Sanders v. Commonwealth

• Decision Date: 09 December 1903
• Citation: 117 Ky. 1,77 S.W. 358
• Parties: SANDERS v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

77 S.W. 358

117 Ky. 1

SANDERS v. COMMONWEALTH.

Court of Appeals of Kentucky.

December 9, 1903

Appeal from Circuit Court, Jefferson County, Criminal Division.

"To be officially reported."

Fred Sanders was convicted of crime, and appeals. Affirmed.

Norten L. Goldsmith, Alfred Selligman, and Gibson, Marshall &amp Gibson, for appellant.

Warwick Miller and C.J. Pratt, for the Commonwealth.

BURNAM C.J.

The appellant, Fred Sanders, was indicted, tried, and convicted in the Jefferson circuit court for having knowingly sold milk from animals fed upon ""still slop," in violation of the provisions of section 1274 of the Kentucky Statutes of 1899, which reads as follows: "Whoever shall knowingly sell, or cause to be sold, to any person in this state, milk diluted with water, or in any way adulterated, or milk from which any cream has been taken, or sell milk commonly known as 'skimmed milk,' with intent to defraud, or shall knowingly sell any milk, the product of a diseased animal, or from animals fed upon 'still slop,' 'brewers' slop,' or 'brewers' grains,' or shall knowingly use any poisonous or deleterious material or milk from animals diseased or fed as aforesaid, in the manufacture of butter or cheese, shall be fined in any sum not less than twenty-five nor more than two hundred dollars." A reversal of the judgment of the circuit court is asked upon the ground that so much of the statute as prohibited the sale of milk from animals fed upon still slop is obnoxious to the fourteenth amendment to the Constitution of the United States, which provides, in section 1, that "No state shall make or enforce any law which shall abridge the privilege or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Appellant's contention is based upon the claim that still slop, when used under proper conditions, is a wholesome and innocuous food for dairy cows, and that the milk from cows fed thereon is a pure and wholesome article of food for human beings. Our attention is called to the fact that there is nothing in the statute, nor the indictment which is the foundation of this prosecution, which negatives either of these contentions, and that no testimony was introduced by the commonwealth upon the trial of the case for the purpose of establishing that such was the fact; that the whole proceeding rests upon the naked prohibition contained in the statute itself. The section upon which the prosecution is based is one of the provisions of the statute aimed at offenses against the public health, and was exercised under the police power of the state for the protection of the health of its citizens. No exact definition of the extent of this power has, or perhaps can be, given. Judge Cooley, in his work on Constitutional Limitations, has approved that given by Chief Justice Shaw in Commonwealth v. Alger, 7 Cush. 53, as the most satisfactory and complete to which his attention has been called. It is as follows: "All property in this commonwealth is held subject to those general regulations which are necessary to the common good and general welfare. Rights of property, like all other usual and conventional rights, are subject to such reasonable limitations in their enjoyment as shall prevent them from being injurious, and to such reasonable restraints and regulations established by law as the Legislature, under the governing and controlling power vested in them by the Constitution, may think necessary and expedient. *** The power is vested in the Legislature by the Constitution to make, ordain, and establish all manner of wholesome and reasonable laws, statutes, and ordinances, either with penalties or without, not repugnant to the Constitution, as they shall judge to be for the good and welfare of the commonwealth and of the subjects of the same. It is much easier to perceive and realize the existence and source of this power than to mark its boundaries and limit its exercise." "And this power, under the American constitutional system, is left with the individual states. It cannot be taken away from them, either wholly or in part." See United States v. Dewitt, 9 Wall. 41 19 L.Ed. 593. "Neither can the national government, through any of its departments or officers, assume any supervision of the police regulations of the states. All that the federal authority can do is to see that the states do not, under cover of this power, invade the sphere of the national sovereignty, obstruct or impede the exercise of any authority which the Constitution has confided to the nation, or deprive any citizen of the rights guarantied by the federal Constitution." See Cooley on Constitutional Limitations (7th Ed.) 831, and authorities there cited.

The fourteenth amendment of the federal Constitution was first called to the attention of the Supreme Court of the United States in the Slaughterhouse Cases, 16 Wall. 36, 21 L.Ed 394. In construing a statute of Louisiana vesting in a slaughterhouse company the sole and exclusive privilege of conducting a live stock landing and slaughterhouse business, and requiring that all animals should be landed at the stock landing and slaughtered at the slaughterhouse of the company, and nowhere else, it was held that the statute did not conflict with the provisions of the fourteenth amendment. The scope of this amendment, in so far as it relates to the question before us, has been very clearly stated by Judge Cooley as follows: "The guarantied equal protection is not to be understood to require that every person in the land shall possess the same rights and privileges as every other person. The amendment contemplates classes of persons, and the protection given by the law is deemed to be equal if all persons in the same class are treated alike under like circumstances and conditions, both as to privileges conferred and...