Merlo v. Johnston City & Big Muddy Coal & Mining Co.

• Citation: 101 N.E. 525,258 Ill. 328
• Court: Supreme Court of Illinois
• Decision Date: 19 April 1913
• Parties: MERLO v. JOHNSTON CITY & BIG MUDDY COAL & MINING CO.

258 Ill. 328

101 N.E. 525

MERLO

v.JOHNSTON CITY & BIG MUDDY COAL & MINING CO.

Supreme Court of Illinois.

April 19, 1913.

Error to Appellate Court, Fourth District, on Appeal from Circuit Court, Williamson County; W. W. Duncan, Judge.

Action by Francisca Merlo against the Johnston City & Big Muddy Coal & Mining Company. Judgment for plaintiff was affirmed by the Appellate Court, and defendant brings error. Affirmed.Dennison & Spiller, of Marion (Mastin & Sherlock, of Chicago, of counsel), for plaintiff in error.

Hartwell & White, of Marion, for defendant in error.

VICKERS, J.

Francisca Merlo brought an action on the case against the Johnston City & Big Muddy Coal & Mining Company to recover damages resulting from the death of Frank Merlo, her husband, basing her right to recover on an alleged violation of sections 18 and 19 of the mining law of 1899 (Laws 1899, pp. 317, 318). A judgment for $1,500 was recovered against the coal company, which has been affirmed by the Appellate Court for the Fourth district. The record has been brought to this court by a certiorari.

The declaration contains five counts, all of which are based on alleged violations of the statute. In the several counts of the declaration it is charged that the entries, rooms, and working places where the deceased was employed were in a dangerous condition, caused by an accumulationof deleterious air, standing powder smoke, and gas, which were liable to and did explode, causing the death of plaintiff's intestate. It is alleged that this dangerous condition was caused by a willful failure on the part of the coal company to force currents of air into the working place of the deceased, and willfully permitting him to enter the mine to work, not under the direction of the mine manager, before all conditions had been made safe. In the fifth count it is charged that the company willfully failed to build stoppings in the crosscuts connecting the inlet and outlet air courses in a substantial manner, with suitable material, but that such stoppings were constructed of lumber which had become old and rotten, thereby interrupting the passage of air to the working place of the deceased, causing an accumulation of deleterious air, a consequent explosion, and the death of plaintiff's intestate, and that the statute was thus violated by a willful failure to construct proper and suitable stoppings in the crosscuts.

The deceased was killed in an explosion in the mine of plaintiff in error November 29, 1909. This suit was commenced April 22, 1910. The cause was tried and final judgment rendered in the trial court June 22, 1911, from which an appeal was prosecutted to the Appellate Court. In 1911 the Legislature passed an act revising the laws relating to coal mines, which went into effect on July 1st of that year, which purports to repeal the act on the same subject of April 18, 1899, which was the statute upon which this suit is based. Laws 1911, p. 385. The act of 1911 contained no saving cause as to pending proceedings. Plaintiff in error contends that the law upon which the suit is predicated having been repealed without a saving clause as to pending suits, the right of action is extinguished. Plaintiff in error also insists on a reversal for other reasons. Without going into an examination of the other errors relied upon, we are satisfied with the determination of all those questions by the Appellate Court. The question raised in regard to the effect of the act of 1911, upon the right of defendant in error to prosecute her suit to final judgment, is of importance not only to the parties to this record, but to all other litigants who are intrested in claims growing out of alleged violations of the old law, which were not finally determined before July 1, 1911.

A careful examination of the 31 sections of the mining act of 1911 indicates that it was intended by the Legislature as a general revision of the law applicable to coal mines and subjects relating thereto, and such intention is manifest from the title of the act. There can be no question that this act was designed as a substitute for the act of 1899. A comparison of the two acts by sections will show the different points of agreement and conflict between them. Substantially all of the subjects covered by the old act will be found in the new, but in the later act, the whole subject has been recast and rewritten, with no attempt to follow the arrangement of the matter in the old act. While differing in the details, both acts relate to the same general subject and are intended to accomplish the same general purpose. They were both passed in discharge of the constitutional duty of the General Assembly to pass such laws as may be necessary for the protection of operative miners and the safety of coal mines. Both acts are subject to the same general rules of construction. It is not necessary to the decision of the question involved in the case at bar to attempt to point out all of the differences between the new and the old acts. It will be sufficient for our present purpose to point out such differences as appear to have a bearing upon the question here involved, which we shall do hereinafter. The ultimate legal question to be determined upon this record is whether the act of 1911 so far repealed the former statute as to deprive defendant in error of all rights under the prior law. The effect of repealing statutes upon pre-existing causes of action has been frequently considered by the courts of this and other jurisdictions and certain rules applicable thereto have become well established.

[1] It is a well-settled rule of the common law that, if a statute giving a special remedy is unconditionally repealed without a saving clause in favor of pending suits, all actions must stop where the repeal finds them, and, if final relief has not been granted before the repeal went into effect, it cannot be afterwards. South Carolina v. Gaillard, 101 U. S. 433, 25 L. Ed. 937.

[2] Where a case is appealed, and, pending the appeal, the Legislature changes the law upon which the action is based, the Appellate Court must dispose of the case under the law in force when its decision is rendered. Cooley's Const. Lim. (2d Ed.) 381. There are different methods by which the repeal of a prior statute may be effected. It may be repealed by an express declaration of the Legislature declaring that the act is repealed.

[3] Where the Legislature passes a repealing act and nothing is substituted for the act repealed, the effect is to entirely obliterate such statute as completely as if it had never been passed. Statutes may be repealed in whole or in part by amendment. If the Legislature enacts an amendatory statute providing that a certain act or a certain section of an act shall be amended so as to read as the same is repeated in the amendatory act, all such portions of the old act or section as are not repeated in the new act are repealed without any express words for that purpose (Moore v. Mausert, 49 N. Y. 332;Breitung v. Lindauer, 37 Mich. 217); but such portions of the old law as are retained, either literally or substantially, are regarded as a continuation of the old law and not as a new enactment. Hurd's Stat. 1911, c. 131, § 2; Cushman v. Bonfield, 139 Ill. 219, 28 N. E. 937; Lewis' Sutherland on Stat. Const. § 237, and cases there cited.

[4] Statutes may also be repealed by a general revision. Where the law on a particular subject is revised and rewritten, only the provisions of the old law which are omitted from the revised act are repealed and all provisions of the old law retained in the new act are regardedas having been continuously in force. Mette v. Feltgen, 148 Ill. 357, 36 N. E. 81. The rule in respect to repeals by revision is the same as repeals by amendment. There is no hiatus between the death of the old and the coming in of the new law. Both events happen at the same instant and the power that destroys the old gives life and vitality to the new.

[5] Finally, repeals may be by implication. This happens when a later act is found so repugnant to a former one that both cannot stand together. The inconsistency being established, the later act in date or position has full force and displaces whatever in the precedent law is repugnant to it. Fowler v. Pirkins, 77 Ill. 271;Pavey v. Utter, 132 Ill. 489, 24 N. E. 77.

[6] Whether a given act of the Legislature repeals a former one, and, if so, to what extent, is a judicial question, and a legislative declaration that an act is or is not repealed is only a declaration of the Legislature upon a judicial question, which is not binding on the courts. United States v. Claflin, 97 U. S. 546, 24 L. Ed. 1082.

Each of the above methods of repeal is governed by rules peculiarly applicable thereto, and it is therefore necessary to keep in mind these distinctions in order to correctly understand and apply the authorities to a particular situation. We have already pointed out that the act of 1911 was a general revision of the prior law, from which it follows that, in determining whether the later act repeals the former, reference must be had to the rules applicable to repeals by revision. If, upon an examination, it is found that the particular provisions of the old statute upon which defendant in error predicates her cause of action are continued, in substance, in the new act, then, under the rules already announced applicable to repeals by revision, such portions of the old law have not been repealed and any rights that accrued thereunder will not be disturbed by the subsequent passage of the revisionary act. This is true under common-law rules of construction as well as under section 2 of chapter 131, supra.

[7]The declaration in the case at bar contains five counts. The second and fourth are based on section 18 of the old law, and the first, third, and fifth are based on section 19. By comparing section 18 of the old law with section 21 of the new and section...