CONSOLIDATED COAL COMPANY OF ST. LOUIS, Plff. in Err., v. PEOPLE OF THE STATE OF ILLINOIS.

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 printedin the margin.1

The supreme court found that all the state questions involved in this case had been disposed of in Chicago, W. & V. Coal Co. v. People, 181 Ill. 270, 48 L. R. A. 554, 54 N. E. 961. It only remains for us to determine whether the validity of the state statute above cited was drawn in question on the ground of its repugnancy to the Constitution and laws of the United States, and the decision was in favor of its validity, when it should have been held invalid. While the constitutionality of the law was not specially set up and claimed before the trial in the circuit court, there was a motion made in arrest of judgment, in which the invalidity 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.

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 in 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.

1. We do not understand the general principle to be questioned that the state may appoint mining inspectors and provide for 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 mines 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 any person within its jurisdiction the equal protection of the law.

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 unreasonable, 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 engaged in a like business in Kansas, and 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 operation. It is quite evident that a mine 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 discrimination here.

It is true that the act of 1897 does not in terms declare that the act of 1895 shall only apply to coal mines where more than five men are employed at any one time, but merely exempts the owners of such mines from punishment for violations of the general law. No one, however, can read this act, in connection with the prior act of 1895, without perceiving an intention on the part of the legislature to exempt such mines from the scope of the act. An act which declares it to be unlawful for any person to operate mines of a certain class without first complying with all the conditions and sanitary regulations required under existing laws, and paying all inspection fees, and, in case of refusal, to make it the duty of the mine inspector, through the state's attorney, to proceed in behalf of the state against such person, to compel the discontinuance of the mine, is so plainly an exemption from the operation of the law of all other mines as to constitute a classification in their favor.

3. Another charge is that by § 11d '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.' It requires no argument to show that, for the protection of the operatives, one mine may be required to be inspected oftener than another, depending largely upon the number of miners, the depths of their workings, and the nature of the ground through which the excavations are made. While at a certain stage of excavation the precautions imposed by the mining inspector may be quite adequate for the protection of the operatives, at another time the same precautions would be obviously insufficient, depending largely upon the rapidity with which the excavations were made and the changes of air observed as the excavations progressed.

It is true that the act itself furnishes no basis for a classification as to the number of inspections and as to the price charged in each case, except that it provides that no inspection shall be required unless five operatives are employed at the same time, that at least four inspections shall be made each years, and that the fees shall be dependent upon the length of time consumed and the expense necessarily incurred in the inspection of such mine. It also provides that the charges for each inspection shall not be less than $6 nor more than $10.

It is insisted that such classification of mines, as to the number of inspections and fees therefor, should be made by the legislature, and nothing be left to the inspectors or other officers to determine the number of times a particular mine shall be inspected and the fees chargeable therefor. The ordinary classification is made by the legislature, where such classification can be logically made, either upon the basis of capital stock, number of operatives, mileage, or other facts which can be seized upon as an easy and an approximately just basis for classification. But in such a case as this there are so many elements entering into the classification as to make it impossible to seize upon one or two, and make them the only basis. For instance, the number of inspections to be made might depend not only upon the size of the mines and the number of the operatives, but upon the character of the work being done, the nature of the soil being excavated, the depth of the excavation, and a dozen other features, all of which might enter into the basis of a classification by a competent inspector, and no one of which can be said to be determinative.

We do not regard the act as necessarily violative of the 14th amendment, in the fact that some discretion is allowed to the inspector in determining the number of times the mines shall be inspected and the fees fixed therefor, particularly in view of the fact that no complaint is made of the abuse of such discretion, or that the inspector has been 'guilty of any act tending to the injury of miners or operators of mines during their term of office.' § 11c.

While it is undoubtedly true that legislative power cannot be delegated to the courts or to the executive, there are some exceptions to the rule under which it is held that Congress may leave to the President the power of determining the time when or exigency upon the happening of which a certain act shall take effect. Thus, in the leading case of The Aurora v. United States, 7 Cranch, 382, 3 L. ed. 378, it was held that Congress might make the revival of a law conditional upon a fact then contingent, and empower the President to declare by proclamation that such fact has occurred and the law revived. It has also been the immemorable policy in this country and in England to vest in municipal organizations certain local powers in respect to which they are peculiarly interested, and of the necessities of which they are much better informed than a general legislature possibly could be. Other instances are cited by Judge Cooley in his work upon Constitutional Limitations [6th ed. p. 139]: 'For the like reasons the question whether a county or a township shall be divided and a new one formed, or two townships or school districts, formerly one, be reunited, . . . or a county seat located at a particular place, or after its location removed elsewhere, or the municipality contract particular debts or engage in a particular improvement,—is always a question which may be with propriety referred to the voters of the municipality for decision.'

The last case in this court in which the question arose is that of Marshall Field & Co. v. Clark, 143 U. S. 649, 36 L. ed. 294, 12 Sup. Ct. Rep. 495, in which it was held that while Congress could not under the Constitution delegate its legislative power to the President, it might authorize him to suspend, by proclamation, the free introduction of sugar, coffee, and similar articles, when he was satisfied that any country producing such articles imposed duties or other exactions upon the products of the United States which he might deem to be reciprocally unequal or unreasonable.

In enacting a law with regard to the inspection of mines, we see no objection, in case the legislature find it impracticable to classify the mines for the purposes of inspection, 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.

It is obviously necessary that the number of inspections per year shall be determined by some one and by some executive officer. As it is clearly a matter of detail which could not be determined by the courts, it occurs to us that it could be intrusted to no one so safely as to the inspector of the district, who is appointed with great care, and who must be thirty years of age, a citizen of the state, and have a knowledge of mining engineering sufficient to conduct the development of coal mines, and a practical knowledge of the method of conducting the mining for coal in the presence of explosive gases, and of the ventilation of coal mines. Each 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 inspection 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 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, but the fees to be charged in each case. If his discretion were unlimited in this direction, and the fees were retained by himself, there would be much force in the suggestion; but the truth is that the amount of the fee must be in each case somewhere between $6 and $10, and must be paid 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 the salaries of the mining inspectors. Each inspector provided for by the act receives for his services $1,800 per annum, to be paid quarterly out of the funds in the state treasury received for the inspection fees, and, in the event of such 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 diminished 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.