172 Ind. 169 | Ind. | 1909
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.
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.
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.
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.
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.