City of St. Louis v. Schuler

• Decision Date: 28 June 1905
• Citation: 89 S.W. 621,190 Mo. 524
• Parties: CITY OF ST. LOUIS v. SCHULER.
• Court: Missouri Supreme Court

89 S.W. 621

190 Mo. 524

CITY OF ST. LOUIS v. SCHULER.

Supreme Court of Missouri.

June 28, 1905.

FOOD — REGULATING SALE — PRESERVATIVES IN MILK — POLICE POWER.

An ordinance prohibiting the sale of milk containing a preservative is within the power to pass ordinances necessary or reasonably appearing to be necessary for the public health, even though a preservative not injurious to health might be used.

In Banc. Appeal from St. Louis Court of Criminal Correction; Hiram N. Moore, Judge.

Prosecution by the city of St. Louis against Joseph Schuler for violation of an ordinance. Defendant was fined, and appeals. Affirmed.

E. F. Stone, for appellant. Chas. W. Bates and Wm. F. Woerner, for respondent.

GANTT, J.

The defendant in this case is charged with violating Ordinance No. 20,808, § 17, in that in the city of St. Louis on the 28th of July, 1903, he did then and there carry, control, and expose for sale, at Twenty-First and Chestnut streets, milk which did contain a preservative known as "Formaldehyde." On a trial on appeal he was convicted in the St. Louis court of criminal correction, and fined $25. From that judgment he appeals to this court, on the ground that said ordinance and said section thereof are unconstitutional and void, in that they deprive the defendant of his natural rights to liberty and the enjoyment of the gains of his own industry, and of his property and liberty without due process of law, and because said ordinance is unconstitutional and void, in that it is beyond the power of the municipal assembly to pass and enact the same. Section 17 of said ordinance provides: "Any person, firm or corporation, who shall sell, expose for sale, exchange, deliver, dispose or transport, convey or 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 substance 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," etc. The evidence on the trial discloses that on July 28, 1903, one of the deputy milk inspectors of said city did take a sample of milk from a wagon of the defendant, put it in a bottle and sealed it, and handed it to the city chemist; that this sample was analyzed by the said city chemist on the same day, and found to contain a preservative known as "Formaldehyde;" that formaldehyde is an "organic compound oxidation product of alcohol," and was used by defendant to prevent the milk from becoming sour. J. C. Cabanne, an expert for the city, testified he was a milk dealer since 1868, and in business in St. Louis since 1872, and now supplied the city business to the extent of 5,000 gallons a day. He showed that milk could be kept sweet and good by simply keeping it cold, and that it was not at all necessary to use formaldehyde for that purpose, and that he "always refused to take milk with preservatives in it"; also, that he had "kept milk stored for 21 days without preservatives in it, just at a temperature of 34. His milk is shipped into the city from a distance as far as a hundred miles." The quantity of formaldehyde, in this particular instance, was not determined, as the ordinance did not require it, but the testimony was that there was only small quantities of it in the sample. There was evidence tending to show that the test used by the city chemist was not a conclusive one, but there was no pretense that either of the experts, Dr. Richter or Prof. Keyser, made any test of the sample in question. On the part of the defendant evidence was offered to show that formaldehyde in sufficient quantities to preserve milk from souring was not injurious to the health. At the conclusion of the evidence the defendant prayed the court to declare the law to be that under the testimony and the law the plaintiff could not recover, and that the ordinance was unconstitutional and unreasonable as a matter of law and as shown by the evidence in the case. This instruction the court refused. After motions for a new trial and in arrest of judgment were filed, heard, and overruled the defendant appealed to this court.

1. This case involves some of the objections to the constitutionality and validity of the ordinance in question that were made and decided adversely to the defendant in St. Louis v. Liessing, and hence we must decline to again consider those objections.

2. The real question in this case is whether it is competent for the Legislature or the municipal assembly of the city of St. Louis to prohibit the preservation of milk by placing a preservative therein. On the part of the city it is insisted that it was entirely competent to prohibit the addition of any foreign substance, which, of course, includes preservatives in milk offered for sale, whether the said foreign substance or added matter is or is not injurious to health, and that a buyer has the right to assume that the milk he buys will go through the natural processes of oxidation and decomposition. On the other hand, it is insisted that the Legislature cannot forbid or wholly prevent the sale of a wholesome article of food, and that this section of the ordinance is clearly distinguishable from those considered in the other cases which we have decided under this ordinance at the present term, in that it cannot be justified as an exercise of power to prevent fraud or imposition, nor can it be sustained under the power of the Legislature or municipality to require a standard of purity for milk or other food products, but it strikes down the preservation of food and milk, which is a proper and lawful purpose in itself. The defendant insists that the use of formaldehyde or other preservative is not to practice any from of deception or to artificially improve the standard of the milk, but its purpose is to prevent decay in a product which, without the presence of such preservative, naturally becomes unfit for use in a very short period, and that there is a marked distinction between the protection of health by requiring a proper standard of purity and the prevention of imposition on consumers and the mere preservation of an article otherwise up to the standard, and the introduction of such preservative having no tendency to deceive consumers and purchasers. Another contention of the defendant is that the ordinance itself does not declare or ordain the adding of such a preservative an adulteration. It will be seen that these diverse contentions raise a most important question, one somewhat more difficult of solution than either of those presented in the other milk cases considered by the court at this time. The insistence on the part of the defendant has the full support of the Court of Appeals of New York in People v. Biesecker, 169 N. Y. 53, 61 N. E. 990, 57 L. R. A. 178, 88 Am. St. Rep. 534. In that case a statute of New York, which provided that "no person shall sell, offer or expose for sale any butter or other dairy products containing a preservative, but this shall not be construed to prohibit the use of salt in butter or cheese, or spirituous liquors in club or other fancy cheese, or sugar in condensed milk," was held unconstitutional. In that case Judge Cullen, speaking for the whole court, reviewed previous decisions of that court, sustaining legislation which prohibited the manufacture or sale of any article so compounded as to imitate butter, as in People v. Arensberg, 105 N. Y. 123, 11 N. E. 277, 59 Am. Rep. 483, and People v. Kibler, 106 N. Y. 321, 12 N. E. 795, defining what should be deemed unwholesome or adulterated milk, and People v. Girard, 145 N. Y. 105, 39 N. E. 823, 45 Am. St. Rep. 595, forbidding the manufacture or sale of vinegar containing any artificial coloring matter, but drew a distinction between the statutes upon which those cases rest and the statute prohibiting the use of a preservative in butter, and reached the conclusion that the latter could not be justified as an exercise of the police power to prevent fraud or deception on...