City of St. Louis v. Ameln

• Decision Date: 07 June 1911
• Citation: 235 Mo. 669,139 S.W. 429
• Parties: CITY OF ST. LOUIS v. AMELN.
• Court: Missouri Supreme Court

139 S.W. 429

235 Mo. 669

CITY OF ST. LOUIS v. AMELN.

Supreme Court of Missouri.

June 7, 1911.

Motion to Rehear Stricken from Files July 1, 1911.

1. MUNICIPAL CORPORATIONS (§ 635) — CITY ORDINANCES — VIOLATION — NATURE OF PROCEEDINGS.

A proceeding for violation of a city ordinance is civil or quasi criminal in character.

2. MUNICIPAL CORPORATIONS (§ 639) — CITY ORDINANCES — VIOLATION — COMPLAINT.

A complaint for violating a city ordinance, entitled an ordinance to prohibit the sale of milk and cream adulterated or misbranded, within the meaning of Ordinance No. 23,297, approved March 26, 1909, in that, on a specified day and place, defendant had in his possession, with intent to sell, skimmed milk, adulterated, etc., was sufficient, under the rule that it is generally sufficient to charge the offense in the language of the ordinance with such certainty as to time, place, and manner as to reasonably notify defendant of the charge preferred; it being unnecessary to identify the ordinance further by alleging its section number, etc.

3. FOOD (§ 20) — ADULTERATED MILK — CITY ORDINANCES — STANDARD.

St. Louis City Ordinance No. 24,297 provides that no person shall have in his possession, with intent to sell, any adulterated milk, and declares that milk shall be deemed adulterated if any substance has been mixed with it, so as to lower or depreciate or injuriously affect its strength, quality, or purity. Held, that since the court will take judicial notice of the laws of nature, and that one of them is that the addition of water to milk lowers and depreciates the quality of milk of any standard, the ordinance prohibited the addition of water to milk, without reference to the standard obtained, notwithstanding the addition; and hence a complaint charging that defendant had in his possession, with intent to sell, skimmed milk adulterated by adding water was not objectionable for failure to allege a fixed standard by which to judge the strength and quality.

4. EVIDENCE (§ 32) — JUDICIAL NOTICE — CITY ORDINANCES.

Courts will not take judicial notice of the ordinances and by-laws of villages, towns, and cities.

5. CRIMINAL LAW (§ 304) — EVIDENCE — REVIEW.

On a prosecution for violation of a city ordinance regulating the sale of milk, the Supreme Court, on appeal, will not consider another ordinance relating to the same subject not introduced in evidence.

6. FOOD (§ 5) — SALE OF MILK — REGULATION — CITY ORDINANCES — CONSTRUCTION.

St. Louis Municipal Code, § 499, provides that any person who shall adulterate milk in enumerated ways, with a view of selling or offering the same for sale, or shall deliver the same to a purchaser, shall be guilty of a misdemeanor. Ordinance No. 24,297 declares that no person shall have in his possession, with intent to sell, any milk which is adulterated, etc. Held, that section 499 is leveled against the act of adulteration with the prescribed intent, so that for one to be guilty under that section he must create the contraband milk, while Ordinance No. 24,297 is leveled against the act of having in possession the contraband milk with the intent to sell, under which it is only essential to a conviction that the person charged shall have had such milk in his possession with the interdicted intent; and hence the sections are not conflicting.

7. MUNICIPAL CORPORATIONS (§ 592) — ORDINANCES — STATE LAW — CONFLICT.

A state law is paramount to a conflicting city ordinance, where they both relate to a subject with reference to which the right to legislate is concurrent.

8. MUNICIPAL CORPORATIONS (§ 592) — ORDINANCES — SALE OF MILK — STATE LAW.

Rev. St. 1909, § 640, provides that whoever shall sell or offer or expose for sale within the state any milk, or shall sell or offer for sale, or deliver to another, adulterated or unwholesome milk, shall be guilty of a misdemeanor, and St. Louis City Ordinance No. 24,297 provides that no person within the city shall have in his possession, with intent to sell, any adulterated milk, and prescribes what shall constitute adulteration. Held, that since section 640 is silent with reference to "possession with intent to sell," which is made an offense by the ordinance, the two were not in conflict as to such offense.

9. FOOD (§ 14) — ADULTERATION — MILK — STATUTES.

Rev. St. 1909, § 640, refers to a series of enumerated and interdicted kinds of milk, each connected with the other by the disjunctive conjunction "or," and solely relates to the selling, offering, or exposing for sale any milk or cream of the several kinds described, providing that whoever shall sell or offer or expose for sale within the state any milk of the kinds specified, or shall sell or offer for sale, or deliver to another, adulterated or unwholesome milk, shall be guilty of a misdemeanor; the phrase "injurious to the health" being used in connection with milk sold, offered, or exposed for sale containing foreign substance or preservatives of any kind. Section 6595 provides that food shall be deemed adulterated if any substance is mixed with it, so as to lower or depreciate or injuriously affect its strength, quality, or purity. Held, that such sections, when read together, prohibit the sale or offering for sale within the state of milk, the quality of which has been reduced by adding pure water, and that it is not the policy of the state to permit the sale of watered milk, so long as a specific standard is retained.

Valliant, C. J., dissenting.

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

George Ameln was convicted of violating the St. Louis milk ordinance, and he appeals. Affirmed.

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

LAMM, J.

Summoned and found guilty in the first district police court of St. Louis, on the complaint of the city for violating a milk ordinance, defendant took an intermediate appeal to the court of criminal correction. Found guilty there and fined $25, he, in apt time and on due steps, appeals here.

The material record follows:

The complaint reads: "George Ameln, to the City of St. Louis, Dr. To one hundred dollars for violation of an ordinance of said city entitled `An ordinance to prohibit the sale of milk and cream which are adulterated or misbranded within the meaning of this ordinance and prescribing penalties for violation thereof,' being Ordinance No. 24,297, approved March 26, 1909, in this, to wit: In the city of St. Louis and state of Missouri, on the 22d day of April, 1909, and on divers other days and times prior thereto, the said George Ameln did then and there have in his possession, with intent to sell and offer and expose for sale at alley near Texas and Shenandoah avenue, in said city of St. Louis, skimmed milk, which said skimmed milk was adulterated, in that a substance, to wit, water, had been mixed with it so as to lower and depreciate its strength and quality, contrary to the ordinance in such case made and provided, on information of Thomas A. Buckland, city chemist."

Omitting (as immaterial) title, ordaining clause, and sections 3, 4, and 5, Ordinance 24,297 reads:

"Section One. No person or persons, firm or association of persons, company or corporation shall, within the city of St. Louis, sell, offer or expose for sale, or have in his or its possession, with intent to sell, any milk or cream which is adulterated or misbranded within the meaning of this ordinance, or cause or procure the same to be done by others.

"Sec. Two. In addition to other methods of adulteration prohibited by the Revised Code of St. Louis, milk or cream shall be deemed to be adulterated, first, if any substance or substances have been mixed with it so as to lower or depreciate or injuriously affect the strength, quality or purity. Second. If any substance or substances have been substituted wholly or in part for the same. Third. If it is mixed or colored in a manner whereby damage or inferiority is concealed, or if by any means it is made to appear to be better or of greater value than it really is."

As pertinent to certain of his propositions, defendant read into the record sections 499 and 505 of the Revised Code of St. Louis, annotated by Woerner, 1907, viz.: "Sec. 499. Adulteration, etc. — Misdemeanor — Penalty — Exceptions — Any person who shall, by himself, or by his servant, agent or employee, adulterate milk or cream, or change it in any respect by the addition of water, skimmed milk, or of any foreign substance, or by the removal of any constituent, with a view of selling or offering the same for sale or exchange, or shall deliver same to a purchaser, otherwise than with its due proportion or each of its natural components, 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."

"Sec. 505. The following regulations shall govern the sale of milk known as skimmed milk:

"First. All milk which contains not less than ten and five-tenths per cent. of total solids and one and five-tenths per cent. butter fat, which is of a specific gravity between one thousand and thirty-two and one thousand and thirty-eight, which is free from foreign additions of any kind, and any evidence of decomposition, which is stored, transported and delivered to purchasers at the temperature provided in this article for sweet milk, shall be known as skimmed milk, and may be lawfully sold as such under the following regulations."

An inspector of the city chemist's office, at the time and place mentioned in the complaint, took a sample bottle of milk from defendant's milk wagon while the driver was on his route, and delivered it sealed to the assistant city chemist. Said assistant, Moody, qualified as an expert by showing he earned the degrees of B. S. from Dartmouth, and M. S. and Ph. D. from Yale, taught mathematics for three years at...