State v. Hutchinson Ice Cream Co.

• Decision Date: 12 May 1914
• Docket Number: 29,785.,Nos. 29,784,s. 29,784
• Citation: 147 N.W. 195,168 Iowa 1
• Parties: STATE v. HUTCHINSON ICE CREAM CO. ET AL., AND ANOTHER CASE.
• Court: Iowa Supreme Court

168 Iowa 1

147 N.W. 195

STATE

v.HUTCHINSON ICE CREAM CO. ET AL., AND ANOTHER CASE.

Nos. 29,784, 29,785.

Supreme Court of Iowa.

May 12, 1914.

Appeal from District Court, Polk County; W. H. McHenry, Judge.

Two informations were filed by a state food and dairy commissioner before a justice of the peace in the two cases, one against the Hutchinson Ice Cream Company and C. J. Hutchinson, manager, and the other against the Sanders Ice Cream Company and L. R. Sanders, president.

The defendants were accused of the crime of selling, exchanging, delivering, and having in possession with intent to sell, exchange, and expose and offer for sale and exchange, adulterated food, in violation of chapter 166, Laws of the 31st General Assembly, as amended (Supp. to the Code, §§ 4999a15 to 4999a43), for that the defendants did have in possession, with intent to sell, exchange, and expose and offer for sale and exchange, and did sell, exchange, and deliver a certain food product called ice cream, which was adulterated, in that it did not conform to the standards established by law, being deficient in butter fat, etc.

Demurrers were interposed by the defendants on the following grounds:

First. The acts charged as constituting the offense charged constitute no crime, under the statutes, upon which the prosecution is based; i. e., chapter 166, Laws of the Thirty-First General Assembly, §§ 4999a15 to 4999a43.

Second. If the prosecution is claimed to be based in any respect upon the provisions of chapter 175, Acts of the Thirty-Fourth General Assembly, said act of the Thirty-Fourth General Assembly is unconstitutional and void, in view of section 29, article 3, of the Constitution of Iowa, which provides that every act shall embrace but one subject, which shall be expressed in its title; moreover said act provides no penalty, and being a separate act, is not included within the prohibition of sections 4999a15-4999a43, Supplement to Code.

Third. The Legislature had no power to fix the standard of butter fat in ice cream at 12 per cent. because: (a) Said standard and the statute fixing the same are unreasonable; (b) it invades the individual rights of defendant, and is not a mere police regulation, having no relation in fact to the comfort, safety, and welfare of the public; (c) said statute is in violation of section ___, art. ___, of the Constitution of the state of Iowa, in that it arbitrarily interferes with personal liberty and private property without due process of law, having, in fact, no relation to the public health, comfort, or welfare; (d) that said statute is in violation of section 1, fourteenth amendment to the Constitution of the United States, in that it arbitrarily interferes with personal liberty and private property without due process of law, having, in fact, no relation to the public health, comfort, or welfare.

The demurrers were overruled by the justice, evidence was taken, and the defendants were found guilty. An appeal was taken to the district court, where the demurrers were again interposed and sustained. The state appeals. The cases are submitted together. Reversed and remanded.Geo. Cosson, Atty. Gen., John Fletcher, Asst. Atty. Gen., O. S. Thomas, Special Counsel, Thomas J. Guthrie, Co. Atty., and George A. Wilson, Asst. Co. Atty., all of Des Moines, for the State.

Hager & Parrish, of Des Moines, and Walter Jeffreys Carlin, of New York City, for appellees.

PRESTON, J.

1. One of the objections to the statute on which this prosecution is based is that the act is invalid for noncompliance with section 29, art. 3, of the Constitution of Iowa, in that its subject was not expressed in the title. This constitutional provision, or that part of it relating to the points raised in this case, is that: “Every act shall embrace but one subject, and matters properly connected therewith; which subject shall be expressed in the title.”

Chapter 166, Acts of the 31st General Assembly (Code Supp. §§ 4999a15 to 4999a30), was an act to prevent the adulteration of foods, etc. This was amended by chapter 178, Acts of the 32d General Assembly by adding at the end of chapter 166, as section 18, and now appearing as section 4999a31 of the Supplement to the Code, relating to food standards, and establishes standards for certain articles therein enumerated. That section (4999a31) was amended by chapter 175 of the 34th Session of the Legislature, the act in question, and fixes a standard for ice cream, in addition to the other articles for which the standard had been fixed in section 4999a31. The title to chapter 175, just referred to, is: “An act to amend section four thousand nine hundred and ninety-nine-a-thirty-one (4999a31) of the supplement to the Code 1907, relating to food standards.”

The provisions of the act establishing an ice cream standard, after the enacting clause, are:

“1. Ice-cream. Ice-cream is the frozen product made from pure wholesome sweet cream, and sugar, with or without flavoring, and if desired, the addition of not to exceed one per cent. (1%) by weight of a harmless thickener, and contains not less than twelve per cent. (12%) by weight of milk fat, and the acidity shall not exceed three-tenths (3-10) one per cent. (1%).

2. Fruit ice-cream. Fruit ice-cream is the frozen product made from pure wholesome sweet cream, sugar, and sound, clean, mature fruits, and, if desired, the addition of not to exceed one per cent. (1%) by weight of a harmless thickener, and contains not less than ten per cent. (10%) by weight of milk fat.

3. Nut ice-cream. Nut ice-cream is the frozen product made from pure wholesome, sweet cream, sugar, and sound, nonrancid nuts, and, if desired, the addition of not to exceed one per cent. (1%) by weight of harmless thickener, and contains not less than 10 per cent. (10%) by weight of milk fat.”

Some of the other provisions of these statutes which have some bearing upon the points argued will be here referred to. Section 4999a20 provides in part that: “No person, firm or corporation, by himself, officer, servant or agent, or as the officer, servant, or agent of any other person, firm or corporation, shall manufacture or introduce into the state, or solicit or take orders for delivery, or sell, exchange, deliver or have in his possession with the intent to sell, exchange or expose or offer for sale or exchange, any article of food which is adulterated or misbranded, within the meaning of this act.”

Section 4999a21 provides in part: “The word ‘food,’ as herein used, shall include all articles used for food, drink, confectionery or condiment, by man or domestic animals, whether simple, mixed or compound.”

Section 4999a22 defines adulteration, and states in part that:

“For the purpose of this act an article of food shall be deemed to be adulterated:

First. If any substance or substances has or have been mixed and packed with it so as to reduce or lower or injuriously affect its quality, strength or purity.

Second. If any substance or substances has or have been substituted wholly or in part for the article.

Third. If any valuable constituent of the article has been wholly or in part abstracted.

Fourth. If it be an imitation of, or offered for sale, under the specific name of another article, or if it does not conform to the standards established by law.”

[1] The purpose of the constitutional provision contained in section 29, art. 3, was, as stated in some of the cases, to prohibit the insertion in an act of incongruous matter having no connection or relation with the general subject as expressed in the title. It has been held that the title is sufficient, althoughconfined to general terms, if it answers as a key to the subject-matter of the act. Sisson v. Board, 128 Iowa, 442, 452, 104 N. W. 454, 70 L. R. A. 440;State v. Fairmont Creamery Co., 153 Iowa, 702, 715, 133 N. W. 895, 42 L. R. A. (N. S.) 821.

It is not necessary that the details of the subject-matter or reasons which brought about the enactment by the Legislature should be set out in the title. If it refers in a general way to the subject, and is reasonably germane, and calculated to advise the members of the Legislature, and the people, of the nature of the pending legislation, or changes in the laws by amendment, it is sufficient. The requirement that the act shall embrace but one subject, and matters properly connected therewith, was intended to prevent the evils of omnibus bills, and surreptitious legislation. It is not claimed in this case that the act in question does contain more than one subject, but that the subject is not expressed in the title. This, of course, must be done, under the terms of the provision, at least to the extent already indicated.

[2] The authorities seem to agree that such provisions are to be given a reasonable construction. As some of them state it, they should be construed liberally to uphold proper legislation, all parts of which are reasonably germane, on the one hand, and to prevent trickery on the other.

Appellees rely on State v. Bristow, 131 Iowa, 664, 109 N. W. 199. In the Fairmont Creamery Case, supra, it was shown that in the Bristow Case there was nothing in the title to indicate the contents of the act; that the title related only to the act which was repealed, and did not refer to the act which was a substitute for the act which was repealed.

[3] Section 4999a31 established standards of more than 20 articles. The essential subject was food standards. The act in question is amendatory to section 4999a31, and the title recites that it is “An act relating to food standards.”

The act in question adds ice cream to the list for which standards had already been established. In our opinion, it was germane, and the act does not offend against the constitutional provision quoted. The point is ruled by the holding in McGuire v. Railway, 131 Iowa, 340, 346, 108 N. W. 902, 33 L. R. A. (N. S.) 706, and the Fairmont Creamery Company Case, supra. See, also, Santo v. State, 2 Iowa, 165...