ROBERTS, JOHNSON & RAND SHOE CO. v. DOWER, 208 F. 270

SANBORN, District Judge (after stating the facts as above). In respect to the statutory count the trial court decided that it was its duty to follow the Factory Act of Illinois, as construed by its Supreme Court in the Streeter Case. In the state of Illinois there are four acts passed for the protection of employes and commonly referred to as “Mines and Mining Act” (Hurd’s Rev.

St. 1911, c. 93), “Child Labor Law” (chapter 48, § 20), "Railroad Safety Appliance Act” (chapter 114, §§ 223-232), and the “Factory Act” (chapter 48, §§ 89-120); The Supreme Court of Illinois in its construction of each of said acts has held that a willful violation thereof deprives the master of the defense of assumed risk, also that a “willful” violation is any conscious knowing or intentional failure to comply with a statutory provision, and that no wrongful intent need be shown to make a failure willful.

After the Illinois Supreme Court had construed and declared the effect of the ^'Illinois Mine and Mining Act” in Odin Coal Co. v. Denman, 185 Ill. 413, 57 N. E. 192, 76 Am. St. Rep. 45, and Carterville Coal Co. v. Abbott, 181 Ill. 496, 55 N. E. 131, the case of Fulton v. Wilmington Star Mining Co., 133 Fed. 193, 66 C. C. A. 247, 68 L. R. A. 168, involving the same act was heard in this court, which followed the Illinois cases in the construction of said act, also in its construction of the term “willful,” and denied the master both the defense of assumption of risk and of contributory negligence.

In the case of Streeter v. Western Scraper Co., 254 Ill. 244, 98 N. E. 541, 41 L. R. A. (N. S.) 628, Ann. Cas. 1913C, 204, and which involved the construction and effect of' the Factory Act, involved in this cause, the Illinois Supreme Court hold that, where there is a willful violation of the act, the master is deprived of both the defenses of assumption of risk and contributory negligence, giving to the term “willful” the same construction as theretofore given it by said court in the other acts.

The following quotation from the opinion in'the Streeter Case shows the consistent and reasonable position of the court: “For many years we have held, in the construction of the Mining Act, that neither assumed risk nor contributory negligence is available as a defense to a suit for damages caused by a willful violation of the provisions of that act (citing Illinois authorities). It is true, that these decisions were based partly on the language of the

section which gives an action for any injury occasioned by a ‘willful’ violation of the act, and partly on the requirement contained in

section 29 of

article 4 of the Constitution, that the General Assembly shall pass laws for the protection of operative miners. The reasoning on which they are based is, however, applicable to the present case, as is the language in Carterville Coal Co. v.

Abbott, supra: ‘To hold that the same principle as to contributory negligence should be applied, in case of one who is injured in a mine because the owner, operator, or manager totally disregarded the statute, as in other cases of negligence, is to totally disregard the provisions of the Constitution, which are mandatory in requiring the enactment of this character of legislation, and would destroy the effect of the statute, and in no manner regard the duty of protecting the life and safety of miners.’ A constitutional law is of as much force as the Constitution itself.

This law was passed to protect employés, and in view of the construction given to the Mining Act * ' * * in regard to the assumption of risk, the General Assembly must have supposed that the same construction would be given to this act in that regard.” It is argued that the Streeter Case should not be followed here because not strictly a construction of the Factory Act, but merely declaring its legal effect, and, since the statute is silent as to assumption of risk and contributory negligence, the decision that they are excluded by it is not a part of the statutory law which must be followed by this court.

But such a distinction is entirely negatived by numerous decisions of the Supreme Court. Thus in Williams v. Gaylord, 186 U. S. 157, 22 Sup. Ct. 798, 46 L. Ed. 1102, it was contended that the federal courts are not bound by a state decision defining' the application of a local statute, but only by its construction. The court said: “We are unable to accept the distinction. To accept it would deprive the state courts of the power to declare the implications of state statutes, and confine

interpretation to the more letter. The Supreme Court of California declared the effect of the act of 1880 as deduced from the language and purpose of the act, and this was necessarily an exercise of construction.

The very essence of construction is the extension of the meaning of a statute beyond its letter, and it can seldom bo, done without applying some principle of law general in some branch' of jurisprudence, and if whenever such application occurs the authority of the state courts to interpret the statute ceases, the federal tribunals, instead of following, could lead those courts in declaring die meaning of the legislation of the states.” So in Middleton National Bank v. Toledo, etc., R. Co., 197 U. S. 394, 25 Sup. Ct. 462, 49 L.

Ed. 803, a local decision that a state constitutional provision was self-executing was held binding on the federal courts. Similar rulings were made as to constitutionality in Knights Templars Co. v. Jarman, 187 U. S. 197, 23 Sup. Ct. 108, 47 L. Ed. 139; that a state statute was a public one, in Hammond v. Hastings, 134 U. S. 401, 10 Sup. Ct. 727, 33 L. Ed. 960; that

an act was mandatory in Amy v. Watertown, 130 U. S. 301, 9 Sup. Ct. 530, 32 L. Ed. 946; whether

an act was a revenue measure in Flanigan v. Sierra Co., 196 U. S. 553, 25 Sup. Ct. 314, 49 L. Ed. 597; and whether a statute was penal or remedial in Chase v. Curtis, 113 U. S. 452, 5 Sup. Ct. 554, 28 L. Ed. 1038. Many other cases in the Supreme Court might be cited where local decisions declaring the legal effect of a statute have been followed, as part of the law itself. A like conclusion was reached by this court in the Fulton Case, where the Mining Act there considered did not expressly take away the defense of contributory negligence.

The Illinois court having decided that this defense was excluded, - that ruling was adopted by this court. ■ Defendant in the case now under - consideration did .not request a separate verdict on the statutory count, and the jury found defendant negligent and that plaintiff used ordinary care and assumed no risk. We have, however, assumed that proper steps were taken by defendant to raise all questions under the statutory count. Finding no error, the judgment of the District Court is affirmed.