City of St. Louis v. Scheer

Decision Date07 June 1911
Citation139 S.W. 434,235 Mo. 721
PartiesCITY OF ST. LOUIS v. SCHEER.
CourtMissouri Supreme Court

Valliant, C. J., dissenting.

In Banc. Appeal from St. Louis Court of Criminal Correction; Benj. J. Klene, Judge.

August Scheer was convicted of selling adultered milk, and he appeals. Affirmed.

Wm. L. Bohnenkamp and E. F. Stone, for appellant. Lambert E. Walther and A. H. Roudebush, for respondent.

LAMM, J.

Defendant was charged and, offering no evidence on his own behalf, was found guilty of violating section 501 of the Municipal Code of St. Louis, and fined $25. From that conviction, he appeals to this court.

The charge is that on the 30th day of July, 1909, at Sidney street and Indiana avenue, in the city of St. Louis, he did carry and have in his possession, and expose for sale, milk having on analysis less than 8.5 per cent. nonfatty solids, to wit, 7.91 per cent.; said nonfatty solids being estimated by the difference between the total solids determined by evaporation, and the butter fat determined gravimetrically by the Adams paper-coil process.

The ordinance reads: "Sec. 501. No milk shall be sold, kept, offered or exposed for sale, stored, exchanged, transported, conveyed, carried or delivered, or with such intent as aforesaid be in the care, custody, control or possession of any one, unless it shows on analysis not less than three per cent. by weight of butter fat, eight and five-tenths per cent. solids not fat, and seven-tenths of one per cent. ash, of which fifty per cent. shall be insoluble in hot water: Provided, however, that in contested analysis of milk condemned, under this article, butter fat shall be estimated gravimetrically by the Adams paper-coil process; total solids by evaporation, and nonfatty solids by difference between total and butter fat, and ash by weighing the residue after incineration of total solids at a dull red heat until all the organic matter is destroyed. Any one violating any of the provisions of this section shall be deemed guilty of a misdemeanor, and upon 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 facts: A city milk inspector, on the date and at the place alleged, took a sample of milk from defendant's wagon. The city chemist, Moody, analyzed it, testifying that it contained less than 8.5 per cent. nonfatty solids, viz., 7.91 per cent., and that he estimated nonfatty solids by the difference between the total solids determined by evaporation and the butter fat determined gravimetrically by the Adams paper-coil process. The city then offered in evidence section 501, supra, and rested.

Such motions were filed and overruled and exceptions saved below as properly bring here the only question for decision, viz.: Is section 501, supra, void?

In a brief showing marked industry in research, the ordinance is attacked from several angles. We pass to the consideration of material propositions advanced, taking them to be: First. The ordinance is void because in conflict with the milk standard fixed by the act of the General Assembly. Laws 1909, p. 116. Second. Void because running counter to the policy of the state as evidenced by said act regulating the sale of dairy products. Third. Void because it discriminates against nonresidents of St. Louis, and in favor of residents thereof. Fourth. Void because passed without regard to the wholesomeness or adulteration of milk, in that it absolutely prohibits its sale, unless it comes up to an arbitrary standard of percentage in nonfatty solids. Fifth. Void because "repealed by an act of the Legislature of the state." Laws 1909, pp. 116, 117. Of the foregoing propositions in the order named.

1. Is the ordinance void because in conflict with the statute?

In 1909 the General Assembly enacted a law (Laws 1909, p. 113) § 9, so far as material here, reading:

"For the purposes of this act, the following definitions and standards of purity for dairy products are hereby established:

"1. Milk is the fresh, clean, lacteal secretion obtained by the complete milking of one or more healthy cows, properly fed and kept, * * * and contains not less than eight and three-fourths per cent. (8.75) of solids not fat, and not less than three and one-quarter (3.25) per cent. of milk fat. * * *"

Said section 9 of the act is now section 639, R. S. 1909.

Attending to that statute, the first proposition of counsel is at once disclosed to be that the statutory standard requires milk to contain not less than 8.75 per cent. of solids not fat, while the ordinance, supra, sets up a standard for municipal purposes of only 8.5 per cent. of solids not fat. The ordinance varies from the statute by falling within and below it, not in exceeding it. Hence, counsel say, the conflict and the invalidity of the ordinance. As to which we say: If the contention was new and open in this jurisdiction, it would be entitled to fresh and full exposition. But it is neither new nor open. Whatever the rule elsewhere, in Missouri the doctrine is firmly established that, so long as an ordinance, within the grant of municipal legislative power, falls within (that is, does not exceed, or is not inconsistent with) the state statute, there is no conflict or inconsistency in the sense making the ordinance void. Contra, if it goes beyond the limits of the municipal grant of power; if it is in excess of the standard and limitations of the statute; if it add provisions prohibited by the statute — it is in conflict therewith in the sense making the ordinance void. For the voice of the state lawmaker, evidenced by his laws passed within constitutional bounds in the exercise of the police power, is the voice of the overlord, and as such is paramount to that of the municipal lawmaker's. Therefore there must be such substantial conformity in the latter to the public policy evidenced by the former as makes the one not inconsistent with the other. Section 9582, R. S. 1909.

City of St. Louis v. Klausmeier, 213 Mo. 119, 112 S. W. 516, in banc, was ruled unanimously by a bench of six judges. In that case the point now up was in judgment. It was held, in effect, that a lower municipal standard for milk was not in the nature of an authorization to sell in violation of the state law. It was merely prohibitory in character. It did not invite or permit a violation of the statute. It was the mere exercise of a proper municipal discretion not to bring the machinery of city courts and city laws into operation to prosecute for violations in excess of the municipal standard. By so doing, the state is left to enforce its own law at all points and to the full limit; the city electing to remain passive when the violation falls...

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    • United States
    • Missouri Supreme Court
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    ... 164 S.W.2d 378 350 Mo. 58 Ex parte Bruce Ross Ballentine, Petitioner, v. Thos. Nester, City Marshal No. 38043 Supreme Court of Missouri August 6, 1942 ...           ... Rehearing ... 133; City of Cape Girardeau v. Riley, 72 Mo. 220; ... Quinette v. St. Louis, 76 Mo. 402; St. Louis v ... Gleason, 89 Mo. 67; State v. Butler, 178 Mo ... 272; St ... determine whether its regulations are complied with. St ... Louis v. Scheer, 235 Mo. 721, 139 S.W. 434; State v ... C., M. & St. P. Ry., 114 Minn. 122, 130 N.W. 545. (c) ... ...
  • Ballentine v. Nester, 38043.
    • United States
    • Missouri Supreme Court
    • August 6, 1942
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    • United States
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    • June 7, 1911
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