that the suit was not one which could be brought and maintained against the defendant corporations found to be inhabitants of another district and not voluntarily appearing in the suit; and this, notwithstanding the railroad in question is wholly within the district where the suit was brought. 18 Stat. 472; 25 Stat. 436. If the suit was within the terms of the act of 1875, then the Circuit Court of the Eastern District of Illinois, although the defendant corporations may be inhabitants of another district in Illinois, could proceed to such an adjudication as the facts would justify, subject, of course, to the condition prescribed by the eighth section of that act, that any adjudication, affecting absent defendants without appearance, should affect only such property, within the district as may be the subject of the suit and under the jurisdiction of the court.

The plaintiff contends that this condition was waived, and the general appearance of the defendants entered, when their counsel, at the hearing as to the sufficiency of the pleas to the jurisdiction, argued the merits of the case as disclosed by the bill. This is too harsh an interpretation of what occurred in the court below. There was no motion for the dismissal of the bill for want of equity. The discussion of the merits was permitted or invited by the court in order that it might be informed on that question in the event it concluded to consider the merits along with the question of the sufficiency of the pleas to the jurisdiction. We are satisfied that the defendants did not intend to waive the benefit of their qualified appearance at the time of filing the pleas to the jurisdiction.

We adjudge that the suit is of such a nature as to bring it within the jurisdiction of the Circuit Court for the Eastern District, under the act of 1875. The judgment must, therefore, be reversed and the cause remanded that the plaintiff may proceed, as it may be advised, with the preparation of its case under the act of 1875.

It is so ordered.

Argument for Plaintiff in Error.

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WILMINGTON STAR MINING COMPANY v. FULTON.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS.

No. 139. Argued January 7, 1907.-Decided March 4, 1907.

It is an appropriate exercise of the police power of the State to regulate the use and enjoyment of mining properties, and mine owners are not deprived of their property, privileges, or immunities without due process of law or denied the equal protection of the laws by the Illinois mining statute of 1899, which requires the employment of only licensed mine managers and mine examiners, and imposes upon the mine owners liability for the willful failure of the manager and examiner to furnish a reasonably safe place for the workmen.

It is within the power of the State to change or modify, in accord with its conceptions of public policy, the principles of the common law in regard to the relation of master and servant; and, in cases within the proper scope of the police power, to impose upon the master liability for the willful act of his employé.

As construed by the highest court of that State, under the mining act of Illinois of 1899, a mine manager and mine examiner are vice-principals of the owner and engaged in the performance of duties which the owner cannot so delegate to others as to relieve himself from responsibility. Where two concurring causes contribute to an accident to an employé, the fact that the master is not responsible for one of them does not absolve him from liability for the other cause for which he is responsible. Where there is no evidence sustaining certain counts in the declaration as to defendant's negligence, he is entitled to an instruction that no recovery can be had under those counts, and where, as it was in this case, the refusal to so instruct is prejudicial error the verdict cannot be maintained, either at law or under § 57 of the Illinois Practice Act.

THE facts are stated in the opinion.

Mr. William P. Sidley, with whom Mr. Arthur D. Wheeler and Mr. Charles S. Holt were on the brief, for plaintiff in error:

Recovery can be had under this mining statute only when the defendant's act complained of is the proximate cause of the injury. Odin Coal Co. v. Denman, 185 Illinois, 418.

This statute in derogation of the common law must be

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Argument for Plaintiff in Error.

strictly construed, and no recovery should be permitted except for a violation of some duty clearly imposed by the act.

The duty of refraining from ordering miners into gaseous portions of the mine is nowhere laid upon the mine manager. On the contrary, § 186 would seem to clearly negative such a duty. It was error to charge the jury that the question of proximate cause turned upon whether or not there was gas in the mine which was necessary to his death, and without which his death would not have followed. The gas was merely the instrumentality producing death, equally necessary to that result whether Wilson's or decedent's act was the proximate cause of the explosion.

The jury were still further confused upon this important question by the further instruction of the court that they should take into consideration whether the gas being there or Wilson's order was the greater cause of his death; a comparison which had no proper place in the solution of the question.

As Fulton's act was in spite of a caution, and upon his own volition with knowledge of the conditions producing danger, he was engaged in an unlawful act contrary to the express prohibition of § 31 of the Mining Act, and such unlawful act having contributed to his death, barred the right of recovery herein.

A willful act, as used in the mining statute, means that the person performing the act knows what he is doing and intends to do what he is doing, and is a free agent. An act consciously performed is willfully performed under this statute as construed by the Illinois Supreme Court. Odin Coal Co. v. Denman, 185 Illinois, 413; Carterville Coal Co. v. Abbott, 181 Illinois, 502. As to construction of "willful," see Southern Ry. Co. v. Carroll, 138 Fed. Rep. 638; Heland v. City of Lowell, 3 Allen, 407.

There being evidence in the record from which the jury might have found Fulton's act to have been willful and unlawful under the statute, it was the defendant's right to have this question submitted to the jury under the form of instruction requested in that connection.

Argument for Defendant in Error.

205 U. S.

Defendant is entitled to an instruction to the effect that no recovery could be had if Fulton's death resulted in part from his own reckless disregard of consequences in view of his surroundings and the conditions in the mine as disclosed by the evidence, as such action on his part amounted to a willful act which effectually neutralized the effect of any willful act on defendant's part upon the same principle that ordinary contributory negligence on plaintiff's part is a defense to ordinary negligence on defendant's part.

The evidence did not support the allegation that an accident to the mine machinery had occurred by which the currents of air were obstructed or stopped, as there were no air currents in the mine at the time and no danger to the miners resulted from the occurrence testified to. The Mining Act must be strictly construed, being in derogation of the common law, and cannot be extended to cover the incident in question, the temporary loss of the monkey-wrench, by means of which the fan was customarily started. Cole v. Mayne, 122 Fed. Rep. 843; Hamilton v. Jones, 125 Indiana, 178; Shaw v. Railroad Co., 101 U. S. 565; Johnson v. Southern Pacific Co., 117 Fed. Rep. 466.

Mr. Arthur J. Eddy, with whom Mr. P. C. Haley and Mr. E. C. Wetten were on the brief, for defendant in error, submitted:

The case at bar is not subject to the constitutional objection raised by plaintiff in error for the reason that the declaration contains counts based on certain sections of the act obviously not repugnant to the Constitution of the United States even under the theory of plaintiff in error. Chicago v. Lonergan, 196 Illinois, 518; Consolidated Coal Co. v. Scheiber, 167 Illinois, 539, 543; C. & A. R. R. Co. v. Anderson, 166 Illinois, 572, 575; Western Union Tel. Co. v. Ann Arbor R. R. Co., 178 U. S. 239, 243, 244; Lampasas v. Bell, 180 U. S. 276, 282; Gibbs v. Crandall, 120 U. S. 105, 108; Atarin v. New York, 115 U. S. 248, 257; New Orleans v. Benjamin, 153 U. S. 411,

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Argument for Defendant in Error.

424; Gold Washing & Water Co. v. Keyes, 96 U. S. 199, 203, 204.

Even if the court should be inclined to hold portions of the mining law unconstitutional, it would not necessarily invalidate the entire act, and if any count is based on a section held to be constitutional, it would be sufficient to sustain the action. Loeb v. Columbia Township Trustees, 179 U. S. 472, 490; Diamond Glue Co. v. U. S. Glue Co., 187 U. S. 611, 617.

The Mining Act of Illinois is not repugnant to the Constitution of the United States. It has always been the policy of that State to guard with great solicitude the persons and lives of men employed in coal mining. The constitution of the State imposes upon the legislature the duty of passing laws to carry out this policy. Sec. 29, Art. 4, Const. of 1870; Henrietta Coal Co. v. Martin, 221 Illinois, 460. See also: Sherlock v. Alling, 93 U. S. 99; Coal Co. v. Seniger, 179 Illinois, 370; Wells Coal Co. v. Smith, 65 Ohio St. 70; Huffcut on Agency, 286; Riverton Co. v. Shepherd, 207 Illinois, 395; Schmalstieg v. Coal Co., 59 L. R. A. 707.

In construing the Mining Act the Supreme Court of Illinois has sought to effectuate this purpose, and to protect the operative coal miner and to provide for those dependent upon him in case of his death through failure on the part of the mine owner, and his representatives, to fulfill the duties required by the statute. C. W. & V. C. Co. v. The People, 181 Illinois, 270, 273; Carterville Coal Co. v. Abbott, 181 Illinois, 495, 501; Deserant v. Cerillos C. R. R. Co., 178 U. S. 409, 420; Odin Coal Co. v. Denman, 185 Illinois, 413, 417.

In the last case cited the court declared the statute in question was not a penal statute.

The fact that the west roadway was full of gas was the proximate cause of Fulton's death. None of the other acts and omissions complained of would have harmed him had plaintiff in error fulfilled its primary duty in regard to freeing the mine from gas and seeing that it was properly ventilated.