Coca-Cola Bottling Co. v. Mosby

• Decision Date: 22 July 1921
• Docket Number: No. 22633.,22633.
• Citation: 289 Mo. 462,233 S.W. 446
• Parties: COCA-COLA BOTTLING CO. et al. v. MOSBY, State Beverage Inspector.
• Court: Missouri Supreme Court

233 S.W. 446

289 Mo. 462

COCA-COLA BOTTLING CO. et al. v. MOSBY, State Beverage Inspector.

No. 22633.

Supreme Court of Missouri, En Banc.

July 22, 1921.

Appeal from Circuit Court, Cole County; G. Slate, Judge.

Suit by the Coca-Cola Bottling Company and others against Thos. Speed Mosby, State Beverage Inspector. From judgment for defendant, plaintiffs appeal. Affirmed.

Phillips W. Moss, of St. Louis, for appellants.

Jesse W. Barrett, Atty. Gen., and Merrill E. Otis, of St. Joseph, for respondent.

WALKER, J.

This is a suit in equity, brought in the circuit court of Cole county, by certain incorporated companies engaged in the compounding and sale of what in common parlance, are termed "soft drinks." The purpose of the action is to restrain the State Beverage Inspector from enforcing the provisions of an act approved April 25, 1919 (Laws 1919, page 379), providing for the inspection of nonintoxicating carbonated beverages, and syrups, extracts, and flavors used in the preparation of same, requiring a monthly report of sales and the payment of fees by the manufacturers of those products, for inspection services and prescribing penalties for violations of the act. It is contended that the act is unconstitutional and hence void. Upon a hearing before the circuit court, there was a finding for the defendant, the injunction was denied, the petition dismissed, and an appeal perfected to this court.

Aside from the formal admission as to the corporate existence and the nature of the business of each of the plaintiffs, and the official character of the defendant, it was conceded in an agreed statement of facts that defendant had required plaintiffs to file monthly reports and pay fees upon their respective sales, based upon the rates fixed by said act; that during the period from April 25, 1919, to September 20, 1920, defendant had collected in fees from all sources under said act $360,054.85, of which sum $90,318.01 was received from bottlers of soda water and the remainder from manufacturers of other nonintoxieating beverages and from soda fountains; that the total expense of said defendant's office during the time stated was $08,084.51; that during said time, chemical and bacteriological analyses were made in the laboratory of said defendant, of samples of the beverages compounded by plaintiffs and others engaged in a like business; and, in addition, a personal inspection was made of the places where such beverages were manufactured or sold in this state, upon an average of about once per month; that the value of the products of these plaintiffs and the price at which they are sold is from 36 to 89 cents per gallon; that the value of the products of other manufacturers of like products is from 28 cents to $1 per gallon.

I. The contention of the plaintiffs is that this act is a revenue, rather than an inspection measure, and consequently void, and that the word "inspection," wherever used therein, is but a subterfuge to conceal the real purpose, and free the act from the restrictions of the Constitution, which if applied to a revenue measure, would render it inoperative. Mere words will not, of course, suffice to determine the character of a legislative act; they are but milestones measuring the distance and marking the way to the goal of true meaning in all journeys of interpretation. Despite the frequency, therefore, of the use of any particular words in an act which, if properly used, are indicative of its character, its meaning and purpose are to be determined by an application of the tests recognized by the canons of construction. Among these tests of more than minor importance and perhaps sufficient within themselves to solve the question confronting us, may be mentioned the language employed, the intention of the Legislature as indicated by that language and the object and purpose of the act when construed as a whole. Novel preparations of both foods and drinks are constantly increasing in quantity and variety, often alluring in name and uniformly, whether justly or not, emblasoned with the hallmark of merit by the ingenious advertiser; their distribution soon becomes widespread, their reputed merits familiar, and their consumption general. `Illustrative of this fact are the myriad forms of so-called breakfast foods, the nomenclature of which has well-nigh exhausted human fancy, and whose health-giving properties, measured by the modest claims of their makers, equal, if they do not excel, the magical effects of the waters of the padre's spring of San Joaquin, concerning the virtues of which Bret Harte charmingly invokes the aid of the Muse.

Another illustration more pertinent to the matter at issue is to be found in the carbonated waters and their concomitants now so extensively manufactured and generally used, that they no longer require the aid of printer's ink to promote their sale. Consisting simply of water charged with carbon dioxide, to which is added an acid to create effervescence, and flavored offense to simulate a fruit or herb whose parent stem was probably the alembic of a laboratory, and making no claim to merit other than the creation of a pleasant, but fleeting gustatory sensation, the extensive manufacture and general use of preparations of this character are akin to the remarkable. An English curate; after having met Lord Chesterfield, was asked what he thought of him. Re said he might be lacking in many virtues, but "he certainly left a pleasant taste in one's mouth." This at least may be said of what we familiarly call soda water and other soft drinks, which, sparkling like the vintages of Champagne and Moselle, tickle the palate, but here the simile ceases. These observations, casually considered, might seem to indicate a wandering afield. But not so. The fact that these and other preparations, especially those intended for food or drink, are so extensively made and so generally used, is the moving cause of legislation of the character here under review. In short, it is but another illustration of the exercise of the police power, inherent in the state as a sovereignty, needing no organic grant for its existence, and demanding legislative aid only to give it form and provide a procedure for its operation. Many attempts have been made to define this power, the most comprehensive of which perhaps is that of Judge Cooley. Q. v. Cooley's Con. Lira. (7th Ed.) p. 289. It is not necessary to quote it here on account of its length. It will answer our purpose to say that by means of this power the Legislature exercises supervision over matters involving the public welfare, and enforces the observance by each individual of the duties he owes to others and to the community at large. The motto of this state, that the will of the people is the supreme law, is one of the fundamental principles involved in the exercise of the police power. Another upon which the power to a large extent rests is the maxim that you must so use your own as to not injure the, rights of others. It is said that nearly every problem involved in the exercise of the police power finds its solution in the application of the principle embodied in this maxim. 6 R. C. L. p. 188, § 186; Sings v. Joliet, 237 Ill. 300, 86 N. E. 663, 22 L. R. A. (N. S.) 1128, 127 Am. St. Rep. 323; Karasek v. Peier, 22 Wash. 419, 81 Pac. 33, 50 L. It. A. 345. That inspection laws are within the sphere of the state's authority, in its exercise of the police power, is as clear as the power of Congress to establish regulations of commerce. Foster v. Master & Wardens of Port of New Orleans, 94 U. S. 246, 24 L. Ed. 122; New York v. Miln, 11 Pet. 102, 9 L. Ed. 648; Armour v. Augusta, 134 Ga. 178, 67 S. E. 417, 27 L. R. A. (N. S.) 676. This is true because inspection, especially of foods or drinks, concerns itself with the purity of the article inspected, and hence is promotive of health in prohibiting the use of deleterious products. In the restrictions which follow the enforcement of inspection laws, we discern the application of the maxim above referred to, viz., Sic utere tuo, etc., in that, regardless of the manner in which you use your own, whether it be as an individual or as a manufacturer producing commercially an article for sale, that use must be such as to not injure the user. In other words, a prohibition may be placed by law upon the making and sale of any article deleterious to the user, as in the case of impure articles of food or drink. There remains, therefore, nothing upon which the contention can rest that laws of the nature of that under review may not he enacted and enforced, subject, of course, to such restrictions as the Constitution has placed upon laws generally, as to reasonableness within which is included all of the objections urged by the plaintiffs against the validity of this enactment.

II. Preliminary to the consideration of these constitutional questions, let us examine the language of the act to determine therefrom its character, viz. whether it is to be classified as an inspection or a revenue measure. It provides for and defines the duties of an official who is charged with the execution of its provisions; it prescribes specifically the products to be inspected; it prohibits the manufacture and sale of such products if not pure and wholesome; it requires samples of such products to be submitted for inspection by manufacturers, and requires sellers of products not manufactured in this state to file affidavits of the manufacturers with the inspector that he may determine the purity of the products; and requires the inspection of such products; it prescribes the fees for inspection; directs the keeping of records of the inspector's work, of the fees collected by him, and how reported and accounted for. Labels showing the nature of the beverage, and that it has been inspected as to its character and purity, are required to be placed upon all packages of same; a penalty being prescribed for a violation of this duty....