State v. Barrett, 21,326.

• Docket Nº: No. 21,326.
• Citation: 172 Ind. 169, 87 N.E. 7
• Case Date: February 05, 1909
• Court: Supreme Court of Indiana

172 Ind. 169
87 N.E. 7

STATE
v.
BARRETT.

No. 21,326.

Supreme Court of Indiana.

Feb. 5, 1909.

Appeal from Circuit Court, Sullivan County; Charles E. Henderson, Judge.

Charles Barrett was prosecuted for constructing a trackway in a mine without allowing two feet of clear space outside the rails, in violation of Acts 1907, p. 334, c. 197. A demurrer to the answer to the affidavit was overruled, and the state appeals. Reversed, with instructions to sustain the demurrer and to require defendant to plead over.

[87 N.E. 8]

Walter F. Wood, Pros. Atty., James Bingham, A. G. Cavins, E. M. White, and W. H. Thompson, for the State. Fred E. Barrett, for appellee.

MYERS, J.

This was a prosecution instituted by the state against the defendant in the Sullivan circuit court by affidavit of the prosecuting attorney under the act of 1907 (Acts 1907, pp. 334, 335, cc. 197, 198), the charging part of which affidavit was as follows: “That at and in Sullivan county in the state of Indiana on the 14th day of July, 1908, the defendant was then and there the operator of a coal mine at and in Sullivan county in said state, known as Vandalia mine No. 10, and which mine was then and there on said day, and had been for a long time prior thereto, operated as a coal mine under the direction of the defendant, and in which mine and at and during all such time laborers, drivers, and miners worked; that on and prior to said 14th day of July, 1908, the said defendant did then and there cause to be made, dug, and constructed an entry and trackway in said coal mine upon and along which a continuous mine car track was laid upon which loaded cars of coal and empty coal cars were hauled by mules and motors under the charge of drivers, and along which entries drivers were and are required to drive with said mine cars; and said defendant did then and there wrongfully and unlawfully fail to provide in said entries in said mine on either side of said mine car tracks a continuous space of two feet measured from said car track rail free from props, loose slate, débris and other obstruction so that the driver could get away from the cars run upon said track in the event of a wreck, collision, or other accident”-contrary, etc. To this affidavit defendant filed an answer alleging: “That he is the secretary of Vandalia Coal Company, and one of the executive committee of said company; that said Vandalia Coal Company owns said mine known as mine Vandalia No. 10; that said mine is now, and has for more than two years last past been, and now is, in operation; and said mine is operated by means of a shaft from the surface to the stratum or vein of coal being mined, and as a part of the system of mining entries are dug and constructed in various directions from the bottom of said shaft, and in such entries is laid an iron track upon which cars are hauled loaded with coal, and also empty cars are hauled from said shaft back through such entries. Defendant further avers: That the various strata or veins of coal in the state of Indiana, there being seven or more of such geological veins of coal in Indiana, have well-known geological number, and which number is well known to all operators of coal mines and all laborers employed in the mining of coal. That such strata or seams of coal are numbered upward, the lowest vein being numbered 1, and are well known and defined. That the said Vandalia mine No. 10, situated and being in Sullivan county, Ind., and being the mine referred to in the affidavit on file herein, has its shaft sunk to the vein of coal known as geological vein No. 4, and which vein of coal No. 4 is the vein or stratum in which the entries and trackway referred to in the affidavit on file herein refer. That in such entries an iron track is laid upon which coal cars are hauled. That the affidavit on file herein is based upon the provision of the act of March 9, 1907 (Acts 1907, p. 334, c. 197), entitled ‘An act to regulate the width of entries in coal mines, providing for an unobstructed space in such entries, providing penalties, and repealing all laws in conflict,’ and it is provided in said act, among other things, as follows, that is to say: ‘Provided, that the geological veins of coal numbers three and four, commonly known as the lower and upper veins in block coal fields of Indiana, shall be exempt from the provisions of this act’-and this defendant avers that at said Vandalia mine No. 10 the vein of coal being worked and the only vein of coal being worked is geological vein No. 4, and under the provisions of said act of March 9, 1907, said vein of coal does not fall within the terms of said act, and for that reason this defendant is not guilty and should go acquit.” The state demurred to this plea or answer for want of

[87 N.E. 9]

a defense to the charge in the affidavit. The demurrer was overruled. The state excepted, and, refusing to plead further, the defendant was discharged, and the ruling on the demurrer to this plea is assigned as error.

The act provides: “That it shall be unlawful for any owner, lessee, or operator of any coal mine within the state of Indiana, to make, dig, construct or cause to be made, dug, or constructed any entry or trackway after the taking effect of this act, in any coal mine in the state of Indiana where drivers are required to drive with mine car or cars unless there shall be provided on one or both sides continuously of any track or tracks measured from the rail, in any such entry of at least two (2) feet in width, free from any props, loose slate, débris or other obstruction so that the driver may get away from the car or cars and track in event of collision, wreck or other accident. It shall be unlawful for any employé, person or persons to knowingly, purposely or maliciously place any obstruction within said space as herein provided: Provided, that the geological veins of coal numbers three and four, commonly known as the lower and upper veins in the block coal fields of Indiana, shall be exempt from the provisions of this act.” Section 2 makes a violation a misdemeanor punishable by fine, not exceeding $200, with possible imprisonment, not exceeding 60 days, in the county jail.

The state urges here, first, that the plea or answer is bad in that it does not disclose that the mine is in the block coal fields, or devoted in whole or in part to mining block coal, that of two or more possible constructions that will be preferred that will rescue the act from unconstitutionality, and that the proviso of the act is a constitutional exemption when applied solely to the block coal field, because of natural distinctions upholding that classification. It may be premised that of two or more possible constructions of a statute that will be adopted, where it is reasonable, which will rescue the act from unconstitutionality. State v. Lowry, 166 Ind. 372, 77 N. E. 728, 4 L. R. A. (N. S.) 528. Also, that if the elimination of an invalid portion of an act will leave the remainder complete in itself, sensible, and capable of being executed against all alike, the remainder will be enforced. Swartz v. Board, 158 Ind. 141, 63 N. E. 31;Smith v. McClain, 146 Ind. 77, 45 N. E. 41;City of Indianapolis v. Bieler, 138 Ind. 30, 36 N. E. 857. The negative of all provisos, exceptions, or exemptions in the enacting clause, which are affirmative elements in the offense, must be averred; but if the offense is defined without the proviso or exception, and even though in the same section with the enacting clause or clause creating the offense, it does not require negation. Bishop, Criminal Procedure, §§ 636-639. An examination of our own cases will disclose that they all fall within the foregoing rules of construction.

It must be conceded, we think, that the act is complete without the proviso, that the latter may be eliminated without impairing or affecting the operation of the act as a whole, that it would still be complete in itself and capable of being executed and of general operation, and, that being true, the act is not open to the objection of being unconstitutional as an entirety, unless it be that the proviso is so intimately connected with the enacting clause, as to clearly indicate that it was intended to restrain its operation. We are required as a primary rule of construction to put...