City of St. Louis v. Scheer

• Decision Date: 07 June 1911
• Citation: 139 S.W. 434,235 Mo. 721
• Parties: CITY OF ST. LOUIS v. AUGUST SCHEER, Appellant
• Court: Missouri Supreme Court

139 S.W. 434

235 Mo. 721

CITY OF ST. LOUIS v. AUGUST SCHEER, Appellant

Supreme Court of Missouri

June 7, 1911

Appeal from St. Louis Court of Criminal Correction. -- Hon. Benjamin J. Klene, Judge.

Affirmed.

Wm. L Bohnenkamp and E. F. Stone for appellant.

(1) Ordinances which assume directly or indirectly to permit acts or occupations which the State statutes prohibit are uniformly declared null and void. Howlett v. Camp, 115 Ala. 499, is directly in point, as it passes upon the question that an ordinance can not permit or authorize that to be done which the statute forbids, especially when the Constitution of the State provides that the municipal corporation shall have no power to pass any ordinance inconsistent with the general laws of the State. State v Caldwell, 3 La. Ann. 435; Flood v. State, 19 Tex.App. 584; Bohney v. State, 21 Tex.App. 597; Lynn v. State, 33 Tex.Crim. 153; Fay v State, 71 S.W. 603; In re Desanta, 96 P. 1027; State v. Caldwell, 3 La. Ann. 435; New York v. Nichols, 4 Hills, 209; In re Ridenbaugh, 49 P. 12; Ex parte Solomon, 91 Cal. 440; Thompson v. Carroll, 22 How. 422; Ex parte Hoffman, 99 P. 519. In the case at bar, the ordinance, Sec. 501, fixes the standard for milk at: butter-fat not less than 3 per cent, non-fatty solids not less than 8.5 per cent, and ash not less than .7 per cent. This standard is in conflict with the standard fixed by the act of the Legislature, Laws 1909, p. 116, which fixed the standard for the whole State at 3.25 per cent butter-fat and 8.75 per cent non-fatty solids. Defendant is charged with selling milk containing less than 8.5 non-fatty solids, being one of the elements of the standard of the ordinance. Defendant now insists that said element of the ordinance is in conflict and inconsistent with said general law of the State, and hence null and void. (2) The State has manifested a policy by a general enactment of the legislature relative to the quality and sale of dairy products. The State (Laws 1909, p. 118) having done so, "the city of St. Louis is restricted to the exercise of only such jurisdiction as is consistent with and in harmony with that policy of the State so manifested." Said act expressly fixes standards for milk and cream and commands that they shall apply to, and be for, the entire State. This general law certainly expresses the policy of the State, "is applicable to every citizen of the State and its force and vitality can not be limited by municipal authority." Ordinances must harmonize with the policy of the State. From the acts of the Legislature the public policy of the State is determined, for by them it is created and declared. Canton v. Nist, 9 O. St. 439; Thompson v. Mt. Vernon, 11 O. St. 688; Collins v. Hatch, 18 O. St. 53; Durango v. Reinsley, 16 Colo. 327; Phillips v. Denver, 19 Colo. 179; Theobald v. Lodge, 59 Mo.App. 91; Dillon, Munic. Corp. (4 Ed.), sec. 329; Baxter v. Tripp, 12 R. I. 310; U. S. v. Assn., 166 U.S. 290. (3) As between said ordinance and the statute, the ordinance is void, because it operates to discriminate in favor of the residents of the city of St. Louis who produce, sell and distribute milk in said city and against non-residents thereof who produce said products and sell or offer them for sale within the city. The non-resident could not produce and sell them with 8.75 per cent non-fatty solids, as required by the State law, in competition with the resident selling under the ordinance with only 8.50 non-fatty solids. An ordinance is void which discriminates between residents and non-residents. Hayden v. Noyes, 5 Conn. 391; Borough v. Phillips, 148 Pa. St. 482; Walton v. Missouri, 91 U.S. 275; Darnell v. Memphis, 208 U.S. 123; State v. North, 27 Mo. 464; Fechheimer v. Louisville, 84 Ky. 306; State v. Browning, 62 Mo. 591. A law professing to be non-discriminating on its face may, from the circumstances, and in its application, be held to be really discriminating, and hence unconstitutional. Brimmer v. Behman, 138 U.S. 78; Minnesota v. Barber, 136 U.S. 313; Fertilizer Co. v. Board, 43 F. 613; Cooley, Const. Lims. 479; Grapty v. Rushville, 107 Ind. 502. (4) Sec. 501 is void, because it is absolutely prohibitive upon the sale of milk unless it contains not less than a certain percentage of certain constituents, especially non-fatty solids, regardless of whether it is wholesome or unwholesome, or adulterated or unadulterated. Sec. 501 does not go to the wholesomeness or healthfulness of the product, but simply condemns and prohibits the sale, unless it comes up to a specified percentage of solids. It is not a regulation in the interest of health, but a prohibition. Righers v. Atlanta, 66 S.E. 991. To say that no one shall sell milk containing less than 8.5 non-fatty solids is unreasonable, especially where the city's power to pass it rests upon an implied power, as in this case, for the city of St. Louis has no express power to enact standards for milk.

Lambert E. Walther and A. H. Roudebush for respondent.

The Act of 1909 in so far as it defines milk standards is not an effective law, because it does not require conformity to these standards or provide a penalty for non-conformity thereto. Laws 1907, p. 116, sec. 9; 1 Blackst. Com., pp. 43, 44, 57; State ex inf. v. Railway, 146 Mo. 168; Bishop on Stat. Crimes (3 Ed.), sec. 22; 1 Bishop, Crim. Law (8 Ed.), sec. 6. The standards prescribed by ordinance are less restrictive than those of the Act of 1909, and there is, therefore, no conflict. St. Louis v. Klausmeier, 213 Mo. 127. The Klausmeier case should not be overruled because it is sustained by abundant authority. St. Louis v. Cafferata, 24 Mo. 94; Independence v. Moore, 32 Mo. 392; State v. Harper, 58 Mo. 530; State v. Wister, 62 Mo. 592; Ex parte Holwedell, 74 Mo. 395; St. Louis v. Schoenbusch, 95 Mo. 518; State ex rel. v. Walbridge, 119 Mo. 383; State v. Gustin, 152 Mo. 108; Hill v. St. Louis, 159 Mo. 167; State v. Muir, 164 Mo. 610; Canton v. McDanie, 188 Mo. 207; St. Louis v. De Lassus, 205 Mo. 578; St. Louis v. Liessing, 190 Mo. 64; St. Louis v. Dairy, 190 Mo. 492; St. Louis v. Dairy, 190 Mo. 567; St. Louis v. Reuter, 190 Mo. 594; St. Louis v. Polinsky, 190 Mo. 516; St. Louis v. Schuler, 190 Mo. 524; St. Louis v. Bippin, 201 Mo. 528. The city of St. Louis can by ordinance prohibit acts which are also prohibited by statute, provided such ordinances are within its charter power, and not in conflict with the statute. State ex rel. v. Walbridge, 119 Mo. 383; Canton v. McDanie, 188 Mo. 207; St. Louis v. Schoenbusch, 95 Mo. 618; St. Louis v. Cafferata, 24 Mo. 94; St. Louis v. De Lassus, 205 Mo. 578; Kansas City v. Bacon, 147 Mo. 259.

LAMM, J. All concur, except Valliant, C. J.

OPINION

In Banc.

LAMM J.

Defendant was charged, and, offering no evidence on his own behalf, was found guilty of violating section 501 of the municipal code of St. Louis and fined $ 25. From that conviction he appeals to this court.

The charge is that on the 30th day of July, 1909, at Sidney street and Indiana avenue, in the city of St. Louis, he did carry and have in his possession and expose for sale milk having on analysis less than 8.5 per cent non-fatty solids, to-wit, 7.91 per cent -- said non-fatty solids being estimated by the difference between the total solids determined by evaporation and the butter fat determined gravimetrically by the Adams paper-coil process.

The ordinance reads:

"Sec. 501. No 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 shows on analysis not less than three per cent by weight of butter-fat, eight and five-tenths per cent solids not fat, and seven-tenths of one per cent ash, of which fifty per cent shall be insoluble in hot water. Provided, however, that in contested analyses of milk condemned, under this article, butter-fat shall be estimated gravimetrically by the Adams paper-coil process; total solids by evaporation, and non-fatty solids by difference between total solids and butter fat, and ash by weighing the residue after incineration of total solids at a dull-red heat until all the organic matter is destroyed. Any one violating any of the provisions of this section shall be deemed guilty of a misdemeanor and upon conviction thereof be punished by a fine of not less than twenty-five dollars nor more than one hundred dollars for each and every offense."

The facts: A city milk inspector on the date and at the place alleged took a sample of milk from defendant's wagon. The city chemist, Moody, analyzed it, testifying that it contained less than 8.5 per cent non-fatty solids, viz., 7.91 per cent, and that he estimated non-fatty solids by the difference between the total solids determined by evaporation and the butter-fat determined gravimetrically by the Adams paper-coil process. The city then offered in evidence section 501, supra, and rested.

Such motions were filed and overruled and exceptions saved below as properly bring here the only question for decision, viz.:

Is section 501, supra, void?

In a brief showing marked industry in research, the ordinance is attacked from several angles. We pass to the consideration of material propositions advanced, taking them to be:

First. The ordinance is void because in conflict with the milk standard fixed by the act of the General Assembly. [Laws 1909, p. 116.]

Second. Void because running counter to the policy of the State as evidenced by said act regulating the sale of dairy products.

Third . Void because it discriminates against non-residents of St. Louis and in favor of residents thereof.

Fourth. Void because passed without regard to the wholesomeness or adulteration...