Isenhour v. State

• Citation: 157 Ind. 517, 62 N.E. 40
• Case Date: December 11, 1901
• Court: Supreme Court of Indiana

157 Ind. 517
62 N.E. 40

ISENHOUR
v.
STATE.

Supreme Court of Indiana.

Dec. 11, 1901.

Appeal from criminal court, Marion county; Fremont Alford, Judge.

Luther J. Isenhour was convicted of a violation of the pure food law (Acts 1899, p. 189), and he appeals. Reversed.

Roscoe A. Hawkins and Horace E. Smith, for appellant. W. L. Taylor, Atty. Gen., Merrill Moores, and C. C. Hadley, for the State.

[62 N.E. 41]

HADLEY, J.

Appellant was convicted on an affidavit charging him with “unlawfully and knowingly having in his possession, with intent to sell the same, a certain substance intended for food, to wit, one pint of milk, then and there adulterated with a certain substance injurious to health, to wit, formaldehyde.” Appellant's motions to quash the affidavit and for a new trial were overruled. Section 2 of the act of 1899, commonly known as the “Pure Food Law” (Acts 1899, p. 189), in part provides: “Whoever fraudulently adulterates, for the purpose of sale, bread or other substance intended for food with any substance injurious to health, or knowingly barters, gives away, sells, or has in his possession with intent to sell, any substance injurious to health, shall be fined in any sum not exceeding one hundred dollars.”

1. It is insisted that this act violates the following provisions of the state constitution: First. Section 21, art. 1., which provides that “no man's property shall be taken by law without just compensation.” Second. Section 25, art. 1, which provides that “no law shall be passed, the taking effect of which shall be made to depend upon any authority except as provided in the constitution.” Third. Section 19, art. 4, which provides that “every act shall embrace but one subject and matters properly connected therewith; which subject shall be embraced in the title.”

First. From the beginning it should be borne in mind that appellant is charged with having in his possession adulterated milk, with intent to sell the same, in violation of law. This, and nothing more. He has the right, therefore, to call upon this court to review his conviction upon this particular charge, but he has no right to ask us to decide questions under the pure food law that do not arise in his case, and in which he has no special interest. Henderson v. State, 137 Ind. 552, 564, 36 N. E. 257, 24 L. R. A. 469;Fesler v. Brayton, 145 Ind. 71, 84, 44 N. E. 37, 32 L. R. A. 578; Railroad Co. v. Montgomery, 152 Ind. 1, 13, 49 N. E. 582, 71 Am. St. Rep. 301. It is not disclosed by the affidavit that appellant had any property taken at all, or how the evidence against him was procured, nor is it necessary to the validity of the affidavit that it should be so disclosed; neither can it be assumed that it was procured by a sample of milk obtained in the way pointed out by the statute, as that method does not exclude competent evidence from any other proper source. Appellant is not being tried for resisting a seizure of his property, and it is therefore immaterial in this case whether the act of 1899 provides for the taking of property without just compensation. The only constitutional question that concerns the appellant is whether the penal provision of the act of 1899, of which he has been convicted, has been enacted in the observance of constitutional requirements.

Second. Does the act violate section 25, art. 1, providing that “no law shall be passed the taking effect of which shall be made to depend upon any authority except as provided in the constitution.” The pure food law provides that “within 90 days after the passage or this act the board of health shall adopt such measures as may be necessary to facilitate the enforcement thereof, and shall prepare rules and ordinances where and when necessary regulating minimum standards of foods and drugs, defining specific adulterations, and declaring the proper methods of collecting and examining drugs and articles of food.” From this provision it is argued that the law could not become effective and “could not be violated until the state board met, within 90 days, prepared its rules, and passed its ordinances regulating minimum standards, defining adulterations, and declaring the methods of collecting and examining foods,” and, in substance, an attempted delegation of legislative power to the state board of health. The obvious purpose of the provision last quoted was to commit to a body of learned and scientific experts the duty of preparing such rules and prescribing such tests as may, from time to time, in the enforcement of the law, be found necessary in determining what combination of substances are injurious to health, and to what extent, if at all, admixtures or deteriorations of foods and drugs may go without injuriously affecting the health of the consumer. That which is required of the state board of health has no semblance to legislation. It merely relates to a procedure in the law's execution for a reliable and uniform ascertainment of the subjects upon which the law is intended to operate. Nor does the duty imposed upon the state board in any sense postpone the taking effect of the law until the duty is performed. Performance can never be said to be complete. The duty is continuing, and will arise at any time when a new food or drug is put forward. Besides, it is paradoxical to say that the law is not effective until the state board have acted, when it is certain that without the law they could not act at all. And to say that their act puts the law in operation is to excuse them from acting, because no law requires it. This class of legislation emanates from an exercise of the police power of the state for the protection of the public health. The power of the legislature, and its right to determine for itself when an emergency for such legislation exists, and the means and instrumentalities necessary to accomplish the end in view, is no longer a doubtful question. The particular character of the subject, embodying as it does considerations of sanitary science, is such as to require for just legal control something more than legislative

[62 N.E. 42]

wisdom to accurately designate the subjects and instances intended to be affected. The classification of these subjects, and the prescribing of rules by which they may be determined by a qualified agent, is not legislation, but merely the exercise of administrative power. The law itself is perfect and effective in all its parts. In respect to the matters to be determined by the state board of health in its execution it awaits the performance of these duties. When performed, the law operates upon the things done by the board. While unperformed, the law remains ready to be applied whenever the preliminary conditions exist. It is said in Blue v. Beach, 155 Ind. 121, 56 N. E. 89, on page 130, 155 Ind., and page 92, 56 N. E.: “In order to secure and promote the public health, the state creates boards of health as an instrumentality or agency for that purpose, and invests them with the power to adopt ordinances, by-laws, rules, and regulations necessary to secure the objects of their organization. While it is true that the character or nature of such boards is administrative only, still the powers conferred upon them by the legislature, in view of the great public interest confided to them, have always received from the courts a liberal construction, and the right of the legislature to confer upon them the power to make reasonable rules, by-laws, and regulations is generally recognized by the authorities.” See, also, Overshiner v. State, 156 Ind. 187, 59 N. E. 468, 51 L. R. A. 748;State v. Board of Pharmacy, 155 Ind. 414, 58 N. E. 531;Groesch v. State, 42 Ind. 547, 556; Railroad Co. v. Geiger, 34 Ind. 185, 220.

Third. Is the title of the act multifarious, and in conflict with the constitutional requirement that “every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title? The title of the act is as follows: “An act forbidding the manufacture, sale or offering for sale of any adulterated foods or drugs, defining foods and drugs, stating wherein adulterations of foods and drugs consist and defining the duties of the state board of health in relation to foods and drugs, their inspection, purity, adulteration, declaring penalities for the violation of the laws, rules and ordinances concerning foods and drugs, also liquors used or intended for drink, repealing acts in conflict therewith.” It must be conceded that this title is unskillfully drawn, and contains much unnecessary verbiage. This, however, does not necessarily make it bad. It is contended that there are three distinct subjects expressed: (1) Adulteration of foods; (2) adulteration of drugs; and (3) adulteration of liquors used or intended for drink. It has been many times declared by this court that in deciding questions as to the constitutionality of a statute the...