City of St. Louis v. Wortman

213 Mo. 131

• Court: Supreme Court of Missouri
• Decided: June 26, 1908
• Status: Published

Opinion

"WOODSON, J.

-It is conceded by the defendant, in error that the plaintiff’s statement of the case is full and fair; and for economy of time I will adopt that statement as the statement of court, which is as follows:

“This was a prosecution instituted by the city attorney of the city of St. Louis against Henry Wortman, the defendant in error, to recover a penalty of $100 for the violation of section 17 of Ordinance 20808, approved August 27, 1902. Section 17 of the ordinance, upon which the prosecution was founded, is as follows:

“ ‘Section 17. Any person, firm or corporation, who shall sell, expose for sale, exchange, deliver,' dispose of or transport, convey, carry, or with any such intent as aforesaid have in his or her care, custody, •control or possession, any milk or cream having therein, or containing any foreign substances of any kind whatever, or coloring matter, or any adulteration or preservative, whether for the purpose of artificially increasing the quality of the milk or cream, .or for preserving the condition or sweetness thereof, or for any purpose whatever, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be fined not less than twenty-five dollars nor more than one hundred dollars for each and every offense.’ •

“The information charged that the defendant in error carried and exposed for sale, in the city of St. Louis, skimmed milk, containing a preservative known as formaldehyde. The defendant was fined in the police court and took, an appeal to the St. Louis Court of Criminal Correction. In said last-mentioned court, the defendant filed a motion to quash the information. The court entered judgment sustaining the motion to quash and discharging the defendant upon the fifth ground set out in the said motion to quash, which is as follows: ‘Because said ordinance is void as being inconsistent with the statute of this State.’ ”

After the case had been removed by writ of error to this court, the defendant in error filed a motion to dismiss the writ of error, together with the cause, upon the ground that certain statutes had been enacted which were irreconcilably inconsistent with the further enforcement of the ordinance. The statutes which are invoked to defeat and to dismiss this prosecution are as follows:

Session Laws of 1905, page 133, entitled, “Dairy Commissioner — State: Terms, Duties and Powers Detraed.”

Session Laws of 1907, page. 246, entitled, “Dairy •and Pood Commissioner.”

Session. Laws of 1907, page 238, entitled, “Crimes and Punishments: Adulteration of Poods and Drugs.”

I. Counsel in this case, as in the ease of St. Louis y. William Klausmeier, reported at page 119 of this volume, have presented and discussed many legal questions, most of which have been disposed, of by this court in a series of cases, known as the “milk cases,” reported in the 190 Missouri Report. No wise or useful purpose would be served by re-opening or discussing those questions again in this case. The questions presented by this record, not common to those presented in those cases, are but three in number, and they are as follows:

First: Is section 5 of the Act of 1905, entitled, “An Act to create the office of State Dairy Commissioner and to define his term of service, duties and powers,” constitutional?

Second. Is section 17 of Ordinance No. 20808 of the city of St. Louis repealed by the acts of 1905 and 1907 before mentioned?

Third. Have dealers in dairy products the right under said ordinance to sell or offer for sale in the city of St. Louis milk, cream, butter and other such products which contain formaldehyde or other foreign substances?

We will consider these three propositions in the order stated.

It is the first contention of the' plaintiff that the Act of 1905 mentioned is unconstitutional and void for the reason that it was not enacted in accordance to the mandate of section 28 of article 4 of the Constitution of the State. That provision of the Constitution reads as follows: “No bill . . . shall contain more than one subject, which shall be clearly expressed in its title. ’ ’ The Act of 1905, now under consideration, is entitled as follows:

“An Act to create the office of State Dairy Commissioner, and to define Ms term of service, duties and powers.”

Section 3 of the act points out the duties of the commissioner and therein provides that, “it shall he the duty of the State Dairy Commissioner to inspect or cause to he inspected all creameries, public dairies, butter and cheese factories at least once a year, and oftener if possible, prescribe such reasonable rules and regulations for their operation as he deems necessary to fully carry out the provisions of laws now in force or that may be hereafter enacted relative to dairy products for the promotion and maintenance of public health and safety.....He shall keep on hand a supply of standard test tubes or bottles and milk measures or pipettes adapted to the use of each milk testing machine the manufacturers or dealers of which have filed with the- State Dairy Commissioner a certificate from the director of the Missouri agricultural experiment station that said milk testing machine when properly operated will produce accurate measurements of butter fat, and to furnish same at actual cost to any person desiring them, upon written request therefor, such tubes, bottles, measures and pipettes to be stamped with the letters £S. D. C.’ as certifying to their accuracy.”

Section 4 of the act points out the powers of the commissioner and therein provides: “In the performance of his official duty the State Dairy Commissioner is hereby authorized and empowered to enter during business hours all creameries, public dairies, butter and cheese factories or other places where dairy products are sold or kept for sale, for the purpose of inspecting same'; to take' samples anywhere of any dairy product, or imitation thereof, suspected of being made or sold in violation of law, and cause the same to be analyzed or satisfactorily tested by the State Agricultural College chemist, and such analysis or test shall be recorded and preserved as evidence, and the certificate of snch test, when sworn to by snch chemist, shall be admitted in evidence in all prosecutions that may result under the operations of this act.”

Section 5 of the act and the section objected to defines what creameries, public dairies, butter and cheese factories shall be, and further provides that “in all prosecutions and proceedings for the enforcement in any of the courts of this State, of all laws and regulations of whatsoever nature now in force, or that may hereafter be enacted, pertaining to the production, sale, and distribution of dairy products of any kind whatsoever, the standard of purity and the definition of said products shall be such as are now, or may hereafter be adopted, recognized and published by the officials of the United States Department of Agriculture, and whosoever shall sell, or offer or expose for sale anywhere in this State, milk or cream containing any foreign substance or preservative of any hind whatsoever injurious to health, shall be guilty of a misdemeanor, and on conviction be fined not less than ten dollars, nor more than one hundred dollars, for each offense.”

It will be seen from reading the title of the act that it only authorizes the passage of an act creating the office of State Dairy Commissioner, the term of his service, his duties and powers, while the act itself not only creates that office and defines his term of service, duties and powers, but goes one step further and by section five thereof attempts to establish the standard of strength and purity of all dairy products, and provides that whosoever shall sell or offer for sale any of such products containing any foreign substance or preservative of any kind injurious to health shall be guilty of a misdemeanor and on conviction shall be punished by a fine of not less than ten nor more than one hun-, dred dollars. The plaintiff insists that if the validity of said section is tested by the constitutional provision before quoted, then that portion of it which establishes the standard of strength and purity of dairy products and prescribes the penalty for their adulteration is unconstitutional and void, for the reason that they are not expressed or mentioned in the title of the act. Counsel for .defendant concede that the matters mentioned are not expressed in the title of the act, but contend that they are germane to the matters which are stated therein, and for that reason the section is valid notwithstanding said omission, for the reason that matters found in the body of the act and which are germane to those stated in the title need not be stated in the latter. If defendant’s major premise is correct, then his conclusion must necessarily follow from the repeated decisions of this court; but if the matters stated in section five of the act are not germane to those stated in the title, then under the plain mandate of the Constitution we must hold that part of the section to be invalid. This brings us to the point where we must determine whether the matters stated in section five are independent of and outside of the title of the act, or whether they are germane to those expressed therein.

This court, in discussing this question in the ease of St. Louis v. Weitzel, 130 Mo. l. c. 616, used this language: “The evident object of the provision of the organic law relative to the title of an act was to have the title like a guide board, indicating the general contents of the bill, and containing but one general subject which might be expressed in a few or a greater number of words. If those words only constitute one general subject; if they do not mislead as to what the bill contains; if they are not designed as a cover to vicious and incongruous legislation, then the title can stand on its own merits, is an honest title, and does not infringe on constitutional prohibitions.”

Judge Cooley, in treating this question, in his valuable work on Constitutional Limitations (7 Ed-.), at page 205, used this language: “It may therefore be assumed as settled that the purpose of these provisions was: .... Second, to prevent surprise or fraud upon the Legislature by means of provisions in bills of which the titles gave no intimation, and which might therefore be overlooked and carelessly and unintentionally adopted; and, third, to fairly apprise the people, through such publication of legislative proceedings as is usually made, of the subjects of legislation that are being considered, in order that they may have opportunity of being heard thereon, by petition or otherwise, if they.shall so desire.” And, continuing on page 212, he says: “The courts cannot enlarge the scope of the title; they are vested with no dispensing power; the Constitution has made the title the conclusive index to the legislative intent as to what shall have operation; it is no answer to say that the title might have been made more comprehensive, if, in fact, the Legislature have not seen fit to make it so. Thus, ‘ an act concerning promissory notes and bills of exchange’ provided that all promissory notes, bills of exchange, or other instruments in writing, for the payment of money, or for the delivery of specific articles, or to convey property, or to perform any other stipulation therein mentioned, should be negotiable, and assignees of the same might sue thereon in their own names. It was held that this act was void as to all the instruments mentioned therein except promissory notes and hills of exchange; though it was obvious that it would have been easy to frame a title to the act which would have embraced them all, and which would have been unobjectionable.”

At an early date this court, in the case of State v. Persinger, 76 Mo. l. c. 347, said: “We are of the opinion that the motion to quash was properly sustained, for the reason that said act was entitled, ‘An act to change the penalty for disturbance of the peace. ’ This title only authorized the passage of an act chang-' ing the penalty for such disturbances of the peace as were then by law declared punishable. The said Act of 1870, while it changed the punishment for such offenses, went further and undertook to amend the Act of 1868 by so changing it as to make it an offense for one person to disturb the peace of another person. While the title of the act embraced but one subject, namely, a change of the penalty for disturbing the peace, the body of the act not only included that subject, but also another, viz: amending the law so as to make that a disturbance of the peace under the Act of 1870 which was not an offense under the Act of 1868. It therefore follows that as the Act of 1870 embraced two subjects, one of which was not - expressed in its title, it is violative of the 32d section, .article 4 of the Constitution of 1865, and void as to so much thereof as is not expressed in the title.”

If we view the act in question in the light of the rule announced by the foregoing authorities, the conclusion is irresistible that the portion of section five under consideration is unconstitutional, null and void for the reason it is not expressed in the title of the act nor germane to the subject stated therein.

II. The second question presented by this record for our consideration involves the contention of the defendant that section 17 of Ordinance No. 20808 of the city of St. Louis is repealed by the acts of 1905 and 1907.

One of the arguments presented here by defendant in favor of the repeal of section 17 of Ordinance No. 20808 involved the sole question decided in the case of St. Louis v. Klausmeier, supra; and we there held adversely to the contention of the defendant, and what we there said must be taken as conclusive against the defendant upon the same proposition presented here. But defendant presents an additional reason here in favor of the repeal not presented in that case, which we will now consider.

Section 17 of the ordinance mentioned, the one defendant is charged with violating, provides that any person who shall sell or offer for sale any milk or cream having therein or containing any foreign substance of any kind whatever, or coloring matter, or any adulteration or preservative whether for the purpose of artificially increasing the quality of the milk or cream, or for preserving the condition or sweetness thereof, or for any purpose whatever, shall be deemed guilty of a misdemeanor. And section five of the Act of 1905, before mentioned, provides that “whosoever shall sell or offer for sale anywhere in this State milk or cream containing any foreign substance or preservative of any kind whatsoever injurious to health shall be guilty of a misdemeanor.” The defendant was charged with offering for sale in the city of St. Louis milk containing a preservative known as formaldehyde, contrary to the provisions of said section seventeen of said ordinance. The defendant contends that the said section 17 of the ordinance and said section 5 of the Act of 1905 are so inconsistent that both of them cannot stand together, and that by necessary implication the latter repeals the former.

There can be no doubt but what there is such an inconsistency and irreconcilable conflict between the statute and the ordinance that both cannot stand together. The ordinance provides that no foreign substance or preservative of any kind shall be placed in milk or cream for any purpose whatsoever, while the statute provides that no foreign substance or preservative of any kind whatsoever shall be placed in milk or cream which is injurious to health. The italicized words differentiate the meaning of the two sections. The ordinance absolutely prohibits the placing of alt foreign substances and preservatives in milk or cream for any purpose, while the statute only prohibits the placing in milk and cream foreign substances and preservatives which are injurious to health. The former is an absolute prohibition, while the latter is conditional, or permissible if the preservatives are not injurious to health. We are, therefore, clearly of the opinion that there is an irreconcilable conflict between the two; and there would be no doubt but what the statute would repeal the ordinance by necessary implication if the statute was constitutional, but it is not, for the reasons stated in the first paragraph of this opinion.

We must, therefore, hold that said section of the ordinance is not repealed by that section.

III. This brings us to the consideration of the third or last proposition presented by this record, namely: Has a person in the city of St. Louis the legal right, under ordinance No. 20808-, to sell or offer for sale dairy products which contain formaldehyde or other foreign substances?

That question involves two legal propositions, viz:

First. If the sales consist of interstate shipments and the products are sold in the original unbroken packages, then the answer would be in the affirmative; for the reason that all such sales are governed by the acts of Congress and not by the State laws. But if the original packages are broken and the milk, cream or butter is sold in different- packages from those in which they were shipped into the State, then the answer would be the same as that stated in the next succeeding clause of this opinion, for the reason that such transactions would then be changed from interstate to intrastate commerce.

Second. Clause five of section four of an Act of 1907, entitled, “An Act to prohibit the manufacture and sale of foods . . . ; and prescribing penalties for violations thereof,” Laws 1907, p. 239, provides that “food shall be deemed to be adulterated: . . . . 5. If it contain any added substance which is poisonous or injurious to health.” And section 14 of the same act prescribes a penalty of hot less than ten nor more than five hundred dollars for the violation of. any of the provisions of the act.

Said clause five of said section does not prohibit the adding of any substance to food (which, of course, includes dairy products) which is not poisonous or injurious to health, but it does expressly prohibit the adding thereto of any substance which is poisonous or injurious to health.

As shown by paragraph II of this opinion, the section 17 of the ordinance absolutely prohibits the adding to milk and cream any foreign substance of whatsoever kind for any purpose. The ordinance is much broader than is the statute. It covers all that the statute covers and more too. The statute only covers matters which are poisonous or injurious to health, while the ordinance covers those matters and all others, whether poisonous or injurious to health or not. There is clearly an inconsistency and repugnancy between the two, and so much so that both cannot stand; and we must, therefore, hold that the statute by necessary implication repeals said section 17 of the ordinance.

We must, therefore, hold that defendant cannot be punished for selling milk in the city of St. Louis, adulterated with formaldehyde, or other foreign substance, in violation of said section of the ordinance.

But since formaldehyde is a well-known poison, it cannot be placed in food of any kind, in any quantity, and be sold or offered for sale anywhere in the State without violating the express terms of clause 5 of said section 4 of the Act of 1907. And if such is being done, then the guilty parties may be prosecuted under the State laws and punished for» such violation. Learned counsel for defendant misapprehend the meaning of the statute in that regard. They contend that, under the statute, poison or other substances which are injurious to health may be lawfully placed in food and dairy products, provided the quantity used was not sufficient to cause death or injury to health. That is neither the letter nor spirit of the act. The statute makes it a misdemeanor to place any substance in food of any kind, in any quantity, for any purpose, which is poisonous or injurious to health. If this is not the meaning of the statute, then who would determine what quantity is or is not injurious to health? Which one of the thousands of dairymen and farmers who sell milk throughout the State would determine that most important question? If one may determine that question, then each and all of them may do the same; and in that ease the quantity of poison contained in milk and cream sold on the market would depend solely upon the individual judgment of each and every producer and vendor of dairy products. Of course where the law absolutely prohibits the' use of all poisonous matters and other substances which are injurious to health, there could be no legal standard by which any one could determine what quantity is or is not dangerous to health. And under that condition of the law one person might conclude that a certain quantity was not injurious, another might think twice that quantity was not, while a third might believe both were too large and injurious, and so on to the end of the long list. If ■counsel for defendant are correct in their contention, then the foregoing would be the practical manner in which the dairy business of the State would be conducted ; and the citizens of the State would thereby be subjected to the extremely dangerous judgment or -caprice of each and every dairymen doing business in the State. Such a result shows the unsoundness of their contention.

Nor is there anything in section 12 of said Act of 190*7 which' militates in the least against the conclusions above reached. That section reads as follows:

“Sec. 12. No dealer shall be prosecuted under the provisions of this act when he can establish a guaranty, as provided for in the National Food and Drug Act, approved June 30, 1906, or a guaranty, signed by the wholesaler, jobber, manufacturer or other party, residing in the State of Missouri, or who shall have filed in the office of the dairy and food commissioner a designation of the name and residence of some competent person being and continuing a resident of this State, process served on whom shall be valid and acceptable as personally served upon such party in any suit or proceeding under this act, from whom he purchased such articles, to the effect that the same are not adulterated or misbranded in the original unbroken packages, within the meaning of this act. Said guaranty, to afford protection, shall contain the name and address of the party or parties making the sale of such articles to such dealer, and in such case said party or parties shall be amenable to the prosecutions, fines and other penalties which would attach, in due course, to the dealer under the provisions of this act. ’ ’

The clear and manifest meaning of that section is to relieve the dealer of the necessity of analyzing each and every original and unbrohen package of milk and cream sold or consigned to him by the wholesaler, jobber or manufacturer, and to authorize him to sell from said packages under the guaranty mentioned therein, provided the wholesaler, jobber or manufacturer from whom he purchases has complied with the provisions of said section. In such case, if the^wholesaler, jobber or manufacturer places any substance in such packages which is poisonous or. injurious to health, then he, and not the retail dealer, is liable to prosecution and fine for violating the statute. In other words, the clear meaning of the statute is that neither the wholesaler, jobber, manufacturer nor retail dealer of food or dairy products can lawfully place any substance in any food or dairy products which is poisonous or injurious to health, in any .quantity, for any purpose whatsoever.

The argument of the learned City Counselor, that, to place jhe'above construction upon the Acts of 1905 and 1907, and ordinance No. 20,808, would virtually destroy the city’s system of inspection, is, it seems to us, without much real merit, for the reason that the city is protected by the State law, and whoever sells or offers to sell dairy products in the city of St. Louis in violation thereof is guilty of a misdemeanor and is liable to a fine of not less than ten nor more than five hundred dollars. With that law in force no very great injury could be inflicted upon the citizens of St. Louis before the city could pass an ordinance in harmony with the views herein expressed; and by so doing the entire laws of Congress, the State of Missouri, and the ordinances of the city would be brought into one general harmony, and thereby furnish to the citizens of that great city perfect protection against adulterated milk and cream, and at the same time relieve the city and milk dealers of the disorder and confusion that now prevail there.

We are, therefore, of the opinion that section 17 of Ordinance No. 20,808, of the city of St. Louis was repealed by clause five of section 4 of the Act of 1907, and, consequently, the action of the Court of Criminal Correction in quashing the information was correct, notwithstanding the fact that the Act of 1907 was not enacted until subsequent to the commission of the offense charged in the information, for the reason that the law is well settled in this State that the repeal of an ordinance pending a prosecution under its provisions operates to relieve the defendant unless it is otherwise provided in the act repealing the ordinance. [City of Kansas v. Clark, 68 Mo. 588.] There is no such saving clause in the Act of 1907, and that omission cannot be supplied by an ordinance of the city containing such a clause.

The city council have no authority to act for the Legislature of the State, nor bind the Legislature by the passage of such an ordinance..

The judgment should be affirmed, and it is so ordered.

All concur, except Valliant, J., absent, and Lamim, J., dubitante.