State v. Schlenker

• Decision Date: 22 December 1900
• Citation: State v. Schlenker, 112 Iowa 642, 84 N.W. 698 (Iowa 1900)
• Parties: THE STATE OF IOWA, Appellant, v. B. F. SCHLENKER, Appellee
• Court: Iowa Supreme Court

84 N.W. 698

112 Iowa 642

THE STATE OF IOWA, Appellant, v. B. F. SCHLENKER, Appellee

Supreme Court of Iowa, Des Moines

December 22, 1900

Appeal from Polk District Court.--HON C. A. BISHOP, Judge.

DEFENDANT was convicted of the crime of selling adulterated milk.His motion in arrest of judgment, based on the proposition that the statute is unconstitutional, was sustained, and he was released, and his bond exonerated.From this order the state appeals.

Reversed.

Milton Remley, Attorney General, and Chas. A. Van Vleck, Assistant Attorney General, for the State.

W. N Jordan and James C. Hume for appellee.

OPINION

DEEMER, J.

The statute under which the information was filed reads as follows: "If any person shall sell * * * any adulterated * * * milk * * * he shall be fined," etc.Section 4989.Section 4990 reads, "For the purpose of this chapter the addition of water or any other substance or thing, to whole milk or skimmed milk or partly skimmed milk, is hereby declared an adulteration," etc.There is no question that defendant sold milk to various persons into which he had put and mixed boracic acid.Some of them were notified of the adulteration, but others were not.He testifies that he dissolved 5 pounds of the acid in 20 gallons of water, and added 1 pint of the solution to 10 gallons of milk; that he used it as a preservative, and told quite a number of his customers that he was using the solution for the purpose indicated; that he never attempted to deceive any of his customers regarding the use of the solution; and that its use was necessary "to keep the milk from souring."He also introduced experts to show that the quantity of boracic acid used tended to prevent decomposition, and would have no deleterious effect on the consumers.For the purpose of the case, we must assume that the quantity of acid used by the defendant in the milk sold by him had no deleterious effect, but tended to prevent decomposition and the development of germs.The experts also testified, however, that the addition of an excessive amount of boracic acid would have a deleterious effect, in that it would retard the formation of gastric juice in the stomach.The learned district judge filed an opinion in which he held in effect, that the statute, construed literally, was unconstitutional, and that the evident intent of the legislature was to prohibit sales of anything that would operate as a fraud upon the buyer or prove deleterious to his health, and that, as the defendant was guilty of no fraud and the adulteration was harmless, he had not violated the law.These propositions are insisted upon by the appellee, and further contention is made that if the statute is not so construed it is unconstitutional, for various reasons, that will be referred to during the course of the opinion.It seems to us that the construction placed on the statute by the trial court is a strained and unnatural one.The language of the enactment is plain, and in view of previous legislation there is no doubt that the act should have a literal interpretation.That the legislature so intended is not open to serious debate.So construed, are the acts in question constitutional?

Section 4990 is said to be void because it invades the judicial province, in that it is not permissible for the legislature to make certain evidence conclusive of a question that may be submitted to judicial determination.No doubt the legislature cannot indirectly dispose of a cause by prescribing conclusive rules of evidence, and it has no power to direct the judiciary in the interpretation of existing statutes.Groesbeck v. Seeley, 13 Mich. 329;Johns v. State, 55 Md. 350;Reiser v. Association, 39 Pa. 137;Salters v. Tobias, 3 Paige 338.But it does have power to prescribe legal definitions of its own language, and, when an act passed by it embodies a definition, it is binding on the courts.Smith v. State, 28 Ind. 321;Jones v. Surprise, 64 N.H. 243(9 A. 384);Byrd v. State, 57 Miss. 243(34 Am. Rep. 440);Herold v. State, 21 Neb. 50(31 N.W. 258);Clay v. Railroad Co., 84 Ga. 345(10 S.E. 967);People v. Board of Supervisors of New York City, 16 N.Y. 424.Even declaratory statutes are entitled to respectful consideration by the courts, although not always binding.Cooley Statutory Crimes (2d ed.)section 91;People v. Board of Supervisors of New York City, supra;Lambertson v. Hogan, 2 Pa. 22.The definition given by the legislature in section 4990 of the Code as to the term "adulteration" is valid and binding.Such legislation does not trench on the powers of the judiciary, and is not invalid for the reason suggested.

But it is said that the legislature had no power to forbid the sale, without deceit or fraud, of a harmless and wholesome article of food.This may be true, as a general proposition; but it is also true that in virtue of the police power it may pass such laws as are, or may reasonably appear to be, necessary for the health, comfort, and safety of the people.No clear and comprehensive definition of the police power has ever been given, and it is doubtful if one can be framed that will be accurate and cover every conceivable case that may arise.It is much easier to determine whether the particular case comes within the scope of the power, than to give a definition that will be applicable to all cases.In Railroad Co. v. Husen, 95 U.S. 465(24 L.Ed. 527), it is said, "The police power of a state extends to the protection of the lives, limbs, health, comfort, and quiet of all persons, and to the protection of all property within the state, and hence to the making of all regulations promotive of domestic order, morals, health, and safety."The power belongs to the several states, and not to the federal government, save in exceptional cases; and, so long as the legislature does not pass the limits prescribed by the federal or state constitutions, courts have no authority to interfere on the ground that the acts in question violate natural principles of right and justice.Ordinarily the legislature determines when the public welfare and safety demand its exercise; and, as a general rule, courts have nothing to do with the policy, wisdom, or necessity of the enactment.Of course, the state cannot, by arbitrarily assuming that a commodity is injurious to the health or comfort of the people, impair individual rights guaranteed by the constitution.The police power of the state, like every other, is subject to the constitution, and cannot be used as a cloak under which to disregard constitutional rights or restrictions.Railroad Co. v. Husen, supra;In re Jacobs, 98 N.Y. 98.The question is, of necessity, primarily with the legislature, and its decision should not be lightly disregarded by the courts.Courts will not interfere, as a rule, unless there is a plain excess or usurpation of power, and in case of doubt it should be solved in favor of the power of the legislature to make the enactment.It was an indictable offense at common law to mix unwholesome ingredients, such as alum, in bread, or to mix unwholesome substances in anything intended for the food of man.There is an ancient statute(Statutes 51 Henry III.) prohibiting the sale of corrupted wine, contagious or unwholesome flesh, or flesh that is bought of a Jew. 4 Blackstone Commentaries 162.In Rex v. Dixon, 3 Maule & S. 11, defendant was indicted for furnishing bread not fit for food.It appeared that the loaves were strongly impregnated with alum, and that large pieces of crude alum were found in them.Defendant's motion for a new trial, filed after a verdict of guilty, was overruled; the court saying that "alum being perilous to health, in the form used, it is immaterial that if used in certain quantities it was not noxious, but wholesome."Statutes enacted to secure the sale of pure food and to prevent adulteration are quite common in this country, and have ever been referred to the police power.See English sale of food and drugs act of 1875(chapter 63);LawsTenn. 1859-60, chapter 81, section 4;Revised Statutes Mass. chapter 131, section 1.They are enacted to prevent fraud and to conserve the public health, and as such are a valid exercise of the police power.State v. Campbell, 64 N.H. 402 (13 A. 585;People v. Arensburg, 105 N.Y. 123(11 N.E. 277);Butler v. Chambers, 36 Minn. 69 (30 N.W. 308;Waterbury v. Newton, 50 N.J.L. 534(14 A. 604);Powell v. Pennsylvania, 127 U.S. 678(8 S.Ct. 992, 8 S.Ct. 1257, 32 L.Ed. 253);Com. v. Waite, 11 Allen 264(87 Am. Dec. 711);State v. Smyth, 14 R.I. 100(51 Am. Dec. 343);People v. Cipperly, 101 N.Y. 634(4 N.E. 107);Com. v. Gordon, 159 Mass. 8(33 N.E. 709);Com. v. Schaffner, 146 Mass. 512(16 N.E. 280).

That the sale of milk to which water and boracic acid have been added may amount to a fraud upon the purchaser is evident.He has the right to assume that the milk he buys is unadulterated, and that it will go through the natural process of oxidation and decomposition.He may wish to use sour milk for culinary purposes, and has the right to assume that nothing has been added to prevent chemical change.Counsel for appellee responds to this thought by saying that defendant notified all persons to whom he sold that boracic acid had been added, and that no one of the witnesses for the state was deceived.The record does not bear them out in this contention, but, even if it did, we would have no help therefrom in solving the constitutional question involved.It may be conceded that the milk sold by defendant was not harmful to the health of those who used it but it is certainly dangerous to the public to permit milkmen and those dealing in milk to adulterate it in such manner as to change its constituent properties.The statute does not deprive the...