Burton v. Union Pacific Coal Co., 107 P. 391

107 P. 391 | Wyo. | 1910

Lead Opinion

Potter, Chief Justice.

This cause is here upon reserved questions, involving the construction and application of certain provisions of the State Constitution relating to an action for the death of a perspn caused by the wrongful act, neglect or default of another. The suit is brought by Emma Burton, as adminis-tratrix of the estate of Joseph Burton, deceased, against the Union Pacific Coal Company. There are two causes of action stated in the petition, the second not being here material. The first cause of action alleges that the death of Joseph Burton, plaintiff’s intestate, was caused by injuries received while employed in a coal mine owned and operated by the defendant at Hanna, in this State, as the result of certain,alleged willful violations by the defendant of the statute relating, to the operation of coal mines, and other wrongful acts and defaults on the part of the defendant. '

It is alleged that on account of the death of .said intestate, so caused, the plaintiff, as the personal representative of the said deceased intestate, and his heirs at law and next of kin represented by her, have been damaged in the sum of twenty thousand dollars. By reason of the facts alleged in the second cause of action damages are claimed in the sum of fifteen thousand dollars, and there is a general prayer for judgment for the sum of thirty-five thousand dollars. A motion was filed by the defendant to strike out all of the claim for damages and judgment in excess of five thousand dollars, on the ground that a judgment for any sum above that amount would be contrary to law. Thereupon, upon motion of the plaintiff, the defendant-consenting thereto, the District Court ordered that the following questions arising in the cause upon said motion be reserved and se.nt to this court for its decision.

“i. Can the plaintiff in this action recover more than the sum of five thousand dollars upon the first cause of action set forth in the petition.?”

“2. Does the statutory limitation limiting the amount of recovery in case of death to five thousand dollars apply and limit the recovery that could be had upon the first cau^e of action in this cause?”

“3. The Constitution of 'this State having provided in Section 2 of Article IX thereof, ‘That the Legislature shall provide by law for the proper development, ventilation, drainage and operation of all mines in this State/ and also having provided for a right of action for injuries in Section 4 of said Article IX and that the Legislature shall provide by law at its first session for the manner in which-a right of action in respect thereto shall be enforced; and the Legislature of this State having provided for the recovery of damages at the first session thereof held after the adoption of the Constitution of this State, to-wit, in Section 17 of Chapter 80 of the. Session Laws of Wyoming for 1890-1891 — the same now being Section 2582 of the Revised Statutes of Wyoming, 1899, — does such constitutional and statutory provision operate as a removal of the limitation of five thousand dollars recovery of damages having occurred and having been sustained as is alleged in the first cause of action of said petition, in the operation of the coal mine of said defendant which it owned at Hanna, in the County of Carbon, in the State of Wyoming, on the 28th day of March, A. D. 1908, and prior to said date last aforesaid.”

“4. Do the provisions of said Sections 3448 and 3449 of said Revised .Statutes of this State control the disposition of said motion of said defendant in this cause or is the disposition of said motion to be governed by the provisions of said Section 2582 of said Revised Statutes of this State?”

The statutory provisions now found in Sections 3448 and 3449, Revised Statutes of 1899, were enacted in 1871 by the Legislature of the Territory, and read as follows:

“Section 3448. Whenever the death of a person 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; then, and in every such case, the person who, or the corporation which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to murder in the first or second degree, or manslaughter.”

“Sec. 3449. Every such action shall be brought by, and in the name of, the personal representative of such deceased person; and • the amount recovered in every such action shall be distributed to the parties and in the proportions provided by law, in relation to the distribution of personal estates left by persons dying intestate. In every such case, the jury shall give such damages as they shall deem fair and just, not exceeding five thousand dollars, and the amount so recovered shall not be subj ect to any debts or liabilities of the deceased;. Provided, That every such action shall be commenced within two years after the death of such deceased person.”

In Article IX of the Constitution, the article being entitled “Mines and Mining,” it is provided as follows:

“Sec. 2. The Legislature shall provide by law for the proper development, ventilation, drainage and operation of all mines in this state.”

“Sec. 4. 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, and in all cases in this state, 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, the person who, or the corporation which would have been liable, if death had not ensued, shall be liable to an action for damages notwithstanding the death of the person injured, and 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.”

Article X of the Constitution is entitled “Corporations,” and in Section 4 of that article it is provided: “No law shall be enacted limiting the amount of damages to be recovered for causing the injury or death of any person.”

At the first session of the State Legislature (1890-91) an act was passed entitled “An act creating the office of' State Inspector of Coal Mines, fixing said inspector’s salary and prescribing his duties; also providing for the proper ventilation of coal mines and for other purposes; and providing for appropriating moneys for a contingent fund for-said office.” The act was incorporated in the subsequent revision of the statutes as a separate chapter, and Section 17 of the act became Section 2582 of the Revised Statutes, of 1899, reading as follows:

“Sec. .2582. Lor any injury to person or property occasioned by any violation of this chapter, or any willful failure to comply with its provisions, a right of action against-the party at fault shall accrue to the party injured for the-direct damages sustained thereby, and in any case of loss of life, by reason of such violation or willful failure, a right of action against the party at fault shall accrue to the administrator of the estate of the person whose life shall be lost,, for like recovery of damages for the injuries sustained; Provided, That nothing in this section shall be so construed as to prevent the recovery of any lawful damages against the person or company operating mines if said company should be found in fault or shall have contributed to any accident by means of carelessness on their part; and Provided, further, That in no case shall the State be liable for damages under this chapter.”

Substantially the same provisions now found in Section 2582 were contained in an act relating to- the operation of coal mines passed in 1886 by the Legislature of the-Territory. (Rev. Stat. 1887, Sec. 1655.) By an act approved February 24, 1909, Section 3449 of the Revised Statutes, 1899, above quoted, was amended -and re-enacted, the only material change being the omission of the words “not exceeding five thousand dollars,” so that, as. amended, the statute contains no fixed limitation upon the amount of recovery. It was provided in Section 2 of the' amendatory act that nothing in said act contained “shall be so construed as - to discharge, release, or repeal any ■cause of action or right of action existing prior to the taking effect of this act, or any such action shall be brought, maintained, heard, tried and determined, and shall proceed to trial, judgment and execution, the same as if this act had not been passed.” The injury and death for which the action is brought is alleged to have occurred on March 28, 1908, and it is conceded that the questions before us are to be determined upon the law as it existed at that time; and therefore Section 3449 is to be considered as it existed in March, 1908, at that time containing the provision limiting the amount of recovery in actions controlled by it to five thousand dollars.

The constitutional provisions aforesaid, as relating to 'Sections 3448 and 3449, were 'considered by this court in Mestas v. Diamond Coal & Coke Co., 12 Wyo. 414, 76 Pac. 567, and it was held that the provision of Section 3449 limiting the amount of recovery was not repugnant to the Constitution, but that it was continued in force by virtue of Section 3 of Article XXI of the Constitution' which provides: “All laws now in force in the Territory of Wyoming, which are not repugnant to this Constitution, shall remain in force until they expire by their own limitation, or be altered or repealed by the Legislature.” Generally stated, the ground of that decision was that Section 4 of Article X of the Constitution declaring that “no law shall be enacted limiting the amount of damages to be recovered for causing the injury or death of any person” prohibited only future legislation, and did not, therefore, repeal or abrogate the statute previously enacted. The suit had been instituted February 21, 1903, by an administrator to recover damages on account of the intestate’s death through the alleged negligence of the defendant, while employed in a coal mine owned and operated by the defendant, said death having occurred, as alleged, February 25, 1901. The case came to this court upon reserved questions arising upon a general demurrer to the petition, and the only questions reserved or considered were whether, either of Sections 3448 and 3449' was a valid and subsisting statute on. February 25, 1901, and whether on- that date, and at the time of the commencement of the action, there was a., statute in force in this state creating a right of action for death by wrongful act. Upon submission of the demurrer, the parties had stipulated that the only point raised was. that no statute authorized an action for the benefit of heirs and next of kin by the legal representative of a person killed by wrongful act. Section 2582 was not mentioned in. the reserved questions, nor by counsel, and it was not considered in the opinion. Counsel for each of the parties assumed that the clause in Section 3449 limiting the amount of recovery was abrogated by Section 4 of Article X of the Constitution, and the only point upon which they differed was whether or not the remainder of that Section and Section 3448 were continued in force. The contentions in-that particular are stated in the opinion. The conclusion announced was that said sections were not in conflict with, the Constitution, but were valid and subsisting statutes on February 25, 1901, and, therefore, that there was a. statute in force, at the time of the commencement of the action, creating a right of action for death by wrongful act..

Counsel for the defendant rely upon that case as decisive of the point here in controversy "for the reason that if, as thereby declared, Section 3449 with its provision limiting recovery continued in force, then it becomes necessary to construe that section and Section 2582 together, and there is nothing in the latter section inconsistent with the former with respect to the amount of recovery, but that the-only material change made in the law by Section 2582, so far as- an action in case of death is concerned, w,as to declare and provide for enforcing a right of action where the death is the result of a violation of a particular statute-by the owner or operator of a coal mine. Counsel for plaintiff do not deny the correctness of the decision aforesaid when limited to the questions that were reserved andl considered, but do deny that it is applicable to the case at bar, on the ground that the present action is brought under Section 2582, which section was not considered or involved in said decision. They say in their brief: “We do not contend that Section 3449 was repealed by what is now Section 2582, except as to cases arising for damages for injuries to persons in coal mines, like the case at bar. It must be assumed that the question raised by these reserved questions now before this court was not settled by the Mestas case, as that question was not then presented to this court.”

To more definitely state the question here presented counsel for both parties agree that the several reserved questions are finally resolved into one, viz: “Is Section 3449 in force as to this case so as to limit the amount that may be recovered for the alleged injuries to the decedent resulting in his death to any reasonable sum not exceeding five thousand dollars?” But they do not agree upon the proposition that the first cause of action is brought or is maintainable under Section 2582. It is insisted on the part of the plaintiff that upon all the allegations of that cause of action the case is brought within said section; that as to the alleged acts and defaults other than those relating to a violation of the provisions 'of the coal mining statute the right of action is given by that clause in Section 2582 reading as follows: “Provided, That nothing in this section shall be so construed as to prevent the recovery of any lawful damages against the person or company operating mines if said company should be found in fault or shall have contributed to any accident by means of carelessness on their part.” Counsel for defendant, on the other hand, contend that the clause thus quoted neither creates nor provides for enforcing a right of action, but merely saves the preceding provisions of the section from being construed so as to defeat an action if otherwise maintainable. Further, they contend that no such violation of the statute relating to coal mines is alleged as to authorize a recovery under Section 2582, and that therefore the only statutory provisions authorizing this particular action are those found in Sections 3448 and 3449.

Whether by any of the provisions of Section 2582 an ■action for damages in case of death of a person injured in a coal mine is given or provided for in case of negligence generally, or only where the death is the result of a violation of, or a willful failure to comply with, the provisions of the chapter in which the section is found, is a matter purely of statutory construction involving no constitutional question, and therefore we have no authority upon this hearing to decide the question, since only constitutional questions are permitted to be reserved. (L,aws 1903, Ch. 72.) Again the scope of our inquiry respecting the effect of the allegations of the petition is limited to ascertaining whéther the questions reserved arise in the action, so as to authorize their presentation to this court for decision. Beyond that, the sufficiency of the allegations to support the action under Section 2582 as against a proper objection is immaterial, so far as this proceeding is concerned in the present state of the pleadings. We are satisfied that there is at least sufficient in the petition to require a consideration of the question whether the action, so far as it may properly be brought under Section 2582, is controlled as to the amount of recovery by Section 3449. The petition discloses an intention, we think, to charge a liability on account of the violation of the provisions of the statute referred to in Section 2582, and it is not. for us to decide at this time whether such a liability is sufficiently charged or not. Owing to the necessity of eliminating these two questions the disputed question within our present jurisdiction to be determined may be stated to be whether, so far as this action is maintainable under Section 2582, it is controlled by the provision of Section 3449 limiting the amount of recovery. Although there does not seem to be any controversy respecting the application of Section 3449, except so far as the action is found to be maintainable under' Section 2582, the question seems also to be involved whether the amount of recovery is controlled by Section 3449 in case upon the facts alleged, the,right to recovery will depend not upon Section 2582 but solely, upon Sections 3448 and 3449-

We do not think the case of Mestas v. Diamond Coal & Coke Company, supra, is to be regarded as necessarily decisive of the question before us, so far at least as the question relates to the right of action under Section 2582. That section was not called to the court’s attention in the case referred to and was not considered, but however broad the reasoning in the case, the decision was confined to the question whether Sections 3448 and 3449 were continued in force, notwithstanding the constitutional provisions aforesaid, and, therefore, authorized an action to be maintained for death by wrongful act. We perceive no reason for departing from the conclusion reached in -the case, and we, therefore, adhere to it, but think it should be understood as applying to actions sustainable alone under Sections 3448 and 3449, and, if necessary, to be so quali-' fied, leaving other questions concerning the application and effect of those sections to be .decided as they arise. It may therefore be said at this point that so far as this action depends for a right to recover upon Sections 3448 and 3449, the amount of recovery will be controlled by the limitation contained in the last named section.

Without attempting the review in extenso the reasoning upon which said limitation was .held-not repugnant to the Constitution, we think it may aid the discussion of the other ‘ question in the case to consider briefly the.situation where the application of the two sections last aforesaid is proper independent of other statutory provisions relating to the same or a similar remedy. Section 4 of Article IX of the Constitution declares the liability of a party in fault to an • action for damages in case of the death of a person caused by wrongful act, neglect or default, such as would have en-, titled the party injured, if death had not. ensued, to main-, tain an action for damages in respect thereof, but the,Constitution .does not provide the method of enforcing such liability, that matter being expressly left to the Legislature; and, therefore, a' statute providing the manner in which the right of action so declared shall be enforced is essential to render the section in that particular effectual. Standing alone the section referred to would not prevent a statutory limitation not obviously unreasonable upon the amount of recovery, for it declares merely a liability “to an action for damages.” When that provision, upon the admission of the State, became a part of the fundamental law, the provisions now contained in Sections 3448 and 3449, having been previously enacted by the Legislature of the Territory, continued in force, except so far as modified or repealed by subsequent legislation, unless repugnant to the Constitution. The only provision of those sections suggested in this or the Mestas case, supra, as obnoxious to the Constitution is the one in Section 3449 limiting the recovery to five thousand dollars. It is clear that such provision was not repugnant to Section 4 of Article IX, for the reason above mentioned.- The repugnance if any between it and the Constitution would only arise in consequence of Section 4 of Article X of that instrument, which declares that' “no law shall be enacted limiting the amount of damages to be recovered for causing the injury or death of any person.” As clearly shown, we think, in the'Mestas case, that provision operated only upon future legislation, and hence, so far as Section 3449 was in force at the time, it continued in force until further action by the Legislature either amending or repealing it. Upon and after the taking effect of the Constitution, therefore, in the absence of a statute making a different provision under which an action of the character now being considered might be brought and maintained, such an action would be controlled, including the amount of recovery, by Sections 3448 and 3449.

It is, however, contended by counsel for plaintiff that as to death resulting from injuries received in a coal mine, the provision limiting recovery had been repealed, or deprived of its force, by the act of 1886, which in Section 17 (Rev. Stat. 1887, Sec. 1655), contained substantially the same provisions now found in Section 2582, and that in respect of a death so occurring no statutory limitation upon the amount of recovery was in force when the Constitution went into effect. Whether the act of 1886 had any such effect or not would depend upon the construction to be given the provision declaring a right of action “for the direct damages sustained” in favor of the party injured, and a right of action in case of death in favor of the administrator “for like recovery of damages for the injuries they shall have sustained,” referring to an injury occasioned by a violation of, or a willful failure to comply with, the provisions of the act; and concerning other negligent acts or defaults, if any right of action therefor was conferred by the act, which point we do not decide, the effect upon the earlier statute in the respect stated, would depend upon the meaning of the words “any lawful damages” as used in the section referred to. In other words, the question would be whether an action was authorized for the recovery of damages by the use of language inconsistent with the provision of the earlier statute limiting the amount. (See Elliott v. Brazil Block Coal Co., 25 Inch App. 592; Hyde v. Southern R. Co., 31 App. Cas. D. C. 466.) We deem it unnecessary to decide this particular point, for our conclusion upon the question in controversy is based upon considerations quite independent of it.

Whether, without reference to the Constitution, the provisions of Section 2582 for the recovery of damages under the circumstances therein stated could properly be held to be limited as to amount by the general provision on that subject of Section 3449, or as authorizing a recovery independent of that provision, is likewise immaterial. Section 2582 and the other provisions of the same chapter were enacted in 1891 at the first session of the State Legislature, when, legislative action was directed and controlled as to this matter by Section 4 of Article IX and Section 4 of Article X of the Constitution. By that enactment the requirement of the Constitution that the Legislature shall provide by law for the manner of enforcing the right of action for damages in case of the death of a person caused by wrongful act, neglect or defaidt was in part complied with. The statute is to be construed in the light cast upon the language by the Constitution, as well as by other legislation, and so as to give it operation consistent with the Constitution, if possible. (St. George v. Hardie, 147 N. C. 88; State v. McMillan, (Fla.) 45 So. 883; Wyatt v. Board of Equalization, 74 N. H. 552.) The motion giving rise to the order reserving the questions 'for decision is based on the proposition that a judgment for damages in excess of five thousand dollars would be contrary to law, and the question is whether under the law of this State the plaintiff is denied the right to recover damages in any event in excess of that sum. The determination of that question depends not alone upon the statute, but also upon the Constitution, that is to say the meaning and effect of its provisions on the subject as applied to this action. Assuming that the constitutional provision for a right of action in cases of this character was at first operative, either wholly or in part, by virtue alone of the statute previously enacted, and that the provision of that statute limiting the amount of damages continued in force because not repugnant to the Constitution, it is now,to be decided whether, in view of the subsequent enactment of the provisions contained in Section 2582, the constitutional provisions are to be differently or more broadly applied as to actions provided for by that section, so as to avoid the former statutory limitation. This includes more than the mere construction of said section in connection with Section 3449 with reference to the language employed in each, and involves an interpretation of the Constitution and the application of its provisions, for the purpose of ascertaining whether, giving effect to such provisions, the limitation embraced in Section 3449 has lost any of its force, or can constitutionally be held to affect the present action. There is thus presented, we think, a constitutional question within the meaning of the statute authorizing such a question to be reserved.

Applying to subsequent legislation the two provisions of the Constitution under consideration, it would be beyond the power of the Legislature in providing for enforcing a right of action for death caused by wrongful act to place a statutory limit upon the amount to be recovered. Section 2582 does not provide expressly any such limitation, but, without reference to some other statute that might qualify its provisions, it authorizes the recovery of damages unlimited as to amount, except by the ordinary rules of law affecting damages in such cases. It may be that, as contended, the language of the section is not so inconsistent with Section 3449 in this respect as to prevent the latter, if permitted to be applied, from controlling the amount of recovery. But Section 3449' cannot, in our opinion, be so applied, without bringing Section 2582 in conflict with the Constitution.

It is argued that Section 2582 is to be construed as in pari materia with Section 3449, and that as so construed it provides merely for recovery of damages, and does not therefore abrogate Section 3449, but leaves it in force to control in the matter of the amount of recovery. The effect of the argument is to require a construction of Section 2582 that would limit recovery. The rule that statutes in pari materia are to be taken and construed together is but one of the rules for ascertaining the intent of the Legislature. It is fundamental in statutory construction that the intention and purpose of the Legislature are to control. “The intent is the vital part, the essence of the law, and the primary rule of contsruction is to ascertain and give effect to that intent.” (Lewis’ Suth. Stat. Const., Sec. 363.) In 'construing statutes in pari materia, “they are to be compared, harmonized if possible, and, if not suspectible of a construction which will make all of their provisions harmonize, they are made to operate together so far as possible consistently with the evident intent of the latest enactment.” (Id. Sec. 443.)

Although it is conceded, and must be, that" since the Constitution became effective the Legislature could not enact a statute directly limiting the amount of recovery in this class of cases, it is proposed by the argument that the Court declare that an intent to do so is evident by the failure .to.state in unequivocal languáge in Section 2582 a contrary purpose; that the Legislature intended to provide for the recovery of a limited amount of damages only, by the employment of language permitting the former statute to prevail. But unless qualified by such other statute, there is nothing in Section 2582 which would justify an interpretation that it limits recovery to any specified amount; and as such a limitation, by force of the Constitution, could not then have been lawfully declared the court is not permitted to impute to the Legislature an intent to .express by the language used anything less in this respect than it naturally and reasonably imports. By .Section 2582, the Legislature having provided for the recovery of damages in certain cases where death has been caused by wrongful act, neglect or default, so far as that section operates, Section 3449, in respect of its provision limiting the amount to be recovered must be held to be abrogated or-to have lost its force.. Construed as a part of Section 2582, or reading its said provision into the latter section it would be unconstitutional, because such a construction would cause the law enacted subsequent to the Constitution to limit the amount of damages to be recovered, in violation of Section 4 ofoArticle X of that instrument.

It was contended on the oral argument by counsel for the defendant that Section 2582 is unconstitutional for the reason that the act of which it formed a part violated Section 24 of Article III of the Constitution, which prqvides with certain stated exceptions that no bill shall 'be passed containing more than one subject, which sljall be clearly expressed in its title. The same objection with reference to-another section of that act (Sec. 2572, Rev. Stat. 1899) was considered in the case of Koppala et al. v. State, 15 Wyo. 398, 89 Pac. 576. The section involved in that case provided that certain intentional acts of a miner, workman or other person in and about a coal mine endangering the lives or health of persons, or security of the mine or machinery, should be punishable as a misdemeanor. Explaining the subject of the act, the nature and purpose of its provisions, it was said in the opinion:

“In reading the various sections and provisions of the act it is apparent that the object of the Legislature was to provide for the safety of coal miñes and employees therein. That is the main subject of the act, and the details and methods provided are in furtherance of that object. Provisions are made as to how a mine shall be ventilated to avoid danger, and it is made the duty of the owner or agent to maintain ample means for ventilation; as to the amount of pure air necessary to be admitted to the mine for each person actually engaged therein; as to air passages to rid the mine of dangerous and noxious gases; that every place where gas is known to exist shall be examined, and it shall be unlawful for any miner to enter any mine or part of a mine generating fire-damp until it has been examined and reported safe, except when permitted to do so for the purpose of keeping the mine in a safe condition. It is also provided that a State Inspector of Coal Mines shall be appointed, whose duty is to examine coal mines, to see thal the provisions of this chapter are carried out and to make record of such examinations showing the condition in which he finds them; especially in reference to ventilation and drainage, the number of mines in the State, the number of persons employed in each mine, the extent to which the laws are obeyed, the progress made in the improvement sought to be secured by the passage of this chapter, the number of accidents and deaths resulting from injuries received in and about the mine, with cause of such accident or death — said report to be made quarterly. It is unnecessary to enlarge further upon the provisions of the act. Enough has already been said to show its object and purpose. The provision for the appointment of the Coal Mine Inspector and providing his duties were all in aid of and in furtherance of the same general purpose by securing the services of one competent to see that the mines were kept in proper condition, so as to preserve the health and lives of those who are employed therein.”.

It was held that the title of the act embraced but one general subject, and that the section then under consideration came within the scope and provision of the title. We think the decision as well as the reasoning of the opinion is opposed to the contention now made as to Section 2582. In Indiana, under a similar statute, a like objection was made to a section containing substantially the provisions of our Section 2582. The title of the act in that State was as follows : “An act regulating the weighing of coal, providing for the safety of employees, protecting persons and property injured, providing for the proper ventilation of mines, prohibiting boys and femlaes from working in mines, conflicting acts repealed, and providing penalties for violation.” The action was one for the recovery of damages on account of a death of a person caused by the alleged negligence of a coal company. The Indiana statute appears to have contained many provisions similar to those in the act here in question and some other provisions not contained in the act before us. After referring to the title and briefly stating some of the provisions of the act the court said:

“An inspection of the statute clearly discloses that the general subject, covered by the legislation therein, is one concerning or relating to coal mines, and that the part thereof which vests the right of action for a recovery of damages arising out of the death of a' person caused by the violation of any of its provisions, or willful failure to comply therewith on the part of the owner, operator, agent, or lessee, in a widow or children of the deceased, or other persons in the order named' in the section in question, is incidental or auxiliary to the principal subject upon which the legislation is had; and, consequently, is a matter properly connected therewith. It is true that this statute may be said to embrace a plurality of objects or purposes which the Legislature had in view, and towards which, in order to carry them into effect, the legislation, under the act in question,’ was directed. It is obvious, however, that such legislation includes only one principal or general subject which, as previously said, is that concerning or relating to coal mines; and it is equally clear, we think, that the several provisions contained in the body of the act are matters or details incidental to this general subject, and as such, are properly connected therewith. * * * * The title of the law in controversy is not a model, and perhaps, is open to criticism. It at least may be said, however, that it substantially responds to the mandate of the Constitution. The form and terms employed in framing the title possibly operate to give expression, by parts, to the general subject to which the proposed legislation relates. When these parts, as expressed in the title, are taken and considered collectively, they constitute such a title as serves fairly to point out or disclose the general subject matter, coal mines., over which the Legislature proposes to legislate; and this renders it sufficient.”

It was held that the title was sufficient and that the act did not embrace a plurality of subjects and was not open to the constitutional objections urged against it. (Maule Coal Co. v. Partenheimer, 155 Ind. 100.) That the provisions q£ Section 2582 are generally regarded as pertinent and germane to an act such as the one in question is evident from the fact that similar acts in many of the states contain like provisions. We conclude that the act in relation to the section under consideration is not unconstitutional on the ground suggested.

Inasmuch as it is improper for us in the present proceeding to determine whether all the allegations in the petition concerning the cause of death bring the case within Section 2582, or the extent to which any of them do so, the decision upon the reserved questions must be stated in a form somewhat conditional, and without.referring to each question separately. The conclusion we have reached has already been indicated. A recovery under Section 2582 will not be controlled by the provision in Section 3449 limiting the amount. In case a recovery upon the facts, alleged is not authorized by Section 2582, but is authorized only by Sections 3448 and 3449, then the damages to be recovered cannot exceed five thousand dollars.

Beard, J., and Scott, J., concur.

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Rehearing

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 Section 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 1890-91 (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 to 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 acts 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 of 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 the 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 adoption 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.