dissenting:
Believing as I do that the conclusion reached by the majority of the Court in this proceeding is entirely wr-ong, logically unsound, and places a distorted and totally unwarranted construction upon statutory provisions which are plain and unambiguous and are not subject to judicial interpretation, I respectfully but emphatically dissent.
The issue in this case is clear and simple. It is not complicated. It is simply whether the applicable provisions of Article 2, Chapter 22, Code, 1931, as amended, in force when this proceeding was instituted, prohibit a duly qualified person, holding a certificate of competency from the State Department of Mines, employed by an operator of a coal mine in this State as a section foreman, and who, as such, works under the direction and the supervision of a qualified mine foreman, from performing the duties of a fire boss, or, as otherwise stated, whether any person, even though qualified and certified by the State Department of Mines, other than a regularly employed fire boss, can perform the duties imposed by statute upon such fire boss.
For at least twenty years the established mining practice in this State has been that a section foreman who holds a certificate of competency from the State Department of Mines to act as a fire boss may perform in the same mine on the same day the duties imposed by statute upon a regularly employed fire boss. This course of conduct was recognized as valid by the coal operators, the State Department of Mines, and the Bureau of Mines of the United States Department of the Interior, is permitted by the Mine Safety Code, and has been agreed to by the United Mine Workers of America in its present contract with the coal operators. The practice has not only been *540followed for many years in the coal mining industry in this State, but has been considered and demonstrated to be both safe and practical. The decision of the majority, by placing á forced and wholly unwarranted construction upon plain and unambiguous statutory provisions, bans and prohibits this well established practice and renders it necessary for every operator of a gaseous coal mine in this State in which the men work on multiple shifts to employ regularly a fire boss to examine the mine before the start of each working shift. In brief, instead of one regularly employed fire boss to examine the mine within three hours before the employees on the first shift enter it and a regularly employed section foreman, holding a certificate of competency, who on each succeeding shift, on the same day, examines .the mine before the men on the next shift enter it, the operator of the mine, in which there are threé shifts daily, must now employ three regü-lar fire bosses to perform duties which in each instance will require no more than three hours time for each fire boss. This new and surprising requirement will not increase or promote the safety of the mine but will necessitate the employment of additional regularly employed fire bosses whose daily duties continue for only about three hours, and will substantially increase the cost of production of coal at every gaseous coal mine in this State. Because the language of the applicable sections of Article 2, Chapter 22 of the Code, 1931, as amended, is plain and unambiguous, permits of no judicial construction, and manifestly does not prohibit a qualified section foreman, who holds a certificate of competency from the State Department of Mines which entitles him to act as a fire boss, from performing those duties, I am unwilling to concur in a result which places a substantial financial burden upon the coal mining industry and the coal consuming public, and is totally devoid of any justifiable benefit to anyone other than the persons who, though unnecessary for that' purpose, must now be employed as additional fire bosses in many coal mines in this State.
The pertinent portions of Article 2, Chapter 22, Code, *5411931, as amended, are Sections 42, 43, 44, and 45, which ■deal with the qualifications and the duties of a fire boss, Sections 47, 48, 49, 50, 51, 53, 54, 55,-56, and 57, which deal with the qualifications and the duties of a mine foreman, and Section 16 which relates to mine foremen and fire bosses and requires them, in gaseous mines, to carry an approved flame safety lamp for the purpose of detecting explosive gas. Some of these sections are set forth in full in the majority opinion and they will not again be quoted in this dissent.
By various sections of the statute relating to a fire boss the owner or the operator of every coal mine in this State which is known to liberate fire damp or other dangerous gas or gases is required to employ a fire boss, or bosses if necessary, who must be a citizen and a resident of this State and hold a certificate of competency as a fire boss from the State Department of Mines. He must have such knowledge of fire damp and other dangerous gases as will enable him to detect them through the use of safety lamps and a practical knowledge of the subject of ventilation of mines and of the machinery and the appliances used for that purpose, and have had at least three years' experience in mines which liberate explosive gases. In the performance of his duties as a fire boss employed in a gaseous mine, he is required to prepare a danger signal with a red color at the mine entrance which prevents all persons except the mine owner, the operator, or his agent, in cases of necessity, from passing beyond the signal until the mine has been examined by the fire boss and by him-reported to be safe. He is also required to go into all the-working places of the mine, where gas is known to exist, or is likely to exist, and to examine it carefully with a safety lamp and to do or cause to be done whatever may be necessary -to remove from the working places all dangerous or noxious gases and to make such places safe for persons to enter as workmen. The examination and the. removal of the gases shall be made by the fire boss within-three hours before the time each shift begins to work in. the mine. The fire boss is required at each examination *542to indicate his presence by a plain mark at the face of every place examined; and when -the mine is safe he shall remove the danger signal at the mine entrance or change its color to indicate safety in order thait the employees may enter the mine and begin their work. He is also required, upon completion of his examination of the mine before each shift, to make a written record of its condition in a book which is subject to inspection by ¡the proper representatives of the State Department of Mines. In the performance of his duties the fire boss has no superior officers and all the employees working inside, the mine are subordinate to the fire boss in his particular work.
By various sections relating to a mine foreman the operator of every coal mine where five or more persons are employed in a period of twenty four hours, or his agent, must employ a competent and practical inside overseer called a mine foreman who shall be a citizen and a resident of this State with at least five years’ experience in the working, the ventilation and the drainage of coal mines. Such mine foreman must hold a certificate of competency for his position from the State Department of Mines and must pass an examination given by the department -under its rules and regulations. In mines in which the operations are so extensive that all the duties devolving upon the mine foreman can not be discharged by one man, competent persons having had at least three years’ experience in coal mines may be designated and appointed as assistants who shall act under the mine foreman’s instruction and shall be responsible for their conduct in the discharge of their duties under such designation or employment. In the discharge of his duties the mine foreman is required to keep a careful watch over the ventilation apparatus,-ithe airways, the travel ways, the pumps and the drainage of the mine. He must see that, as the miners advance their excavations, proper break throughs are made as required by law to ventilate the mine properly; that all loose coal, slate and rock overhead in the working places and along the haulways are removed or carefully secured to prevent danger to per*543sons employed in the mine; and that sufficient props, caps and timbers are furnished for the places where they are to be used. He is required to drain all water from the working places and to keep them dry as far as practical while the miners are at work. He must see that cross cuts are made as required by law for proper ventilation of the mine and that the air current is properly measured. He must cause the slopes, the engine planes, and the haulage roads to be of sufficient width to enable persons to pass moving cars with safety and must provide, in the haulways where machinery is used, a proper system of signals. He must maintain proper bore holes in a miné in which there are inflammable gasses and visit and examine daily each working place in the mine. He is also required to see that every mine liberating explosive gas is kept free of standing gas in all working places and roadways, and that any accumulation of explosive or noxious gases in any worked out or abandoned portion of the mine is removed. He must give prompt attention to the removal of all dangers reported to him by his assistants, the fire boss, or any other person and, after inspection, remove the danger at once. The mine foreman is also required to read and countersign daily all reports entered in the record book of the fire bosses.
It is pertinent to observe that though various sections of the statute specifically mention the fire boss, the mine foreman, and the assistant mine foreman, no reference is anywhere made to a section foreman. He is not a statutory. official and his only apparent connection with the mine foreman is that he is under his supervision. In that respect the section foreman does not differ from the other employees who work inside the mine under the direction of the mine foreman.
It is conceded by counsel representing the respective parties and the amicus curiae that none of the sections of the statute which relate to the fire boss or the mine foreman or his assistants contains any express provision which prohibits a section foreman or any other person who holds a certificate of competency from performing *544the duties imposed by statute upon a fire boss. It is also worthy of note that the existing established practice which has prevailed for at least twenty years, by which a section foreman, holding a certificate of competency and possessing the requisite knowledge and experience, was permitted in multiple shift mines, to act as and perform the duties of a fire boss before the men on each succeeding shift after the first shift entered the mine, was never questioned until the amicus curiae in this case, sometime during the year 1948, challenged the legality of the practice. The defendant as chief of the State Department of Mines then submitted the question to the Attorney General by letter dated January 4, 1949, and on January 15, 1949, in an opinion prepared by one of his assistants, the Attorney General proceeded to interpret the plain and unambiguous provisions of (the statute and reached the conclusion that the duties of a section foreman, referred to in the opinion as a section boss, and the duties of a fire boss were, by law, separate and distinct and that they should be performed by different persons. The opinion also stated that the respective duties of the fire boss and the mine foreman were entirely different and that, though the statute was silent on that point, neither could act in the capacity of the other. After receiving the foregoing opinion of the Attorney General, the defendant, oh January 17, 1949, issued the directive, which gave rise to this litigation, that no mine foreman, section foreman or assistant foreman, acting as such, could legally “fire boss” a mine.
With respect (to the several sections of Article 2, Chapter 22, Code, 1931, as amended, referred to in the opinion of the majority and in this dissent, the majority opinion contains these statements: “Article 2, Chapter 22, relates, in its entirety, to the operation of coal mines. Therefore, the several sections thereof must be considered in pari materia.” and “From these facts we necessarily conclude that there is no ambiguity in the statutes under consideration.” Despite the last quoted statement, however, and even though it declares that there is no ambiguity “in the-statutes under consideration”, the majority proceeded to *545interpret the various sections of the statute and, by reading into them something that all the parties concede is not contained in any of them, reached the conclusion that “Code, • 22-2, as amended, in the circumstances therein set out, requires that an operator of a coal mine employ a qualified person to serve as fire boss of the mine and a different person to serve as mine foreman therein, and forbids a mine foreman, assistant mine foreman -or section foreman to serve also as fire boss on the same day or shift in the same mine or section.” In my judgment, after the majority had concluded that there is no ambiguity in the various sections of the statutes under consideration, it should have refused to interpret or construe any of the several sections but instead, under many decisions of this Court, should have given effect to their plain and unambiguous provisions. When a statute is clear and unambiguous and the legislative intent is plain, the statute should not be interpreted by the courts. State v. Epperly, 135 W. Va. 877, 65 S. E. 2d 488; Hereford v. Meek, 132 W. Va. 373, 52 S. E. 2d 740; State ex rel. Department of Unemployment Compensation v. Continental Casualty Company, 130 W. Va. 147, 42 S. E. 2d 820; State ex rel. McLaughlin v. Morris, 128 W. Va. 456, 37 S. E. 2d 85; State v. Patachas, 96 W. Va. 203, 122 S. E. 545; Kelley and Moyers v. Bowman, 68 W. Va. 49, 69 S. E. 456; 50 Am. Jur., Statutes, Section 225. If a statute is free from ambiguity the duty of the courts is not to construe but to apply the statute, and in so doing, its words should be given their ordinary acceptation and significance and the meaning commonly attributed to them. 50 Am. Jur., Statutes, Section 238; State v. Epperly, 135 W. Va. 877, 65 S. E. 2d 488. The rule of statutory construction that statutes which relate to the same subject should be read and construed together is not applicable to statutory provisions that are clear and unambiguous. State v. Epperly, 135 W. Va. 877, 65 S. E. 2d 488; 50 Am. Jur., Statutes, Section 348; 59 C.J., Statutes, Paragraph 620(2) (a), page 1050, and Paragraph 619d (1), page 1041.
I agree with the statement of the majority that the sections of the statute under consideration are free from *546ambiguity. In consequence, I can not accept or recognize as correct the inconsistent action of the majority in subjecting the provisions of the statute to judicial interpretation or, in construing the statute, to interpolate in it something which the Legislature has omitted from it. It is crystal clear to me that the Legislature, in omitting from the statute any provision which forbids a section foreman who holds a certificate of competency and who is qualified by knowledge and experience to perform the duties of a fire boss, did not intend to prohibit any such section foreman from acting in the capacity of a fire boss. If the Legislature had so intended it would have expressed that intent by apt and appropriate language. That it did not do so indicates clearly that it intended to permit such section foreman to act as a fire boss and that, with knowledge of its existence, it recognized the established practice, which enabled a section foreman so to act, as valid and proper.
If, however, the sections of the statute under consideration should properly be regarded as ambiguous and subject to judicial interpretation, the construction placed upon them by the majority is wholly unjustified and clearly erroneous. If the statute is to be interpreted some consideration should be given to the rule of contemporaneous construction and to the rule which requires that, when a statute is susceptible of two permissible constructions, one of which leads to manifest hardship and the other to equity and fairness, the equitable and fair construction should be adopted. Numerous decisions of this Court recognize and sustain each of the foregoing rules of statutory construction; but in arriving at its conclusion the majority disregards and ignores both of those rules.
“A contemporary exposition of a statute, uncertain in its meaning, recognized and acquiesced in, for a long period of time, by the officers charged with the duty of enforcing it, the courts, the Legislature and the people, will be adopted unless it is manifestly wrong.” Point 4, Syllabus, State v. Davis, 62 W. Va. 500, 60 S. E. 584, 14 L. R. A., N. S., 1142. For various statements of the rule of contemporary construction of an ambiguous statute *547and its application or recognition by this Court in prior decisions see State ex rel. Ballard v. Vest, 136 W. Va. 80, 65 S. E. 2d 649; Wilson v. Hix, 136 W. Va. 59, 65 S. E. 2d 717; Elite Laundry Company v. Dunn, 126 W. Va. 858, 30 S. E. 2d 454; State ex rel. Brandon v. The Board of Control, 84 W. Va. 417, 100 S. E. 215; State v. Harden, 62 W. Va. 313, 58 S. E. 715, 60 S. E. 394; Mann v. Mercer County Court, 58 W. Va. 651, 52 S. E. 776; Daniel v. Simms, 49 W. Va. 554, 39 S. E. 690. It is obvious that the Legislature, which is presumed to be cognizant of the long established practice which permitted a qualified section foreman holding a certificate of competency to act in the capacity of a fire boss, which practice was recognized and approved by the State Department of Mines which is charged with the enforcement of the mining statute, adopted and recognized a construction of the statute which authorized such practice. In construing an ambiguous statute consideration and weight should be given by the court to the construction placed upon the statute by the Legislature. State ex rel. Department of Unemployment Compensation v. Continental Casualty Company, 130 W. Va. 147, 42 S. E. 2d 820; Beatty v. Union Trust and Deposit Company, 123 W. Va. 144, 13 S. E. 2d 760; 59 C. J. p. 1033. In Smith v. Bryan, 100 Va. 199, 40 S. E. 652, the Supreme Court of Appeals of Virginia used this language: “So, also, the practical construction given to a statute by public officials, and acted upon by the people, is not only to be considered, but, in cases of doubt, will be regarded as decisive. * * *. The Legislature is presumed to be cognizant of such construction, and, when long continued, in' the absence of legislation evincing a dissent, the courts will adopt that construction.. Contemporaneous construction, and official usage for a long period by persons charged with the administration of the law, have always been regarded as legitimate aids in the construction of statutes. Sutherland on Stat. Con., sec. 309.” See also Miller v. Commonwealth, 180 Va. 36, 21 S. E. 2d 721; Hunton v. Commonwealth, 166 Va. 229, 183 S. E. 873; Commonwealth v. Stringfellow, 173 Va. 284, 4 S. E. 2d 357; Commonwealth v. Dodson, 176 Va. 281, 11 S. *548E. 2d 120. Despite the force of the foregoing judicial pronouncements the majority has given no consideration or weight to the manifest attitude of the Legislature with respect to the meaning and the effect of the various provisions of the sections of the statute which relate to a fire boss and to a mine foreman. By its recognition of the practice, which until the present decision has permitted a qualified section foreman holding a certificate of competency to act in the capacity of a- fire boss in mines in which multiple shifts were used in their operation, the Legislature has placed a construction upon the statute which authorized such practice.
If there are two permissible constructions of the statute one of which works manifest injustice and the other of which results in equity and fairness, the equitable and fair construction of the statute should be adopted. With respect to that rule this Court, in Point 2 of the syllabus in Hasson v. City of Chester, 67 W. Va. 278, 67 S. E. 731, uses this language: “Of two permissible constructions of a statute, one working manifest injustice and the other-equity and fairness, the latter is to be adopted, upon the presumption that the legislature did not intend the results flowing from the former.” It is obvious that the construction now placed upon those sections of the statute is unjust and unfair in that it imposes a substantial burden upon the coal mining industry and the coal consuming public in this State at the expense of benefiting only a number of additional and unnecessary employees.
In my opinion the confusion which obviously exists in the present decision is due in large measure to the effort to extend unduly the effect of section 45 which provides that in the performance of the duties devolving upon the fire bosses they shall have no superior officers but that all employees working inside the mine shall be subordinate to them in their particular work. In order, however, to give this statutory provision full force and effect it is not necessary to distort the meaning of the statute by resorting to a false or an unwarranted construction. Under that section of the statute, a section foreman, when acting in the capacity of a fire boss is, within the meaning of the *549statute, a fire boss, and, while acting as such, he has no superior officer in the performance of the duties in which he is then engaged and all the employees working inside the mine are subordinate to him not as a section foreman hut as a fire boss.
The theory upon which the majority bases its decision, that the positions of fire boss and section foreman, erroneously treated as a mine foreman, are incompatible, is ■closely related to the argument, advanced in support of the ruling of the Attorney General, that if a section foreman, who works under the direction of the mine foreman, •or a mine foreman, is permitted to act as a fire boss the safety of the mine would be lessened because a section foreman or a mine foreman is primarily interested in the production of the mine. This argument is wholly unsound. It is based on the false assumption that the only important objective of the mine foreman is the furtherance of production and it ignores the various statutory provisions which impose upon him numerous duties involving the safety of the mine. He is just as much concerned with the subject of safety in the discharge of his statutory duties as is the fire boss in the performance of the duties with which he is charged. Section 6 expressly requires the mine foreman, in case of accident to a ventilating fan or its machinery which seriously interrupts the ventilation of the mine, to order the men to withdraw immediately- from the mine and not allow them to return to their work until the ventilation has been restored and the mine has been thoroughly examined by him, an assistant mine foreman, or a fire boss and reported to be safe. It is unreasonable to assume that a person employed as a mine foreman would disregard his plain duty, or that either he or a section foreman in an operating coal mine would become so eager to increase the production of the mine that he would neglect or ignore the safety of the place in which he works or that by acting as a fire boss he would risk his employment and endanger his own life in order to increase the production of his employer at the expense of the safety of the mine in which he is required to be regardless of the character of the work in which he *550may be engaged, or that a section foreman, while acting as a fire boss, would be less concerned about the safety of the mine, the workmen, and himself than a regularly employed fire boss. The State Department of Mines issues the same type of certificate to a mine foreman and a fire boss. A mine foreman must have had five years’ experience and a fire boss three years’ experience in mines in which each is permitted to serve in his official capacity,; and a competent section foreman who holds a certificate which authorizes him to perform the duties of a mine foreman or of a fire boss is as well qualified to discharge the duties of either position as a regularly employed mine foreman or a regularly employed fire boss. If the question of safety of the mine and the men who work in it were involved, I should be disposed to go a long way to adopt a construction which would promote or secure safety in the coal mining industry. The occupation of coal mining is fraught with hazard and the man who works in a coal mine is in constant danger. He deserves and should be given the utmost protection that can possibly be provided. But the issue here is not one of safety for no one contends that the practice of permitting a qualified section foreman, who holds a certificate of competency, to act as a fire boss in mines in which multiple shifts are employed renders the mine less safe than if the duties' of a fire boss were performed by a regularly employed fire boss. In fact, it seems clear that the examination of the mine or a section of it by a competent and experienced section foreman, acting as a fire boss, who has worked in the area which he examines immediately before his shift ends and before the next shift begins instead of by a fire boss who enters the mine when he begins his examination, tends to promote rather than to jeopardize the safety of the mine and of those who work in it. At any rate, if a mine foreman, a section foreman, or any other person, in his zeal to increase production, becomes indifferent to or careless of the safety of the mine or his own life and the lives of other employees, the remedy, in a situation of that nature, is not tortured statutory construction but prompt and effective termination of his em*551ployment regardless of the position or the capacity in which he acts.
The majority cites and stresses the decisions of this Court in the cases of Williams v. Thacker Coal and Coke Company, 44 W. Va. 599, 30 S. E. 107, 40 L. R. A. 812; Crockett v. Keystone Coal and Coke Company, 75 W. Va. 476, 84 S. E. 948; Bralley v. Tidewater Coal and Coke Company, 66 W. Va. 278, 66 S. E. 684, 40 L. R. A. (N.S.) 945, 19 Ann. Cas. 510; Squilache v. Tidewater Coal and Coke Co., 64 W. Va. 337, 62 S. E. 446; McMillan v. Middle States Coal and Coke Company, 61 W. Va. 531, 57 S. E. 129, 11 L. R. A. (N.S.) 840; Gartin v. Draper Coal and Coke Company, 72 W. Va. 405, 78 S. E. 673; Strother v. United States Coal and Coke Company, 81 W. Va. 657, 95 S. E. 806; State ex rel. Money Service Company v. Stuart, 112 W. Va. 370, 164 S. E. 409; Graham v. Newburg Orrel Coal and Coke Company, 38 W. Va. 273, 18 S.E. 584; Haptonstall v. Boomer Coal and Coke Company, 78 W. Va. 412, 89 S. E. 723; Cheeks v. Virginia-Pocahontas Coal Company, 74 W. Va. 553, 82 S. E. 756; Sprinkle v. Big Sandy Coal and Coke Company, 72 W. Va. 358, 78 S. E. 971; Peterson v. Paint Creek Collieries Company, 71 W. Va. 334, 76 S. E. 664, to sustain its view that the positions of mine foreman and fire boss, being separate and distinct, are incompatible and, erroneously considering a section foreman as a mine foreman or assistant mine foreman, concludes that the statute forbids a section foreman, which it does not even mention, to act as or to perform the duties of a regularly employed fire boss. Even if it be conceded that a mine foreman and a fire boss are separate and distinct positions and that one person can not regularly or permanently hold both positions at the same time, it does not follow that a duly qualified section foreman, who is not a mine foreman, may not act as a fire boss; and any incompatibility that may exist between the duties of a mine foreman and the duties of a fire boss forms no basis or support for the conclusion reached by the majority that a qualified section foreman may not act as a fire boss. The questions raised and determined in the cases just cited were different from the issue presented in the case at bar. In consequence, those decisions *552have no present application, shed little if any light upon the problems involved in this case, and require no extended comment or discussion. The’ Haptonstall case and the Gartin case indicate that the positions of mine foreman and mine superintendent, who represents the operator, are incompatible in certain respects; but that question has no bearing upon the point at issue in this suit. Neither of those cases, nor any of the other cited cases referred to in the majority opinion, holds or intimates that a section foreman who is the holder of a certificate of competency can not act as a fire boss; and nothing appears in any of the cited cases which supports or justifies any such conclusion.
The majority opinion contains these statements: “Section 53 requires that in the event ‘the mine foreman or his assistants * * * find a place to be in a dangerous condition, they shall not leave the place until it is made safe, * * *.’ How can a mine foreman perform such duties and at the same time fire boss a mine? Section 57 requires that a mine foreman shall each day ‘read carefully and countersign with ink’ reports of the fire boss. Would the Legislature have required a mine foreman to read and ‘countersign’ his own report?” Of course these questions are entirely immaterial to the issue whether a section foreman, who is not a mine foreman, may act as a fire boss, and an answer to any of them is wholly unnecessary in the proper decision of this case. As to the inquiry whether the Legislature would require a mine foreman to read and countersign his own report the answer is that this action of the mine foreman does not constitute an approval of such reports but is merely an acknowledgment that he has knowledge of their contents. By admitting such knowledge the mine foreman does not in any manner whatsoever countersign his own report whether it is made by a regularly employed fire boss or by a section foreman who acts in that capacity. The act of the mine foreman in reading and countersigning the reports made by a fire boss, whether he is regularly employed, or whether he is a section foreman who by virtue of his certificate is qualified to act in that capacity, has nothing to do with the authority or the lack of authority of a quali-*553fled section foreman, under the statute, to perform the duties of a fire boss, is of no importance, and has little if any bearing upon the determination of that question.
The reasoning upon which the decision of the majority rests is that the positions of mine foreman and fire boss are incompatible and that one person can not hold both those positions at the same time. In dealing with that subject, however, the majority loses sight of the only issue in this case which, as already pointed out, is whether a qualified section foreman who holds a certificate of competency, may act as a fire boss and examine the mine before the beginning of the next succeeding working shift. The issue of incompatibility between the positions of mine foreman and fire boss is not raised by any party by any pleading and of course does not arise in this case. No one contends that any person connected with the plaintiffs can or wants to perform the duties of a mine foreman and of a fire boss at the same time and no such question is presented for decision. Yet the majority, having raised that question on its own initiative, decides it by holding that the statute, though silent, forbids a mine foreman, assistant mine foreman or section foreman to serve as a fire boss on the same day or shift in the same mine or section, and in so doing erroneously converts a section foreman, whom the statute does not even mention, into a mine foreman. Though the statute does not refer to or classify a section foreman, he suddenly becomes a mine foreman by judicial fiat when in fact he is neither a mine foreman nor a fire boss but an inside employee who, like other inside employees, works under the direction and the supervision of the mine foreman. If a section foreman, a mere inside employee, is to become a mine foreman, a statutory official, the transformation should, in my judgment, be the result of legislative rather than judicial action.
It should be noted that after the decision in this case but before this dissent was written the 1951 Legislature, at its regular session, amended Article 2, Chapter 22, Code, 1931, as amended, by enacting Chapter 127, Article 2, Section 46a, which authorizes any person who holds a cer*554tificate of competency from the State Department of Mines to perform the duties of a fire boss, but, of course, this dissent relates to and is based upon the statute as it existed before the 1951 amendment.
For the reasons stated, I would affirm the judgment of the circuit court.
Judge Fox concurs in the views set forth in this dissent.