Mcalester-Edwards Coal Co. v. State ex rel. Marshall

• Decision Date: 12 March 1912
• Docket Number: Case Number: 1515
• Citation: 31 Okla. 629,122 P. 194,1912 OK 199
• Parties: McALESTER-EDWARDS COAL CO. et al. v. STATE ex rel. MARSHALL et al.
• Court: Oklahoma Supreme Court

1912 OK 199

122 P. 194

31 Okla. 629

McALESTER-EDWARDS COAL CO. et al. v. STATE ex rel. MARSHALL et al.

Case Number: 1515

Supreme Court of Oklahoma

Decided: March 12, 1912

Syllabus

¶0 MANDAMUS--When Lies. The proper function of a writ of mandamus is to compel the doing of a specific thing, something which can be neither diminished nor subdivided, and it is not an appropriate remedy to compel a general course of official conduct or a long series of continuous acts, as it is impossible for the court to oversee the performance of such duties.

Error from District Court, Pittsburg County; Preslie B. Cole, Judge.

Application by the State, on the relation of Sam J. Marshall and others, for writ of mandamus against the McAlester-Edwards Coal Company and others. Judgment for relators, and defendants bring error. Reversed and remanded, with instructions to dismiss.

Stuart, Gordon & Liedtke, for plaintiffs in error.

Lester & Hammond, for defendants in error.

DUNN, J.

¶1 This case presents error from the district court of Pittsburg county. September 13, 1909, defendants in error, as plaintiffs, filed their petition, in which it is alleged that the defendant the McAlester-Edwards Coal Company is a corporation, and that Jones Keener and Arthur Craig are mine foremen thereof; that the said coal company is engaged in the business of mining coal, and has employed the plaintiffs as coal miners; that, in order to perform their duties in safety, it is necessary to have sufficient props, caps, and timbers of suitable size and length at the face of their respective working places, with which to timber the mine and make it safe; that under the law it is made the duty of the said coal company to employ a competent, practical mine foreman to see that plaintiffs have props, caps, and timbers of suitable size and of proper length sent into the mine and delivered to the working face; that they have requested the said coal company and Keener and Craig to perform this duty, which they have failed to do. The prayer is as follows:

"Wherefore relators pray that the court grant an alternative writ of mandamus requiring the said McAlester-Edwards Coal Company and Jones Keener and Arthur Craig to furnish to your relators, and all other miners Working in their said mine at Edwards, Okla., at all times, such timbers, props, and cap pieces as are necessary to keep their working places in a safe condition, and that they be required to deliver them at the face of their working places, in said mine," etc.

¶2 On this petition, an alternative writ of mandamus was issued, to which the defendants filed answer setting up, among a number of other defenses, that the matters and things set out in the petition were not sufficient to justify or authorize the issuance of the writ of mandamus against them. After trial had, the court issued its peremptory writ, and the case, after motion for new trial was filed and denied, has been brought, on appeal, to this court for review.

¶3 Conceding that all claims made by plaintiffs are found in their favor, and all the other defenses presented by the defendants are adjudged against them, the determination of the issue presented by that portion of the answer of the defendants above noted, in our judgment, is conclusive of the entire proceeding.

¶4 Is the writ of mandamus available to plaintiffs to compel the defendants to furnish them, at all times, such timbers, props, and caps as are necessary to keep their working places in safe condition, and to require them to deliver the same at the face of their working places?

¶5 The statute relied upon by plaintiffs, and which, for the purpose of this hearing, is assumed to be valid, is found in the Sess. Laws 1909, at pages 383, 384, and is section 2 of article 1 of chapter 23, and reads as follows:

"The mine foreman shall see that all miners in said mine are supplied at all times with such timbers, props and cap pieces as are necessary to keep his working place in a safe condition. Such timber to be sawed square as near as possible in proper length to fit the working place. All such timbers, props and cap pieces shall be delivered at the face of the miners' working place in said mine by company men. Timbers in this section shall mean all wood to be used by said miner, and if from any cause, the timbers cannot be supplied where required, the said mine foreman shall instruct the persons to vacate all said working places until supplied with the timber needed, and shall see that all water be drained or hauled out of all working places before the miner enters, and as far as practicable, kept dry while the miner is at work. The term 'company men' as used in this act shall mean those employed regularly as day hands and paid by shift wages."

¶6 The penalty for a violation of any of these duties is made a misdemeanor. Under the foregoing statute, it will be noted that the timbers, props, and cap pieces which are to be furnished are such as are necessary to keep the miners' working place in a safe condition. And that the same are to be...