This was a prosecution instituted by the State against the defendant in the Sullivan Circuit Court, by affidavit of the prosecuting attorney, under the act of 1907 (Acts 1907, p. 334, §§8582, 8583 Burns 1908), the charging part of which affidavit was as follows: ‘ ‘ That at and in Sullivan county in the State of Indiana, on July 14, 1908, the defendant was then and there the operator of a coal mine at and in Sullivan county in said State, known as Vandalia Mine No. 10, which mine was then and there on said
The State demurred to this answer for want of a defense to the charge in the affidavit. The demurrer was overruled, the State excepted, and, refusing to plead further, the defendant was discharged, and the ruling on the demurrer to this plea is assigned as error.
Section one of the act (§8582, supra) provides: “That it shall be unlawful for any owner, lessee, agent or operator of any coal mine within the State of Indiana, to make, dig, construct, or cause to be made, dug or constructed any entry or trackway after the taking effect of this act, in any coal mine in the State of Indiana where drivers are required to drive with mine car or cars unless there shall be a space provided on one or both sides continuously of any track or tracks measured from the rail, in any such entry of at least two feet in width, free from any props, loose slate, debris or other obstruction so that the driver may get away from the car or ears and track in event of collision, wreck or other ac
Section two (§8583, supra) makes a violation a misdemeanor punishable by fine, not exceeding $200, with possible imprisonment, not exceeding sixty days, in the county jail.
1. The State urges here, first, that the plea or answer is bad in that it does not disclose that the mine is in the block coal field, or devoted in whole or in part to mining block coal; that, of two or more possible constructions, that one is preferable which will rescue the act from unconstitutionality, and that the proviso of the act is a constitutional exemption when applied solely to the block coal fields, because of natural distinctions upholding that classification. It may be premised that, of two or more possible constructions of a statute, that one will be adopted, if reasonable, which will rescue the act from ‘ unconstitutionality. State v. Lowry (1906), 166 Ind. 372, 4 L. R. A. (N. S.) 528.
2. Also, that if the elimination of an invalid portion of an act will leave the remainder complete in itself, sensible and capable of being executed against all alike, the remainder will be enforced. Swartz v. Board, etc. (1902), 158 Ind. 141; Smith v. McClain (1896), 146 Ind. 77; City of Indianapolis v. Bieler (1894), 138 Ind. 30.
3. The negative of all provisos, exceptions or exemptions in the clause defining the offense, which are affirmative elements in the offense, must be averred. But if the offense is defined without the proviso or exception, and even though in the same section with the enacting clause or clause creating the offense, it does not require negation. 1 Bishop, Crim. Proc. (4th ed.), §§636-639. An examination
4. 5. 6. It must be conceded that the act is complete without the proviso, that the latter may be eliminated without impairing or affecting the operation of the act as a whole, that it would still be complete in itself and capable of being executed and of general operation, and, that being true, the act is not open to the objection of being unconstitutional as an entirety, unless it be that the proviso is so intimately connected with the enacting clause as clearly to indicate that it was intended to restrain its operation. We are required as a primary rule of construction to put ourselves in the position of the legislature in the enactment of statutes, and endeavor to arrive at its intention. Provisos and exceptions are similar. They are intended to'restrain the enacting clause, to except something which would otherwise be within it, something en-grafted upon a preceding enactment, intended to take special cases out of a general class, and the general intent and purpose of an enacting clause will be controlled by the particular intent subsequently expressed. 1 Bishop, Crim. Proc. (4th ed.), §§636-639.
7. Taking the enacting clause and the proviso together, what are we to understand that the legislature intended ? Clearly that the enacting clause should not apply in any way to “geological veins of coal numbers three and four commonly -known as the lower and uppér veins in the block coal fields.” The particular designation of the veins in the block coal fields discloses the reasons operating in the minds of the legislators. The relation of the proviso to the enacting clause and the subject-matter of each must make it quite manifest that the enacting clause was not intended to be operative as to any class of coal mining, unless the block coal fields were not embraced, and we must conclude that the act was intended to be applicable in its entirety, so as to
It is contended by the State that one of the distinctions upon which this classification is properly based is the difference in thickness of the bituminous veins, and the block veins, the latter being an average of less than four feet in thickness, while the bituminous veins average over five feet, and upon the difference in the number of persons employed in the two fields; that in 1906 thirty-five block mines in the State, with 1,978 employes, produced a total of 746,760 tons of coal, while 175 mines, with 18,286 employes, produced 10,675,357 tons of bituminous coal.
8. Part of the duties belonging to the Inspector of Mines is to ascertain and report the number and thickness of the veins of coal now, or hereafter to be, worked, and their respective depths below the surface ; the kind or quality of coal, how mined, whether by shaft, slope or drift; the number of mines operated in each county, the owners thereof, number of men employed in each, the aggregate yearly production, an estimate of the capital employed, etc., and report to the State Geologist annually, and he, in turn, to the Governor. §§8590-8593, 9338 Burns 1908, Acts 1905, p. 65, §§20-23, Acts 1889, p. 14, §9. These statistics are official public documents, and we take judicial notice of them. Cary v. State (1884), 76 Ala.
9. We therefore take notice of the different geological veins of coal in each county, and, in addition to the statistical matters heretofore stated, of the relative depths from the surface of the earth, and know that block coal is found at less than one-half the average depth of bituminous coal.
We find the geological strata numbered from one—the lowest—to seven—the highest one. We find block coal only in strata No. 3 and No. 4, known as lower and upper block, but we find bituminous coal in all the strata. In Clay county the bituminous veins—a term applied to the field— are No. 3, No. 4, No. 5 and No. 6. Upper and lower block are not the same as No. 3 and No. 4 bituminous. The average depth from the surface of the block field in the eastern part of Clay county is less than ninety feet, and the average depth in the bituminous field in the western part of that county is about seventy-five feet. In Sullivan county the average depth of the bituminous veins is more than 165 feet. It will thus be seen that the matter cannot be determined upon the mere basis of the geological strata.
11. The statute makes the distinction or exemption apply to block mining only, so that the act applies to all bituminous fields alike. Is it then an arbitrary or capricious classification to require conformity to the act by the bituminous operators and not by the block operators ? The rule of equal protection of law only requires that persons similarly situated shall be treated alike, or that the law shall be applicable alike to all who are in the same class. Equal protection of the law in each particular case means such an exercise of the powers of government as the settled maxims of law permit and sanction, and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one being dealt with belongs. 2 Story, Constitution (5th ed.), §1945.
13. The legislature had the right, and we must presume exercised it, of learning for itself the reasons which impelled it to act, and we cannot say that it did not find substantial reasons for its conclusions. Unless we can say that the act is unreasonable, we would not be authorized to overthrow it, for a very large measure of authority is vested in the legislature upon that subject. McLean v. Arkansas (1909), 211 U. S. 539, 29 Sup. Ct. 206; Barks v. State (1902), 159 Ind. 211, 59 L. R. A. 190; Chandler Coal Co. v. Sams (1908), 170 Ind. 623.
It was said by this court in Indiana R. Co. v. Calvert (1907), 168 Ind. 321, 10 L. R. A. (N. S.) 780: “Rights for the most part are relative, and the mere fact that a statute or ordinance, which may reasonably be regarded as conducive to the welfare of the public, regulates a trade or business or lays some burden upon it, does not render it unconstitutional.” The following eases are in point: Slaughter House Cases (1872), 16 Wall. 36, 21 L. Ed. 394; Munn v. Illinois (1876), 94 U. S. 113, 24 L. Ed. 77.
14.
16. In Holden v. Hardy (1897), 169 U. S. 366, 18 Sup. Ct. 383, 42 L. Ed. 780, the court upheld the constitutionality of an act limiting the hours of labor in underground mines and smelting works, solely upon the ground of the unwholesomeness of the labor. In Davis Coal Co. v. Polland (1902), 158 Ind. 607, 92 Am. St. 319, the court, in passing upon a statute requiring certain safeguards for employes of coal mines, said, in substance: Employments differ as to hazards; each has its separate dangers which must be guarded against in an appropriate way. To classify legislation by distinctions that naturally inhere in the subject-matter is not to indulge in class legislation. A law is general and uniform, if all persons in the same circumstances are treated alike. The provisions with respect to the operation of mines in the various states for the protection of health, life and limb are extensive and varied, and yet their constitutionality is scarcely questioned. Another familiar example is that of fire escapes and fire appliances upon hotels, theatres, and other buildings, above certain heights, in which people congregate or labor, and in the requirements for guarding machinery. The classification of cities by population for the purpose of different local self-government, though the difference may consist only in a few less than the classification, is upheld. Evansville, etc., R. Co. v. City of Terre Haute (1903), 161 Ind. 26; Campbell v. City of Indianapolis
17. Legislative regulation of the use of private property must be presumed to be reasonable and necessary, unless the contrary appears from facts of which courts will take notice, and the constitutional right of the citizen to use his property without regulation is plain, unless the public health or protection to life and limb requires that such use be regulated; but if such business, to the legislative mind, requires regulation, the private right must yield. The case of State v. Richcreek (1906), 167 Ind. 217, 5 L. R. A. (N. S.) 874, 119 Am. St. 491, and cases cited, are instructive and in point here. It is true that the legislature may not, even under the police power, exercise purely arbitrary authority, but every one holds his property and its use under the implied obligation that its use shall not be injurious to a community, or detrimental to health, or a hazard to the safety of those employed in its use.
18. Suppose we had a case where the mining of bituminous coal was carried on many hundreds of feet below the surface instead of less than an average of one hundred feet in ease of block coal, could it be contended that the greater precautions to protect life, health and limb could not be imposed on the deep mine operators, as to light, ventilation, means of escape and the like, than in case of those of the lesser depth ? We think not.
That being true, the case before us is one differing only in degree, and not in kind.
It results that the act is constitutional, the affidavit is good, and appellee’s answer was not good, for failing to bring himself within the exemption of the proviso.'
The judgment is reversed, with instructions to the court below to sustain the demurrer to the answer, that appellee be required to plead over, and for further proceedings in accordance with this opinion.