State v. Barrett
Citation | 172 Ind. 169,87 N.E. 7 |
Decision Date | 05 February 1909 |
Docket Number | No. 21,326.,21,326. |
Parties | STATE v. BARRETT. |
Court | Supreme Court of Indiana |
OPINION TEXT STARTS HERE
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.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.
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: The state demurred to this plea or answer for want of 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: 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 ourselves in the position of the Legislature in the enactment of statutes, and endeavor to arrive at its intention. Provisos and exceptions are similar. They are intended to restrain the enacting clause, to except something which would otherwise be within it, something ingrafted upon a preceding enactment, intended to take special cases out of a general class, and the general intent and purpose of an enacting clause will be controlled by the particular intent subsequently expressed. Bishop, Criminal Procedure. Taking the enacting clause and the proviso together, what are we to understand the Legislature intended? Clearly, that the enacting clause should not apply in any way to “geological veins of coal numbers three and four, commonly known as the lower and upper veins in the block coal fields.” The particular designation of the veins in the block coal fields discloses the reasons operating in the minds of the legislators. The relation of the proviso to the enacting clause and the subject-matter of each must make it quite manifest that the enacting clause was not intended to be operative as to any class of coal mining, unless the block coal fields were not embraced, and we must conclude that the act was intended to be applicable in its entirety, so as to exclude the block fields, or not at all, and the case is reduced to the proposition whether this classification was a proper one, and this question must be determined by the further inquiry whether it operates alike,...
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