State v. Wood

Citation155 Mo. 425,56 S.W. 474
PartiesSTATE ex rel. KENAMORE v. WOOD et al.
Decision Date05 March 1900
CourtUnited States State Supreme Court of Missouri

2. Laws 1899, p. 228, requires the inspection of beer, and the placing of a label on each package passing inspection. Held, that an allegation in a petition for an injunction to restrain the state inspector from acting under such statute, that it constituted a cloud on the title of plaintiff's property and business, did not give a court of equity jurisdiction, since the threatened action of the inspector was against plaintiff in person, and not against his property.

3. An application for injunction to restrain the enforcement of Laws 1899, p. 228, requiring inspection of beer, and the placing of a label on each package, cannot be sustained on the ground that such inspection will cause irreparable injury, in that it would necessitate the opening of bottles and packages, and consequent spoiling of the beer, since the inspection may be made from the vats before sealing.

4. Laws 1899, p. 228, requires state inspection of beer, and declares that all prosecutions for fines and penalties imposed thereunder shall be by indictment or information, and that one violating its provisions shall be guilty of a misdemeanor, and punished. Held that, since such statute was criminal in its nature, and did not affect property rights, a court of equity had no power to enjoin its enforcement.

5. An allegation of the unconstitutionality of a law will not, alone, confer jurisdiction on a court of equity to restrain its enforcement.

Burgess, J., dissenting.

In banc. Application for a writ of prohibition by George R. Kenamore against Horatio D. Wood and others. Granted.

Edward C. Crow, Atty. Gen., Sam. B. Jeffries, and W. M. Williams, for relator. Kehr & Tittmann, Boyle, Priest & Lehmann, G. A. Finkelnburg, and Koehler & Reiss, for respondents.


This is an original proceeding for a writ of prohibition out of this court to arrest further action by the circuit court of the city of St. Louis in a certain suit now pending therein to obtain a perpetual injunction against the relator herein, as state beer inspector, to restrain him and his deputies from taking any steps whatever to carry out and enforce an act of the general assembly of Missouri entitled "An act to create the office of inspector of beer and malt liquors of the state and providing for the inspection of beer and malt liquors manufactured and sold in this state," approved May 4, 1899. It appears from the petition of relator that eight corporations and one individual separately engaged in the manufacture of beer in the city of St. Louis joined as plaintiffs in a suit in the St. Louis circuit court for the injunction. Relator alleges his appointment to the office of beer inspector by the governor, and his qualifications as required by the act; that the said eight corporations and single individual were all engaged in the business of brewing beer and other malt products in this state with the purpose of offering the same for sale; that Judges Horatio D. Wood and Franklin Ferris are two of the circuit judges of the said city of St. Louis, duly elected and qualified, and acting as such. It then avers that in September, 1899, said bill for injunction was filed in division No. 5 of the said circuit court, over which Judge Wood presides, and was, in substance, as follows: Plaintiffs, in behalf of themselves and all others in the state similarly situated, stated they were, and for many years had been, engaged in the manufacture and sale of beer and other malt liquors; that defendant, George R. Kenamore, had been recently appointed beer inspector under the act of May 4, 1899, and then set out the act itself in hæc verba as it is found in the Laws of Missouri of 1899, pp. 228 to 231, inclusive; that said Kenamore had qualified under the terms of said act, and claimed to be entitled to discharge the duties thereof, and enforce and carry out the provisions thereof, and has issued a circular letter notifying plaintiffs, and all others similarly situated, that he intends to enforce said act of May 4, 1899, and every provision thereof, and requiring plaintiffs and all other persons similarly situated to submit their products of beer and other malt liquors to his inspection, and threatens to exact the tax imposed by said act under the name of inspection fees. They then allege that besides themselves there are other brewers at other cities in the state, also engaged in the manufacture and sale of beer, giving a list of them. They then aver that the said brewers of this state annually manufacture not less than 2,250,000 barrels of beer of 31 gallons each, of which they sell in Missouri not less than 975,000 barrels of 31 gallons each; that of said brewers 12 sell their entire product in this state, and of the remainder the majority sell the largest portion of their product in this state, but that one of them sells more than two-thirds of its product, and another four-fifths of its product, and another one-half of its product, outside of this state; that, in addition to the persons named as manufacturing beer in this state, there are persons, firms, and corporations engaged in manufacturing beer in other states, particularly Illinois and Wisconsin, who annually ship into and sell in this state not less than 165,000 barrels of 31 gallons each, and about 1,500 barrels of beer and ale are imported from Germany and England; that certain named corporations, firms, and persons are engaged in the manufacture of weiss beer to the amount of 5,200 barrels, of which 4,000 are sold in this state and 1,200 exported; that weiss beer is a malted fermented liquor brewed from wheat, and cannot be made from any other cereal; that lager beer is made commonly of hops, malted barley, and of barley, rye, corn, and any other farinaceous cereal which it is convenient for the brewer to use, and may properly be made of any farinaceous cereal used in conjunction with hops and malt, and such materials so used are entirely wholesome; that beer, whether weiss beer or larger beer, and whatever its manufacture, must, for the purposes of sale, be inclosed in tight packages of glass or wood, and when so prepared for sale by inclosure cannot be opened without injury to the contents, and is never opened except for immediate consumption; that the average price of beer manufactured in this state, exclusive of United States revenue stamps, is five dollars per barrel. Plaintiffs then alleged in said bill for injunction that said act of May 4, 1899, was unconstitutional and void, and then proceeded to specify that it violated section 28, art. 4, of the constitution of Missouri, in that it contained more than one subject in its title, and because the title did not indicate the subject of taxation and revenue; that it also violated section 8, art. 10, of the constitution of Missouri, in that it exceeded the maximum rate of taxation allowed by the constitution; that it is violative of section 3, art. 10, of the constitution, in that it violates the principle of uniformity ordained by the constitution in said section; that it violates section 4, art. 2, of the constitution of Missouri, which provides that all persons have a natural right to life, liberty, and the enjoyment of the gains of their own industry, etc., and of section 30, art. 2, which provides that "no person shall be deprived of life, liberty or property without due process of law"; that said act violates said two last-mentioned sections of the constitution in this: that the fourth section of said act, which provides that no manufacturers of beer in this state shall use any substance, material, or chemical in the manufacture of beer or other malt liquors "other than pure hops, or pure extract of hops, or of pure barley, malt, or wholesome yeast or rice," is an unreasonable, oppressive, and unconstitutional restraint upon a lawful occupation, and excludes the use of water, which forms the major part of all beer; that the inspection required by the act is of sealed packages, and such an inspection, if carried out, will be destructive of plaintiffs' products, and render them unsalable, and prevent them from pursuing their occupation in this state; that said act is violative of the fourteenth amendment to the constitution of the United States, and section 2, art. 4, of the constitution of the United States, among other things, in that it discriminates between the brewer who sells in this state and one who exports his products, taxing the first 39 cents a barrel, and the other nothing; that said act of May 4, 1899, is inoperative and void, because incapable of execution, for the reason that inspection will not determine of what cereals beer is manufactured, and because the inspector and his deputies cannot inspect all the beer manufactured from day to day without subjecting the brewers to ruinous delays; that said act is violative of the constitution of the United States concerning interstate commerce, being section 8, art. 1, as well as section 2, art. 4, section 10, art. 1, and section 1 of the fourteenth amendment; that said act violates the order prescribed by the constitution of Missouri as to appropriations by the general assembly; that the enforcement of said act would work irreparable injury to plaintiffs and their business. "And plaintiffs further state that, besides the irreparable damage which will be inflicted upon their property and business by the inspection of beer, as hereinbefore more fully set out, the act in question provides for heavy fines and penalties and the imprisonment of all brewers who fail to conform to its provisions, and who sell their product without...

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