Burkhardt's Admr. v. Striger, &c. making it a misdemeanor for three or more persons to "aet in a violent and tumultuous manner," it was held that a party who went out to charivari a newly-married couple with clubs, bells, trumpets, tin pans, cannon, and other weapons, making a great tumult and disturbance, might be convicted. Sanders v. State, 60 Ga., 126. Judgment affirmed. CASE 16-ACTION FOR AN INJUNCTION.-MARCH 20. Burkhardt's Admr. v. Striger, &c. APPEAL FROM KENTON CIRCUIT COURT. JUDGMENT FOR DEFENDANTS, AND PLAINTIFF APPEALS. AFFIRMED. INSPECTION OF OILS-GASOLINE-FEES OF INSPECTOR. Held: Under Kentucky Statutes, section 2202, providing for the inspection of "all 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," gasoline, being an oil which may be used for illuminating purposes, though it must first be transformed into vapor, is subject to inspection; and one who sends such oil into the State for sale is liable for the inspector's fees, though the oil is not sold for illuminating purposes, and though the statute, after providing for the inspection of various articles, provides that, "except the article of oil for illuminating purposes, no penalty shall be incurred for the sale or exportation thereof without inspection." GEORGE WASHINGTON, OF COUNSEL. W. M. FENLEY, ATTORNEY FOR APPELLANT. STATEMENT OF THE CASE. Appellant is a wholesale dealer in oils and gasoline. Of the appellees, Striger is oil inspector for Kenton county in this State, while appellee Shearer is his deputy. Striger, as oil inspector, brought numerous actions in the inferior courts for small sums which he claimed were due him for Burkhardt's Admr. v. Striger, &c. services rendered in the inspection of gasoline. These suits be came exceedingly vexatious and being for amounts seemingly contrived for the prevention of an appeal to the circuit court, appellant filed his petition in equity, seeking to enjoin further multiplicity of actions on the part of the inspector. In this petition it is very distinctly and clearly alleged that the inspector's bills were false, fraudulent and untrue; that he and his deputy had repeatedly made out bills for which they had rendered no services whatever, nor even attempted it; that, they had designedly cut up their accounts in such a way as to deprive appellee of his right to appeal to the circuit court, and that the inspector threatened to continue such a course as would keep his cases out of that court, and thus enable him to enforce his demand. Other and material allegations are to the effect, 1. That gasoline is not an illuminant within the provisions of section 2202 of the Kentucky Statutes. 2. That the test prescribed by section 2205 of the Kentucky Statutes, can not, by any possibility, be applied to gasoline. 3. That appellant had never sold gasoline for illuminating purposes, but on the contrary, had always a card upon the faucet of the tank wagon in bold letters stating, "Not sold for illuminating purposes. 4. That inspector had not even attempted to make the inspection contemplated by the statute (sec. 2205 and could not do so. We think it must be very clear to the court that if either of the foregoing propositions are established by a preponderance of the evidence, then the appellee should succeed the judgment of the court below be reversed, and the cause be remanded with directions to perpetuate the injunction. QUESTIONS OF LAW AND AUTHORITIES. Injunction. Civil Code, sec. 276, Shinkle v. The City of Cov. ington, 83d Ky., page 420. Judgment of Chancellor. & Co v. Dickerson & Co., 19th Ky. Reporter, 1223. CONSTRUCTION OF STATUTES. Kentucky Statutes, secs. 2190, 2202, 2205, 2205, 2207. QUESTIONS OF FACT. Stephens 1. Is gasoline an illuminant? Kentucky Statutes, sec. 2205. 2. Can the formula prescribed by the statutes for inspection, be applied to gasoline? Kentucky Stattes, sec. 2205. Burkhardt's Admr. v. Striger, &c. 3. Has appellant sold gasoline, or brought it into the State to be sold, as as illuminant? 4. Has the inspector the right to charge fees for inspections he has not made and can not make? D. A. GLENN, FOR APPELLEE. Fred Burkhardt in the name of Burkhardt & Co., was for many years engaged in business in Cincinnati, Ohio, in the sale and delivery of oils, gasoline, etc., and had an extensive trade in the city of Covington, having several wagons running, from which the goods were sold and delivered, and defendant Striger, as the oil inspector of Kenton county demanded that the goods should be subjected to his inspection before being sold by Burkhardt; all the while plaintiff was denying the right or the duty or the ability of defendant Striger to inspect same, but during the time, defendant was inspecting the goods and charging and collecting his fees therefor; several times it became necessary for the inspector to proceed by law to enforce payment of his fees; the fees for each inspection were small, and the driver did not pay at the time the service was rendered and the inspector would not rush off to plaintiff's place of business each time to collect a few cents, but would suffer the account to run until it amounted to a few dollars and then present same for payment, and all demands were met, until the accrual of those involved in this suit. A few suits had been brought in the lower courts and appellant filed this suit and alleged the pendency of the several suits and styled them, "Multiplicity of Suits," and alleged that defendant had wrongfully and wilfully brought the same before they reached the sum of $25, thereby intending to deprive him of the right of appeal to the circuit court, and without notice obtained an injunction enjoining defendants from proceeding further. He also alleged that gasoline could not be inspected, and had not been inspected by defendant, and that no oil or gasoline had been sold for illuminating purposes, and therefore was not subject under the law to inspection. Defendant put all these allegations in issue and upon trial the action was dismissed and injunction dissolved, and hence this appeal. The questions presented for decision are: (1.) Did not the injunction cease by operation of law? (2.) Should not the appeal be dismissed because the amount involved is not $200. Vol. 113-8 Burkhardt's Admr. v. Striger, &c. (3.) The construction of the inspection laws of the State which provide for the inspection of all oils and fluids, the product of petroleum. CITATIONS. Chap. 71 Kentucky Statutes; chap. 71, secs. 2202, 2205, 2206, 2207, 2208, 2209; Laws of Indiana, 1863; Laws of Ohio, 1867; Code of Iowa, 1897; Page 876, chap. 2, sec. 1505. 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 injunetion 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 6, 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 notice, 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 276 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 Burkhardt's Admr. v. Striger, &c. 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 name 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 water 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-eighth of an inch of the top. (3) Suspend the thermometer so the bulb is just under the surface 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 the 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 |