Opinion of the Court.

to it from the intermediate court. But even upon this particular point one should speak briefly and cautiously until he learns the potentialities of the grant of "such revisory jurisdiction of the proceedings of administrative officers as may be conferred by law." But if the purpose to relieve the labors of the supreme court were clearly indicated by the provisions of the section, the suggested rule of interpretation would not be applicable to the particular provision under consideration. The rule invoked was stated in powerful opinions by the master of interpretation and with such clearness as to both its terms and limitations as to leave in the minds of constitutional lawyers who have lived with and after him little occasion to doubt its application. It is that if in an instrument of this character a purpose is clearly indicated all language which will admit of it must be so construed as to aid that purpose. The language of the provision now under consideration will not permit this court either to adopt or adhere to a rule which requires permission to invoke the exercise of its original jurisdiction. To so construe it would beget a consciousness that we are entertaining a bill in equity to reform the provision for mistake. The duty of subordination to the law rests nowhere more impressively than upon a tribunal which is not otherwise subordinate. The adjudications of a court of last resort must so enforce and so obey the provisions of fundamental law as to make popular government possible. To make it practicable is the duty of the electors.

Syllabus.

Since the relator may file his petition without leave, we dismiss his application.

Application dismissed.

JOHNSON, DONAHUE, WANAMAKER, NEWMAN

and WILKIN, JJ., concur.

HARRIS, ADMX., V. THE RAIL & RIVER COAL MINING COMPANY.

Widow and lineal heirs-May maintain action under Section 972, General Code-For wrongful death-Caused by non-compliance with Mining Act of April 5, 1910 (101 O. L., 52)—Sections 10770 and 10772, General Code, not applicable, when.

1. Under the provisions of Section 972, General Code, the widow and lineal heirs of a person who dies from the result of injuries received by reason of the violation or willful neglect or failure of any owner, lessee or agent of a mine to comply with any of the provisions of the Mining Act, passed April 5, 1910 (101 O. L., 52), are entitled to bring and maintain an action for damages for such wrongful death in their own names.

2. The special provisions of Section 972, General Code, obtain in all cases coming under the terms and provisions of said act, and the general provisions found in Section 10770 and Section 10772 do not apply in such cases.

3. Where the death of the injured person is immediate, no right of action for the benefit of his estate survives to his personal representatives.

(No. 13512-Decided February 4, 1913.)

ERROR to the Circuit Court of Belmont County.

Dissenting Opinion.

Mr. James C. Tallman, for plaintiff in error.

Mr. George A. Blackford, for defendant in error.

BY THE COURT. Section 972 of the General Code, which is a part of the mining act passed by the General Assembly April 5, 1910 (101 O. L., 52), specifically provides a remedy in favor of the widow and lineal heirs of a person whose life has been lost by reason of the violation, willful neglect or failure of any owner, lessee or agent of a mine to comply with the provisions of that act.

The remedy provided by this section is exclusive, and the personal representative of the deceased cannot bring an action for the benefit of the next of kin under the provisions of Section 10770 and Section 10772, where his right to do so is timely challenged, but the action must be brought in the name of the widow and lineal heirs in their own right and for their own benefit.

Judgment affirmed.

SHAUCK, C. J., DONAHUE, NEWMAN and WILKIN, JJ., concur.

JOHNSON, J., dissenting. I am unable to concur in this judgment.

The petition averred that plaintiff's intestate was a boy sixteen years old and left no widow or lineal heirs. It alleged a number of acts of negligence, among which were allegations of failure to comply with the provisions of the mining act

Dissenting Opinion.

passed April 5, 1910 (101 O. L., 86), none of which acts was alleged to be willful.

The common pleas court sustained a demurrer to the petition and this judgment was affirmed by the circuit court.

Both rulings were on the ground that Section 972 of the mining act controlled the case; that the section named gives the exclusive right of action to the widow and lineal heirs of the person killed and that the administratrix of deceased could not maintain the action on behalf of the parents and next of kin, there being no widow or lineal heirs.

Section 972 is as follows: "In case of an injury to persons or property, occasioned by a violation of any of the provisions of this act, or any willful failure to comply with any provision of this act by any owner, lessee or agent of a mine, a right of action shall accrue to the person injured, for any direct damage he may have sustained thereby. In case of loss of life, by reason of such willful neglect or failure, a right of action shall accrue to the widow and lineal heirs of the person whose life has been lost, for like recovery of damages for the injury they shall have sustained.”

Sections 10770 and 10772, General Code, give a right of action, where the death of a person is caused by the wrongful act, neglect or default of another, to the personal representative of the deceased for the benefit of the wife and children, or if there be neither, then to the parents and next of kin.

This law, known as Lord Campbell's act, was in force long before the passage of the mining act

Dissenting Opinion.

and was repealed and re-enacted after the passage of the mining act.

Section 972 of the mining act is a special enactment and Lord Campbell's act is a general one.

Where the facts of a case bring it within both a special and a general law the special law will control in so far as its provisions differ from those of the general law.

But in such case the special enactment will not be construed to control cases not specifically included in its provisions.

In what respects does Section 972 differ from Sections 10770 and 10772, General Code?

First: it confers upon a special class of designated persons, namely "the widow and lineal heirs" a right of action for their loss.

Second: it places no limit on the amount of the recovery and does not specially limit the time in which the suit must be brought.

Third: it confers this right of action on the class named, in case of loss of life by reason of willful neglect or failure to comply with the provisions of the mining act.

In order that Section 972 shall control a case to the exclusion of Sections 10770 and 10772, the facts must be such as will bring the case within the provisions of the special section. That is, there must be in existence some person or persons included in the class in which the right of action is lodged, and there must have been a willful neglect or failure to comply with the law.

These conditions being absent, the general statute will control a case within its terms.