In concur in points 1, 2, 3 and 4 of the syllabus and the parts of the opinion bearing upon those points. Likewise, I concur in the statements in the opinion, to the effect that the Legislature has the right to enact legislation which is properly designed to regulate the sale of nonintoxicating beer. However, in my opinion the proviso added to Subsection (m), Section 13, by Acts of the Legislature, 1945, "That no juke box or other musical instrument of like character shall be played or operated after eleven o'clock p. m., on any week-day and at no time on Sunday", is unconstitutional in the absence of a legislative or factual finding that a "juke box or other musical instrument of like character" is loud and designed to disturb the peace and quietude of the community wherein nonintoxicating beer is sold at retail. In the first place, though the words "juke box" may have a common and accepted meaning, there is nothing in the statute, nor in the modern American dictionaries which would inform this Court as to the character of
a "juke box". Code, 57-1 provides as to what matters of which a Court may take judicial notice. In Elswick v. CharlestonTransit Company, 128 W. Va. 241, 36 S.E.2d 419, this Court held that, a court, other than a municipal court, cannot take judicial notice of a municipal ordinance. Certainly this Court should not take judicial notice, as contended, that juke boxes are musical instruments which may be operated by the customers in the places where nonintoxicating beer is sold at retail, and that they tend to disturb the peace. If the Legislature had intended to prohibit the use of such musical instruments, as described in the amendment, it could have done so if, from legislative finding or otherwise, it clearly appears that such use would be designed to disturb the peace and quietude of the communities in which nonintoxicating beer is sold, but the Legislature did not so deign. This Court, not being empowered under the Constitution of the State, to enact legislation, by judicial decision, we cannot insert into the statute provisions which the Legislature itself did not incorporate therein. Moreover, legislation, whether it deals with the regulation of nonintoxicating beer, or not, must be germane to the police power of the State. Prior to the amendment of 1945, adding the proviso, heretofore quoted, to Subsection (m) thereof, Section 13, Chapter 12, Acts, 1937, provided, in part, "It shall be unlawful * * * (m) For any licensee to permit loud, boisterous or disorderly conduct of any kind upon his premises or to permit the use of loud musical instruments if either or any of the same may disturb the peace and quietude of the community wherein such business is located." But the amendment of said Subsection (m) provides, "That no juke box or other musical instrument of like character" shall be played or operated at certain specified times, regardless of whether such instrument would tend to breach the peace and quietude of the community. If the Legislature thought that a "juke box or other musical instrument of like character", may disturb the peace and quietude of the community, then the amendment would serve no purpose in regulation of the sale
of nonintoxicating beer in view of the provisions of Section 13 prior to amendment. In my opinion, the provision as to juke boxes and other musical instruments, read in the light of the other language, contained in said Subsection (m) is arbitrary, discriminatory and unconstitutional. In so saying I do not desire to be understood as denying to the Legislature the right to legislate, as I think it should, in the interests of the regulation of the sale of nonintoxicating beer at retail. I would award the writ.