State v. Murlin

• Decision Date: 02 February 1897
• Citation: 38 S.W. 923,137 Mo. 297
• Parties: The State, Appellant, v. Murlin
• Court: Missouri Supreme Court

38 S.W. 923

137 Mo. 297

The State, Appellant, v. Murlin

Supreme Court of Missouri, Second Division

February 2, 1897

Appeal from Macon Circuit Court.

Reversed and remanded.

R. F Walker, attorney-general, and Morton Jourdan, assistant attorney-general, for the state.

(1) The information in this case follows the language of the statute creating the offense and fully sets out all the facts necessary to constitute the offense and to inform the defendant of the nature and character of the charge he is required to meet. Laws 1895, p. 226. (2) It is contended in the motion found in the record that this act is amendatory to section 7077, Revised Statutes 1889. This is not true. Section 7077, Revised Statutes 1889, is expressly repealed by the act under which the information is filed (Laws 1895, p 226); this being true, it was not necessary to set out the original section in full. Had this section been amended, it should have been set out in full as required by section 33 of article 4 of the constitution. The same is true in reference to the contention that article 2, chapter 115, Revised Statutes 1889, has been amended. (3) The title and purpose of the act is sufficiently stated and fully complies with the requirements of section 28, article 4, of the constitution. State v. Blackstone, 115 Mo. 426; State v Miller, 100 Mo. 439; State v. Pond, 93 Mo. 606; Ewing v. Hoblitzell, 85 Mo. 64. (4) Nor is it true that said act is unconstitutional and void, for the reason that it unnecessarily and oppressively restrains the mining of coal and the making of contracts, and it deprives the citizen of his property without due process of law. (5) It was unnecessary for the act to define or set forth the meaning of the term "blasting coal off of the solid." The phrase means literally what the words comprising it indicate, and an attempt to define it would have been but a confusing of terms. The legislature had in view the protection and safety of the men engaged in mining coal. The act is in no sense oppressive or unreasonable and the proper exercise of the police power. It violates no contract and restrains and restricts nobody in the exercise of any right guaranteed under the constitution.

Adiel Sherwood for respondent.

(1) The title of the act gives no indication of the legislative intent to provide a penalty for its violation, and the act itself creates an offense and provides a punishment, thus including two subjects: First, the penalty, and, second, the offense, and one of these, to wit, the penalty, is not expressed in the title of the act, contrary to section 28, article 4, of the Missouri constitution. Cooley, Const. Lim. [5 Ed.], 179. (2) The act is unconstitutional and void, because the offense therein prohibited, blasting coal off of the solid, is not described therein, that is to say, the constituent elements of that offense are not stated, and the offense prohibited was not an offense at common law. The act, therefore, is in violation of section 22, of article 2, of the Missouri constitution, which provides that the accused shall be informed of the nature and cause of the accusation against him. State v. Gabriel, 88 Mo. loc. cit. 642. See, also, People v. Allen, 5 Denio, 76; Hall v. State, 3 Cold. 125; 1 Arch. Cr. Pr. & Pl., p. 68, n. 1; Bishop, Stat. Cr., secs. 418, 421, 422.

Gantt, P. J. Sherwood and Burgess, JJ., concur.

OPINION

Gantt, P. J.

Upon the affidavit of Charles Evans, state mine inspector, the prosecuting attorney of Macon county filed the following information against the defendant:

"Robert W. Barrow, prosecuting attorney in and for Macon county and state of Missouri, informs the court that at the county of Macon and state of Missouri, on the twenty-seventh day of June, 1895, one W. E. Murlin, then and there was the agent of the Kansas & Texas Coal Company, a corporation, the owner of the mine hereinafter mentioned, and that said W. E. Murlin then and there as said agent and as superintendent of the mine hereinafter named, was in charge of, managing and operating mine number 46, of the aforesaid company, and that said mine number 46 then and there was a coal mine, where the coal was removed and taken from its original stratum by blasting off of the solid, and that said W. E. Murlin then and there willfully and unlawfully directed, operated, and worked said mine number 46, then and there willfully and unlawfully having coal blasted off of the solid in said mine and removed therefrom in the various rooms thereof without then and there having and keeping shot-firers employed in said mine to fire all or any shots after the employees, miners, and other persons had retired from said mine, and without having any shot-firers whatever employed in or at work in said mine, while so blasting off of the solid as required by the laws and statutes of Missouri, in section 7077, of the session acts of 1895, at page 227 thereof, but then and there willfully and unlawfully permitted, directed, and caused the miners in the various rooms of said mine to fire their own shots, while other employees, miners, and persons were still in said mine, in blasting off of the solid as aforesaid against the peace and dignity of the state."

The defendant filed his motion to quash the information.

The grounds of said motion are, briefly, that the information does not charge the violation of any law of this state; does not state the constituent facts constituting any crime; that the section under which it is drawn was not lawfully enacted; is unconstitutional and void, both under the constitution of the United States and of this state, in that it is unreasonable and oppressive.

This motion was sustained and the information quashed.

In due time a motion for new trial was filed and overruled and a bill of exceptions signed, sealed and made part of the record.

The act which defendant is charged with violating was approved April 11, 1895. It provides that, "in all dry and dusty coal mines discharging light carbonated hydrogen gas, or mines where the coal is blasted off of the solid, shot-firers must be employed to fire all shots after the employees and other persons have retired from the mine."

It is further provided that, "any agent, owner, or operator of any coal mine in this state violating the provisions of the preceding section [of which the foregoing provision is a part] shall be deemed guilty of a misdemeanor, and for each offense, on conviction, shall be fined not less than fifty or more than two hundred dollars, or by imprisonment in the county jail not less than three nor more than twelve months, or by both such fine and imprisonment."

The manifest purpose of this legislation is the protection of the lives of coal miners who work in mines in which giant or blasting powder is used to dislodge the coal from its natural bed.

It is only in mines which are operated by blasting coal off of the solid that the duty is enjoined upon the owner, operator, or agent, operating such mine, of employing shot-firers to fire all shots and requiring that such blasts shall be made by the shot-firers after the other miners and operatives have retired from the mines.

Experience has demonstrated the necessity of establishing police regulations for the working of coal mines in order to protect the health and safety of persons employed therein.

So obvious were the dangers of mining coal that the parliament of Great Britain from time to time passed laws for the inspection of such mines and prescribed rules to be observed in the operation thereof. Thus, by 18 and 19 Victoria, ch. 108, it was provided that an adequate amount of ventilation should be constantly produced at all collieries to dilute and render harmless noxious gases and for fencing shafts not in use and air pits and for casing or lining certain shafts not deemed safe; and for signals from the bottom to the surface and for adequate brakes upon all machines worked by steam or water for raising and lowering persons, and requiring all steam boilers to be provided with proper steam gauges, water gauge, and steam valve.

On March 3, 1871, the legislature of Pennsylvania passed a most elaborate act regulating the construction of mines, providing for the safety of miners, and the inspection of mines and attaching penalties for failure to comply with the provisions thereof. Brightly's Purdon's Digest for 1700 to 1872, p. 1067.

This act proceeded on the line of the act of parliament, but greatly extended the measures looking to the safety of miners. Similar enactments are to be found in Illinois, New York, Ohio, and many other states.

The constitutionality of the Pennsylvania act was assailed the next year after its passage. An injunction was sought by the...