The State ex rel. Knese v. Kinsey

Decision Date09 April 1926
Docket Number24779
Citation282 S.W. 437,314 Mo. 80
PartiesTHE STATE ex rel. WILLIAM KNESE et al. v. EDWARD R. KINSEY et al
CourtMissouri Supreme Court

Peremptory writ awarded.

William L. Bohnenkamp for relators; James T. Roberts of counsel.

(1) The ordinance, to be of any validity, must be consistent with the general laws of the State, and must be in harmony with the legislative policy of the State as manifested by its general enactments and as commanded by the express provisions of the Constitution. Mo. Constitution, art. 9, sec. 23; Dillon on Mun. Corps. (4 Ed.) sec. 329; St. Louis v. Meyer, 185 Mo. 594; St. Louis v. Williams, 235 Mo. 503; Moberly v. Hoover, 93 Mo.App. 633; State ex rel v. St. Louis, 117 Mo. 113; State ex rel. v Jost, 273 Mo. 72; State v. Kessels, 120 Mo.App 239; Ewing v. Hoblitzelle, 84 Mo. 72; St. Louis v. Dreisoerner, 243 Mo. 218; St. Louis v. Dorr, 145 Mo. 466. (2) The statutes of Missouri undertake to define "milk." It follows that "milk" of the kind defined in the statute may be sold in the State. The ordinance undertakes to forbid the sale of "milk" as defined by the statutes and the ordinance is therefore invalid in that it is in direct conflict with the statutes. Sec. 11985, R. S. 1919; St. Louis v. Klausmeier, 213 Mo. 119. (3) The ordinance undertakes to prevent the lawful sale of milk as defined by the statutes. It prohibits the sale or possession of a lawful and necessary article of food. To that extent it abridges the privileges and immunities guaranteed to these relators by the Constitution of the United States, deprives them of their property without due process of law and denies to them the equal protection of the law. Amendment 14, sec. 1, U.S. Constitution. (4) The ordinance is class legislation in that it arbitrarily creates a class of milk known as "certified milk," and then provides that no person shall deal in milk unless it is certified or pasteurized. Hayes v. Poplar Bluff, 263 Mo. 516; St. Louis v. Atlantic Quarry Co., 244 Mo. 479; St. Louis v. Dreisoerner, 243 Mo. 217.

George F. Haid and Oliver Senti for respondents.

(1) The city, in the exercise of its police powers, may require milk dealers to take our permits. St. Louis v. Kellmann, 243 S.W. 134; Gundling v. Chicago, 177 U.S. 183; St. Louis v. Grafeman Dairy Co., 190 Mo. 504. (2) When it is considered that no article of food is more universally used by the public, and that no other article is perhaps so sensitive to atmospheric influences as milk, and that it is within the common knowledge that impure milk is a fruitful source of disease and disorders, especially among children, it needs no discussion to show that the milk business is one which particularly falls within the power of the State and its municipality to regulate. St. Louis v. Kellmann, 243 S.W. 137; St. Louis v. Grafeman Dairy Co., 190 Mo. 504. (3) There is no conflict between that portion of Sec. 11985, R. S. 1919, defining milk, and the ordinance requiring milk to be pasteurized. The General Assembly, not having exercised its power to legislate upon the subject, the city, under powers conferred upon it by the Constitution, the State law, and its charter, is free to do so. St. Louis v. Ameln, 235 Mo. 669; St. Louis v. Klausmeier, 213 Mo. 119; St. Louis v. Cafferata, 24 Mo. 94. (4) An ordinance requiring the pasteurization of milk offered for sale therein does not violate the provisions of Section 23 of Article IX of the Constitution of Missouri. Such an ordinance is in complete harmony with the laws of the State, because the Legislature has, by Section 8646, Revised Statutes 1919, conferred upon all cities and towns in this State the power to regulate, by ordinance, dairies and the sale of milk. (5) The constitutional rights of those to whom it applies are not violated by a municipal ordinance requiring milk vendors to obtain a permit, and prohibiting the sale of unpasteurized milk, unless such regulation can be shown to be arbitrarily unreasonable or oppressive. Pfeffer v. Milwaukee, 177 N.W. 850, 10 L. R. A. 131; Gundling v. Chicago, 177 U.S. 183; Jacobson v. Massachusetts, 197 U.S. 11; Cusack v. Chicago, 242 U.S. 526; Barbier v. Connolly, 113 U.S. 27. (6) That the public health necessitates the pasteurization of milk, except that which is produced under the most favorable conditions, has been recognized by the courts. People ex rel. Ogden v. McGowan, 195 N.Y.S. 286; Pfeffer v. Wilwaukee, 177 N.W. 850; 10 A. L. R. 131. (7) An ordinance permitting the sale, without pasteurization, of milk produced in conformity with the methods and standards of a medical association, is not a delegation of legislative authority to such association. Butterfield v. Stranahan, 192 U.S. 470; In re Bingham Drain. Dist., 266 Mo. 60; State ex inf. v. Colbert, 273 Mo. 211. (8) An ordinance requiring the pasteurization of all except certified milk is not invalid by reason of said exception. Cusack v. Chicago, 242 U.S. 526; Jacobson v. Massachusetts, 197 U.S. 11. (9) The reasonableness and necessity of a municipal regulation adopted in the interest of the public health or safety can be best determined by the municipal authorities, and the courts will not declare such regulations unreasonable unless there is a clear showing that they are arbitrary and oppressive. Gunning v. St. Louis, 235 Mo. 201; St. Louis v. Theatre Co., 202 Mo. 699.

White, J. Blair, C. J., and Graves, Walker, Atwood and Otto, JJ., concur; Ragland, J., concurs in the result, and in all of the opinion except Paragraph IV.


This case was originally assigned to a judge whose long illness and subsequent death prevented its determination. Later it was assigned to me, and other matters equally pressing have prevented its consideration until now.

The relators, eleven or more in number, filed their petition in this court praying for a writ of mandamus commanding the respondents, who constitute the Board of Public Service of the City of St. Louis, to issue to relators permits to sell milk in that city. Later a dozen and a half other milk dealers filed petitions in this court asking to be made parties to the proceedings as relators.

The alternative writ was issued, and respondents filed a return, making certain allegations regarding the condition of the dairies operated by the relators. Relators joined issue in reply by a general denial. The court then appointed as commissioner Judge Conway Elder to take evidence. A great volume of evidence was taken and is submitted for our consideration. The ordinances of the city of St. Louis and other facts pertinent to the issues joined, will be considered in their order.

I. Certain sections of Ordinance No. 31856 of the city and Ordinance No. 28646 were introduced in evidence relating to the authority of the Board of Public Service to grant or refuse permits to persons to engage in the milk business. Section 21 of Ordinance No. 28646 is as follows:

"Section 21. The Board of Public Service may in its discretion refuse to grant a permit to anyone who shall have been repeatedly convicted of violating the ordinances of the city of St. Louis or laws of the State of Missouri concerning the inspection and regulation of dairies and the inspection and sale of products, or when for any reason in the interest of the health of the inhabitants of the city, it would be inadvisable to grant a permit to such applicant, the Board of Public Service may revoke any permit for the same reason for which they may refuse to issue a permit."

This court in the late case of City of St. Louis v. Kellman, 295 Mo. 71, l. c. 82, 83, held that section to be valid and a proper exercise of police power on the part of the city in guarding the health of its inhabitants. [See also City of St. Louis v. Grafeman Dairy Co., 190 Mo. 492.] It may be that the discretion given the board, in authorizing them to refuse a permit when they think it is inadvisable to grant it, is too broad, if uncontrolled by legislative standards, but with that feature we are not concerned in this case.

II. The particular regulation which the respondents claim the relators refuse to comply with is contained in Section 1449 of Ordinance No. 31856. It is as follows:

"Section Fourteen Hundred Forty-nine. -- Milk clarification and pasteurization. -- No person shall bring into the city of St. Louis for sale, or shall, within said city, sell or offer for sale, expose for sale, dispose of, exchange or deliver, or, with intent so to do as aforesaid, have in his possession, care, custody or control within said city, any milk, skimmed milk, cream, cottage cheese, buttermilk, or milk prepared by fermentation or other process, is clarified by a centrifugal clarifier, or other efficient device, approved by the Health Commissioner, and is pasteurized before delivery for consumption as food, according to the rules and regulations prescribed in this ordinance, except 'Certified Milk.'

"'Certified Milk' is milk produced and handled in conformity with the 'Methods and Standards for the Production and Distribution of Certified Milk,' adopted by the Association Medical Milk Commissions May one, nineteen hundred twelve, and amendments thereto, in effect at the time of production, and certified to by a milk commission constituted in compliance therewith."

That is the way the section appears in the record. It is difficult to attach a meaning to it, unless we assume that the printed copy leaves out a condition requiring clarification and pasteurization.

A great deal of evidence was taken relating to the condition of relators' dairies, but the commissioner, after a colloquy between the counsel for both sides, decided that the refusal of permits was only on the ground that relators refused to pasteurize their milk and the evidence offered was for the...

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