RICE, C. J.
Respondent recovered judgment against appellant for the sum of $107.53 and $50 attorney fees in an action instituted to recover for wages as an employee. On January 17, 1918, respondent made written demand for $33.90. Appellant admitted in its answer that there was due respondent $24.01. By stipulation it was agreed that the actual amount due was $23.91. It seems to be conceded that at the time the written demand wás made, the payment for wages was due. ‘The remainder of the judgment was given for time after respondent ceased to work for appellant until suit was brought, during which he was without employment. Respondent was not discharged by appellant, but quit work of his own accord.
Respondent seeks to uphold. the judgment by virtue of C. S., sees. 7380 and 7381. Section 7380 is as follows:
“■Whenever a mechanic, artisan, miner, laborer, servant or employee shall have cause to bring suit for wages earned and due according to the terms of his employment, and shall establish, by decision of the court or verdict of the jury, that the amount for which he has brought suit is justly due, and that a demand has.been made, in writing, at least five days before suit was brought, .for a sum not to exceed the amount so fqund due, it shall be the duty of the court before which the case shall be tried to allow to the plaintiff a reasonable attorney’s fee, in addition to the amount found due for wages, to be taxed as costs of suit. ’ ’
Under this section the judgment for attorney fees cannot be sustained. In this case it cannot be determined from the judgment itself what portion of it the court found was due for wages, but in view of the record the greatest amount of the judgment which could represent wages due is the amount admitted by the answer, namely, $24.01. The written demand was for an amount exceeding any amount which could be found due for wages, and therefore under the [787] terms of the statute respondent was not entitled to judgment for attorney fees.
O. S., see. 7381, is as follows: “Whenever any employer of labor shall hereafter discharge or lay off his or its employees without first paying them the amount of any wages or salary then due them, in cash, lawful money of the United States, or its equivalent, or shall fail or refuse on demand to pay them in like money, or its equivalent, the amount of any wages or salary at the time the same becomes due and owing to them under their contract of employment, whether employed by the hour, day, week or month, each of his or its employees may charge and collect wages in the sum agreed upon in the contract of employment for each day his employer is in default until he is paid in full, without rendering any service therefor: Provided, however, he shall cease to draw such wages or salary 30 days after such default.”
The constitutionality of this statute when reasonably construed was upheld in Olson v. Idora Hill Mining Co., 28 Ida. 504, 155 Pac. 291.
Respondent does not bring himself within the first alternative of the section, because he was not discharged or laid off by appellant.
The question presented under the seeond alternative is whether respondent may recover wages without rendering service therefor, when his demand is for an excessive amount, although the wages earned while in the employ of appellant was due when demand was made. This section of the statute, unlike the preceding one, does not in terms preclude recovery of the penalty in case excessive demand is made. It does not require that the demand be made in writing, nor that any amount should be named by the claimant.
In support of the contention that a demand for an excessive amount prevents a recovery of the penalty provided for in this section, and that otherwise the section must be held unconstitutional, appellant cites St. Louis Iron Mountain etc. R. Co. v. Wynne, 224 U. S. 354, 32 Sup. Ct. 493, [788]*78856 L. ed. 799, 42 L. R. A., N. S., 102, see, also, Rose’s U. S. Notes; Pacific Mutual Life Ins. Co. v. Carter, 92 Ark. 378, 123 S. W. 384, 124 S. W. 764; Pierce v. Chicago & N. W. R. Co., 180 Iowa, 1385, 164 N. W. 182.
In those cases the claims were for unliquidated damages for the destruction of property. In the case of Chicago M. & St. P. R. Co. v. Polt, 232 U. S. 165, 34 Sup. Ct. 301, 58 L. ed. 554, see, also, Rose’s U. S. Notes, the plaintiff demanded $838.20. The railroad company offered $500, and plaintiff got a verdict for $780. ° The statute of South Dakota required the railroad company, within sixty days after notice, to offer in writing to pay a fixed sum, being the full amount of damages sustained, and if the owner refused to accept the offer, then in any action thereafter brought for such damages i^ such owner recovered less than the amount offered he cofild recover only his damages; otherwise, the railroad company should be liable for double the amount of damages actually sustained. The court, through Mr. Justice Holmes, said:
“No doubt states have a large latitude in the policy that they will pursue and enforce, but the rudiments of fair play required by the 14th amendment are wanting when a defendant is required to guess rightly what a jury will find, or pay double if that body sees fit to add one cent to the amount that was tendered, although the tender was obviously futile because of an excessive demand.”
In such eases, however, if the claimant is able to forecast the action of the jury' and does not demand an amount greater than that body finds his actual damage to have been, he is entitled to recover the penalty. (Kansas City So. R. Co. v. Anderson, 233 U. S. 325, 34 Sup. Ct. 599, 58 L. ed. 983, see, also, Rose’s U. S. Notes.)
These considerations do not appear to be applicable in a case where the amount due is fixed by contract and may be determined by simple computation. The means of determining the amount due is within the control of the employer. He has the data at hand to enable him to determine in [789] each case the proper amount to be paid. He may relieve himself from liability for the penalty by tendering the proper amount. (26 R. C. L., p. 648, sec. 30; p. 652, sec. 34; Mobile & Ohio R. Co. v. Brandon, 98 Miss. 461, 53 So. 957, 42 L. R. A., N. S., 106.
That the employer has the means of knowing the amount due is a proper matter to take into consideration finds support in the case of Seaboard Air Line R. Co. v. Seegers, 207 U. S. 73, 28 Sup. Ct. 28, 52 L. ed. 110, see, also, Rose’s U. S. Notes.
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RICE, C. J.
Respondent recovered judgment against appellant for the sum of $107.53 and $50 attorney fees in an action instituted to recover for wages as an employee. On January 17, 1918, respondent made written demand for $33.90. Appellant admitted in its answer that there was due respondent $24.01. By stipulation it was agreed that the actual amount due was $23.91. It seems to be conceded that at the time the written demand wás made, the payment for wages was due. ‘The remainder of the judgment was given for time after respondent ceased to work for appellant until suit was brought, during which he was without employment. Respondent was not discharged by appellant, but quit work of his own accord.
Respondent seeks to uphold. the judgment by virtue of C. S., sees. 7380 and 7381. Section 7380 is as follows:
“■Whenever a mechanic, artisan, miner, laborer, servant or employee shall have cause to bring suit for wages earned and due according to the terms of his employment, and shall establish, by decision of the court or verdict of the jury, that the amount for which he has brought suit is justly due, and that a demand has.been made, in writing, at least five days before suit was brought, .for a sum not to exceed the amount so fqund due, it shall be the duty of the court before which the case shall be tried to allow to the plaintiff a reasonable attorney’s fee, in addition to the amount found due for wages, to be taxed as costs of suit. ’ ’
Under this section the judgment for attorney fees cannot be sustained. In this case it cannot be determined from the judgment itself what portion of it the court found was due for wages, but in view of the record the greatest amount of the judgment which could represent wages due is the amount admitted by the answer, namely, $24.01. The written demand was for an amount exceeding any amount which could be found due for wages, and therefore under the [787] terms of the statute respondent was not entitled to judgment for attorney fees.
O. S., see. 7381, is as follows: “Whenever any employer of labor shall hereafter discharge or lay off his or its employees without first paying them the amount of any wages or salary then due them, in cash, lawful money of the United States, or its equivalent, or shall fail or refuse on demand to pay them in like money, or its equivalent, the amount of any wages or salary at the time the same becomes due and owing to them under their contract of employment, whether employed by the hour, day, week or month, each of his or its employees may charge and collect wages in the sum agreed upon in the contract of employment for each day his employer is in default until he is paid in full, without rendering any service therefor: Provided, however, he shall cease to draw such wages or salary 30 days after such default.”
The constitutionality of this statute when reasonably construed was upheld in Olson v. Idora Hill Mining Co., 28 Ida. 504, 155 Pac. 291.
Respondent does not bring himself within the first alternative of the section, because he was not discharged or laid off by appellant.
The question presented under the seeond alternative is whether respondent may recover wages without rendering service therefor, when his demand is for an excessive amount, although the wages earned while in the employ of appellant was due when demand was made. This section of the statute, unlike the preceding one, does not in terms preclude recovery of the penalty in case excessive demand is made. It does not require that the demand be made in writing, nor that any amount should be named by the claimant.
In support of the contention that a demand for an excessive amount prevents a recovery of the penalty provided for in this section, and that otherwise the section must be held unconstitutional, appellant cites St. Louis Iron Mountain etc. R. Co. v. Wynne, 224 U. S. 354, 32 Sup. Ct. 493, [788]*78856 L. ed. 799, 42 L. R. A., N. S., 102, see, also, Rose’s U. S. Notes; Pacific Mutual Life Ins. Co. v. Carter, 92 Ark. 378, 123 S. W. 384, 124 S. W. 764; Pierce v. Chicago & N. W. R. Co., 180 Iowa, 1385, 164 N. W. 182.
In those cases the claims were for unliquidated damages for the destruction of property. In the case of Chicago M. & St. P. R. Co. v. Polt, 232 U. S. 165, 34 Sup. Ct. 301, 58 L. ed. 554, see, also, Rose’s U. S. Notes, the plaintiff demanded $838.20. The railroad company offered $500, and plaintiff got a verdict for $780. ° The statute of South Dakota required the railroad company, within sixty days after notice, to offer in writing to pay a fixed sum, being the full amount of damages sustained, and if the owner refused to accept the offer, then in any action thereafter brought for such damages i^ such owner recovered less than the amount offered he cofild recover only his damages; otherwise, the railroad company should be liable for double the amount of damages actually sustained. The court, through Mr. Justice Holmes, said:
“No doubt states have a large latitude in the policy that they will pursue and enforce, but the rudiments of fair play required by the 14th amendment are wanting when a defendant is required to guess rightly what a jury will find, or pay double if that body sees fit to add one cent to the amount that was tendered, although the tender was obviously futile because of an excessive demand.”
In such eases, however, if the claimant is able to forecast the action of the jury' and does not demand an amount greater than that body finds his actual damage to have been, he is entitled to recover the penalty. (Kansas City So. R. Co. v. Anderson, 233 U. S. 325, 34 Sup. Ct. 599, 58 L. ed. 983, see, also, Rose’s U. S. Notes.)
These considerations do not appear to be applicable in a case where the amount due is fixed by contract and may be determined by simple computation. The means of determining the amount due is within the control of the employer. He has the data at hand to enable him to determine in [789] each case the proper amount to be paid. He may relieve himself from liability for the penalty by tendering the proper amount. (26 R. C. L., p. 648, sec. 30; p. 652, sec. 34; Mobile & Ohio R. Co. v. Brandon, 98 Miss. 461, 53 So. 957, 42 L. R. A., N. S., 106.
That the employer has the means of knowing the amount due is a proper matter to take into consideration finds support in the case of Seaboard Air Line R. Co. v. Seegers, 207 U. S. 73, 28 Sup. Ct. 28, 52 L. ed. 110, see, also, Rose’s U. S. Notes.
In the case of Gulf C. & S. F. R. Co. v. Ellis, 165 U. S. 150, 17 Sup. Ct. 255, 41 L. ed. 666, see, also, Rose’s U. S. Notes, the court held a law which permitted recovery of attorney fees in certain actions against railroad corporations was invalid,’ on the ground that it denied to railroad corporations equal protection of the laws under the fourteenth amendment to the federal constitution. In the course of the opinion, however, there is the following paragraph:
“But a mere statute to compel the payment of indebtedness does not come within the scope of police regulations. The hazardous business of railroading carries with it no special necessity for the prompt payment of debts. That it is a duty resting upon all debtors, and while in certain cases there may be a peculiar obligation which may be enforced by penalties, yet nothing of that kind springs from the mere work of railroad transportation. Statutes have been sustained giving special protection to the claims of laborers and mechanics, but no such idea underlies this legislation. It does not aim to protect the laborer or the mechanic alone, for its benefits are conferred upon every individual in the state, rich or poor, high or low, who has a claim of the character described. It is not a statute for the protection of particular; classes of individuals supposed to need protection, but for the punishment of certain corporations on account of their delinquency.”
The statute we are considering is designed for the protection of laborers and mechanics and to prevent the neces[790] sity of their being delayed in the collection of wages due upon ceasing their employment and the consequent loss of time while awaiting settlement for services rendered. It provides that upon failure of an employer on demand to pay any wages or salary due to his employee under a contract of employment, he shall be liable as therein provided. The liability arises not from a failure to pay the amount demanded, but from failure to pay any wages or salary due upon demand. (Hindman v. Oregon Short Line R. Co., 32 Ida. 133, 140, 178 Pac. 837, 839.)
We think the statute is within the police power of the state and is constitutional, even though the claimant demand a greater amount than is due, unless the circumstances are such as to excuse a tender of the correct amount. In the ease at bar, the record does not indicate that an offer to pay the amount actually due would have been refused.
The cause will be remanded with instructions to modify the judgment so as to eliminate the item for attorney fees, and as so modified will be affirmed. No costs awarded.
Budge and Dunn, JJ., concur.