City of St. Louis v. Klausmeier

• Decision Date: 06 June 1908
• Citation: 112 S.W. 516,213 Mo. 119
• Parties: CITY OF ST. LOUIS v. KLAUSMEIER.
• Court: Missouri Supreme Court

112 S.W. 516

213 Mo. 119

CITY OF ST. LOUIS v. KLAUSMEIER.

Supreme Court of Missouri.

June 6, 1908.

Rehearing Denied June 26, 1908.

1. MUNICIPAL CORPORATIONS—ORDINANCES— VALIDITY—CONSISTENCY WITH STATUTES.

The ordinances of the city of St. Louis, in order to be valid, must be consistent with the general laws of the state, and must be in harmony with the legislative policy of the state, manifested by its general enactments, and as provided for in express terms by the Constitution.

2. FOOD—MUNICIPAL REGULATION—CONSTITUTIONAL PROVISION.

The enactment of ordinances by the city of St. Louis, supplemental and in addition to the state laws relating to the establishment of standards of purity, and providing for the inspection of dairy products, is not prohibited, either by the Constitution or by any of the laws of the state of Missouri, but, on the contrary, is expressly authorized by section 26 of article 3 of the charter of the city of St. Louis (Ann. St. 1906, p. 4807).

3. STATUTES—CONFLICTING PROVISIONS.

In order that there be a conflict between two laws, both must contain either express or

implied provisions which are inconsistent and irreconcilable with each other, and when either is silent, where the other speaks, there can be no conflict between them.

4. FOOD—STATUTORY PROVISIONS—MUNICIPAL REGULATION—CONSISTENCY BETWEEN.

Section 19 of Ordinance No. 20,808 of the city of St. Louis, prescribing the percentages and standards of purity of dairy products, fixed, with the exception of one of the elements of skimmed milk, a lower standard of strength and purity than that fixed by Sess. Laws 1905, p. 133 (Ann. St. 1906, § 4761-1), and Sess. Laws 1907, pp. 238, 246, relating to the same subject, and, in addition, required certain ingredients and percentages thereof in whole milk and skimmed milk not called for by the statutes. Held, that the additional requirements of the ordinance did not render it invalid as inconsistent with the statutes, except as to the skimmed milk requirement, where the additional requirements were not in conflict with the statutory requirements, but were merely additional to and supplemental of the statutes in fixing the standard of purity, and where the city charter expressly authorized the city council to establish standards of strength and percentages of purity of dairy products and the power to provide for their inspection.

5. MUNICIPAL CORPORATIONS—REGULATIONS— PENALTIES—CONFLICT WITH STATE LAWS.

Where a city has concurrent power with the state, it may prescribe a penalty for the violation of its ordinance different from that prescribed by the state for the violation of a statute regarding the same subject.

6. SAME—ORDINANCES—CONSISTENCY WITH STATE STATUTES.

Where a city under express authority of its charter enacted an ordinance along the same lines covered by state statutes, but the requirements of which fell short of the requirements of the statutes, the fact that the ordinance was not as broad as the statutes did not render the ordinance void as inconsistent with the statutes.

7. FOOD—STATE FOOD LAWS—MUNICIPAL REGULATIONS—OFFENSES—PROSECUTIONS.

Where a municipal ordinance prescribing the percentages and standard of purity of dairy products fixed a lower standard of strength and purity than that fixed by the state statutes relating to the same subject, but was not inconsistent with the state statute, no prosecution whatever would lie against a person selling dairy products which came up to the standard fixed by the statutes; but, where he sold products below that standard, he would be liable to punishment under the state laws and not under the municipal ordinance, unless the standard of strength and purity fell also below the standard of the city ordinance, in which event he would be liable to punishment under both the ordinance and the statutes.

8. SAME—ORDINANCES—CONSISTENCY WITH STATE LAWS.

Under Const. art. 9, § 23 (Ann. St. 1906, p. 271), providing that the charter and ordinance of a city should be in harmony with and subject to the Constitution and laws of the state, the provision of section 19 of Ordinance No. 20,808 of the city of St. Louis, fixing the total solids to be contained in skimmed milk at not less than 10.5 per cent., was inconsistent with Sess. Laws 1905, p. 133 (Ann. St. 1906, § 4761-1), and Sess. Laws 1907, pp. 238, 245, fixing the standard of solids at 9.25 per cent., and hence was void, since it fixed a higher standard than that provided for by statutes, thereby denouncing as a crime what the statutes authorized to be done.

9. STATUTES—REPEAL—IMPLIED REPEAL.

Repeals by implication are not favored at law, and must be strictly construed, and will be permitted only where two laws are so inconsistent and repugnant to each other that both cannot stand.

10. FOOD—MUNICIPAL REGULATIONS—ORDINANCES—IMPLIED REPEAL.

The fact that a provision of a city ordinance fixing the standard of purity of dairy products to be sold within the city was repealed as to the standard for skimmed milk by statutes relating to the standards of purity of dairy products, because they fixed a higher standard for skimmed milk than the statutes, did not impliedly repeal the provisions of the ordinance relating to other dairy products which fixed a lower standard than did the statutes.

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

Prosecution by the city of St. Louis against William Klausmeier to recover a 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. Reversed and remanded.

This prosecution was instituted against the defendant in error to recover a penalty of $100 for violating section 19 of Ordinance No. 20,808 of the city of St. Louis. Said section reads as follows: "No cream shall be sold, offered for sale, exchanged, delivered or be transported for the purpose of sale, offering for sale, exchange or delivery, that contains less than twelve per centum of butter fat, or that is taken from any impure, diseased, unhealthy, unclean, adulterated, or unwholesome milk, or milk to which any foreign or other substance of any kind has been added. Any person violating any of the provisions of this section 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 complaint charged that the defendant in error carried and exposed for sale, in the city of St. Louis, cream containing less than 12 per centum of butter fat. 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, § 4761-1), entitled "Dairy Commissioner —State—Terms, Powers and Duties Defined." Sess. Laws 1907, p. 246, entitled "Dairy and Food Commissioner." Sess. Laws 1907, p. 238, entitled "Crimes and Punishments—Adulteration of Foods and Drugs."

Chas. W. Bates and Chas. P. Williams, for plaintiff in error. E. F. Stone, for defendant in error.

WOODSON, J. (after stating the facts as above).

1. There are many legal propositions presented and learnedly discussed by counsel for both plaintiff and defendant in error; but, when reduced to their final analysis, only one question remains for the consideration of this court, namely: Was the ordinance mentioned, which was in force at the time of the institution of this prosecution, subsequently repealed by the acts of the Legislature of 1905 and 1907? The ordinance in question fixed the percentages and standards of whole milk and skimmed milk as follows: "Whole Milk: Butter fat not less than 3 per cent. Nonfatty solids not less than 8.5 per cent. Ash not less than 7 per cent. Total solids not less than 12.2 per cent. Butter fat to be determined exclusively by the Adam's paper coil process. Cream: Butter fat 12 per cent. Skimmed Milk: Total solids not less than 10.5 per cent. Butter fat not less than 1.5 per cent. Specific gravity between 1.032 and...