City of St. Louis v. Grafeman Dairy Co.

89 S.W. 617, 190 Mo. 492, 1905 Mo. LEXIS 135

• Court: Supreme Court of Missouri
• Decided: October 20, 1905
• Docket: No. 1
• Status: Published

Opinion

GANTT, J.

This action was commenced in the First District Police Court of the city of St. Louis, for violation by defendant of section ten of Ordinance 20808, relating to the licensing and regulation of the sale of milk and cream and the inspection thereof, “by carrying on the business of a vendor of milk and cream without a license, and by failing to register as such at the office of the Health Commissioner, and for failing to pay the registration fee.”

A motion to quash was lodged in the St. Louis Court of Criminal Correction, which was sustained, and the suit dismissed, from which action the plaintiff city appeals to this court. There are seventeen grounds assigned for quashing the action. Seven of these grounds to-wit, one, two, six, seven, eleven, fifteen and seventeen are abandoned in this court. The remaining general grounds are as follows:

“3rd. Because the ordinance upon which the prosecution is based and predicated is unconstitutional and void in that it is repugnant to the provisions of section 28, article 4 of the Constitution of the- State, and also of section 13, article 3, of the charter of the, city of St. Louis, in that said ordinance contains more than one subject and the subject-matter of said ordinance is not clearly expressed in the title of the same.

“4th. Because said ordinance is unconstitutional and void for the reason that the same is unreasonable in its provisions and it is practically impossible to comply with and enforce the same.

‘ ‘ 5th. Because said ordinance is unconstitutional and void for the reason that it is repugnant to section 4 of article 2, and section 30 of article 2, of the Constitution of this State, in that it deprives the defendant of his natural rights to liberty and the enjoyment of the gains of his own industry and of his liberty and property without due process of law.

“8th. Because the said ordinance is unconstitutional and void in that the charter of the city of St. Louis contains no express grant to the Municipal Assembly of the city to enact the same.

“9th. Because said laws and ordinances upon which this prosecution is based are void and unconstitutiónal in that they were enacted under and contain an unlawful delegation of power.

“10th. Because the laws and ordinances in question are void and unconstitutional in that they are class legislation and provide for taxation under the form and name of a license.

“12th. Because said ordinnace is void and unconstitutional for the reason that it is repugnant to section 1 of article 14 of the Amendments of the Constitution to the United States, in that it deprives the defendant of his liberty and property without due process of law and denies to him the equal protection of law.

“13th. Because the ordinance and section upon which the prosecution is based is unconstitutional and void because it designates the wrong officer to collect the license fee and is inconsistent with the State law, in that it gives neither the license commissioner nor license collector any authority or duty in the premises.

“14th. Because said ordinance and section upon which the charge herein is based and predicated is void and unconstitutional in this, it discriminates between merchants who sell and deal in different classes of merchandise and imposes a license upon milk vendors different from and in addition to regular merchant’s license.

“16th. Section 10 upon which this prosecution is based is void and unconstitutional because it was not uniform in its operation upon all milk vendors or merchants and is unequal, unjust, oppressive and unreasonable. ’ ’

The record does not disclose upon which of the seventeen grounds the Court of Criminal Correction sustained the motion to quash the 10th section of Ordinance 20808, as follows:

“Section ten. Every person, firm or corporation who shall sell or offer for sale, expose for sale, dispose of, exchange or deliver or with the intent so to do as aforesaid, have in his or her possession, care, custody or control, milk or cream, in or from any store, stand, booth, market place, milk depot, warehouse, dairy, cow stable or any building, erection or establishment of any kind, or shall transport, convey or deliver the same by wagon, carriage, or other vehicle, or by hand, shall first be licensed to do so, and shall register as a milk vendor in the office of the Health Commissioner, and pay to the City Collector the license fee provided for by this ordinance. Every person, firm or corporation selling or disposing'of milk or cream at retail shall, within thirty days after this ordinance goes into effect, and semi-annually on the first Mondays of January and July thereafter, pay license fees as follows: Every milk or cream vendor shall pay for the privilege of conducting a milk business, a registration fee of one dollar per annum, and in addition thereto each vendor shall pay for every wagon or other vehicle from, which milk or cream is sold or delivered, a semi-annual license fee of two dollars and fifty cents. And every vendor of milk or cream at wholesale, by which shall be understood, meant, and is hereby defined, a person or corporation selling to others milk or cream in quantities to any person, firm or corporation, of sixteen gallons or more on any one day, shall pay,' semi-annually, as aforesaid, a wholesale license fee of twenty-five dollars. If any person, firm or corporation commence or engage in the traffic or handling of milk or cream at any periods other than those hereinbefore mentioned, he or they, before doing so, shall pay the pro rata license fees in their cases required, which license so issued, as well as other licenses herein required shall be good for a period ending with either the first Monday of January or the first Monday of July, as the case may be, following the issuance and delivery thereof. Every person, firm or corporation violating this section, or any of its provisions, shall be deemed guilty of a misdemeanor and on conviction thereof, be punished by a fine of not less than twenty-five dollars nor more than one hundred dollars for each and every offense.”

The information charged four distinct violations of this section 10: First. In failing to observe that part of said section forbidding the sale of milk without a license. Second. Failing to register as a milk vendor in the office of the Health Commissioner. Third. Failing to pay to the City Collector the license fee of one dollar for registration. Fourth. Failing to pay the semi-annual license fee of $2.50 for each wagon used.

There was no motion filed by the defendant to require a separate count for each of these offenses, nor any objection to their manner of statement in the petition. The motion to quash must be treated as a demurrer to the whole statement and if there Is a good cause of action stated as to either one of the defaults complained of, it was error to dismiss the case. It may be well to remark here, that there was no evidence in the record that the defendant had already paid all that was required to pay a merchant's tax which authorized it to sell milk, or that there is any such license required. The learned City Counselor in this case waives the right to recover on the first and fourth violations, but insists that the motion to quash the whole case was erroneous because the second and third offenses, to-wit, the failure to register, and the failure to pay the one dollar registration and inspection fee, were based on valid provisions which were not rendered invalid even though the others were void.

I. The first assignment is that the Court of Criminal Correction erroneously dismissed the whole action. No motion to compel plaintiff to elect on which breach of the section it would rely was filed, and no objection was made on the ground of misjoinder in one count of the several breaches. In City of Gallatin v. Tarwater, 143 Mo. 40, this court, speaking of an ordinance, said: “Separate and distinct offenses mentioned disjunctively in the same section, all of which are of the same class and punishable by the same penalty, may be charged conjunctively in one count, and such count will be sustained by proof of one of the offenses charged.”- To the same effect, see, also, Polinsky v. People, 73 N. Y. 65.

If, therefore, the complaint in this case alleged one or two breaches of valid provisions of the said ordinance, the court erred in quashing' the whole action even though the motion was well taken as to other alleged breaches, but it is insisted that the section in question refers to both registration and license, and they are used conjunctively in the section, and are, therefore, not severable, and hence if one of the provisions is invalid then the whole section must fall.- We cannot give our concurrence to this contention; that part of section ten of Ordinance. 20808 requiring a vendor of cream and milk to register in the office of the Health Commissioner, and that part requiring the payment of one dollar as a registration fee, are clearly severable from the other provisions requiring the payment of a license tax. It has been uniformly ruled by this court that where the provisions of a statute or ordinance are severable and are not interdependent one upon the other, the whole will not be declared void because a part is invalid, but the void portions will be eliminated and the valid parts upheld and enforced, provided, this will not defeat the substantial object of the enactment. [St. Louis v. Railroad, 89 Mo. 44; City of Tarkio v. Cook, 120 Mo. 1; State v. Clarke, 54 Mo. 17; State v. Bockstruck, 136 Mo. 335.]

The provision requiring vendors of cream and milk to register with the Health Commissioner and pay a registration fee, was clearly a valid police regulation looking to the protection of the health and administering to the welfare of the public, and came strictly within the charter powers of the city of St. Louis, giving authority for the inspection of milk, and license from the inspector is a guarantee to the community that they can with safety purchase milk from the dealer thus registered and licensed. [St. Louis v. Fischer, 167 Mo. 654 (affirmed 194 U. S. 361).] This provision was clearly not a tax within the meaning of the law, but merely an inspection fee designed as a compensation for the service rendered. [Norfolk v. Flynn, 101 Va. 473; Morgan Steamship Co. v. Board of Health, 118 U. S. 455.]

The fact that the selling of milk is a lawful trade or business does not exempt it from reasonable police regulations. In Gundling v. Chicago, 177 U. S. 183, the Supreme Court of the United States tersely stated the recognized rule on this subject: “Regulations respecting the pursuit of a lawful business or trade are of very frequent occurrence in the various cities of the country, and what such regulations shall be and to what particular trade, business or occupation they shall apply, are questions for the city to determine, and their determination comes within the proper exercise of the police power by the State, and unless the regulations are so utterly unreasonable and extravagant in their nature and purpose that the property and personal rights of the citizens are unnecessarily, and in a manner wholly arbitrary, interfered with or destroyed without due process of law, they do not extend beyond the power of the State to pass. ’’

When it is considered that no article of food is more universally used by the public, and that no other-article is perhaps so sensitive to atmosphere and vegetable influences as milk, and that it is within a common knowledge that impure milk is a fruitful source of disease and disorders, especially among children, it needs no discussion to show that the milk business is one which particularly falls within the power of the State and its municipality to regulate, and that the imposition of one dollar a year for registration is in no sense an onerous or unjust burden, and is intended as a pure police measure to cover in part the cost of inspection of mill? and cream, is too plain for discussion. We have no hesitancy in holding that the statement in so far as it charged a failure to register and the failure to pay the one dollar registration and inspection fee stated a good cause of action, and, therefore, the Court of Criminal Correction erred in quashing the whole case.

Nor is this section obnoxious to the objection that it infringes the charter provision requiring the subject-matter to be expressed in the title of the ordinance. This provision of the ordinance is clearly within the title and germane to the one controlling subject of regulating the sale of milk and cream. [State v. Bockstruck, 136 Mo. 335 ; Lynch v. Murphy, 119 Mo. 163; State v. Whitaker, 160 Mo. 59.]

II. It is, however, argued by defendant that the registration and license fees must both be paid to the City Collector, and that no one else lían refuse so to issue licenses thereon, and that for this reason this provision of the ordinance is void because in conflict with an act of the Legislature, approved March 26, 1901, which created the office of License Collector and conferred upon him exclusive authority to collect the payment for all licenses and to issue licenses in the city of St. Louis. The answer to this contention is that there is no such officer as city collector, and that it is obvious from the ordinance itself that the person designated by that name is the license collector, and at most the provision of the section in this respect is an inaccurate designation of the proper officer who alone could be intended. ' There is then here no duty imposed nor authority conferred upon a wrong officer within the meaning of the argument of counsel for defendant and to sustain which he cites various authorities, but merely a misnomer of the only officer authorized to collect the registration fee.

III. Again it is insisted by the defendant that the action was properly dismissed because there was no authority in the city to license vendors of milk, and that they can only be classed as merchants, and be required to pay a merchant’s license, and not being specifically narqed in the charter, a license cannot be imposed on that business. Section 26, article 3, of the charter of St. Louis, expressly provides: “That the Mayor and Assembly shall have power within the city, by ordinance not inconsistent with the Constitution or any law of this State, or of this charter, to make provision for the inspection of butter, cheese, milk, lard and other provisions, and to license, tax and regulate occupations and secure the general health.” No more definite and adequate provision and authority could have well been given to the city to enable it to provide all reasonable regulations for the inspection of milk, and to exact a reasonable inspection fee therefor, and we have already ruled that, as to the inspection fee in this case, it is not a tax within the meaning of that term as understood in our Constitution and general statute. That the State, and this city under this specific grant of power, may make any business requiring police legislation pay the expense of regulating and controlling it, and that this may be done by exacting inspection fees from those engaged in the business, is no longer an open question in this country. ^ The authority will be found collated in a recent decision of the Supreme Court of Montana, in State v. McKinney, 74 Pac. 1095, l. c. 1099; State v. Bixman, 162 Mo. 1.

IV. The constitutionality of the ordinance as a whole has been examined and sustained in the City of St. Louis v. Liessing, decided at this term and reported at page 464 of this volume, and we deem it unnecessary to again go over the various grounds upon which the ordinance has been attacked, hnt refer to the discussion had in that case, and content ourselves with saying that for the reasons therein giyen the ordinance is valid and constitutional as to the various sections assailed in this and the other cases argued with it at the same time.

The result is that the judgment of the Court of Criminal Correction of St. Louis must he and is reversed, and the cause remanded for further proceedings in accordance with the views herein expressed.

Brace, C. J., Marshall, Burgess, VálUcmt, Fox and Lamm, JJ., concur.