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of the l'nited States, or with g 21 of article, charged is in no way affected by any alleged 1 of the Constitution of Indiana.
authority of the Railroad Commission over Pittsburgh, C. C. & St. L. R. Co. v. State, the taking effect of the act in violation of 172 Ind. 162, 87 N. E. 1034; State v. Rich- $ 25 of article 1 of the state Constitution. creek, 167 Ind. 224, 5 L.R.A. (N.S.) 874, Hammer v. State, 173 Ind. 204, 24 L.R.A. 119 Am. St. Rep. 491, 77 N. E. 1085, 10 (N.S.) 795, 140 Am. St. Rep. 248, 89 N. E. Ann, Cas. 899; Knight & J. Co. v. Miller, 850, 21 Ann. Cas. 1034; Isenhour v. State, 172 Ind. 44, 87 N. E. 823, 18 Ann. Cas. | 157 Ind. 521, 87 Am. St. Rep. 228, 62 1146; State v. Barrett, 172 Ind. 178, 87 N. E. 40; McPherson v. State, 174 Ind. N. E. 7; Chicago, I. & L. R. ('o. v. Rail. 73, 31 L.R.A. (N.S.) 188, 90 N. E. 610. road Commission, 173 Ind. 475, 87 N. E. The act does not violate articles III. and 1030, 90 N. E. 1011; Barrett v. State, 175 | IV. of the Constitution of Indiana, as being Ind. 117, 93 N. E. 543; Parks v. State, 159 the delegation of legislative authority. Ind. 220, 59 L.R.A. 190, 64 N. E. 862; Levy Blue v. Beach, 155 Ind. 127, 50 L.R.A. v. State, 161 Ind. 256, 68 N. E. 172; Hanly 64, 80 Am. St. Rep. 195, 56 N. E. 89; Isenv. Sims, 175 Ind. 353, 93 N. E. 228, 94 hour v. State, 157 Ind. 521, 87 Am. St. Rep. N. E. 401.
228, 62 N. E. 40; Arnett v. State, 168 Ind. The offense with which defendant is 183, 8 L.R.A. (N.S.) 1192, 80 N. E. 153; of the municipal officers," it condemned the, and makes necessary the ascertainment of action of the trial court in hearing evidence facts through the medium of evidence in and making findings of fact in the attempt some form, the legislature has the right to to ascertain the "errors," etc., of the munici- prosecute such an investigation, and its pal officers, citing Stevenson v. Colgan, 91 findings are entitled to as much weight as Cal. 652, 14 L.R.A. 459, 25 Am. St. Rep. 230, should be attached to the findings of a 27 Pac. 1089.
court." The doctrine of Stevenson v. Colgan, It may be noted that in Pittsburgh, C.C.& supra, to which the earlier note is appended, St. L. R. Co. v. Hartford City, 170 Ind. 674, to wit, “that, in passing upon the consti- 20 L.R.A. (N.S.) 461, 82 N. E. 787, 85 N. E. tutionality of a statute, the court must con- 362, a case sustaining the validity of a city fine itself to a consideration of those mat- ordinance requiring the defendant to keep ters which appear upon the face of the law, and maintain electric lights at certain and those facts of which it can take judicial points where its tracks intersected streets, notice," was referred to in Smith v. Math- the court, in denying the claim of defendant ews, 155 Cal. 752, 103 Pac, 199, and by Tem- that there was a right to frame issues of ple, J., in his concurring opinion in Fragley fact regarding the necessity of the ordinance, v. Phelan, 126 Cal. 383, 58 Pac. 923, and and as to whether the exercise of the power was reasserted in People ex rel. Chapman was fair, honest, and proper, after stating v. Sacramento Drainage Dist. 155 Cal. 373, that it regarded the ordinance as 103 Pac. 207, as against the claim by a land same general footing as an act of the legis. owner that his property was taken without lature, said: “Cases might be conceived of due process of law in that he was denied a wherein a question of fact might be raised hearing as to the question of the inclusion as a means of arresting a legislative act, or exclusion of his land in a drainage dis- as, for instance, an inquiry might be made trict created by act of the legislature. whether a law regulating the charges of a
In Johnson v. Elliott, Tex. Civ. App. public service corporation amounted to a -, 168 S. W.968, the court said: "Whether taking of property in the particular in. or not the business of selling nonintoxicat- stance; but we regard it as a general rule ing malt liquors under a Federal license that the determination by a legislative triwhich also authorizes the sale of intoxicat- bunal of open or debatable questions coning malt liquors is a trade which in some cerning what is expedient is not subject to way injuriously affects society is equally a review on questions of fact, provided that question of fact, and one which must be the question is one within the competency settled by the legislature. It must be as- of the legislative tribunal to determine. sumed, in construing laws like that here
The view that legislative action can, under consideration, that the legislature in general, be made to depend upon the vary. has made the necessary investigation, and ing opinions of juries concerning its neces. has found that the facts warranted the sity or propriety, is wholly out of accord restriction which it imposes.
To with the nature of a written law," justify the courts in holding that a given Compare, Toledo, W'. & W. R. Co. v. Jackact is an unwarranted invasion of the fun sonville, 67 Ill. 37, 16 Am. Rep. 611, where damental rights of the citizen, and there it was held that an ordinance requiring a fore beyond the police power of the state, railroad to have a flagman at a crossing not that objection must appear from the face of unusually frequented was unconstitutional. the act itself, or from the facts of which the courts must take judicial cognizance. Views and explanations from the health
If a proper determination of the question as to whether or not the business is hurtful involves an inquiry into the con- In State v. Somerville, 67 Wash. 638, 122 ditions normally resulting from the traffic, ' Pac. 324, supra, the court said: "Courts,
Southern Indiana R. Co. v. Railroad Com- | prescribes the kind of caboose which shall mission, 172 Ind. 123, 87 N. E. 966; Mc- be used after June 1, 1914; and § 3 provides Pherson v. State, 174 Ind. 70, 31 L.R.A. that “whenever any such caboose cars or (N.S.) 188, 90 N. E. 610; Southern R. Co. other cars now in use by such common carv. Railroad Commission, 42 Ind. App. 99, riers as provided by $ 1 herein shall, after 83 N. E. 721.
this act goes into efïect be brought into
any shop for general repairs, it shall be Myers, J., delivered the opinion of the unlawful to again put the same into the court:
service of such common carrier within this Appellant was charged by affidavit with state unless it be equipped as provided in the violation of ss 1, 2, and 3 of the acts 2 of this act.” Other following sections of March 1, 1911 (Acts 1911, p. 92). define the exceptions, the powers, and duSection 1 applies the provisions of the act ties of the Railroad Commission in respect to any corporation, person, or persons to the matter, and provide the penalty. “while engaged as common carriers in the The charge in the affidavit, in substance, transportation of passengers or property is that on and prior to July 5, 1911, apwithin this state to which the regulative pellant owned and had in use on its line powers of this state extend." Section 2' as a corporation and common carrier a in passing upon the reasonableness or un- in sustaining a statute prohibiting the disreasonableness of a statute, and deciding charge of factory refuse into rivers, referred whether the legislature has exceeded its to the fact that they had the evidence of powers to such an extent as to render the scientific men (evidently favoring the statact invalid, must look at the terms of the ute), but did not comment on its admissiact itself, and bring to their assistance such bility. scientific, economic, physical, and other per- Ayain it is said that another similar prostinent facts as are common knowledge, and ecution might result differently, and thus of which they can take judicial notice.” the act be declared both valid and invalid.
One of the reasons given by the courts is State v. Somerville, supra. that proof in a single case that the statute Again, that expert evidence that the statwas not a necessary regulation would be im- ute would intlict evil could not justify the material, as it must be considered from its court in deciding against the general opinapplication generally. Ibid. ; People v. ion to the contrary. Com. v. Pear, 183 Mass. Smith, 108 Mich. 527, 32 L.R.A. 853, 62 Am. 242, 67 L.R.A. 935, 66 N. E. 719, affirmed in Am. St. Rep. 715, 66 N. W. 382.
197 U. S. 11, 49 L. ed. 643, 25 Sup. Ct. Rep. Thus, where the plaintiff was convicted of 358, 3 Ann. Cas. 765 (compulsory vaccinaemploying women in his hotel more than ten tion). hours a day contrary to the statute, it was In People v. Smith, 108 Mich. 527, 32 held that evidence that such employment L.R.A. 853, 62 Am. St. Rep. 715, 66 N. W. was not injurious to women could not en- 382, where it does not appear whether exable the court to determine the question as trinsic evidence was offered or not, the court, to the validity of the statute, as it must be sustaining a statute requiring emery considered from its application to all em- wheels to be provided with blowers to carry ployers and employees, and not to any in- away the dust, said, as to the question of dividual case. People v. Elerding, 254 Ill. the necessity of the statute: "Who shall 579, 40 L.R.A. (X.S.) 893, 98 N. E. 982. decide the question, and by what rule?
So, in Shelby v. Cleveland Mill & Power Shall it be the legislature or the courts ? Co. 155 N. C. 196, 35 L.R.A.(N.S.) 488, 71 And, if the latter, is it to be determined S. E. 218, Ann. Cas. 1912C, 179, the court, by the evidence in the case that happens to in sustaining the validity of a statute pro- be first brought, or by some other rule? hibiting the discharge of sewage into waters Does it become a question of fact to be subfrom which a public drinking water sup- mitted to the jury, or decided by the court? ply is taken unless the same is purified, Of all the devices known to human tribusaid: "The issue attempted to be raised nals, the jury stands pre-eminent in its by the pleadings that the stream is not ability to determine cases in direct violadangerously polluted by the raw sewage tion of and contrary to law, without impoured into it from a large mill settlement pairing the binding force of the law as a working hundreds of operatives can be of no rule of future action. We have known of avail to defendant. That is a matter for instances where the question of the constithe judgment of the legislature. Such legis- tutionality of acts, as applied to the particulation is preventive, and to limit it to cases lar case on trial, has been made to depend where actual injury is shown to have oc- upon the finding of the jury upon the facts curred would be to deprive it of its most ef- in the case. But there is a manifest abfective force. To be of value, such laws surdity in allowing any tribunal, either must be able to restrain acts which have a court or jury, to determine from testimony tendency to produce public injury."
in the case the question of the constitutionIn State ex rel. Board of Health v. Dia- ality of the law. Whether this law invades mond Mills Paper Co. 63 N. J. Eq. 111, 51 the rights of all the persons using emery Atl. 1019, affirmed on opinion below, 64 N. wheels in the state is a serious question. If
1 J. Eq. 793, 53 Atl. 1125, however, the court, it is a necessary regulation, the law should certain numbered caboose car, resting on, that appellant has 251 like cars like emfour wheels, and 18 feet and 6 inches i.. ployed as the car in question, and that length, exclusive of the platforms on each like cars have been in use by appellant end. On that date it was sent to the shops fifteen years, and that it would now cost of appellant in the state of Indiana for approximately $1,150 each to construct the general repairs, and after having been re- cars to conform to the requirements of the paired was on August 22, 1911, owned by act of 1911, with a salvage of $185; that and put into service on appellant's lines in the timber in the present car would be the state of Indiana, and continuously valueless, and only the iron portions and thereafter used in such service. The same the cupola usable; that 50 of the cars in was not as so used at least 24 feet in length, use cost approximately, when built, $470, exclusive of the platforms, and was not and the remainder $875 each, and the equipped with two four-wheeled trucks. average cost when new was $666 and the All exceptions of the statute are negatived. average value now $442; that compliance
There was a motion in writing to quash with the act of 1911 would not add to the for several reasons, all attacking the con- safety or comfort or health of the trainstitutionality of the act, and various sec- men; that they have as much ventilation tions of it on various grounds, which as a car required by the act; that the only motion was overruled and exception to the difference from the present cars would be ruling reserved. Appellant then filed a in the length and the additional set of special plea that the facts alleged do not trucks, and the car would not be as strong constitute a public offense, and alleging like as the cars at present constructed and in other facts to those alleged in the motion use, and that as now constructed they are to quash. A demurrer to this plea, for stronger than the 60,000 pound capacity want of facts to constitute a defense, was freight cars. There was no objection to, sustained, and appellant accepted, and or contradiction or rebuttal of this evi. upon a plea of not guilty appellant was dence. tried and found guilty and a fine of $100 We have stated the matter fully in order imposed, and over motion for a new trial to present appellant's position fairly, and on the grounds that the finding is con- the question is, Does the evidence overcome trary to law, and not sustained by sufficient the presumption, or is evidence admissible evidence, and over motion in arrest of to controvert the presumption? It is the judgment for the reasons set out in the contention of appellant that the act is in special plea, judgment was entered. violation of § 8 of article 1 of the Federal
As the validity of the law is the sole ques- Constitution as a regulation of commerce tion presented, it is not necessary to con- “among the states." It is contended by sider any other question, except to say that the state that the act will be construed as the admissions and evidence show appellant applying only to operations in the state, to be a common carrier engaged in inter- and does not purport to be a regulation state commerce, and that the value of the of interstate commerce, and that as particular car when it went into the shops police power which affect interstate comwas $380, and when · repaired $442, and merce incidentally is supreme until and that the salvage in making the caboose cor- unless the particular subject is taken cogrespond to the act of 1911 would be $185; nizance of by Congress, and that the charbe sustained, but, if an unjust law, it should in favor of the validity of legislative action. be annulled. The first case presented might If the courts find the plain provisions of the show by the opinions of many witnesses Constitution violated, or if it can be said that the use of the dry emery wheel is al. that the act is not within the rule of necesmost necessarily fatal to the operative, while sity in view of facts of which judicial nothe next might show exactly the opposite tice may be taken then the act must fall; state of facts.
It would seem, then, otherwise it should stand.” that the questions of danger and reasonable- It may be noted that in People v. Wilness must be determined in another way. liams, 189 N. Y. 131, 12 L.R.A. (N.S.) 1130, The legislature, in determining upon the 121 Am. St. Rep. 854, 81 N. E. 778, 12 Ann. passage of the law, may make investigations Cas. 798, the New York court held unconwhich the courts cannot. As a rule, the stitutional as arbitrary and unnecessary a members (collectively) may be expected to statute prohibiting late night work in facacquire more technical and experimental tories by women, but that in People v. Charlknowledge of such matters than any court es Schweinler Press, 214 N. Y. 395, 108 N. can be supposed to possess, both as to the E. 639, it sustained a similar statute not dangers to be guarded against and the means much less drastic in view particularly of of prevention of injury to be applied; and the facts set forth in a report made by a hence, while under our institutions the va- legislative commission on the subject which lidity of laws must be finally passed upon recommended the law.
B. B. B. by the courts, all presumptions should be
acter of caboose as to length and wheel | York, 165 U. S. 628, 632, 41 L. ed. 853, base has not been the subject of Federal 854, 17 Sup. Ct. Rep. 418. Also that the
If the subject of the length and state Constitution applies only to the tak. wheel base of caboose cars has been taken ing of specific property by virtue of the cognizance of, and the length and wheel base right of eminent domain. Hanly v. Sims, fixed, we are bound to recognize the sole 175 Ind. 353, 93 N. E. 228, 94 N. E. 401; jurisdiction of the subject as in Congress, State v. Richcreek, 167 Ind. 217, 223, 5 even though the car was at the time en- L.R.A.(N.S.) 874, 119 Am. St. Rep. 491, gaged in intrastate traffic, but in conjunc. 77 N. E. 1085, 10 Ann. Cas. 899; Levy v. tion with interstate traffic or commerce. State, 161 Ind. 251, 256, 68 N. E. 172; Southern R. Co. v. Railroad Commission, Parks v. State, 159 Ind. 211, 220, 59 L.R.A. 179 Ind. 23, 100 N. E. 337, and cases cited. 190, 64 N. E. 862.
The acts of Congress and the Interstate The police power is of very wide scope, Commerce Commission have not embraced and the extent to which it may go has not the specific subject either of length of ca- and cannot be defined, and its application boose cars or their wheel bases, and we in a proper case is not inimical to the Fedregard the act of the state as not an inter- eral Constitution, but it must also be recference with, or as placing a burden upon, ognized that property or property rights or as regulating, interstate commerce, even may not be destroyed under the guise of the though the right of control extends to all police power or so-called police regulation, the instruments of such commerce (Hall v. if it appears that it has or can have no just De Cuir, 95 U. S. 497, 24 L. ed. 551), for relation to the protection of the public the reason that this act does not lay any health, welfare, morals, or safety. Unless restrictions on commerce itself, or the this negation affirmatively appears by the objects of commerce, nor on an instrument- act or its history in enactment, the police ality of commerce by the manner of con- power extends even to the taking and destruction or the manner of its use, but the struction of property, without being an act is directed at the form of the instru- infringement upon the due process of law mentality as to a matter as to which Con- clauses of either Constitution, even though gress has not seen fit to act. We are unable compliance with the specific act shall reto perceive how it might affect it even quire a large expenditure of money, and it incidentally, and it is not such legislation will be presumed that the act is reasonable, as is superseded by the Federal laws. Pitts- unless the contrary appears from the facts burgh, C. C. & St. L. R. Co. v. State, 172 of which the courts will take notice. State Ind. 147, 166, 167, 87 N. E. 1034 and cases v. Barrett, 172 Ind. 169, 87 N. E. 7; State cited; Pittsburgh, C. C. & St. L. R. Co. v. v. Richcreek, 167 Ind. 217, 223, 5 L.R.A. State, 178 Ind. 498, 99 N. E. 801; Chicago, (N.S.) 874, 119 Am. St. Rep. 491, 77 N. E. R. I. & P. R. Co. v. Arkansas, 219 U. S. 453, 1085, 10 Ann. Cas. 899, and cases cited. 465, 55 L. ed. 290, 296, 31 Sup. Ct. Rep. Regulation is the normal form of oper275; New York, N. H. & H. R. Co. v. New ation of the police power, and it operates York, 165 U. S. 628, 632, 41 L. ed. 853, 854, on the relation which the property or rights 17 Sup. Ct. Rep. 418; Smith v. Alabama, affected bears to the danger or evil which 124 U. S. 465, 480, 31 L. ed. 508, 513, 1 is to be provided against. The courts can Inters. Com. Rep. 804, 8 Sup. Ct. Rep. 564. have nothing to do with the wisdom or
The serious question is the attack made expediency of legislative measures, or cost upon the act as being in violation of the of compliance with them, as a rule; but due process of law clause of the Federal if the legislature is the sole judge of the and state Constitutions, on the ground of necessity of the measure it enacts, there its being unreasonable and resulting in the could be no limitation on the so-called destruction of a large amount of property, police power, and it is everywhere regarded which would be in effect taken and actually under constitutional government that a destroyed without just reason and without measure must not be unreasonable, and it is any good purpose to be subserved in the necessarily of the very essence of constipublic interest, under the guise of being a tutional government and co-ordinated police regulation. In answer to this the power. Freund, Pol. Power, S$ 8, 15-18, 20, state contends that a police regulation is 21; Tiedeman, Pol. Power, SS 1, 4, 144. not a denial of due process of law. Pitts- It may be a matter of degree, but it must burgh, C. C. & St. L. R. Co. v. State, 178 not be unreasonable, for it is apparent that Ind. 498, 99 N. E. 801; Pittsburgh, C. C. a measure may be unreasonable from an & St. L. R. Co. v. State, 172 Ind. 147, 162, excess of degree, and the question ordinarily. 163, 87 N. E. 1034; Chicago, R. I. & P. is whether the regulation becomes prohibiR. Co. v. Arkansas, 219 U. S. 453, 465, 466, tive, destructive, or confiscatory, or reason55 L. ed. 290, 296, 297, 31 Sup. Ct. Rep. ably adapted to promote some public pur275; New York, N. H. & H. R. Co. v. New pose, or some purpose in which the public
is interested, or in which the lives, health, | to enact (that is, within its power), and or safety of classes of the public is directly its validity cannot be contested or brought interested, or affects others indirectly, as, ! into review by inquiries of fact into extranefor example, in respect to safety appliances. ous matters of which courts may not take Republic Iron & Steel Co. v. State, 160 Ind. judicial notice. State ex rel. Colbert v. 379, 62 L.R.A. 136, 66 N. E. 1005; Union Wheeler, 172 Ind. 584, 89 N. E. 1, 19 Ann. Bridge Co. v. United States, 204 U. S. 364, Cas. 834, and cases cited; Pittsburgh, C. C. 51 L. ed. 523, 27 Sup. Ct. Rep. 367; Lawton & St. L. R. Co. v. Hartford City, 170 Ind. v. Steele, 152 U. S. 133, 137, 38 L. ed. 385, 674, 82 N. E. 787, 85 N. E. 362, 20 L.R.A. 388, 14 Sup. Ct. Rep. 499; Mugler v. Kan (N.S.) 461, and cases cited; State v. Bar: sas, 123 U. S. 623, 31 L. ed. 205, 8 Sup. rett, supra; Hovey v. State, 119 Ind. 395, Ct. Rep. 273; Munn v. Illinois, 94 U. S. 21 N. E. 21; Hovey v. Foster, 118 Ind. 502, 145, 24 L. ed. 91.
21 N. E. 39; Indianapolis v. Navin, 151 Ind. Courts will not attempt fine distinctions 139, 41 L.R.A. 337, 47 N. E. 525, 51 N. E. with respect to the matter of reasonable. So; Mode v. Beasley, 143 Ind. 306, 42 ness or unreasonableness of a statute, and N. E. 727; Soon Hing v. Crowley, 113 U. S. ordinarily it must be plain that no circum. 703, 28 L. ed. 1145, 5 Sup. Ct. Rep. 730; stances could justify an act before courts Lusher v. Scites, 4 W. Va. 11; Stevenson v. are authorized to interpose. State v. Bar-Colgan, 91 Cal. 649, 27 Pac. 1089, 25 Am. rett, supra.
St. Rep. 230, and note, 14 L.R.A. 459, and As here presented, this court is con- note; De Camp v. Eveland, 19 Barb. 81; fronted squarely with the proposition Cooley, Const. Lim. 7th ed. pp. 267 et seq; whether it is conclusively bound by the pre- Tiedeman, Pol. Power, 73. sumption that there
pre- If it cannot be made to appear that a law sented to the legislature as the basis for is in conflict with the Constitution by arguthe act as to which the court cannot be ment deduced from the language of the informed, as presented by the act itself; law itself, or from matters of which a court or whether evidence here adduced is admis- can take judicial notice, then the act must sible as tending to show that the act is stand. The testimony of expert or other arbitrary and unreasonable. The effect of witnesses is not admissible to show that in such evidence is of course a collateral at. carrying out a law enacted by the legislatack upon the legislative inquiry, judgment, ture some provisions of the Constitution and declaration (that is, to impeach it). may possibly be violated. People ex rel. and we fully appreciate the gravity of the Kemmler v. Durston, 119 N. Y. 569, 24 question.
N. E. 6, 16 Am. St. Rep. 859, 864, 7 L.R.A. On the one hand we have the legislative 715, and cases cited; People v. Worden Grodetermination; on the other the impeach-cer Co. 118 Mich. 604, 77 X. W. 315; Peoment of that determination by the opinion ple v. Elerding, 254 Ill. 579, 40 L.R.A. of witnesses, which, if admissible, would (N.S.) 893, 898, 98 N. E. 982; Bonnett v. seem to cover every phase of the case as Vallier, 136 Wis. 193, 17 L.R.A. ( N.S.) 486, presenting an unreasonable and arbitrary 128 Am. St. Rep. 1061, 1068, 116 N. W. 885. exercise of legislative authority. What the We certainly cannot know that a longer evidence might be in another case under car with two adjustable and oscillating the same act, as showing good cause for the four-wheeled trucks, instead of four rigid enactment, only demonstrates the inadmis- wheels, will not ride more comfortably, sibility of this evidence for any purpose. and it is probable with more safety. At It would be a dangerous rule to declare least the court cannot say that it is unreathat the validity or invalidity of an act of sonable, but is bound to presume that there the legislature can be the subject of col. were facts before the legislature which lateral attack as to the facts upon which would show it not to be unreasonable, and the legislature has acted; that is, that a we hold that it cannot be the subject of jury may determine from evidence adduced attack, by oral evidence as unreasonable before it, or from lack of evidence, that an and arbitrary and confiscatory, as is sought act is or is not invalid, with as many vary- | in this case. We do not place this conclu. ing conclusions as there might be bodies of sion on any ground of abstract justice or triers, or upon such facts as ingenuity judicial notions of natural right or equity, might suggest, as matters of opinion or but upon the ground that the act cannot be actual facts in evidence. The question of attacked by oral evidence as to its unreasonthe validity of a legislative act is neces- ableness, or the cost of expense, or the hardsarily one of law, and not of fact, and is ship which may result from compliance, for not the subject of inquiry by triers of fact, | the reason that the question is one of power and cannot be made to depend upon the tes in the legislature as a police regulation, timony of witnesses, where the question is with which courts may not interfere unless one within the competency of the legislature' they can say that it is not within the power,