on petition eor repiearing.
Potter, Justice.Counsel for defendant has filed a petition for rehearing, in support whereof it is contended that the court erred in the reasoning and conclusion set forth in,the former opinion. No new point is presented, nor any question that was nói considered by the court and fully and ably covered by the arguments of'counsel at the former hearing. The question involved in the cause as it comes to this court is important and not free from difficulty, but after carefully considering and giving due weight to the arguments advanced by the brief in support of a rehearing, no doubt is entertained by a majority of the court as to the correctness of the decision heretofore announced and it is not believed at all probable that a rehearing would result in a different conclusion. We do not deem it necessary to again discuss the question at length, and shall not attempt to do so.
To avoid any possible misunderstanding of the ground upon which the decision was based, we think it proper to say at this time that it did not depend upon the legal correctness of certain statements contained in the ‘ opinion, which are criticized by counsel, to the effect that the section of the Constitution declaring the liability of the party in fault to an action for damages for death by wrongful act, neglect, or default would be ineffectual without a statute providing the manner of enforcing the right of action or liability (Art. IX, Sec. 4) ; and that the provisions of *396Section 2582, Revised Statutes of 1899, were enacted pursuant to the section of the Constitution referred to, and amounted to a partial compliance with its requirement that “the Legislature shall provide by law at its first session for the manner in which the right of action in respect thereto shall be enforced.” Any inaccuracy, technical or otherwise, of either of those statements’would not disturb the conclusion upon the ultimate question that was presented, for the constitutional provision that vitally affected the question involved and the decision is that found in Section 4 of Article X, rather than Section 4 of Article IX, the former declaring that “No law shall be enacted limiting the amount of damages to be recovered for causing the injury or death of any person.”
We are not however willing to concede the unsoundness of the statements alluded to as argued by counsel. The reference to the necessity of a statute providing the manner • of enforcing the right of action may have been expressd too broadly, and in such language as to convey the impression that the court supposed it necessary, in order to render effectual the constitutional provision declaring the liability to an action for damages, that there should be a statute specially providing a form of procedure in such cases. That, however, was not the thought in the mind of the court at the time, nor do we conceive such a statute to be essential to the existence of a remedy in favor of the party entitled to enforce the liability. It was only intended by the statement referred to that the Legislature was required to designate the party to whom the liability should accrue or who might bring the action, and we remain inclined to that opinion. However, the point was not deemed very material and was not therefore closely considered, for the reason that a statute was in force when the Constitution took effect, and was continued in force by an express provision of that instrument, providing that every such action should be brought by and in the name of the personal representative of the deceased person; and the statute of *3971890-91 (Sec. 2582, R. S. 1899), enacted after the adoption of the Constitution, which provided for the recovery of damages for the death of a person caused by a violation ofs or a willful failure to comply with, the provisions relating to the operation of coal mines, declares that the right of action shall accrue to the administrator of the estate of the person whose life shall be lost. But should the view in that particular of Section 4 of Article IX of the Constitution, as expressed in the opinion, be deemed erroneous, it is not properly to be regarded as a fundamental error inducing in any degree the conclusion upon the ultimate question that was submitted for decision.
The same comment is applicable to the reference in the opinion to the statute known at the time as Section 2382, Revised Statutes of 1899, as in part a compliance with the constitutional provision that the Legislature shall provide by law for the manner in which the right of action shall be enforced. Conceding that the statute extended the right of action to acts or defaults not covered by the words employed in the Constitution, referring to an action for the death of a person injured, it provides to whom the right of action shall accrue where death occurs through a violation of, or a willful failure to comply with, the statutory provisions, and we are not convinced that in that respect and to that extent it may not properly be said that the statute was enacted pursuant to or in compliance with the Constitution. It may be that without the statute so declaring, a right of action for death occurring through acts or defaults therein mentioned would not exist; but when it is so declared, such acts or defaults then become wrongful as the basis of an action if the death of the person injured ensues, so that the command upon the Legislature to provide by law for the manner of enforcing the .right of action becomes pertinent and applicable, though it is of course true that without such a constitutional direction, and in the absence of anything in the Constitution restricting legislative action in that respect, the Legislature would have authority *398to enact a statute making such provision. See Louisville Ry. Co. v. Raymond’s Adm’r., (Ky.) 123 S. W. 281.) The Constitution itself provides that the Legislature shall provide by law for the proper development, ventilation, drainage and operation of all mines. (Art. IX, Sec. 2.) And that “for any injury to person or property caused by willful failure to comply with the provisions of this article or laws passed in pursuance hereof, a right of action shall accrue to the party injured, for the damage sustained thereby.” (Art. ÍX, Sec. 4.) Immediately following this last mentioned provision is that for a right of action in all cases whenever the death of a person shall be caused by “wrongful act, neglect or default, such as would, if death had' not ensued, have entitled the party injured to maintain an action to recover damages in respect thereof.”
Notwithstanding that antedating the Constitution a similar statute had been enacted relating to the ventilation and operation of coal mines, the propriety cannot reasonably be questioned, we think, of referring to the statute of 1890-91, containing the provisions of Section 2582, as enacted pursuant to constitutional requirement, so far as least as it regulates the development, ventilation, drainage and operation of coal mines. And the fact that apart of Section^ 2582, viz: that part providing for a right of action in favor of the party injured for damages sustained through any violation of, or a willful failure to comply with, the provisions-of the act, is substantially the same as the constitutional provision covering the same matter, does not disprove the assertion that the section of the statute mentioned was, connectedly with the remainder of the statute, passed pursuant to the Constitution or to carry .out its provisions. Nor is the propriety of the statement that the statute, in the respect that it provides for an action for the death of the person injured, was in part a compliance with the direction contained in Section 4 of Article IX of the Constitution that a law be enacted for enforcing the action for death, disturbed by the consideration that the statute may cover *399acts or defaults causing death, not covered by said section ■of the Constitution.
The general statute in force prior to the Constitution relative to the kind of action under consideration, which was known as Sections 3448 and -3449, Revised Statutes of 1899, provided that the action might be maintained by the personal representative of the deceased person when the death shall be caused “by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action to recover damages in respect thereof.” We are inclined to the opinion that the provision in question in Section 2582, Rev. Stat. 1899, created a new right of action, and this we understand to be conceded' in counsel’s brief in support of a rehearing. This view assumes that the particular act or default causing death specified in Section 2382 as the basis of the action therein provided for would not be covered in the absence of negligence by the general words employed in Section 3448. But whether a new right of action was created or not, the later statute enacted after the Constitution had become operative provided that a right of action for the recovery of damages for the injuries sustained should accrue to the administrator of the estate of a person whose life shall be lost as the result of a specified act or default. Had the Constitution not intervened, it may be conceded that it would have been imperative under the ordinary rules of statutory construction to consider all the provisions of the earlier and later statute together as in pari materia, and to give effect to the provisions of the earlier statute as applicable to the action under the later statute so far as the same could be done without violating the provisions of such later statute, and thus the meaning of such provisions might be explained or qualified. By such a construction- it might then perhaps have been proper to hold that the action for damages under Section 2582 would be limited as to'the amount to be recovered by Section 3449 which had established a limitation *400of five thousand dollars upon the damages to be recovered in every action provided for by Section 3448.
We are, however, required to consider in this connection not only Sections 3448 and 3449 of the statutes, but as-well Section 4 of Article X of the Constitution, which expressly declares that no law shall be enacted limiting the amount of such damages. At the time Section 2582 was enacted that constitutional provision was in force,.and must be regarded as affecting the construction of every statute upon that subject subsequently enacted. The Legislature cannot be held to have intended something beyond its authority in order to qualify the meaning of the language it has employed. It must be considered unquestionable that the Legislature could not, in enacting Section 2582, have constitutionally declared that the right of action thereby provided for should be for the recovery of damages not exceeding five thousand dollars or any other amount; and, therefore, it is not permissible to hold that such a provision was intended. It is true that it is not stated in the section in so many words that the damages shall be unlimited; but they would be unlimited, except as limited by the lawful proof, by the very force of the language employed, construing the section alone, because the provision is sufficient to allow the recovery Of all damages of the character permitted by it which might be established by competent evidence.
It is argued that it might be conceded that as Section 3449, containing the limitation clause,, was continued in force together with other statutes not in conflict with the Constitution, the limitation clause would apply not only to acts wrongful at the time it was enacted, but as well to-acts subsequently made wrongful while continuing in force. But the difficulty in the way of applying it to the action under Section 2582 is that the section does more than merely describe what shall constitute a wrongful act. It prescribes expressly that in case of death resulting from the specified wrongs a right of action shall accrue for recovery of damages for the injuries sustained- — or to use the words of *401the statute “for like recovery of damages for the injuries sustained,” having reference to some preceding provision of the section. The word “damages” as thus employed is not qualified other than by the word “like” and the words “for the injuries sustained” with which it is connected, and necessarily means and embraces all damages that might be lawfully proven, except as explained or qualified by the words above referred to. This, in our opinion, renders the limitation of Section 3449 inapplicable,, or, if it otherwise would apply, it is to be regarded as impliedly repealed so far as the action provided for by the provision now being considered of Section 2582 is concerned, because inconsistent with it. To say as counsel does in the brief that the Legislature, 'when enacting Section 2582, knew of the existing statute limiting damages, and also must be held to have known the rule that the new statute would not change existing statutes except where the intention to do so is clearly manifest, and then to apply the propositions to the statute in question so as to leave it subject to the limitation of the former statute, is to impute to1 the Legislature an intention not only to refrain from repealing such limitation clause, but to provide that damages might be recovered in the action provided for not exceeding he amount limited by the former statute. And it is clear that had they expressed such an intention in words it would have been ineffectual because unconstitutional. It would then clearly have been a statute limiting the amount of damages, such as the Constitution prohibits. But to construe the statute as having that meaning and effect would be equally as obnoxious to the Constitution; and to so' construe it would require that the language employed be given a restricted meaning oh the ground that the Legislature so intended it. It is only on the theory that the statute was intended to be made subject to the limitation of the old statute that the latter could be regarded as applicable; and we have endeavored here and in the previous opinion to show the constitutional obj ection to the adop*402tion of such a theory in disposing of the question presented in this case. We believe that this amply explains the reasons leading to the conclusion heretofore announced. As remarked at the outset a majority of the court do not think ■a rehearing would be justified. Mr. Chief Justice Beard ■desires it to be stated that he has some doubt about the •correctness of the decision and for that reason is in favor •of granting a rehearing. ■ Rehearing denied.
Scott, J., concurs.