State ex Inf. McKittrick v. Carolene Products

• Decision Date: 09 November 1940
• Docket Number: No. 36893.,36893.
• Parties: STATE OF MISSOURI upon the information of ROY McKITTRICK, Attorney General, Relator, v. CAROLENE PRODUCTS COMPANY, a Corporation.
• Court: Missouri Supreme Court

144 S.W.2d 153

STATE OF MISSOURI upon the information of ROY McKITTRICK, Attorney General, Relator, v. CAROLENE PRODUCTS COMPANY, a Corporation.

No. 36893.

Supreme Court of Missouri.

Court en Banc, November 9, 1940.

Quo Warranto.

OUSTER DENIED, PROCEEDING DISMISSED.

Roy McKittrick, Attorney General, Max Wasserman, Robert L. Hyder and Tyre W. Burton, Assistant Attorneys General, for relator; J.R. Baker, special counsel.

(1) The passage and approval of House Bill 652 (Secs. 12408-12412, inclusive) did not repeal the provisions of Senate Bill 338, (Secs. 12413, 12415), because (a) Repeals by implication are not favored. State ex rel. Wells v. Walker, 326 Mo. 1233, 34 S.W. (2d) 124; State ex rel. McDowell v. Smith, 334 Mo. 653, 67 S.W. (2d) 50; State ex rel. St. Louis Police Assn. v. Igoe, 340 Mo. 1166, 107 S.W. (2d) 929. (b) The two acts are not repugnant to each other and for a later statute to operate as a repeal by implication of an earlier one, there must be such manifest and total repugnance that the two cannot stand together. State ex rel. Peck Co. v. Brown, 340 Mo. 1189, 105 S.W. (2d) 909; State ex rel. City of Springfield v. Smith, 125 S.W. (2d) 883. (c) The manifest clerical error in what is now Section 12412 where the word "not" is omitted after the word "shall" in the following clause: "except that penalty shall be enforced for any such violation occurring within ninety days after this act becomes law," does not render the statute inoperative. It has long been the rule in this State that the meaning of words may be limited, restricted, or expanded by construction of the courts, when it becomes necessary in order to make the law harmonize with reason and properly express what was in fact intended by the lawmakers. To accomplish this purpose, words omitted may be read into the statute, and for the same reason, a word, phrase, or sentence may be read out of the statute. Lewis Sutherland Statutory Construction (2 Ed.), sec. 382; State ex rel. v. King, 44 Mo. 238; State ex rel. v. Sheehan, 269 Mo. 421, 190 S.W. 864; Stack v. General Baking Co., 283 Mo. 396, 223 S.W. 89; St. Louis v. Christian Bros. College, 257 Mo. 541, 165 S.W. 1057. (2) Neither the provisions of House Bill 652 nor Senate Bill 338, Laws 1923, pages 124 and 229, respectively, being now Sections 12408 to 12415, inclusive, Revised Statutes 1929, are invalid because the provisions of Section 28 of Article IV of the Missouri Constitution are violated when the following well recognized principles for ruling this question are considered: (a) Statutes are presumed to be constitutional and the burden is upon respondent to show beyond a reasonable doubt that they are unconstitutional. State v. Shelby, 333 Mo. 1036, 64 S.W. (2d) 269; Thomas v. Buchanan County, 330 Mo. 627, 51 S.W. (2d) 95. (b) This constitutional provision should be liberally construed. Young v. Greene County, 342 Mo. 1105, 119 S.W. (2d) 369. (c) Subject of act is single when all provisions relate to same subject, have natural connection therewith, and are incidents or means of accomplishing it. Hann v. Fitzgerald, 342 Mo. 1166, 119 S.W. (2d) 808; Massey-Harris Harvester Co. v. Federal Reserve Bank of K.C., 340 Mo. 1113, 104 S.W. (2d) 385. (d) Title which indicates character of act and its proper classification, and where neither public nor Legislature would likely have been misled regarding contents of act, is sufficient. Wilhite v. Rathburn, 332 Mo. 1208, 61 S.W. (2d) 708. (e) Where title to bill includes particulars which are not restrictive of general purpose of bill as set forth in title, but merely descriptive of some of the instrumentalities to be employed in effectuating general purpose of bill, bill may contain provisions germane to and within scope of its general purpose as declared in its title although not set forth in particulars expressed in title, and not out of harmony with them. Graves v. Purcell, 85 S.W. (2d) 543, 337 Mo. 574; State v. Wipke, 133 S.W. (2d) 358. (f) Where title of act expressly states it repeals prior act, title of original act must be considered in ruling the question involved. State ex rel. v. Calvird, 338 Mo. 601, 92 S.W. (2d) 184; Sherrill v. Brantley, 334 Mo. 497, 66 S.W. (2d) 529; State ex rel. v. Gideon, 277 Mo. 356, 210 S.W. 358. (g) After the lapse of many years during which an act has been acted upon as a valid law, objections to its validity on this ground will not be considered. Goodner v. Mosher, 314 Mo. 151, 282 S.W. 698. (h) Under this section each case must be decided on its own peculiar facts. Witzman v. Ry. Co., 131 Mo. 612, 33 S.W. 181. (3) The statutes under consideration do not violate the following provisions of the Missouri Constitution: Art. II, secs. 4, 30, Art. IV, subsec. 26, 32, sec. 53; Poole & Creber Market Co. v. Breshears, 125 S.W. (2d) 23. (4) The statutes under consideration do not violate the Fourteenth Amendment to the Constitution of the United States. (5) The long established rule in Missouri is that the constitutionality or unconstitutionality of a statute is not a question of fact to be determined by the introduction of evidence. State v. Rich, 20 Mo. 396; State v. Cantwell, 179 Mo. 245. (6) The questions in issue in this case are now res adjudicata contrary to the position taken by respondent. Each and every issue raised in this case was raised or could have been raised in the case of Poole & Creber Market Co. v. Breshears, 125 S.W. (2d) 23. Powell v. Joplin, 335 Mo. 562, 73 S.W. (2d) 408; State ex rel. v. Homer, 249 Mo. 76; Leahy v. Mercantile Trust Co., 296 Mo. 561, 247 S.W. 396. (7) Quo warranto is the proper remedy where a corporation persistently violates the laws of this State, abuses or perverts its charter, or obtains charter by fraud. The remedy adjudged is governed by sound judgment and discretion of the court. State ex inf. Miller v. St. Louis Union Trust Co., 335 Mo. 845, 74 S.W. (2d) 348; State ex rel. McKittrick v. Dudley & Co., 340 Mo. 852, 102 S.W. (2d) 895; State ex rel. Barrett v. First Nat. Bank, 297 Mo. 397, 249 S.W. 619; State ex inf. Hadley v. Delmar Jockey Club, 200 Mo. 34, 92 S.W. 185.

Clark, Boggs, Peterson & Becker, Howard B. Lang, Jr., and John C. Grover for respondent; Howard C. Knotts of counsel.

(1) The court should examine the facts in determining the constitutionality of the statutes under consideration. Where the existence of a rational basis for legislation depends upon facts beyond the sphere of judicial notice, such facts should be made the subject of judicial inquiry. State v. Rich, 20 Mo. 396; State v. Cantwell, 179 Mo. 245, 78 S.W. 569; United States v. Carolene Products Co., 304 U.S. 144, 58 Sup. Ct. 778, 82 L. Ed. 1234; Carolene Products Co. v. Thomson, 276 Mich. 172, 276 N.W. 608; Borden's Farm Products Co. v. Baldwin, 293 U.S. 194, 55 Sup. Ct. 187, 79 L. Ed. 281; Nashville, C. & St. L. Ry. Co. v. Walters, 55 Sup. Ct. 486, 294 U.S. 405, 79 L. Ed. 949; Chastleton Corp. v. Sinclair, 264 U.S. 543, 44 Sup. Ct. 405, 68 L. Ed. 841; Polk Co. v. Glover, 305 U.S. 5, 59 Sup. Ct. 15, 83 L. Ed. 6; Smith v. Texas, 233 U.S. 630, 34 Sup. Ct. 681, 58 L. Ed. 1129; Weaver v. Palmer Brothers Co., 270 U.S. 402, 46 Sup. Ct. 320, 70 L. Ed. 654; Abie State Bank v. Weaver, 282 U.S. 765, 51 Sup. Ct. 352, 75 L. Ed. 690; Poole & Creber Market Co. v. Breshears, 343 Mo. 1133, 125 S.W. (2d) 23; Mo. Pac. Railroad Co. v. Norwood, 283 U.S. 249, 51 Sup. Ct. 458, 75 L. Ed. 1010. (2) Sections 12408 and 12413, Revised Statutes 1929, the "broad sections," as applied to respondent's products, are unconstitutional in prohibiting the sale of the same in violation of Section 30 of Article II of the Constitution of Missouri and the Fourteenth Amendment to the Constitution of the United States, because: The Legislature has no constitutional authority to prohibit the manufacture and sale of wholesome foods when fairly sold, without fraud, upon their merits, merely because such foods may be used as a substitute for other foods. People v. Marx, 99 N.Y. 377; State v. Layton, 160 Mo. 491. (a) The statutes as applied to respondent's products are not sustainable as necessary to protect the public health. Hutchinson Ice Cream Co. v. Iowa, 242 U.S. 153, 37 Sup. Ct. 28, 61 L. Ed. 217; Hebe Co. v. Shaw, 248 U.S. 297, 39 Sup. Ct. 125, 63 L. Ed. 255; Poole & Creber Market Co. v. Breshears, 343 Mo. 1133, 125 S.W. (2d) 23; State ex rel. Carnation Milk Products Co. v. Emery, 178 Wis. 147, 189 N.W. 564; Weaver v. Palmer Bros. Co., 270 U.S. 402, 46 Sup. Ct. 320, 70 L. Ed. 654; Carolene Products Co. v. Thomson, 276 Mich. 172, 267 N.W. 608; Fourteenth Amend., U.S. Const., Secs. 4, 30, of Art. II, Mo. Const.; Ex parte Alexander, 128 Cal. App. 651, 18 Pac. (2d) 410. (b) The statutes as applied to respondent's products are not sustainable as a preventive of fraud. Poole & Creber Market Co. v. Breshears, 343 Mo. 1133, 125 S.W. (2d) 23; Plumley v. Massachusetts, 155 U.S. 461, 15 Sup. Ct. 154, 39 L. Ed. 223; Hebe Co. v. Shaw, 248 U.S. 297, 39 Sup. Ct. 125, 63 L. Ed. 255; United States v. Carolene Products Co., 304 U.S. 142, 58 Sup. Ct. 778, 82 L. Ed. 1234; Carolene Products Co. v. Evaporated Milk Assn., 93 Fed. (2d) 202; Carolene Products Co. v. Wallace, 27 Fed. Supp. 110; Carolene Products Co. v. Harter, 329 Pa. 49, 197 Atl. 627, 119 A.L.R. 325; Capital City Dairy Co. v. Ohio ex rel. Atty. Gen., 183 U.S. 238, 221 Sup. Ct. 120, 46 L. Ed. 171; State v. Addington, 12 Mo. App. 214, 77 Mo. 110; State v. Bockstruck, 136 Mo. 335; State ex rel. Carnation Milk Products Co. v. Emery, 178 Wis. 147, 189 N.W. 564; Powell v. Commonwealth of Penn., 127 U.S. 678, 8 Sup. Ct. 882, 32 L. Ed. 253; Tiedeman, Limitations of Police Powers, p. 296; State v. Layton, 160 Mo. 491; People v. Marx, 99 N.Y. 377. (c) Absolute prohibition of the manufacture and sale of a product is unconstitutional if regulation will protect the public from the anticipated injury. Here, regulation will suffice to protect the public because respondent's products are not...