The State v. Tallo

• Decision Date: 05 June 1925
• Docket Number: 26047
• Citation: 274 S.W. 466,308 Mo. 584
• Parties: THE STATE v. VITO TALLO, Appellant
• Court: Missouri Supreme Court

274 S.W. 466

308 Mo. 584

THE STATE v. VITO TALLO, Appellant

No. 26047

Supreme Court of Missouri

June 5, 1925

Transferred from St. Louis Court of Appeals.

Reversed and remanded.

Lena Frank and Ernest F. Oakley, Jr. for appellant.

(1) The title of the act is insufficient because it contains more than one subject; because the subjects of the act are not clearly expressed in the title, and because there is no reference in the title to the provisions contained in Section 9 of the act, which attempts to make it unlawful to sell or offer for sale liquid having the appearance, odor and taste of beer without original labels on the container, and such provisions are not germane to the subjects mentioned in the title. Sec. 28, Art. 4, Constitution of Missouri; State v. Crites, 277 Mo. 194; State ex rel. Neidermeyer v Hackmann, 292 Mo. 32; State v. Koontz, 275 Mo 478; State v. Sloan, 258 Mo. 313; State v. Rawlings, 232 Mo. 544; City v. Fulks, 207 Mo. 26; City v. Wortman, 213 Mo. 131; State v. Great Western C. & T. Co., 171 Mo. 634; State ex rel. v. Gordon, 233 Mo. 383; State ex rel. v. Revelle, 257 Mo. 538. (2) The act is a special law, although a general law might have been made applicable, and it therefore violates Subdivision 32 of Section 35 and Subdivision 26 of Section 53 of Article IV 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. Lige v. Railroad Co., 204 S.W. 510; State v. Empire Bottling Co., 261 Mo. 306; State ex rel. v. Railroad Co., 246 Mo. 512; State v. Miksicek, 225 Mo. 561; 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. (3) The act prohibits the sale or offer for sale of liquid that has the appearance, odor and taste of beer, without certain labels being thereon, and thus deprives defendant of property without due process of law, contrary to the provisions of Section 30 of Article II of the Constitution of Missouri and contrary to the provisions of Section 1 of the Fourteenth Amendment of the Constitution of the United States. State v. Layton, 160 Mo. 474. (4) Even if the act be held constitutional in every respect, yet, in no event, can there be a conviction of defendant without proof that the liquid purported to have been sold by him had the appearance, odor and taste of beer.

Robert W. Otto, Attorney-General, and James A. Potter, special assistant Attorney-General, for respondent.

(1) The evidence offered by the State was sufficient to justify the submission of the case to the court. Appellant contends that there was no evidence offered to the effect that the liquid offered in evidence had the appearance, taste, or odor of beer. The liquid offered in evidence spoke for itself and it is to be presumed that the trial court performed his duty and examined, viewed, tasted and smelled of this liquid; otherwise the trial court could never have arrived at the conclusion that it had the appearance, taste and odor of beer. There was no evidence introduced at the trial to show what beer itself looked, tasted or smelled like, but it is to be presumed that the trial judge in the city of St. Louis knew the appearance, taste and odor of real beer. This court is not justified in shutting its eyes or closing its ears to things of common knowledge. 15 R. C. L. p. 1132; 10 R. C. L. pp. 880 to 882; Hackworth v. Mo. So. Ry. Co., 227 S.W. 1032; Valley Spring Ranch Co. v. Plagmann, 220 S.W. 1. (2) The title to the intoxicating liquor act is sufficiently broad to include the subject of soft drinks and soft drink parlors. The title to the act specifically refers to soft drink stands, and that section involved in this case dealing with beverages which have the odor, appearance and taste of beer is so closely related to the subject of intoxicating liquors that it is germane thereto. State v. Hanson, 234 Mo. 583; Coca Cola Works v. Mosby, 289 Mo. 462; State v. Miller, 45 Mo. 495; State v. Doerring, 194 Mo. 398. (3) The section of the act involved in this case is not a special law and does not, therefore, violate any part of the Constitution. "A statute is not special or class legislation if it applies to all alike of a given class, provided the classification is not arbitrary or without reasonable basis." Miner's Bank v. Clark, 252 Mo. 20; State ex rel. v. Burton, 266 Mo. 711; State ex rel. v. Roach, 258 Mo. 541. An act which embraces all persons who are or who may come into like situations or circumstances is not a special act. State ex rel. v. Wofford, 121 Mo. 61; State ex rel. v. Taylor, 224 Mo. 393. (4) The Section 9 of the act does not violate Section 30 of Article 2 of the Constitution of Missouri, nor Section 1 of the Fourteenth Amendment of the Constitution of the United States. These sections provide that no person shall be deprived of his life, liberty or property without due process of law. Due process of law means that every citizen shall hold his life, liberty, property and immunities under the protection of the general laws which govern society, and that in a contest regarding these rights he will be accorded an opportunity to contest the propriety of each step in the action sought to be taken against him. St. Louis v. Mo. Pac. Ry. Co., 211 S.W. 671; Jones v. Yore, 142 Mo. 38. By "the law of the land" is most clearly meant the general law, a law which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial. Barber Asphalt Co. v. Ridge, 169 Mo. 376; State v. Julow, 129 Mo. 163.

Railey, C. Higbee, C., concurs.

OPINION

RAILEY

On July 12, 1923, Ben Philipson, Associate Prosecuting Attorney of the St. Louis Court of Criminal Correction, filed in said court a verified information charging therein that Vito Tallo and Joseph Palermo of the city of St. Louis, on the 11th day of July, 1923, did unlawfully and wilfully sell and offer for sale in bottles, kegs and barrels liquid having the appearance, odor and taste of beer, without bearing the original label and full name of the brewer or manufacturer thereof, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State. Defendants were duly arraigned and entered their plea of not guilty. They filed a demurrer to the information, which was overruled. Thereupon they filed a motion to quash the information, and to suppress and exclude certain evidence, which said motion was overruled. At the conclusion of the State's evidence a demurrer thereto was sustained as to said Joseph Palermo, and overruled as to defendant Vito Tallo. Joseph Palermo was thereupon discharged from the case. At the conclusion of the whole case, appellant demurred to the evidence, which was overruled, and he offered no evidence in his own behalf. The case was tried by the court and defendant found guilty. His punishment was assessed at a term of sixty days in the workhouse of the city of St. Louis, and he was required to pay the costs, etc. A motion for a new trial was filed in due time and, on August 6, 1923, overruled. A motion in arrest of judgment was also filed and overruled. Judgment was entered in accordance with the finding of the court, that appellant be imprisoned in the workhouse aforesaid for sixty days, etc. Defendant was granted an appeal to the St. Louis Court of Appeals, and a supersedeas appeal bond given by him. The St. Louis Court of Appeals, on account of the constitutional questions presented in the case, transferred the same to this court.

On November 30, 1923, appellant filed in said Court of Criminal Correction his bill of exceptions in this cause.

The bond aforesaid was given for the appearance of defendant in the St. Louis Court of Appeals, etc.

The testimony of the State presented at the trial, is substantially as follows:

Rhodes C. Harper, a police officer connected with the St. Louis police department, testifying for the State, stated that on July 11, 1923, he arrested defendant, Vito Tallo, and later, Joseph Palermo, in a saloon at 2223 Washington Avenue; that Joseph Palermo conducted the place and Vito Tallo was the bartender; that Tallo was behind the bar at the time they entered; that they walked up to the bar and saw defendant Tallo step up to the bar with his hands down and then they smelled liquor; that they asked for some beverage and Tallo put out a bottle, and they asked what it was and he said he didn't know, and they asked how he knew what he was selling and he said he didn't know. Witness was asked to look at a bottle, and he said it looked like the bottle he took from the saloon and had his name on the tag. There was no name on the bottle nor on the cork to indicate by whom the contents were manufactured, nor writing of any kind on the bottle. Witness said Officer Nolan was with him at the time, and this all occurred in the city of St. Louis, Missouri.

On cross-examination witness stated that he went into the saloon and smelled the odor of alcohol; that he walked behind the bar and found a bottle of some liquor; that he supposed defendant Tallo knew they were police officers, and that he placed him under arrest for finding a bottle; that Tallo sold the bottle of beverage to witness after they had found the other bottle, defendant knowing they were police officers that he asked for a drink of beverage and gave him money right at that time, and defendant Tallo evidently took it; that the...