same shift or day in the same mine or section. The appellant, Arch J. Alexander, individually and as Chief of the Department of Mines of West Virginia, demurred to the petition, the ground of the demurrer being that 'The statutes in the premises, and particularly Article 2, Chapter 22 of the Code of West Virginia, prohibit one who holds a fire boss certificate and who acts as a section foreman from acting in the capacity of fire boss during the same shift or day in the same mine or section.' The circuit court, on December 9, 1949, overruled the demurrer, held that 'Article 2 of Chapter 22 of the Code of West Virginia of 1931 as amended, does not forbid one who holds a fire boss certificate and who acts as a section foreman from fire bossing during the same shift or day in the same mine or section', and that 'The plaintiffs have a lawful right to employ persons who are duly and lawfully wualified as fire bosses and to have such persons perform duties as section foreman and perform duties as fire bosses during the same day or shift in the same mine or section * * *', and dismissed the petition. To review the action of the circuit court this Court, on February 6, 1950, granted this appeal.

The appellees allege in the petition for a declaratory judgment that they are corporations authorized to do business in West Virginia; that they are negaged in the business of producing bituminous coal; that the mines operated by them are subject to the Department of Mines of West Virginia and are required to be fire bossed; that each of the plaintiffs employs a mine foreman and a number of assistant mine foremen, sometimes called section foremen, and a fire boss; that each of such employees holds a 'certificate of competency for the position of mine foreman and for the position of fire boss issued to him by said Department of Mines'; that the section foremen act in supervisory capacities in directing production work and 'also perform duties of fire bosses in their respective sections'; that such employees perform all the duties required by Article 2 of Chapter 22 of the Code, as amended; that some of said employees perform duties as foremen and as fire bosses in the same mine and section during the same day or shift; that such method of fire bossing such mines is in conformity with the custom and practice existing for more than twenty years and that 'section foremen have been found to be better qualified and equipped than any other persons to fire boss mines'; that on January 17, 1949, the Chief of the Department of Mines issued a directive to all administrative assistants of the department to the effect that thereafter 'No mine foreman, section foreman, or assistant foreman, acting as such, can legally fire boss a mine', and that such directive and the orders issued thereunder 'are unlawful and without warrant of authority by statute or otherwise * * *'. Other allegations of fact will be referred to later in this opinion.

The defendant would justify the issuance of the directive by an interpretation of the statutes relating to the employment by the operator of a fire boss and mine foreman and upon an opinion of the Attorney General of the State of West Virginia. Various sections of Article 2, Chapter 22 of the Code, as amended, relate to the employment of a fire boss by the operator and the duties of such fire boss. Sections 42 and 43 read:

'It shall be the duty of every mine owner or operator in this State, whose mines are known to liberate fire damp or other dangerous gas or gases, to employ a fire boss, or bosses, if necessary, who shall be a citizen and resident of this State, and who shall hold a certificate of competency for such position issued to him by the department of mines, after taking an examination held by the department of mines under its rules and regulations. He shall have such knowledge of fire damp and other dangerous gases as to be able to detect the same with the use of safety lamps, and shall have a practical knowledge of the subject of the ventilation of mines and the machinery and appliances used for that purpose, and shall be a person with at least three years' experience in mines liberating explosive gases.

'It shall be the duty of the fire boss or bosses, where employed in such gaseous mines, to prepare a danger signal with red color at the mine entrance, and no person except the mine owner, operator or agent, and only then in case of necessity, shall pass beyond this danger signal until the mine has been examined by the fire boss and the same or certain parts thereof reported by him to be safe. It shall further be the duty of the fire boss or bosses to go into all the working places of such mine or mines, where gas is known to exist, or liable to exist, and carefully examine the same with a safety lamp, and do, or cause to be done, whatever may be necessary to remove from such working place or places all dangerous or noxious gases, and make the same safe for persons to enter therein as workmen. Such examination and removal of the gases shall begin within three hours before the time each shift commences work, and it shall be the duty of the fire boss at each examination to leave evidence of his presence at the face of every place examined, by plainly marking on a board at the face for that purpose the date of examination. If the mine is safe, he shall remove the danger signal at the mine entrance, or change the color thereof to safety, in order that the employees may enter such mine and begin work.'

Section 44 requires that 'The fire boss shall, upon having completed the examination of the mine before each shift, make a written record of the condition of the mine within a book', provided for that purpose, and that the book shall at all times be kept at the mine subject to inspection by the district mine inspector or Chief of the Department of Mines. Section 45 provides that 'In the performance of the duties devolving upon the fire bosses they shall have no superior officers, but all the employees working inside of such mine or mines shall be subordinate to them in their particular work.' Section 46 makes it a misdemeanor for 'any person to enter' a mine at the beginning of any shift until the signal required by Section 43 'has been given by the fire boss', except 'under the direction of the fire boss', and then only for the purpose of 'making the mine safe'. Section 54 requires that 'All places in live sections that are temporarily abandoned shall be examined as live workings by the fire boss on regular inspections'. Section 16 requires that all mine foremen and fire bosses 'employed in gaseous mines shall, at all times, carry an appoved flame safety lamp for the purpose of detecting the presence of explosive gas, such lamp to be kept lighted at all times when in use inside the mines.' Other sections relating to fire bosses are, we believe, not material to the decision herein.

Various sections of Article 2 relate to the appointment by the operator of mine foremen and their duties. Sections 47 and 48 read:

'In every coal mine where five or more persons are employed in a period of twenty-four hours, the operator or agent shall employ a competent and practical inside overseer, to be called mine foreman, who shall be a citizen and resident of this State, having had at least five years' experience in the working, ventilation and drainage of coal mines, and who shall hold a certificate of competency for such position, issued to him by the department of mines, after taking an examination held by the department of mines under its rules and regulations. In mines in which the operations are so extensive that all the duties devolving upon the mine foreman cannot be discharged by one man, competent persons having had at least three years' experience in coal mines may be designated and appointed as assistants, who shall act under the mine foreman's instructions, and shall be responsible for their conduct in the discharge of their duties under such designation or employment.'

'The duties of the mine foreman shall be to keep a careful watch over the ventilating apparatus, the airways, traveling ways, pumps and drainage. He shall see that as the miners advance their excavations proper break throughs are made as required by law to properly ventilate the mine; that all loose coal, slate and rock overhead in the working places and along the haulways are removed or carefully secured so as to...