Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1905-10-10

not more dangerous imam machinery
used in farming operations.
If labor in wet crushing quartz
mills generally was of the character
described as existing in the Dazet mill,
1 don OF belize it could be argued,
in the light of the recent decision of
the Supreme Court of the United
States, that such conditions would sup
port legislation restricting the hours
of labor therein, based upon the police
power of the State exercised in the in
terest of public nealth.
But if we are to presume that labor
in such quartz mills generally is un-
healthy to degree that would war
rant the interference of the legislature
land under the present state of intel
ligence upon the subject we must so
presume) can evidence or conditions
out of the ordinary be shown to make |
an exception in the application of the
rule? l think not. l think the prin,
ciple involved here is percisely the
same as that involved in the case
of Powell VS. Pennsylvania 127 U. S.
684, cited in the original opinion in
this case $50 Pac. 1861 where state.
ment of the facts of that case will
VIC lSuIu cuStlCC III uCllNCl-
ing the opinion CT the Supreme Court
of the Unite Estates in that casesaid
1T will be observed that the offer
in the court below was to showt
by proof that the particular ar
ticle that defendant sold, and
those in his possession for sale,
in violation of the statute were.
in fact, wholesome or nutritious
articles of food. 1t is entirely con-
sistent with that offer that many, in
deed, that most kinds Of olemargarine
butter in the market contain ingred-
tents that are or may become injurious
to health. The court cannot say,
from anything of which it may take
judicial cognizance, that such is not
/. the fact. Under the circumstances
disclosed in the record, and in obedi-
| ence to settled rules of constitutional
| construction, it must be assumed that
such is the fact. Every possible pre-
| SUMPTION Chief Justice Waite said
| speaking for the Court in Sinking
FUND case, 80 U. S. 700, is in favor
of the validity of a statute, and this con
tinues until the contrary is shown be-
yOnd a rational doubt One branch
of the government cannot encroach on
the domain of another without danger
The safety of our institutions depends
in no small degree On the strict OBJ
servance of this statutory rule
And as it does not appear upon the
face of the statute, or from any facts
| of which the court must take judicial
cognizance, that it infringes rights Sc
cured by the fundamental law, the leg
,cIo 4 g.
is conclusive upon the courts
1t will be observed in the Powell
case that the court did not take ju
dicial notice that many or most kind.
of olemargorine butter in the market
: contained ingredients that are or may
. become injurious to health, but simply
that the court could not say, from
anything of which it may take judi
: cial cognizance, that such is not the
fact" and that, until the contrary
is shown beyond a rational doubt
every possible presumption is in favol
: of the. Validity of the statute APP
plying this reasoning to the case a
bar, it is clear why this or any othel
court cannot act upon the evidenc,
offered upon petitioners trial.
l agree with counsel for petitione
that evidence may be offered, in doubt
full cases, to estaulsh the fact whethe
or not a certain occupation is or is no
1 unhealthy; and, if unhealthy, whethe
{ or not it is unhealthy to a degree tina
would warrant the exercise by tn
legislature of the police powers of tn
State. Such evidence, however, mus
be directed to the character of tn
occupation generally throughout tn
: territory covered by the statute, an
: cannot be confined to an individual
case or a district that might be e,
0 ceptional If, in matters of this kline
courts can act upon judicial know
{ ledge, which amounts simply to takin
! notice of the existance of fact re,
{ ognized as of common knowledge
; hence, the necessity of proof of tn
same not required, l see no good re;
0 son why they may not act upon fact
= established by competent proof.
: Taking judicial notice of the far
simply does away with the necessit
q of offering evidence to support tha
: fact. While court may refuse {
: hear evidence offered to contradict tn
/ existence of fact when it can say
It knows of common knowledge, am vi
$ able to see on what theory a coul
q could refuse to hear evidence upon tn
# fact of which it could not take jud
e cial notice. To SO hold, would be th
o equivalent of saying that. in som
, cases the rights of an Individual qua
anteed him by the constitution coul
be taken away from him because tn
e court did not happen to take judici
notice of a fact or facts necessary
/ determination of the case IF j
r dlcial knowledge fails to disclos
whether statute is legitimate e
l. e else OF the police power, evidene
, should be introduced to enlighten Ii
l. judicial mind" G'~-vard Law r
a. view, Feb. 1904. Page 3Gy.)
e The question then presents itself
4 this case; when and where shcu
a. proof of these facts be offered? Upc
g the hearing of this petition, couns
It for petitioner, subject to objection, G
fered testimony for the purpose of e