City of St. Louis v. Ameln

• Decision Date: 07 June 1911
• Citation: 139 S.W. 429,235 Mo. 669
• Parties: CITY OF ST. LOUIS v. GEORGE AMELN, Appellant
• Court: Missouri Supreme Court

139 S.W. 429

235 Mo. 669

CITY OF ST. LOUIS v. GEORGE AMELN, 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) The ordinance expressly provides that it shall apply only to cases of "adulteration" not included within the "methods of adulteration prohibited by the Revised Code of St. Louis." Defendant is charged with mixing with or adding "water" to skimmed milk. Therefore, if there was at the beginning of this prosecution, in May, 1909, any provision of the Revised Code of St. Louis which expressly prohibited the adulteration of milk by mixing or adding "water" by name and providing a punishment therefor, then this prosecution must fall, as having been instituted and proceeded with under the wrong ordinance. The allegations of the complaint, and provisions of ordinance 24,297, and section 499 of the said Revised Code, both in evidence, show beyond doubt that the city has proceeded under the wrong ordinance; and this position is conclusive when all the evidence is taken into consideration. The particular mention of certain things in one statute will withdraw such things from the application of the general words of another statute which would otherwise embrace them. Gilkeson v Railroad, 222 Mo. 204; State ex rel. v. Slover, 134 Mo. 19; St. Louis v. Kaime, 180 Mo. 319; Poon v. Watson, 92 Mo.App. 96; Sutherland on Stat Const., sec. 217; Ruschenberg v. Railroad, 161 Mo. 70. (2) Ordinance 24297 is also invalid and ineffectual in its application to the adulteration of milk by the use of "water" for the reason that it is a general ordinance that by itself would include adulteration of milk with water, but there is another ordinance provision, section 555, Rev. Code 1907, which applies specially and particularly to adulteration of milk with "water," and, therefore, withholds such adulteration from the application of said general ordinance 24297, and said prosecution should have been under said section 555. (3) Ordinance 24297 being general, and including the adulteration of milk with "any substance or substances," and said sections 499 and 555 applying particularly to adulteration of milk with a specially named substance, "water," they are, necessarily, in conflict. Gilkeson v. Railroad, 222 Mo. 205; Ruschenberg v. Railroad, 161 Mo. 70. If so, then ordinance 24297 is invalid and ineffectual, for it does not repeal said prior sections, 499 and 555 in "express terms," as required by the Charter of St. Louis, article 3, sec. 28. (4) The complaint fails to set forth facts sufficient to constitute any cause of action against defendant, or a violation of any ordinance of the city of St. Louis, and especially ordinance 24297. In an action to recover a penalty for the violation of a by-law or ordinance, the complaint should state facts which make liability of the defendant distinctly to appear. Dillon, Mun. Corp. (4 Ed.), sec. 415 A; Beach on Pub. Corp., sec. 532. There are many cases where it is only necessary to charge the offense in the language of the ordinance or statute. But this rule only applies where the ordinance so clearly individuates and describes the offense in its very language, that defendant and the court can tell what the offense that he is to be tried for really is. Where the language of the ordinance does not do this, there must be further statements descriptive of the offense and alleging the illegal act committed. The offense described in the ordinance does not consist only of "water" being mixed with skimmed milk, but it must be mixed with it "so as to lower and depreciate its strength and quality." What "strength and quality"? Does it mean that which the milk had prior to the adding of the water? Or does it mean "strength and quality" as fixed by a standard provided by law or ordinance? Or does it mean "strength and quality" which it should have in the judgment of the chemist making the analysis? Whichever it may be, the allegations should be sufficient to inform the defendant and not leave it to be guessed at by him, the court or the lawyers. Said complaint is vague, uncertain and indefinite, and leaves defendant without any show of defending himself, except to swear that he added or mixed no "water." The allegation, "so as to lower and depreciate its strength and quality," is a mere conclusion and no statement of fact or information. Lippman v. City, 84 Ind. 276; Johnson v. City, 48 Kan. 129; Fink v. City, 17 Wis. 27; State v. Smith, 66 Mo.App. 405; State v. Wilkson, 36 Mo.App. 380; State v. Goulding, 44 N.H. 284; Shivers v. Newton, 45 N. J. L. 477. (5) Said ordinance is null and void, as having been repealed by the Legislature, Laws 1909, pp. 118-119. Said ordinance is in conflict and inconsistent with Sec. 10 of said act. Said ordinance makes the mixing of "any substance or substances" with milk an adulteration. Whilst said section 10 of the statute makes the adding of any foreign substance "injurious to health" an adulteration. These provisions are in conflict. St. Louis v. Wortman, 213 Mo. 131.

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

(1) Section 499, Revised Code of St. Louis, does not prohibit the offense here charged, and the complaint was properly based on ordinance 24297, which does. (2) Section 555 was not offered in evidence and will not be judicially noticed. St. Louis v. Liessing, 190 Mo. 49. The complaint could not have been based on Sec. 555 because it does not prohibit the offense in question. (3) Neither Sec. 499 nor Sec. 555 is in conflict with ordinance 24297. St. Louis v. Klausmeier, 213 Mo. 131. (4) The complaint is sufficient because it describes the offense in the language of the ordinance. St. Louis v. Weitzel, 130 Mo. 600; St. Louis v. Knox, 74 Mo. 80; Louisiana v. Anderson, 100 Mo.App. 341; Springfield v. Ford, 40 Mo.App. 586; St. Louis v. Liessing, 190 Mo. 464; St. Louis v. Bippen, 201 Mo. 528. (5) The act of 1909 prohibits adulteration of milk, and the ordinance properly defines it. Hence there is no conflict. Webster's Int. Dict., "Adulterate; debase"; 1 Am. and Eng. Ency. Law, 738; 1 Bouvier's Law Dict., "Adulterate;" St. Louis v. Klausmeier, 213 Mo. 127. Another statute defines adulteration and defines it in the language of the ordinance. Laws 1907, p. 239, sec. 4, cl. 1. There is no conflict between the statute and the ordinance in question, and the case of St. Louis v. Wortman is not applicable. Laws 1905, p. 133, sec. 5; Laws 1907, p. 239, sec. 4, cl. 1; Laws 1909, p. 118, sec. 10; St. Louis v. Wortman, 213 Mo. 148.

LAMM J. Valliant, C. J., dissents.

OPINION

In Banc.

LAMM, J.

Summoned and found guilty in the first district police court of St. Louis on the complaint of the city for violating a milk ordinance, defendant took an intermediate appeal to the court of criminal correction. Found guilty there and fined $ 25, he, in apt time and on due steps, appeals here.

The material record follows:

The complaint reads:

"George Ameln, to the City of St. Louis, Dr.

"To One Hundred Dollars for violation of an ordinance of said city.

"Entitled: An ordinance to prohibit the sale of milk and cream which are adulterated or misbranded within the meaning of this ordinance and prescribing penalties for violation thereof. Being ordinance No. 24297, approved March 26, 1909. In this, to-wit: In the city of St. Louis and State of Missouri, on the 22nd day of April, 1909, and on divers other days and times prior thereto, the said George Ameln did then and there have in his possession with intent to sell and offer and expose for sale at alley near Texas and Shenandoah avenue in said city of St. Louis, skimmed milk, which said skimmed milk was adulterated in that a substance to-wit, water, had been mixed with it so as to lower and depreciate its strength and quality, contrary to the ordinance in such case made and provided, on information of Thomas A. Buckland, city chemist."

Omitting (as immaterial) title, ordaining clause and sections 3, 4 and 5, ordinance 24297 reads:

"Section One. No person or persons, firm or association of persons, company or corporation shall, within the city of St. Louis, sell, offer or expose for sale, or have in his or its possession, with intent to sell, any milk or cream which is adulterated or misbranded within the meaning of this ordinance, or cause or procure the same to be done by others.

"Section Two. In addition to other methods of adulteration prohibited by the Revised Code of St. Louis, milk or cream shall be deemed to be adulterated, First, If any substance or substances have been mixed with it so as to lower or depreciate or injuriously affect the strength, quality or purity. Second. If any substance or substances have been substituted wholly or in part for the same. Third. If it is mixed or colored in a manner whereby damage or inferiority is concealed, or if by any means it is made to appear to be better or of greater value than it really is."

As pertinent to certain of his propositions, defendant read into the record sections 499 and 505 of the Revised Code of St. Louis, annotated by Woerner, 1907, viz.:

"Sec. 499. Adulteration, Etc. Misdemeanor -- Penalty -- Exceptions. Any person who shall, by himself, or by his servant, agent or employee, adulterate milk or cream, or change it in any respect by the addition of water, skimmed milk, or of any foreign substance, or by the removal of any constituent, with a view of selling or offering the same for sale or exchange, or shall deliver same to a purchaser, otherwise than with its due proportion of each of its natural components, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be fined not less than...