The information charges a violation of the provisions of article 2, c. 54, of the Mining Laws (act approved April 6, 1908).
The information, omitting the formal parts, is as follows:
"In the name and by the authority of the state of Oklahoma. Now comes W.P. McGinnis, the duly qualified and acting county attorney, in and for Latimer county, state of Oklahoma, and gives the county court of Latimer county, state of Oklahoma, to know and be informed, that John Patterson did, in Latimer county, and in the state of Oklahoma, on or about the 25th day of March in the year of our Lord, one thousand nine hundred and ten and anterior to the presentment hereof, commit the crime of allowing and permitting miners and employees other than shot firers to be and remain in the mines while shots are being fired in the manner and form as follows, to wit: That said defendant, John Patterson, being then and there mine foreman of the Kali Inla Coal Company at its mine No. 1 at Cambria, in Latimer county, Okla., and as such mine foreman being then and there the officer and agent of the said Kali Inla Coal Company in charge of its mine No. 1 as aforesaid in said county and state aforesaid, did on the date aforesaid, and in the county and state aforesaid unlawfully and wrongfully allow and permit Via Aneciton, Andrew Gehinetti, and Louis D. Alposs, they being then and there miners and employes other than shot firers of the Kali Inla Coal Company, at its mine No. 1 at Cambria, in said county and state aforesaid, to be and remain in said mine *Page 504 No. 1 aforesaid at the time of the firing of shots therein, and they, the said Via Aneciton, Andrew Gehinetti, and Louis D. Alposs, not being then and there the regularly and duly employed shot firers of the said Kali Inla Coal Company at its mine No. 1 at Cambria in said county and state aforesaid, and the said mine No. 1 of the Kali Inla Coal Company at Cambria in said county and state, being then and there a coal mine employing ten and more miners to work therein, contrary," etc.
The defendant filed a demurrer thereto, which was overruled by the court and exception allowed.
The questions presented require a consideration of the following sections of article 7, c. 67, Comp. Laws, 1909, entitled: "General rules, regulations and safeguards for the protection of miners": Section 4381, Comp. Laws 1909:
"The operator shall employ a competent and practical inside overseer for each and every mine employing ten or more persons inside, to be called mine foreman (who shall have charge of the inside operations of the mine), and shall see that the provisions of this act are strictly enforced. * * *"
Section 4394:
"Rule 1. The mine foreman shall attend personally to his duties in the mine and carry out all the instructions set forth in this act, and see that the regulations prescribed for each class of workmen under his charge are carried out in the strictest manner possible, and see that any deviations from or infringements of any of them are promptly adjusted.* * * Rule 6. He shall, on blank forms provided by the chief mine inspector for the purpose, within ten days after their occurrence, report to the mine inspector, all fatal and serious accidents occurring in or about the mines, giving age, nationality, and occupation of the injured persons, together with the facts as to the families or dependants, affected, et cetera, but he shall, as hereinbefore provided, give immediate notice of all fatal accidents."
Section 4395:
"All owners, lessees, operators or any other persons having the control and management of any coal shaft, drift, slope or pit in this state, employing ten or more miners to work therein shall employ shot firers at operator's expense, to fire the shots therein. Said shots shall be fired at the end of each shift, but not until all miners and other employees, working therein, are out of said mine."
Section 4398: *Page 505
"No shot firers shall enter any mine, for the purpose of firing shots, nor shall any shots be fired until all employees shall have left the mines. * * *"
Section 4401:
"The neglect, failure or refusal to perform any of the duties required by any section of this act, by any firm, association, corporation, person or parties required to perform them, shall be a misdemeanor, and where the duty so neglected, failed or refused to be performed is by the terms of this act required of a corporation, then its officer or agent in charge of the mine, shall be guilty, as hereinbefore provided for in this section, and, except as herein otherwise provided, shall upon convection thereof, be punished by a fine of not exceeding five hundred dollars, or imprisonment in the county jail, for a period not exceeding six months, or both such fine and imprisonment. Provided, that nothing in this act shall be construed so as to relieve any person, firm, company or corporation from liability or damages in a civil action."
The first contention of counsel for plaintiff in error is that the information is fatally defective, in that it does not state facts sufficient to constitute an offense under the statute, "because it is not alleged that the duty which is alleged to be violated was under the terms of the act required of a corporation." This allegation is not necessary, because it is specifically alleged that the defendant John Patterson was then and there acting as mine foreman of the Kali Inla Coal Company then and there in charge of the mine, and the neglected duty unperformed is specifically made a part of the mine foreman's duties by section 4394, supra. The penalty section (4401, supra) is very broad and comprehensive in its terms, including all sections of the act, and provides punishment for any firm, association, corporation, person, or parties required to perform them. The law is that in all mines in this state where ten or more persons are employed to work therein the duty is imperative to employ shot firers to fire all shots therein when all other employees are out of the mine. The contention is destitute of merit, and the demurrer was properly overruled.
The principal contention of counsel for plaintiff in error is that the mining act in question is unconstitutional and void, and *Page 506 in violation of the fourteenth amendment of the Constitution of the United States.
The party who wishes to pronounce a law unconstitutional takes upon himself the burden of proving beyond all doubt that it is so. Every legislative act is presumed to be constitutional, and the courts should not declare an act to be unconstitutional unless it is clearly so.
The police powers of a state extend to the protection of the lives, limbs, and health of all persons, and the protection of all property, within the state, and by which persons and property are subjected to all kinds of restraints and burdens for the protection of life, person and property, in order to secure the general comfort, health, and prosperity of the state.
There can be no question that this legislation is a proper and appropriate exercise of the police power. The plain purpose of the act is to protect, so far as legislative enactments may, the lives and persons of the men employed in the mines of this state while they are in the mines. The mining of coal is unquestionably dangerous and hazardous work, and in this state it is a productive industry of vast importance. Thousands of men are engaged in that character of work, and a proper safeguard of their lives and health is a matter of humane necessity. No subject can be mentioned where there is a more positive necessity for the exercise of the police power than in seeking to subserve their safety. This duty has been recognized and entered upon as evidenced by our mining laws, intended to insure, as far as practicable, the safety and health of the miner while engaged in his dangerous and hazardous occupation.
The question as to whether the act in so far as it discriminates as to operators of coal mines is a proper exercise of the police power is passed upon in the case of St. LouisConsolidated Coal Co v. Illinois, 185 U.S. 203, 22 S. Ct. 616,46 L. Ed. 872, and the principle announced is directly applicable. Speaking of a similar provision of the mining laws of Illinois, the Supreme Court of the United States says:
"This is a species of classification which the Legislature is at liberty to adopt, provided it be not wholly arbitrary or *Page 507 unreasonable, as it was in Cotting v. Kansas City StockyardsCompany, 183 U.S. 79 [22 S. Ct. 30, 46 L. Ed. 92], in which an act defining what should constitute public stockyards, and regulating all charges connected therewith, was held to be unconstitutional, because it applied only to one particular company, and not to other companies or corporations engaged in a like business in Kansas and thereby denied to that company the equal protection of the laws. In the case under consideration there is no attempt arbitrarily to select one mine for inspection, but only to assume that mines, which are worked upon so small a scale as to require only five operatives, would not be likely to need the careful inspection provided for the larger mines, where the workings were carried on upon a larger scale or at a greater depth from the surface, and where a much larger force would be necessary for their successful operation. It is quite evident that a mine which is operated by only five men could scarcely have passed the experimental stage, or that precautions necessary in the operation of coal mines of ordinary magnitude would be required in such cases. There was clearly reasonable foundation for a discrimination here."
In the case of Lindsley v. Natural Carbonic Gas Co.,220 U.S. 61, 31 Supt. Ct. 337, 55 L. Ed. 369, it was held that the equal protection clause of the fourteenth amendment admits of a wide exercise of discretion, and only avoids a classification which is purely arbitrary, being without reasonable basis; nor does a classification having some reasonable basis offend because not made with mathematical nicety or resulting in some inequality. See, also, Wilmington Star Mining Co. v. Fulton, 205 U.S. 60,27 S. Ct. 412, 51 L. Ed. 708. In the case of McLean v. State,81 Ark. 304, 98 S.W. 729, 126 Am. St. Rep. 1037, 11 Ann. Cas. 72, the Supreme Court of Arkansas, construing a statute containing a similar classification, said:
"The act applies to `coal mines in this state, where ten or more men are employed underground.' It may be fairly inferred from this language that the Legislature considered as mines only those places that had been developed to the extent of requiring the labor of ten or more men underground in the work of mining coal. Those places where the development work had not been carried on to the extent of requiring the labor of ten men underground were evidently regarded by the Legislature as only in the prospective or experimental stage. We have no right to assume from the act that the Legislature intended to discriminate *Page 508 against them, but rather that they were not included because they did not need the protection afforded the class mentioned. Similar laws have been enacted in several of the coal producing states, and, where tested, have received the sanction of the highest courts of the state, as a valid exercise of police power. Statev. Peep Splint Coal Co., 36 W. Va. 802, 15 S.E. 1000 [17 L.R.A. 385]; State v. Wilson, 61 Kan. 34, 58 P. 981 [47 L.R.A. 71]."
On appeal to the United States Supreme Court to reverse the judgment of the Supreme Court of Arkansas the judgment was affirmed. McLean v. Arkansas, 211 U.S. 539.
We are clearly of opinion that there is nothing in the statutes under consideration that is in contravention of the fourteenth amendment to the Constitution of the United States.
The evidence of the defendant's guilt is undisputed. None of the other alleged errors committed by the court in giving and refusing instructions, or in passing upon the admissibility of evidence, are tenable, and they do not require special notice.
Finding no error, the judgment appealed from is hereby affirmed.
FURMAN, P.J., and ARMSTRONG, J., concur.