State v. Layton

• Decision Date: 12 February 1901
• Citation: 160 Mo. 474,61 S.W. 171
• Parties: STATE v. LAYTON.
• Court: Missouri Supreme Court

61 S.W. 171

160 Mo. 474

STATE v. LAYTON.

Supreme Court of Missouri, Division No. 2.

February 12, 1901.

ALUM BAKING POWDERS—PROHIBITORY SALE —CONSTITUTIONAL LAW.

Act May 11, 1899, prohibiting the sale of alum baking powders, as unhealthy, is within the police power; the articles not being so universally conceded to be wholesome and innocuuous that judicial notice may be taken thereof.

Appeal from St. Louis court of criminal correction; Willis H. Clark, Judge.

Whitney Layton was convicted of a violation of Act May 11, 1899, prohibiting the sale of articles for use in the preparation of bread containing alum and other substances, and appeals. Affirmed.

Sedden & Blair, Stanley Stoner, and Winston & Meagher, for appellant. Edward C. Crow, Atty. Gen., Sam B. Jeffries, Asst. Atty. Gen., and Stewart, Cunningham & Elliot, for the State.

GANTT, J.

On the 30th day of August, 1899, the assistant prosecuting attorney of the St. Louis court of criminal correction lodged in the St. Louis court of criminal correction the following information against Whitney Layton, of said city: "Richard Johnson, assistant prosecuting attorney of the St. Louis court of criminal correction, now here in court, on behalf of the state of Missouri information makes as follows: That Whitney Layton, in the city of St. Louis, on the 28th day of August, 1899, then and there doing business in this state, did unlawfully manufacture, sell, and offer to sell a certain compound and preparation, to wit, Layton's Health-Food Baking Powder, which said compound and preparation was so manufactured and sold for the purpose of being used, and was intended by said Layton to be used, in the preparation of food, in which said compound and preparation so manufactured and sold there was alum. Contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state. Richard M. Johnson, Asst. Pros. Atty. of the St. Louis Court of Crim. Correction." The defendant was arrested, and entered his plea of not guilty. A jury was waived, and the cause tried to the court. At the trial the state's representative filed and read in evidence the following stipulation: "State of Missouri v. Whitney Layton. For the purpose only of the trial of this cause, and at said trial, the defendant, Whitney Layton, for a stipulation covering a part of the facts in the above-entitled case, admits that in the city of St. Louis, Missouri, on the 28th day of August, 1899, he, the defendant, then and there doing business in the state of Missouri, did manufacture, sell, and offer to sell to J. M. Houston Grocer Company, then doing business at said city, a certain compound and preparation, to wit, one case containing two dozen one-pound cans of baking powder, known and designated as `Layton's Health-Food Baking Powder,' which said compound and preparation, so manufactured, sold, and offered for sale by him for the purpose of its being used, was intended by defendant and by said J. M. Houston Grocer Company to be used, in the preparation of food. Defendant further admits that in said compound and preparation so manufactured, sold, and offered to be sold by him there was alum, and that the fact that the same contained alum was then well known to defendant. And it is further agreed and stipulated that at the trial of this case either party may offer any other evidence not inconsistent with the above facts which he may deem material, relevant, and competent in the case, subject to objection by the other party to its materiality, relevancy, or competency. Stewart, Cunningham & Elliot, with H. A. Glover, Jr., Prosecuting Attorney, for Plaintiff. Sedden & Blair, Stanley Stoner, Attorneys for Defendant." The prosecution then rested.

The defendant them offered evidence tending to establish the following facts: Baking powders have been in use for more than 50 years. They are intended to furnish to the people a simple, cheap, efficient, and wholesome leavening agent in the cooking of food, as a substitute for yeast, which is a very slow and more expensive leavening agent, and one which requires considerable intelligence in the cook to use successfully. All baking powders furnish this leavening agent in the form of carbon dioxide (carbonic acid gas), which is given off from the baking powder in preparing and cooking food. This gas, being liberated in the dough, forms bubbles, which take permanent form in the baked bread, thus making it light and porous, All baking powders, in their essential features, are the same. They all supply this leavening agent (dioxide of carbon) by freeing it from bicarbonate of soda. They differ in the nonessential manner in which this carbon dioxide is released from the bicarbonate of soda. There are three classes of baking powders known to commerce, viz. the cream of tartar baking powders, the phosphate baking powders, and the alum baking powders. The cream of tartar powders are composed of bicarbonate of soda and cream of tartar (bitartrate of potassium), mixed with starch as a filler. The soda and cream of tartar are combined in such proportions that when they are united together in the presence of water, in the process of cooking, they react upon each other, and free the carbon dioxide, which leavens the bread. The resulting product left in the bread after cooking is Rochelle salts, a purgative agent. In the phosphate powders the active agent is the phosphate of calcium, which unites with the bicarbonate of soda and liberates the dioxide of carbon, the leavening agent. The alum powders, as they do not differ from the cream of tartar powders in the main essential features of a baking powder, to wit, the liberation of the carbon dioxide from bicarbonate of sodium, but merely in the nonessential mode of liberating the gas, do not differ from each other essentially. In the phosphate alum powders, phosphate of calcium is used to aid in liberating from the bicarbonate of soda the gas, the leavening agent, the essential thing. The straight alum baking powders are composed of bicarbonate of soda and a double sulphate salt of sodium and aluminum, which technically is not alum at all, but is popularly called "soda alum," with starch as a filler or carrier. The alum and the bicarbonate of soda are mixed in such proportions that in the cooking process the carbon dioxide is released as a leavening agent, as in the case of the cream of tartar baking powders. The resulting products are sulphate of sodium and hydroxide (hydrate) of aluminum. The evidence of defendant tended to show that none of the products left in the food cooked with alum baking powders are at all injurious to the human system. The evidence shows that the trade in alum baking powders, as a trade, has given entire satisfaction to the people. Alum baking powders are nearly as standard an article as flour or sugar. They are to be found upon the shelves of every grocery store, not only in Missouri, but in the United States. They were first introduced about 1870. In spite of the fiercest competition and most hostile rivalry upon the part of manufacturers of cream of tartar powders, who, the evidence shows, have used every effort to prejudice the mind of the public by every manner of advertisements and representations, the trade rapidly expanded, until it has now reached vast proportions. The evidence tended to show that alum baking powder sold in the United States last year amounted to not fewer than 120,000,000 pounds, and involved an enormous expenditure in the manufacture and distribution. The defendant's evidence also tended to show that not only was the particular case of baking powder, known as "Layton's Health Food," for the sale of which he was prosecuted, but also all alum baking powders in general, were, and always have been, healthful and wholesome adjuncts in the preparation of human food. The evidence tends to show: That no one had ever either heard of or had known of a single case where the health of a single human being had been injured, or had been supposed to have been injured, by the use of alum baking powder in the preparation of food, and that the trade in alum baking powders, as a trade, prior to the passage of this law, was an honest and lawful business in a generally harmless and useful preparation, used as an adjunct in the cooking of food. The manufacturers and sellers of both such powders—cream of tartar and alum—have been engaged in competition with each other in furnishing to the people, from bicarbonate of soda, a leavening agent for cooking bread, cake, etc. They differ only in the nonessential manner of freeing the gas. That the trade in cream of tartar powders has been practically monopolized by the Royal Baking-Powder Company, which controls the cream of tartar market. To all of this evidence counsel for the state objected when it was offered, on the ground that in view of the stipulation made between the parties, which was read by the state in making its case, all evidence which might be offered by the defendant in his defense would be irrelevant and immaterial. The court at the time of the objection announced that it would not then rule upon the objection, but would hear the evidence, subject to such objection, and would at the end of the case announce its ruling, and, if it concluded the objection was well taken, would rule out all of such evidence. On the other hand, the state, in rebuttal, offered much evidence by distinguished chemists and physicians that alum, in the quantities usually used in the preparation of baking powders, was and is injurious to the health; that while it assists in liberating the carbonic acid gas, and thus makes the bread light, there is a residuum of alumina left in the bread, which is solvable, and enters into the system, and acts as an astringent, and is deleterious; that there was a general prejudice in the minds of the public against alum powders; that, while the sale of alum powders was very enormous, people...