City of St. Louis v. Grafeman Dairy Company
| Decision Date | 20 October 1905 |
| Docket Number | 1 |
| Citation | 89 S.W. 617,190 Mo. 492 |
| Parties | CITY OF ST. LOUIS, Plaintiff in Error, v. GRAFEMAN DAIRY COMPANY |
| Court | Missouri Supreme Court |
Error to St. Louis Court of Criminal Correction. -- Hon. Hiram N Moore, Judge.
Reversed and remanded.
Chas W. Bates and Wm. F. Woerner for plaintiff in error.
(1) No motion was filed to require the information or statement to charge separately the various grounds upon which it alleges that defendant violated the several and severable provisions of section ten of ordinance 20808; nor was any objection taken that they were commingled in one count; and the motion to quash and the order sustaining the same go to the statement as an entirety. Hence, if the latter alleges any charge at all of the violation of any valid provision, the motion to quash should have been overruled and the defendant tried on such valid charge, even if the statement contained others that were based on void provisions of the ordinance. St. Louis v. Weitzel, 130 Mo. 613; City of Gallatin v. Tarwater, 143 Mo. 47; Polinsky v People, 73 N.Y. 72. (2) That part of section 10 of ordinance 20808 requiring a vendor of cream and milk to register in the office of the health commissioner, and that part requiring the payment of one dollar as a registration fee, are severable police regulations from the other provisions, and can be enforced irrespectively of the other provisions without defeating the object of the ordinance. Where respective provisions of an ordinance are severable and are not interdependent one upon another, the whole will not be declared void because a part is invalid, but the void parts will be eliminated and the valid parts will be upheld and enforced, provided this will not defeat the substantial object of the enactment. St. Louis v. Railroad, 89 Mo. 47; County Court of St. Louis v. Griswold, 58 Mo. 199; Tarkio v. Cook, 120 Mo. 7; Lamar v. Weidman, 57 Mo.App. 514; Rockville v. Merchant, 60 Mo.App. 368; State v. Bockstruck, 136 Mo. 353. (3) That provision of section 10 of the ordinance, which requires vendors of cream and milk to register with the health commissioner, is plainly for the purpose of protecting the health and ministering to the welfare of the public by regulating the sale of these necessary food-stuffs and guarding against the sale of an unwholesome quality thereof. This provision is strictly within the reasonable exercise of the ordinary police power lawfully delegated to the city, which the constitutional provisions invoked by defendant were never intended to curtail or affect, and it necessarily must be upheld as such. St. Louis Charter, art. 3, sec. 26, clauses 5, 6, 7, 14; St. Louis v. Galt, 179 Mo. 18; Water Co. v. Aurora, 129 Mo. 575; St. Louis v. Fischer, 167 Mo. 664 (affirmed 194 U.S. 362); Ferrenbach v. Turner, 86 Mo. 420. The provision requiring one dollar for registration fee is also valid. A business conducted under police regulation (such as inspection, registration, etc.), may be made to pay the expenses of such regulation by exaction of a fee or license on those engaging in it. Such a measure will be upheld whenever it appears that the revenue derived is not disproportionate to the cost of its enforcement and the regulation of the business to which it applies. This is not a tax for revenue, but a fee to pay for the police regulation. Littlefield v. State, 42 Neb. 226; Norfolk v. Flynn, 101 Va. 473; People v. Mulholland, 82 N.Y. 326; St. Louis Consol. Coal Co. v. Illinois, 185 U.S. 203; Willis v. Oil Co., 50 Minn. 297; Kinsley v. Chicago, 124 Ill. 359; Carthage v. Rhodes, 101 Mo. 175; St. Louis v. Knox, 6 Mo.App. 247; St. Louis v. Weitzel, 130 Mo. 620; Tiedeman, State & Fed. Cont. Pers. & Property (1900), p. 483, sec. 119; Smith's Mod. L. Mun. Corp. (1903), sec. 1347; Beach on Pub. Corp. (1893), sec. 1255. Authorities are numerous which directly uphold the right of municipalities, under the police power, by ordinance such as that here in issue, to provide for the inspection and regulation of the sale of milk or cream. Deems v. Baltimore, 80 Md. 164; Blazier v. Miller, 10 Hun (17 N.Y. Supp.), 435; State v. Campbell, 64 N.H. 402; State v. Broadbelt, 89 Md. 577; Norfolk v. Flynn, 101 Va. 473; State v. Nelson, 66 Minn. 166; State v. Dupaquier, 46 La. Ann. 582; State v. Stone, 46 La. Ann. 147; Kansas City v. Cook, 38 Mo.App. 665; Weigand v. Dist. Col., 22 App. D. C. 559; Littlefield v. State, 42 Neb. 223; People v. Mulholland, 82 N.Y. 326; State v. Smith, 69 Ohio St. 196; Commonwealth v. Wetherbee, 153 Mass. 159; Polinsky v. People, 73 N.Y. 65; McQuil. Mun. Ord. (1904), sec. 484; State v. Smyth, 14 R. I. 100; 1 Tiedeman, State & Fed. Cont. Pers. & Prop. (1900), pp. 479-480, sec. 119. (4) The ordinance is not obnoxious to the objection that it contains more than one subject. The constitutional provision is inapplicable to an ordinance (Tarkio v. Cook, 120 Mo. 7; Traction Co. v. Chicago, 207 Ill. 544), but there is a charter provision to the same effect, which is also invoked. This ordinance is, however, not violative thereof. All its parts and provisions are germane to the one subject of regulating the sale of milk and cream. Such provisions are not intended to prevent the uniting in one bill of all matters germane to the general subject expressed in the title. St. Louis v. Weitzel, 130 Mo. 614; Bergman v. St. Louis Co., 88 Mo. 683; Senn v. Railroad, 124 Mo. 627; State v. Bockstruck, 136 Mo. 352; Lynch v. Murphy, 119 Mo. 169. Sound policy and legislative convenience dictate a liberal construction of the title and subject-matter of statutes and ordinances to maintain their validity.
E. F. Stone for defendant in error.
(1) The court did not err in sustaining defendant's motion to quash. Plaintiff undertakes to save his pleading by endeavoring to show that this complaint comes within the rule laid down in City v. Tarwater, 143 Mo. 47. But that is not the case here. These offenses or requirements are mentioned conjunctively in the same section of the ordinance, are not of the same class and are charged conjunctively in one count. Both the registration and the license must be had and obtained and the fees in both paid, to secure the single "privilege" of conducting a milk business. Therefore, they are so connected and dependent that they must stand or fall together, because under the ordinance one is of no value without the other. Perhaps without both, the section would never have been enacted. Hence, if the court declares the license clause void, the registration clause is also void. The real question here is: Suppose the court finds the license clause void, the Assembly having conjunctively required both the license and registration to be obtained, before the privilege could be granted, could the court hold the section still valid and that the same privilege could be enjoyed by obtaining the registration alone? This would be legislating by the court. So that if the court finds the license regulation void for any reason, the whole section falls with it. (2) The ordinance requires the license fees to be paid to, and the license to be issued by the city collector, and it gives neither the license commissioner nor license collector any authority or duty in the premises. It does not conform to the State law in that it designates the wrong officer, or an officer not authorized by the State law, for collecting the license fees and issuing the licenses. Secs. 10 and 11, ord. 20808; Laws 1901, pp. 80-82; Dillon, Mun. Corp. (4 Ed.), sec. 781; Tiedeman, Mun. Corp., sec. 265, p. 516; City v. Wilcox, 35 Cal. 21. (3) In license matters milk dealers and vendors must be treated as other merchants. The city cannot impose a license different from, or in addition to, a regular merchant's license. Milk vendors and dealers are nowhere specially named as taxable in the charter. Sec. 6256, R.S. 1899; sec. 26 (subdiv. 5), art. 3 of the Charter; Kansas City v. Grush, 151 Mo. 134. (4) The license herein provided for is not uniform upon all merchants or upon milk vendors in the city, and is void. Const. of Mo., art. 10, sec. 3; St. Louis v. Spiegel, 75 Mo. 146; Kansas City v. Grush, 151 Mo. 135; State ex rel. v. Ashbrook, 154 Mo. 395. (5) 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 restriction 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 Withness, 98 Cal. 78; Matter of Jacobs, 98 N.Y. 110; State ex rel. v. Ashbrook, 154 Mo. 395. An ordinance cannot, without reason, 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 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.
OPINION
In Banc.
This action was commenced in the First District Police Court of the city of St. Louis, for violation by defendant of section ten of Ordinance 20808, relating to the licensing and regulation of the sale of milk and cream and the inspection thereof, "by carrying on the business of a vendor of milk and cream without a license, and by...
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