Burkhardt's Admr. v. Striger

Opinion of the court by JUDGE DURELLE

Affirming.

Burkhardt, being engaged in the wholesale oil business in Cincinnati, from which place he sent oil and gasoline into this State to be sold to retail dealers in Kenton county, brought suit against the 'oil inspector of Kenton county, his deputy, and a justice of the peace for an injunction to restrain the oil inspector and his deputy from bringing suit against him for fees as oil inspector for inspecting gasoline, and to prevent the justice from proceeding in such suits already brought. The ground averred for equitable intervention was that the inspector <and his deputy divided their accounts for inspection into small sums, so as to prevent appeals to the higher courts, and that the injunction prayed for should be granted in order to prevent a multiplicity of suits. A restraining order was granted until the further order of the court on August (5, 1897. On September 21st a motion to dissolve the restraining order was made by the defendant, and overruled in January, 1898. It is urged that the order, while denominated a “restraining order,” is, in form, an injunction; that it was granted without notice1, and did not fix a time and place within 10 days of the day upon which the order was made at which the applicant should move the court or judge to grant the injunction, as required by section 27(5 of the Civil Code Practice. We do not think it material to consider this question, as the case has been prepared upon the merits, and the .object of *115 the proceeding was to determine the question whether, under chapter 71 Kentucky Statutes, an inspection of gasoline is required when not sold for illuminating purposes.

Section 2202, Kentucky Statutes, provides “that all oils and fluids, the product of coal, petroleum or other bituminous substances, by whatever name1 called, which may or -can be used for illuminating purposes, manufactured in this State or brought into it before the same is consumed, used or sold to merchants or consumers within this State, shall be inspected by an authorized inspector of this State.” Section 2204 provides for the appointment of the inspector and his assistants, and section' 2205 provides the mode in which all oils shall be tested as follows: “(1) The water cup shall have sufficient watqr in it to rise two-thirds up the side of the oil cup. (2) Fill the oil cup with oil to be tested to within one-eightli of an inch of the top. (3) Suspend the thermometer so the bulb is just under the surface1 of the oil. (4) Use an alcohol lamp to heat the water bath, and before placing the light under the water cup, test the oil in the oil cup by bringing a lighted match in contract with the surface of the oil. If it does not. ignite, place the lamp under the water cup, and slowly heat the oil, not slower than one degree of the thermometer in a minute, nor faster than two degrees of the thermometer in a minute, moving a lighted match across the surface of the oil at each degree the thermometer rises, not more than three-eighths of an inch from the surface of the oil. If the oil should flash, that is a little gas burn on the surface and go out again, remove the1 lamp, and as soon as the thermometer ceases to rise; test the oil; and should it not ignite, replace the lamp, and test the oil each degree the thermometer rises till the oil ignites or permanently burns. As soon as the oil ignites or permanently burns, the degree indicated by the thermometer is *116 the fire test of the oil. The flame moved across the surface of the oil should not exceed that of an ordinary match.” section 2202 provides that all oils and fluids specified in section/2202 that ignite or permanently burn at the temperature of 130 degrees Fahrenheit and upward shall be approved by the inspector, and the packages marked by him with his name, official character, and the words, “approved fire test,” and all oils or fluids that ignite or permanently burn at a less temperature than 130 degrees Fahrenheit shall be condemned, and marked with his name, official character, and tin; words, “unsafe for illuminating purposes.” There is a further provision in section 2207'that the oils or fluids of a fire test less than 130 degrees Fahrenheit maybe' used in the manufacture of gas conveyed through pipes and burnt through burners as ordinary coal gas is burnt. Reel ion 220S provides a penalty for selling any of the oils or fluids specified in section 2202 without having been inspected, and section 2209 provides a penalty for selling any of the oils or fluids specified in section 2202 that will ignite at a temperature less- than 130 degrees, “to be consumed in this State for illuminating purposes.” The chapter (71) provides for certain other inspectors than inspectors of oils, and in section 2190 provides, “Except the article of oil for illuminating purposes, no penalty shall be incurred for the sale or exportation thereof without inspection.”

For appellant it is contended that, by virtue of the section last quoted (2190), it is not required that gasoline shall be inspected at all, except when sold for illuminating purposes; that it is not an illuminant, except in what is practically a gas machine; that appellant never sold gasoline for illuminating purposes, but, on the contrary, always kept a card upon the faucet of his tank wagon with the words, “Not sold for illuminating purposes.” It is further *117 claimed that until some IS months before the suit the inspector never attempted to make the test provided for by section 2205, and that such test, while it could be mechanically made, showed nothing except what was perfectly well known before the application of the test, to-wit, that gasoline would ignite or permanently burn at any temperature above 10 degrees below zero, Fahrenheit. Appellant contends that there is no conflict between section 2190 and section 2202, the latter of which must be construed to provide for the inspection of oil and other fluids to be sold for illuminating purposes, and that section 2205 deals solely with the articles coming within the exception made in section 2190, viz., oil for illuminating purposes. We are unable to concur in the contention of counsel. In section 2190 the words “oil for illuminating purposes” seem to us evidently an abbreviation of the description given in section 2202 of “oils and fluids, the product of coal, petroleum or other bituminous substances, by whatever name called, which may or can be used for illuminating purposes.” The article upon the subject of illuminating oils does not seem to us designed merely to provide a safe illuminant for the ordinary useful purposes of life, but to be- also a police measure, designed to protect the public against attempting to use oils or fluids of the description. given in the act which are not safe when used as illuminants in the ordinary mode, by requiring an inspection of all oils so produced, and giving -warning to the prospective consumer that the more inflammable oils are not safe when used in such manner. The use of gasoline and similar fluids as illuminants in gas machines, portable or stationary — and the portable machines are frequently seen in use on the streets — is distinctly recognized by section 2207. Nor can we see much force in the contention that gasoline can not be used for *118 illuminating purposes, because when used for the production of light it does not burn until transformed into vapor. It might as well be said that electricity is not used for illuminating purposes in the incandescent light, because the light is not given directly from the electricity, but from the heated carbon. It is quite true that in the case of a fluid as volatile as gasoline it is entirely unnecessary to heat the fluid in order to find out whether the temperature at which the oil ignites or permanently burns is above or below 130 degrees Fahrenheit, for the reason that gasoline will ignite at practically any temperature reached in this climate. In fact, the test provided by section 2205, subsec. 4, is not required to be applied in the case of gasoline, benzine and similar fluids; for, as will be seen by an examination of the subsection, it is only in case the oil does not Ignite before being heated that the lamp is to be placed under the water cup. If the unwarmed fluid does ignite, the further test provided by subsection 4 is useless. We think the intent of the statute clear to require an inspection of all the oils and fluids described in section 2202, and that all such oils are- included within the exception in section 2190. It follows, therefore, that the inspector had the right to inspect the oils sold by appellant, and was entitled to his legal fees for such inspection.

The court, therefore, properly dismissed appellant’s petition, and the judgment is affirmed.

Petition for rehearing by appellant overruled.