City of St. Louis v. Schuler

• Decision Date: 20 October 1905
• Citation: 89 S.W. 621,190 Mo. 524
• Parties: CITY OF ST. LOUIS v. SCHULER, Appellant
• Court: Missouri Supreme Court

89 S.W. 621

190 Mo. 524

CITY OF ST. LOUIS v. SCHULER, Appellant

Supreme Court of Missouri

October 20, 1905

Appeal from St. Louis Court of Criminal Correction. -- Hon. Hiram N Moore, Judge.

Affirmed.

E. F Stone for appellant.

(1) The production, sale and distribution of dairy products is a legitimate and lawful occupation or business, conducted as a matter of right and not as a privilege. Unusual and arbitrary restrictions cannot be lawfully imposed upon it by ordinance. Nor can harsh, expensive and burdensome provisions be enacted against persons engaged in an innocent and useful business so as to deprive them of the right to devote their property thereto and obstruct their freedom and liberty. Ex parte Whitnell, 98 Cal. 78; Matter of Jacobs, 98 N.Y. 110; State ex rel. v. Ashbrook, 154 Mo. 395. An ordinance cannot, without reason, and arbitrarily, infringe upon the liberty or the property rights of any person or class of persons within the protection of the Constitution, under the plea that it is a police regulation for the protection of the public health. It must not go further than is necessary and appropriate, and must not require things to be done, burdens to be carried, property consumed or rights sacrificed when unnecessary for the protection of health. People v Gillson, 109 N.Y. 389; Slaughter-House Cases, 16 Wall. 106; State v. Julow, 129 Mo. 163; State v. Fisher, 59 Mo. 174. (2) An ordinance may be adjudged unreasonable, oppressive, partial and vexatious by the courts, and declared null and void, and it must be reasonable, impartial and not oppressive, or it will be declared invalid and unconstitutional. Cooley, Const. Lim., 280; Beach on Pub. Corp., sec. 512; Freund on Police Power, sec. 142; Corrigan v. Gage, 68 Mo. 545; Fire Dept. v. Gilmore, 149 N.Y. 453; Ritchie v. People, 155 Ill. 98; Frost v. Chicago, 178 Ill. 250; Tryman v. Chicago, 78 Ill. 405; City of Clinton v. Phillips, 58 Ill. 102; State v. Railroad, 68 Minn. 385; State v. Mayor, 37 N.J.L. 351; Nicoulin v. Lowry, 49 N.J.L. 394; Matter of Frazee, 63 Mich. 397; Kirkham v. Russell, 76 Va. 962; Gates v. Milwaukee, 10 Wall. 497; Kneedler v. Borough, 100 Pa. 373; White v. Railroad, 44 Mo.App. 542; City v. Starke, 93 Mo.App. 70. (3) No doubt the police power of the city may not only be used to protect the public health, but also to prevent a fraud upon the people, and necessary ordinances may be passed for those purposes; but the rights of property cannot be invaded, interfered with or destroyed under the pretense of a police regulation enacted for either of the purposes mentioned. The sale of a well-known article of food or a product conclusively known to be wholesome, could not be forbidden or prohibited by ordinance, even though it assumed to be in the interest of the public health. The enactment of a standard of purity of an article of food, failing to comply with which the sale of the article is illegal, to be valid must be within reasonable limits and not of such a character as to practically prohibit the manufacture or sale of that which, as a matter of common knowledge, is good and wholesome. People v. Biesecker, 169 N.Y. 53; Freund on Police Power, sec. 33; State v. Layton, 160 Mo. 496; Railroad v. City of Jacksonville, 67 Ill. 37; Town of Lakeview v. Cemetery Co., 70 Ill. 191; Beebe v. State, 6 Ind. 501. The Legislature cannot arbitrarily declare any article of food in general use, and wholesome, to be unhealthy, and its production and sale a crime. State v. Layton, 160 Mo. 496; Dillon, Mun. Corp. (4 Ed.), sec. 141, p. 211. (4) Said ordinance is unconstitutional and void, because it violates the 14th amendment to the Constitution of the United States, which provides, "Nor shall any State deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the law." And also sec. 30, article 2, of the Constitution of Missouri, "That no person shall be deprived of life, liberty or property without due process of law." State v. Julow, 129 Mo. 172; 2 Story on Const. (5 Ed.), sec. 1950; People ex rel. v. Otis, 90 N.Y. 48; State v. Loomis, 115 Mo. 307; State v. Walsh, 136 Mo. 406; Cooley, Const. Lim. (6 Ed.), 484; Bank v. Oakley, 4 Wheat. 236; Wally's Heirs v. Kennedy, 2 Yerg. 554. And "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." In re Jacobs, 98 N.Y. 98; State v. Loomis, 115 Mo. 307. (5) Ordinances which tend to restrain competition and create monopolies or tend to confer exclusive privileges are generally condemned. "They are void because they interfere with the liberty of the individual to pursue a lawful trade or employment." Chicago v. Rumpf, 45 Ill. 90; City of Cairo v. Fuechter, 159 Ill. 155; People v. Gas Trust Co., 130 Ill. 268; McQuillin, Mun. Ord., sec. 189; Yick Wo v. Hopkins, 118 U.S. 371; Butchers' Union v. Crescent City Co., 111 U.S. 762; Marshall & Bruce Co. v. City, 71 S.W. 619.

Chas. W. Bates and Wm. F. Woerner for respondent.

(1) The principles of law in this case are identical in most respects with those in the cases of City of St. Louis v. Liessing, ante, 464, and City of St. Louis v. Polinsky, ante, 516, which are briefed, argued and submitted herewith. (2) (a) We frankly concede, however, that a more forcible argument can be made against that part of section 17 here in issue, which inhibits the carrying for sale of milk "containing any foreign substances of any kind whatever . . . or any adulteration or preservative," etc., than in the other sections of the ordinance; and that the appellant's contention of its invalidity receive support in the case of People v. Biesecker, 169 N.Y. 53. We submit, however, for the consideration of the court that there were reasons not referred to in that case, which ought to control. (b) Thus, on the other hand, a statute in Massachusetts prohibiting the sale or carrying with intent to sell of milk to which "any foreign substance has been added" (which of course, includes preservatives) has in several decisions been treated, without discussion, as valid. Commonwealth v. Tobias, 141 Mass. 132; Commonwealth v. Gordon, 159 Mass. 8; Commonwealth v. Schaffner, 146 Mass. 514; Commonwealth v. Wetherbee, 153 Mass. 160. (c) A buyer has a right "to assume that the milk he buys . . . will go through the natural process of oxidation and decomposition. He may wish to use sour milk for culinary purposes, and has the right to assume that nothing has been added to prevent a chemical change . . . . It may be conceded that the milk sold by defendant was not harmful to the health of those who used it; but it is certainly dangerous to the public to permit milkmen to adulterate it in such manner as to change its constituent properties." State v. Schlenker, 112 Iowa 647. (d) We think the legislating power has the right to decree that when such a universal food article as milk is sold, it shall be pure milk, and not milk with something else in it and added thereto. We cannot be sure what reasons prevailed or what motives may have actuated the assembly in prohibiting these preservatives and all foreign substances; but when all of the provisions in ordinance 20808, and in section 17 thereof, are read together, the good intent and motive of the enactment cannot be questioned. It may be that it was feared that formaldehyde or other unsuspected preservative might interfere in cases where calculation as to the time it takes milk to sour is essential, or in medicinal or chemical calculations. There may be other good reasons a layman does not know. At all events the buyer has a right to get what he buys. All the ordinance does is to secure this right. Danger in mixing in any foreign substance, whether supposed to be only a preservative or not, in such a food as milk, is sufficiently possible to justify the upholding of a law prohibiting any tampering with it at all. Defendant's property is not destroyed or affected in the least; he has the right to sell pure milk, but not milk with some other stuff in it.

GANTT, J. Brace, C. J., Marshall, Burgess, Valliant, Fox and Lamm, JJ., concur.

OPINION

In Banc.

GANTT J.

The defendant in this case is charged with violating ordinance No. 20,808, section 17, in that in the city of St. Louis on the 28th day 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 twenty-five dollars. 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 disclosed that on July 28, 1903, one of the deputy milk...