Joseph McKenna

“ Plaintiff in error insists that the absence of proof of the facts which he alleges is immaterial, because, as he urges, 'this court will take judicial notice of the matter of common knowledge that black powder is a subject of interstate commerce.' But plaintiff in error invokes a broader knowledge, or, rather, a broader knowledge is necessary to sustain his allegations. ”

“ We might, indeed, hesitate to assume, as counsel does, from the possibility of the existence of a fact, its actual existence, if by doing so we should have to regard a state law as unconstitutional, but as we do not think the result will follow, we shall assume the existence of the fact. ”

“ It certainly cannot be made the means of obtaining a new trial.
It may, however, be said that the supreme court expressed its views of the validity of the Kansas statute under the commerce clause of the Constitution, and thereby ruled on the contention of plaintiff in error, based on that clause. We do not so understand the opinion of the court. It in no way, nor to any extent, modified its view that the contention was not available to plaintiff in error, or intimated that such view was not the basis of its decision. ”