(dissenting): Whether an exercise of legislative power “is flagrantly unjust, unreasonable or oppressive” (Desser v. City of Wichita, supra) is a question which in the nature of things must be broadly addressed to the judicial conscience. In pretending to exact a tribute of $150 per annum from nonresidents of Holton for the right to sell bread in that little city, the ordinance grossly offends against my sense of justice and good faith. The only evidence presented to us shows such an exaction will amount to virtual prohibition. It may be said that this evidence is the mere conclusion of the witness. It is also my conclusion — one I draw *75by taking judicial notice of the pertinent facts and circumstances. I am persuaded this provision of the ordinance will never bring one legitimate dime into the city treasury, and I cannot persuade myself it was ever intended to do so. This cause being an invocation of our original jurisdiction where this court must bear full responsibility not only for declaring the law but for ascertaining the facts, I hold the tax unjust, unreasonable and oppressive; and if in its practical operation it does amount to prohibition, as I believe and as time will certainly demonstrate, it is violative of both the state and federal constitutions. (Const., art. 12, §5; U. S. Const., 14th Amend.; City of Lyons v. Cooper, 39 Kan. 324, 18 Pac. 296; In re Chipchase, Petitioner, 56 Kan. 357, 43 Pac. 264; State v. Wilson, 101 Kan. 789, 792, 793, and citations, 168 Pac. 679.)
Harvey, J., concurs in the dissenting opinion.