Wadhams Oil Co. v. Tracy, State Supervisor of Inspectors of Illuminating Oils

Maeshall, J.

The foregoing summary of the act, challenged in this ease, shows that it is of no ordinary importance. It interferes, in general and particular, with personal liberty-in respect to handling and using many products which have come to be regarded as common necessaries. It does so with a particularity not found in any other legislation of the sort, so far as can be discovered. “Pity ’tis,” in the judgment of the writer, if it be true that the common products of mineral oil, which have come to be, in such a multitude of ways, objects of human desire; obtainable for consumption at so low a price as to be within the reach of the humblest* are so highly dangerous; and the individual has so little capacity for protecting himself from fraud and danger, and so little inclination to properly use what knowledge he has in that regard; and is so prone to be ignorant through negligence, — that there-is reasonable necessity of putting him under so many and such particular restraints as to injuring himself and of so minutely guarding him against fraud, and of so menacing him with SO' many threats of punishment. That such assertions of police authority should make extraordinary modes of nullification, like the one invoked here, much more often resorted to than formerly, is a natural result of the new conditions.

Doubtless when an enactment is wholly, or in greater part,, unconstitutional, or in such part void that it is clear, the person invoking equitable interference against persons assuming to have authority, as public officers, to enforce it, has no other-way of adequately remedying the wrong, the doors of that. *156 ultimate resort should swing open freely. But it will not do ■to make of tbe courts, by equitable interference, a sort of superior upper bouse to consider and pasa, in general, and particular as well, upon legislative enactments^ as tbe court is re•quested to do in this case.

If an enactment, in its general scope and dominant particulars, is legitimate, as a general rule, equity jurisdiction for an •attack upon tbe law should not be invokable to test mere minor features, but they should be left to their fate as cases arise specially involving them.

Courts of equity have a very large jurisdiction in the sense ■of power itself. They have an important secondary jurisdiction to determine when they ought and when they ought not to use that power. Power is given in very broad field, coupled •with a very broad discretion as to when and when not to use it. In the exercise of the secondary power, the court should, as a rule, decline to exercise jurisdiction, though having it, to enjoin public officers from executing the legislative will as to some one or more minor features of a law, not essential to efficiency of its dominant legitimate features. That measure of reluctance to deal in the field of constitutional nullification, is due to the lawmaking power. Its indulgence will in no wise militate against a vigorous performance of duty in a situation where there is no judicial right to decline to exercise jurisdiction. It has been said that, in such situations, to so decline “would be treason to ’the constitution.” True, but it would be a practice not much, if any, less dangerous, whether it be, called treason to the constitution or by a milder name, to ■exhibit that willingness to defeat the legislative will, involved in judicial nullification of its enactments in advance of there being, reasonable necessity for consideration of the matter, as well as unavoidableness, in reason, as to the result.

The manifest purposes of the enactment here are to conserve individual members of society and their property from physical harm and prevent them from dealing fraudulently, *157 or being victimized by fraudulent practices. Those purposes, concern the public welfare in a very broad sense. Hence, the enactment is within the scope of the police power. No question is raised as regards public safety being within such scope, but it is suggested thát prevention of and protection from fraudulent practices is not Counsel is wrong on that point, as ruled by Meyer v. State, 134 Wis. 156 , 114 N. W. 501 , and cases in the federal and state courts, too numerous to mention,, sustaining police regulation with, reference to butter, oleomargarine, lard, flour, phosphate, grain, tobacco, milk, and many of the common things used in our domestic life, in numerous instances not involving any element detrimental to-health; all such regulations being for the purpose, ostensibly at least, in whole or in part, of preventing dealers from expressly or impliedly misrepresenting things offered for sale, and protecting purchasers from being imposed upon as regards the nature of the thing purchased for use, the exact nature of which is not discoverable by ordinary inspection.

That the dangers in general, sought to' be guarded against by such laws as the one in question, justify exercise of sovereign police authority, needs no discussion. Laws on the subject exist in nearly, if not, every state in the Union and have uniformly been sustained or treated as constitutional as a matter "of course. True, none of them, so far as we can discover, go so far, as regards interference with the liberty of consumers, as the one in question. But there is not much, and, seemingly, no, material difference as regards the general scheme of inspection of products of petroleum before being offered for sale, and official approval of suitableness for use and evidence thereof, between the act in question, those found in other states, and the law here since the enaction of ch. 114, Laws of 1897. The following are but a few of the decisions elsewhere sustaining or recognizing validity of laws containing all the general features we have here, so far as designed to prevent the sale of petroleum products, unsuitable for use: *158 Willis v. Standard Oil Co. 50 Minn. 290 , 52 N. W. 652 ; Ex parte Robinson, 28 Tex. App. 511, 13 S. W. 786 ; County Court ex rel. Jenks v. Fassett, 65 Mo. 418 ; Hawkins v. L. & N. R. Co. 145 Ala. 385 , 40 South. 293 ; Burkhardt's Adm'r v. Striger, 113 Ky. 111 , 67 S. W. 270 ; Blaco v. State, 58 Neb. 557 , 78 N. W. 1056 ; Hatcher v. Dunn, 102 Iowa, 411 , 71 N. W. 343 ; Comm. ex rel. v. Bradley, 210 Pa. St. 66, 59 Atl. 433 ; Louisiana State Board of Health v. Standard Oil Co. 107 La. 713 , 31 South. 1015 .

It seems.quite obvious that the subject of the act is within the held of police power and the general features satisfy the constitutional requirement of reasonableness. The importance of securing consumers immunity from being imposed upon respecting the quality of petroleum products purchased for use, is obvious, and the impracticability, in general, of their determining for themselves such quality, is likewise obvious. There are common dangers and common beneficial purposes. So all elements are apparent warranting legislative regulation.

It is said the law is a taxing measure and so is contrary to the constitutional provision designed to secure uniformity in that held. That cannot prevail unless the fees are so clearly exorbitant, viewed as mere regulation expenses, that it could not reasonably be claimed the purpose was merely to- lay the burden of executing the law upon the property involved. Wis. Tel. Co. v. Milwaukee, 126 Wis. 1 , 104 N. W. 1009 . True, it is alleged in the complaint that the fees are exorbitant; but the question on that subject is not one of fact to be determined by evidence and taken as admitted by the demurrer, as claimed by appellant, merely because a surplus is in fact, or probably will be, collected. If the law, speaking for itself, in the light of common knowledge and adjudications, shows clearly that the fees may reasonably be regarded as mere police expenses, then the allegation to the contrary cannot change the aspect of the matter and make it one to be settled on evidence. It is considered that they can be so re-' *159 ,garded. They axe about the same as in laws generally on the ; subject throughout the country, and in no case have similar •charges been held exorbitant, so far as we can discover.

The point is made that the act is an interference with interstate commerce. That is ruled against appellant by the decision that the act is a valid police measure. State v. C., M. & St. P. R. Co. 136 Wis. 407 , 117 N. W. 686 .

The further point is made that the act violates the constitutional provision making the secretary of state the state auditor, in that sec. 142 1d, Stats, (Laws of 1909, ch. 363), provides that the salary and expenses of and disbursements by the supervising inspector shall be paid by the state treasurer ■ out of the special fund derived from execution of the law, on vouchers approved by the governor, and that the expenses of deputy inspectors shall be paid out of the special fund upon being approved by the supervisor and governor.

The act, as to disbursement of money, is very unskilfully drawn. Taking it literally, it contemplates payment of the •supervisor’s fees without any auditing, strictly so called. It makes no provision, whatever, for the manner of payment of salaries of deputies, while it contemplates an approval by the .governor of such deputies’ expenses and an audit by the secretary of state before payment. It is easily seen that the term '“approved” was not used as including the constitutional audit. It is the judgment of the court, that out of the confusion found in the section, no unmistakable command or authorization can be found to pay money out of the state treasury in absence of the constitutional audit. Therefore, it must be read in harmony with the fundamental requirement that, notwithstanding executive approval, or that of the supervisor., there must be an auditing by the secretary of state before the -state treasurer can rightly pay out money intrusted to his custody. The approval of expenses and salary bills required must be regarded as mere evidence of legitimacy to be eon-■sidered by the secretary .of state in performing his duty.

The foregoing covers all contentions of counsel for appel *160 lant which, in any event, could be considered as going to the-validity of the whole act. As before indicated, whether in any mere matter of detail, the act be fatally uncertain or unconstitutional, the court should not permit equity jurisdiction, to be used in a suit of this sort to determine, and no such matter should be regarded as having been determined in this case-either originally or on this appeal.

By the Court. — The order is affirmed.