Hewitt v. The State

• Citation: 86 N.E. 63,171 Ind. 283
• Decision Date: 24 November 1908
• Docket Number: 21,238
• Parties: Hewitt v. The State of Indiana
• Court: Supreme Court of Indiana

86 N.E. 63

171 Ind. 283

Hewitt v. The State of Indiana

No. 21,238

Supreme Court of Indiana

November 24, 1908

From Vigo Circuit Court; James E. Piety, Judge.

Prosecution by The State of Indiana against John Hewitt. From a judgment of conviction, defendant appeals.

Reversed.

McNutt McNutt & Wallace and Barrett & Barrett, for appellant.

James Bingham, Attorney-General, Oscar E. Bland, Henry W. Moore, A G. Cavins, E. M. White and W. H. Thompson, for the State.

OPINION

Montgomery, J.

Appellant was convicted of violating section one of the act of 1907, in relation to employes in coal mines (Acts 1907, p. 193, § 8623 Burns 1908), which section reads as follows: "That for the protection of the health of the employes 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 employes in coal mines, at the request in writing of twenty or more employes of such mine or place, or in event there are less than twenty men employed, then upon the written request of one-third of the number of employes 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 cold 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 as aforesaid shall not be required to furnish soap or towels."

Section two (§ 8624 Burns 1908) 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, 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, said John Hewitt, as said superintendent, being then and there requested in writing by more than twenty of the employes of said Lost Creek coal mine to provide suitable wash-room or wash-house 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 wash-room or wash-house 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 wash-room or wash-house, 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 necessarily required to do so in disposing of the particular case. This affidavit is so defective upon its face as to necessitate a reversal of the cause, without a consideration of the validity of the statute upon which it is based.

The statute imposes upon the owner, operator, lessee superintendent, or other person in charge of any mine or colliery, upon request of a certain number of employes, the duty of providing a...