— (dissenting).—The opinion says, and the decision decides, that a mine-operator is imperatively required by the statute quoted and construed, *431to “keep liis mine harmless fieom noxious gases generated therein”; that he does not discharge his statutory duty by providing and maintaining ample means for ventilating the mine.
If this is true, then the court ought to go further and declare the statute to be unconstitutional. The Legislature has no power to require a man to do that which he and no one else can do. Human genius, so far, has not been able to learn or devise any means to this end. If it be possible, no human being has yet discovered the mode or process of so doing. Science may hold it in store, but, so far, she has not revealed it to man — it is still a sealed book. If the Legislature can make a man do that which he cannot do, then the statute is all right; if it cannot, then it is all wrong. That is all there is, or can be, in the decision.
I say: First, the Legislature has not so provided; and, second, if it has, it is of no avail. It is both conceded and decided in thé opinion that the statute is not clear to this end. It is apparent and unquestionable that the statute does not say what the court says it means, but the construction placed on it by what is said in the opinion is, that it is the imperative duty of the mineowner, and a nondelegable duty, to “keep h'is mine harmless from noxious gases- generated therein.” It is admitted that this was not the law before the passage of statute; and I suppose it will be conceded that it was never heretofore expressly so decided, though cases are cited as inferentially so deciding, and these cases this decision purports to follow. I think my Brothers are in error, as to what the cited cases decided as well as to the construction placed upon this statute.
It was expressly said by this court, speaking through the same judge and concurred in by the same judges that announced and concurred in the decision of this *432identical case on the original hearing (this being a rehearing), that the statute in question does not mean what it is now held to mean; and it has been decided by this court, in another case construing the same provision of the same statute, that it does not mean what the court now says it means; and in one of those cases the decision was reached and adhered to on both hearings, and this is probably some excuse for my being unable to agree to this decision or concur in the opinion.
On the first hearing in this case it was said: “The duty of operating the ventilating appliances is delegable^ and if the master provides and maintains sufficient appliances to dilute, carry off, and render harmless the noxious gases, he complies with the statute. The word ‘maintain,’ as used in this section, does not mean ‘operate,’ and the statute cannot be properly construed so as to make the master an absolute insurer against harmful, noxious gases generated in the mine, by giving this word such a meaning. Had it been the intention of the Legislature to make the mineowner an absolute insurer, they would have said so in plainer and fewer words.” I confess my inability to show the error of the present holding in stronger or plainer terms than those quoted above,- and another case has been put out by this court, at this term, deciding the same thing, which I suppose will be recalled and corrected if the present decision and opinion is allowed to stand. The only thing I desire to add to the above is that it is admitted in this opinion that the statute changes the common law in this respect, and it is admitted that the statute is not clear and that it is doubtful. This being true, why does not the second canon of construction apply, that a statute will not be construed to change the common law, but to be declaratory thereof, unless the change clearly and unmistakably appears? The pres*433ent construction of this statute clearly violates this rule of construction, often stated by this and all other courts which have ever spoken on the subject.
So much for the proper construction of the statute; but if the statute means what the court says it means, and is a valid law, what is the effect and result? Many other states, and England, have similar statutes, and they have never been so construed, but, on the contrary, have been construed by the respective courts of such countries as the first opinion quoted construed them. Why should the courts of this state decide differently from all other courts ? It seems to me too plain for controversy or doubt that, if this is the law, no solvent man or corporation can afford to operate a coal mine, could afford to assume the responsibility; that coal will have to be mined by insolvent persons or corporations, or by .the state, which is probably not within the statute. No insurance company would insure a mine against such risk.
It is an acknowledged and well-known fact that thus far no means or device has been discovered which, even under the most careful operation, will prevent injuries and accidents in coal mines as the result of bad air and explosions. I suggest, for the consideration of any one who desires to consider the suggestion, that this particular section was not specially provided, nor intended, .to prevent explosions, but primarily to afford pure air for the miners to breathe while at work. An explosion might occur, when no one would be able to detect any impurity so far as air to breathe is concerned. I desire further to call attention to the fact — which the opinion does not notice — that, if the statute means what this decision says it means, the superintendent, as well as the operator, is liable as to ventilation and explosions in coal mines. Would any prudent and solvent man ac*434cept the position of superintendent of a coal mine if he is, by the statutes, thus subjected to liabilities against which experience, care, and competency cannot provide? Did the Legislature mean to say, or did they say, that the superintendent of a mine is an insurer against accidents on account of gas generated in such mine? This is what the opinion in effect and necessarily decides. How any accident can occur in a coal mine on account of noxious gases other than those “generated in the mine” I am not able to understand. How any such “noxious gases” are in, or can be in, a mine in which they are not “generated,” I cannot conceive; yet it is upon this theory only that the constitutionality of the statute can or is attempted to be sustained.
If the statute expressly and unmistakably imposed civil liability merely upon the showing of injury resulting from or proximately caused by noxious gases in the mine, then, as I understand this decision, and others of this court, the statute would clearly be unconstitutional. — Zeigler's Case, 58 Ala. 594. In that case, speaking of a statute against railroads, similar to this, which expressly provided what the court holds that this statute, by implication, provides, this court, speaking by Stone, J., said: “We have heretofore declared a rule which exacts from railroad corporations a high degree of skill and diligence, to prevent injury to persons and property. See Tanner v. Louisville & Nashville R. Co. [60 Ala. 621], Sav. & Memph. R. R. Co. v. Shearer [58 Ala. 672], and S. & N. R. R. Co. v. Sullivan [59 Ala. 272], at the present term. We have no wish to modify that rule. But when these very useful corporations conform to this strict rule of diligence, we can perceive no reason, in law or morals, for holding them to a stricter measure of accountability for inevitable misfortunes than would be exacted from natural persons for injuries *435which result from unavoidable accident; or accidents which no human prudence can foresee or avert.”
This doctrine was reaffirmed in Morris’ Case, 65 Ala. 193, in the following language. “In Zeigler v. S. & N. R. R. Co., 58 Ala. 594, this court pronounced the first section of this act, now comprised in section 1710 of the Code, to be unconstitutional, on the ground that it sought to impose an absolute and unconditional liability upon railroad companies, without regard to any question of legal wrong, fault, or negligence on their part, and thus operating to deprive them of a hearing in court by that ‘due process of law’ guaranteed to all persons under section 7 of the Bill of Bights.”
The rule as stated by Mr. Labatt, as to the duty of the master to supervise the mere executive details of the work, is (Master and Servant, vol. 2, p. 1719, text and notes) : “The most general form in which the limits of a master’s obligations are susceptible of being stated is that he is not bound to supervise the merely executive details of the work to be done by his servants.” “ £It would be extending the liability of the master beyond any established rule, to require him to oversee and supervise the executive detail of mechanical Avork carried on under his employment, and there is no rule of law which authorizes it.’ — Hussey v. Coger (1889) 112 N. Y. 614, 20 N. E. 556, 3 L. R. A. 559 [8 Am. St. Rep. 787].” “The master does not insure his employees against each other, nor is he bound to supervise and direct every detail of their labor. They must exercise their own senses in the selection of material out of the mass provided for them; they must use their oAvn judgment as to the manner of handling it. No employer could bear the burden of legal responsibility for every blunder or neglect on the part of each and all of his employees.”
*436I thoroughly agree with the opinion in this case as to the proposition that these statutes are intended to protect human life and to this end should be liberally construed. When human life is imperiled or endangered, I fully agree with what McClellan, C. J., said in Campbell’s Case, 121 Ala. 50, 25 South. 793, 77 Am. St. Rep. 17, in which the intestate, Reeves, was imprisoned in a coal mine which was on fire. He there spoke as follows : “If Reeves’ life could have been saved by telegraphing to New York or Chicago for hose with which to flood the fire, it was upon the defendant’s superintendent to so telegraph and have the appliances sent by express. And so, if that would have met the occasion, he should have telegraphed to Birmingham, 60 miles away, where such appliances were generally kept, and, if need have been, have had them sent out by a special train. Where human life is at stake, the rule of due care and diligence requires everything that gives reasonable promise of its preservation to be done regardless of 'difficulties and expense.” Notwithstanding Mr. Freeman, the great annotator, said: “This, however, would seem, as a matter of law, to lay down a rule of diligence entirely too rigid and exacting to be deemed ‘reasonable,’ and, while the degree of diligence and care which a reasonably prudent man would exercise if confronted by a situation. imperiling human life is undoubtedly very high, it is doubtful whether it can be said to require the adoption of every measure, ‘regardless of difficulties and expenses.’ ” — 87 Am. St. Rep. 566.
I concede the rule is well stated by that clearest of all judicial writers of my acquaintance, Mr. Justice Field, in Mather v. Rillstone, 156 U. S. 39, 15 Sup. Ct. 464, 39 L. Ed. 464, where he says: “Occupations, however important, which cannot be conducted without necessary danger to life, body, or limb, should not be prosecuted *437at all without all reasonable precautions against such-dangers afforded by science. The necessary danger attending them should operate as a prohibition to- their pursuit without such safeguards. Indeed, we think it may be laid down as a legal principle that in all occupations which are attended with great and unusual danger there must be used all appliances readily attainable-known to science for the prevention of accidents, and that the neglect to provide such readily obtainable appliances will be regarded as proof of culpable negligence.”
Yet, in agreeing to all this, I am not willing to agree to a construction of a statute which will make one man liable for the death of another when the living one could' not have prevented the death or injury to such person, unless that construction is undoubted and unavoidable; • and if it did so provide I should say that without doubt, such statute was unconstitutional.
A number of statutes in Pennsylvania, which attempted to make the operator liable for injuries which he-could not prevent, were held to be unconstitutional and in violation of the Bill of Rights, and to deny due process of law. It seems to- me too plain for argument that any statute which attempted to make any person liable-for acts or consequences which such person could not avoid or prevent is contrary to all morals and law. SeeDurkin’s Case, 171 Pa. 183, 33 Atl. 237, 29 L. R. A. 808, 50 Am. St. Rep. 801. In that case the court struck down a statute which said, in words, what this court says our - statute implies. The first paragraph in the opinion is as . follows: “The first article of the Constitution of this • state, known as the Bill of Rights, declares that all men . are possessed of certain inherent and inalienable rights. One of these rights is to acquire, possess, and protect property. The preservation of this right requires both-. *438that every man should be answerable for his own acts and engagements, and that no man should be required to answer for the acts and engagements of strangers over whom he has no control. A statute that should impose such a liability, or that should take the property of one person and give it to another, or to the public, without making just compensation therefor, would violate the Bill of Rights, and would be for that reason unconstitutional and void. — Harvey v. Thomas, 10 Watts (Pa.) 66 [36 Am. Dec. 141]; Ervine’s Appeal, 16 Pa. 256 [55 Am. Dec. 499]; Kneass’ Appeal, 31 Pa. 87; Wolford v. Morgenthal, 91 Pa. 30; Godcharles & Co. v. Wigeman, 113 Pa. 431 [6 Atl. 354]. It is in furtherance of the right to acquire, possess, and protect property that section 18 of the Bill of Rights prohibits the enactment of laws that shall interfere with or impair the obligation of contracts. The tendency towards class legislation for the protection of particular sorts of labor has been so 'strong, however, that several statutes have recently been passed that could not be sustained under the provisions of the Bill of Rights. Such was the case in Godcharles v. Wigeman, supra. Such was the case with some recent provisions relating to mechanics’ liens, and such is alleged by the appellant to be the case with some of the provisions of the act of 1891 (P. L. 176) under which this action was brought.”