Poole & Creber Market Co. v. Breshears

Decision Date21 February 1939
Docket NumberNo. 35244.,35244.
Citation125 S.W.2d 23
CourtMissouri Supreme Court
PartiesPOOLE & CREBER MARKET COMPANY, a Corporation, Appellant, v. J.C. BRESHEARS, Commissioner of Agriculture, ELLIOTT M. DAMPF, Prosecuting Attorney of Cole County, and Roy McKITTRICK, Attorney General of the State.

Appeal from Cole Circuit Court. Hon. Nike G. Sevier, Judge.


Cave & Hulen and George N. Murdock for appellant.

(1) The Legislature exceeded its constitutional power in enacting the statutes involved in that it is not a proper exercise of the police power. (a) The police power is limited to the performance of acts which interfere with the public health, safety, comfort, morals or welfare. People v. Carolene Prod. Co., 345 Ill. 166; United States v. Carolene Prod. Co., 7 Fed. Supp. 500; Lochner v. N.Y., 198 U.S. 56; Mugler v. Kansas, 123 U.S. 661; Freund on Police Power, sec. 143; State v. Redmond, 134 Wis. 89; Burns Baking Co. v. Bryan, 264 U.S. 513; Gillespie v. People, 188 Ill. 184; New State Ice Co. v. Liebmans, 42 Fed. (2d) 913; People v. Berrien, 124 Mich. 664; People v. Weiner, 271 Ill. 78. (b) Measures adopted under the police power must have some substantial relation to the protection of public health, safety or general welfare. Mugler v. Kansas, 123 U.S. 661; Holden v. Hardy, 169 U.S. 398; Lochner v. N.Y., 198 U.S. 62; Bailey v. People, 190 Ill. 38; Liggett v. Baldridge, 278 U.S. 105. (c) The Legislature has no power to prohibit the manufacture and sale of a known healthful article of food. People v. Biesicker, 169 N.Y. 53; People v. Price, 257 Ill. 594; People v. Marx, 99 N.Y. 377; Schollenberger v. Pa., 171 U.S. 1; People v. Zimmerman, 92 N.Y. Supp. 497; People v. Hawkins, 157 N.Y. 1; Carolene v. Thompson, 276 Mich. 172; Banning v. Carolene, 131 Neb. 429; Carolene v. McLaughlin, 365 Ill. 62. (2) The statute is special legislation and is violative of the Constitution of Missouri, because (a) The products are lawful under the general laws of the State. Bulletin 505, U.S. Dept. of Agriculture; Sec. 13022, Mo. Code of Laws; Art. IV, Sec. 53, Mo. Const.; Art. I, Sec. 4, Mo. Const.; Art. II, Sec. 30, Mo. Const.; Low v. Rees Ptg. Co., 41 Neb. 127, citing State v. Loomis, 22 S.W. 350; Randolph v. Wood, 49 N.J.L. 88; Meyer v. Nebraska, 262 U.S. 400; Haynes v. Lapeer, 201 Mich. 138; Connolly v. Union Sewer Pipe Co., 184 U.S. 560; Watson v. Maryland, 218 U.S. 179; Lochner v. New York, 270 U.S. 402. (b) The statute is an arbitrary and unreasonable classification depriving appellant of equal protection under the law. Smith v. Cahoon, 283 U.S. 565; United States v. Louisville G. & E. Co., 277 U.S. 38; State v. Empire Bottling Wks., 261 Mo. 305; Curvin v. Wallace, 19 Fed. Supp. 211; State v. Loomis, 22 S.W. 350; Rowan v. Pollock, 310 Mo. 27. (3) The conclusive presumption as to fraud and adulteration in the statute deprives appellant of its constitutional rights as to due process of law. People v. Rose, 207 Ill. 352; People v. Falk, 310 Ill. 282; People v. Love, 310 Ill. 558; Johnson v. Throdown, 324 Ill. 543; Winter v. Barrett, 352 Ill. 441; Heiner v. Donnan, 285 U.S. 327; Newland v. Marsh, 19 Ill. 376; C., M. & St. P. Ry. v. Minnesota, 134 U.S. 418; Hovey v. Elliott, 167 U.S. 417; State v. Julow, cited in Gillespie v. People, 188 Ill. 184; Russell v. Beattie, 16 Mo. App. 131; Householder v. Kansas, 83 Mo. 488; Dorrance v. Dorrance, 242 Mo. 625; Clark v. Mitchell, 64 Mo. 564. (4) Appellant is entitled to injunctive relief. Truax v. Raich, 239 U.S. 33; Ex parte Young, 209 U.S. 123; Tyson v. Banton, 273 U.S. 418.

Roy McKittrick, Attorney General, and Franklin E. Reagan, Assistant Attorney General, for respondent.

(1) Appellant's commerce in filled milk is illegal. (a) It is unlawful for any person to manufacture, sell or exchange any filled milk. Secs. 12408, 12409, 12411, 12412, 12413, 12415, R.S. 1929. (b) The filled milk statutes involved are constitutional. The statutes involved are presumed constitutional and the burden is upon appellant to show beyond reasonable doubt that they are constitutional. State ex rel. Rodes v. Warner, 197 Mo. 650, 94 S.W. 962; State ex rel. Meals v. Hackmann, 334 Mo. 503, 217 S.W. 271; State v. Shelby, 333 Mo. 1036, 64 S.W. (2d) 269; St. Louis v. Liessing, 190 Mo. 464, 89 S.W. 611; Commonwealth v. Pflaum, 236 Pa. 294; Thomas v. Buchanan County, 330 Mo. 627, 51 S.W. (2d) 95; Hebe v. Shaw, 248 U.S. 297, 39 S.C. 125, 63 L.E. 255; Hebe Co. v. Calvert, 246 Fed. 711. (c) The statutes involved are lawful exercises of the State police power. State v. Addington, 77 Mo. 110, 6 S.W. 471; Plumley v. Massachusetts, 155 U.S. 461, 15 S.C. 154, 39 L.E. 223; Powell v. Commonwealth, 114 Pa. 265; State v. Layton, 160 Mo. 474, 61 S.W. 171; Commonwealth v. Powell, 127 U.S. 678, 8 S.C. 993, 32 L. Ed. 253. (d) The statutes involved are not unreasonable or arbitrary and do not deprive anyone of property without due process of law. McLean v. Arkansas, 211 U.S. 539, 29 S.C. 206, 53 L. Ed. 315; Hamilton v. Kentucky Distilleries Co., 251 U.S. 146, 40 S.C. 106, 64 L. Ed. 194; Constitutional Law, Key 70 (1); Price v. Illinois, 238 U.S. 446, 35 S.C. 892, 59 L. Ed. 1400; Gant v. Oklahoma City, 289 U.S. 98, 53 S.C. 530, 77 L. Ed. 1058; Armour v. North Dakota, 240 U.S. 510, 36 S.C. 440, 60 L. Ed. 771; State v. Emery, 178 Wis. 147, 189 N.W. 564; St. Louis v. Ameln, 235 Mo. 669, 139 S.W. 429; Worden & Co. v. Cal. Fig Syrup Co., 187 U.S. 516, 23 S.C. 161, 47 L. Ed. 282; (e) The statutes involved do not contain a conclusive presumption as to fraud and adulteration and do not deprive citizens of their constitutional rights as to due process of the law. State ex rel. Attorney General v. Kansas City, 310 Mo. 542, 276 S.W. 389; State ex inf. Attorney General v. Long-Bell Lbr. Co., 321 Mo. 461, 12 S.W. (2d) 64; Morgan v. Jewell Const. Co., 230 Mo. App. 425, 91 S.W. (2d) 638; State v. Bockelman, 302 Mo. 572, 240 S.W. 209; Hall v. Sedalia, 232 Mo. 344, 134 S.W. 650; Householder v. City of Kansas, 83 Mo. 488, 14 S.W. 513; Nebbia v. New York, 291 U.S. 502, 54 S.C. 505, 78 L. Ed. 940; Home B. & L. Assn. v. Blaisdell, 290 U.S. 398, 54 S.C. 231, 78 L. Ed. 413; Carter v. Carter Coal Co. 298 U.S. 238, 56 S.C. 855, 80 L. Ed. 1160; Block v. Hirsh, 256 U.S. 135, 41 S.C. 458, 65 L. Ed. 865; Marcus Brown Co. v. Feldman, 256 U.S. 170, 41 S.C. 465, 65 L. Ed. 877; Chastleton Corp. v. Sinclair, 264 U.S. 543, 44 S.C. 405, 68 L. Ed. 841; State v. Jullow, 119 Mo. 163, 24 S.W. 774. (2) Filled milk decisions in other jurisdictions. United States. United States v. Carolene Products Co., 7 Fed. Supp. 500.


By bill in equity in the Circuit Court of Cole County appellant, plaintiff below sought to enjoin respondents from enforcing, as they were threatening to do, Sections 12408, 12409, 12411, 12412, 12413 and 12415, Revised Statutes 1929 (Mo. Stat. Ann., pp. 404, et seq.), relating to milk, cream, etc., on the ground that said sections of the statute are unconstitutional and void. Upon final hearing the circuit court found for the defendants, holding the statute valid, and dismissed plaintiff's bill. Plaintiff appealed. The question presented here is whether or not said statutory provisions are valid. If they are the judgment below was right.

Said Section 12408 reads:

"Sec. 12408. Fat or oil other than milk fat prohibited. — It shall be unlawful for any person, firm or corporation, by himself or itself, his or its agent or servant, or as the servant or as agent of another, to manufacture, sell or exchange, or have in possession with the intent to sell or exchange, any milk, cream, emulsified cream, skim milk, buttermilk, condensed or evaporated milk, powdered milk, condensed skim milk, or any of the fluid derivitives thereof, or any of them, to which has been added any fat or oil other than milk fat, either under the name of said product or articles of (or?) the derivitives thereof, or under any fictitious or trade name whatsoever."

Section 12409 reads:

"Sec. 12409. `Filled Milk' defined. — The term `filled milk' means any milk, cream or skim milk, whether or not condensed, evaporated, concentrated, powdered, dried or desiccated, to which has been added, or which has been blended or compounded with, any fat or oil other than milk fat, so that the resulting product is in imitation or semblance of milk, cream or skim milk, whether or not condensed, evaporated, concentrated, powdered, dried or desiccated, which has been melted or refined by heating, boiling or mixing. Provided that the above definition shall not include any distinctive proprietary food compound, not readily mistaken in tests for milk or cream, or for evaporated, condensed or powdered milk or cream: Provided, however, that such compound is prepared and designed for feeding infants and young children and customarily used on the order of a physician; is packed in individual cans containing not more than sixteen and one-half ounces and bearing the label in bold type, that the contents are to be used only for said purposes; is shipped in interstate or foreign commerce exclusively to physicians, wholesale or retail druggists, orphan asylums, child welfare associations, hospitals and similar institutions and generally distributed by them."

Section 12410 defines "emulsified cream." Section 12411 prohibits the use of "emulsified cream" (not here directly involved) and contains this declaration: "It is hereby declared that filled milk, and emulsified cream as herein defined, are adulterated articles of food injurious to the public health and its sale constitutes a fraud upon the public." Section 12412 provides penalties for violation of Sections 12407 to 12411, inclusive. (Sec. 12407 establishes standards for milk and is not challenged as invalid.)

Section 12413 is similar to Section 12408 except that it does not name emulsified cream. It was enacted at the same session of the General Assembly (1923) as Sections 12408 to 12412, inclusive, but in a separate bill,...

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