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say that such guide should be used as aj in each paragraph of complaint being a vioguard."

lation of statutory requirements, there could "No. 18. The defendant claims that there be no assumption of risk. The doctrine of was on said machine at the time in question assumption of risk does not apply to a case a fence or guide which could be adjusted by where the injury occurs by reason of the the operator thereof, and that the plaintiff negligent nonobservance of a positive and could and should have adjusted said guide or fence so as to leave no more of said knives fixed duty enjoined by a statute. Cleveland, exposed than was necessary to cut the ma- etc., R. Co. v. Powers, 173 Ind. 105-114, 88 terial being used. In determining the plain- N. E. 1073, 1076, and cases cited; Indianatiff's conduct in this regard you have the polis, etc., R. Co. v. Waddington, 169 Ind. right to take into consideration the way such 448, 82 N. E. 1030; Island Coal Co. v. Swagmachine was usually and ordinarily operat- gerty, 159 Ind. 664–667, 62 N. E. 1103, 65' N. ed, the device which was furnished, if there E. 1026; 26 Cyc. 1180. “The failure to perwas one to cover the portion of the knives form any duty imposed either by a statute between the material and the edge of the

Watable and any other facts or circumstances in or an ordinance is negligence per se.” the case, bearing thereon."

bash R. Co. v. Beedle, 173 Ind. 437, 442, 90

N. E. 760; Pennsylvania Co. v. Hensil, 70 Ind. Elmer E. Stevenson, of Indianapolis, and J. H. Edwards, of Mitchell, for appellant. Power House Co. (1910) 46 Ind. App. 420

569-574, 36 Am. Rep. 188; King v. Laycock George H. Voigt, of Jeffersonville, and Evan 423, 92 N. E. 741. B. Stotsenburg and John H. Weathers, both

[3, 4] It is next urged that the first and of New Albany, for appellee.

second paragraphs of complaint are insuffi

cient to withstand the demurrer, for the reaSPENCER, J. (1) Appellee recovered judgment for $2,000 in the court below in an ac failure of appellant to guard its machine

son that it is not directly alleged that the tion against appellant to recover damages for personal injuries sustained by him by reason T'he first paragraph alleges, in substance, that

was the proximate cause of appellee's injury. of the alleged violation of section 8029, , Burns 1908, generally known as the “Fac- in the operation of the woodworker (jointer tory Act.” In prosecuting an appeal to this machine) there is danger that, while the percourt appellant seeks to have sections 8021-son operating the same runs the wood over 8047, Burns 1908, declared "unconstitutional, the knives, it would be thrown back suddenvoid and invalid,” and particularly insists ly, and the hand of the operator be thereby that section 8029, supra, is invalid for un- brought in contact with the knives; that à certainty, in that the language thereof makes proper guard could have been placed on the it the duty of the owner, his agent, super- machine without interfering with its proper intendent, or other person in charge of a operation; that such guard would have promanufacturing establishment, where such tected the knives and prevented any inmachinery as that on which appellee was in- jury from the aforesaid danger; that apjured is operated, to have the same “proper- pellant, in violation of the statute, negligently guarded.” When the language, "shall be ly failed to provide such guard and the maproperly guarded,” is considered in connec-chine was without such guard; that while tion with the other language of that section, appellee was operating the machine and holdand the other sections of the act in question, ing a piece of wood on the table of the same it is clear that it means a safeguard to pro- and running it over the knives the wood was tect the life and limbs of employés engaged suddenly thrown back by the operation of about dangerous and hazardous machinery the machine, thereby causing appellee's hand and mechanical appliances, where such can to come in contact with the knives and be be so guarded without impairing their use thereby injured; that, if such guard had been fulness. What the size or shape of such placed on the machine, his hand would not guard shall be is not specifically stated in have come in contact with the knives; that the statute which requires only that it shall the injury was caused by the negligence of be proper, and the term “proper" as thus us appellant in failing to provide the machine ed means fit, suitable, appropriate. The stat- with such guard. ute is not subject to the criticism of appel- The second paragraph contains allegations lant. State v. Louisville, etc., R. Co., 96 N. similar to those of the first paragraph, and E. 341; Booth v. State, 100 N. E. 563; Kir- further avers that appellant nas provided choff v. Hohnsbehn Creamery Co., 148 Iowa, the machine in question with "a guard con508-512, 123 N. W. 210.

sisting of a board, attached to the table of [2] Appellant contends that the court erred said machine with a screw and placed on in overruling its demurrer to each of the par- said table in such position that it would cover agraphs of complaint for the reason that, the said aperture" through which the knives statute being void, "neither paragraph of the protruded, but “that to make said guard a complaint states a cause of action under the proper one, and one that would safely common law as it is shown by the facts al- guard said knives and prevent injury from leged that the plaintiff assumed the risk; the danger aforesaid, it should then and the conditions and dangers being well known there have been provided with a spring to him.” But we have seen that the statute to hold said guard against the material is not invalid; and, the charge of negligence run over said table for the purpose of being sawed and to completely cover said when it can be done without interfering with aperture above said knives the instant such its proper operation and for such master to material was removed; that said guard with violate the provisions of such act is neglisuch spring would then and there have guard-gence on his part. It is no defense for the ed said knives and prevented any injury master to say that a factory inspector examinfrom the danger aforesaid."

ed the machine and direeted a certain device Each paragraph alleges facts sufficient to to be used as a guard. I instruct you that, show that the failure to guard the machine where a master is by said statute required properly was the proximate cause of the in- to furnish a guard, the only way that the jury, and there was no error in overruling master can escape liability is to secure a the demurrer on that ground. It is further proper and sufficient guard and furnish such insisted, however, that the second paragraph machine with it. The fact, if it be a fact, of complaint is defective because it is "am- that other manufacturers are using an imbiguous and uncertain if not repugnant." perfect and insufficient guard, is no justificaIn our opinion it is not subject to this criti- tion or excuse for such master to violate cism, and states a good cause of action. such statute. The master is bound to know

[5, 6] Appellant earnestly endeavors to and comply with the requirements of such show error in overruling its motion for judg- guard statute." If this instruction stood ment on the answers to interrogatories. In alone, it would hardly suffice to say that it determining this question we must be guided referred only to the kind of guard appellant by the following rules laid down by this was required to furnish, but it does not purcourt: "A general verdict will not be de- port to cover all the facts necessary to refeated by isolated facts disclosed by answers covery by appellee, and, the subject of conto interrogatories, unless such facts are tributory negligence being fully and comshown to be so repugnant and contradictory pletely covered in other instructions given, to the general verdict that both cannot be we cannot say that it is such error as true under any conceivable state of facts would warrant a reversal. provable under the issues." Indiana R. Co. [9] Instruction No. 11 is not subject to v. Maurer, 160 Ind. 25-27, 66 N. E. 156, 157. the objections urged against it by appellant. “In determining this question we cannot By this instruction the jury was properly in" look to the evidence, but only to the com- formed that if the machine was not properly plaint, answer, and general verdict, and the guarded, and appellee knew that fact, and answers of the jury to the interrogatories." with such knowledge continued to work on Consolidated Stone Co. v. Summit, 152 Ind. and about the machine, he would not nec297–300, 53 N. E. 235, 236.

essarily be guilty of contributory negligence. No purpose can be served by setting out the instruction further contained this lanthe 191 interrogatories and answers in this guage: “If you find that the plaintiff while opinion, but it is sufficient to say that no using ordinary care and prudence was insuch conflict between the general verdict jured upon said machine *

because and the answers to interrogatories is shown said machine was not guarded in the particas would warrant the striking down of the ular alleged in the complaint if it was not general verdict, especially in view of ap- guarded, and if you find that the defendant pellant's statement "that facts are found in was required to so guard the machine, and the answers to the interrogatories in this you find that it could have been guarded case that are favorable to appellee."

without interfering with its proper operation, [7] Under the motion for a new trial here- then your verdict should be for the plaintiff, in, the next question presented for considera- although you should find that the plaintiff tion is the sufficiency of the evidence. That knew that such machine was not properly there is a conflict in the evidence is appar- guarded." This instruction was not erroneent, but it is not the province of this court to ous. weigh the same. When there is legal evi

, , , dence tending to support a verdict, the find- tendered by appellee, may be considered toing of the jury concludes the question. Con- geiher. They each call the jury's attention tinental Life Ins. Co. v. Yung (1888) 113 to the claim of appellant that there was a Ind. 159, 15 N. E. 220, 3 Am. St. Rep. 630; guide or fence on the machine which might Evansville, etc., R. Co. v. Harrington (1882) have been used as a guard, and that there 82 Ind. 534.

was another device furnished as a guard. [8] Appellant next contends, and dis- The manner of the use of either as a guard cusses in its brief, that the court erred in and whether either was a proper guard, the submitting to the jury instructions numbered conduct of appellee in the use of the machine 9, 11, 15, 16, 18, and 24 at the request of with either as a guard, and the requirement appellee, and in refusing instructions num- of appellant to furnish a proper guard were bered 1, 5, 14, 18, and 19 tendered by appel- all matters on which, under the issues, it lant. Instruction No. 9 is as follows: “The was proper to instruct the jury. Instruction Factory Act which requires certain machino No. 24 is as follows: “If you should find ery, such as saws, planers, and sharpers, to from the evidence that guards similar to the be guarded, makes it the imperative duty of one used on the machine referred to were the master or person coming within its pro- in other manufacturing establishments, such

1- [10] Instructions 15, 16, and 18, given as

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liability, if you find that the guard used was, as to make it so appear at first blush, this not a proper one, and that a proper one court will require that it be pointed out could be used without interfering with the wherein the record so discloses to such exproper operation of said machine.” This tent as to induce the belief that the jury was was not erroneous under the facts disclosed actuated by prejudice, partiality, or corrupby the record.

tion." [11] Of the instructions tendered by ap- We find no reversible error in the record. pellant and refused by the court No. 1 un- Judgment affirmed. dertakes to tell the jury that what is a proper guard may be determined by finding if the guard on the machine was similar to

(180 Ind. 245) those in use by others; that the use of such PITTSBURGH, C., c. & ST. L. RY. CO. v. a guard would then be ordinary care. This

STATE. (No. 22,248.) 1 instruction seems to be an adroit effort to di

June 3, 1913.) rect the jury to determine ordinary care by (Supreme Court of Indiana. comparative means. It was properly refused. 1. COMMERCE (88 10, 58*) – INTERSTATE Com.

COM Instructions 5 and 14 are subject to the


Act March 1, 1911 (Acts 1911, c. 60), same criticism.

making it unlawful for common carriers by [12] Instruction 18 would tell the jury railroad to use any caboose or car used for that a guard to be proper would require the like purposes unless it is at least 24 feet in approval and indorsement of “a consider- length, exclusive of platforms, and equipped

with two four-wheeled trucks, and providing able proportion of careful, prudent, skillful, that, when any such caboose or car in use considerate, and experienced persons in the when the act became effective is brought to line of business” of appellant, and that be- any, shop for repairs, it shall be unlawful to fore the failure to adopt such suggested vided, is not an interference with and does

again put it into use unless equipped as proguard would be negligence it should com- not place a burden upon or regulate interstate mand the commendation of the concensus of commerce, since it lays no restraints on comthe careful, prudent, skillful, intelligent per merce itself nor its subjects, nor on any in

strumentality of commerce by the manner of sons in the same line of business as appel- construction or use, but is directed at the lant. We cannot subscribe to this being the form of the instrumentality as to a matter as law.

to which Congress has not acted, and hence No. 19 told the jury, in effect, that in de- it is not superseded by the federal laws. termining what was a proper guard it should Cent. Dig. ss 8, 76–86, 100; 'Dec. Dig. 88 10,

[Ed. Note.-For other cases, see Commerce, be guided by conditions as they existed at 58.*] the time of the accident. This subject was 2. CONSTITUTIONAL LAW (f 320*)-DUE PROfully and fairly covered by the instructions


The police power is of very wide scope [13] No. 39 undertakes to minutely and and may extend even to the taking and de

struction of property, without infringing on specifically describe the use of a “guide” as the due process of law clauses of either the a guard to cover the knives, and charges that state or federal Constitutions, if it has some its use by appellee in the manner described just relation to the protection of the public was contributory negligence. This instruc-health, welfare, morals, or safety.

, tion is so prolix, verbose, and tedious as to tional Law, Cent. Dig. $$ 771, 778; Dec. Dig.

(Ed. Note.–For other cases, see Constitumake it wearisome and confusing. It was $ 320.*] properly refused.

3. CONSTITUTIONAL LAW (8 70*)-POLICE It is next contended that there is reversi

POWER-REASONABLENESS OF LEGISLATION. ble error in the admission and exclusion of While the wisdom or expediency of legcertain evidence. We have carefully ex- islation under the police power is as a rule amined the record on these points and no courts, such legislation must not be unreason

a matter for the Legislature and not for the where find that evidence was admitted able. which was erroneous and harmful; that in [Ed. Note. For other cases, see Constitueach instance where evidence was excluded tional Law, Cent. Dig. 88 129 132, 137; Dec on questions and answers stricken out of Dig. $ 70.*) depositions the same subject-matter was cov- 4._CONSTITUTIONAL LAW (8

(8 70*)-POLICE ered by the same witnesses, and the ques


Before courts will interfere with legistioned evidence seems to have gone to the lation under the police power, it must be so jury in a proper manner.

unreasonable that it is plain that no circum[14] Lastly, it is insisted that the dam- stances could justify it. ages awarded are excessive. The rule laid

[Ed. Note. For other cases, see Constitudown by this court in Cleveland, etc., R. tional Law, Cent. Dig. 88 129-132, 137; Dec.

Dig. $ 70.*) Co. v. Harrison (1912) 98 N. E. 729-731, on this subject is applicable here: “In such case 5. CONSTITUTIONAL Law (8 47*)—DETERMI


NATION OF VALIDITY OF STATUTES. where liability is determined,

then Where a law cannot be shown to be in the question as to the amount of damages to conflict with the Constitution by argument debe awarded is a matter to be determined by duced from its language or from matters of the triers of the fact, under the supervision stand, as expert or other testimony is not ad

which a court can take judicial notice, it must of the trial court, and, unless the record dis- missible to impeach the legislative determinacloses that the amount is so grossly excessive Ition and show that the act is arbitrary or un*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r lndexes

1 Rehearing denied,



reasonable; the validity of legislative acts be-/ Samuel O. Piskens and Owen Piskens, both ing necessarily one of law and not of fact.

of Indianapolis, for appellant. Thomas M. [Ed. Note. For other cases, see Constitu- Honan, Atty. Gen., and Thomas H. Branational Law, Cent. Dig. $& 43-45; Dec. Dig. $man, Deputy Atty. Gen., for the State. 47.*] 6. RAILROADS (§ 229*)—EQUIPMENT-STATU

MYERS, J. Appellant was charged by afTORY PROVISIONS.

Act March 1, 1911 (Acts 1911, c. 60) sfidavit with the violation of sections 1, 2, 2, prohibiting the use by common carrier rail and 3 of the act of March 1, 1911 (Acts 1911, roads of cabooses less than 24 feet in length, p. 92). Section 1 applies the provisions of exclusive of platforms, or equipped with less the act to any corporation, person, or perthan two four-wheeled trucks, and section 3, providing that, when any such cabooses in sons “while engaged as common carriers in use when that act became effective is sent to the transportation *

of passengers or any shop for repairs, it shall be unlawful to property within this state to which the reguagain put it into use, unless it is equipped as lative powers of this state extend.” Section provided in section 2, is not unconstitutional; 2 prescribes the kind of caboose which shall since the court cannot know that a longer car with adjustable and oscillating four-wheel- be used after June 1, 1914; and section 3 ed trucks instead of four rigid wheels will not provides that: “Whenever any such caride more comfortably or with more safety, boose cars or other cars now in use by such and hence cannot say that the act is unreasonable.

common carriers as provided by section 1 [Ed. Note.-For other cases, see Railroads, herein shall after this act goes into effect, Cent. Dig. $ 743; Dec. Dig. $ 229.*]

be brought into any shop for general repairs, 7. STATUTES (8 64*)-PARTIAL INVALIDITY-it shall be unlawful to again put the same EQUIPMENT OF TRAINS.

into the service of such common carrier If Act March 1, 1911 (Acts 1911, c. 60) within this state unless it be equipped as § 5, authorizing the Railroad Commission to provided in section 2 of this act.” Other limit or prescribe the maximum height of ca- following sections define the exceptions, the booses upon railroads and, for good cause shown, to grant railroads a reasonable exten- powers, and duties of the Railroad Commission of time to comply with the provisions of sion in respect to the matter, and provide th: act, and section 7 authorizing such com- the penalty. mission to investigate the conditions and efficiency of cabooses in use on railroads and,

The charge in the affidavit, in substance, if found advisable, to authorize railroad com- is that on and prior to July 5, 1911, appelpanies to construct cabooses safe and con- lant owned and had in use on its line as a venient for employés and the traveling public, in lieu of complying with the provisions of corporation and common carrier a certain that act relative to the size and construction numbered caboose car, resting on four wheels, of cabooses, authorize the suspension of laws and 18 feet and 6 inches in length, excluwithout the authority of the General Assem- sive of the platforms on each end, on which bly in violation of Const. art. 1, $$_25 and 26, date it was sent to the shops of appellant in or delegate legislative power to the Railroad Commission in violation of articles 3 and 4, the state of Indiana for general repairs, and they are separable from and do not render in- after having been repaired' was on August valid sections 2 and 3 requiring cabooses to 22, 1911, owned by and put into service on be at least 24 feet in length, exclusive of platforms, and to be equipped with two four- appellant's lines in the state of Indiana, and wheeled trucks.

continuously thereafter used in such service, [Ed. Note.-For other cases, see Statutes, and was not as so used at least 24 feet in Cent. Dig. $$ 58–66, 195; Dec. Dig. 8 64.*] length, exclusive of the platforms, and was 8. CONSTITUTIONAL LAW ($ 42*)-DETERMI- not equipped with two four-wheeled trucks.

NATION OF VALIDITY OF STATUTES-PARTIES All exceptions of the statute are negatived. WHO MAY ATTACK.

There was a motion in writing to quash A party convicted of violating Act March 1, 1911" (Acts 1911, c. 60) $ 2, prohibiting the for several reasons, all attacking the conuse of cabooses, on common carrier railroads, stitutionality of the act, and various sections less than 24 feet in length or not equipped of it on various grounds, which motion with two four-wheeled trucks, and section 3 was overruled and exception to the ruling providing that ca.booses sent to any shop for repairs shall not again be put into use unless reserved. Appellant then filed a special plea equipped as provided in section 2, could not that the facts alleged do not constitute a pubcomplain that other provisions of that act, in- lic offense, and alleging like other facts to dependent of and separable from sections 2 those alleged in the motion to quash. A demurand 3, were invalid.

rer to this plea for want of facts to consti[Ed. Note.-For other cases, see Constitu

a tional Law, Cent. Dig. $$ 39, 40; Dec. Dig. stute a defense was sustained, and appellant ac

. 42.*]

cepted, and upon a plea of not guilty appel

lant was tried and found guilty and a fine Appeal from Criminal Court, Marion Coun- of $100 imposed, and over motion for a new ty; Joseph T. Markley, Judge.

trial on the grounds that the finding is conThe Pittsburgh, Cincinnati, Chicago & St. trary to law, and not sustained by sufficient Louis Railway Company was convicted of evidence, and over motion in arrest of judga violation of law by the use of a caboose ment for the reasons set out in the special not permitted by Acts 1911, C. 60, and it plea, judgment was entered. appeals. Affirmed.

As the validity of the law is the sole question presented, it is not necessary to considerence with, or as placing a burden upon, or any other question, except to say that the ad-as regulating, interstate commerce, even missions and evidence show appellant to be though the right of control extends to all a common carrier engaged in interstate com- the instruments of such commerce (Hall v. merce, and that the value of the particular De Cuir, 95 U. S. 497, 24 L. EI. 547), for car when it went into the shops was $380, the reason that this act does not lay any reand when repaired $142, and that the sal- strictions on commerce itself, or the objects vage in making the caboose correspond to of commerce, nor on an instrumentality of the act of 1911 would be $185; that appel- i commerce by the manner of construction or lant has 251 like cars like employed as the the manner of its use, but is directed at the car in question, and that like cars have been form of the instrumentality as to a matter in use by appellant 15 years, and that it as to which Congress has not seen fit to act. would now cost approximately $1,150 each We are unable to perceive how it might to construct the cars to conform to the re- affect it even incidentally and is not such legquirements of the act of 1911, with a salvage islation as is superseded by the federal of $185; that the timber in the present car laws. Pittsburgh, etc., Co. v. State, 172 Ind. would be valueless, and only the iron por- 147, 166, 167, 87 N. E. 1034 and cases cited ; tions and the cupola usable; that 50 of the Pittsburgh, etc., Co. v. State, 99 N. E. 801; cars in use cost approximately, when built, Chicago, etc., Ry. Co. V. Arkansas, 219 U. S. $470, and the remainder $875 each, and the 453, 465, 31 Sup. Ct. 275, 55 L. Ed. 290 ; average cost when new was $666 and the New York, etc., Ry. Co. v. New York, 165 U. average value now $442; that compliance S. 628, 632, 17 Sup. Ct. 418, 41 L. Ed. 853; with the act of 1911 would not add to the Smith v. Alabama, 124 U. S. 465, 480, 8 Sup. safety or comfort or health of the train- ct. 564, 31 L. Ed. 508.

Ct. . men; that they have as much ventilation as The serious question is the attack made a car required by the act; that the only upon the act as being in violation of the due difference from the present cars would be in process of law clause of the federal and the length and the additional set of trucks, state Constitutions on the ground of its beand the car would not be as strong as the ing unreasonable and resulting in the decars at present constructed and in use, and struction of a large amount of property, that as now constructed they are stronger which would be in effect taken and actually than the 60,000 pound capacity freight cars. destroyed without just reason and without There was no objection to or contradiction any good purpose to be subserved in the pubor rebuttal of this evidence.

lic interest under the guise of being a police [1] We have stated the matter fully in or- regulation. In answer to this the state conder to present appellant's position fairly, and tends that a police regulation is not a denial the question is, Does the evidence overcome of due process of law. Pittsburgh, etc., Ry. the presumption, or is evidence admissible to Co. v. State, 99 N. E. 801; Pittsburgh, etc., controvert the presumption? It is the con- Ry. Co. v. State, 172 Ind. 147, 162–163, 87 tention of appellant that the act is in viola- N. E. 1034; Chicago, etc., Ry. Co. V. Arkantion of section 8 of article 1 of the federal Con- sas, 219 U. S. 453, 465-466, 31 Sup. Ct. 275, stitution as a regulation of commerce "among 55 L. Ed. 290; New York, etc., Ry. Co. v. the states." It is contended by the state New York, 165 U. S. 628, 632, 17 Sup. Ct. that the act will be construed as applying 418, 41 L. Ed. 853. Also that the state Cononly to operations in the state, and does not stitution applies only to the taking of spepurport to be a regulation of interstate com- cific property by virtue of the right of emimerce, and that as a police power, which nent domain. Hanly v. Sims, 175 Ind. 353, may effect interstate commerce incidentally, 93 N. E. 228, 94 N. E. 401; State v. Richis supreme until and unless the particular creek, 167 Ind. 217, 223, 77 N. E. 1085, 5 L. subject is taken cognizance of by Congress, R. A. (N. S.) 874, 119 Am. St. Rep. 491, 10 and that the character of caboose as to length Ann. Cas. 899; Levy v. State, 161 Ind. 251, and wheel base has not been the subject of 256, 68 N. E. 172; Parks v. State, 159 Ind. federal concern. If the subject of the length 211, 220, 64 N. E. 862, 59 L. R. A. 190. and wheel base of caboose cars has been tak- [2] The police power is of very wide scope, en cognizance of, and the length and wheel and the extent to which it may go has not base fixed, we should be bound to recognize and cannot be defined, and its application in the sole jurisdiction of the subject as in Con- a proper case is not inimical to the federal gress, even though the car was at the time Constitution, but it must also be recognized engaged in intrastate traffic, but in conjunc- that property or property rights may not be tion with interstate traffic

interstate traffic or commerce. destroyed under the guise of the police power Southern Ry. Co. v. Railroad Commission, or so-called police regulation unless it ap100 N. E. 337, and cases cited.

pears that it has or can have no just relaThe acts of Congress and the Interstate tion to the protection of the public health, Commerce Commission have not embraced welfare, morals, or safety. Unless this nethe specific subject either of length of ca- gation affirmatively appears by the act or boose cars or their wheel bases, and we re- its history in enactment, the police power gard the act of the state as not an interfer-extends even to the taking and destruction

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