City of St. Louis v. Kruempeler
| Decision Date | 07 June 1911 |
| Citation | 139 S.W. 446,235 Mo. 710 |
| Parties | CITY OF ST. LOUIS v. BARNEY KRUEMPELER, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis Court of Criminal Correction. -- Hon. Benjamin J. Klene, Judge.
Affirmed.
William L. Bohnenkamp and E. F. Stone for appellant.
(1) At the time this prosecution was begun, the State law required that skim milk, to be saleable in this State, should contain not less than 9.25 per cent of total solids, saying nothing about the percentage of water, non-fatty solids or ash. In other words, if such milk contained 9.25 per cent of total solids, or more, it could not be deemed adulterated, and its sale could not be prohibited or prevented anywhere in this State. The strength, quality and purity for skimmed milk was regulated and established by a certain percentage of total solids, and nothing more. This was the particular regulation for this specified product, and took it out of any general provisions applying to adulteration of food products in general, relative to strength, quality and purity. (2). Therefore, said ordinance is void, with reference to the strength and quality of skimmed milk, as being in conflict and inconsistent with Laws 1907, p. 240, subdiv. 10 establishing standards for skimmed milk for this State. Said act provides that the standard for strength and quality for skimmed milk shall be, "not less than 9.25 per cent of milk solids." Said standard being the same as established by the U. S. Dep. of Agriculture. St. Louis v. Klausmeier, 213 Mo. 119. The evidence showed that the total solids of this sample was 10.10 per cent; thereby fully complying with the State law as to strength and quality, the State law requiring that such milk have only 9.25 per cent total solids, to be saleable as to strength and quality. All that a party was required to do, to comply with and be protected by the State law, as to strength and quality, was to have it contain not less than 9.25 per cent total solids and therefore, not more than 90.75 per cent of water. Under the evidence herein the sample showed upon analysis that it contained less than 90.75 per cent of water, to-wit, 89.90 per cent of water. Therefore, as to compliance with the State law, said sample could not be adulterated by the use of "water." Its strength and quality could not have been lowered or depreciated by the use of "water," and its sale was sanctioned and authorized anywhere in this State by and under the State law, and hence, could not be prohibited by any ordinance of any city in the State. The ordinance cannot denounce the sale of that which the statute authorizes. "To hold otherwise would be to subject the statute of the State to the operation of the ordinance of the city." St. Louis v. Klausmeier, 213 Mo. 129; St. Louis v. Meyer, 185 Mo. 593; Dillon on Mun Corp. (4 Ed.), sec. 329. (3) Ordinance 24297 is void for vagueness and uncertainty. It provides that milk or cream shall be deemed adulterated, "If any substance or substances have been mixed with it so as to lower or depreciate or injuriously affect the strength, quality or purity." It is uncertain and indefinite, because it fails to fix, directly or indirectly, expressly or impliedly, any standard or measure of strength, quality or purity, for milk or cream. How then can it be determined whether its strength or quality, as required to be done in this case, has been lowered or depreciated? How can it be said that the strength of a food product has been reduced or lowered so as to constitute a violation of law, when no standard of strength is pointed out by the law itself? Railroad v. Com., 99 Ky. 136; Tozer v. U.S. 52 F. 917; Cook v. State, 26 Ind.App. 278; Com. v. Roy, 140 Mass. 432; McConville v. Mayor, 39 N. J. L. 38; Lusk v. Chicago, 176 Ill. 207.
Lambert E. Walther and A. H. Roudebush for respondent.
(1). Circular 19, U.S. Dep. of Agriculture, as to milk standards, was not offered in evidence, and will not be judicially noticed on appeal. Nagle v. U.S. 145 F. 302; The E. A. Packer, 140 U.S. 360; U. S. v. Bedgood, 49 F. 54; Hensley v. Tarpey, 7 Cal. 288; Moore v. Werthington, 63 Ky. 307. 2. So far as the Act of March 15, 1907, attempts to adopt the standards fixed by the U. S. Department of Agriculture, it is void as a delegation of legislative power. Const. Mo., art. 4, sec. 1; art. 2, sec. 2. 3. The Act of 1907 also forbids adulteration in the same language as the ordinance, and therefore the milk standards said to be established by it cannot be construed to authorize adulteration. Laws 1907, p. 239, sec. 4, cl. 1. 4. If the Act of 1907 is to be construed as authorizing adulteration it is repealed by the Act of 1909 forbidding it. Laws 1909, pp. 118, 119, sec. 10. 5. If the Act of 1907 has the effect of establishing a standard for skimmed milk, it is repealed by Act of 1909 defining other standards. Laws 1909, p. 117, cl. 3. 6. There is no conflict between the statute and the ordinance because the former does not authorize the adulteration which is prohibited by the latter. St. Louis v. Klausmeier, 213 Mo. 127. (2) Ordinance 24297 is sufficiently definite and clearly defines the offense here involved, and the charge is supported by the evidence.
OPINION
In Banc.
This is one of eight cases so briefed as to test the validity of the milk ordinances of St. Louis in one or another phase. Some of those cases have already been written, viz., Ameln's, Meyer's and Kellman's, all handed down at this delivery. Any questions in the instant case common to the Ameln, Meyer or Kellman cases and there ruled will not be again considered. The curious in that behalf may consult those cases, which are reported at pages 669, 699, and 687, respectively, of this Report.
On April 30, 1909, Kruempeler was charged in due form with violating ordinance No. 24297, approved March 26, 1909, in that, contrary to the terms of said ordinance at a time, to-wit, the 22d day of April, and at a place in St. Louis, to-wit, Newstead and Farlin avenues, he did then and there have in his possession, with the intent to sell and offer and expose for sale, skim milk, adulterated by mixing a substance known as water therewith so as to lower and depreciate its strength and quality.
At the trial the city proved its milk inspector took a sample of skim milk from defendant's milk wagon at the time and place charged in the complaint, sealed it in a bottle and turned bottle and contents over to Dr. Moody, assistant city chemist. Dr. Moody testified he analyzed the milk sample and found it contained "added water," the effect of which lowers and depreciates its quality and strength. On cross-examination, he said he was not an eye witness to adding any water to the milk, and that the total solids of the sample were 10.10 per cent. The city then offered in evidence ordinance 24297. Defendant objected to the ordinance for certain reasons enumerated. The objection was overruled. Whereat defendant read into the record sections 499 and 505 of the Revised Code of St. Louis, 1907.
(Nota bene: The material parts of ordinance 24297 and sections 499 and 505 of the Revised Code of St. Louis appear, ipsissimis verbis, in said Ameln case, and they will not be here set out.)
From a conviction and fine of $ 25 in the court of criminal correction on an appeal from the first district police court, Kruempeler appeals.
As in companion cases, sundry questions were raised below in appropriate and formidable motions and exceptions were saved to lay the foundation for an appellate review of all of them. But as only certain of them are presented in briefs, the others will be put aside. Those raised on this record are:
First. Ordinance 24297 is void as in conflict with an act of the Legislature. [Laws of 1907, p. 240, subdivision 10 of section 4.]
Second. Further, is void for vagueness and uncertainty.
Third. Further, is void as in conflict with section 10 of another act of the Legislature. [Laws 1909, p. 118.] (And herein of the contentions that the ordinance is broader than the statute and is repealed by implication.)
Those contentions will be disposed of in the order named.
I. In 1907 the General Assembly passed an act relating to the adulteration of foods and drugs. [Laws 1907, p. 238.] Section 4 of that act is now section 6595, Revised Statutes 1909. The parts pertinent are:
Learned counsel seek to root their theory in the words of clause 10 of section 6595. They ingeniously argue after this fashion The United States department of agriculture has established a standard for skim milk at "not less than 9.25 per cent of milk solids." Such standard, they say, became an integral part of our statute and must be read into it. In short, if the Federal department of agriculture does but establish a standard, that standard, ex vi termini, is instantly read into clause 10 of section 6595, supra; or if that department does but change its standard for skim milk, then our statute, ex vi termini, automatically opens to throw out the old and take in the new standard as part and parcel of the body of our...
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