Algoma Coal & Coke Co. v. Alexander , 136 W. Va. 521 ( 1950 )

Given, Judge:

This proceeding was instituted under the Uniform Declaratory Judgments Act, now Code, 50-5-13, in the Circuit Court of Kanawha County, by the Algoma Coal and Coke Company and fifty-seven other coal mine operators, against Arch J. Alexander, individually, and as Chief of the Department of Mines of West Virginia. The object of the proceeding is to obtain a declaratory judgment as to whether the provisions of Article 2 of Chapter 22 of the Code, as amended, prevent a mine foreman, assistant mine foreman or section foreman from acting as a fire boss during the same shift or day in the same mine or section. The appellant, Arch J. Alexander, individually and as Chief of the Department of Mines of West Virginia, demurred to the petition, the ground of the demurrer being that “The statutes in the premises, and particularly Article 2, Chapter 22 of the Code of West Virginia, prohibit one who holds a fire boss certificate and who acts as a section foreman from acting in the capacity of fire boss during the same shift or day in the same mine or section.” The circuit court, on December 9, 1949, overruled the demurrer, held that “Article 2 of Chapter 22 of the Code of West Virginia of 1931 as amended, does not forbid one who holds a fire boss certificate and who acts as a section foreman from fire bossing during the same shift or day in the same mine or section”, and that “The plaintiffs have a lawful right to employ persons who are duly and lawfully qualified as fire bosses and to have such persons perform duties as section foreman and perform duties as fire bosses during the same day or shift in the same mine or section * *' *”, and dismissed the petition. To review the action of the circuit court this Court, on February 6, 1950, .granted this appeal.

The appellees allege in the petition for a declaratory judgment that they are corporations authorized to do business in West Virginia; that they are engaged in the business of producing bituminious' coal; that the mines operated by them are subject to the Department of Mines of West Virginia and are required to be fire bossed; that each of the plaintiffs employs a mine foreman and a number of assistant mine foremen, sometimes called section foremen, and a fire boss; that each of such employees holds a “certificate of competency for the position of mine foreman and for the position of fire boss issued to him by said Department of Mines”; that the section foremen act in supervisory capacities in directing production work and “also perform duties of fire bosses in their respective sections”; that such employees perform all the duties required by Article 2 of Chapter 22 of the Code, as amended; that some of said employees perform duties as foremen and as fire bosses in the same mine and section during the same day or shift; that such method of fire bossing such mines is in conformity with the custom and practice existing for more than twenty years and that “section foremen have been found to be better qualified and equipped than any other persons to fire boss mines”; that on January 17, 1949, the Chief of the Department of Mines issued a directive to all administrative assistants of the department to the effect that thereafter “No mine foreman, section foreman, or assistant foreman, acting as such, can legally fire boss a mine”, and that such directive and the orders issued thereunder “are unlawful and without warrant of authority by statute or otherwise * * Other allegations of fact will be referred to later in this opinion.

The defendant would justify the issuance of the directive by an interpretation of the statutes relating to the employment by the operator of a fire boss and mine foreman and upon an opinion of the Attorney General of the State of West Virginia. Various sections of Article 2, Chapter 22 of the Code, as amended, relate to the employment of a fire boss by the operator and the duties of such fire boss. Sections 42 and 43 read:

“It shall be the duty of every mine owner or operator in this State, whose mines are known to liberate fire damp or other dangerous gas or gases, to employ a fire boss, or bosses, if necessary, who shall be a citizen and resident of this State, and who shall hold a certificate of competency for such position issued to him by the department of mines, after taking an examination held by the department of mines under its rules and regulations. He shall have such knowledge of fire damp and other dangerous gases as to be able to detect the same with the use of safety lamps, and shall have a practical knowledge of the subject of the ventilation of mines and the machinery and appliances used for that purpose, and shall be a person with at least three years’ experience in mines liberating explosive gases.”

“It shall be the duty of the fire boss or bosses, where employed in such gaseous mines, to prepare a danger signal with red color at the mine entrance, and no person except the mine owner, operator or agent, and only then in case of necessity, shall pass beyond this danger signal until the mine has been examined by the fire boss and the same or certain parts thereof reported by him to be safe. It shall further be the duty of the fire boss or bosses to go into all the working places of such mine or mines, where gas is known to exist, or liable to exist, and carefully examine the same with a safety lamp, and do, or cause to be done, whatever may be necessary to remove from such working place or places all dangerous or noxious gases, and make the same safe for persons to enter therein as workmen. Such examination and. removal of the gases shall begin within three hours before the time each shift commences work, and it shall be the duty of the fire boss at each examination to leave evidence of his presence at the face of every place examined, by plainly marking on a board at the face for that purpose the date of examination. If the mine is safe, he shall remove the danger signal at the mine entrance, or change the color thereof to safety, in order that the employees may enter such mine and begin work.”

Section 44 requires that “The fire boss shall, upon having completed the examination of the mine before each shift, make a written record of the condition of the mine within a book”, provided for that purpose, and that the book shall at all times be kept at the mine subject to inspection by the district mine inspector or Chief of the Department of Mines. Section 45 provides that “In the performance of the duties devolving upon the fire bosses they shall have no superior officers, but all the employees working inside of such mine or mines shall be subordinate to them in their particular work.” Section 46 makes it a misdemeanor for “any person to enter” a mine at the beginning of any shift until the signal required by Section 43 “has been given by the fire boss”, except “under the direction of the fire boss”, and then only for the purpose of “making the mine safe”. Section 54 requires that “All places in live sections that are temporarily abandoned shall be examined as live workings by the fire boss on regular inspections”. Section 16 requires- that all mine foremen and fire bosses “employed in gaseous mines shall at all times, carry an approved flame safety lamp for the purpose of detecting the presence of explosive gas, such lamp to be kept lighted at all times when in use inside the mines.” Other sections relating to fire bosses are, we believe, not material to the decision herein.

Various sections of Article 2 relate to the appointment by the operator of mine foremen and their duties. Sections 47 and 48 read:

“In every coal mine where five or more persons are employed in a period of twenty-four hours, the operator or agent shall employ a competent and practical inside overseer, to be called mine foreman, who shall be a citizen and resident of this State, having had at least five years’ experience in the working, ventilation and drainage of coal mines, and who shall hold a certificate of competency for such position, issued to him by the department of mines, after taking an examination held by the department of mines under its rules and regulations. In mines in which the operations are so extensive that all the duties devolving upon the mine foreman cannot be discharged by one man, competent persons having had at least three years’ experience in coal mines may be designated and appointed as assistants, who shall act under the mine foreman’s instructions, and shall be responsible for their conduct in the discharge of their duties under such designation or employment.”

“The duties of the mine foreman shall be to keep a careful watch over the ventilating apparatus, the airways, traveling ways, pumps' and drainage. He shall see that as the miners advance their excavations proper break throughs are made as required by law to properly ventilate the mine; that all loose coal, slate and rock overhead in the working places and along the haul-ways are removed or carefully secured so as to prevent danger to persons employed in such mines; and that sufficient props, caps and timbers, as nearly as possible of suitable dimensions, are furnished for the places where they are to be used, and such props, caps and timbers shall be delivered and placed at such points as the rules for the government of each mine provides for them to be delivered. The mine foreman shall have all water drained or hauled out of the working places, where practicable, before the miners enter, and such working places kept dry as far as practicable while the miners are at work. It shall be the duty of the mine foreman to see that the cross cuts are made as required by law, and that the ventilation is conducted by means of such cross cuts through the rooms by means of check doors placed on the entries or other suitable places, and he shall not permit any room to be opened in advance of the ventilating current. The mine foreman shall measure the air current with an anemometer at least twice each month at the inlet and outlet and at or near the faces of the advanced headings, and shall keep a record of such measurements in a book having a form prescribed by the chief of the department of mines. Sign boards directing the way to outlet or escapeways shall be conspicuously placed throughout the mine.”

Section 49 commands the mine foreman to require slopes, engine planes and haulage roads to be of sufficient width to permit persons to pass moving cars with safety, or that proper refuge holes be made. Section 50 requires him to provide, in haulways where hauling is done by machinery, a proper system of signals “and a conspicuous light on the front and rear of every trip or train of cars when in motion in a mine”. Section 51 requires that he shall have proper bore holes kept “in a mine suspected of containing inflammable gases”. Section 53 requires that the mine foreman “visit and carefully examine each working place in the mine each day”, directs that each working place be secured by props or timbers, and that should he “find a place to be in a dangerous condition, * * '* not leave the place until it is made safe, * * *.”

Section 54 provides that the mine foreman shall see that every mine liberating explosive gas is kept free of standing gas in all working places and roadways; that any accumulation of explosive or noxious gases in any worked out or abandoned portion of the mine be removed as soon as possible and that proper danger signals be posted as to worked out and abandoned mines. Section 55 requires that “The mine foreman shall give prompt attention to the removal of all dangers reported to him by his assistants, the fire boss, or any other person”, and after inspection to “remove the danger at once”, to give notice thereof and “at least once each week, travel and examine all the air courses, roads and openings that give access to old workings or falls, and make a record of the condition of all places where danger has been found, with ink, in the book provided for that purpose.” Section 56 requires a mine foreman to notify in writing the operator of the inability of the mine foreman to comply with any of the “requirements of these sections, and it shall then become the duty of the operator” to at once remedy the matter complained of, and makes it a misdemeanor for any operator to refuse to comply. Section 57 states that “The mine foreman shall also, each day, read carefully and countersign with ink all reports entered in the record book of the fire bosses.” Section 82 makes it a misdemeanor for any “mine foreman, or other employee of any coal company, or any other person,” to violate any of the provisions contained in Sections 4 to 81, inclusive of Article 2. Other duties and obligations are placed upon the mine foremen by these and other sections. We think, however, that sufficient reference has been made to such duties and obligations to indicate the nature, scope and extent thereof.

Section 1 of Article 2 defines “operator” as “any firm, corporation, or individual operating any coal mine, or any part thereof”, and “mine foreman” as “the person whom the operator or superintendent shall place in charge of the inside workings of the mine and of the persons employed therein.” The article speaks of assistant foremen but not of section foremen. It also speaks of fire bosses but not of an assistant'fire boss or bosses. In this opinion mine foremen will, unless otherwise indicated, include assistant mine foremen, section foremen, or any person, however designated, performing the duties imposed upon a mine foreman by the provisions of Article 2.

The opinion of the Attorney General, dated January 15, 1949, states the question to be “The legality of the practice of allowing section bosses to act in the dual capacity of fire boss.” After a full discussion of the point the opinion concludes: “We believe a reasonable inference to be that if the Legislature had felt each officer could act in dual capacity, the statute would have so stated. But since nothing is provided on this point, and since their respective duties are entirely different, we are inclined to the opinion for the reasons given, that the law did not contemplate one acting in the ¡capacity of the other.” See Opinions, Attorney General, 1949-50. The directive of the Department of Mines issued pursuant to the opinion, in so far as material here, states that “No mine foreman, section foreman or assistant foreman acting as such, can legally fire boss a mine”, and that “Mines may be fire bossed only by a certified fire boss, employed as a fire boss.” All administrative assistants, inspectors at large and district mine inspectors of the Department of Mines were specifically instructed to enforce the directive.

The provisions of the statutes relating to employment of a mine foreman by the operator were first enacted by the Legislature in 1883. See Acts, 1883, Chapter 70. They were taken from similar statutes of Pennsylvania. Williams v. Thacker Coal & Coke Co., 44 W. Va. 599, 30 S. E. 107, 40 L. R. A. 812. A mine “boss” or mine foreman employed under this section is a fellow servant of those employed to work in the mine by the operator. Reese v. Biddle, 112 Pa. St. 72, 3 Atl. 814; Crockett v. Coal & Coke Co., 75 W. Va. 467, 84 S. E. 948. Likewise a fire boss is a fellow servant of those employed to work in the mine by the operator. Squilache v. Coal & Coke Co., 64 W. Va. 337, 62 S. E. 446; Bradley v. Tidewater Coal Co., 66 W. Va. 278, 66 S. E. 684, 40 L. R. A. (N.S.) 945, 19 Ann. Cas. 510. Mine foremen, assistant mine foremen and fire bosses are statutory officers and in the performance of their statutory duties are representatives of the State, not of the mine owner, the men who work in the mines, or of any union. McMillan v. Coal Co., 61 W. Va. 531, 57 S. E. 129, 11 L. R. A. (N.S.) 840; Gartin v. Draper Coal & Coke Co., 72 W. Va. 405, 78 S. E. 673; Strother v. Coal & Coke Co., 81 W. Va. 657, 95 S. E. 806; Holly v. McDowell Coal & Coke Co. (4th C.C.A.) 203 Fed. 668. The duties imposed upon a mine foreman, assistant mine foreman or fire boss by the statutes are nonassignable. Money Service Co. v. Stuart, 112 W. Va. 370, 164 S. E. 409, 42 Am. Jur., Public Officers, Section 70.

The present practice or custom of fire bossing a mine is, as stated in appellees’ brief:

“In multiple-shift operations, i.e., where two or three shifts work in the same day, there are mine foremen and section foremen on duty for each shift. Fire bossing is carried on in the following manner: Within three hours prior to the first shift fire bosses go into all of the working places and make inspections and examinations with safety lamps and leave evidence of such examinations at the face of every place examined and then report the inspected sections to be safe, if that be the case, and then the workmen enter the mine. Each fire boss makes a written record of his inspection in a book kept for that purpose and the mine foreman at each mine reads and countersigns the written reports of the fire bosses. After these first shift or ‘pre-shift’ fire bosses finish their inspections, they perform such other work as is assigned to them.

“Near the end of the first shift each section foreman makes an inspection and examination of each of the working places within his section in exactly the same manner and does all of the things that had been done by fire bosses prior to the first shift. In other words, he fire bosses the section assigned to him and with which he is familiar. He does so as fire boss for the next following shift. Then the second shift enters. When a third shift is operated, the section foremen on duty during the second shift make the fire boss runs or inspections just prior to the beginning of the third shift. * *

Plaintiffs contend that the applicable sections of Article 2 contain no ambiguity and that they do not show any legislative intent to “prohibit fire bossing by section foremen”. Defendant also says that there exists no ambiguity in the statutory provisions, but contends that when read together the several sections clearly show a legislative intent to require fire bossing to be done by an individual employed for that special purpose and not by a mine foreman, assistant mine foreman or section foreman, who acts as such during the same day or shift. This,, we believe, is the controlling question before the Court.

The point at issue has not been determined by this Court. However, we find that the status and duties of a fire boss and of a mine foreman have been considered in a number of decisions. In Squilache v. Coal & Coke Co., ■supra, this Court stated, on page 343:

“* * * It is clear, from these provisions, that these two officers are the absolute masters of all matters pertaining to the inside workings of the mine — the fire-boss, so far as relates to the inspection thereof for dangerous gases, and the notice and warnings of its condition to be given on the outside; the mine foreman, of the operation of and control over the ventilating apparatus and the general conduct of the operations; the duties of the one supplementing and correlating those of the other. * *

'Here we find the Court speaking of “these two officers” and saying in effect that the duties of the fire boss supplement and correlate the duties of the mine foreman.

Graham v. Newburg Orrel Coal & Coke Co., 38 W. Va. 273, 18 S. E. 584, decided about six years after the first enactment of the fire boss statute in this State,.holds, as a part of Point 1 of the syllabus, that “It is the duty of the operator of every coal-mine to provide ample means of ventilation, * * *. It is also his duty to employ a competent fire-boss to examine with safety lamp, * * * places where dangerous and noxious gas is known to exist or is liable to exist. It is also his duty to employ a competent mining boss to keep careful watch over the ventilating apparatus and the airways, * * This holding would seem to clearly imply that two individuals must be employed by the operator, the fire boss and the mine foreman, and not that one individual can serve in the two positions. In Bralley v. Tidewater Coal Co., supra, the Court stated, at page 281:

“* * * that these officers, the mine boss and the fire boss, were to have no respondeat superior with respect to those duties specifically devolved upon them by the statute, but that they within their several spheres, should be made the responsible agents, and be independent, and from under the control of the operator in the discharge of those duties, with authority given them by the statute to call upon and require of the operator that he provide them with the means and materials for the proper performance thereof.

“In consonance, therefore, with our previous decisions, we must hold the mine boss and fire boss fellow servants with the miner in the performance of the duties imposed upon them respecting the ventilation of the mine, including therein the duty of the mine boss to make breakthroughs, and to use brattices for such ventilation.” (Italics supplied).

Here again the Court treats the two statutory offices as separate and distinct.

In McMillan v. Coal Co., supra, the Court, speaking of a mine boss, said, at page 534:

“* * * He is really the representative of the state appointed for the protection of the lives of the miners. He has been said not to be the officer of the corporation. The company was bound to appoint him whether it would or not. He is put into the mine by the power of the state to watch the condition of the mine, to hold the mine operator up to his duty in certain things. The statute prescribes certain duties for him. He has no others. He has power to watch the condition of the mine in certain respects, to detect its wants, to demand their cure, and to bring the mine operators up to the standard required by the act. It has been said that he performs functions for the state, in behalf of the miners, and is not the representative of the coal operator, unless it be shown that the coal operator, by his own act, has committed other duties and granted powers to him. * * Except as they relate to the statutory- duties imposed, the same statements may be made as to a fire boss.

In Holly v. McDowell Coal & Coke Co., supra, a case wherein the statutes involved here were considered, the Court held, as set out in Points 5 and 6 of the head notes:

“Under Code Supp. 1909 W. Va. c. 15H (sections 400-454), regulating the operation of coal mines, and providing that the inside workings should be under the exclusive control of a mine foreman having specified qualifications and a fire boss, who are not responsible for their acts to the operator, there being no claim, in an action for death of a miner due to the fall of material from the roof of an entry, that the mine foreman had not the qualifications specified by the statute, the operator was not liable for intestate’s death, because it was due to the foreman’s negligence in failing to discover the dangerous portion of the roof of the entry and repair the same.”

“Code Supp. 1909 W. Va. c. 15H (sections 400-454), regulating the operation of all coal mines, and placing the entire internal control in a mine foreman employed by the operator having specified qualifications and a fire boss, who are responsible for their acts, not to the operator, but to the state, is not unconstitutional, as depriving miners injured or killed by the negligence of the mine foreman of equal protection of the laws.”

Other cases having some bearing upon the point at issue are Strother v. Coal Co., supra; Haptonstall v. Coal & Coke Co., 78 W. Va. 412, 89 S. E. 723; Cheeks v. Coal Co., 74 W. Va. 553, 82 S. E. 756; Gartin v. Draper Coal & Coke Co., 72 W. Va. 405, 78 S. E. 670; Sprinkle v. Coal Co., 72 W. Va. 358, 78 S. E. 971; and Peterson v. Collieries Co., 71 W. Va. 334, 76 S. E. 664. While the cases cited do not expressly decide the point at issue, we believe they clearly recognize the position or office of fire boss as being separate and distinct from the position or office of mine foreman or assistant mine foreman, and recognize the legislative intent that the two positions or offices be filled by different individuals.

Article 2, Chapter 22, relates, in its entirety, to the operation of coal mines. Therefore, the several sections thereof must be considered in pari materia. Considered separately they would have only one meaning. There is no word or sentence contained in any one of them which does not have a clear, and definite meaning. It is only when read together, and an attempt is made to apply them to the present practice of fire bossing a mine, that there appears any possible doubt as to the legislative purpose intended. To make this clear, let it be supposed that all references made in the sections relating to a fire boss or bosses should be repealed, leaving as part of the law the present provisions relating to mine foremen and assistant mine foremen. Could there be any doubt that it would still be the duty of the operator to employ a qualified mine foreman to perform the statutory duties required of that officer? Yet that was practically the situation previously, for the first Act of- this State requiring the employment of a mine foreman was enacted by the 1883 Legislature, but the first Act providing for the employment of a fire boss was not enacted until 1887. It seems clear that had the Legislature intended that the duties of a fire boss be performed by a mine foreman it would have simply required of the mine foreman or assistant mine foremen the additional duties, instead of enacting a wholly different statute requiring the operator to employ a fire boss and particularly and separately describing the qualifications and duties of a fire boss.

Of some significance is the fact that the statutory qualifications required of a fire boss are in some particulars different from statutory qualifications required of a mine-foreman, as will appear from a reading of the sections quoted. Of much significance is the type of duties required of each; generally, the duties of a fire boss being to examine mines before the beginning of any work period for dangerous gases and to remove, or cause to be removed, any such gas before permitting workmen to enter the mine; generally, the duties of a mine foreman being to “keep a careful watch over the ventilating apparatus, the-airways, traveling ways, pumps and drainage”, and to-otherwise make and keep the mine safe for those who-work therein. Section 54 makes it also the duty of mine-foremen to “see that every mine liberating explosive gas-is kept free of standing gas in all working places and roadways”, and in the same section it is provided that “All places in live sections that are temporarily abandoned shall be examined as live workings by the fire boss on regular inspections”. Does it seem reasonable to infer that the Legislature intended that a mine foreman should perform the duties of a fire boss, when it provided in the same section that certain duties relating to dangerous gas should be performed by a mine foreman and that certain other duties relating to dangerous gas should be performed by a fire boss?

In a number of instances the statutory duties of a fire boss and of a mine foreman appear to be incompatible. Section 48 requires a mine foreman to keep a careful watch over the “ventilation and drainage of the mine at all times”. How can he perform these duties while fire bossing the mine? Section 53 requires that in the event “the mine foreman or his assistants find a place to be in a dangerous condition, they shall not leave the place until it is made safe, * * *.” How can a mine foreman perform such duties and at the same time fire boss a mine? Section 57 requires that a mine foreman shall each day “read carefully and countersign with ink” reports of the fire boss. Would the Legislature have required a mine foreman to read and “countersign” his own report? Section 45 provides that fire bosses “shall have no superior officers” in the performance of their statutory duties. Is it consonant with reason and human experience to say that a mine foreman, however conscientious, ican in one minute loyally represent the State in the performance of the statutory duties imposed upon him relating to matters of safety, and in the next minute loyally represent .the operator in supervising the production of coal? It is very significant that nowhere is there any provision in the entire article, or any indication, that any of the statutory duties mentioned may be performed by either the fire boss or the mine foreman. Their respective duties are kept completely separate and distinct throughout the several sections.

In Gartin v. Coal & Coke Co., supra, this Court held, Point 9, syllabus:

“The positions of statutory mine foreman and superintendent of the same mine are incompatible, in the sense that the owner of the mine cannot claim the protection of the statute against liability for negligence of the foreman in respect to common law non-assignable duties imposed upon the foreman by the statute, if he employs the same person for both positions.”

The discussion of the point in the opinion, Page 415, W. Va. Rep., we think may be helpful here:

“The ground of incompatibility of these two positions may be found in legal principles, outside of the statute. There may be a joint agency by contract, express or implied, but, in the absence of such an agreement, one person cannot take advantage of an agency created for the benefit of another and appropriate it or the fruits thereof to his own benefit. Rohrbough v. Express Co., 50 W. Va. 148; Bank v. Furniture Co., 57 W. Va. 625. Surely the employer of a mine foreman, a quasi public agent whose duties are imposed and defined by law and involve conflict with the employer himself, cannot, by agreement with him, limit such duties or change their character. Nor can it be supposed the legislatúre intended to authorize the existence of any relation between them that might constitute an inducement or cause for neglect of the performance of such duties. It is perfectly apparent that the position of superintendent, conferred upon a foreman, would, in many instances, have that effect. As mine foreman, the employer is supposed to have the safety of the men in mind at all times and, if necessary, to the exclusion of everything else. The superintendent has for his dominating purpose the production and marketing of coal for the profit of the owner. The two positions in the hands of the same man are thus naturally in conflict.”

From these facts we necessarily conclude that there is no ambiguity in the statutes under consideration. It is clearly required that the fire bossing of a mine be done by a qualified individual employed for that specific purpose, and not by a mine foreman, assistant mine foreman or section foreman who acts as such during the same shift or day in the same mine or section. We think it clear that the Legislature intended that the statutory duties of a fire boss and the statutory duties of a mine foreman or assistant mine foreman should be performed by separate individuals. To hold otherwise would be to say that it is within the power of the operator, under the statutes, to assign such statutory duties to any person holding the necessary certificate of qualification from the Department of Mines. No such result could have been intended by the Legislature. In such circumstances the State would not be advised as to the responsibility of its officers or what officers were required to perform its commands.

Appellees contend, however, that the present practice of permitting section foremen to fire boss mines has existed for more than twenty years, and that the statutes have been interpreted by the Department of Minies to be in accord with the intention of the Legislature in the enactment of the statutes, and that such long practice and custom should now control the interpretation of the statutes, relying upon the rule that “A contemporary exposition of a statute, uncertain in its meaning, recognized and acquiesced in, for a long period of time, by the officers charged with the duty -of enforcing it, the' courts, the Legislature and the people, will be adopted unless it is manifestly wrong.” State v. Davis, 62 W. Va. 500, 60 S. E. 584. This rule, however, can have no application here for, as pointed out above, there exists no ambiguity in the statutes. Moreover, there appears to have been a different practice previous to the beginning of- the present practice for a period of approximately forty years immediately after the enactment of the statutes, and this Court, in a number of cases, has indicated that a different practice was intended.

Apparently the Department of Mines issues certificates of competency showing the holders thereof to be qualified to serve both as fire bosses and mine foremen, and ap-pellees contend that this practice of the Department of Mines clearly recognizes the present practice and custom-of fire bossing a mine as being legal. We think, however, that such a certificate should be regarded as authority to the operator to employ the holder thereof to serve in either capacity, not necessarily both.

Appellees also argue that the present practice of having a mine foreman or section foreman fire boss mines is the safest and the least expensive method. The question of the safest method of fire bossing a mine is, of course, one for the Legislature. We think, however, there is merit in the argument that safety will be promoted by requiring the “two officers” to perform their respective statutory duties, rather than by permitting one of such officers to perform all of such duties. As to any additional costs or additional employees required for the purpose of carrying out the mandate of the Legislature, we point to the statement of the Court in an opinion by Judge Brannon, in Graham v. Newburg Orrel Coal & Coke Co., supra, decided soon after the enactment by this State of the first fire boss statute, at page 275 of West Virginia State Reports:

“* * * statute * * * requires the employment by the operator of a competent person called ‘fire boss’ in all mines subject to gas, and he is required to examine every working place and all other places where gas is known to exist, or is liable to exist, with safety lamps, immediately before each shift; and the workman must not enter, * * * any working place, until it has been examined by a fire boss and reported safe. All this shows plainly that it is the imperative duty of the owner of the mine to search for this dangerous gas, cost what it will. * *

Under these statutes the employer is ordinarily relieved from liability as to any negligence or improper action on the part of the fire boss or the mine foreman. This being true, can we say that there will be additional expense imposed upon the operator in carrying out the mandate of the Legislature? Certain other contentions are made by appellees, but in view of what has been said we believe furthér discussion unnecessary.

From the conclusions reached it necessarily follows that the demurrer of appellant to the petition for a de*-claratory judgment should have been sustained by the-Circuit Court of Kanawha County, and that the judgment •of that court must be reversed.

Reversed.