The State v. Barrett
| Decision Date | 05 February 1909 |
| Docket Number | 21,326 |
| Citation | 87 N.E. 7,172 Ind. 169 |
| Parties | The State of Indiana v. Barrett |
| Court | Indiana Supreme Court |
Rehearing Denied April 9, 1909.
From Sullivan Circuit Court; Charles E. Henderson, Judge.
Prosecution by The State of Indiana against Charles E. Barrett. From a judgment for defendant, the State appeals.
Reversed.
James Bingham, Attorney-General, Alexander G. Cavins, Edward M White and William H. Thompson, for the State.
Barrett & 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, p. 334, §§ 8582, 8583 Burns 1908), the charging part of which affidavit was as follows: "That at and in Sullivan county in the State of Indiana, on July 14, 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, 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 July 14, 1908, 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 said mine cars; that 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, debris and other obstruction so that the driver, in the event of a wreck, collision or other accident, could get away from the cars run upon said track," 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 Vandalia Mine No. 10; that said mine is now, and has been for more than two years last past, in operation; that said mine is operated by means of a shaft from the surface to the vein of coal being mined; that, 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 are laid iron tracks upon which cars loaded with coal are hauled, and also empty cars are hauled from said shaft back through such entries; that each vein of coal in the State of Indiana, there being seven or more such geological veins in Indiana, has a well-known geological number, which number is well known to all operators of coal mines and all laborers employed in the mining of coal; that each vein is numbered upward, the lowest being numbered one, and is well defined; that said Vandalia Mine No. 10, situated in Sullivan county, Indiana, and being the mine referred to in the affidavit on file herein, has its shaft sunk to the vein of coal known as No. 4, which is the vein in which are the entries and trackway referred to in the affidavit on file herein; that in such entries iron tracks are 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 [supra], 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: '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;' that at said Vandalia Mine No. 10 the vein of coal being worked, and the only vein of coal being worked, is geological vein number four, and, under the provisions of the act of 1907 [supra], 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 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.
Section one of the act (§ 8582, supra) provides:
Section two (§ 8583, supra) makes a violation a misdemeanor punishable by fine, not exceeding $ 200, with possible imprisonment, not exceeding sixty 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 field, or devoted in whole or in part to mining block coal; that, of two or more possible constructions, that one is preferable which will rescue the act from unconstitutionality, and that the proviso of the act is a constitutional exemption when applied solely to the block coal fields, because of natural distinctions upholding that classification. It may be premised that, of two or more possible constructions of a statute, that one will be adopted, if reasonable, which will rescue the act from unconstitutionality. State v. Lowry (1906), 166 Ind. 372, 4 L. R. A. (N. S.) 528, 77 N.E. 728.
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, etc. (1902), 158 Ind. 141, 63 N.E. 31; Smith v. McClain (1896), 146 Ind. 77, 45 N.E. 41; City of Indianapolis v. Bieler (1894), 138 Ind. 30, 36 N.E. 857.
The negative of all provisos, exceptions or exemptions in the clause defining the offense, 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. 1 Bishop, Crim. Proc. (4th ed.), §§ 636-639. An examination of our own cases will disclose that they all fall within the foregoing rules of construction.
It must be conceded 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 clearly to 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 engrafted 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. 1 Bishop, Crim. Proc. (4th ed.), §§ 636-639.
Taking the enacting clause and the proviso together, what are we to understand that 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 and is of general operation as to all citizens similarly situated and affected. Is it based upon differences which are apparent or reasonable? Does it impose burdens from which others of the same class are exempt, or apply to all persons placed in the same or like situations or circumstances, and operate equally...
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