State v. Closser, No. 22,161.

• Docket Nº: No. 22,161.
• Citation: 99 N.E. 1057, 179 Ind. 230
• Case Date: November 26, 1912
• Court: Supreme Court of Indiana

179 Ind. 230
99 N.E. 1057

STATE
v.
CLOSSER.

No. 22,161.¹

Supreme Court of Indiana.

Nov. 26, 1912.

Appeal from Circuit Court, La Porte County; James F. Gallaher, Judge.

Louis F. Closser was indicted for selling milk containing visible dirt. From a judgment sustaining a motion to quash the affidavit, the State appeals. Reversed, with instructions.

[99 N.E. 1058]

Thomas M. Honon, Atty. Gen., Thomas H. Branaman, of Indianapolis, Edwin Corr, of Bloomington, and James E. McCullough, of Indianapolis, for the State. Frank E. Osborn, W. A. McVey, and Lee L. Osborn, all of La Porte, for appellee.

COX, J.

This is an appeal by the state from the action of the lower court in sustaining the appellee's motion to quash an affidavit against him which sought to charge appellee with a violation of section 1 of the act approved March 6, 1911 (Acts 1911, p. 605). The affidavit, omitting the caption and signature, reads as follows: “John T. Willett, being duly sworn, upon his oath says that on the 7th day of September, 1911, at the county of La Porte and state of Indiana, one Louis F. Closser did then and there unlawfully, by his servant and agent, Hugh Closser, sell to one John T. Willett one pint of milk, at and for the price of four cents, which said milk did then and there contain visible dirt, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Indiana.” The motion to quash stated as a ground that the facts stated in the affidavit did not constitute a public offense, and on that ground it was sustained.

The act in question is amendatory of the act of March 4, 1907 (Acts 1907, p. 153), which was entitled “An act forbidding the manufacture, sale or offering for sale of any adulterated or misbranded foods or drugs, defining foods and drugs, stating wherein adulteration and misbranding of foods and drugs consist,” etc. Section 1 of the act of 1911 purports to amend section 3 of the former act, and, omitting the enacting clause, it reads as follows: “That no person either by himself, his servant or agent or as the servant or agent of another person, shall sell, exchange or deliver, or have in his custody or possession with intent to sell, exchange or deliver, expose or offer for sale or exchange, adulterated milk or milk to which water or any foreign substance has been added, or milk produced by sick or diseased cows, or milk from which the cream or a part thereof has been removed, or milk which is not of standard quality, or milk collected and kept or handled under conditions which are not cleanly and sanitary, or milk which contains visible dirt, or milk which contains less than 8 1/2 per cent. of milk solids exclusive of fat, and 3.25 per cent. of milk fat, or milk which contains any added color or preservative, or as pasteurized milk, milk which has not been subjected to a temperature of at least 145 degrees Fahrenheit for thirty minutes or 165 degrees Fahrenheit for thirty seconds: Provided, however, that this section shall not be construed to prohibit the sale of skim milk when such skim milk is [sold] as [and] plainly labelled ‘skim milk.”’ It will be seen that this section makes numerous things unlawful, when done in relation to milk, which under section 1 of the amended act is included in the definition there given of food. Section 10 of the amended act provides a penalty for violating any of the provisions of the act. Section 3, as amended by section 1 of the act of 1911, prohibits and makes unlawful the sale of “milk which contains visible dirt.” This provision was not a part of the original act, but was added as one of the many several things prohibited and denounced as unlawful by it.

[1] In support of the action of the trial court in sustaining the motion to quash the affidavit, counsel for appellee first contend that the prohibition of the sale of “milk which contains visible dirt” is a subject not embraced in the title of the act, and that therefore this provision of the act of 1911 is void, because it is contended that it is in violation of the section 19 of article 4 of the Constitution of the state, which provides that “every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title.” The pure food act of 1899 (Acts 1899, p. 189), the forerunner of the act of 1907, had a similar title, and it was attacked in this court by the charge that its title was multifarious, and for that reason in violation of the above-stated constitutional provision. That attack failed. Isenhour v. State (1901) 157 Ind. 517, 62 N. E. 40, 87 Am. St. Rep. 228.

[2] If the provision in the act of 1911 prohibiting and making unlawful the sale of milk containing visible dirt covered matter which was embraced within or properly connected with the subject expressed in the title of the original act of 1907, it is not open to the objection urged, for the rule is that new matter which, if it had been a part of the original act, would have been embraced in the subject expressed in the title, may be subsequently made a part of the act by amendment. McCleary v. Babcock (1907) 169 Ind. 228, 238, 82 N. E. 453, and cases there cited.

[3] The object of the constitutional provision involved was to stop the practice of legislative bodies, unrestricted by such a provision, of embracing in the same bill

[99 N.E. 1059]

congruous matters, unrelated to each other or to the subject of legislation specified in the title, by which measures were often adopted without attracting attention and without general consideration. 1 Lewis' Sutherland on Stat. Const. (2d Ed.) § 111; Robinson v. Skipworth (1864) 23 Ind. 312;Grubbs v. State (1865) 24 Ind. 295;Henderson v. London,...