City of St. Louis v. Niehaus

• Decision Date: 07 June 1911
• Citation: 236 Mo. 8,139 S.W. 450
• Parties: CITY OF ST. LOUIS v. NIEHAUS.
• Court: Missouri Supreme Court

139 S.W. 450

236 Mo. 8

CITY OF ST. LOUIS v. NIEHAUS.

Supreme Court of Missouri.

June 7, 1911.

Rehearing Denied July 1, 1911.

1. FOOD (§ 5) — ORDINANCES — ADULTERATED MILK — CONFLICT.

St. Louis Rev. Code, § 505, establishing a standard for skim milk in total solids, butter fat, specific gravity, freedom from foreign additions of any kind, and any evidence of decomposition, and which is transported and delivered at a temperature provided for sweet milk, was not in conflict with Ordinance No. 24,297, prohibiting persons from having in possession with intent to sell any adulterated milk, and defining additional means of adulteration.

2. EVIDENCE (§ 47) — JUDICIAL NOTICE — MILK STANDARDS.

The Supreme Court will not take judicial notice of the milk standards prescribed by the United States Department of Agriculture.

3. EVIDENCE (§ 1) — "JUDICIAL NOTICE" — NATURE OF DOCTRINE.

The doctrine of judicial notice is not a hard and fast one, but is modified by judicial discretion, the courts not being bound to take judicial notice of matters of fact; whether they will do so or not being dependent on the nature of the subject, the issue involved, and the apparent justice of the case.

4. EVIDENCE (§§ 5, 9, 11, 48) — JUDICIAL NOTICE — GENERAL KNOWLEDGE.

Courts may take judicial notice of facts which are a part of the general knowledge of the country, and which are generally known and have been duly authenticated in repositories of facts open to all, and especially of facts of official, scientific, or historical character.

5. COMMERCE (§ 33) — INTERSTATE COMMERCE — MUNICIPAL MILK REGULATIONS.

In a prosecution for having in possession adulterated skim milk, with intent to sell and offer and expose for sale, in violation of St. Louis City Ordinance No. 24,297, proof that all defendant's milk was brought into the city by railway, and that it was all purchased in and shipped from Illinois, without any evidence showing that when the offense was charged to have been committed the shipment of the milk had not terminated, and that it had not become a part of the commerce of the state, was insufficient to entitle defendant to an acquittal on the ground that the milk which he possessed with intent to offer for sale was not subject to the ordinance, because within the protection of the federal law and Constitution relating to interstate commerce.

Valliant, C. J., dissenting.

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

Herman Niehaus was convicted of violating a milk ordinance of the City of St. Louis, and he appeals. Affirmed.

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

LAMM, J.

Convicted of violating a milk ordinance of the city of St. Louis, No. 24,297, and fined $25, defendant appeals.

The complaint charged that on the 2d day of July, 1909, at a named place in St. Louis, defendant had in his possession, with intent to sell and offer and expose for sale, skim milk, adulterated, in that a substance (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.

This is one of eight companion cases — Ameln's (139 S. W. 429), Kellman's (Id. 443), Meyer's (Id. 438), Kruempeler's (Id. 446), Schulte's (Id. 449), Scheer's (Id. 434), Jud's (Id. 441), and the instant case — all handed down at this delivery and not yet officially reported, testing St. Louis milk ordinances. In some of them are common questions. In so far as that is so, when such question has been once ruled, it has not been reconsidered, but reference has been made to the principal case to avoid duplicating exposition; the same counsel representing the city and the several defendants, respectively, in all the cases, and all of them being consolidated, argued together, and heard practically as one case. We shall follow that plan in this case.

In one of the companion cases (Ameln's) those sections of Ordinance 24,297 material here are set forth, as well as sections 449 and 505 of the Revised Code of St. Louis. See that case for their terms.

At the trial the city read section 2 of the ordinance into the record. Defendant read into it said sections 499 and 505 of the Revised Code of St. Louis of 1907 (Woerner's).

The oral testimony follows: The city put on the stand Roeder, a milk inspector, an attaché of the city chemist's office, who testified that at the time and place charged in the complaint he took a sample of skim milk from defendant's wagon and put it in the hands of an assistant city chemist, Fitzwilliams. Further, he testified "defendant's milk is all shipped in the city by railway." The chemist, Fitzwilliams, testified that he analized the sample given him by Roeder, "and found it contained added water, the effect of which lowers and depreciates its quality and value." Such was the city's case.

At this point defendant asked a mandatory instruction to acquit. Failing in getting that instruction, to sustain the issues on his own behalf, he offered, in addition to said sections 499 and 505 of the Revised Code of St. Louis, oral testimony from Niehaus in substance as follows: "He did not handle his own milk. He forbade his drivers doing anything wrong. He had never before been prosecuted for adulterating milk. "He did not produce the milk, and that all of his milk was purchased in and shipped from the state of Illinois."

(a) Among contentions below and here is one that the prosecution should have been under section 499 of said Revised Code, instead of under Ordinance 24,297. That contention in all its phases, so far as relates to section 499, was ruled against defendant in the Ameln Case, which see. Point 4 of defendant's brief relates to that contention, and may be put aside.

(b) Another contention below and here is one to the effect that Ordinance 24,297 is void because in conflict with an act of the Legislature (Laws of 1909, p. 118); the same being section 10 of an act relating to agriculture and creating a bureau of dairying. Laws of 1909, p. 113. Said section 10 is now section 640, R. S. 1909. That contention was ruled against defendant in the third paragraph of the Ameln Case. Quod vide. Point 3 of defendant's brief relates to that contention, and may be put aside.

(c) In point 5 of his brief, defendant asserts that, if guilty at all, he is guilty of violating section 505 of the Revised Code of St. Louis. That section, as said, read in evidence, is set forth in Ameln's Case, but that case did not break on the point. However, in the companion case (Kellman's not yet officially reported, which see), it appears that the identical section (505) was "struck out" and repealed by a later ordinance (24,582), approved October 23, 1909. The Kellman Case rod off on the validity of that very repeal. However, this case was tried in the court of criminal correction in September, 1909, before that repeal, so that the point is left for consideration in this particular case, although it could not again arise.

Section 505 establishes a standard for skim milk in total solids, butter fat, specific gravity, freedom "from foreign additions of any kind," and any evidence of decomposition, and which is transported and delivered at a temperature provided elsewhere for sweet milk. It does not appear what the constituent elements and properties of this milk were with reference to those standard requirements. However, "water" might be a "foreign addition." The proposition that the prosecution should have been under that ordinance is somewhat dark. As preserved in the record, section 505 provides no punishment, and winds up with the phrase "may be lawfully sold, under the following regulations." What those regulations are we do not know. We think there is no substantial merit in the point. Counsel do not develop it, and we construe it as made more by way of parenthesis than otherwise. To all intents and purposes, it falls within and is disposed of adversely to defendant by the reasoning in the series of companion cases already decided, and to which reference has been made. The two ordinances do not conflict. At the worst possible view, they seem cumulative and indicate redundancy, rather...