State v. Baskowitz

• Decision Date: 10 May 1913
• Citation: 156 S.W. 945,250 Mo. 82
• Parties: STATE v. BASKOWITZ.
• Court: Missouri Supreme Court

156 S.W. 945

250 Mo. 82

STATE v. BASKOWITZ.

Supreme Court of Missouri.

May 10, 1913.

1. CONSTITUTIONAL LAW (§ 48) — CONSTRUCTION IN FAVOR OF CONSTITUTIONALITY.

In determining whether a statute is constitutional, the courts should presume in favor of its validity and resolve all reasonable doubts in its favor.

2. CONSTITUTIONAL LAW (§ 42) — PARTY ENTITLED TO RAISE QUESTIONS — PARTY CONVICTED.

Defendant, convicted of the offense dealt with in Rev. St. 1909, §§ 4829-4833, section 4829 of which provides for the registration of bottles by manufacturers or dealers in soda and mineral water, section 4830 defining the sort, ownership, and class of bottles a trading in which constitutes a misdemeanor, section 4831 making it a misdemeanor for any junk dealer, or dealer in secondhand bottles, to sell such bottles without consent of the owner, and section 4832 making possession of such bottles by junk dealers prima facie evidence of unlawful possession, but as against whom no search warrant was issued, as provided by section 4833, was in a position to urge the unconstitutionality of sections 4829, 4830, 4831, 4832; but since he did not suffer by reason of section 4833 he could not question its constitutionality.

3. TRADE-MARKS AND TRADE-NAMES (§ 43) — REGISTRATION — SALE OF MARKED BOTTLES.

Rev. St. 1909, §§ 4829-4833, providing for the registration of trade-marks by all manufacturers of glass bottles, bottlers of and dealers in mineral and soda water, or any other beverage whatsoever, applies only to the kind of bottles used in the soda and mineral water business.

4. CONSTITUTIONAL LAW (§ 211) — CLASS LEGISLATION — CONSTITUTIONAL PROHIBITION.

Class legislation, discriminating against some and favoring others, is prohibited; but legislation which, in carrying out a public purpose, is limited in its application, and within the sphere of its operation affects alike all persons similarly situated, is not within the amendment.

5. TRADE-MARKS AND TRADE-NAMES (§ 41) — REGISTRATION — CONSTITUTIONAL PROVISIONS — POLICE POWER.

Rev. St. 1909, §§ 4829-4835, providing for the registration of their trade-marks by all partnerships, corporate bodies, manufacturers of glass bottles, bottlers, manufacturers of and dealers in mineral and soda water, or any other beverage, who use bottles bearing their names, and for notice of such registration, and making it a misdemeanor for any junk dealer, or dealer in secondhand bottles, without the written consent of the registered owner, to trade in such bottles, and making the possession of them prima facie evidence of unlawful possession, and providing for the issuance of a search warrant to discover whether any such bottles are unlawfully upon the premises of persons other than the owner, does not subserve the public safety, health, or welfare, and hence presents or contemplates no phase of the police power.

6. CRIMINAL LAW (§ 304) — JUDICIAL NOTICE — BUSINESS METHODS OF SELLERS OF BEVERAGES.

The court cannot judicially notice that bottlers of milk, ale, beer, etc., do business just as bottlers of soda and mineral water do; but it may judicially notice that there are others engaged in vending beverages, medicines, etc., in bottles, who may desire to take advantage of the law (Rev. St. 1909, §§ 4829-4833) providing for the registration of trade-marks by bottlers of and dealers in mineral and soda water, and who might desire to be protected from the loss of their property by interposing the criminal provisions of section 4831.

7. CONSTITUTIONAL LAW (§ 205) — CLASS LEGISLATION — REGULATION OF TRADE AND TRADE-MARKS — BOTTLING ACT.

Rev. St. §§ 4829-4833, providing by section 4829 for the registration of their trademarks by all partnerships, corporate bodies, manufacturers of glass bottles, bottlers, manufacturers of and dealers in mineral and soda water, or other beverages, using bottles stamped with their trade-marks, and for the giving of notice thereof, providing by section 4831 that it shall be a misdemeanor for any junk dealer, or dealer in secondhand bottles, without the written consent of the owner, to destroy, sell, or traffic in such bottles, by section 4832 making their possession by junk dealers prima facie evidence of unlawful possession, and by section 4833 providing for search warrants to discover unlawful possession, is arbitrary and discriminating class legislation, and as such invalid as in violation of Const. art. 4, § 53, subd. 26, providing that the General Assembly shall not pass any local or special law granting to any corporation or individual any special or exclusive right, privilege, or immunity.

8. STATUTES (§ 76) — GENERAL OR SPECIAL LAW — CONSTITUTIONAL REQUIREMENTS.

The act also conflicts with Const. art. 4, § 53, subd. 33, which declares that, where a general law can be made applicable, no local or special law shall be enacted, and that whether a general law could have been applicable is a judicial question, since it is limited to soda and mineral water dealers only, does not allow purchase from the registered owner, and instead of making any person guilty of the things prohibited makes only junk dealers and dealers in secondhand bottles guilty.

Woodson, Brown, and Walker, JJ., dissenting.

In Banc. Appeal from St. Louis Court of Criminal Correction; Calvin N. Miller, Judge.

S. Baskowitz was convicted of a violation of the Bottling Act, and he appeals. Reversed, and defendant discharged.

Jamison & Thomas, of St. Louis, for appellant. Elliott W. Major, Atty. Gen., and John M. Dawson, Asst. Atty. Gen. (Phillips W. Moss, of St. Louis, of counsel), for respondent.

ROY, C.

Defendant was convicted of violating what is sometimes called the "Bottling Act" of 1885 (Laws 1885, page 151), as amended in 1893 (Laws 1893, page 256), being sections 4829 to 4833, inclusive, of the Revised Statutes. Section 4829 provided for the registration of their trade-marks by "all partnerships, corporate bodies, manufacturers of glass bottles, bottlers, manufacturers of and dealers in mineral waters, soda water, or any other beverages whatsoever, who may use boxes, trays, bottles, siphons, jugs or any other vessel upon which shall appear the name or names of the partnerships, corporate bodies, dealers, manufacturers or bottlers, or other mark of ownership stamped, engraved, cut, etched, or in any manner affixed thereon," and for the giving of notice of such registration by publication.

Section 4831 makes it a misdemeanor for any junk dealer or dealer in secondhand bottles, or others therein named, without the written consent of the owner or owners thereof, to trade or traffic in, buy or sell, or to willfully mar or erase a name, mark, or marks thereon, or to willfully break, destroy, or otherwise injure any such bottle, tray, jug, or siphon so marked and stamped, a description of which shall have been filed and published as provided in the two preceding sections, or to fill any such bottle, jug, or siphon with mineral water, soda water, seltzer water, or any aërated waters or other beverage whatsoever, or any other article of merchandise, medicine, compound, or preparation for the purpose of sale or traffic. Section 4832 makes the possession of such vessels by junk dealers, secondhand dealers, and others prima facie evidence that such possession is unlawful. Section 4833 provides for the issuance of a search warrant to discover whether any such vessels are unlawfully upon the premises of persons other than the owner.

The material part of the information is as follows: "That on July 21, 1902, James M. Dupiech Bottling Company were bottlers, manufacturers of and dealers in mineral water, soda water, and other beverages, and used bottles upon which appeared their name and mark of ownership, stamped, cut and affixed thereon, to wit: `James M. Dupiech & Company, St. Louis, Mo.' And on said date the said James M. Dupiech Bottling Company, they having an office within the limits of St. Louis, Mo., filed with the recorder of deeds of said city a description of said bottles and of the name and mark of ownership of the same, to wit: `James M. Dupiech & Company, St. Louis, Mo.' And the said James M. Dupiech Bottling Company published in the St. Louis Chronicle, a daily newspaper published in said city, twice a week for two successive weeks, to wit, July 9th, July 12th, July 16th, and July 19th, a notice of the above-stated facts. That in the city of St. Louis, on the 10th day of June, 1911, S. Baskowitz was a junk dealer in secondhand bottles, and did in said city, without the written consent of James M. Dupiech Bottling Company, trade and traffic in, buy and sell, fifty-eight bottles of the said James M. Dupiech Bottling Company, having his name and mark of ownership, to wit, `James M. Dupiech & Company, St. Louis, Mo.,' stamped, cut, and affixed thereon, the description of which had been filed and published, as aforesaid."

Defendant promptly filed a motion to quash the information, for the reason that the statute under which the information is filed is in violation of articles 4 and 5 of the amendment to the Constitution of the United States, and of section 1, art. 14, of such amendment, and in violation of sections 4, 20, 23, 28, 30, art. 2, and of section 53 of article 4, of our state Constitution. The motion was overruled.

The evidence was sufficient to show a registration of the trade-mark and the publication of notice thereof, as alleged in the information.

The only evidence as to the guilt of the defendant is an admission made by the defendant for the purpose of the trial, and made at the time of the trial, that he shipped or delivered to the St. Louis & San Francisco Railroad Company in the city of St. Louis, for shipment, the bottles in question to one Grady at Flat River, Mo.

The evidence for the state shows that there is in St. Louis a corporation known as the Missouri Bottlers' Association, of which most of the dealers in soda water in that city are stockholders....