February 4, 1.916.

THE COLLIERY GUARDIAN.

229

MR. WILLIAM STEWART,

President of the South Wales Institute of Engineers.

Mr. William Stewart, J.P., of, Brodawel, Caerleon,
Monmouthshire, commenced his mining career at the
collieries of the late Mr. Archibald Hood, in Midlothian.
Here he spent four years, excepting two winter sessions,
during which he attended the University of Edinburgh
for the study of subjects appertaining to the mining
profession.

In 1876, Mr. Stewart left Scotland, and was brought
to South Wales by Mr. Hood (to whom he ascribes much
of the success he has met with in his profession). He
first became colliery surveyor at the Glamorgan
Collieries, Llwynypia; and later assisted generally in
the management. In 1879, after securing his mine
manager’s certificate, he was appointed manager of the
Glamorgan Company’s Penrhiwfer Colliery. In 1888 he



|| . rj

Mr. William Stewart.

became manager of Harris’ Navigation (now Ocean)
Colliery, Treharris, which position he held for five years.
In 1893 he transferred his activities to the Powell’s
'Tillery Collieries at Abertillery; being first appointed as
manager, afterwards as agent, and latterly as managing
director of the company, which position he still holds.

Mr. Stewart is a strong advocate of the necessity
for, and value of, a thoroughly practical and technical
training, not only in underground work, but also in
mechanical and electrical engineering, for all who con-
template taking active part in the management of
collieries. He was one of 'the pioneers in the formation
of the South Wales and the Monmouthshire Colliery
Officials’ Associations. He is an ex-chairman of the
South Wales and Monmouthshire Coal Owners’ Associa-
tion, and a life member of the institute in which he has
for many years taken <an active interest.

Grimsby Coal Exports. — Returns for the week ending
January 28, show that the coal exported from Grimsby
consisted of the following :—Foreign—To Dieppe, 1,047 ;
Esbjerg, 676; Gothenburg, 1.592; Rotterdam, 530; and
Rouen, 1,793 tons; total, 5,638 tons foreign, against 6,393
tons foreign during the corresponding period of last year.

Mine Managers’ Examinations.—The following is a list of
successful candidates at the examination held by the Board
for Mining Examinations on November 23 and 24, 1915 :—
For a first-class certificate of competency as manager of a
mine : Messrs. R. L. Andrews, T. J. Bowen, R. Brettell,
H. A. Campbell, H. J. Carpenter, H. G. Davies, I. L.
Davies, J. Easson, L. Figdor, W. Graham, A. Guest, G. P.
Hay, W. B. Holmes, W. St. John Inman, F. B. Jotham,
P. Kay, W. T. Knowles, C. Lilly, H. Mirfield, W. Moore,
W. E. Oakey, J. Peters, R. F. Rankin, R. P. Roberts,
J. N. Rushton, A. Soargill, A. Stephens, M. R. Swanson,
J. Taylor, A. Terrell, A. W. Warburton, R. Wearmouth,
0. Wood, W. Wright, R. Young. For a second-class certi-
ficate of competency as under-manager of a mine : Messrs.

C.	E. Anderton, H. Baguley, A. G. Baker, E. 0. Bannister,

D.	Baxter, T. Bonser, W. H. Bowyer, C. W. Brown, W. B.
Brown, A. Burnell, M. C. Butler, A. Campbell, W. C.
Carpenter, T. Christie, E. Curtis, J. Dalgleish, J.T. Davies,
V. S. Dufton, W. Easton (Ashington), T. H. Emmerson,
D. J. Evans, A. Fairhurst, J. J. Flynn, F. Gay, C.
Greatbatch, F. Hall, B. Hammill, J. T. Hart, M.
Hemmingway, A. Holmes, 0. Hughes, D. J. Jones
(Resolven), D. Kilpatrick, A. Lambe, L. Lang, J. Lees,
A. Lonsdale (junior), G. Lord, H. Marley, M. S. Morgan,
G. T. Moses, T. Nix, W. Parsons, J. Paul, R. Potter, D.
Ralton, F. 8. Ramsden, H. Reid, J. Rhoden, E. Robinson,
C. Sellars, W. Smillie, J. H. Taylor, A. J. Tennant, J. M.
Terras, H. 8. Thomas, J. Thomson, J. E. Turner, D.
Waring. For a certificate of qualification as surveyor of
mines : Messrs. B. Adams, T. L. Arthur, 0. M. Barnes,
J. E. Brown, J. C. Coles, 8. Collins, J. Dando, T. H.
Fitton, J. P. Higson, W. G. Hill, J. Hindmarsh, E. Holden,
V. M. Hughes, J. E. James, P. King, J. Kirkpatrick, P.
Littlewood, J. Lowe, A. E. Nicklin, A. Norman, P.
Parnaby, J. 0. Parry, W. Paterson, D. E. Phillips, T.
Powell, H. D. J. Price, F. Rhodes, R. Ringham, W. S.
Smart, R. Taylor, J. D. Tilley, J. Wilson, J. T. Young.

LAW INTELLIGENCE.

HOUSE OF LORDS.—January 28.

Before the Lord Chancellor, Lords Atkinson, Shaw,
Parker, and Sumner.

Fillers and the Minimum Wage.

I. Churm v. Dalton Main Collieries Limited.—This was an
appeal from the order of the Court of Appeal, dated March 30,
1915, reversing the judgment of Mr. Justice Bailhache, dated
October 26, 1914, in an action in which the appellant, Isaac
Churm, was plaintiff, and the respondents, the Dalton Main
Collieries Limited, were the defendants. Mr. Justice
Bailhache decided that the plaintiff was entitled under the
terms of his employment with the defendants as filler to be
paid by them wages not less than the minimum rate pro-
vided by the Coal Mines (Minimum Wage) Act, 1912, and
that the defendants were the employers of the plaintiff under
section 1 of the said Act. The Court of Appeal set aside this
judgment, and entered judgment for the colliery company.
(Colliery Guardian, April 9, 1915.) Against this decision
Churm appealed to the House of Lords, who have decided
in his favour.

The Lord Chancellor in giving the leading judgment said
the simple question in this case was whether the appellant,
Churm, was, for the week ending July 23, 1913, in the
employment of the respondents within the meaning of the
Coal Mines (Minimum Wage) Act, 1912. The appellant,
who was what was known as a “ filler ” in the Silverwood
Colliery, received for his week’s work, ending July 23,
1913, a sum of 11 Is. 9d., while, according to the minimum
wage rate for that mine at that time, he was entitled to
receive £1 12s. lid., and he accordingly sued the respondents
for the balance. The respondents denied that they were
responsible, but they admitted that the appellant was
entitled to the minimum wage from someone. They con-
tended that it was the collier by whom the appellant was
employed within the meaning cf the statute.

Before any person entered to work in the respondents’
mine he was required to sign three documents. One was
called the “ signing-on book,” in which the name and
occupation of the signatory was contained, together with a
statement as to whether he was competent to work by
himself under one of the general rules. The next was a
document which entitled the colliery company to make
deductions from wages due to any of the persons who signed
the agreement in respect of rent and certain specified
matters which were set out in the schedule. The third
document contained the by-laws of the respondent colliery,
and was headed “ Contract.”

The appellant signed all these documents, described him-
self as a filler, and stated that he was not fit to work alone.
John Fuller, the collier, also signed precisely the same docu-
ments as the appellant.

At the end of each week the colliery company made out
a pay note in respect of the work done at a particular stall
during the week. That note was headed “ Colliers’ Pay
Note,” and was handed, with the amount shown, due to the
colliery. It was this practice and a certain clause in the
contract containing the by-laws, which, according to the
respondents’ contention, prevented them from being liable
for the minimum wage. The respondents themselves
admitted as their relationship to the appellant that : (1)
They and they only engaged him; (2) dismissed him; (3)
directed where he worked, and moved him from stall to stall;
(4) granted him holidays; (5) paid the employer’s con-
tribution under the Insurance Act; (6) were responsible
under the Workmen’s Compensation Act for any damage
which he might suffer; and (7) took proceedings against him
under the Employers’ and Workmen’s Act of 1875.

It was difficult to think of a single one of the necessary
elements for determining conditions of employment that
were lacking in this category excepting the obligation which
was in dispute, i.e., the obligation of paying wages. His
lordship continued that section 1 of the Minimum Wage
Act was in these terms :—

It shall be an implied term of every contract for the
employment of a workman underground in a coal mine
that the employer shall pay to that workman wages at
not less than the minimum wage settled under this Act.
There was a perfectly clear contract in this case for the
employment of the appellant to work underground in a coal
mine, and it was open to serious argument that there ought
to be ingrafted on to that contract the statutory obligation
which the section imposed.

In this case, however, that question'did not appear to arise,
for the following reason : Clause 2 of the contract between the
parties expressly provided that all persons employed should
be entitled to receive wages and payment according to the
current rate of wages for the time being paid in the colliery;
and it was that express obligation, apart from the implied
obligation resulting from the performance of work under a
contract of service, which bound the colliery company to pro-
vide payment for work done. There was nothing from
beginning to end to distinguish the position of a collier and a
filler in any of the written documents until the pay sheet was
reached, that is, until after the work was done. In his
opinion, the true view of the matter was that the colliery
company employed two men to work together to do a piece
of work on terms that they (the colliery company) would
provide the wage which the men would divide between them-
selves, and the fact that the money was actually handed to
the collier and divided by him in accordance with practice,
did not prevent the filler from being entitled to wages from
the company. This view would, he thought, have been
accepted by the Court of Appeal were it not for clause 13 of
the same document, which was in these terms :—

All persons working under or for and paid by contractors
or other persons, shall be deemed to be the servants of the
owners of the colliery to the extent only that they shall be
bound to obey these by-laws and the other rules of the
colliery, but the owners of the colliery shall not be bound
to see to the payment of or be liable for the wages due to
such persons after they have paid the contractor or other
person for whom such perse work.

The construction of this clause ..is not easy, for it appeared
to be a combination of provisions relating to different classes
of people. The first words, down to “ other persons,”
covered, though they extended far beyond, the case of people
who were in no true sense in the employment of the colliery
company, but who had entered the mine for the purpose of
performing work, as, for example, the installation of electric
light, under contract with the colliery company. Such people
would be bound to obey the by-laws that affected the condi-
tions of working underground, and they were consequently
required to sign the contract in which the by-laws were
contained.

It was quite possible that a collier might be included in
the somewhat generous ambit of the phrase, “ or other
persons,” though it was difficult to make that meaning agree
with the subsequent words, but if they were, the latter part
of the clause merely negatived the obligation of the owners
to be liable for the payment of wages after they had been
paid by the colliery company. If there were no primary
obligation on the part of the colliery company to pay the filler
wages, he could not see where their obligation to pay the
collier arose, for there was no distinction between the two
classes of people in the written documents; and, again, if no
wages were ever due from the colliery company to the filler,
the second contract, which provided for deductions, would in
the ordinary course of working appear to be meaningless.

In his opinion, the obligation to pay wages was not merely
implied, it was expressly imposed by clause 2 of the contract,
and was not negatived by any subsequent provision.

Several cases were quoted by the respondents as authority
for their view, the two most important being the case of
Richards v. Wrexham and Acton Collieries Limited, reported
in (1914) 2 K.B., p. 497, and in Hoolev v. the Butterley
Colliery Company Limited (84, L.J., K.B., p. 1969). The
former of these two cases was the nearest, but upon examina-
tion it would be found to afford little assistance. The ques-
tion for decision there was the liability for payment of a
wage that was the excess between the minimum wage and
the wage that had in fact been earned. The filler was there
paid through the collier a daily wage, and the learned county
court judge before whom the case was heard in the first
instance found as a fact that the contract for this payment
existed between the filler and the collier. No such fact, and
no corresponding fact, had been found by the learned judge
in this case, nor, indeed, was there any evidence which could
support such a finding.

Further, the clauses in the governing contracts were
different to those in the present instance, and in certain
places referred to a miner engaging a filler and to a filler
‘ ‘ employed by ” a miner. No such words and no similar
provisions were to be found in the present case. He did not
think that the Court of Appeal need have considered them-
selves bound bv the decisions, nor was it necessary to con-
sider the soundness of the authority for the purpose of the
present decision.

For the reasons given, he thought this appeal should be
allowed, the judgment of the Court of Appeal should be
reversed, the judgment of Mr. Justice Bailhache should be
restored, and the respondents should pay the costs in the
present Court and below.

Lord Atkinson said that in this case two questions
emerged for the consideration of the House; first, whether
the construction of the first section of the Coal Mines
(Minimum Wage) Act, 1912, adopted by the Court of
Appeal, was its true construction; and, second, whether,
even if it were so, the appellant, having regard to the
established fact in this case, was entitled to the declaration
he claimed, namely, that he, under his contract of employ-
ment with the respondents, made on or about May 21, 1913,
was entitled to be paid by them wages at not less than the
minimum rate. The Court of Appeal, following their
decision in the case of Richards v. Wrexham and Acton
Collieries Limited (1912, 2 K.B. 497), held that the contract
of an employer with a workman underground in a coal mine
in which it was to be an implied term that the employer
should pay to that workman wages at not less than the
minimum rate settled by the Act, must be a contract to pay
wages, so that, however completely the contract might
establish the relation of master and servant, or employer and
employee, between the owner of a colliery and his workman
underground, the latter was, as against the colliery
owner, excluded from the benefit of the Act unless
the obligation to pay the workman wages was imposed by
this contract upon the colliery owner, or, in effect, that
all the statute did was to fix a minimum for the wages
contracted by an employer to be paid to his workman. It
was not disputed that the statute did not say so expressly.
Its words were : “It shall be an implied term of every
contract for the employment of a workman underground in
a coal mine that the employer shall pay to that workman
wages at not less than the minimum rate settled by this
Act,” etc.

By section 5 a workman was, with certain exceptions
immaterial in this case, defined to be any person employed
in a coal mine below ground, and it was not disputed that
the plaintiff was a workman within the meaning of that
definition. In the Wrexham case, as it had been styled for
the sake of brevity, Justice Vaughan-Williams dissented
from the decisions of his colleagues. He held that under
section 1 of the above-mentioned statute the contract therein
referred to, in which this term was to be implied was, “ by
statutory implication a contract between the colliery pro-
prietor who had to pay, and the workman (including here
the filler) employed underground in the mine,” and he
proceeded to say that the whole contract was to be regarded
■as a contract between the filler and the company.

He saw great difficulty in accepting the construction of
the section adopted by the Court of Appeal in the Wrexham
case. Referring to the Workmen’s Compensation Act, 1906,
he said it was almost impossible to suppose that the
Legislature could ever have intended that in the case of
two workmen such as a collier and a filler, engaged by
piecework on the joint enterprise of excavating coals in a
designated stall in a coal mine, and transporting that coal
to a place from whence it can be lifted to the surface and
weighed, that one of them should be liable to compensate
the other for injuries sustained by accident in their joint
work; and if not, how was the Act to be applied to the
case of that one of the two to whom the coal owner had
neither paid nor contracted to pay anything in the nature
of wages. The facts of the present case were so radically
different from those of the Wrexham case in all material
respects, that the former could well be disposed of without
pronouncing a definite opinion as to whether the construction
of the first section of the statute of 1912, adopted by the
Court of Appeal, be its true construction or the contrary.

In the present case the collier and the filler stood to
each other as two fellow labourers, joint adventurers in one
.enterprise, that of hewing coals in a certain stall in the
defendants’ mine, and transporting them to the particular
place from which they were to be lifted to the surface and
weighed. The remuneration stated in the price list, 13s. 4d.
per 10 tons, covered all these operations, and in performing
them each workman worked with the other—not for the
other, but for the benefit of himself and the other. Neither
did he think the filler worked under the collier, since neither
in the written documents nor in the parol evidence was there
any sufficient proof that there was any subordination of
the one to the other, or anything to show that the cellier
was put in a position of authority over the filler, or to