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See same case below, 186 Ill. 134, 57 N. E. *The supreme court found that all the state 880.

questions involved in this case had been

disposed of in Chicago, W* & V. Coal Co. v. Statement by Mr. Justice Brown: People, 181 Ill. 270, 48 L. R. A. 554, 54 N.

This was an action of assumpsit original. E. 961. It only remains for us to determine Is brought in the circuit court of St. Clair whether the validity of the state statute county by the people of the state of Illinois above cited was drawn in question on the against the Consolidated Coal Company of ground of its repugnancy to the Constitution St. Louis, a corporation of Illinois, to re- and laws of the United States, and the decover the sum of $1,818 for the fees of state cision was in favor of its validity, when it mine inspectors for the inspection of certain should have been held invalid. While the coal mines located in Illinois, owned and constitutionality of the law was not specialoperated by the defendant, under "An Act ly set up and claimed before the trial in the Providing for the Health and Safety of Per circuit court, there was a motion made in sons Employed in Coal Mines," originally arrest of judgment, in which the invalidity enacted May 28, 1879, and the amendments of the statute was specially set up upon the thereto.

ground of its repugnancy to the 14th Amend. The case was submitted to the court with- ment to the Constitution. The motion was a out a jury, upon a stipulation of facts, in denied, although the supreme court did not which it was agreed that the mines of the in terms pass upon the Federal constitutiondefendant, thirty-one in number, had been ality of the law. But this was a sufficient inspected between November 2, 1895, and presentation of the Federal question. June 26, 1899, by a state inspector, whose The regulation of mines and miners, their aggregate fees were $1,818; that the secre- hours of labor, and the precautions that tary of the bureau of labor statistics pre shall be taken to insure their safety, health, sented the defendant with the inspection and comfort, are so obviously within the bills and demanded payment therefor, which police power of the several states that no cidefendant refused to pay.

tation of authorities is necessary to vindi* It was further stipulated that the charge cate the general principle. Many of these for the recovery of which this action was cases are reviewed in Holden v. Hardy, 169 brought was made in pursuance of the act U. S. 366, 42 L. ed. 780, 18 Sup. Ct. Rep. of May 28, 1879, and that the question to be 383, in which it was held to be competent raised and disposed of was the validity and for a state legislature to limit the hours of constitutionality of so much of said above- labor, in mines and smelting works, to eight entitled act and the amendments thereto as per day. related to the inspection fees of the said 1. We do not understand the general prinmine inspectors, and the imposing upon the ciple to be questioned that the state may apmine operator and owner the duty of pay- point mining inspectors and provide for ing such fees, and also whether there was their payment by the owners of mines any remedy at law to recover such fees. (Northwestern Union Packet Co. v. St.

A judgment having been entered for the Louis, 100 U. S. 423, 25 L. ed. 688; Morpayment of these fees, the case was carried gan's L. 6 T. R. & S. S. Co. v. Louisiana Bd. by writ of error to the supreme court, where of Health, 118 U. S. 455, 30 L. ed. 237, 6 the judgment of the circuit court of St. Sup. Ct. Rep. 1114; Nashville, C. & St. L. R. Clair county was affirmed.

Co. v. Alabama, 128 U. S. 96, 101, 32 L. ed.

352, 354, 2 Inters. Com. Rep. 238, 9 Sup. Ct. Mr. Charles W. Thomas for plaintiff in Rep. 28; Mobile County v. Kimball, 102 U. error.

S. 691, 26 L, ed. 238; Charlotte, C. & A. R. Mr. Howland J. Hamlin for defendant Co. v. Gibbes, 142 U. S. 386, 35 L. ed. 1051, in error.

12 Sup. Ct. Rep. 255; Chicago, W. & V. Coal

Co. v. People, 181 Ill. 270, 48 L. R. A. 554, Mr. Justice Brown delivered the opinion 54 N. E. 961); but it is insisted that the of the court:

acts here involved, in so far as they give to The act of the general assembly of the district mining inspectors a discretion as to state of Illinois, entitled "An Act to Provide the number of times they shall inspect such for the Health and Safety of Persons Eminines and a further discrimination as to ployed in Coal Mines," originally passed what fees they shall charge, within the limit May 28, 1879, subsequently incorporated in fixed by these acts, is in contravention of the Revised Statutes of 1895, and amended the 14th Amendment forbidding a state from in 1897 (Hurd's Stat. 1897, p. 1088), pro-depriving any person of life, liberty, or propvides as printed in the margin.

erty without due process of law, or denying f"Sec. 11a. This state shall be divided into , be for the term of two years; but they shall at seven inspection districts, as follows:" etc. all times be subject to removal from office for

"Sec. 110. The governor shall, upon a rec- neglect of duty or malfeasance in the discharge ommendation of a board of examiners elected of duty, as hereinafter provided for. for that purpose, composed of two practical "Sec. 11c. The inspectors so appointed shall coal miners, two coal operators, and one min. have attained the age of thirty years, be citi. Ing engineer, to be appointed by the bureau of zens of this state, and have a knowledge of labor statistics of this state, all of whom shall mining engineering sufficient to conduct the be sworn to a faithful discharge of their duties, development of coal mines, and a practical appoint seven properly qualified persons to fill knowledge of the methods of conducting mining the offices of inspectors of coal mines in this for coal in the presence of explosive gases, and state (being one inspector for each district pro of the proper ventilation of coal mines. They vided for in this act), whose commission shall shall have had a practical mining experience


any person within its jurisdiction the equal gaged in a like business in Kansas, and protection of the law.

thereby denied to that company the equal 2. Another question is whether the act, as protection of the laws. In the case under amended in 1897, in so far as it discrimi. consideration there is no attempt arbitrarinates as to penalties imposed upon some per- ly to select one mine for inspection, but only sons engaged in the mining business, and not to assume that mines which are worked upupon others, is a proper exercise of the po- on so small a scale as to require only five lice power. It is true that the act of 1897 operatives would not be likely to need the amended the former law of 1895, by limiting careful inspection provided for the larger its application to coal mines "where more mines, where the workings were carried on than five men are employed at any one upon a larger scale or at a greater depth time.” This is a species of classification from the surface, and where a much larger which the legislature is at liberty to adopt, force would be necessary for their successful provided it be not wholly arbitrary or un operation. It is quite evident that a mine reasonable, as it was in Cotting v. Kansas which is operated by only five men could City Stock Yards Co. 183 U. S. 79, sub nom. scarcely have passed the experimental stage, Cotting v. Godard, ante, p. 30, 22 Sup. Ct. or that precautions necessary in the oper Rep., 30, in which an act defining what ation of coal mines of ordinary magnitude should constitute public stock yards, and would be required in such cases. There was regulating all charges connected therewith, clearly reasonable foundation for a discrimi. was held to be unconstitutional, because it nation here. applied only to one particular company, and It is true that the act of 1897 does not in not to other companies or corporations en- | terms declare that the act of 1895 shall only of ten years, and shall not be interested as ment, is necessary for the better protection of owner, operator, stockholder, superintendent, the lives and health of persons employed in or mining engineer of any coal mine during said mine ; such statement shall give the date their term of office, and shall be of good moral of inspection and the number of hours spent in character and temperate habits, and shall not the inspection, also the date of the last previous be guilty of any act tending to the injury of inspection, and shall be signed by the inspector miners or operators of mines during their term and the check weighman, and, if there be no of office. They shall provide themselves with check weighman employed by the miners, then the most approved modern instruments for car- said statement shall be signed by the welghman rying out the intention of this act," etc.

at the mine. "Sec. 11d. Any person, company, or corpora

"Sec. 11e. It shall be unlawful for any pertion operating any coal mine in this state shall son, company, or corporation to operate any be required to pay an inspection fee of not less coal mine in this state without first having than $6 nor more than $10 for each visit of incomplied with all the conditions and sanitary spection or investigation of a coal mine by a regulatons required under existing laws, and state mine inspector, such fee to be regulated paying all inspection fees provided for in this by the class of the mine (which shall be pred section; and in case of the refusal of any per. ty the inspector, and depend upon the length of son, company, corporation, owner, agent, or opetime consumed, and the expense necessarily in rator to pay said inspection fees, after assumcurred in the inspection of such mine), and such ing to operate a coal mine, it shall be the duty fees shall be paid quarterly by the person, com- of the state's attorney of the county, or any pany, or corporation operating the mine in other attorney, in case of his refusal promptly spected to the secretary of the bureau of labor to act, to proceed on behalf of the state against statistics, and by him covered into the state said person, company, corporation, owner, treasury, to be held as a fund for the payment agent, or operator of said mine, by injunction, of salaries of state mine inspectors, as herein without bond, to restrain said person, company, provided. It shall be the duty of each in corporation, owner, agent, or operator from conspector, as often as he may deem it necessary tinuing or attempting to continue to operate and proper, and at least four times a year, to said mine or carry on a mining business." inspect each and every mine in his inspection In 1897, $ 11e was amended so as to read as district. Each inspection shall be certified to follows, the words in italics being inserted into by the pit committee and mine manager of said the paragraph as it was originally enacted mine. It shall be the duty of each inspector to (Sess. Laws 1897, p. 269) : keep a detailed record of all Inspections and of “Sec. 11e. It shall be unlawful for any perall fees for such inspections, and he shall ile son, company, or corporation to operate any a copy of the same with the secretary of the coal mine in this state, where more than five state bureau of labor statistics quarterly, be men are employed at any one time, without first tween the 1st and 15th days of the following having complied with all the conditions and months: October, January, April, and July, sanitary regulations required under existing which reports shall be published annually as laws, and paying all inspection fees provided a part of the regular report of the state bureau for in this section; and in case of the refusal of labor statistics. The inspectors provided for of any person, company, corporation, owner, in this act shall receive as full compensation agent, or operator to pay said inspection fees, for their services the sum of $1,800 each per after assuming to operate a coal mine, It shall annum, to be paid quarterly out of such funds be the duty of the mine inspector in said disin the state treasury as may be received for in-trict, through the state's attorney of the county, spection fees : Provided, however, That in the or any other attorney, in case of his refusal to event of such fees being inadequate to compen promptly act, to proceed on behalf of the state sate the inspectors in the amount provided against said person, company, corporation, herein, the deficiency in the salaries shall be owner, agent, or operator of said mine by in. paid out of any moneys in the state treasury Junction, without bond, to restrain said person, not otherwise appropriated. The mine inspector company, corporation, owner, agent, or operator shall be required to post up in some conspicu- from continuing or attempting to continue to ous place, at the top of each mine visited and operate said mine or carry on a mining busiInspected by him, a plain statement of the con ness." dition of sald mine, showing what, in his judg.


apply to coal mines where more than five tions to be made might depend not only upon men are employed at any one time, but mere the size of the mines and the number of the ly exempts the owners of such mines from operatives, but upon the character of the punishment for violations of the general work being done, the nature of the soil belaw. No one, however, can read this act, ing excavated, the depth of the excavation, in connection with the prior act of 1895, and a dozen other features, all of which without perceiving an intention on the part might enter into the basis of a classification of the legislature to exempt such mines from by a competent inspector, and no one of the scope of the act. An act which declares which can be said to be determinative. it to be unlawful for any person to operate We do not regard the act as necessarily mines of a certain class without first com- violative of the 14th*Amendment, in the fact plying with all the conditions and sanitary that some discretion is allowed to the inregulations required under existing laws, spector in determining the number of times and paying all inspection fees, and, in case the mines shall be inspected and the fees of refusal, to make it the duty of the mine fixed therefor, particularly in view of the inspector, through the state's attorney, to fact that no complaint is made of the abuse proceed in behalf of the state against such of such discretion, or that the inspector has person, to compel the discontinuance of the been “guilty of any act tending to the injury inine, is so plainly an exemption from the of miners or operators of mines during their operation of the law of all other mines as term of office." § 11c. to constitute a classification in their favor. While it is undoubtedly true that legisla

3. Another charge is that by § 11d “it tive power cannot be delegated to the courts shall be the duty of each inspector, as often or to the executive, there are some excepas he may deem it necessary and proper, tions to the rule under which it is held that and at least four times a year, to inspect Congress may leave to the President the each and every mine in his inspection dis- power of determining the time when or extrict.” It requires no argument to show igency upon the happening of which a cer. that, for the protection of the operatives, tain act shall take effect. Thus, in the leadone mine may be *required to be inspected ing case of The Aurora v. United States, 7 oftener than another, depending largely up-Cranch, 382, 3 L. ed. 378, it was held that on the number of miners, the depths of their Congress might make the revival of a law workings, and the nature of the ground conditional upon a fact then contingent, and through which the excavations are made. empower the President to declare by proclaWhile at a certain stage of excavation the mation that such fact has occurred and the precautions imposed by the mining inspect- law revived. It has also been the immemoror may be quite adequate for the protection able policy in this country and in England of the operatives, at another time the same to vest in municipal organizations certain precautions would be obviously insufficient, local powers in respect to which they are depending largely upon the rapidity with peculiarly interested, and of the necessities which the excavations were made and the of which they are much better informed than changes of air observed as the excavations a general legislature possibly could be. Othprogressed.

er instances are cited by Judge Cooley in his It is true that the act itself furnishes no work upon Constitutional Limitations [6th basis for a classification as to the number ed. p. 139]: "For the like reasons the quesof inspections and as to the price charged in tion whether a county or a township shall be each case, except that it provides that no divided and a new one formed, or two inspection shall be required unless five oper- townships or school districts, formerly one, atives are employed at the same time, that be reunited,

or a county seat loat least four inspections shall be made each cated at a particular place, or after its locayear, and that the fees shall be dependent tion removed elsewhere, or the municipality upon the length of time consumed and the contract particular debts or engage in a parexpense necessarily incurred in the inspec- ticular improvement,-is always a question tion of such mine. It also provides that the which may be with propriety referred to the charges for each inspection shall not be less voters of the municipality for decision." than $6 nor more than $10.

The last case in this court in which the It is insisted that such classification of question arose is that of Marshall Field & mines, as to the number of inspections and Co. v. Clark, 143 U. S. 649, 36 L. ed. 294, 12 fees therefor, should be made by the legis. Sup. Ct. Rep. 495, in which it was held that lature, and nothing be left to the inspectors while Congress could not under the Constituor other officers to determine the number of tion delegate its legislative power to the times a particular mine shall be inspected President, it might authorize him to susand the fees chargeable therefor. The ordi- pend, hy proclamation, the free introduction nary classification is made by the legisla- of sugar, coffee, and similar articles, when ture, where such classification can be logi- he was satisfied that any country producing cally made, either upon the basis of capital such articles imposed duties or other exacstock, number of operatives, mileage, or oth- tions upou the products of the United States er facts which can be seized upon as an easy which he might deem to be reciprocally unand an approximately just basis for classi- equal or unreasonable. fication. But in such a case as this there In enacting a law with regard to the inare so many elements entering into the clas- spection of mines, we see no objection, in sification as to make it impossible to seize case the legislature find it impracticable to upon one or two, and make them the only classify the mines for the purposes of in. Lasis. For instance, the number of inspec'spection, to commit that power to a body of

experts who are not only experienced in the the length of time*consumed and the expense operation of mines, but are acquainted with necessarily incurred in the inspection of the details necessary to be known to make a such mine. Objection is made upon the reasonable classification, although it may af- ground that it gives to each mining inspectfect the amount of fees to be paid by the or, not only the right to determine the num. mine owners.

ber of times each mine shall be inspected, It is obviously necessary that the number but the fees to be charged in each case. If of inspections per year shall be determined his discretion were unlimited in this direcby some one and by some executive officer. tion, and the fees were retained by himself, As it is clearly a matter of detail which there would be much force in the suggestion; could not be determined by the courts, it oc- but the truth is that the amount of the fee curs to us that it could be intrusted to no must be in each case somewhere between $6 one so safely as to the inspector of the dis- and $10, and must be paid to the secretary trict, who is appointed with great care, and of the bureau of labor statistics, and by him who must be thirty years of age, a citizen of covered into the state treasury, to be held as the state, and have a knowledge of mining a fund for the payment of the salaries of the engineering sufficient to conduct the develop. mining inspectors. Each inspector provided ment of coal mines, and a practical knowl- for by the act receives for his services $1,edge of the method of conducting the mining 800 per annum, to be paid quarterly out of for coal in the presence of explosive gases, the funds in the state treasury received for and of the ventilation of coal mines. Each the inspection fees, and, in the event of such one must have a practical mining experience fees being inadequate to compensate such of ten years, not interested as owner, oper- inspectors in the amount provided for here ator, stockholder, superintendent, or mining in, the deficiency of the salaries shall be engineer of any coal mine during his term paid out of the money in the state treasury of office, and be of good moral character and not otherwise appropriated. It appears temperate habits.

then, first, that the state inspector receives a The stipulation upon which the case was regular salary, neither increased nor dimin. tried shows that the defendants were the ished by the number of inspections or the owners of thirty-one mines, and that they amount paid for each inspection; and, secwere inspected between November 22, 1895, ond, that he receives such salary directly and June 26, 1899, 240 times, which vas at from the bureau of labor statistics, and not the rate of about seventy-eight times per from the fees paid to him therefor. As his year for all of the thirty-one mines, or about compensation is dependent neither upon the two and one half times per year for each number of his visits nor upon the amount mine. As § 11d of the act requires each in- of his fees, it is difficult to see how he would spector to inspect each and every mine in his gain by multiplying one or magnifying the district at least four times a year, it would other. We know of no reason why the leg. seem that, instead of overdoing his duty, islature should deprive itself of the best athe had been derelict in the performance of tainable evidence of the facts it seeks to it.

make determinative of these two questions. 4. It is also true that the fees for each in As we fail to discover any repugnancy bespection shall not be less than $6 nor more tween the acts in question and the 14th than $10, and that such fees shall be regu. Amendment to the Constitution, we are of lated by the class of the mine, which shall opinion that the decree of the Supreme Court be fixed by the inspector, and depend upon was right, and should be affirmed.

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(185 U. S. 182) DANIEL H. TALBOT, Piff. in Err., The petition also alleged that the books

and accounts wherein said transactions were SIOUX NATIONAL BANK OF SIOUX kept were in the possession of the defendCITY, IOWA.

ant, and “that the plaintiff has no itemized

statement of the account between him and Error to state court-Federal question the defendant,” and that therefore*he was

Usury by national banksaction to recov- unable to incorporate in the petition a stateer back usurious interest--when barred by ment of the accounts or bill of particulars. limitation-concealment of wrong-suffi

The petition also alleged that there was ciency of petition.

due plaintiff the sum of $250, deposited by

him with the defendant, which had never 1. A decision by the highest court of a state been drawn out or paid to him.

adverse to the right claimed under U. S. Upon demurrer to the petition the court Rev. Stat. $$ 5197, 5198, to recover back ordered it to be more specific, "so far as to usurious interest from a national bank, pre- require the plaintiff to state his cause of acsents a Federal question, whlch gives to the tion for usury in one count, and also to Supreme Court of the United States the state his cause of action for a deposit in a right to review the judgment of such state separate count, and also to state the amount

court. 2. A petition to recover back usurlous Inter- claimed as usury that was paid within two

est from a national bank, under U. S. Rev. years next prior to the commencement of Stat. $1 5197, 5198, which shows on its this cause of action.” The petition was face that the action was not "commenced thereupon amended. within two years from the time the usurious We are only concerned with the first and transactions occurred," as required by the second counts, which alleged the usury. It latter section, cannot withstand a demurrer was alleged in the first count that on or because of an allegation that the charge and about the 27th of May, 1889, the plaintiff reservation of the usurious interest were commenced doing business with the bank in without plaintiff's knowledge or consent, since, even if the period of limitation of the the ordinary way between the bank and its statute does not begin until discovery of the patrons, and continued to so do business wrong, the court will not indulge the pre- with it until it closed its doors on or about sumption that plaintiff's consciousness of the the 27th of August, 1896. That during that wrong was not aroused until sometime with time the bank knowingly charged him with 10 two years before the commencement of the a greater rate of interest than allowed by the action.

laws of Iowa, which amounted to more than (No. 190.)

$1, but the exact amount of which he was

unable to state, because the books containing Argued March 17, 18, 1902. Decided April the transactions were in the possession of 14, 1902.

the bank.

That on the 24th of February, 1890, the N ERROR to the Supreme Court of the bank added the amount of usurious interest affirmed a judgment of the District Court of of plaintiff, and included both and the sum Woodbury County sustaining a demurrer to of $2,000 advanced to plaintiff, making a a petition in an action to recover back usu- total of $10,000, in a promissory note bear. rious interest from a national bank. Af-ing interest at the rate of 10 per cent per firmed.

annum, and as collateral security for said See same case below, 111 Iowa, 583, 82 N. note plaintiff assigned to the bank all of his W. 963.

equity in eighty-one contracts, covering 3,

290.57 acres of land in Plymouth county, Statement by Mr. Justice McKenna:

Iowa. This is an action brought in the district That on the 4th of March, 1890, plaintiff court of Woodbury county, Iowa, under $8 executed to the bank a non-negotiable prom. 5197 and 5198 of the Revised Statutes of the issory note for $28,000, to cover all of his in. United States, relating to national banks, to debtedness to the bank, to wit, $14,500, in a recover the sum of $16,250, the amount of draft, to pay on certain railroad lands; the interest alleged to have been unlawfully $10,000 note herein mentioned before, and charged and collected by the defendant bank. the unlawful and usurious interest knowing,

The original petition alleged as follows: ly reserved and charged prior thereto, and

"The plaintiff claims of the defendants, continued in said $10,000 note* aforesaid, and each of them, the sum of $16,000, as and continued and renewed in the $28,000 money justly due plaintiff from defendants, note.” on account of unlawful and usurious interest To secure said note plaintiff executed a knowingly and unlawfully taken from the mortgage of the land aforesaid. plaintiff within the seven years last past. "That the above note and mortgage, which

“The plaintiff further alleges that during were made upon the 4th day of March, 1890, said time he had various and numerous busi- did include the $10,000 illegal and unearned ness transactions with the defendant bank; note, and interest to the amount of $17.10; in all said transactions defendant charged and which said note and mortgage were and exacted a greater rate of interest for the made to date back and to bear date of March use of moneys had and received by plaintiff 1, 1890, thereby increasing the rate of interfrom the defendants than the law recognizes est on the $10,000 note to about 14 per cent or permits a national bank to charge for the per annum; and which said illegal, unlawDise of money."

ful, and usurious interest was knowingly re

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