State v. Hershman

• Decision Date: 27 September 1940
• Docket Number: 37286
• Parties: The State, Appellant, v. Herman Hershman, Harry Weiner and William Carroll
• Court: Missouri Supreme Court

143 S.W.2d 1025

346 Mo. 892

The State, Appellant, v. Herman Hershman, Harry Weiner and William Carroll

No. 37286

Supreme Court of Missouri

September 27, 1940

Appeal from Jackson Circuit Court; Hon. Ben Terte, Judge.

Affirmed.

Roy McKittrick, Attorney General, Tyre W. Burton and Robert L. Hyder, Assistant Attorneys General W. W. Graves and G. H. Maitland for appellant.

(1) The offense forbidden by the "filled milk" statutes Sections 12408, 12409, 12411, 12413 and 12415, is the sale or possession for sale of products made in "imitation or semblance of milk." State ex inf. McKittrick Attorney General, v. Carolene Products Co., 346 Mo. 1049, 144 S.W.2d 153. (2) It was not necessary for the State to charge that the offense was the possession for the fraudulent sale of "filled milk" and its sale declared to be a fraud upon the public. United States v. Carolene Products Co., 304 U.S. 144, 82 L.Ed. 1234; State v. Maurer, 255 Mo. 152, 164 S.W. 551. (3) It was not necessary to charge in what way the prohibited produce was "in semblance or imitation of milk."

John C. Grover, Levy & Kirschner, Clark, Boggs, Peterson & Becker, Howard B. Lang, Jr., and W. L. Nelson, Jr., for respondents; Howard C. Knotts of counsel.

(1) The information does not charge an offense under Sections 12408 and 12413, Revised Statutes 1929, because both of said sections have been repealed and are not now valid and existing laws. (a) Section 12408, being repugnant to and in irreconcilable conflict with subsequent Sections 12409, 12411 of the same act, the latter must control, and Section 12408 must be considered null and void. Laws 1923, p. 124; State ex rel. Kansas City P. & L. Co. v. Smith, 342 Mo. 75, 111 S.W.2d 513; State ex rel. Greene County v. Gideon, 273 Mo. 79, 199 S.W. 948. (b) Section 12413 has been repealed by a subsequent and more definite and particular law, Sections 12409 and 12411, affecting the same subject matter. Laws 1923, pp. 124, 229; State v. Harris, 337 Mo. 1052, 87 S.W.2d 1026; State v. Bressie, 304 Mo. 71, 262 S.W. 1015. (2) Section 12408 (H. B. 652, Laws 1923, p. 124) and Section 12413 (S. B. 338, Laws 1923, p. 229), Revised Statutes 1929, are unconstitutional and void, because the titles to both the original acts of the Legislature of which the statutes are a part do not clearly express the subjects of the acts, in violation of Section 28 of Article IV of the Constitution of Missouri. (3) The information does not charge an offense under Sections 12409, 12411 and 12412. These sections prohibit only the fraudulent sale or possession for sale of products made in "imitation or semblance of milk." The information here fails to charge the fraudulent possession for sale of a product made in "imitation or semblance of milk" and, therefore, does not charge a violation of the filled milk act. Sec. 12409, R. S. 1929; Laws 1923, p. 124. (a) Properly construed, the Missouri Filled Milk Act does not affect compounds which are fairly sold upon their own merit. State v. Shartell, 174 Mo.App. 153, 156 S.W. 991; People v. Arensberg, 103 N.Y. 388, 57 Am. Rep. 741; People of the State of New York v. Guiton, 210 N.Y. 1, 103 N.E. 773, 53 L. R. A. (N. S.) (1915a) 757; State v. Armour Packing Co., 124 Iowa 323, 2 Ann. Cas. 448; State of Wisconsin v. Meyer, 134 Wis. 156, 114 N.W. 501, 14 L. R. A. (N. S.) 1061; State v. Hanson, 118 Minn. 85, 136 N.W. 412, 40 L. R. A. (N. S.) 865; Jelke Co. v. Emery, 193 Wis. 311, 214 N.W. 369, 53 A. L. R. 463; Moxley v. Hertz, 216 U.S. 344, 30 S.Ct. 305, 54 L.Ed. 510; Cliff v. United States, 195 U.S. 139, 25 S.Ct. 1, 49 L.Ed. 139; Baltimore Butterine Co. v. Talmadge, 32 F.2d 904, affirmed 37 F.2d 1014; People v. Henning Co., 260 Ill. 554, 103 N.E. 530, 49 L. R. A. (N. S.) 1206; Commonwealth v. New England Maple Syrup Co., 217 Mass. 432, 105 N.E. 453. (b) Applicable rules of statutory construction. Natl. Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893, 108 L. R. A. 1352; State v. Amer. Colony Ins. Co., 336 Mo. 406, 80 S.W.2d 876; 16 C. J. S., sec. 98, p. 234; 11 Am. Jur., sec. 97, p. 725; State v. Taylor, 133 S.W.2d 336; State v. Shartell, 174 Mo.App. 153, 156 S.W. 991; People v. Marx, 99 N.Y. 377.

OPINION

Leedy, J.

This is an appeal from a judgment of the Circuit Court of Jackson County by which defendants' motion to quash the amended information herein was sustained, and the defendants ordered discharged. Motion for new trial or rehearing on said motion was timely filed and overruled, and the State appeals. The prosecution is based on an alleged violation of the so-called "filled milk" statutes. [Secs. 12408-12415, R. S. 1929; Secs. 12408-12415, Mo. Stat. Ann., pp. 404-406.] The offense is a misdemeanor, but the constitutional validity of certain of these sections is involved on this appeal; hence, jurisdiction is in this court.

The information (omitting caption and signatures) is as follows:

"Now comes G. H. Maitland Assistant Prosecuting Attorney fo the State of Missouri, in and for the body of the County of Jackson, and upon his oath informs the Court, that Herman Hershman, Harry S. Weiner and William Carroll, whose Christian name in full is unknown to said Assistant Prosecuting Attorney, late of the county aforesaid, on the 14th day of November, 1939, at the County of Jackson, State of Missouri, did then and there unlawfully sell, Carolene or Milnut, a milk product, to-wit: Condensed or evaporated milk or condensed skimmed milk, containing fat and oil, other than milk fat, to-wit: Coconut oil and fish oil, contrary to law and the Statutes made and provided, and; against the peace and dignity of the State."

Section 12408, upon which the State says the information was based, reads as follows:

"It shall be unlawful for any person, firm or corporation, by himself or itself, his or its agent or servant, or as the servant or as agent of another, to manufacture, sell or exchange, or have in possession with the intent to sell or exchange, any milk, cream, emulsified cream, skim milk, buttermilk, condensed or evaporated milk, powdered milk, condensed skim milk, or any of the fluid derivatives thereof, or any of them, to which has been added any fat or oil other than milk fat, either under the name of said product or articles of the derivatives thereof, or under any fictitious or trade name whatsoever."

Section 12413 is similar to Section 12408, except that it does not name emulsified cream.

Section 12409 defines the term "filled milk" as meaning

"any milk, cream or skim milk, whether or not condensed evaporated, concentrated, powdered, dried or desiccated, to which has been added, or which has been blended or compounded with, any fat or oil other than milk fat, so that the resulting product is in imitation or semblance of milk, cream or skim milk, whether or not condensed, evaporated, concentrated, powdered, dried or desiccated, which has been melted or refined by heating, boiling or mixing. Provided that the above definition shall not include any distinctive proprietary food compound, not readily mistaken in tests for milk or cream, or for evaporated, condensed or powdered milk or cream: Provided, however, that such compound is prepared and designed for feeding infants and young children and customarily used on the order of a physician; is packed in...