The State v. Empire Bottling Co.

• Decision Date: 14 July 1914
• Parties: THE STATE v. EMPIRE BOTTLING COMPANY, Appellant
• Court: Missouri Supreme Court

168 S.W. 1176

261 Mo. 300

THE STATE v. EMPIRE BOTTLING COMPANY, Appellant

Supreme Court of Missouri, Second Division

July 14, 1914

Appeal from St. Louis Court of Criminal Correction. -- Hon. Calvin N. Miller, Judge.

Reversed.

Schnurmacher & Rassieur for appellant.

(1) The act is a special law, although a general law might have been made applicable, and it therefore violates subdivision 32 of section 35 of article 4 of the Constitution of Missouri. In so far as the said act prohibits the use of saccharin in non-alcoholic drinks, without at the same time prohibiting the use of saccharin in alcoholic and other drinks and foods the act is class legislation and violates subdivision 26 of section 53 of article 4 of the Constitution of Missouri, in that it grants a special or exclusive right, privilege or immunity to other corporations, associations or individuals and unlawfully discriminates against the defendant. And the said act also violates section 1 of the Fourteenth Amendment to the Constitution of the United States, in that it unlawfully abridges the privileges and immunities of this defendant and denies to this defendant the equal protection of the laws. State v. Miksicek, 225 Mo. 572; Woolley v. Mears, 226 Mo. 41; State ex rel. v Ashbrook, 154 Mo. 375; State v. Walsh, 136 Mo. 405; State v. Thomas, 138 Mo. 100. (2) Even if the act be held constitutional in every respect, yet, in no event can there be a conviction of defendant without proof that saccharin is injurious to health and therefore that the soda water was adulterated.

John T. Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for the State.

(1) The act applies to all manufacturers and persons offering for sale soda water containing saccharin, and is, therefore, not open to the objection of being class legislation. State ex inf. v. Oil Co., 218 Mo. 368; State v. Webber, 214 Mo. 277; State v. Grossman, 214 Mo. 240; State v. Railroad, 239 Mo. 233; Railroad v. Arkansas, 219 U.S. 466. (2) It was within the legislative function in the enactment of this statute for the preservation of health to insist that nonalcoholic drinks should not have saccharin as an ingredient. St. Louis v. Schuler, 190 Mo. 531; St. Louis v. Polinsky, 190 Mo. 520. (3) All questions concerning the justice, reasonableness, wisdom or policy of statutes must be left to the Legislature, and therewith the courts are in nowise concerned. 1 Lewis's Sutherland, Stat. Constr., secs. 85, 366; Tel. Co. v. Manning, 186 U.S. 238; Hannibal v. Marion Co., 69 Mo. 571; People v. Railroad, 23 Barb. 138; Railroad v. Little, 45 Ga. 388; Burlington v. Dey, 82 Iowa 312; Plank Road v. Harrison, 16 Ill. 81; Jamison v. Gas Co., 128 Ind. 555; Ins. Co. v. Commonwealth, 133 Mass. 161; State v. Swaggerty, 203 Mo. 527; Railroad v. United States, 220 U.S. 575; Thornley v. U.S., 113 U.S. 313; U.S. v. Chase, 135 U.S. 262; Plessy v. Ferguson, 163 U.S. 558; Hawaii, Mankichi, 190 U.S. 247; Bank v. Parker, 192 U.S. 80; New Jersey v. Anderson, 203 U.S. 490; Railroad v. Cotton Oil Co., 204 U.S. 447; Railroad v. Arkansas, 219 U.S. 465.

ROY, C. Williams, C., concurs.

OPINION

ROY, C.

This is a prosecution under the Act of April 7, 1911 (Laws 1911, page 261), prohibiting the adulteration of non-alcoholic drinks by the use of saccharin and other substances therein named. Defendant was convicted and has appealed. It is charged in the information that defendant sold "an article of food, ready for consumption, being a non-alcoholic drink, to-wit, soda water, which was then and there filled into a bottle containing about one pint, and which was then and there adulterated in this, to-wit, by having a foreign substance added thereto, to-wit, saccharin."

Defendant moved to quash the indictment because that part of the act prohibiting the use of saccharin is not within the title of the act, and is, therefore, contrary to section 28 of article 4 of our State Constitution, and also because the act is class legislation contrary to subdivision 26 of section 52 of article 4 of that Constitution, and also because it abridges the privileges and immunities of this defendant and denies to this defendant the equal protection of the laws, contrary to section 1 of the Fourteenth Amendment to the Constitution of the United States. The motion was overruled.

At the trial defendant admitted that it sold to one Frank Mantz for fifteen cents a bottle of soda water containing one pint, said soda water being a non-alcoholic drink, an article of food ready for consumption. H. E. Wiedemann, a chemist, witness for the State, testified that he analyzed the soda water furnished him by Mantz and found that the soda water in the bottle contained 0.0229 of one gram of saccharin.

At the close of the State's case, defendant's counsel asked for its discharge on the State's testimony, which motion was overruled. Defendant then proceeded to introduce its evidence, and the following occurred:

"Mr. Rassieur: I desire to introduce a copy of the report of the Remsen Referee Board, which I have with me here, as published by the Government. It was transmitted March 6, 1911, to the Secretary of Agriculture by Ira Remsen, Chairman of the Board. I offer only the report and not all the exhibits that go with the report; I also offer the supplementary report of January 13, 1912; and also the opinion of Frank McVeagh, Secretary of the Treasury and a member of the Pure Food Board of the United States.

"Mr. Leahy: I object to the offer of these documents in evidence for the reason that they are incompetent, irrelevant and immaterial, because the law of this State absolutely prohibits the use of saccharin in non-alcoholic drinks. I might also object on the ground that these documents are merely opinions of persons, not sworn and not before the court, but I do not want to put defendant to the expense of bringing these witnesses, therefore I do not object to the evidence on that ground.

"The Court: Upon what theory do you offer that evidence, Mr. Rassieur?

"Mr. Rassieur: On the theory that if the court finds that saccharin, when used in quantities such as the witness testified to as used in this case, the court will say that saccharin used in such a quantity is not and cannot be regarded as injurious, and that therefore there was no adulteration, and a statute which undertakes to make that illegal and forbids the use of that which is harmless is unconstitutional.

"The Court: The objection to the evidence offered by the defendant will be sustained.

"To which ruling of the court defendant then and there by counsel duly excepted and still excepts."

Said report contained the following: "The conclusions reached as a result of the investigations are given in detail in the separate reports herewith presented, together with all of the data upon which these conclusions are...