State v. Baskowitz

FARIS, J. Defendant, convicted of a misdemeanor and fined in the St. Louis Court of Criminal Correction, for that, as it was charged, he had violated the provisions of section 4831, Revised Statutes 1909, appeals to this court, challenging the constitutional validity of sections 4831 and 4832, Revised Statutes 1909. His attack is bottomed on the broad charge that these sections, which came into our statutes in 1885, through an act entitled, “An act to protect the property of manufacturers, bottlers, and dealers in mineral waters, soda water and other beverages, from the loss of their siphons, bottles and boxes” (Laws 1885, p. 151 et seq.), fall within the category of those enactments which are denounced as “class legislation.” The specific charge contained in the information upon which defendant was convicted, with caption and formal parts omitted, is as follows: “That on September 20, 1898, James M. Dupiech & Company were bottlers, manufacturers of and dealers in mineral water, soda water and other beverages, and used bottles upon which appeared their name and mark of ownership, stamped, cut and affixed thereon, to-wit: ‘ J ames M. Dupiech & Company, St. Louis, Mo. ’ And on said date the said James M. Dupiech & Company, they having an office within the limits of St. Louis, Mo., filed with the recorder of deeds of said city a description of said bottles and of the name and mark — 87 — of ownership of the same, to-wit: ‘James M. Dupiech & Company, St. Lonis, Mo.’ And the said James M. Dupiech & Company published in the St. Louis Chronicle, a daily newspaper published in said city, twice a. week for two successive weeks, to-wit, July 28th, July 30th, August 4th and August 6th, 1898, a notice of the above stated facts. That in the city of St. Louis, on the 10th day of June, 1911, S. Baskowitz was a junk dealer in second-hand bottles, and did in said city,, without the written consent of James M. Dupiech & Company, trade and traffic in, buy and sell, fifty-eight, bottles of the said James M. Dupiech & Company, having his name and mark of ownership, to-wit: ‘James-M. Dupiech & Company, St. Louis,’ stamped, cut and affixed thereon, the description of which had been filed and published as aforesaid; contrary to the form of the statute in such case made and provided and against the peace and dignity of the State.” The proof offered tended to show proper compliance by James M. Dupiech & Company with the provisions of sections 4829 and 4830, Devised Statutes 1909, touching the registry or trade-marking of the bottles about which the controversy here revolved. The possession, which is by the provisions of section 4832, supra, made prima facie evidence of guilt, appears in the record by the following admission: ‘ ‘ That on or about the 10th day of June, 1911, the defendant S. Baskowitz, shipped or delivered to the St. Louis & San Francisco Eailroad Company in the city of St. Louis, the bottles in question for shipment to one Grady at Flat Eiver, Missouri.” Defendant was charged in the information as “a junk-dealer in second-hand bottles,” while the proof on this point showed, and all it showed, was that he “ran at 16th and Morgan streets a second-hand bottle shop.” Further facts, if after a discussion of and a passing upon the constitutional questions raised, they shall yet be pertinent, will be set out in the subjoined opinion. — 88 — OPINION. Statute: Constitutionality: Class Legislation. We are conceding and not controverting the general limitations by which we are hedged about in reaching a conclusion touching whether a statute is constitutional or unconstitutional. We # fully recognize the rule which enjoines ^ entertaining of a presumption in favor of the validity of a statute; as well as the rule which requires us to resolve all reasonable doubts in favor of validity, and to indulge all reasonable inference in support thereof. [State v. Thompson, 144 Mo. 314; State v. Watts, 111 Mo. 553; Kelly v. Meeks, 87 Mo. 396.] In passing it may be said that there is no paucity or meagerness of averment on defendant’s part as to the Constitution or Constitutions, and the provisions thereof, which are alleged by defendant to be violated by the statutes under consideration. He specifically urges that section 1 of the Fourteenth Amendment, and the Fifth Amendment, to the Constitution of the United States, as well as the whole of section 53 of article 4, of the Constitution of Missouri, sections 4,11 and 30 of article 2, of the Constitution of Missouri, all are, and each of them is violated. As premises (minor they may be, but premises nevertheless) we all agree we take it (a) that the defendant is, in the instant case, in a position to urge the unconstitutionality of both sections, supra, because he was convicted for the violation of the substantive provisions of section 4831, by and through the use against him of certain facts (not of direct proof within themselves) made prima facie evidence of such violation by section 4832; and (b) that the construction put upon the sections under consideration by the case of State v. Dinnisse, 109 Mo. 434 (holding that the sort of bottles and containers referred to were those used in the soda and mineral water business only), was and is a correct holding of the application of these sections. — 89 — We concede the correctness of the view that section 4833 is not in anywise involved in this case. This, for the reason urged, that defendant, not having suffered in anywise by reason of its provisions, is not in a position to challenge the constitutionality thereof. He cannot stand far afield and moot questions, to entertain the court withal, hut he must have been in a position to be hurt, and to have suffered hurt in some wise before he can be heard to complain. Necessarily, the scope of this inquiry must include also sections 4829 and 4830. For sections 4831 and 4832 refer to the aforementioned sections for the defining of the sort, and ownership and designated class of bottles (i. e. “registered soda and mineral water bottles”) the trading and trafficking in which constitutes the misdemeanor denounced. Section 4831 draws its whole force and virility from the two preceding sections, and in fact makes specific reference thereto. Without the provisions of sections 4829 and 4830 no offense exists, nor could any prosecution he maintained. Granting so much, in the light of these concessions and agreed premises, let us analyze the sections before us. Section 4831 declares that it is “unlawful for any partnership” (there is no limitation as to kind of partnership, or other words of limitation, or words calling for the application of the doctrine of ejusdem generis), “corporation” (again there are no words limiting the application to any particular sort of corporation, or corporation of any particular business), “dealer” (evidently any dealer, possibly excepting those mentioned in Mr. Hoyle’s esteemed treatise), “manufacturer” (of any and whatever kind), “bottler, junk-dealer or dealer in second-hand bottles, without the written consent of the owner ... to trade or traffic in, buy or sell . . . any such box, tray, bottle, jug, or siphon so marked or stamped . . . and any dealer, partnership, corporation, manufacturer, bottler, junk-dealer or dealer in second-hand bottles, who — 90 — shall violate the provisions of this section, shall he deemed guilty of a misdemeanor.” Certain canons of construction have been laid down for us. In Barbier v. Connolly, 113 U. S. 32, the rule of segregation was stated thus: “Class legislation, discriminating against some and favoring others, is prohibited, but legislation which, in carrying out a public purpose [italics mine], is limited in its application, if within the sphere of its operation it affects alike all persons similarly situated, is not within the amendment.” In Allen v. Pioneer-Press Co., 40 Minn. 120, it was said: “Laws public in their objects may be confined to a particular class of persons, if they be general in their application to the class to which they apply, provided the distinction is not arbitrary, but rests upon some reason of public policy growing out of the condition or business of such class.” What public purpose is subserved by the sections, or either of them, under discussion? Clearly none. No phase of the police power is involved. The sections do not make for better health, or more sanitary conditions. (It might well be that the soda and mineral water business might be regulated for this purpose, but that we do not decide.) This law does not prohibit the refilling of a soda-water bottle, nor the sale of same, nor the trafficking in same absolutely, but it does forbid certain classes of persons from refilling, unless by written permission. Could permission in writing add one jot or tittle toward making clean and sanitary that which was not clean and sanitary before permission was given in writing? So far as this law forbids, permission in writing being had, any person, be he dealer, bottler, or junk-dealer, might fill any of these bottles or containers with sewer water and sell it for attar of roses. Is the public health affected or safeguarded by the “marring or erasing” a name or mark from a box, or tray, or by breaking — 91 — a “registered” bottle or siphon? Keeping’ these provisions and declarations in mind can it be seriously contended that there is any element involved of that phase of the police power having for its object the safeguarding and protection.of the public health? In what way is the public safety, or health, or welfare conserved? In these three things and their corollaries rest the foundation of the police power. Clearly there is here no phase of the police power present in or contemplated by this law. The law discriminates as between bottlers engaged in soda and mineral water business and those engaged in the business of bottling ale, porter, lager beer, milk and patent medicines. The former may “register” their bottles and containers under this act; the latter may not. It discriminates as between bottlers, manufacturers, dealers, partnerships and corporations and private citizens. The words partnership, corporation, dealer, etc., if they be ejusdem generis with the two preceding sections, make the sale, or bare possession of a bottle, by a dealer in or bottler of soda water, a criminal offense, while any other dealer, or a dealer-in any other commodity, could have in his possession such registered bottle or container without being guilty of any offense whatever. If these words are not used in a special sense, and if they refer to any partnership, or any corporation, a firm of attorneys even, or a railroad corporation, would be committing a misdemeanor in having in its possession a single bottle, while a private individual, or a professional man without a partner would be guiltless. Does the act affect then all persons similarly situated? It does not affect all bottlers alike. It does not affect all users of bottles alike. It does not affect all users of trays alike. It does not affect all users of boxes alike; nor does it strike with equal and the same justice those who use the jug. We have seen that it does not equally affect all persons who may be in pos — 92 — session of a registered bottle, box;, jug or tray. Some are made guilty of a crime, while others, doing the same act, are yet guilty of no offense. Section 53 of article 4 of our own Constitution, not granting powers to the Legislature, but limiting them, says in subdivision 26: “ The General Assembly shall not pass any local or special law . . . granting to any corporation, association or individual any special or exclusive right, privilege o'r immunity.” By subdivision 32 of the same section and article, the Legislature is limited “in all other cases where a general law can be made applicable, no local or special law shall be enacted; and whether a general law could have been made applicable ... is declared a judicial question.” Can it be reasonably urged that a general law could not have been passed having for its object the protection of bottlers, or trade-marks? If no such general law could be enacted, how can a special one, under the conditions and facts here, be upheld? But we are not left without well-considered authority on this point. An act similar to this, but broader, in respect at least to the fact that, by its terms, it included bottlers of “ale, porter, lager beer,” as well as bottlers of soda and mineral waters, was passed in Illinois. Yet on full and careful consideration by the Supreme Court of that State, this law was held unconstitutional in that it violated a provision of the Constitution of Illinois identical in import and practically identical in language with ours. This provision of the Illinois Constitution identical with subdivision 26 of our Constitution above quoted, is section 22, article 4, which reads thus: “The General Assembly shall not pass local or special laws . . . granting to any corporation, association or individual any special or exclusive privilege, immunity, or franchise whatever.” [Constitution of Illinois, 1870.] — 93 — Construing the act above referred to, the title of which was: “An act to protect manufacturers, bottlers and dealers in ale, porter, lager beer, soda, mineral water and other beverages, from the loss of their casks, barrels, kegs, bottles and boxes,” in the light of this provision of the Illinois Constitution, the Supreme Court of Illinois said: “The act in question applies only to manufacturers, bottlers and dealers in ale, porter, lager beer, soda, mineral water and other beverages. The term ‘other beverages,’ under the settled rule of construction, includes only beverages of the same kind or class as the particular antecedent terms of description employed in the act. The object of the act, as gathered from its provisions, is to protect and benefit that class of persons. It gives to them the exclusive right to register the names and marks of ownership, stamped or marked on their casks, barrels, kegs, bottles or boxes, and gives to them the exclusive privileges and protection arising therefrom. It confers upon them, the power to call upon the State and its officers and judiciary to act as collectors of their bottles, kegs and boxes which they have voluntarily scattered over the State among their customers.” [Lippman v. People, 175 Ill. 106.] Further discussing generally the law, the constitutional rules and limitations, and the vice of such statutes, the court in the above case said: “General laws have been defined to be those which relate to or bind all within the jurisdiction of the lawmaking power, while a special law is limited in the object to which it applies. It is often the case, however, that the rights and protection given by a law cannot be enjoyed by every citizen by reason of the subject to which the law relates. If the law is general, and uniform in its operation upon all persons in like circumstances, it is general in a constitutional sense, but it must operate equally and uniformly upon — 94 — all brought within the relation and circumstances for which it provides. On the other hand, if it is limited to a particular branch or designated portion of such-persons, it is special. [People v. Wright, 70 Ill. 388; People v. Cooper, 83 Ill. 585; Hawthorn v. People, 109 Ill. 302.] Although general in its character, a law may, from the nature of the case, extend only to particular classes, such as minors, married women, laborers, bankers or common carriers. Such a law is not obnoxious-to the provisions of the Constitution if all persons of the class are treated alike under similar circumstances and conditions, but it is not a proper application of the definition to say that a law is general because it applies uniformly to all persons in the conditions and circumstances for which it provides, although only a particular branch of a class or some particular description of persons. If an act should attempt to confer privileges only on persons of a certain stature it could be said to apply uniformly to all people answering such description, and yet it would be absurd to say that such a law would be a general one. The classification must be so general as to bring within its limits all those who are in substantially the same situation or circumstances. “This act singles out one branch of a class of manufacturers and dealers who may have occasion to use, or who do use in their business, bottles, barrels,kegs or other packages for their goods. It selects those whose particular manufacture or stock consists of certain varieties of drink. No other person who manufacturers any product or sells it in casks, barrels, kegs, bottes or boxes can avail himself of the privilege of registering his trade-mark or of the consequent protection, but the act denies to him the privileges afforded to those named in the act. The grocer, farmer, fruit dealer, merchant, druggist or other dealer or manufacturer cannot avail himself of the privileges or remedy — 95 — afforded by this act to protect himself against the loss of his property under the same circumstances.” The case of People v. Cannon, 139 N. Y. 32 (upon which the State seems largely to rely in the case, at bar), does not discuss or settle any point of pith or moment involved in this discussion. We will not take the time to analyze the Gannon case. Such analysis has already been made in the opinion in Lippman v. People, supra. Commenting upon the Cannon case and upon what it actually held, Mr. Justice Cartwright, speaking for the Supreme Court of Illinois, said: "These questions were neither considered nor decided in People v. Cannon, 139 N. Y. 32, which is the main reliance of counsel to sustain the act. The New York statute is much more comprehensive than this act, and includes dealers in milk and cream and manufacturers and dealers in medicines, medical preparations, perfumery and compounds or mixtures, as well as those embraced in the terms of this act. The validity of this statute was tested on the claim that it granted a monopoly to the manufacturers of beverages by prohibiting the re-sale or gift by a purchaser of the contents of a bottle which the manufacturer refused to sell, and that it destroyed or unlawfully decreased the trade in empty bottles, which is a legitimate trade and entitled to the equal protection of the law. The statute was held not subject to the first objection, and it was said that a buyer of the contents could sell the same in the bottle and deliver the bottle with the contents. As to the second objection, it was held that the additional care required of a dealer in buying empty bottles was not an unreasonable restriction. The statute only applied where the bottle was ndt purchased with the contents from the person or corporation whose trade-mark was on it, and in the three cases heard together the judgments in two were reversed because there had been deposits of money — 96 — as surety for the return of the bottles, which amounted to a conditional sale of them. The decision is not authority on any proposition in this case.” The case of Commonwealth v. Anselvich, 186 Mass. 376, is cited by the State, and seems to have been relied on, by all and sundry urging the constitutionality of the law under consideration, as decisive. Let us examine and consider whether this be so. A conviction in the Anselvich case, supra,- was upheld under section 16, of chapter 72, Revised Laws Massachusetts 1902. This section is as follows: “Whoever fills with a beverage, with intent to sell the same, any vessel, marked or distinguished as aforesaid, the description of which has been filed and published as provided in the preceding section, or defaces, erases, covers up or otherwise removes or conceals any such name, or the word ‘registered’ thereon, or sells, buys, gives, takes or otherwise disposes of or traffics in the saíne, without the written consent of, or unless the same has been purchased from, the person whose name is in or upon the vessel so filled, defaced, trafficed in or otherwise used or disposed of shall, for the first offense, be punished by a fine of not less than fifty cents for each vessel or by imprisonment for not less than ten days nor more than one,year, or by both such fine and imprisonment; and for each subsequent offense, by a fine of not less than one dollar nor more than five dollars for each such vessel or by imprisonment for not less than twenty days nor more than one year. ’ ’ The provisions of said section 16, as will be noted, provide that “whoever fills with a beverage, with intent to sell the same, any vessel, marked or distinguished as aforesaid (i. e., as set out in section 15, which I showPelow) ... or sells, buys, gives, takes -or otherwise disposes of or traffics in the same without the written consent of, or unless the same has been purchased from the person whose name is in, or upon — 97 — the vessel,” is deemed guilty of a misdemeanor. [Italics ours.] Any person is made guilty if he do the things prohibited by the above section. In the section of the Missouri statute here under discussion, some would be guilty and others innocent; it does not apply to all persons, corporations, or partnerships and dealers alike. Besides, absolute sale of the containers may be made under the Massachusetts law by express exception ; they are forbidden under the Missouri law, as is hereafter noticed, except by artifice and indirection. The Massachusetts law applies to all bottlers engaged in manufacturing, bottling or selling beverages, .as note section 15, Revised Laws 1902, which is as follows : “Persons engaged in manufacturing, bottling, or .selling beverages in vessels with their name and the word ‘registered’ branded, engraved, blown or otherwise produced thereon, or on the boxes used by them, may file in the office of the clerk of the city or town in which their principal place of business is situated, and .also in the office of the secretary of the commonwealth, .a description of the name so used by them, and shall publish such description once in each of four successive weeks in a newspaper, if any, published in the city or town in which said description has been filed; otherwise, in a newspaper published in the county in which said city or town is situated.” Under the section supra, any person engaged in manufacturing, bottling, or selling beverages” may "take advantage of this law and be protected. Under our law this is not so; only “soda and mineral water” “bottlers may adopt the law’s provisions, or be given its protection. This is seen to be true from the very .statutory provisions of the Massachusetts statute itself, for the statute itself defines what are “beverages” within the purview of section 15, supra, as note' the terms of section 1 of the act: “The following — 98 — words shall, in addition to their ordinary meaning, have the meaning herein given:' The word ‘beverage’ or ‘beverages’ in section fifteen to eighteen, inclusive, includes also ‘milk,’ ‘cream,’ ‘soda water,’ ‘mineral’ or ‘aerated waters,’ ‘ale,’ ‘beer,’ ‘ginger ale’ or ‘similar beverages.’ ” That this law could be constitutionally valid in Missouri, we verily assert, without crossing this bridge, or so deciding till we reach the question. When viewed in the light of the inclusions and safeguards of the Massachusetts enactment, and when we compare our own statute with that of Massachusetts, can we say that they are similar, and that the upholding of the one must result in the upholding of the other? Most certainly not. In our views the mere setting out of the points of dissimilarity, condemns our own statute beyond a reasonable doubt, and shows more clearly than any argument could, its utter constitutional invalidity. In the light of the record, and for the mere purpose of reversal or affirmance of this case, it may be legally sound to assume that, since there is no proof in this record that any other bottlers or manufacturers of any other vended beverages, carry on their business in the same way that soda water bottlers do, the Legislature had the right to erect this business into a class, because there is in fact no other business which by its methods falls into the same class. In short, if it be urged that even though the law here be constitutionally invalid, because it is class legislation, yet as the record is silent as to the manner of dealing of other bottlers (e. g., bottlers of milk, ale, beer, porter), we cannot judicially notice that the latter sort of bottlers do business just as the soda water bottlers do. _ On the specific question of judicial notice, we agree, but we do not regard this as precluding the constitutional investigation. We may not notice without proof the business methods of other bottlers, but — 99 — we can judicially notice that there are others engaged in vending beverages, medicines and divers other liquids in bottles, who might desire to take advantage of this registry law, and who might desire to be protected from the loss of their property by interposing the criminal provisions of section 4831. There is no escape from the conclusion that this law was passed for the sole and exclusive benefit and protection of manufacturers of glass bottles used in the soda and mineral water business, and of dealers therein and bottlers thereof, and that it excludes from its benefits and protection all other persons and citizens of this State who may use, or who may desire to use, in the conduct of their business, bottles or other ves-. seis, with their names engraved, cut, stamped, etched or otherwise affixed thereto or thereon, such as dairymen, druggists, brewers of ale, lager beer, porter, as also every other business the nature of which requires it to furnish to its customers a container for the delivery of its commodities. Affecting then those only, and the bottles and other receptacles only, of the soda water business, can there be two views as to whether such a classification is not both unreasonable and arbitrary? We think it impossible in the light of the similar statutes of other states and the construction thereof, in this opinion set out and discussed. As we have already seen there is no phase of the police power involved; the sole object of the law is for the benefit of the soda water business, and to this end it aids the persons named -to recover back their hot-., ties, boxes and trays, which they have permitted to go out of their possession in the usual and ordinary course of transacting their business. Why should the law thus favor the soda water dealer, while denying the right of registry and recovery of containers (under the act’s provisions), and the right of search, to countless other lines of business, which likewise use, or ’ might use, bottles, boxes and trays with their names — 100 — blown or cnt, or stamped, or engraved thereon, in delivering their commodities to their customers. The very statement of the facts brands the classification of this act as arbitrary and unreasonable and therefore unconstitutional. [Compare State ex rel. v. Ashbrook, 154 Mo. 375; State v. Julow, 129 Mo. 163.] There is no provision in this section for the sale or conveyance of title to a registered bottle or container. So, if the owner, in whose name registry thereof had been had, desired to sell his bottles in good faith and absolutely, he would be unable to do so by the ordinary manner of sale, without rendering his vendee liable to prosecution for being in possession of registered bottles. This view we get from the face of these statutes. If it be contended that the provision forbidding use or possession of registered bottles “without written permission,” would fully protect a vendee, then these sections restrict the right to contract; they require an instrument in writing to pass the title to this particular kind of personal property, whereas, title to other personal property passes by delivery made with the intent to pass title. Furthermore, it is clear and patent that this act (originally passed in 1885 as “an act to protect the property of . . . bottlers and dealers in mineral waters, soda water, and other beverages, from the loss of their siphons, bottles and boxes.” Laws 1885, p. 151), transgresses also that subdivision of section 53 of article 4 of the Constitution of Missouri, which we have already quoted, and'Which provides that “where a general law can be made applicable, no local or special law shall be enacted.” By the express terms o'f the Constitution, the determination of the question of applicability is remanded to the courts to be by them alone resolved, regardless of legislative assertion. If the act under consideration is special, then it is unconstitutional; if a general law could have been — 101 — passed affecting the same persons, then this act is unconstitutional. The question of whether it is special or not has been under discussion herein at much length, and need not be further adverted to. It would seem that the mere putting of the question as to whether a general law can be made applicable, would be to answer it in the affirmative. Without going into the methods of accomplishing this, and without suggesting ways and means thereof, of which two or three different ones occur to us, it ought to be sufficient to call attention to the admirable enactment of the State of Massachusetts on this subject, which has already been quoted from, and which occurs in chapter 72, Revised Laws. 1902, of that State. If the Legislature of Massachusetts can pass and has passed a general law on this subject, cannot the Legislature of Missouri likewise pass such a law? We need not look to the Constitution of Massachusetts to determine this. If their law will be good under our Constitution, it makes no difference whether it is good or bad under theirs. They have, however, held it to be constitutional. We are convinced -that the result sought to be attained by these statutes is meritorious; that a constitutional enactment regulating the subject-matter would minimize theft and the receiving of stolen property, and make for morality; that viewed in the concrete case defendant’s condition and attitude excite no emotion, except condemnation, but we are constrained to line these statutes by the Constitution, disregarding our conception as to the moral phase and the eternal fitness of things. We are thoroughly convinced that it will be long before we are confronted judicially by a statute which so' clearly and indubitably violates so many different provisions of our Constitution as do these here considered. So deeming it, we so hold it, thus obviating the necessity of passing on other matters urged. It follows that the judgment here should — 102 — be reversed and tbe defendant discharged, and so it is ordered. Lamm, C. J., and Graves and Bond, JJ., concur; Woodson, J., dissents in opinion filed; Brown and Walicer, JJ., dissent.