State v. Earl

• Decision Date: 02 January 1911
• Citation: 152 Mo. App. 235,133 S.W. 402
• Parties: STATE v. EARL.
• Court: Missouri Court of Appeals

133 S.W. 402

152 Mo. A. 235

STATE v. EARL.

Kansas City Court of Appeals. Missouri.

January 2, 1911.

1. FOOD (§ 10)—STATUTORY REGULATIONS—CONSTRUCTION—COLORING OF VINEGAR.

Rev. St. 1909, § 4842, requires all vinegar sold to be without artificial coloring or flavoring, and prohibits the sale of any vinegar labeled as cider vinegar or apple vinegar which is not the product of pure apple juice, and section 4844 provides that no vinegar shall be branded "fruit vinegar" unless it be made wholly from fruit. Held, that the statute prohibited the false coloring or flavoring of vinegar as well as its false branding, so that one selling vinegar artificially colored with caramel was punishable under the statute.

2. FOOD (§ 1)—REGULATIONS—VALIDITY OF STATUTE—EXERCISE OF POLICE POWER.

The enactment of the statute was authorized in the exercise of the police power of the Legislature for the purpose of preventing fraud; the fact that the coloring was harmless, and that the vinegar was labeled as colored upon the bottle, not making the statute invalid as going beyond the state's police power.

3. CONSTITUTIONAL LAW (§ 81) — POLICE POWER—EXTENT.

The police power of the Legislature is only limited by the property rights guaranteed by the Constitution, beyond which it cannot be exercised.

Appeal from Circuit Court, Jackson County; Ralph S. Latshaw, Judge.

C. W. Earl was convicted of selling vinegar in violation of statute, and he appeals. Affirmed.

G. W. Duvall and C. C. Madison, for appellant. Elliott W. Major, Atty. Gen., and James T. Blair, Asst. Atty. Gen., for the State.

ELLISON, J.

Defendant was convicted on an information by the prosecuting attorney of Jackson county for selling one pint of vinegar artificially colored with caramel in violation of the statutes. The appeal was taken to the Supreme Court as involving a construction of the Constitution, but that court transferred it to this court. The particular statute to be construed is section 4842, Rev. St. 1909, which reads as follows: "All vinegar sold or offered for sale, exchange or delivery shall be without artificial coloring or flavoring; and no person, by himself or his agent or employé, shall sell or offer for sale, exchange, deliver, or knowingly have in his custody or possession with intent to sell or exchange, or expose or offer for sale or exchange, any vinegar labeled or branded as cider vinegar, or as apple vinegar, which is not the legitimate product of pure apple juice, or that is not made exclusively from apple cider." The section which declares the acts thus prohibited to be a misdemeanor and punishable as such is 4844, and as its reading is depended upon in part by defendant, we set it out: "No vinegar shall be branded `fruit vinegar' unless the same be made wholly from apples, grapes or other fruits; and any person who shall knowingly brand, label or sell or offer for sale as such `fruit vinegar' any vinegar not made wholly from apples, grapes or other fruits, or who shall violate any one of the three foregoing sections, shall be deemed guilty of a misdemeanor, and be punished as provided in section 4841."

At the trial it was agreed in writing that defendant did "sell and offer for sale, exchange and deliver one pint of vinegar artificially colored with caramel; that said caramel coloring is harmless and was used for coloring purposes only, and that said bottle containing said pint of vinegar was labeled `colored distilled vinegar,' and that said vinegar was in fact `colored distilled vinegar.'" Defendant insists that the object of this statute, connected with other sections, discloses that the Legislature intended only to prevent fraudulent practices in mislabeling as fruit vinegar an article manufactured from other substances and ingredients. We think the statute has that purpose, but it clearly has a further intention. A false brand is not the only mode of deception in articles of food. A false color, or a false flavor, is equally, or probably more, liable to deceive than a false brand; and we are not inclined to restrict language to an unnatural meaning in order to make exempt a character of fraud which the Legislature evidently had in view. The statute, as above set out, expressly declares that all vinegar sold shall be without artificial color or flavor. And it then provides, not only a punishment for false brands of vinegar as fruit vinegar, but also a punishment for a violation of any other part of the section; which is no less than saying that the punishment shall be inflicted upon him who sells vinegar with artificial coloring or flavoring. It is insisted that the prosecution, justified by the construction we have stated, is beyond the police power of the state, since it restricts one's right to conduct a business in which he does not deceive or commit a fraud. This contention is based upon the admission by the state that the coloring was harmless, and also the fact that the public was advised that the vinegar was colored, by a label upon the bottle.

The question is important. It was considered in construing so extreme a statute as absolutely prohibited the manufacture and sale of oleomargarine. State v. Addington, 12 Mo. App. 214, affirmed in 77 Mo. 110; Powell v. Commonwealth, 114 Pa. 265...