State v. Bixman

• Citation: 162 Mo. 1,62 S.W. 828
• Parties: STATE v. BIXMAN.
• Decision Date: 05 March 1901
• Court: Missouri Supreme Court

62 S.W. 828

162 Mo. 1

STATE v. BIXMAN.

Supreme Court of Missouri.

March 5, 1901.

INTOXICATING LIQUORS — BEER AND MALT LIQUOR — POLICE POWER — CONSTITUTIONAL LAW — STATUTES — TWO SUBJECTS — INACCURACY — INSPECTION — EXCESSIVE FEE — REVENUE — INTERSTATE COMMERCE — PROPERTY TAX — TAX ON BUSINESS — LICENSE — DISCRIMINATION — OTHER INTOXICANTS — EXPORTERS — IMPORTED BEER — ANALYSIS — IN VAT — IN SEALED PACKAGE.

1. Act May 4, 1899 (Laws 1899, p. 228), entitled "An act creating the office of inspector of beer and malt liquors," and requiring the inspection of beer and malt liquors manufactured and sold in the state, requires inspection of all such beer and malt liquors, and imposes a tax on brewers and importers of a certain amount per gallon inspected, is not invalid, as containing two subjects, one for the inspection and the other imposing a tax, which latter was not expressed in the title, since the imposition of the tax is germane to the stated subject of the act, and hence not an additional subject thereto.

2. Act May 4, 1899 (Laws 1899, p. 228), declaring that beer and malt liquors can be manufactured

or sold in the state only on condition that they shall be made from certain specified cereals, and that they shall be inspected and a certain amount paid to the state on each gallon inspected, is a proper exercise of the police power of the state, the manufacture and sale of such beverage being detrimental to public morals, and the legislature has arbitrary power to prohibit such manufacture and sale absolutely.

3. Act May 4, 1899, provides that all beer and malt liquors sold or manufactured in the state shall be inspected, and a certain amount on each gallon inspected shall be exacted from brewers and importers, and paid directly into the state treasury, to the credit of the general revenue fund, and that the expenses of such inspection shall be paid by appropriation from such fund. Held, that the fact that a large revenue, approximating $500,000, would result from such inspection charges, does not render the act an act to levy a general revenue tax, and therefore void, since such charges are the price required for the privilege of carrying on such business, and the disposition of the fund arising therefrom does not necessarily determine the character of the exaction.

4. The charge for inspection exacted by Act May 4, 1899, providing that all beer and malt liquors sold or manufactured in the state shall be inspected, and an inspection fee paid to the state, being the price demanded for the privilege of brewing and selling beer in the state, is not a tax on property, within the constitution; and hence the objections that it is not levied according to value, and is not uniform and exceeds the constitutional limit, are unfounded.

5. The doctrine that an inspection law cannot be legitimately employed to yield a revenue beyond the cost of inspection has no application to a law regulating the manufacture and sale of beer and malt liquors, since such manufacture and sale may be legally prohibited altogether.

6. The fact that the manufacture and sale of beer were previously permitted on precisely the same conditions as the manufacture and sale of other commodities cannot be urged as an objection against Act May 4, 1899, declaring that all beer and malt liquors sold or manufactured in the state shall be inspected, and certain charges exacted therefor, since such act was within the exercise of the police power, and the previous exemption did not estop the legislature from imposing any burden their discretion dictated.

7. The burden imposed by Act May 4, 1899, requiring the inspection of all beer and malt liquors manufactured or sold in the state and exacting an inspection fee, does not fail to be a tax on the business of brewing and selling such beverages, in contradistinction to a tax on property, because it gives no permit to carry on such business for a fixed time, since a license and tax are things entirely distinct.

8. The inspection charge, under Act May 4, 1899, requiring the inspection of beer and malt liquor manufactured or sold in the state, and exacting an inspection fee, did not fail to be a tax on the privilege of carrying on such business because the act did not confer the right to sell beer and malt liquors, which privilege was conferred by another statute, since a business may be taxed though carried on under a license independent of such tax.

9. Act May 4, 1899, prohibiting the manufacture of beer or malt liquors from "any substance, material or chemical, other than pure hops, or pure extract of hops, or pure barley, malt or wholesome yeast or rice," was not objectionable for inaccuracy in omitting to specify water as a proper material.

10. Act May 4, 1899, § 7, directs the beer inspector to cause to be inspected all beer or other malt liquors manufactured or sold in the state, and, if found satisfactory, "to place on the package containing such beer or malt liquor his label, certifying that the same has been inspected," etc. Section 8 provides that the inspector shall receive "for inspecting and gauging" one cent for each gallon contained in each package, and defines the word "package" to mean any vessel in which beer or malt liquor may be placed for sale containing 8 gallons or less, except that 24 quart or 48 pint bottles shall constitute one package. Such section further declares that beer, when manufactured and bottled, "must, before sale, be placed in suitable cases containing said number and size of bottles for inspection and stamping," etc. Held, that the inspector was not restricted to an examination or analysis of the finished product after it was bottled or barreled, but was authorized to go to the brewery, and take samples of the malt and of the beer in the vats in the process of fermentation, and that the act was not objectionable as requiring the destruction of the liquor by opening the sealed package.

11. Act May 4, 1899, requiring the inspection of beer and malt liquors, and exacting an inspection fee therefor, is not objectionable as unjustly imposing a burden on that particular business, while exempting the business of selling other intoxicating liquors, since the state may prohibit absolutely the traffic in any kind of intoxicating liquors.

12. Under Act Cong. Aug. 8, 1890, declaring that all intoxicating liquors transported into a state, on arrival therein are subject to its laws enacted in the exercise of police powers, Act May 4, 1899, prohibiting the sale of beer or malt liquors till the same are inspected, and the fee therefor paid to the state, is not in violation of the rights of interstate commerce.

13. Act May 4, 1899, requiring the inspection of all beer sold in the state, and exacting a fee for such inspection largely in excess of the expense thereof, is not in contravention of Const. U. S. art. 1, § 10, forbidding states to lay any imposts or duties on imports, except what may be absolutely necessary for executing its inspection laws, without the consent of congress, since such constitutional provision relates only to imports from foreign countries and not from one state to another.

14. A person convicted of violating Act May 4, 1899, prohibiting the sale of beer or malt liquor unless inspected, by selling uninspected beer which was manufactured in the state, cannot question the validity of such act in so far as it touches imported beer.

15. Act May 4, 1899, requiring the inspection of all beer and malt liquor manufactured in the state, but providing that the inspection of all such as shall be exported for sale shall be free of cost to the manufacturer, makes no unfair discrimination in favor of those who sell their product out of the state, since the right to export such beverages is open to all manufacturers thereof.

Burgess, C. J., and Sherwood and Robinson, JJ., dissenting.

In banc. Appeal from circuit court, Henry county; W. W. Graves, Judge.

John N. Bixman was convicted of violating liquor laws, and he appeals. Affirmed.

Boyle, Priest & Lehmann, G. A. Finkelburg, Kehr & Tittman, and Koehler & Riess, for appellant. Edward C. Crow, Atty. Gen., Sam. B. Jeffries, Asst. Atty. Gen., and W. M. Williams, for the State.

GANTT, J.

This prosecution is bottomed upon an act of the general assembly of this state approved May 4, 1899, entitled "An act creating the office of inspector of beer and malt liquors of the state and providing for the inspection of beer and malt liquors manufactured and sold in this state." The act in full will be found in the Session Acts or Laws of Missouri 1899, p. 228. For having sold beer which had not been inspected and stamped as required by this act, defendant was indicted by the grand jury of Henry county at the May term, 1900, of the circuit court of said county, convicted, and fined one dollar. From that conviction he appeals.

The validity of the act is challenged on numerous grounds, all of which have been urged with great earnestness and ability, and controverted with like zeal and vigor by counsel for the state. The meagerness of the fine gives little or no intimation of the importance of some of the questions mooted and discussed by counsel. In the disposition of the various contentions, we can possibly do no better than to consider the propositions for reversal seriatim, as presented by the defendant.

1. The first objection (a very familiar one these days) leveled at the act is that it covers two distinct subjects, "inspection" and "revenue," in violation of section 28 of article 4 of the constitution of Missouri, which ordains that "no bill * * * shall contain more than one subject, which shall be clearly expressed in title." For a correct appreciation of this point, it may be stated that under the title "An act creating the office of inspector of beer and malt liquors of the state and providing for the inspection of beer and malt liquors manufactured and sold in this state," the statute creates the office of...