City of St. Louis v. Wortman

• Decision Date: 06 June 1908
• Citation: 213 Mo. 131,112 S.W. 520
• Parties: CITY OF ST. LOUIS v. WORTMAN.
• Court: Missouri Supreme Court

112 S.W. 520

213 Mo. 131

CITY OF ST. LOUIS v. WORTMAN.

Supreme Court of Missouri.

June 6, 1908.

Rehearing Denied June 26, 1908.

1. STATUTES—SUBJECTS AND TITLES.

Acts 1905, p. 135, § 5 (Ann. St. 1906, § 4761-5), entitled "An act to create the office of state dairy commissioner, and to define his term of service, duties and powers," defines creameries, public dairies, butter and cheese factories, and provides that in all prosecutions under the laws pertaining to the production, sale, and distribution of dairy products, the standard of purity and the definition of such products shall be such as are adopted, recognized, and published by the officials of the United States Department of Agriculture, and that whosoever shall sell or offer or expose for sale anywhere in the state milk or cream containing any foreign substance or preservative of any kind whatsoever injurious to health shall be guilty of a misdemeanor, and on conviction fined not less than $10 nor more than $100 for such offense. Held, that the provisions, attempting to establish the standard of purity of dairy products, and providing for the prosecution and punishment of persons violating the provisions, were not germane to the matters expressed in the title, and hence that portion of the section was invalid, under Const. art. 4, § 28 (Ann. St. 1906, p. 185), providing that no bill shall contain more than one subject, which shall be clearly expressed in its title.

2. SAME—CONSTITUTIONAL PROVISION—OBJECT.

The object of the provisions of the organic law, requiring an act to contain only one subject, to be clearly expressed in its title, was to have the title, like a guideboard, indicating the general contents of the act, and containing but one general subject, which might be expressed in a few or a greater number of words, which, if they constituted only one general subject, and did not mislead as to what the act contained, and were not designed as a cover to vicious and incongruous legislation, would be a sufficient compliance with the constitutional requirement.

3. SAME.

Courts are vested with no dispensing power in relation to the title of statutes, and cannot enlarge the scope of the title of an act to make it a sufficient compliance with the constitutional requirements that the subject of the act be clearly expressed in the title, since the Constitution has made the title the conclusive index to the legislative intent as to what shall have operation.

4. MUNICIPAL CORPORATIONS—ORDINANCES— IMPLIED REPEAL.

Section 17 of Ordinance No. 20,808 of the city of St. Louis, providing that no foreign substance of any kind shall be placed in milk or cream for "any purpose whatsoever," would be repealed by implication by Acts 1905, p. 135, § 5 (Ann. St. 1906, § 4761-5), providing that no foreign substance or preservative of any kind whatsoever shall be placed in milk or cream "which is injurious to health," if that act was constitutional, since the provisions were so inconsistent that they could not stand together; the ordinance prohibiting the placing of any foreign substance and preservative in milk or cream for any purpose, while the statute only prohibits the placing therein of foreign substances which are injurious to health.

5. SAME—INVALIDITY OF REPEAL—STATUTES.

An ordinance, inconsistent with a state law invalid because not clearly expressing the subject of the act in the title, was not repealed by implication.

6. COMMERCE—INTERSTATE COMMERCE—REGULATION —SALES—ORIGINAL PACKAGES.

Sales of dairy products, consisting of interstate shipments sold in the original unbroken packages, are governed by the acts of Congress, and not by state laws, and hence are not subject to a city ordinance prohibiting the use in such products of formaldehyde or other foreign substances or preservatives.

7. SAME.

Where original packages containing dairy products, consisting of interstate shipments, are broken, and the products are sold in different packages from those in which they were shipped into the state, the transactions are changed from interstate to intrastate commerce, and become subject to state laws.

8. MUNICIPAL CORPORATIONS—ORDINANCES— REPEAL.

Acts 1907, p. 239, § 4, cl. 5, entitled "An act to prohibit the manufacture and sale of foods, * * * and prescribing penalties for violation thereof," provides that food shall be deemed to be adulterated if it contains any added substance which is poisonous or injurious to health. Section 17 of Ordinance No. 20,808 of the city of St. Louis prohibits the adding to milk and cream of any foreign substance of whatsoever kind for any purpose. Held, that the ordinance and statute are so inconsistent and repugnant that they cannot both stand, as the ordinance prohibits adding any foreign substance, whether poisonous or injurious to health or not, while the statute prohibits only adding foreign substances which are poisonous or injurious to health, and hence the ordinance is repealed by necessary implication, and a prosecution cannot be maintained thereunder.

9. FOOD—FOOD LAWS—FOREIGN SUBSTANCES —QUANTITY OF.

Under Acts 1907, p. 239, § 4, cl. 5, making it a misdemeanor to place any foreign substance in food of any kind "in any quantity" for any purpose which is poisonous or injurious to health, a prosecution can be maintained for putting formaldehyde in milk, such substance being a poison, even though the quantity placed in the milk was so small that it was not sufficient to cause death or injury to health.

10. SAME.

Acts 1907, p. 242, § 12, providing that no dealer in dairy products shall be prosecuted under the act when he can establish a guaranty as provided in the national food and drug act, approved June 30, 1906 (Act June 30, 1906, c. 3915, 34 Stat. 768 [U. S. Comp. St. Supp. 1907, p. 928]), or a guaranty signed by a wholesaler, jobber, or manufacturer either residing within the state or who shall have complied with the requirements for service of process in proceedings under the act, to the effect that the products are not adulterated or misbranded in the original unbroken packages, does not militate against the liability, under the act of dealers in food and dairy products, for placing therein substances which are "poisonous or injurious to health in any quantity for any purpose whatsoever"; the meaning of the section being merely to relieve the dealer of the necessity of analyzing each and every unbroken package sold or consigned to him, and to authorize him to sell from such packages, under the guaranty mentioned therein, provided the wholesaler, jobber, or manufacturer has complied with the provisions of the section.

11. MUNICIPAL CORPORATIONS—ORDINANCES— PROSECUTION FOR VIOLATION — EFFECT OF REPEAL OF ORDINANCE.

Where there is no saving clause in a statute repealing a city ordinance, providing that the statute shall not apply to offenses already committed, the repealing statute operates to relieve a defendant being prosecuted under the ordinance for an offense committed before the enactment of the statute, and the omission of the saving clause in the statute cannot be supplied by an ordinance of the city containing such a clause.

In Banc. Error to St. Louis Court of Criminal Correction; Hiram N. Moore, Judge.

Prosecution instituted by the city of St. Louis against Henry Wortman to recover penalty for violating ordinance prescribing standard of purity of dairy products. From a judgment of the St. Louis court of criminal correction quashing the information on appeal from the police court, the city brings error. Affirmed.

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 20,808, approved August 27, 1902. Section 17 of the city ordinance, upon which the prosecution was founded, is as follows: `Sec. 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 in this case 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 in error 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 in error 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: Sess. Laws 1905, p. 133 (Ann. St. 1906, § 4761), entitled `Dairy Commissioner—State—Terms, Powers and Duties Defined.' Sess....