State v. Fisher

• Decision Date: 31 March 1873
• Parties: STATE OF MISSOURI, Respondent, v. JOHN FISHER, Appellant.
• Court: Missouri Supreme Court

52 Mo. 174

STATE OF MISSOURI, Respondent,

v.JOHN FISHER, Appellant.

Supreme Court of Missouri.

March Term, 1873.

Appeal from St. Louis Criminal Court.

H. A. Clover, and Lackland, Martin & Lackland, for Appellant.

The act of the Legislature entitled, “An act to preserve the health of the inhabitants of St. Louis County, by providing for the abatement of nuisances, and regulating the traffic in the carcasses of dead animals, within said county,” approved March 14th, 1872, (See Sess. Acts of 1872, p. 265,) is void.

1st. The act proposes to create a monopoly of the trade of rendering, steaming and tanking of the remains of dead animals.

2nd. Because the act pretends to make it the duty of the City Contractor to pay one-half of the market value only for the remains of dead hogs, and virtually compels the owner or shipper to sell to him.

3rd. Because the law in reality takes away the right of the appellant to carry on the trade set out therein, and bestows it on one man.

4th. The Legislature has no power either directly or indirectly to prohibit one person from carrying on a trade and giving another the sole privilege of prosecuting said trade.

In support of the above propositions, the following cases are cited: Sedgwick on Constitutional Law, 338, 515 and 465; 11 Wend., 539; 17 Wend., 287; 3 Page, 45; Matter of Albany Street, 11 Wend., 149; Varrick vs. Smith, 5 Paige, 137; Matter of John and Cherry Streets, 19 Wend., 659; Taylor vs. Porter, 4 Hill, 140; Gardner vs. Trustees of Newburg, 2 John. Ch., 162; Bradshaw vs. Rogers, 20 John, 103; Matter of Furman Street, 17 Wend., 649; Dickey vs. Tennison, 27 Mo., 375.

Slayback & Haeussler, for Respondent.

The object of the law was not to create a monopoly, but to protect the public.

WAGNER, Judge, delivered the opinion of the court.

The defendant was prosecuted by information in the Court of Criminal Correction, for violating an act of the Legislature entitled, “An act to preserve the health of the inhabitants of St. Louis County, by providing for the abatement of nuisances and regulating the traffic in the carcasses of dead animals,” (Sess. Acts 1871, p. 265.) The second count of the information on which the trial was had charged that the defendant did unlawfully boil, render and steam the carcasses and remains of six dead hogs, he not being the owner of them, and not being at the time a butcher or pork packer, nor a person licensed or authorized to boil, steam or render the carcasses of dead animals. The defendant was convicted and sentenced to pay a fine. We might well dispose of this case on the ground that there was no evidence to support the charge in the information, but as counsel have raised the point and contended that the whole act is void, because it creates a monopoly and is in restraint of trade, we will briefly consider the question.

By the first section of the act, the purchasing of the carcasses of dead animals, for the purpose of boiling, steaming and rendering the same, and the rendering and steaming of the carcasses of such dead animals within the County of St. Louis is declared to be a misdemeanor, except in certain enumerated cases.

The second section of the act provides that no person or persons shall purchase the carcass or remains of any dead horse, mule, ass, ox, steer, cow, sheep, hog, goat or other animal, (unless the same shall have been slain for food,) found or brought within the County of St. Louis, or boil, render or steam any such carcass or remains within said county, (unless he shall be the owner thereof,) provided that any butcher or pork packer may steam, boil or render any carcass or remains of any such dead animal for purposes other than for food, or any material entering into or pertaining to food, when the same shall have been purchased by, or consigned to such butcher or pork packer.

The third section affixes a penalty for violating the act, and provides further that the foregoing provisions shall not be construed to apply to the person or persons licensed or authorized by the City of St. Louis to boil, steam or render the carcasses of dead animals under any ordinances of, or contracts with the City; but no such person or persons, so licensed or authorized by the city, shall be permitted to boil, steam or render any such carcasses or remains of dead animals in any other place than that by the ordinances of said city provided; and provided always that such person or persons so licensed or authorized to steam, boil or render the carcasses or remains of any such dead animals, shall not acquire...