of the United States, or with § 21 of article, charged is in no way affected by any alleged 1 of the Constitution of Indiana. Pittsburgh, C. C. & St. L. R. Co. v. State, 172 Ind. 162, 87 N. E. 1034; State v. Richcreek, 167 Ind. 224, 5 L.R.A. (N.S.) 874, 119 Am. St. Rep. 491, 77 N. E. 1085, 10 Ann. Cas. 899; Knight & J. Co. v. Miller, 172 Ind. 44, 87 N. E. 823, 18 Ann. Cas. 1146; State v. Barrett, 172 Ind. 178, 87 N. E. 7; Chicago, I. & L. R. Co. v. Railroad Commission, 173 Ind. 475, 87 N. E. 1030, 90 N. E. 1011; Barrett v. State, 175 Ind. 117, 93 N. E. 543; Parks v. State, 159 Ind. 220, 59 L.R.A. 190, 64 N. E. 862; Levy v. State, 161 Ind. 256, 68 N. E. 172; Hanly v. Sims, 175 Ind. 353, 93 N. E. 228, 94 N. E. 401. The offense with which defendant is of the municipal officers," it condemned the action of the trial court in hearing evidence and making findings of fact in the attempt to ascertain the "errors," etc., of the municipal officers, citing Stevenson v. Colgan, 91 Cal. 652, 14 L.R.A. 459, 25 Am. St. Rep. 230, 27 Pac. 1089. The doctrine of Stevenson v. Colgan, supra, to which the earlier note is appended, to wit, "that, in passing upon the constitutionality of a statute, the court must confine itself to a consideration of those matters which appear upon the face of the law, and those facts of which it can take judicial notice," was referred to in Smith v. Mathews, 155 Cal. 752, 103 Pac. 199, and by Temple, J., in his concurring opinion in Fragley v. Phelan, 126 Cal. 383, 58 Pac. 923, and was reasserted in People ex rel. Chapman v. Sacramento Drainage Dist. 155 Cal. 373, 103 Pac. 207, as against the claim by a landowner that his property was taken without due process of law in that he was denied a hearing as to the question of the inclusion or exclusion of his land in a drainage district created by act of the legislature. In Johnson v. Elliott, Tex. Civ. App. -, 168 S. W. 968, the court said: "Whether or not the business of selling nonintoxicating malt liquors under a Federal license which also authorizes the sale of intoxicating malt liquors is a trade which in some way injuriously affects society is equally a question of fact, and one which must be settled by the legislature. It must be assumed, in construing laws like that here under consideration, that the legislature has made the necessary investigation, and has found that the facts warranted the restriction which it imposes. To justify the courts in holding that a given act is an unwarranted invasion of the fundamental rights of the citizen, and therefore beyond the police power of the state, that objection must appear from the face of the act itself, or from the facts of which the courts must take judicial cognizance. If a proper determination of the question as to whether or not the business is hurtful involves an inquiry into the conditions normally resulting from the traffic, authority of the Railroad Commission over the taking effect of the act in violation of § 25 of article 1 of the state Constitution. Hammer v. State, 173 Ind. 204, 24 L.R.A. (N.S.) 795, 140 Am. St. Rep. 248, 89 N. E. 850, 21 Ann. Cas. 1034; Isenhour v. State, 157 Ind. 521, 87 Am. St. Rep. 228, 62 N. E. 40; McPherson v. State, 174 Ind. 73, 31 L.R.A. (N.S.) 188, 90 N. E. 610. The act does not violate articles III. and IV. of the Constitution of Indiana, as being the delegation of legislative authority. Blue v. Beach, 155 Ind. 127, 50 L.R.A. 64, 80 Am. St. Rep. 195, 56 N. E. 89; Isenhour v. State, 157 Ind. 521, 87 Am. St. Rep. 228, 62 N. E. 40; Arnett v. State, 168 Ind. 183, 8 L.R.A. (N.S.) 1192, 80 N. E. 153; and makes necessary the ascertainment of facts through the medium of evidence in some form, the legislature has the right to prosecute such an investigation, and its findings are entitled to as much weight as should be attached to the findings of a court." it may be noted that in Pittsburgh, C. C. & St. L. R. Co. v. Hartford City, 170 Ind. 674, 20 L.R.A. (N.S.) 461, 82 N. E. 787, 85 N. E. 362, a case sustaining the validity of a city ordinance requiring the defendant to keep and maintain electric lights at certain points where its tracks intersected streets, the court, in denying the claim of defendant that there was a right to frame issues of fact regarding the necessity of the ordinance, and as to whether the exercise of the power was fair, honest, and proper, after stating that it regarded the ordinance as on the same general footing as an act of the legis lature, said: "Cases might be conceived of wherein a question of fact might be raised as a means of arresting a legislative act, as, for instance, an inquiry might be made whether a law regulating the charges of a public service corporation amounted to a taking of property in the particular instance; but we regard it as a general rule that the determination by a legislative tribunal of open or debatable questions concerning what is expedient is not subject to review on questions of fact, provided that the question is one within the competency of the legislative tribunal to determine. The view that legislative action can, in general, be made to depend upon the varying opinions of juries concerning its necessity or propriety, is wholly out of accord with the nature of a written law." Compare, Toledo, W. & W. R. Co. v. Jacksonville, 67 Ill. 37, 16 Am. Rep. 611, where it was held that an ordinance requiring a railroad to have a flagman at a crossing not unusually frequented was unconstitutional. Views and explanations from the health cases. In State v. Somerville, 67 Wash. 638, 122 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; McPherson v. State, 174 Ind. 70, 31 L.R.A. (N.S.) 188, 90 N. E. 610; Southern R. Co. v. Railroad Commission, 42 Ind. App. 99, 83 N. E. 721. be used after June 1, 1914; and § 3 provides that "whenever any such caboose cars or other cars now in use by such common carriers as provided by § 1 herein shall, after this act goes into effect 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: Appellant was charged by affidavit with the violation of §§ 1, 2, and 3 of the act of March 1, 1911 (Acts 1911, p. 92). Section 1 applies the provisions of the act to any corporation, person, or persons "while engaged as common carriers in the transportation of passengers or property within this state to which the regulative powers of this state extend." Section 2 in passing upon the reasonableness or unreasonableness of a statute, and deciding whether the legislature has exceeded its powers to such an extent as to render the act invalid, must look at the terms of the act itself, and bring to their assistance such scientific, economic, physical, and other pertinent facts as are common knowledge, and of which they can take judicial notice." One of the reasons given by the courts is that proof in a single case that the statute was not a necessary regulation would be immaterial, as it must be considered from its application generally. Ibid.; People v. Smith, 108 Mich. 527, 32 L.R.A. 853, 62 Am. Am. St. Rep. 715, 66 N. W. 382. Thus, where the plaintiff was convicted of employing women in his hotel more than ten hours a day contrary to the statute, it was held that evidence that such employment was not injurious to women could not enable the court to determine the question as to the validity of the statute, as it must be considered from its application to all employers and employees, and not to any individual case. People v. Elerding, 254 Ill. 579, 40 L.R.A. (N.S.) 893, 98 N. E. 982. So, in Shelby v. Cleveland Mill & Power Co. 155 N. C. 196, 35 L.R.A.(N.S.) 488, 71 S. E. 218, Ann. Cas. 1912C, 179, the court, in sustaining the validity of a statute prohibiting the discharge of sewage into waters from which a public drinking water supply is taken unless the same is purified, said: "The issue attempted to be raised by the pleadings that the stream is not dangerously polluted by the raw sewage poured into it from a large mill settlement working hundreds of operatives can be of no avail to defendant. That is a matter for the judgment of the legislature. Such legislation is preventive, and to limit it to cases where actual injury is shown to have occurred would be to deprive it of its most effective force. To be of value, such laws must be able to restrain acts which have a tendency to produce public injury." In State ex rel. Board of Health v. Diamond Mills Paper Co. 63 N. J. Eq. 111, 51 Atl. 1019, affirmed on opinion below, 64 N. J. Eq. 793, 53 Atl. 1125, however, the court, service of such common carrier within this state unless it be equipped as provided in § 2 of this act." Other following sections define the exceptions, the powers, and duties of the Railroad Commission in respect to the matter, and provide the penalty. The charge in the affidavit, in substance, is that on and prior to July 5, 1911, appellant owned and had in use on its line as a corporation and common carrier a in sustaining a statute prohibiting the discharge of factory refuse into rivers, referred to the fact that they had the evidence of scientific men (evidently favoring the statute), but did not comment on its admissibility. Again it is said that another similar prosecution might result differently, and thus the act be declared both valid and invalid. State v. Somerville, supra. Again, that expert evidence that the statute would inflict evil could not justify the court in deciding against the general opinion to the contrary. Com. v. Pear, 183 Mass. 242, 67 L.R.A. 935, 66 N. E. 719, affirmed in 197 U. S. 11, 49 L. ed. 643, 25 Sup. Ct. Rep. 358, 3 Ann. Cas. 765 (compulsory vaccination). In People v. Smith, 108 Mich. 527, 32 L.R.A. 853, 62 Am. St. Rep. 715, 66 N. W. 382, where it does not appear whether extrinsic evidence was offered or not, the court, in sustaining a statute requiring emery wheels to be provided with blowers to carry away the dust, said, as to the question of the necessity of the statute: "Who shall decide the question, and by what rule? Shall it be the legislature or the courts? And, if the latter, is it to be determined by the evidence in the case that happens to be first brought, or by some other rule? Does it become a question of fact to be submitted to the jury, or decided by the court? Of all the devices known to human tribunals, the jury stands pre-eminent in its ability to determine cases in direct violation of and contrary to law, without impairing the binding force of the law as a rule of future action. We have known of instances where the question of the constitutionality of acts, as applied to the particular case on trial, has been made to depend upon the finding of the jury upon the facts in the case. But there is a manifest absurdity in allowing any tribunal, either court or jury, to determine from testimony in the case the question of the constitutionality of the law. Whether this law invades the rights of all the persons using emery wheels in the state is a serious question. If 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 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 eviupon 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 on the grounds that the finding is contrary to law, and not sustained by sufficient evidence, and over motion in arrest of judgment for the reasons set out in the special plea, judgment was entered. As the validity of the law is the sole question presented, it is not necessary to consider any other question, except to say that the admissions and evidence show appellant to be a common carrier engaged in interstate commerce, and that the value of the particular car when it went into the shops was $380, and when repaired $442, and that the salvage in making the caboose correspond to the act of 1911 would be $185; be sustained, but, if an unjust law, it should be annulled. The first case presented might show by the opinions of many witnesses that the use of the dry emery wheel is almost necessarily fatal to the operative, while the next might show exactly the opposite state of facts. It would seem, then, that the questions of danger and reasonableness must be determined in another way. The legislature, in determining upon the passage of the law, may make investigations which the courts cannot. As a rule, the members (collectively) may be expected to acquire more technical and experimental knowledge of such matters than any court can be supposed to possess, both as to the dangers to be guarded against and the means of prevention of injury to be applied; and hence, while under our institutions the validity of laws must be finally passed upon by the courts, all presumptions should be to present appellant's position fairly, and the question is, Does the evidence overcome the presumption, or is evidence admissible to controvert the presumption? It is the contention of appellant that the act is in violation of § 8 of article 1 of the Federal Constitution as a regulation of commerce "among the states." It is contended by the state that the act will be construed as applying only to operations in the state, and does not purport to be a regulation of interstate commerce, and that as a police power which affect interstate commerce incidentally is supreme until and unless the particular subject is taken cognizance of by Congress, and that the charin favor of the validity of legislative action. If the courts find the plain provisions of the Constitution violated, or if it can be said that the act is not within the rule of necessity in view of facts of which judicial notice may be taken, then the act must fall; otherwise it should stand." It may be noted that in People v. Williams, 189 N. Y. 131, 12 L.R.A. (N.S.) 1130, 121 Am. St. Rep. 854, 81 N. E. 778, 12 Ann. Cas. 798, the New York court held unconstitutional as arbitrary and unnecessary a statute prohibiting late night work in factories by women, but that in People v. Charles Schweinler Press, 214 N. Y. 395, 108 N. E. 639, it sustained a similar statute not much less drastic in view particularly of the facts set forth in a report made by a legislative commission on the subject which recommended the law. B. B. B. The police power is of very wide scope, and the extent to which it may go has not and cannot be defined, and its application in a proper case is not inimical to the Fed ognized that property or property rights may not be destroyed under the guise of the police power or so-called police regulation, if it appears that it has or can have no just relation to the protection of the public health, welfare, morals, or safety. Unless this negation affirmatively appears by the act or its history in enactment, the police power extends even to the taking and destruction of property, without being an infringement upon the due process of law clauses of either Constitution, even though compliance with the specific act shall require a large expenditure of money, and it will be presumed that the act is reasonable, unless the contrary appears from the facts of which the courts will take notice. State v. Barrett, 172 Ind. 169, 87 N. E. 7; State v. Richcreek, 167 Ind. 217, 223, 5 L.R.A. (N.S.) 874, 119 Am. St. Rep. 491, 77 N. E. 1085, 10 Ann. Cas. 899, and cases cited. 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 concern. 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 Commerce Commission have not embraced the specific subject either of length of caboose cars or their wheel bases, and we regard the act of the state as not an inter-eral Constitution, but it must also be recference with, or as placing a burden upon, or as regulating, interstate commerce, even though the right of control extends to all the instruments of such commerce (Hall v. De Cuir, 95 U. S. 497, 24 L. ed. 551), for the reason that this act does not lay any restrictions on commerce itself, or the objects of commerce, nor on an instrumentality of commerce by the manner of construction or the manner of its use, but the act is directed at the form of the instrumentality as to a matter as to which Congress has not seen fit to act. We are unable to perceive how it might affect it even incidentally, and it is not such legislation as is superseded by the Federal laws. Pittsburgh, C. C. & St. L. R. Co. v. State, 172 Ind. 147, 166, 167, 87 N. E. 1034 and cases cited; Pittsburgh, C. C. & St. L. R. Co. v. State, 178 Ind. 498, 99 N. E. 801; Chicago, R. I. & P. R. Co. v. Arkansas, 219 U. S. 453, 465, 55 L. ed. 290, 296, 31 Sup. Ct. Rep. 275; New York, N. H. & H. R. Co. v. New York, 165 U. S. 628, 632, 41 L. ed. 853, 854, 17 Sup. Ct. Rep. 418; Smith v. Alabama, 124 U. S. 465, 480, 31 L. ed. 508, 513, 1 inters. Com. Rep. 804, 8 Sup. Ct. Rep. 564. The serious question is the attack made upon the act as being in violation of the due process of law clause of the Federal and state Constitutions, on the ground of its being unreasonable and resulting in the destruction of a large amount of property, which would be in effect taken and actually destroyed without just reason and without any good purpose to be subserved in the public interest, under the guise of being a police regulation. In answer to this the state contends that a police regulation is not a denial of due process of law. Pittsburgh, C. C. & St. L. R. Co. v. State, 178 Ind. 498, 99 N. E. 801; Pittsburgh, C. C. & St. L. R. Co. v. State, 172 Ind. 147, 162, 163, 87 N. E. 1034; Chicago, R. I. & P. R. Co. v. Arkansas, 219 U. S. 453, 465, 466, 55 L. ed. 290, 296, 297, 31 Sup. Ct. Rep. 275; New York, N. H. & H. R. Co. v. New Regulation is the normal form of operation of the police power, and it operates on the relation which the property or rights affected bears to the danger or evil which is to be provided against. The courts can have nothing to do with the wisdom or expediency of legislative measures, or cost of compliance with them, as a rule; but if the legislature is the sole judge of the necessity of the measure it enacts, there could be no limitation on the so-called police power, and it is everywhere regarded under constitutional government that a measure must not be unreasonable, and it is necessarily of the very essence of constitutional government and co-ordinated power. Freund, Pol. Power, §§ 8, 15-18, 20, 21; Tiedeman, Pol. Power, §§ 1, 4, 144. It may be a matter of degree, but it must not be unreasonable, for it is apparent that a measure may be unreasonable from an excess of degree, and the question ordinarily. is whether the regulation becomes prohibitive, destructive, or confiscatory, or reasonably adapted to promote some public purpose, 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. Barsas, 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. 139, 41 L.R.A. 337, 47 N. E. 525, 51 N. E. 80; Mode v. Beasley, 143 Ind. 306, 42 N. E. 727; Soon Hing v. Crowley, 113 U. S. 703, 28 L. ed. 1145, 5 Sup. Ct. Rep. 730; Lusher v. Scites, 4 W. Va. 11; Stevenson v. Colgan, 91 Cal. 649, 27 Pac. 1089, 25 Am. St. Rep. 230, and note, 14 L.R.A. 459, and note; De Camp v. Eveland, 19 Barb. 81; Cooley, Const. Lim. 7th ed. pp. 267 et seq; Tiedeman, Pol. Power, § 73. Courts will not attempt fine distinctions with respect to the matter of reasonableness or unreasonableness of a statute, and ordinarily it must be plain that no circumstances could justify an act before courts are authorized to interpose. State v. Barrett, supra. As here presented, this court is confronted squarely with the proposition whether it is conclusively bound by the presumption that there were reasons presented to the legislature as the basis for the act as to which the court cannot be informed, as presented by the act itself; or whether evidence here adduced is admissible as tending to show that the act is arbitrary and unreasonable. The effect of such evidence is of course a collateral attack upon the legislative inquiry, judgment, and declaration (that is, to impeach it). and we fully appreciate the gravity of the question. On the one hand we have the legislative determination; on the other the impeachment of that determination by the opinion of witnesses, which, if admissible, would seem to cover every phase of the case as presenting an unreasonable and arbitrary exercise of legislative authority. What the evidence might be in another case under the same act, as showing good cause for the enactment, only demonstrates the inadmissibility of this evidence for any purpose. It would be a dangerous rule to declare that the validity or invalidity of an act of the legislature can be the subject of collateral attack as to the facts upon which the legislature has acted; that is, that a jury may determine from evidence adduced before it, or from lack of evidence, that an act is or is not invalid, with as many vary ing conclusions as there might be bodies of triers, or upon such facts as ingenuity might suggest, as matters of opinion or actual facts in evidence. The question of the validity of a legislative act is necessarily one of law, and not of fact, and is not the subject of inquiry by triers of fact, and cannot be made to depend upon the testimony of witnesses, where the question is one within the competency of the legislature If it cannot be made to appear that a law is in conflict with the Constitution by argument deduced from the language of the law itself, or from matters of which a court can take judicial notice, then the act must stand. The testimony of expert or other witnesses is not admissible to show that in carrying out a law enacted by the legislature some provisions of the Constitution may possibly be violated. People ex rel. Kemmler v. Durston, 119 N. Y. 569, 24 N. E. 6, 16 Am. St. Rep. 859, 864, 7 L.R.A. 715, and cases cited; People v. Worden Grocer Co. 118 Mich. 604, 77 N. W. 315; People v. Elerding, 254 Ill. 579, 40 L.R.A. (N.S.) 893, 898, 98 N. E. 982; Bonnett v. Vallier, 136 Wis. 193, 17 L.R.A. (N.S.) 486, 128 Am. St. Rep. 1061, 1068, 116 N. W. 885. We certainly cannot know that a longer car with two adjustable and oscillating four-wheeled trucks, instead of four rigid wheels, will not ride more comfortably, and it is probable with more safety. At least the court cannot say that it is unreasonable, but is bound to presume that there were facts before the legislature which would show it not to be unreasonable, and we hold that it cannot be the subject of attack, by oral evidence as unreasonable and arbitrary and confiscatory, as is sought in this case. We do not place this conclusion on any ground of abstract justice or judicial notions of natural right or equity, but upon the ground that the act cannot be attacked by oral evidence as to its unreasonableness, or the cost of expense, or the hardship which may result from compliance, for the reason that the question is one of power in the legislature as a police regulation, with which courts may not interfere unless they can say that it is not within the power, |