ment of the public revenues, when he deems it proper to do so.

1909 oil inspection was very profitable to the state. The net profits for the year 1906 were $18,011.95. For 1907 the net profits in his official report a detailed estimate of the "It shall be the duty of the auditor to include were $19,990.78. For 1908 the net profits expenditures to be defrayed from the treasury were $20,210.61. The law of 1909 not only for the two next ensuing fiscal years, respectiveafforded a large revenue to the state in ex-ly, specifying therein each object of expendicess of the cost of inspection, but it provided provided for by permanent or temporary approture, and distinguishing between such as are positions for the politically faithful who priations, and such as are required to be procould be depended on "to look after things" vided by law, and showing the means from in their respective localities. Year after which such expenditures are to be defrayed." year the state inspector's reports pointed with pride to a substantial increase in net revenues to the state over preceding years. The law of 1913 corrected the political evils, left the service as adequate and as efficient as it had been, but clung to the profit to the treasury. The state inspector's report to the Governor at the close of the year 1913 reads, in part, as follows:

"Prior to April 1, 1913, at which time the present inspection law became effective, the oil inspection department comprised 124 local inspectors, located throughout the state at the various refineries and tank stations. Under the present law, the number of inspectors was reduced April 1st to six, without impairment of the efficiency of the service of the department to the public, and with material financial sav ing to the state as is hereinafter set out. Six inspectors are now performing the same service as did 124 under the old system and the department has been freed from criticism on the score that its revenues were being dissipated to reward political favorites.

"The six deputy inspectors are located at the various refineries throughout the state, where all oil and gasoline is properly inspected and the inspection certificates issued therefor before it is unloaded from tank cars into receiving tanks, or before it is barreled for shipment. Each of these deputy inspectors is fully provided with all necessary instruments, blanks and records for the proper and expeditious conduct of his duties."

In his estimate of probable income to the general revenue fund from fees for the years 1916 and 1917, the state auditor, in his report submitted on December 15, 1914, included the sum of $80,000 for each year from oil inspection fees. In his estimate of appropriations to be made for the same years the auditor recommended only the usual appropriation of $14,100 per annum and proposed a saving of $4,200 per year of this sum, as appears by the following suggestion: without any impairment in efficiency by abolish"A saving of $4,200 a year can be effected ing the office of state oil inspector, doing away tingent fund for oil inspection from $4,000 to with one of his deputies, and cutting the con$3,000 a year. The office work now being done by the oil inspector and one deputy could be and the other five deputies could be attached to done by the stenographer. This stenographer the state auditor's department.

"As it is now, five deputies and the stenographer do practically all the work. The oil inspector and the office deputy are simply middlemen.' They transmit the report of the five deputy inspectors, prepared and checked by the stenographer, to the auditor's office. For this service to the state the oil inspector receives $2,000 and the deputy $1,200 a year, with traveling expenses. Their work could just as well be done from the office of the state auditor."

The Legislature of 1915 made no reduction in the inspection force and made the usual

The same matter was inserted in the re-appropriation, but, recognizing the indefensport made to the Governor in 1914, just before the Legislature of 1915 assembled. This report also contains the following:

"At this time there are twelve refineries ac tively in operation in the state. After the first of the year there will be thirteen in operation, twelve of which are operated as independent companies, not connected with the Standard Oil Company, and all of whom are refining and selling oil within the state. The reports on file in the office of this department, and in the office of the auditor of state show that during the year ending November 30, 1914, this department has inspected a total of 443,253 barrels of oil and 456.650 barrels of gasoline making a gross total of $99,903 barrels inspected by the department during the year. By referring to former reports of the department, you will note that this is an increase of 65,693 barrels of oil and gasoline inspected over the previous year.

"No reports of kerosene explosions filed in this office and no reports of inferior gasoline." The law requires the state auditor to make a biennial report, which he does shortly before the biennial sessions of the Legislature. Sections 8873 and 8874 of the General Statutes of 1909 provide as follows:

ible disparity between the amount of inspection fees received and the cost of inspection, reduced the fee from 10 cents per barrel to 3 cents per barrel. The Governor vetoed the bill on two grounds, that the reduction was unreasonable, and that it would impair the usefulness of the oil inspection department. The usefulness of the oil inspection department did not depend in any particular on the fees charged for inspection. The number of men employed, the compensation they received, and the appropriation for their salaries and expenses, remained exactly the same. The reasonableness of an inspection fee is governed by settled principles of law and depends solely upon the relation of cost of inspection to collections for inspection, allowing a fair margin for variation. At 3 cents per barrel, the margin above cost of inspection for the year 1914 would have been more than the total cost of inspection, and the margin for the year 1915 would have been nearly twice the total cost of inspection.

"In such biennial reports the receipts and ex- As the production and use of refined pe penditures for each of the two fiscal years cov- troleum products increase, inspection returns ered thereby shall be so stated as to correctly increase, and, as the state inspector's reports show the financial condition of the treasury for each of such years separately. He may also and the evidence show, increase at a much suggest plans for the improvement and manage- | greater rate than the cost of inspection. Be

fore 1913, oil inspection had become a relia- In 1914 the department inspected nearly 900,ble source of revenue. The act of 1913 gave 000 barrels of oil. In 1915 it inspected more the treasury more money than ever before, than 1,200,000 barrels of oil. This was done above the cost of inspection. Its revenue at a cost of less than the annual appropriaproducing qualities were fully demonstrated | tion of $14,100 per year for the purpose. The before the Legislature of 1915 assembled. court is inclined to think that, if so many The proof shows that the oil refining companies memorialized the two Houses of the Legislature of 1915 on the subject of the operation of the inspection law. With this and abundant other information before it the Legislature formally declared that 3 cents per barrel was a sufficient inspection fee by passing House Bill No. 551. This bill as originally introduced provided for a fee of 5 cents per barrel. It was amended in the House to read 3 cents per barrel and was passed by both Houses in its amended form. The experience of the year 1915 confirms the legislative declaration, but the law was not changed, and fees continue to be charged and collected which bear no rational relation whatever to cost of inspection.

In September, 1914, the refining companies commenced to pay under protest. This action was commenced in May, 1915. In December, 1915, the state inspector filed an affidavit to be used as evidence in the case containing the following:

were necessary, 24 new men, competent to do the work, could be secured at the same price as those who are now serving, and that the state inspector's original estimate could safely be reduced $24,000 more, bringing the amount necessary to conduct the department in a proper and efficient manner down to $46,000 per year. But whether the amount were $46,000 per year or $70,000 per year, the receipts for the year 1915, in which the necessity for an increased appropriation first arose, were $115,673.17, after deducting fees collected for inspecting oil shipped outside the state. If the present inspecting force and the present contingent fund were doubled, the net profit to the state on oil inspection would be enormously greater than the cost of inspection. All the evidence, however, as to what some other inspection law might accomplish and cost, is beside the issue. The court has before it a definite inspection law which the Legislature chose to enact, and the results of its operation. If the Legislature has adopted a limited and inefficient scheme which costs but little, it cannot charge and put into its treasury as clear profit on that scheme vast sums of money which might be expended on some other scheme if it were adopted.

"Affiant believes, after a careful consideration of all the information in his possession, and from the experience of the administration of his department, that the efficient administration of the work of the department for such full inspection of petroleum and its products, including gasoline and kerosene, will necessitate an appropriation by the state of Kansas of not less than $100,000 annually, and that the total Some deputy inspectors include in their revenue from the fees of such inspection, at the affidavits statements that the fees received rate allowed and provided by law, will not materially exceed the necessary expenses of the ad-state do not defray the cost of inspection. for inspecting foreign oil brought into the

ministration of said law."

The refining companies cross-examined him. On cross-examination he reduced his estimate, without contention, $30,000. His estimate of $70,000 included the employment of a force of 30 deputies at a salary of $2,000 per annum each. In his affidavit he had this to say of the six men actually in the service receiving $1,200 per year:

"Affiant further states that all of said deputy inspectors are competent and efficient men, and well skilled in the work of inspecting oils and the products of petroleum required by law to be inspected."

On cross-examination he testified as follows:

"Q. Have you been forced to accept any inspectors under this law that you would not employ under the other law?

"A. Oh, no."

In 1914, after substantially two years' experience under the act of 1913, the state inspector reported that the efficiency of the service had not been impaired by reducing the number of deputy inspectors to six men, who were accepting $1,200 per year as compensation for their services. The auditor was of the opinion that the chief inspector and one deputy might be dispensed with and that the contingent fund might be reduced $1,000 without impairing the efficiency of the service.

Objection is made to the consideration of these opinions. Without the objection they would convey no information to the court, unaccompanied as they are by a presentation of the facts, if any there be, upon which they were based. The fact, if it be a fact, that the state is taxing its domestic oil industry to pay the cost of inspecting foreign oil, is too important to be established by rule of thumb, and might of itself imperil the law. The same impotence characterizes testimony given by the state inspector that the cost of inspecting the product of several small refineries, which he said "do a little once in a while," is greater than the fees received. If facts were produced the court would be able to draw its own conclusions. In no event, however, has the cost of inspecting foreign oil and the products of small refineries been as much as $14,100 per year. Conceding that a considerable part of the annual appropriation has been consumed in such inspection, the collection of the great sums charged for inspecting other oil cannot be justified. While certain inescapable inequalities in the operation of inspection laws are to be expected and must be endured, a law cannot be an inspection law as to some who are within its provisions and a special property tax law

as to others who are also within its provisions.

The object of the law is to promote the safety of persons and property and to protect the people of the state from imposition and fraud. Authority to enact the law is derived from the police power of the state, reserved to it from the grant of powers to the federal government. As an incident of the police power, the state may reimburse itself for the cost of inspection by charging the necessary expense upon the business or commodity creating the necessity for inspection. When, however, adequate remuneration has been secured, the police power is exhausted. Of course, the books need not precisely balance. It is not possible to determine in advance exactly what sums may be realized from the administration of an inspection law, and there is no objection that some revenue above the cost of inspection may result. Such revenue, however, must be purely incidental to the practical operation of the law, and, whenever revenue and not recompense becomes the palpable and unmistakable object, the law fails as an inspection law.

The law is challenged as in contravention of certain provisions of the Constitution of the United States. It is not necessary to discuss the very interesting questions thus raised. Certain features of the law are challenged as useless, inefficacious, and absurd. The court prefers to leave the determination of these questions to the next Legislature.

The inspection fees paid by various defendants under protest should be returned to them. The provisions of the law were such as to coerce inspection and, as a consequence, the payment of inspection fees. The statute did not provide for the payment of a reasonable inspection fee, and no officer of the state had authority to accept less than the statutory fee if tendered. There being no valid law for the collection of any sum as an inspection fee, the state has no right to retain the funds indicated.

The peremptory writ is denied, and the custodian of the sums referred to as paid under protest is directed to return them to the proper parties. All the Justices concurring.

COLLINS v. MORRIS. (Supreme Court of Kansas.

*

(No. 19920.) ' Feb. 12, 1916.)

(Syllabus by the Court.)

The court finds as a fact that the fee of 10 cents per barrel chargeable for the inspection of kerosene, gasoline, benzine, and other petroleum products under section 8 of chapter 200 of the Laws of 1913, is clearly and 1. NEW TRIAL 124-MOTION-PURPOSE. grossly in excess of the amount reasonably necessary to effectuate the lawful purposes of the act; that at the time of its enactment, and ever since that time, the law was, and has been, depended on by the executive and legislative departments of the state government as a revenue measure to bring to the state treasury large sums of money in known excess of the cost of administering the law as an inspection law; that the Legislature of 1915, although cognizant of the facts and although of the opinion that 3 cents per barrel was an adequate inspection fee, failed to change the law; and that the fee is charged and collected for revenue purposes, and not merely to defray the cost of inspection. The conclusion of law is that the portion of section 8, fixing the fee at 10 cents per barrel, as an inspection fee, is void; that section 1 of article 11 of the Constitution, requiring a uniform and equal rate of assessment and taxation, forbids collection of the fee as a property tax; and that no other provision of law authorizes collection of the fee.

The purpose of a motion for a new trial is to inform the trial court what errors are relied upon in order that the court may, by granting a new trial, correct any error shown to exist..

[Ed. Note.-For other cases, see New Trial, Cent. Dig. §§ 250-253; Dec. Dig. 124.]

2. APPEAL AND ERROR 169-PRESENTATION BELOW-REVIEW.

"Only such matters as were considered by the trial court are open to review in the Supreme Court." Brock v. Corbin, 94 Kan. 542, 146 Pac. 1150.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1018-1034; Dec. Dig. 169.]

3. APPEAL AND ERROR 302-PRESENTATION BELOW-ADMISSION OF EVIDENCE-MOTION FOR NEW TRIAL.

Following Washbon v. Bank, 86 Kan. 468, 121 Pac. 515, it is held, where no complaint of the admission of evidence over plaintiff's objection was made in the motion for a new trial, the question cannot be raised in this court. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1744-1752; Dec. Dig. 302.]

4. TRESPASS 55-INJURIES TO PROPERTYDEFENSE-EXTENT OF LIABILITY.

"It is not for the wrongdoer who causes an injury to decide whether an owner should have used his land for a particular purpose nor the use to which it can most profitably be employBarker v. Railway Co., 94 Kan. 61, 65, 145 Pac. 829. [Ed. Note.-For other cases, see Trespass, Cent. Dig. § 143; Dec. Dig. 55.] 5. TRESPASS 45 INJURIES TO STANDING TREES TREBLE DAMAGES EVIDENCE. In an action under section 9692 of the Gen

While the Legislature probably would not pass an inspection act without providing for the collection of an inspection fee, the actioned." of the Legislature of 1915 clearly demonstrates that the present law would be continued in force without the provision for an inspection fee of 10 cents. Consequently no occasion exists for declining to execute any provision of the law except the one held to be void and those subsidiary provisions which depend upon it.

eral Statutes of 1909 by a landowner to recover treble damages for the destruction of trees, where plaintiff has elected to recover the distinct value of the trees, which the evidence shows can

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

be determined independent of the land, and has offered no evidence of the value of the land before and after the trees were destroyed, it is error to admit over plaintiff's objections proof that the land would sell for as much or more for farming purposes without the trees as with them.

[Ed. Note.-For other cases, see Trespass, Cent. Dig. §§ 116-122; Dec. Dig. 45.] 6. APPEAL AND ERROR 1003 REVIEW EVIDENCE-REVERSAL. While it is not the province of this court to weigh the evidence, it may determine that there is or is not sufficient evidence to support the verdict; and in this case the court determines the verdict is contrary to the evidence, and therefore the judgment is reversed.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3938-3943; Dec. Dig. ~ 1003.]

7. MEASURE OF DAMAGES.

Certain expressions in the opinion in the case of Railway Co. v. Lycan, 57 Kan. 635, 47 Pac. 526, are held to be obiter and are disapproved.

Appeal from District Court, Miami County. Action by J. C. Collins against John Morris. From judgment for defendant, plaintiff appeals. Reversed, and new trial ordered.

E. J. Sheldon and S. J. Shively, both of Paola, for appellant. Lane & Lane, of Paola, for appellee.

PORTER, J. This is an action to recover treble damages for the malicious destruction of trees. Plaintiff and defendant own adjoining farms, and the trees destroyed were six shade trees which plaintiff alleges were growing on his land near the partition fence. There was a verdict and judgment in favor of defendant, from which the plaintiff appeals.

The specifications of error in plaintiff's brief are: First, the admission of incompetent and immaterial testimony over his objections; second, the rejection of competent testimony offered by the plaintiff; third, overruling the motion for a new trial; fourth, rendering a verdict for defendant; fifth, ordering a judgment for defendant. The case was submitted to a jury on evidence and instructions, and no judgment was ordered, so the fifth assignment need not be considered.

further reason that the verdict is contrary to law as given under the influence of passion and prejudice, and not a fair consideration of the evidence, and for the further reason that the plaintiff did not have a fair trial."

Nowhere is there any reference to rulings of the court on the admission of testimony. A new trial was asked: First, because the verdict is contrary to the evidence; second, because it is contrary to law as "given under the influence of passion and prejudice, and not a fair consideration of the evidence"; and, third, because the plaintiff did not have a fair trial.

The amended Code (section 305, Gen. St. 1909, § 5899) provides that a new trial may be granted on the application of the party aggrieved when it appears that his rights are

"substantially affected:

"First, because of abuse of discretion of the court, misconduct of the jury or party, or accident or surprise which ordinary prudence could not have guarded against, or for any other cause whereby the party was not afforded a reasonable opportunity to present his evidence and be heard on the merits of the case.

"Second, erroneous rulings or instructions of the court.

given under the influence of passion or preju"Third, that the verdict, report or decision was

dice.

"Fourth, that the verdict, report or decision is in whole or in part contrary to the evidence. "Fifth, for newly discovered evidence material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial.

procured by the corruption of the party obtain"Sixth, that the verdict, report or decision was ing it."

The third reason stated in the motion, "that the plaintiff did not have a fair trial,” is not a statutory ground, unless it be made to appear that he was prevented from having a fair trial by one of the six grounds set forth in the statute.

[1] There is nothing in the motion challenging the attention of the trial court to the principal claim now raised in this court, that incompetent or immaterial testimony in favor of defendant was admitted over the plaintiff's objections. The purpose of a motion for a new trial is to inform the trial court what errors are relied upon in order that the court may, by granting a new trial, correct any error shown to exist. It would not be fair to the other litigant, nor fair to the trial court, nor to this court, if a de

At the outset we are confronted with the objection which defendant makes to any consideration of the first and second specifications, which relate to the admission of evi-feated litigant were permitted to secure the dence, because they are raised for the first time in this court. As the principal questions argued in plaintiff's brief relate to the rulings of the court admitting certain testimony offered by the defendant it will be necessary to consider the grounds of the motion for a new trial, which is set out in defendant's brief. The grounds are stated as

follows:

"Now comes the plaintiff and moves the court for a new trial of the issues at law and fact in the above-entitled case, for the reason that the verdict is contrary to the evidence, and for the

reversal of a judgment on grounds not presented to the court below. If there be reversible error in a verdict or judgment, the interests of justice and of both parties as well as of the public are best served by the granting of a new trial at once, rather than after the delay and costs incident to an appeal. It is precisely for the same reasons that the amended Code (section 307; Gen. St. 1909, § 5901) requires that, where the exclusion of evidence is relied upon, the excluded evidence must be produced before the

trial court so the trial judge may pass upon that some of them were worth as much as it and determine whether a new trial should be granted. Thompson v. Thompson, 94 Kan. 168, 171, 146 Pac. 344; Broady v. Fire Association, 94 Kan. 245, 146 Pac. 343.

[2] "Only such matters as were considered by the trial court are open to review in the Supreme Court." Brock v. Corbin, 94 Kan. 542, 146 Pac. 1150 (syl. 4).

[3] In a recent case, Washbon v. Bank, 86 Kan. 468, 121 Pac. 515, it was ruled as follows:

"Certain evidence was admitted over the objection of plaintiffs. No complaint of the ruling was made in the motion for a new trial. Held, that the question cannot be raised in this court." Syl. 1.

The errors of which the plaintiff now complains respecting the admission of testimony would have been sufficiently set forth if in his motion for a new trial he had merely alleged "erroneous rulings" in the language of the second ground provided in the statute. "In a motion for a new trial it is sufficient to set forth the grounds in the language of the statute, and, where such a motion recites 'erroneous rulings' as one of its grounds, appellant can have a review of any ruling made on the trial respecting the admission of evidence." Coal Co. v. Nicholson, 93 Kan. 638, 145 Pac. 571 (syl. 2).

$20 each. It can be said, therefore, that there was no dispute in the evidence that the trees possessed a value as shade trees. The testimony of the defendant himself shows that he destroyed the trees purposely and maliciously. It is true on the trial defendant made some effort to show that a few of the trees destroyed stood on the line between the two farms, that the fence was not the true line, and therefore he owned a portion of these particular trees and had the right to burn them; but this was clearly an afterthought, and, if his contention respecting the line were true, and if it were

conceded that because he owned a portion of one or two of the trees he could destroy them, it furnished no defense to his act in burning the others. Besides, his own testimony is an admission that he burned the trees purposely and maliciously because he became angry at the plaintiff for claiming that he was farming land that did not belong to him. On cross-examination he testified as follows:

"Q. You set fire to the tree? A. Yes; I did. Q. What did you do that for? You intended to burn the tree? A. Mr. Collins write for me he wanted to rent my-he said I farmed 20 feet of the public highway; that is where the trouble came there."

The failure to raise the question below is unfortunate; for the court is satisfied there [5, 6] While it is not the province of this was prejudicial error in the admission of court to weigh the evidence, it may detercertain testimony respecting the measure of mine that there is or is not sufficient evidamages. This, however, furnishes some rea- dence to support the verdict. Glenn v. Railson for what might under ordinary circum-road Co., 94 Kan. 83, 145 Pac. 865. In this stances be regarded as a rather technical case the verdict cannot, in our opinion, be consideration of the other errors assigned. sustained by the fact that there was eviWe find nothing to indicate that the verdict dence from which the jury might have found was given under the influence of passion or that some of the trees destroyed were on the prejudice. The court, over the objections of division line, and therefore the defendant plaintiff, permitted the defendant to prove owned an interest in some of them. Beby a number of witnesses that the destruc- cause of his own admissions the verdict tion of the shade trees caused no damage should have been set aside. As a new trial or injury to the real estate. These witnesses must be ordered, it is proper to say that were permitted to testify that, in their opin- the objections to evidence showing the value ion, the land was just as valuable for farm- of plaintiff's land immediately before and ing purposes without as with the shade after the trees were destroyed should have trees, and one or two of defendant's witness- been sustained. The plaintiff seeks to recov es thought the destruction of the trees bene-er as damages treble the value of the trees fited the land and made it even more valua- as appurtenant to the land under the proble than before. The court having admitted visions of the statute. Gen. Stat. 1909, § the incompetent evidence, it was the duty 9692. of the jury to consider it; and the fact that they found for the defendant indicates that they did so because of this evidence, rather than that they were influenced by prejudice or passion.

There remains only the first ground stated in the motion, that the verdict is contrary to the evidence. The plaintiff's testimony showed that the shade trees were valuable. A few of them were oak, and others elm. The plaintiff testified that he had planted them when he first acquired title to the land in the late 70's and early 80's. Some of the witnesses for defendant admitted that the trees had a value of at least $5 each, and

[4, 7] In Railway Co. v. Lycan, 57 Kan. 635, 47 Pac. 526, it was held that, where trees are destroyed, and they had a distinct value susceptible of distinct measurement, the value of the trees or things destroyed is the best measure and the most satisfactory method of determining the value of the loss. This doctrine was reaffirmed in Barker v. Railway Co., 94 Kan. 61, 65, 145 Pac. 829, where it was said in the opinion:

"It is not for the wrongdoer who causes an injury to decide whether an owner should have used his land for a particular purpose nor the use to which it can most profitably be employed. He is liable to pay for the loss of the property appurtenant to real estate which is actually