Hewitt v. State

• Citation: 171 Ind. 283,86 N.E. 63
• Parties: HEWITT v. STATE. No. 21,238.
• Decision Date: 24 November 1908
• Court: Supreme Court of Indiana

171 Ind. 283

86 N.E. 63

HEWITT

v.STATE. No. 21,238.

Supreme Court of Indiana.

Nov. 24, 1908.

Appeal from Circuit Court, Vigo County; John E. Piety, Judge.

John Hewitt was convicted of violating the act regulating coal mines, and he appeals. Reversed, with directions.McNutt, McNutt & Wallace and Barrett & Barrett, for appellant. James Bingham, Atty. Gen. (Oscar E. Bland, Henry W. Moore, Alexander G. Cavins, Edward M. White, and William H. Thompson, of counsel), for the State.

MONTGOMERY, J.

Appellant was convicted of violating section 1 of the act of 1907 in relation to employés in coal mines (Acts 1907, p. 193, c. 121). Section 1 of said act reads as follows:

“Coal Mining-Wash Houses for Laborers.

“Section 1. Be it enacted by the General Assembly of the state of Indiana, that for the protection of the health of the employés hereinafter mentioned it shall be the duty of the owner, operator, lessee, superintendent of, or other person in charge of every coal mine or colliery, or other place where laborers employed are surrounded by or affected by similar conditions as employés in coal mines, at the request in writing of twenty (20) or more employés of such mines or place, or in event there are less than twenty (20) men then employed then upon the written request of one-third (1/3) of the number of employés employed, to provide a suitable wash room or wash house for the use of persons employed so that they may change their clothing before beginning work, and wash themselves, and change their clothing after working. That said building or room shall be a separate building or room from the engine or boiler room, and shall be maintained in good order, be properly lighted and heated, and be supplied with clean and warm water, and shall be provided with all necessary facilities for persons to wash, and also provided with suitable lockers for the safe keeping of clothing: Provided, however, that the owner, operator, lessee, superintendent of or other person in charge of such mine or place aforesaid shall not be required to furnish soap or towels.”

Section 2 prescribed penalties for neglect or failure to comply with the provisions of the act, and for other offenses.

The body of the affidavit upon which appellant was tried and convicted reads as follows: “Harry Moore swears that John Hewitt, late of said county, on or about the 7th day of May, A. D. 1907, at said county and state aforesaid, he, the said John Hewitt, being then and there and from said day continuously up to the time of filing this affidavit, and being now superintendent of Lost Creek mine, a coal mine where persons were then and there, and have been continuously since said date, and are now, employed, situate in said county and state aforesaid, and he, the said John Hewitt, as said superintendent being then and there requested in writing by more than twenty of the employés of said Lost Creek coal mine to provide suitable washroom or washhouse for the use of persons there employed at said Lost Creek mine, in compliance with the laws of the state of Indiana, did then and there and has ever since, and does now unlawfully, neglect, fail and refuse to provide such suitable washroom or washhouse for the use of persons there employed at said Lost Creek coal mine, and did then and there and has ever since and does now unlawfully neglect, fail and refuse to provide such suitable washroom or washhouse. Contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Indiana. Harry Moore.”

The sufficiency of this affidavit was challenged by motions to quash and in arrest of judgment in the trial court, and the overruling of these motions has been assigned as error upon appeal.

The decision of the learned trial judge appears to have been based upon the validity of the act, rather than the form and substance of the charge. Counsel have ably discussed the constitutional question involved, but it is a familiar principle that courts will not pass upon constitutional questions unless...