Walls v. Miller

• Decision Date: 11 July 1978
• Docket Number: No. 14184,14184
• Parties: Danny WALLS v. Walter MILLER, Director of W. Va. Dept. of Mines.
• Court: West Virginia Supreme Court

Page 491

251 S.E.2d 491

162 W.Va. 563

Danny WALLS v. Walter MILLER, Director of W. Va. Dept. of Mines.

No. 14184.

Supreme Court of Appeals of West Virginia.

July 11, 1978.

Concurring Opinion Aug. 15, 1978.

Rehearing Denied Jan. 25, 1979.

Syllabus by the Court

1. Where a statutory mandate is plain and unambiguous it will be applied and not construed.

2. Where the Legislature specifically provided in W.Va.Code, 22-2-42(a) (1977) that a person should be present within 500 feet of at least one main mine portal to monitor communication facilities, the provision should be enforced exactly as written, and a person located at a distance greater than 500 feet does not fulfill the requirement.

3. Where W.Va.Code, 22-2-6 (1971) provides that no person shall be inby equipment in the ventilating split while such equipment is being moved, and contains no exceptions, no exception should be inserted by administrative interpretation as it is apparent from the nature of the legislation that no exceptions were contemplated by the Legislature.

4. Where W.Va.Code, 22-2-60(g) (1977) provides that a vehicle must be readily available promptly to remove an injured person, any administrative interpretation of such statute which permits a substantial time lag between an injury and the arrival of a suitable transportation vehicle is contrary to the intent of the legislation and invalid.

Daniel F. Hedges, Charleston, for relator.

Chauncey H. Browning, Jr., Atty. Gen., Marianne Kapinos, Asst. Atty. Gen., Charleston, for respondent.

NEELY, Justice:

This original proceeding in mandamus by Danny Walls, President of Local Union 8217 of the United Mine Workers of America seeks to require the respondent, Walter Miller, Director of the West Virginia Department of Mines, to enforce certain provisions of chapter 22, art. 2 of the W.Va.Code concerning coal mines. The factual development concerns six mines in the vicinity of Mallory, Logan County, West Virginia, owned and operated by the Powellton Coal Company where the relator alleges that the respondent Director of Mines has either declined to enforce three specific safety requirements of the W.Va.Code, or has interpreted those requirements in such a way as to vitiate their intended effects.

The Code provisions under consideration are: (1) W.Va.Code, 22-2-42(a) (1977), ¹ which requires that a telephone or equivalent two-way communication facility be located within 500 feet of all main portals and monitored by a responsible person on duty when men are underground; (2) W.Va.Code, 22-2-6 (1971), ² which provides that mining equipment shall not be moved with men inby such equipment in the ventilating split passing over the equipment; and, (3) W.Va.Code, 22-2-60(g) (1977), ³ which requires that each section of the mine using or serviced by track-mounted or rubber-tired equipment have readily available a vehicle which can be used promptly to remove a person in case of injury.

I

At the outset, we must address the threshold question of whether a writ of mandamus will lie in light of respondent's assertions that the petitioner has not exhausted his administrative remedies and that another adequate remedy exists. ⁴

In this case the petitioner is not challenging one ruling by the Director concerning one particular safety problem in one isolated mine; to the contrary, he is challenging an entire philosophy of enforcement in which he alleges that the Director has completely misconstrued the requirements, purposes, and legislative intent of the three Code sections under review. Thus petitioner has formulated three broad legal issues which are not dependent for their resolution upon the type of detailed factual development which the administrative process envisages, but rather upon a broad interpretation of the manner in which certain sections of the mining laws should be enforced. The trend in this Court has been to enlarge the scope of mandamus. State ex rel. Smoleski v. County Court of Hancock County, 153 W.Va. 307, 168 S.E.2d 521 (1969), especially where there is an urgent question of public policy or where there is no reason for delaying adjudication of the issue by the highest court of the State. ⁵

The ancient rule with regard to mandamus is that the writ will lie where the petitioner's remedies at law are inadequate, State ex rel. Kanawha Co. Board of Ed. v. Dyer, 154 W.Va. 840, 179 S.E.2d 577 (1971), and we find in the case before us that the alleged deprivations of petitioner's rights are capable of being repeated under numerous variations of a basic recurring factual pattern, in spite of all other available administrative and legal remedies if no definitive resolutions of these issues are provided by this Court. ⁶ Accordingly we hold that we have before us sufficient factual stipulations to permit us to adjudicate the three issues raised in the petition, and that there is no sound reason for declining to grant extraordinary relief. Furthermore, in this case we are not concerned with a mere point of law in routine civil litigation, but rather with the lives and limbs of countless thousands of living, breathing, human beings who, along with their families, have suffered needless loss since time out of mind in an industry which appears inevitably to suck the life's blood from the miner as he takes the coal from the earth. The Legislature intended that this needless suffering should stop, and it is our duty to effect the legislative purpose by such means as will best accomplish that end.

II

A

Communication Facilities, Code, 22-2-42(a)

According to petitioner's allegations, the communications problem at Powellton Coal Company has been a continuing one. When the miners sought to have the federal regulations concerning readily available communication facilities, 30 C.F.R. § 75.1600-1 (1977), enforced, the company filed an administrative proceeding with the federal safety agency, and pursuant to the waiver authority under federal law, 30 U.S.C. § 811(c) (1977), obtained a waiver of the federal regulation. The petitioner then, with the assistance of union officials, sought to achieve the same result by securing enactment into State law of the same federal requirement which had been waived. This was accomplished by Acts of the Leg., Reg.Sess., 1977, C. 121. The requirement included in the 1977 legislation went into effect in July 1977, and during that month Powellton was cited for violation by a State mine inspector. After the company contacted the Director, the notice was voided although a subsequent demand by petitioner's counsel secured another notice on 9 September 1977. After further communication with the company, the Director extended the notice and no enforcement of the statute has been pursued since that time. The petitioner alleges, and the respondent does not controvert, that the Powellton Coal Company operates six mines in Logan County where the closest person who is always on duty when men are underground to respond in the event of an emergency is far in excess of the 500 feet of a main portal as mandated by W.Va.Code, 22-2-42(a) (1977). The actual locations in terms of distance from the main portal for the respective mines are admitted to be as follows:

Powellton No. 7B 1 1/2 miles from main portal to responsible person.

Powellton No. 11 1 1/2 miles from main portal to responsible person.

Powellton No. 15A 2 miles from main portal to responsible person.

Powellton No. 25 2 miles from main portal to responsible person.

Powellton No. 31 1 mile from main portal to responsible person.

Powellton No. 17(1) 1 3/4 mile from main portal to responsible person.

Powellton No. 17(2) 2 miles from main portal to responsible person.

The statutory mandate is plain and unambiguous and should be applied and not construed. Furthermore, it is particularly persuasive that the waiver authority granted to responsible officials under the federal counterpart of our mine safety law has not been granted in this State's law. It is obvious that physical proximity to the site of a potential malfunction (given the inherently dangerous nature of even the safest coal mining operation) is a safety requirement intended by the legislature when it expressed distance in exact footage, and we see no reason to infer that the Legislature did not mean exactly what it said, namely that there shall be a person within 500 feet of at least one main portal who is always on duty while men are working. Obviously the greater the distance from the main portal to the communications station on the outside, the higher the likelihood of malfunction in the communications equipment itself, which must necessarily traverse the greater distance. If indeed other equipment such as ventilating fans are malfunctioning on the outside, and such equipment is indispensible to the safety of miners on the inside, a person in direct contact with the inside workers needs to be present to supervise and direct the repair of whatever equipment happens to be malfunctioning. Accordingly we hold that the petitioner has a clear legal right to have W.Va.Code, 22-2-42(a) (1977) enforced exactly as it was written.

B Presence of Men Inby During Movement of Equipment

In order to understand petitioner's next ground for relief it is necessary briefly to explain the term "inby" and the term "outby." Although the Court boasts no particular expertise in mining, it appears from the record that most underground coal mines have a ventilating system which circulates air. The term "inby" is a technical mining term which refers to the area from a designated point in toward the face of a mine. Conversely, the term "outby" refers to the area from a designated point out toward the outside of a mine.

W.Va.Code, 22-2-6 (1971) provides that no person shall be permitted to be "inby" of mining equipment being transported or trammed underground. We find that the statutory language provides no exception when mining equipment is being moved although the immediate...