City of St. Louis v. Schulee

GANTT, J. — The defendant in this case is charged with violating ordinance No. 20,808, section 17, in that in the city of St. Louis on the 28th day of July, 1903, he did then and there carry, control and expose for sale at Twenty-first and Chestnut streets, milk which did contain a preservative known as formaldehyde. On a trial on appeal, he was convicted in the St. Louis Court of Criminal Correction, and fined twenty-five dollars. Prom that judgment he appeals to this court on the ground that said ordinance and said section thereof are unconstitutional and void in that they deprive the'defendant of his natural rights to liberty and the enjoy — 530 — ment of the gains of his own industry, and of his property and liberty without due process of law, and because said ordinance is unconstitutional and void in that it is beyond the power of the Municipal Assembly to pass and enact the same. Section 17 of said ordinance provides: “Any person, firm or corporation, who shall sell, expose for sale, exchange, deliver, dispose or transport, convey or carry, or with any such intent as aforesaid have in his or her care, custody, control or possession any milk or cream having therein or containing any foreign substance of any kind whatever, or coloring matter, or any adulteration, or preservative whether for the purpose of artificially increasing the quality of the milk or cream, or for preserving the condition or sweetness thereof, or for any purpose whatever, shall be deemed guilty of a misdemeanor,” etc. The evidence on the trial disclosed that on July 28, 1903, one of the deputy milk inspectors of said city did take a sample of milk from a wagon of the defendant, put it in a bottle and sealed it, and handed it to the city chemist; that this sample was analyzed by the said'city chemist on the same day and found to contain a preservative known as formaldehyde; that formaldehyde is an “ organic compound oxidation product of alcohol, ’ ’ and was used by defendant to prevent the milk from becoming sour. J. C. Cabanne, an expert for the city, testified he was a milk dealer since 1868, and in business in St. Louis since 1872, and now supplied the city business to the extent of 5,000 gallons a day. He showed that milk could be kept sweet and good by simply keeping it cold, and that it was not at all necessary to use formaldehyde for that purpose, and that he ‘ ‘ always refused to take milk with preservatives in it.” Also that he had ‘ ‘kept milk stored for 21 days without preservatives in it, just at a temperature of 34. His milk is shipped into the city from a distance as far as a hundred — 531 — miles.” The quantify of formaldehyde, in this particular instance, was not determined, as the ordinance did not require it, but the testimony was that there was only small quantities of it in the sample. There was evidence tending to show that the test used by the city chemist was not a conclusive one, but there was no pretense that either of the experts, Dr. Richter or Prof. Keyser, made any test of the sample in question. On the part of the defendant evidence was offered to show that' formaldehyde in sufficient quantities to preserve milk from souring was not injurious to the health. At the conclusion of the evidence the defendant prayed the court to declare the law to be that under the testimony and the law the plaintiff could hot recover and that the ordinance was unconstitutional and unreasonable as a matter of law, and as shown by the evidence in the case. This instruction the court refused. After motions for a new trial and in arrest of judgment were filed, heard and overruled, the defendant appealed to this court. I. This case involves some of-the objections to the constitutionality and validity- of the ordinance in question that, were made and decided adversely to the defendant in St. Louis v. Liessing, found on page 464 of this volume, and hence we must decline to again consider those objections. II. The real question in this case is whether it is competent for the Legislature or the Municipal Assembly o-f the city of St. Louis to prohibit the preservation of milk by placing a preservative therein. Qn the part of the city it is insisted that it was entirely competent to prohibit the addition of any foreign substance, which, of course, includes preservatives in milk offered for sale, whether the said foreign substance or added matter is or is not injurious to health, and that a buyer has the right to assume that the milk he buys will go — 532 — through the natural processes of oxidation and decomposition. On the other hand, it is insisted that the Legislature cannot forbid or wholly prevent the sale of a wholesome article of food, and that this section of the ordinance is clearly distinguishable from those considered in the other cases which we have decided under this ordinance at the present term, in that, it cannot be justified as an exercise of power to prevent fraud or imposition, nor can it be sustained under the power of the Legislature or municipality to require a standard of purity for milk or other food products, but it strikes down the preservation of food and milk, which is a proper and lawful purpose in itself. The defendant insists that the use of formaldehyde or other'preservative is not to practice any form of deception, or to artificially improve the standard of the milk, but its purpose is to prevent decay in a product which without the presence of such preservative naturally becomes unfit for use in a very short period; and that there is a marked distinction between the protection of health by requiring a proper standard of purity and the prevention of imposition on consumers and the mere preservation of an article otherwise up to the standard, and the introduction of such preservative having no tendency to deceive consumers and purchasers. Another contention of the defendant is that the ordinance itself does not declare or ordain the adding of such a preservative an adulteration. It will be seen that these diverse contentions raise a most important question, one somewhat more difficult of solution than either of those presented in the other milk cases considered by the court at this time. The insistence on the part of the defendant has the full support of the Court of Appeals of New York in People v. Biesecker, 169 N. Y. 53. In that case a statute of New York, which provided that “no person shall sell, offer or expose for sale, ány butter or other dairy — 533 — products containing a preservative, but tbis shall not be construed to prohibit the use of salt in butter or cheese, or spirituous liquors in club or other fancy cheese, or sugar in condensed milk,” was held unconstitutional. In that case Judge Cullen, speaking for the whole court, reviewed previous decisions of that court, sustaining legislation which prohibited the manufacture or sale of any article so compounded as to imitate butter, as in People v. Arensberg, 105 N. Y. 123, and People v. Elbler, 106 N. Y. 321, defining what should be deemed unwholesome or adulterated milk, and People v. Girard, 145 N. Y. 105, forbidding the manufacture or sale of vinegar containing any artificial coloring matter, but drew a distinction between the statutes upon which those cases rest and the statute prohibiting the use of a preservative in butter, and reached the conclusion that the latter could not be justified as an exercise of the police power to prevent fraud or deception on buyers and consumers, and that the preservation of food was a lawful and laudable object. The learned judge conceded that in the use of these preservatives there was danger of adulteration and of the use of processes injurious to the public health, and that the regulation of these subjects for the protection of the public health and the prevention of imposition on consumers, was within the power of the Legislature, and the propriety of its exercise could not be questioned, but that under the guise of regulation, the Legislature could not destroy the industry, and that it was not a valid regulation which, in dealing with the means of preserving food, makes the preservation of food itself an unlawful act; that ingredients and processes might be prohibited as unwholesome, or causing deception, but not solely because they preserve. It is well in all these eases to keep constantly in view the fundamental principles involved in them. Under our system of government the legislative branch is empowered, to enact all laws necessary to protect the — 534 — public health, but it is conceded that its acts must have such a relation to the public health that the courts by-inspection can discern that they relate to and are convenient and appropriate to promote the public health and are not mere arbitrary provisions which the courts can see have no natural connection with the professed purpose of subserving the public health. Happily in these cases it is manifest upon the face of the ordinance that the Municipal Assembly was exercising its police power in regard to a subject affecting the public health, to-wit, an article of food of general use and prime necessity, and that the purpose of the ordinance was to preserve the purity of the milk supply and to secure to the people of St. Louis, pure and unadulterated milk. As said in St. Louis v. Liessing, “On no one subject has the police power been affirmed so often as the right to inspect and regulate the sale of milk and cream.” The subject-matter, then, was clearly within the powers of the city council to regulate, and the sole question remaining for us to determine at this time is whether, in the attempt to regulate the sale of milk, the Municipal Assembly went beyond the limits of legitimate legislation on that subject. It is insisted by the defendant, and in that he is supported by the Court of Appeals of New York, in People v. Biesecker, 169 N. Y. 53, that this provision against the use of any preservative in milk is to be distinguished from those cases sustaining the exclusion of annatto and other coloring substances for the reason that the use of a preservative does not tend to deceive or mislead purchasers and consumers. We think the ground upon which this prohibition against the use of preservatives in milk rests is the right of the Legislature, and in this ease the Municipal Assembly, to pass all needful and proper ordinances to secure the purity of milk, and to prevent any tampering with milk by absolutely prohibiting the use of artificial preservatives — 535 — therein. As said by the Court of Appeals of New York in People v. Girard, 145 N. Y. l. c. 109, “Food should be pure, absolutely and unquestionably pure. No trick should be played with it. The Legislature may resolutely protect it. ’ ’ The argument of the defendant that a preservative stands upon a different basis from mere coloring matter which is liable to deceive, is in our opinion more plausible than sound. It is a matter of common knowledge that milk is a necessary food of the sick and of the infirm, of the old and the young; that through the agency of impure milk the germs of many diseases are disseminated, and even where there is an absence of any deleterious impurity of the germs of specific diseases adulterated or diluted milk is not wholesome and nutritious. [Norfolk v. Flynn, 101 Va. l. c. 475.] In State v. Schlenker, 112 Iowa 1, c. 645, the Supreme Court of that State said: ‘' 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. . . . 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. . . . It maybe 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 defendant of his property, but it does — 536 — impose upon Mm the duty of so using it that no-injury will result to others, most likely to he affected by a disregard on Ms part of the reasonable health regulations that it enacts.” In that ease the defendant put boracic acid in the milk which he sold, and testified that he used it as a preservative, and that its use was necessary to keep the milk from souring, and he introduced experts to show that the quantity of boracic acid used tended to prevent decomposition and would have no deleterious effect on the consumer. The court held that it was not enough to show that the defendant did not intend to defraud, or that the milk he sold was unwholesome. If that be true, almost any law intended to protect the public health and safety might be overthrown; that it was enough that the adulteration such as prescribed by the statute might defraud and prove deleterious to the public health, or comfort; that the Legislature might well determine that the adulteration of milk, tends to facilitate vicious processes, and that it ought to be prohibited. In Com. v. Waite, 11 Allen 264, the court used the following language: “It is innocent and lawful to sell pure milk, and it is innocent and lawful to sell pure water; arid the argument is that the Legislature has no power to make the sale of milk and water, when mixed, a penal offense, unless it is done with a fraudulent intent. But it is notorious that the sale of milk adulterated with water is extensively practiced with fraudulent intent. It is for the Legislature to' judge what reasonable laws ought to be enacted to protect the people against this fraud, and to adapt the protection to. the nature of the case. They have seen fit to require that every man who sells milk shall take the risk of selling a pure article. No man is obliged to go' into the business; and by using proper precautions any dealer can ascertain whether the milk he offers for sale has — 537 — been watered. The court can see no ground for pronouncing the law unreasonable, and has no authority to judge as to its expediency.” In People v. Biesecker, 169 N. Y. l. c. 60, the court said: ‘ ‘ There is doubtless in the prosecution of these industries danger of adulteration and of the use of processes injurious to public health.” . In State v. Layton, 160 Mo. 474, the act of March 11th, 1899, making it “unlawful for any person or corporation doing business in this State to manufacture, sell or offer to sell any article, compound or preparation of food, in which article, compound or preparation, there is any arsenic, calomel, bismuth, ammonia or alum,” came before this court on a prosecution of the defendant for selling and offering for sale Layton’s Health Food Baking Powder, a compound and preparation containing alum. The act'was challenged as unconstitutional because it was insisted that-the said baking powder was wholesome and innocuous and the small amount of alum used therein was not deleterious.' It was clear that the baking powder in question was not an imitation of any standard baking powder and there*; fore did not fall within the doctrine of State v. Addington, 77 Mo. 110, and State v. Bockstruck, 136 Mo. 356, but the constitutionality of the statute was upheld on the ground that it was competent for the Legislature to protect the health, morals and safety of the people, so long as enactments did not transgress the rights secured by the State and Federal Constitutions, and that the court approached the charge of invalidity and unconstitutionality of the act with the presumption in favor of the law, and that when it appeared that there was a dispute as to the wholesomeness of an article of food or drink, then it was a legislative question and the Legislature had the right to inquire for itself, and either prohibit or regulate its manufacture or sale -as to it might seem best; that the constitutionality of the act could not be — 538 — made to depend upon the proof in each individual case whether the article was or was not wholesome. It was said in that case that if an article of food is so universally conceded to be wholesome and innocuous that a court may take judicial cognizance of that fact, the Legislature has no right under our Constitution to prohibit its sale or use. Much of the argument in this ease is predicated upon this last proposition, and the defendant insists that because formaldehyde works such a chemical change in the character of milk that it will' not sour, and because it is for this reason classed as a preservative, the Municipal Assembly could not lawfully prohibit its use in milk. The trial court refused to go into the evidence tendered that formaldehyde in proper quantities was not injurious to health. Evidently it cannot be said that the effect of formaldehyde in milk is so well known not to be deleterious, that the courts must take judicial cognizance of that fact. That its action is such that it changes the chemical properties of the milk so that it will not sour was established and conceded on the trial, and it was for this reason that it was insisted that, as it preserved the milk from souring, it was claimed to be highly beneficial. We cannot accept this conclusion. It must be recognized that it was- a legislative function, in the passage of this ordinance for the preservation of health, to insist that milk should have neither adulterants or preservatives placed in it, and to inquire as to the effect thereof. The Municipal Assembly may have investigated and found this very fact, that when formaldehyde or boracic acid was placed in milk it would change its chemical properties and prevent its souring, and prevent it going through natural processes of oxidation and decomposition, and that thereby the housewife desiring to have the milk,sour for culinary purposes, or the physician administering it as food to children and sick persons would be misled in his calculation as to its effect on his patients. But in addition to this, — 539 — the Municipal Assembly might well have reasoned that while one preservative used in carefully prepared proportions might not be injurious to the health of consumers, it would be exceedingly dangerous to permit the vendors of. milk with little or no scientific knowledge and less scruples, each to select his own so-called preservative, and use it without knowledge as to the quantities which were safe, which would open the door to all sorts of dangerous adulterations and to the use of highly injurious processes, and that the discovery 'of such practices might never be made until incalculable injury had occurred and that the only safe course, considering the nature of the business, was to prevent absolutely the placing of such preservatives in milk having such an effect as was shown in this case. In so doing, the Municipal Assembly in no manner destroyed or affected the defendant’s right of property. He had the right to sell pure and unadulterated milk of the standard prescribed by the ordinance, and the purchaser and the consumer of milk had the right to purchase from him pure milk unmixed with any foreign matter added to it, and this was what the ordinance required, no more and no less, and in so doing, it infringed no provision of the organic law of . this State or any article of the Federal Constitution. The'judgment of the St. Louis Court of Criminal Correction is affirmed. Brace, C. J-, Marshall> Burgess, Vallianty Fox and Lamm, JJ., concur.