State v. Baskowitz

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

156 S.W. 945

250 Mo. 82

THE STATE v. BASKOWITZ, Appellant

Supreme Court of Missouri

May 10, 1913

Editorial Note:

This Pagination of this case accurately reflects the pagination of the original published, though it may appears out of sequence.

Appeal from St. Louis Court of Criminal Correction. -- Hon. Calvin N. Miller, Judge.

Reversed.

Jamison & Thomas for appellant.

(1) What a statute will imply is as much a part of a legislative enactment as though set forth in terms, and when a statute enumerates the persons or things to be affected by its provisions, there is an implied exclusion of others. 2 Sutherland's Stat. Construction (2 Ed.), sec. 500; State v. Thomas, 138 Mo. 95; State ex rel. v Buchanan County, 108 Mo. 235; State v Dinnisse, 109 Mo. 434; Lippman v. People, 175 Ill. 101. (2) The appellant's motion to quash should have been sustained and the appellant discharged, because Secs 4829 to 4833, R.S. 1909, and each of them, are unconstitutional and void, in that they, and each of them, grant special and exclusive rights, privileges and immunities to persons and corporations therein named, and in that they, and each of them, deny to appellant the equal protection of the laws, and are, therefore, in violation of Sec. 53, Art. 4, Constitution of Missouri, and also of Sec. 1 of Fourteenth Amendment to U. S. Constitution. Cooley's Const. Lim. (7 Ed.), pp. 560-564, 567-574, 556-557; Horwick v. Walker-Gordon Laboratory, 205 Ill. 497; Lippman v. People, 175 Ill. 101; State v. Thomas, 138 Mo. 95; State v. Walsh, 136 Mo. 400; State v. Bliler, 138 Mo. 139; State v. Julow, 129 Mo. 163; State ex rel. v. Tolle, 71 Mo. 645; State ex rel. v. Herrman, 75 Mo. 340; State ex rel. v. Ashbrook, 154 Mo. 375; Millett v. People, 117 Ill. 294. (3) Said sections are unconstitutional and void, in that they deprive the appellant of his property and the right to the enjoyment of the gains of his own industry, and are, therefore, in violation of section 4, article 2, and section 30, article 2 of the State Constitution, and also of the Fifth Amendment and section 1 of the Fourteenth Amendment of the U. S. Constitution. Cooley's Const. Lim. (7 Ed.), pp. 560-564; Horwick v. Walker-Gordon Laboratory, 205 Ill. 497; Lippman v. People, 175 Ill. 101; State v. Julow, 129 Mo. 163; State v. Loomis, 115 Mo. 307; Com. v. Perry, 155 Mass. 117; Godcharles & Co. v. Wigeman, 113 Pa. St. 431; State v. Goodwill, 33 W.Va. 179; State v. Tie & Timber Co., 181 Mo. 536; Asphalt Pav. Co. v. Ridge, 169 Mo. 376. (4) Appellant's plea of not guilty put in issue every material allegation in the information, and the burden of proof remained on the State throughout the trial. State v. Wingo, 66 Mo. 181; State v. Moon, 67 Mo.App. 338; State v. Hardelein, 169 Mo. 579. (5) The judgment of the trial court that the appellant was guilty of the offense charged is not supported by the evidence, as the information charges that the appellant did "trade and traffic in, buy and sell," etc., while there is no evidence that the appellant did any of the acts so charged in the information. State v. Moon, 67 Mo.App. 338; State v. Baker, 144 Mo. 323; State v. Mansfield, 41 Mo. 470; State v. Marshall, 47 Mo. 378; State v. Mahan, 138 Mo. 112.

Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State; Phillips N. Moss, of counsel.

(1) Legislation is not open to the charge of being class legislation if it be general in its operation upon the subjects to which it relates. State v. Cantwell, 179 Mo. 264; State v. Parker Dist. Co., 236 Mo. 298; State ex rel. v. Tolle, 71 Mo. 650; State v. Broadnax, 228 Mo. 25. (2) The law in question does not grant any special privileges or immunities. "It makes provisions in reference to a kind of property, used in a peculiar way, which is of such a nature as to call for peculiar provisions for the protection of the public and of its owners against the fraud of evil doers." Commonwealth v. Anselvitch, 186 Mass. 376. (3) Laws identical with the one in issue in the case at bar have been declared valid and constitutional. People v. Cannon, 139 N.Y. 32; Commonwealth v. Anselvich, 186 Mass. 376. (4) The right of the Legislature specially to regulate under the police power dealing in second-hand goods in analogous to its right to regulate the liquor traffic. Grand Rapids v. Braudy, 32 L. R. A. 116, 105 Mich. 670; Marmot v. State, 45 Ohio St. 53; Commonwealth v. Mince, 19 Pa. S.Ct. 283; Rosenbaum v. Newbern, 32 L. R. A. 124. (5) Every statute is presumed to be constitutional unless the contrary is clearly demonstrated. State ex rel. v. Aloe, 152 Mo. 477; State v. Cantwell, 179 Mo. 261; State v. Parker, 236 Mo. 219; State v. Weber, 214 Mo. 272.

FARIS J. ROY, C. Lamm, C. J., and Graves and Bond, JJ., concur; Woodson, J., dissents in opinion filed; Brown and Walker, JJ., dissent. Walker, J., concurs with Woodson herein.

OPINION

In Banc.

FARIS, J. -- Defendant, convicted of a misdemeanor and fined in the St. Louis Court of Criminal Correction, for that, as it was charged, he had violated the provisions of section 4831, Revised Statutes 1909, appeals to this court, challenging the constitutional validity of sections 4831 and 4832, Revised Statutes 1909. His attack is bottomed on the broad charge that these sections, which came into our statutes in 1885, through an act entitled, "An act to protect the property of manufacturers, bottlers, and dealers in mineral waters, soda water and other beverages, from the loss of their siphons, bottles and boxes" (Laws 1885, p. 151 et seq.), fall within the category of those enactments which are denounced as "class legislation." The specific charge contained in the information upon which defendant was convicted, with caption and formal parts omitted, is as follows:

"That on September 20, 1898, James M. Dupiech & 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 & 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 & Company published in the St. Louis Chronicle, a daily newspaper published in said city, twice a week for two successive weeks, to-wit, July 28th, July 30th, August 4th and August 6th, 1898, 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 second-hand bottles, and did in said city, without the written consent of James M. Dupiech & Company, trade and traffic in, buy and sell, fifty-eight bottles of the said James M. Dupiech & Company, having his name and mark of ownership, to-wit: 'James M. Dupiech & Company, St. Louis,' stamped, cut and affixed thereon, the description of which had been filed and published as aforesaid; contrary to the form of the statute in such case made and provided and against the peace and dignity of the State."

The proof offered tended to show proper compliance by James M. Dupiech & Company with the provisions of sections 4829 and 4830, Revised Statutes 1909, touching the registry or trade-marking of the bottles about which the controversy here revolved. The possession, which is by the provisions of section 4832, supra, made prima facie evidence of guilt, appears in the record by the following admission: "That on or about the 10th day of June, 1911, the defendant S. Baskowitz, shipped or delivered to the St. Louis & San Francisco Railroad Company in the city of St. Louis, the bottles in question for shipment to one Grady at Flat River, Missouri." Defendant was charged in the information as "a junk-dealer in second-hand bottles," while the proof on this point showed, and all it showed, was that he "ran at 16th and Morgan streets a second-hand bottle shop." Further facts, if after a discussion of and a passing upon the constitutional questions raised, they shall yet be pertinent, will be set out in the subjoined opinion.

OPINION.

We are conceding and not controverting the general limitations by which we are hedged about in reaching a conclusion touching whether a statute is constitutional or unconstitutional. We fully recognize the rule which enjoines the entertaining of a presumption in favor of the validity of a statute; as well as the rule which requires us to resolve all reasonable doubts in favor of validity, and to indulge all reasonable inference in support thereof. [State v. Thompson, 144 Mo. 314, 46 S.W. 191; State v. Watts, 111 Mo. 553, 20 S.W. 237; Kelly v. Meeks, 87 Mo. 396.] In passing it may be said that there is no paucity or meagerness of averment on defendant's part as to the Constitution or Constitutions, and the provisions thereof, which are alleged by defendant to be violated by the statutes under consideration. He specifically urges that section 1 of the Fourteenth Amendment, and the Fifth Amendment, to the Constitution of the United States, as well as the whole of section 53 of article 4, of the Constitution of Missouri, sections 4, 11 and 30 of article 2, of the Constitution of Missouri, all are, and each of them is violated.

As premises (minor they may be, but premises nevertheless) we all agree we take it (a) that the defendant is, in the instant case, in a position to urge the unconstitutionality of both sections, supra, because he was convicted for the violation of the substantive provisions of section 4831, by and through the use against him of certain facts (not of direct proof...