The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1899-05-24

proceedings would be unnecessary anu the
defendant would be discharged. II evi-
dence cannot be received for the purpose
of advising the court as 10 certain facts OF
which it cannot take judicial notice, then
there is no limit upon the legislative pow
er so long as it deals with matters WHICH
are not within common knowledge. In
other words, if the court, from an inspec-
ton of the law itself, and from facts Of
cmmon notoriety, can see the effects there
of it may determine as to whether it is
reasonable police regulation. But il the
law is one that the courts, from the Ian
guage thereof and from facts Of which
they wiz take judicial notice, cannot de-
termine its effect upon the pubic health,
public safety or the public welfare, no
matter how unreasonable it may be- or
what property rights may be destroyed.
the action of the legislature is final and
the party can have no redress. Under
such rule, while the courts could go
through the form of passing pom the val
idity Of law. they would be denied the
information which would lead them to a
correct conclusion as TO its effects; the
courts could pass upon the question as 10
whether the law were a reasonable police
not be determined without the knowledge
of facts of which courts cannot take ju-
dicial notice, the law would have to be
upheld because Of a conclusive presump-
ton that the legislature gave the subject
the fullest investigation and knew what
was best for the public welfare. If this Is
true, then the legislature can, under the
guise Of police power. destroy the consti-
tutional right to the enjoyment Of prop
erty, even though the law does not tend
to promote any Of the true bjects of police
regulation.
The mere fact that the thing sought to
be controlled by police regulation is
proper subject thereof, is not sufficient to
authorize legislature to pass any law it
sees fit in relation thereto; but the law
which is sought to be enforced must, in
order TO be valid, be such a law as will
reasonably tend to protect public health
or public safety or is in the interest Of the
public welfare. Unless the law does rea-
sonably tend to promote one of these OBJ
jects, private property cannot be taken or
destroyed
"And it has been held that in determin-
ing this question, evidence may. be re-
i4slature Of the necessity Of a police law
IS only finaA when the regulation imposed
is reasonable.
Recurring again to the law in contro-
vensy, we will consider as to whether or
not the court can. in the absence Of evil
dence determine its validity. So far as
the flash test for oil Is concerned, l en-
terrain no doubt but that it is a reason
able exercise of police power; but if the
allegations of the petition are true, the
same cannot be said Of the specific gravity
test. The courts will take judicial notice
Of the fact that the purer the oil and the
near It approaches gas, the less its weight.
The Baume hydrometer fir liquids lighter
than water, the instrument to be used in
measuring the specific gravity Of the oil,
is an inverse scale and consequently the
higher the number OF the degrees indi-
Gated, the less the actual weight or
specific gravity. The contention of the de-
PENDANT. and which Z am inclined to think
IS correct, is that the law, when 1t re-
fers to the Baume scale, has reference
TO the degrees indicated thereon and not
to the actual specific gravity. The instru-
ment to be used, is an instrument for
measuring liquids lighter than water
Therefore, when the law refers to 46 de-
grees, or any other number of degrees
on the Baume hydrometer, it means so
many degrees lighter than water, and
while the law refens TO specific gravity,
water being the standard, it has reference
TO the degrees less than the weight of
water. If this construction is to be given
the law, then it provides two tests; first,
a fash test or safety test, and second, a
purity test. in the absence of evidence to
the contrary, we are unable to ste how
this last test can in any way reasonably
tend TO protect public health, public
safety or conduce TO the public welfare.
T the territory can establish by evidence
that it reasonably tends to promote either
OF these, 1t should have an opportunity
TO do.
The petition also alleges that all gaso-
line that registers 20 degrees or higher
on the Baume scale are 50 volatile and
explosive that they cannot he safely used
in this climate during the summer season.
1t is a fact within the common knowledge
OF all that, while gasoline is used dur
ing the entire year. its consumption is
much greater during the heated weather
The allegations OF the petition in relation
ton, and for the purpose of the motion
must be taken as true; and if these al
legations are true, then the law as applied
to gasoline is an unreasonable exercise Of
poles power, for the reason that it tends
to endanger rather than protect the lives
and property of those using such gaso-
line.
the petition further alleges that all Of
the oils and gasoline OF the plaintiff are
the products Of other states and were
by it shipped into this territory and that
all Of sue hollis and gasoline are the sub
jects OF interstate sommerce. # these are
the facts IN relation thereto. they are and
remain the subjects Of Interstate COM
merce so long as they remain in the
original package. It is also alleged that
The value Of the property OF the plain
TN in this territory affected by this law
Is $4,000, besides the good viii OF its bust
ness which IS worth many thousands
more. Now all % this property is subject
TO reasonable regulation; but the exercise
,of this power must be reasonable and not
so arbitrary as 10 seriously impair or con-
Aecate plaintiffs property without due
process OF law.
IF the legislature had required that the
specific gravity OF the oils be stamped on
The tanks, barrels OF packages contain
tug the same, so that the public might Re
advised OF the purity OF the oils when
buying the same. an entirely different
question would be presented. This Jaw.
however. does not attempt TO regulate the
sale OF the heavier OILS but prohibits their
sale. This, 7 think, under the facts con-
<essed by the motion, cannot be done
Entertaining the views herein ex-