State v. Empire Bottling Co.

• Decision Date: 23 June 1914
• Docket Number: No. 18049.,18049.
• Citation: 168 S.W. 1176,261 Mo. 300
• Parties: STATE v. EMPIRE BOTTLING CO.
• Court: Missouri Supreme Court

168 S.W. 1176

261 Mo. 300

STATE v. EMPIRE BOTTLING CO.

No. 18049.

Supreme Court of Missouri, Division No. 2.

June 23, 1914.

Rehearing Denied July 14, 1914.

CONSTITUTIONAL LAW (§ 240) — FOOD (§ 1) — CLASS LEGISLATION — SACCHARIN IN DRINKS.

Act April 7, 1911 (Laws 1911, p. 261), prohibiting the adulteration of nonalcoholic drinks by use of saccharin, is an arbitrary discrimination against the makers of such drinks, or in favor of those who sweeten them with something else, depending on whether the prohibition

is because saccharin is deleterious or because it sweetens.

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

The Empire Bottling Company was convicted of violation of statute, and appeals. Reversed and discharged.

This is a prosecution under the act of April 7, 1911 (Laws 1911, p. 261), prohibiting the adulteration of nonalcoholic drinks by the use of saccharin and other substances therein named. Defendant was convicted and has appealed. It is charged in the information that defendant sold "an article of food, ready for consumption, being a nonalcoholic drink, to wit, soda water, which was then and there filled into a bottle containing about one pint, and which was then and there adulterated in this, to wit, by having a foreign substance added thereto, to wit, saccharin." Defendant moved to quash the indictment because that part of the act prohibiting the use of saccharin is not within the title of the act, and is therefore contrary to section 28 of article 4 of our state Constitution, and also because the act is class legislation contrary to subdivision 26 of section 53 of article 4 of that Constitution, and also because it abridges the privileges and immunities of this defendant as to the equal protection of the laws, contrary to section 1 of the fourteenth amendment to the Constitution of the United States. The motion was overruled. At the trial defendant admitted that it sold to one Frank Mantz for 15 cents a bottle of soda water containing one pint, said soda water being a nonalcoholic drink, an article of food ready for consumption. H. E. Wiedemann, a chemist, witness for the state, testified that he analyzed the soda water furnished him by Mantz, and found that the soda water in the bottle contained .0229 of one gram of saccharin. At the close of the state's case, defendant's counsel asked for its discharge on the state's testimony, which motion was overruled. Defendant then proceeded to introduce its evidence, and the following occurred:

"Mr. Rassieur: I desire to introduce a copy of the report of the Remsen Referee Board, which I have with me here as published by the Government. It was transmitted March 6, 1911, to the Secretary of Agriculture by Ira Remsen, chairman of the board. I offer only the report, and not all the exhibits that go with the report; I also offer the supplementary report of January 13, 1912, and also the opinion of Frank McVeagh, Secretary of the Treasury and a member of the Pure Food Board of the United States.

"Mr. Leahy: I object to the offer of these documents in evidence for the reason that they are incompetent, irrelevant, and immaterial, because the law of this state absolutely prohibits the use of saccharin in nonalcoholic drinks. I might also object on the ground that these documents are merely opinions of persons, not sworn and not before the court, but I do not want to put defendant to the expense of bringing these witnesses; therefore I do not object to the evidence on that ground.

"The Court: Upon what theory do you offer that evidence, Mr. Rassieur?

"Mr. Rassieur: On the theory that if the court finds that saccharin, when used in quantities such as the witness testified to as used in this case, the court will say that saccharin used in such a quantity is not and cannot be regarded as injurious, and that therefore there was no adulteration, and a statute which undertakes...