Sta-Whip Sales Co. v. City of St. Louis, STA-WHIP

• Decision Date: 09 December 1957
• Docket Number: No. 45723,No. 2,STA-WHIP,45723,2
• Citation: 307 S.W.2d 495
• Parties: SALES COMPANY, a corporation, Appellant, v. The CITY OF ST. LOUIS, a municipal corporation; Raymond R. Tucker, Mayor of the City of St. Louis; Dr. J. Earl Smith, Health Commissioner of the City of St. Louis; I. A. Long, President of the Board of Police of the City of St. Louis, and John M. Dalton, Attorney General of the State of Missouri, Respondents
• Court: Missouri Supreme Court

Page 495

307 S.W.2d 495

STA-WHIP SALES COMPANY, a corporation, Appellant, v. The CITY OF ST. LOUIS, a municipal corporation; Raymond R.

Tucker, Mayor of the City of St. Louis; Dr. J. Earl Smith,

Health Commissioner of the City of St. Louis; I. A. Long,

President of the Board of Police of the City of St. Louis,

and John M. Dalton, Attorney General of the State of

Missouri, Respondents.

No. 45723.

Supreme Court of Missouri, Division No. 2.

Dec. 9, 1957.

Ray T. Dreher, St. Louis, for plaintiff-appellant.

James V. Frank, City Counselor, William B. Anderson, Asst. City Counselor, St. Louis, for respondents, The City of St. Louis, a Municipal Corp., Raymond R. Tucker, Mayor of City of St. Louis; Dr. J. Earl Smith, Health Comr. of City of St. Louis; I. A. Long, President of Bd. of Police Comrs. of the City of St. Louis.

LEEDY, Judge.

Action under the Declaratory Judgment Act (Secs. 527.010-527.140, RSMo and VAMS) for judgment declaring the milk control ordinance of the City of St. Louis (No. 47605) to be unconstitutional and void, 'and to declare the plaintiff's rights, status and other legal relations arising under the purported ordinance aforesaid * * *.' Separate motions to dismiss were filed respectively by the Attorney General on the one hand, and by all other defendants, in their own behalf, alleging, among other grounds, the failure or want of the petition to disclose an existing justiciable controversy between the parties. Both motions were sustained, judgment of dismissal thereon was rendered, and plaintiff appealed. The Attorney General has filed no brief, and the other respondents seek to sustain the propriety of the dismissal only on the ground just referred to, so that becomes the first question for determination. The petition is by no means as full and explicit as good pleading would seem to require, but we have nevertheless concluded that it sufficiently appears from its allegations that a justiciable controversy between the parties exists, and did at the time of the institution of this action.

The ordinance in question imposes extensive regulations upon the production, distribution and sale of milk and milk products within the City of St. Louis and its police jurisdiction. Its provisions insofar as here pertinent are thus summarized in appellant's statement and to which respondents accede:

'Section 1 of the Ordinance defines various types of milk and cream; paragraph K of Section 1 states that 'Milk products shall be taken to mean and to include * * * any other product made by the addition of any substance to milk, or to any of these milk products, and used for similar purposes, and designated as a milk product by the health officer.'

'Section 2 of the Ordinance provides that it shall be unlawful to produce, sell, offer or expose for sale, or have in possession with intent to sell, any milk or milk product which is ungraded.

'Section 3 provides that it shall be unlawful for any person to sell or offer for sale any milk or milk product defined in the Ordinance, who does not possess a permit from the Board of Public Service so to do. Said section further provides that the only persons who shall be entitled to receive and retain such a permit are those who comply with the requirements of this Ordinance.

'The Section then proceeds to set forth the information which must be supplied to the Board in making application for a permit. In connection with the issuance of a permit, paragraph 8 of Section 3 states:

"Where the substance or substances added to the milk or milk product so as to constitute the product a milk product within the meaning of this Chapter cannot be graded by reason of the absence of recognized, approved grading standards and the Health Commissioner so finds no permit for the sale thereof shall be issued.'

'Section 7 is entitled 'The Grading of Milk and Milk Products,' and provides the standards to be used in determining the grades of certain milks therein set forth. The introductory paragraph of this section states:

"* * * Grades shall be based upon the following standards, the grading of milk products being identical with the grading of milk except that the bacterial-count standards shall be doubled in the case of sweet (not cultured) creams and half and half, and shall be omitted in the case of cultured milk and milk products. Vitamin D milk shall be only of grade A pasteurized or certified quality. The grade of a milk product shall be that of the lowest grade of milk or milk product used in its preparation.'

'Section 8 of the ordinance provides that the only milk or milk products which may be sold are those which have been approved as certified or Grade A pasteurized. The section then provides for a delayed enforcement of the Ordinance with respect to certain milk products, and reads as follows:

"* * * Provided, that those milk products which are being lawfully sold prior to the passage of this ordinance without being graded shall be sold without any grade until 24 months after the passage of this ordinance."

It was during this permissive period of 24 months that plaintiff filed this action.

The petition assails the...