Wadhams Oil Co. v. Tracy, 141 Wis. 150. 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 that 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: Wadhams Oil Co. v. Tracy, 141 Wis. 150. 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 field 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 legisla tive regulation. It is said the law is a taxing measure and so is contrary to the constitutional provision designed to secure uniformity in that field. 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 Wadhams Oil Co. v. Tracy, 141 Wis. 150. garded. They are 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. 1421d, 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 fron 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 considered by the secretary of state in performing his duty. The foregoing covers all contentions of counsel for appel Boucher v. Wisconsin Central R. Co. 141 Wis. 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 caseeither originally or on this appeal. By the Court. The order is affirmed. BOUCHER, Administratrix, Respondent, vs. WISCONSIN CENTRAL RAILWAY COMPANY, Appellant. November 12-December 7, 1909. Railroads: Injury to brakeman uncoupling cars: Negligence of engineer: Questions for jury: Comparative negligence: Special verdict: Instructions to jury: Excessive damages. 1. Upon evidence tending to show, among other things, that, to enable a brakeman to uncouple a chain coupling between a switch engine and a car, he gave, and the engineer received, the signal to "slack the pin;" that this called upon the engineer to move his engine a few inches only; that the engineer understood the situation and knew that a movement of a few inches would suffice, but that he moved his engine several feet, bringing together the drawbars of the engine and car, which had been about two feet apart, and crushing between them the brakeman, who after drawing the coupling pin had moved forward between the drawbars, it is held that the engineer had reason to anticipate that an injury might result from his management of the engine as stated, and that the question of his negligence in such management was for the jury. 2. Although in such case the brakeman was, as a matter of law, guilty of contributory negligence, yet it not appearing that he deliberately placed himself in a position imminently dangerous to his life, or that he did not get between the drawbars through slight inadvertence, the questions whether the engineer's negligence was the proximate cause of the death and whether the decedent's negligence was slighter or greater than that of the engineer were properly for the jury. Boucher v. Wisconsin Central R. Co. 141 Wis. 160. 3. In a question in a special verdict asking whether the negligence of an engineer was "less or greater as a contributing cause" of the death of a brakeman than the negligence of the brakeman himself, the word "less" conveyed the same idea as the word "slighter" used in sec. 1816, Stats. (Laws of 1907, ch. 254). 4. Instructions expressly informing the jury that in assessing damages for the death of a married man they could not go beyond compensation for the pecuniary injury to the wife, are held to have corrected any misconception which might have arisen from a remark, made by the court in reply to a statement by counsel, that "the question is, How much pecuniary loss has the relative suffered that is, in this case, the wife and children of the deceased suffered-by reason of the death?" 5. An award of $7,500, confirmed by the trial court, for the death of a brakeman, is held not excessive. BARNES and MARSHALL, JJ., dissent. APPEAL from a judgment of the circuit court for Fond du Lac county: CHESTER A. FOWLER, Circuit Judge. Affirmed. At North Fond du Lac the defendant has an arrangement for handling cinders. The arrangement is the only one of its kind operated by the defendant. Under one of the defendant's tracks is what is known as the "cinder pit." On the bottom of the cinder pit, which lies nine or ten feet below the track, are two sets of parallel tracks running east and west. At the north and south of the tracks in the pit are abutments. The east end of the pit is closed. The pit is reached by a curved and inclined track about 300 feet long. There is room in the cinder pit for two gondola cars. When the two cars are in the pit they come very close together and are very close to the abutments. In using the pit the cars are at first run partly in, being blocked so that the half farthest in is under the track above. Locomotives on the track above are stopped over the cars in the pit, and the ashes and cinders which are dumped therefrom fall between the rails into the cars below. When the cars are half filled the block is removed from the wheels and the cars are allowed to slide down the incline so as to permit the filling of the other half. Owing to the curve and the incline of the track leading into the pit a chain coup |