City of St. Louis v. Meyer

• Decision Date: 07 June 1911
• Parties: CITY OF ST. LOUIS v. MEYER.
• Court: Missouri Supreme Court

139 S.W. 438

235 Mo. 699

CITY OF ST. LOUIS v. MEYER.

Supreme Court of Missouri.

June 7, 1911.

Motion to Rehear Stricken from Files July 1, 1911.

1. MUNICIPAL CORPORATIONS (§ 639) — ORDINANCES — VIOLATION — COMPLAINT — SPECIFICNESS,

In a prosecution for violating a city ordinance, the complaint must specify the ordinance alleged to have been breached.

2. EVIDENCE (§ 32) — JUDICIAL NOTICE — CITY ORDINANCE — DATE OF PASSAGE.

A court may not take judicial notice that a city ordinance bearing a higher serial number is later in point of passage than an ordinance bearing a lower number, relating to the same subject.

3. FOOD (§ 5) — MILK ORDINANCE — CONFLICT.

St. Louis City Ordinance No. 24,582, providing a standard for salable skim milk, with reference to fatty and nonfatty solids, contains no provision with reference to adulteration by the addition of water or otherwise, and is therefore not in conflict with Ordinance No. 24,297, which prohibits the having in possession, with intent to sell, any milk adulterated by mixing with it any substance or substances so as to lower or depreciate its strength.

4. FOOD (§ 5) — MILK ORDINANCE — CONFLICT.

St. Louis Municipal Code, § 555, prohibiting the sale or offer for sale of milk adulterated with water or other substances, or any milk produced from diseased cows, is not in conflict with Ordinance No. 24,297, prohibiting the "possession" of adulterated milk with intent to sell.

5. FOOD (§ 5) — MILK ORDINANCE — CONFLICT.

St. Louis City Ordinance No. 24,297, prohibiting the possession of adulterated milk with intent to sell, was not in conflict with Ordinance No. 24,295, prohibiting the traffic in milk containing a substance which is poisonous or injurious to health, but each supplemented the other; and hence the latest did not repeal the earlier, so that the charter provision prohibiting repeals by implication was inapplicable.

6. FOOD (§ 2) — CITY ORDINANCE — OBJECTIONS.

An objection to city ordinances regulating the sale of milk, in that they were repugnant, conflicting, null and void, and that a comparison with the acts of the Legislature and the acts of Congress would show an "abominable condition" of milk regulations, conflicts, inconsistencies, and contradictions so serious and numerous as to justify a judicial condemnation of them all, was too general to be reviewed.

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

Fred Meyer 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.

Defendant, found guilty and fined $25 for violating a milk ordinance, appeals.

The case is one of a group to test the validity of one or another of the milk ordinances of St. Louis in one or another phase. It is a companion case to that of St. Louis v. Ameln, 139 S. W. 429, handed down at our present sitting and not yet officially reported. While differing in points of detail from that case, it has propositions in common. Where propositions are common, reference will be made to the Ameln Case, which should be read with this, since common propositions will receive no reconsideration.

The complaint is under Ordinance 24,297, as was that in Ameln's case. While its form is criticised in motions below as vague, uncertain, and as stating no offense in particulars discussed in Ameln's case, yet defendant's brief does not renew the criticisms here, and the complaint need not be reproduced. Defendant is charged with having in his possession, with intent to sell and expose for sale, skim milk mixed with water, so as to lower and depreciate its strength and quality, contrary to the ordinance in such case made and provided, as was Ameln.

The city put on the stand an inspector who testified he took a sample of skim milk from defendant's wagon, at a time and place charged in the complaint, and turned it over to an assistant of the city chemist. The chemist took the stand, and testified he analyzed the sample and found it contained "added water." Such was the oral testimony. The city offered in evidence Ordinance 24,297. Vide Ameln's case for its terms.

Defendant offered in evidence Ordinance 24,582, reading: "No skimmed 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 show on analysis not less than: One. Nine and one-quarter per cent. of milk solids. Two. Eight and one-half per cent. of milk solids, not fat." (Nota bene: No date of approval is shown by the record. Hence, unless controlled by the number, we may not know whether it is older or younger than Ordinance 24,297.) He next put in sections 499 and 505 of the Revised Code of St. Louis, 1909. (See Ameln's Case for their terms.) He next offered section 555 of said Code, reading: "Sale of Adulterated Milk Forbidden. — Whoever shall sell or offer for sale any milk adulterated with water or other substance, or any milk product from diseased cows, shall be deemed guilty of a misdemeanor." He next put in Ordinance 24,295, approved March 26, 1909 (Nota bene: The date of approval of this ordinance is the same as that of Ordinance 24,297, supra), reading: "Sec. 1. Any person, firm or corporation who shall sell, expose for sale, exchange, deliver, dispose of or transport, convey or carry, or with any such intent as aforesaid have in his or her possession, any milk or cream having therein, or containing any added substance which is poisonous or injurious to health, 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."

Elaborate motions to quash, for a new trial, and in arrest were filed and overruled; due exceptions being saved. It would but pad the opinion to swollen proportions to set them forth. For our purposes, it is enough to say that the single and separate propositions announced by learned counsel for defendant in their brief, and upon which they rely for reversal, were presented and decided below, and that exceptions to the decisions nisi, well preserved in the record, are properly here for review.

Those propositions are: (a) That defendant should have been prosecuted under Ordinance 24,582 and not under Ordinance 24,297 (and herein, that the former is a later ordinance than the latter). (b) That if not prosecuted under Ordinance 24,582, he should have been prosecuted under section 555 of the Municipal Code. (c) That if not prosecuted under section 555, he should have been prosecuted under section 499 of the Municipal Code (and herein, that Ordinance 24,297, ex vi termini, prohibits a case like the instant one from being brought under its provisions). (d) That Ordinance 24,297 is invalid, because it fails to repeal in express terms Ordinance 24,295 (and herein, that they conflict and are repugnant to each other). (e) That their repugnancy and conflict make them both null and void (and herein, that a study of them and a comparison with the acts of the Legislature and the acts of Congress will show an "abominable condition" of milk regulations — conflicts, inconsistencies, and contradictions so serious and numerous as to justify a judicial condemnation of them all). Of these seriatim.

1. Of proposition "a."

It goes as of course that when a citizen is charged with the breach of a municipal regulation the complaint should put its finger on the ordinance breached. Certainty in that regard is a sine qua non. A false call is worse than none at all. It deceives and misleads defendant. The law, moving with sober dignity, tolerates no tricks of that sort. Therefore, if there be a false call for the ordinance in the complaint, absent amendment, the prosecution is halted and must fall. So, too, if the ordinance alleged to be breached has been superseded or repealed by a later ordinance, there can be no breach, for the ordinance is nil; hence there is...