*204

See same case below, 186 Ill. 134, 57 N. E. 880.

*The supreme court found that all the state 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 ly 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 ground of its repugnancy to the 14th Amendment to the Constitution. The motion was denied, although the supreme court did not in terms pass upon the Federal constitutionality of the law. But this was a sufficient presentation of the Federal question.

thereto.

The case was submitted to the court without a jury, upon a stipulation of facts, in which it was agreed that the mines of the defendant, thirty-one in number, had been inspected between November 2, 1895, and June 26, 1899, by a state inspector, whose aggregate fees were $1,818; that the secretary of the bureau of labor statistics presented the defendant with the inspection bills and demanded payment therefor, which defendant refused to pay.

The regulation of mines and miners, their hours of labor, and the precautions that shall be taken to insure their safety, health, and comfort, are so obviously within the police power of the several states that no citation of authorities is necessary to vindicate the general principle. Many of these cases are reviewed in Holden v. Hardy, 169 U. S. 366, 42 L. ed. 780, 18 Sup. Ct. Rep. 383, in which it was held to be competent for a state legislature to limit the hours of labor, in mines and smelting works, to eight per day.

It was further stipulated that the charge for the recovery of which this action was brought was made in pursuance of the act of May 28, 1879, and that the question to be raised and disposed of was the validity and constitutionality of so much of said aboveentitled act and the amendments thereto as 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 any remedy at law to recover such fees.

A judgment having been entered for the payment of these fees, the case was carried by writ of error to the supreme court, where the judgment of the circuit court of St. Clair county was affirmed.

Mr. Charles W. Thomas for plaintiff in

error.

Mr. Howland J. Hamlin for defendant in error.

Mr. Justice Brown delivered the opinion of the court:

The act of the general assembly of the state of Illinois, entitled "An Act to Provide for the Health and Safety of Persons Employed in Coal Mines," originally passed May 28, 1879, subsequently incorporated in the Revised Statutes of 1895, and amended in 1897 (Hurd's Stat. 1897, p. 1088), provides as printed in the margin.†

"Sec. 11a. This state shall be divided into seven inspection districts, as follows:" etc. "Sec. 11b. The governor shall, upon a recommendation of a board of examiners elected for that purpose, composed of two practical coal miners, two coal operators, and one mining engineer, to be appointed by the bureau of labor statistics of this state, all of whom shall be sworn to a faithful discharge of their duties, appoint seven properly qualified persons to fill the offices of inspectors of coal mines in this state (being one inspector for each district provided for in this act), whose commission shall

their payment by the owners of mines (Northwestern Union Packet Co. V. St. Louis, 100 U. S. 423, 25 L. ed. 688; Morgan's L. & T. R. & S. S. Co. v. Louisiana Bd. of Health, 118 U. S. 455, 30 L. ed. 237, 6 Sup. Ct. Rep. 1114; Nashville, C. & St. L. R. Co. v. Alabama, 128 U. S. 96, 101, 32 L. ed. 352, 354, 2 Inters. Com. Rep. 238, 9 Sup. Ct. Rep. 28; Mobile County v. Kimball, 102 U. S. 691, 26 L. ed. 238; Charlotte, C. & A. R. Co. v. Gibbes, 142 U. S. 386, 35 L. ed. 1051, 12 Sup. Ct. Rep. 255; Chicago, W. & V. Coal Co. v. People, 181 Ill. 270, 48 L. R. A. 554, 54 N. E. 961); but it is insisted that the acts here involved, in so far as they give to district mining inspectors a discretion as to the number of times they shall inspect such nines and a further discrimination as to what fees they shall charge, within the limit fixed by these acts, is in contravention of the 14th Amendment forbidding a state from depriving any person of life, liberty, or property without due process of law, or denying be for the term of two years: but they shall at all times be subject to removal from office for neglect of duty or malfeasance in the discharge of duty, as hereinafter provided for.

"Sec. 11c. The inspectors so appointed shall have attained the age of thirty years, be citizens of this state, and have a knowledge of mining engineering sufficient to conduct the development of coal mines, and a practical knowledge of the methods of conducting mining for coal in the presence of explosive gases, and of the proper ventilation of coal mines. They 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 protection of the laws. In the case under consideration there is no attempt arbitrarily to select one mine for inspection, but only to assume that mines which are worked upon so small a scale as to require only five operatives would not be likely to need the careful inspection provided for the larger mines, where the workings were carried on upon a larger scale or at a greater depth from the surface, and where a much larger force would be necessary for their successful

2. Another question is whether the act, as amended in 1897, in so far as it discriminates as to penalties imposed upon some persons engaged in the mining business, and not upon others, is a proper exercise of the police power. It is true that the act of 1897 amended the former law of 1895, by limiting its application to coal mines "where more than five men are employed at any one time." This is a species of classification which the legislature is at liberty to adopt, provided it be not wholly arbitrary or un-operation. It is quite evident that a mine reasonable, as it was in Cotting v. Kansas City Stock Yards Co. 183 U. S. 79, sub nom. Cotting v. Godard, ante, p. 30, 22 Sup. Ct. Rep. 30, in which an act defining what should constitute public stock yards, and regulating all charges connected therewith, was held to be unconstitutional, because it applied only to one particular company, and not to other companies or corporations enof ten years, and shall not be interested as owner, operator, stockholder, superintendent, or mining engineer of any coal mine during their term of office, and shall be of good moral character and temperate habits, and shall not be guilty of any act tending to the injury of miners or operators of mines during their term of office. They shall provide themselves with the most approved modern instruments for carrying out the intention of this act," etc.

which is operated by only five men could scarcely have passed the experimental stage, or that precautions necessary in the operation of coal mines of ordinary magnitude would be required in such cases. There was clearly reasonable foundation for a discrimi nation here.

It is true that the act of 1897 does not in terms declare that the act of 1895 shall only ment, is necessary for the better protection of the lives and health of persons employed in said mine; such statement shall give the date of inspection and the number of hours spent in the inspection, also the date of the last previous inspection, and shall be signed by the inspector and the check weighman, and, if there be no check weighman employed by the miners, then said statement shall be signed by the weighman at the mine.

"Sec. 11e. It shall be unlawful for any per son, company, or corporation to operate any coal mine in this state without first having complied with all the conditions and sanitary regulatons required under existing laws, and paying all inspection fees provided for in this section; and in case of the refusal of any person, company, corporation, owner, agent, or operator to pay said inspection fees, after assuming to operate a coal mine, it shall be the duty of the state's attorney of the county, or any other attorney, in case of his refusal promptly to act, to proceed on behalf of the state against said person, company, corporation, owner, agent, or operator of said mine, by injunction, without bond, to restrain said person, company, corporation, owner, agent, or operator from continuing or attempting to continue to operate said mine or carry on a mining business."

In 1897, § 11e was amended so as to read as follows, the words in italics being inserted into the paragraph as it was originally enacted (Sess. Laws 1897, p. 269):

"Sec. 11d. Any person, company, or corporation operating any coal mine in this state shall be required to pay an inspection fee of not less than 86 nor more than $10 for each visit of inspection or investigation of a coal mine by a state mine inspector, such fee to be regulated by the class of the mine (which shall be fixed by the inspector, and depend upon the length of time consumed, and the expense necessarily incurred in the inspection of such mine), and such fees shall be paid quarterly by the person, company, or corporation operating the mine inspected to the secretary of the bureau of labor statistics, and by him covered into the state treasury, to be held as a fund for the payment of salaries of state mine inspectors, as herein provided. It shall be the duty of each inspector, as often as he may deem it necessary and proper, and at least four times a year, to inspect each and every mine in his inspection district. Each inspection shall be certified to by the pit committee and mine manager of said mine. It shall be the duty of each inspector to keep a detailed record of all inspections and of all fees for such inspections, and he shall file a copy of the same with the secretary of the state bureau of labor statistics quarterly, between the 1st and 15th days of the following months: October, January, April, and July, which reports shall be published annually as a part of the regular report of the state bureau of labor statistics. The inspectors provided for in this act shall receive as full compensation for their services the sum of $1,800 each per annum, to be paid quarterly out of such funds in 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 event of such fees being inadequate to compensate the inspectors in the amount provided herein, the deficiency in the salaries shall be paid out of any moneys in the state treasury not otherwise appropriated. The mine inspector shall be required to post up in some conspicuous place, at the top of each mine visited and inspected by him. a plain statement of the condition of sald mine, showing what, in his judg

"Sec. 11e. It shall be unlawful for any per son, company, or corporation to operate any coal mine in this state, where more than five men are employed at any one time, without first having complied with all the conditions and sanitary regulations required under existing laws, and paying all inspection fees provided for in this section; and in case of the refusal of any person, company, corporation, owner, agent, or operator to pay said inspection fees, after assuming to operate a coal mine, It shall be the duty of the mine inspector in said dis

or any other attorney, in case of his refusal to promptly act, to proceed on behalf of the state against said person, company, corporation, owner, agent, or operator of said mine by injunction, without bond, to restrain said person, company, corporation, owner, agent, or operator from continuing or attempting to continue to operate said mine or carry on a mining business."

•209

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. by 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 upon 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 inbasis. For instance, the number of inspec-spection, to commit that power to a body of

experts who are not only experienced in the operation of mines, but are acquainted with the details necessary to be known to make a reasonable classification, although it may affect the amount of fees to be paid by the mine owners.

If

the length of time consumed and the expense necessarily incurred in the inspection of such mine. Objection is made upon the ground that it gives to each mining inspector, not only the right to determine the number of times each mine shall be inspected, It is obviously necessary that the number but the fees to be charged in each case. 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 of ten years, not interested as owner, operator, stockholder, superintendent, or mining engineer of any coal mine during his term of office, and be of good moral character and temperate habits.

The stipulation upon which the case was tried shows that the defendants were the owners of thirty-one mines, and that they were inspected between November 22, 1895. and June 26, 1899, 240 times, which was at the rate of about seventy-eight times per year for all of the thirty-one mines, or about two and one half times per year for each mine. As § 11d of the act requires each inspector to inspect each and every mine in his district at least four times a year, it would seem that, instead of overdoing his duty, he had been derelict in the performance of it.

4. It is also true that the fees for each in spection shall not be less than $6 nor more than $10, and that such fees shall be regulated by the class of the mine, which shall be fixed by the inspector, and depend upon

fees being inadequate to compensate such inspectors in the amount provided for herein, the deficiency of the salaries shall be paid out of the money in the state treasury not otherwise appropriated. It appears then, first, that the state inspector receives a regular salary, neither increased nor dimin ished by the number of inspections or the amount paid for each inspection; and, second, that he receives such salary directly from the bureau of labor statistics, and not from the fees paid to him therefor. As his compensation is dependent neither upon the number of his visits nor upon the amount of his fees, it is difficult to see how he would gain by multiplying one or magnifying the other. We know of no reason why the legislature should deprive itself of the best attainable evidence of the facts it seeks to make determinative of these two questions.

As we fail to discover any repugnancy between the acts in question and the 14th Amendment to the Constitution, we are of opinion that the decree of the Supreme Court was right, and should be affirmed.

The petition also alleged that the books and accounts wherein said transactions were kept were in the possession of the defendant, and "that the plaintiff has no itemized statement of the account between him and the defendant," and that therefore he was unable to incorporate in the petition a statement of the accounts or bill of particulars.

The petition also alleged that there was due plaintiff the sum of $250, deposited by him with the defendant, which had never been drawn out or paid to him.

Upon demurrer to the petition the court ordered it to be more specific, "so far as to require the plaintiff to state his cause of action for usury in one count, and also to state his cause of action for a deposit in a separate count, and also to state the amount

1. A decision by the highest court of a state adverse to the right claimed under U. S. Rev. Stat. § 5197, 5198, to recover back usurious interest from a national bank, presents a Federal question, which gives to the Supreme Court of the United States the right to review the judgment of such state court. 2. A petition to recover back usurious inter-claimed as usury that was paid within two est from a national bank, under U. S. Rev. Stat. § 5197, 5198, which shows on Its face that the action was not "commenced within two years from the time the usurious transactions occurred," as required by the latter section, cannot withstand a demurrer because of an allegation that the charge and

consent,

reservation of the usurious interest were
without plaintiff's knowledge or
since, even if the period of limitation of the
statute does not begin until discovery of the
wrong, the court will not indulge the pre-
sumption that plaintiff's consciousness of the
wrong was not aroused until sometime with-
in two years before the commencement of the

action.

[No. 190.]

years next prior to the commencement of this cause of action." The petition was thereupon amended.

We are only concerned with the first and second counts, which alleged the usury. It was alleged in the first count that on or about the 27th of May, 1889, the plaintiff commenced doing business with the bank in the ordinary way between the bank and its patrons, and continued to so do business with it until it closed its doors on or about the 27th of August, 1896. That during that time the bank knowingly charged him with a greater rate of interest than allowed by the laws of Iowa, which amounted to more than $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 bank added the amount of usurious interest to legitimate

IN ERROR to the Supreme Court of the 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 bearrious interest from a national bank. Af-ing interest at the rate of 10 per cent per firmed.

See same case below, 111 Iowa, 583, 82 W. 963.

annum, and as collateral security for said N. note plaintiff assigned to the bank all of his equity in eighty-one contracts, covering 3,290.57 acres of land in Plymouth county, Iowa.

Statement by Mr. Justice McKenna: This is an action brought in the district court of Woodbury county, Iowa, under §§ 5197 and 5198 of the Revised Statutes of the United States, relating to national banks, to recover the sum of $16,250, the amount of interest alleged to have been unlawfully charged and collected by the defendant bank. The original petition alleged as follows: "The plaintiff claims of the defendants, and each of them, the sum of $16,000, as money justly due plaintiff from defendants, on account of unlawful and usurious interest knowingly and unlawfully taken from the plaintiff within the seven years last past.

"The plaintiff further alleges that during said time he had various and numerous business transactions with the defendant bank; in all said transactions defendant charged and exacted a greater rate of interest for the use of moneys had and received by plaintiff from the defendants than the law recognizes or permits a national bank to charge for the use of money."

That on the 4th of March, 1890, plaintiff executed to the bank a non-negotiable promissory note for $28,000, to cover all of his indebtedness to the bank, to wit, $14,500, in a draft, to pay on certain railroad lands; the $10,000 note herein mentioned before, and the unlawful and usurious interest knowingly reserved and charged prior thereto, and. continued in said $10,000 note aforesaid,* and continued and renewed in the $28,000 note."

To secure said note plaintiff executed a mortgage of the land aforesaid.

"That the above note and mortgage, which were made upon the 4th day of March, 1890, did include the $10,000 illegal and unearned note, and interest to the amount of $17.10; and which said note and mortgage were made to date back and to bear date of March 1, 1890, thereby increasing the rate of interest on the $10,000 note to about 14 per cent per annum; and which said illegal, unlaw ful, and usurious interest was knowingly re

184