State ex rel. Cosson v. Shores-Mueller Co.

• Decision Date: 12 January 1918
• Docket Number: 31774
• Citation: 166 N.W. 62,182 Iowa 501
• Parties: STATE OF IOWA ex rel. GEORGE COSSON, Appellee, v. SHORES MUELLER COMPANY, Appellant
• Court: Iowa Supreme Court

166 N.W. 62

182 Iowa 501

STATE OF IOWA ex rel. GEORGE COSSON, Appellee, v. SHORES MUELLER COMPANY, Appellant

No. 31774

Supreme Court of Iowa, Des Moines

January 12, 1918

Appeal from Bremer District Court.--M. F. EDWARDS, Judge.

SUIT in equity in behalf of the state of Iowa against the defendant to recover $ 100 per year for the years 1910, 1911, 1912 1913, and 1914, as alleged license or inspection fees due from the defendant to the state of Iowa, under the provisions of Section 5077-a10, Code Supplement, 1907. There was a demurrer to the petition, which was overruled. The defendant electing to stand upon his demurrer, judgment was entered accordingly. The defendant appeals.

Reversed.

F. E Farwell, F. P. Hagemann, and Ralph A. Dunkelberg, for appellant.

George Cosson, Attorney General, and Henry E. Sampson, Assistant Attorney General, for appellee.

EVANS J. PRESTON, C. J., LADD, GAYNOR, SALINGER, and STEVENS, JJ., concur.

OPINION

EVANS, J.

I.

The allegations of the petition include the following: "That the defendant is an Iowa corporation, organized in 1906, with its principal place of business at Tripoli, Iowa, and since its organization has been engaged in the business of manufacturing, exposing for sale, offering for sale, and selling to the citizens of Iowa concentrated commercial feeding stuffs, as defined in Section 5077-a8 of the Supplement to the Code, 1907, in various forms and under different names and brands and for different animals.

"That the defendant has been, during each of the past five years, and still is, manufacturing, exposing for sale, offering for sale, and selling to the citizens of Iowa concentrated commercial feeding stuffs, as defined in Section 5077-a8 of the Supplement to the Code, 1907, as appears more particularly in the three following paragraphs.

"1. The defendant has, during each and all of the past five years, manufactured, exposed for sale, offered for sale, and sold to the citizens of Iowa, concentrated commercial feeding stuffs, as defined in Section 5077-a8 of the Supplement to the Code, 1907, under the name of the Shores-Stock Conditioner, the bulk of which preparation is made up of ground seeds of foxtail, black bindweed, black mustard chaff, wheat, bran, and starch grains. Common salt constitutes about twenty per cent of said preparation. Three or four drugs are present in slight quantities.

"2. The defendant has also, during each and all of the past five years, manufactured, exposed for sale, offered for sale, and sold to the citizens of Iowa, concentrated commercial feeding stuffs, as defined in Section 5077-a8 of the Supplement to the Code, 1907, under the name of the Shores Condition Powder, the bulk of which preparation consists of ground seeds of foxtail, black bindweed, black mustard, chaff, starch grains, and corn starch, colored with charcoal. About one fifth of said preparation consists of ordinary common salt. Two or three drugs are present in very slight quantities.

"3. The defendant has also, during each and all of the past five years, manufactured, exposed for sale, offered for sale, and sold to the citizens of Iowa concentrated commercial feeding stuffs, as defined in Section 5077-a8, Supplement to the Code, 1907, under the name of the Shores Hog Worm Powder, the bulk of which preparation consists of ground seeds of foxtail, black mustard, black bindweed, chaff, starch grains of corn and wheat, all colored with a small quantity of charcoal. Ordinary common salt constitutes over twenty per cent of said hog worm powder. There is also present in said mixture two or three drugs, in very small quantities.

"That the dairy and food commissioner of the state of Iowa, has, upon diverse occasions and from time to time during each of the past five years, analyzed and inspected the several forms of concentrated commercial feeding stuffs which the defendant has, during each of the past five years, been manufacturing, exposing for sale and selling to the citizens of Iowa, all as required by Chapter 13, Title XXIV, Supplement to the Code, 1907.

"That the defendant has failed and refused to pay to the state dairy and food commissioner of Iowa, on or before the 15th day of July of each year during the time its said company has been in business, the inspection fee of $ 100, required under Section 5077-a10 of the Supplement to the Code, 1907, or any part thereof, and that, by reason of such failure and refusal, there is now due the state of Iowa from the defendant herein the sum of $ 100 for the year 1910, the sum of $ 100 for the year 1911, the sum of $ 100 for the year 1912, the sum of $ 100 for the year 1913, and the sum of $ 100 for the year 1914, making an aggregate amount of $ 500 now due the state of Iowa from the defendant herein.

"That the state dairy and food commissioner has, from time to time during the past 5 years, and as the same became due, made demand upon said defendant for the payment of every such annual inspection fee, and has been unable to collect from said defendant said inspection fee or any part thereof. That the several annual inspection fees of $ 100 each, sought to be recovered from the defendant, are for a continuous period and for consecutive years, commencing with the year 1910 and extending to and including the year 1914, and due upon an open, current, and continuous transaction."

The demurrer challenged:

(1) The right of the plaintiff to maintain a civil action for the recovery of such fees.

(2) The constitutionality of the statute invoked.

The legislation under which the fees claimed are alleged to have accrued was enacted as Chapter 189 of the Acts of the Thirty-second General Assembly, and now appears as a part of Sections 5077-a6 to 5077-a24, inclusive.

Section 5077-a8 is as follows:

"The term concentrated commercial feeding stuffs, as used in this act, shall include alfalfa meals and feeds; dried beet refuse; ground beef or fish scraps; bean meals; dried blood brewers' grains, both wet and dry; cerealine feeds; cocoanut meals; corn feeds; corn and oat feeds; corn, oat and barley feeds; compounds under the name of corn and cob meals; corn bran; clover meal; cottonseed meal and feeds; germ feeds; distillers' grains; gluten meals; gluten feeds; hominy feeds; linseed meals; malt refuse; malt sprouts; meat meals; meat and bone meals; mixed feeds of all kinds; oil meals of all kinds; oat feeds; oat bran; oat flour; oat middlings; oat shorts; pea meals; poultry foods; rice bran; rice meal; rice polish; rye bran; rye middlings; rye shorts; starch feeds and starch factory by-products; tankage and packing house by-products; wheat bran; wheat middlings; wheat shorts; and low grade wheat flour; and all materials of similar nature used for domestic animals; also condimental stock foods; patented proprietary or trade-marked stock or poultry feeds claimed to possess medicinal or ...