author: LAMM, J.

text:
    CITY OF ST. LOUIS v. GEORGE AMELN, Appellant.
    In Banc,
    July 1, 1911.
    1. ACTION: Quasl-Crlminal: Proceeding by City to Recover Penalty. A proceeding in the name of a city to recover a penalty for the violation of an ordinance, such as an ordinance forbidding the adulteration of milk, is a criminal one from some points of view, but it is also a civil proceeding from other view points. The best the law has been able to do is to call it civil or ffiiasi-criminai in character.
    2. -: -: -: Sufficient Complaint. Strict rules applicable to criminal informations are not applied'to the complaint filed by a city to recover the penalty for the breach of an ordinance. Generally it is sufficient to charge the offense in the language of a clearly-expressed ordinance and with such certainty of time, • place and manner as to reasonably notify defendant of the charge preferred.
    S. -: -: -: -: Omitting Section Number. Usually the complaint, in a proceeding to recover the penalty for the breach of an ordinance, alleges the section of the ordinance violated as one earmark of identification. But where the ordinance is short and where the offense is plainly differentiated, a reference to the section fills no appreciable office, and an omission of the section number does not render the complaint bad.
    4. -: -: -: -: Adulteration of Milk by Adding Water: No Allegation of Standard.' Where the ordinance declares that milk shall be deemed to be adulterated if any substance have been mixed with it “so as to lower or depreciate or injuriously affect the strength, quality or purity” or “if any substance have been substituted wholly or in part,” it is not necessary that a complaint charging the adulteration of milk by adding water allege a fixed standard by which to judge' strength and quality. Courts take judicial notice of the laws of nature, and one of them is, as all men know, that water is bound to lower and depreciate the strength and quality of milk of any standard.
    5. ORDINANCES: Must be Proved. Courts do not take judicial notice of the existence of ordinances and by-laws of cities, towns 1 and villages. To be considered they must be offered in evidence as other evidential matters. A defendant on appeal cannot be heard to contend that, if prosecuted at all, he should have been pursued under an ordinance which was not offered in evidence.

      6. MILK ADULTERATION: Possession: Selling: Conflicting Ordinances: Prosecution Under Wrong One. Ordinance 24297 of the city of St. Louis and section 499 of the Municipal Code of 1907 are not in conflict. Ordinance 24297 says that “no person shall have in his possession, with intent to sell, any milk which is adulterated,” and section 499 says that “any person who shall adulterate milk with a view of selling or offering the same for sale or shall deliver the same to a purchaser, shall be deemed guilty,” etc. The last section is leveled against the act of adulteration; the other, against the act of having the adulterated article in possession with intent to sell. So that a defendant charged with having “in his possession, with the intent to sell and offer and expose to sale,” skim milk adulterated with water, cannot successfully contend that he should have been prosecuted under section 499, instead of Ordinance 24297, as he was;0 nor does he establish his defense by showing he did not put water in the milk found in his possession and being offered for sale by him.
    7. ORDINANCES: Conflicting with Statute on Same Subject. In the case of conflict between a statute enacted by the General Assembly and an ordinance enacted by a municipal assembly,, in a field where the right to legislate is concurrent, the ordinance must give way. But where the statute is silent the ordinance may speak.
    8. -: -: Milk Adulteration: Pure Food Law. Section 640, R. S. 1909 (being Sec. 10, Laws 1909, p. 113), denounces-the selling or offering for sale or delivery to another adulterated milk. It is silent on the subject of having adulterated milk in possession with intent to sell. A city ordinance, therefore, that makes it an offense to have in possession milk adulterated with water, with intent to sell, etc., is not in conflict with that, statute; and a prosecution under the ordinance may be sustained.
    9.---: -: -: -: Secs. 640 and 6595 In Pari Materia. Since the phrase “injurious to health” is used in Sec. 640, R. S. 1909, only in connection with milk “sold, offered or exposed for sale containing foreign substances or preservatives of any kind,” the substance or preservative must be injurious to health in order to constitute the particular misdemeanor dealt with in that part of the statute, and, if that were all of the statute, and as water is not injurious to health, the ordinance, prohibiting one to have in his possession, with intent to sell' milk adulterated with water, would be broader than the statute. But that statute also malees it a misdemeanor to sell “adulterated” milk for domestic use; and besides, that section must be read in connection with section 6595, with which it is in pari materia, and which declares that any food shall be deemed to be "adulterated” if any substance have been mixed with it “so as to lower or depreciate or injuriously affect its strength, quality or purity,” and therefore it cannot be held that the public policy of this State is to permit the sale of watered milk so long as a scientific standard is observed. There is no conflict between these statutes and an ordinance forbidding, under penalty, any one from having in his possession, with intent to sell, skim milk adulterated with water.
    Appeal from St. Louis Court of Criminal Correction.— Hon. Benjamin J. Klene, Judge.
    Affirmed.

      Wm. L. Bohnenhamp and. E. F. Stone for appellant.
    (1) The ordinance expressly provides that it shall apply only to cases of “adulteration” not included within the “methods of adulteration prohibited by the Revised Code of St. Louis.” Defendant is charged with mixing with or adding ‘ ‘water” to skimmed milk. Therefore, if there was at the beginning of this prosecution, in May, 1909, any provision of the Revised Code of St. Louis which expressly prohibited the adulteration of milk by mixing or adding “water” by name and providing a punishment therefor, then this prosecution must fall, as having been instituted and proceeded with under the wrong ordinance. The allegations of the complaint, and provisions of ordinance 24,297, and section 499 of the said Revised Code, both in evidence, show beyond doubt that the city has proceeded under the wrong ordinance; and this position is conclusive when all the evidence is taken into consideration. The particular mention of certain things in one statute will withdraw such things from the application of the general words of another statute which would otherwise embrace them. Gilkeson v. Railroad, 222 Mo. 204;-State ex rel. v. Slover, 134 Mo. 19; St. Louis v. Kaime, 180 Mo. 319; Poon v. Watson, 92 Mo. App. 96; Sutherland on Stat. Const., see. 217; Ruschenberg v. Railroad,. 161 Mo. 70. (2) Ordinance 24297 is also invalid and ineffectual in its application to the adulteration of milk by the use of “water” for the reason that it is a general ordinance that by itself would include adulteration of milk with water, but there is another ordinance provision,- section 555, Rev. Code 1907, which applies specially and particularly to adulteration of milk with “water,” and, therefore, withholds such adulteration from the application of said general ordinance 24297, and said prosecution should have been under said section 555. (3) Ordinance 24297 being general, and including the adulteration of milk -with “any substance or substances,” and said sections 499 and 555 applying particularly to adulteration of milk with a specially named substance, “water,” they are, necessarily, in conflict. Gilkeson v. Railroad, 222 Mo. 205; Ruschenberg v. Railroad, 161 Mo. 70. If so, then ordinance 24297 is invalid and ineffectual, for it does not repeal said prior sections, 499 and 555 in “express terms,” as required by the Charter of St. Louis, article 3, sec. 28. (4) The complaint fails to set forth facts sufficient to constitute any cause of action against defendant, or a violation of any ordinance of the city of St. Louis, and especially ordinance 24297. In an action to recover a penalty for the violation of a by-law or ordinance, the complaint should state facts which make, liability of the defendant distinctly to appear. Dillon, Mun. Corp. (4 Ed.), sec. 415 A; Beach on Pub. Corp., sec. 532. There are many cases where it is only necessary to charge the offense in the language of the ordinance or statute. But this rule only applies where the ordinance so clearly individuates and describes the offense in its very language, that defendant and the court can tell what the offense that he is to be tried for really is. Where the language of the ordinance does not do this, there must be further statements descriptive of the offense and alleging the illegal act committed. The offense described in the ordinance does not consist only of “water” being mixed with skimmed milk, but it must be mixed with it “so as to lower and depreciate its strength and quality.” What “strength and quality”? Does it mean that which the milk had prior to the adding of the water? Or does it mean “strength and quality” as fixed by a standard provided by law or ordinance? Or does it mean “strength and quality” which it should have in the judgment of the chemist making the analysis? Whichever it may be, the allegations should be sufficient to inform the defendant and not leave it to be guessed at by him, the court or the lawyers. Said complaint, is vague, uncertain and indefinite, and leaves defendant without any show of defending himself, except to swear that he added or mixed no “water.” The allegation, “so as to lower and. depreciate its strength and quality,” is a mere conclusion and no statement of fact or information. Lippman v. City, 84 Ind. 276; Johnson v. City, 48 Kan. 129; Fink v. City, 17 Wis. 27; State v. Smith, 66 Mo. App. 405;-State v. Wilkson, 36 Mo. App. 380; State v. Goulding, 44 N. H. 284; Shivers v. Newton, 45 N. J. L. 477. (5) Said ordinance is null and void, as having been repealed by the Legislature, Laws 1909, pp. 118-119. Said ordinance is in conflict and inconsistent with Sec. 10 of said act. Said ordinance makes the mixing of “any substance or substances” with milk an adulteration. Whilst said section 10 of the statute makes the adding of any foreign substance “injurious to health” an adulteration. These provisions are in conflict. St. Louis v. Wortman, 213 Mo. 131.

      Lambert E. Walther and A. H. Roudebush for respondent.
    (1) Section 499, Revised Code of St. Louis, does not prohibit the offense here charged, and the complaint was properly based on ordinance 24297, which does. (2) Section 555 was not offered in evidence and will not‘be judicially noticed. St. Louis v. Liessing, 190 >Mo. 49. The complaint could not have been based on See. 555 because it does not prohibit the offense in question. (3) Neither Sec. 499 nor Sec. 555 is in conflict with ordinance 24297. St. Louis v. Klausmeier, 213 Mo. 131. (4) The complaint is sufficient because it describes the offense in the language of the ordinance. St. Louis v. Weitzel, 130 Mo. 600; St. Louis v. Knox, 74 Mo. 80; Louisiana v. Anderson, 100 Mo. App. 341; Springfield v. Ford, .40 Mo. App. 586; St. Louis v. Liessing, 190 Mo. 464; St. Louis v. Bippen, 201 Mo. 528. (5) The act of 1909 prohibits adulteration of milk, and the ordinance properly defines it. Hence there is no conflict. Webster’s Int. Diet., “Adulterate; •debase”; 1 Am. and Eng. Ency. Law, 738; 1 Bouvier’s Law Diet., “Adulterate;” St. Louis v. Klausmeier, 213 Mo. 127. Another statute defines adulteration and defines it in the language of the ordinance. Laws 4907, p. 239, sec. 4, cl. 1. There is no conflict between the statute and- the ordinance in question, and the case of St. Louis v. Wortman is not applicable. Laws 1905, p. 133, sec. 5; Laws 1907, p. 239, sec. 4, cl. 1; Laws 1909, p. 118, sec. 10; St.-'Louis v. Wortman, 213 Mo. 148..
   LAMM, J.

— Summoned and found guilty 'in the first district police court of St. Louis on the complaint of the city for violating a milk ordinance, defendant took an intermediate appeal to the court of criminal correction. Found guilty there and fined $25, he, in apt time and on due'steps, appeals here.

The material record follows:

The complaint reads:

“George Ameln, to the-City of St. Louis, Dr.
“To One Hundred Dollars for violation of an ordinance of said city,
“Entitled: An ordinance to prohibit the. sale of milk and cream which are adulterated.or misbranded within the meaning of this ordinance and prescribing penalties- for violation thereof. Being ordinance No. 24297, approved March 26, 1909. In this, to-wit: In the city of St. -Louis and State of Missouri, on the 22nd day of April, 1909, and on divers other days and times prior thereto, the said George Ameln did then and there have in his possession with intent to sell and offer and expose for sale at alley near Texas and Shenandoah avenue in said city of St. Louis, skimmed milk, which said skimmed milk was adulterated in that a substance to-wit, water, had been mixed with it so as to lower and depreciate its strength and quality, contrary to the ordinance in such case made and provided, on information of Thomas A. Buckland, city chemist.”

Omitting (as immaterial) title, ordaining clause and sections 3, 4 and 5, ordinance 24297 reads:

“Section One. No person or persons, firm or association of persons, company or corporation shall, within the city of St. Louis, sell, offer or expose for sale, or have in his or its possession, with intent to sell, any milk or cream which is adulterated or misbranded within the meaning of this ordinance, or cause or procure the same to be done by others.
“Section Two. In addition to other methods of adulteration prohibited by the Revised Code of St. Louis, milk or cream shall be deemed to be adulterated, First, If any substance or substances have been mixed with it so as to lower or depreciate or injuriously affect the strength, quality or purity. Second. If any substance or substances have been substituted wholly or in part for the same. Third. If it is mixed or. colored in a manner whereby damage or inferiority is concealed, or if by any means it is made to appear to be better or of greater value than it really is.”

As pertinent to certain of his propositions, defendant read into the record sections 499 and 505 of the Revised Code of St. Louis, annotated by Woerner, 1907, viz.:

“Sec. 499. Adulteration, Etc. Misdemeanor — Penalty — Exceptions. Any person who shall, by himself, or by his servant, agent or employee, adulterate milk or cream, or change it in any respect by the addition of water, skimmed milk, or of any foreign substance, or by the removal of any constituent, with a view of selling or offering the same for sale or exchange, or shall deliver same to a purchaser, otherwise than with its due proportion of each of its natural components, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be fined not less than twenty-five dollars nor more than one hundred dollars for each and every offense.
“Sec. 505. The following regulations shall govern the sale of milk known as skimmed milk.
“First. All milk which contains not less than ten and five-tenths per cent of total solids and one and five-tenths per cent butter fat, which is of a specific gravity between one thousand and thirty-two and one thousand and thirty-eight, which is free from foreign additions of any kind, and any evidence of decomposition, which is stored,, transported and delivered to purchasers at the temperature provided in this article for sweet milk shall be known as skimmed milk, and may be lawfully sold as such under the following regulations:”

An inspector of the city chemist’s office, at the time and place mentioned in the complaint, took a sample bottle of milk from defendant's milk wagon while the driver was on his route, and delivered it, sealed, to the assistant city chemist. Said assistant, Moody, qualified as an expert by showing he earned the degrees of B. S. from Dartmouth, and M. S. and Ph. D. from Yale, taught mathematics for three years at McKenzie College, Sao Paulo in Brazil, chemistiy a year dn Yale, analytical chemistry the rise of a year in the University of Wisconsin and had been assistant city chemist in St. Louis since December, 1907. At Yale he took a course on food analysis, had been employed m the agricultural experiment station of Couresticut and was versed in the chemical analysis of milk. He analyzed the milk in the sample bottle and said it contained “added water,” and that water, added to milk, lowered and depreciated its strength and quality and made it less valuable than it should be. The sample fell short of ordinance requirements in specific gravity, butter fat, non-fatty solids, and ash, was below extremely poor samples of milk. In fine, the analysis showed, if Moody is to be credited, that the milk had been “treated with water.”

Defendant having taken the stand in his own behalf, the bill of exceptions shows this followed:

“Q. Do you prepare your milk for your routes? A. Yes, sir.
“Q. I will ask you, Mr. Ameln, if you, on the 22d of April — it is charged that you, on the 22d of April, 1909, had water in your milk— A. I didn’t put no'water in there.
“The Court: Wait until he finishes the question and see what he asked you.
“Mr. Bohnenkamp (To stenographer):. Read the question. Question read.
“Mr. Bohnenkamp: That is all.”

The case was tried without a jury. Instructions were asked by defendant and refused. Motions to quash, for- a new trial and in arrest were filed and overruled. There is no call to reproduce any of them. It is sufficient to say of them that defendant’s grievvances were made and decided below — i. e., the angles or points from or on which his brief attacks the validity of ordinance 24297 and the complaint appeared below, and are rightly here for review on exceptions saved.

Epitomized, they may be said to be:

(1) The complaint is bad.

(2) The gravamen thereof being the adulteration of skim milk by water, the prosecution is under the wrong ordinance. Ameln should have been charged ■with violating section 499, Revised Code of St. Louis, 1907, supra, and not ordinance 24297, supra, which latter became a law in March, 1909. Or if not prosecuted under section 499, he should have been prosecuted under section 555 of said Revised Code, which provided that the selling or offering for sale of any milk adulterated with water, etc., is a misdemeanor — ■ neither being repealed in “express terms,” as the charter requires, and both being in conflict with ordinance 24297.

(3). Ordinance 24297 is in conflict with section 10 of an Act of the General Assembly concerning Agriculture, etc., and creating a Bureau of Dairying (Laws 1909, p. 113, now R. S. 1909, sec. 640); hence is null and void.

All we shall say can be appropriately said under those heads.

I. Of the complaint.

A proceeding in the name of a city to recover a penalty for the breach of an ordinance is a criminal one from some points of view. It invokes some of the ideas, terminology and machinery of the criminal law, but it is also a civil proceeding from other view-points. The best the law has been able to do is to call it civil or giiasi-criminal in character. [Ex parte Hollwedell, 74 Mo. 395; St. Louis v. Weitzel, 130 Mo. l. c. 612.] The rule is to not apply to pleadings in such proceedings the strict rules applicable to criminal informations. They are accorded a sensible treatment more akin to that given pleadings in magistrate courts. Generally, it is sufficient to charge the offense in the language of the ordinance and with such certainty of time, place and manner as to reasonably notify defendant of the charge preferred, thereby enabling him to prepare his defense and subsequently to plead res judicata or (if criminal terminology is to be used) autrefois convict or autrefois acquit. [St. Louis v. Weitzel, supra; St. Louis v. Bippen, 201 Mo. l. c. 531-2.]

There might be a case where the ordinance isi so “darMy penned” that additional descriptive words are necessary to set forth the offense so that liability would clearly appear. But we see nothing in this case bespeaMng such exception.

Usually the complaint alleges the section of the ordinance violated as one earmark of identification. But where the ordinance is short, as here, and where the offense is plainly differentiated, as here, a reference to the section fills no appreciable office. Defendant does not criticise the complaint because the section number is omitted.

The criticism is that the mixture of water with skim milk must be “so as to lower, and depreciate its strength and quality.” The idea advanced seems to be that the complaint is deficient in not setting forth some fixed standard by which to judge “strength and quality.” Otherwise (so the argument runs) the standard might be an ideal one in the chemist’s mind, or one prescribed by ordinance, or the condition of the milk prior to the addition of the water might be the standard; hence the complaint should throw light thereon, so defendant^ might know by which measuring rod or standard his act is to be measured or judged— that course would provide a check to the testimony of the chemist. But we shall assume that science can detect the addition of water to milk, whether the dairyman's cows gave poor milk or rich milk, regardless too of any mere ideal standard in the chemist’s mind or of any ordinance standard. It is nothing to the point to say there is a large percentage of water in milk as it comes from the cow. That particular water has been so treated by the subtle and mysterious alchemy of nature that presumably it. holds in solution such delicately adjusted and blended proportions of fatty and non-fatty solids as make normal cow’s milk (wholesome to all) a necessity to the young. Milk, an object of profound and vigilant concern to the modern lawmaker, has been always part and parcel of the daily life, the adages and folklore of mankind. For example: We are told not to cry over spilt milk — that is, not to fret over real loss that can’t be helped. The Russian has an adage, That which is taken in with the milk only goes out with the soul — that is, early impressions last till death. The Swede has one denoting hospitality, viz.: When there is milk in the can for one, there is milk in the can for two. In the phrase, “The milk of human kindness,” ..is expressed the very heart and office of that gentle but noble virtue. The bard of bards does not hesitate to connect milk and philosophy, deeming that neither loses dignity by the juxtaposition, he speaks of “Adversity’s sweet milk, philosophy.” All such amiable metaphors, saws, similes, associated ideas and folklore eschew the belittling idea of water in' milk, contra, the milk held in mind is good milk. I recall but one instance to the contrary (seemingly the inadvertence of a daring and erratic genius) viz.:

“Oh, Mirth and Innocence! Oh, milk and water!
Ye happy mixtures of more happy days.”

Indeed, the universal,, primal and spontaneous-mental conception we have of milk, in the first instance, is that it is unwatered. Take one case for an example: Milk and honey are emblems of pastoral good luck, peace and plenty — a large and a goodly land. Witness the phrase, A land flowing with milk and honey. [Ex. Ill, 8; Jer. XXXII, 22.] But what a derisive picture would rise to harass the imagination by use of the phrase, A land flowing with watered milk and honey? -

We think the ordinance proceeds on the notion that however much the cow waters her own milk in her humble and honest way (letting nature take her course), the milkman has no right to designedly duplicate nature’s gift of water by a furtive gift of his own from the barnyard pump, It proceeds on the underlying theory that it is a fraud, a trick and a veritable cheat — contrary to the common law and hence of that phase of it known colloquially as the “square deal”— to sell water, when milk, not water, is the commodity dealt in. If one is not to get a stone who asks for bread, no more (under the spirit of the ordinance) is he to get water who asks for milk.

But, coming closer to the point, if the mechanical addition of water did not in the very nature of things lower and depreciate the strength and quality of milk of a named .standard, then, by that token, a “standard” would be of substance and fill an office in defining the offense. But the fact is not so. Per contra, we will take judicial notice of the laws of nature, and one of them is: Water is bound to lower and depreciate the strength and quality of milk, of any standard. ‘ ‘As weak as water” is a comparison summing up the whole, brood of weaknesses; ergo, a standard is not an essential element in a charge of adulterating milk by adding water. In this view of it, is not the ingenious argument of learned counsel unsound? We think so. Accordingly we hold the complaint well enough and rule the point against defendant.

II. Is the prosecution under the wrong ordinance ?

Under this head the contention splits in twain. The first branch runs on the theory that if Ameln be guilty, his guilt springs from a breach of section 499, Revised Code of St. Louis. The second runs on the theory that if he be not guilty under that section, he still should not have been pursued under- ordinance 24297, but under another section of the municipal code, viz., 555.

Of these contentions in reverse order.

(a). There is no. substance in the last proposition. To consider it would be but to amuse ourselves by sitting down to a Barmecide feast. Witness: Said See. 5 was not offered in evidence. True, it is quoted in counsel’s brief and we are invited to consider it. That we may not do; for it is a very stiff and wise rule that courts will not take judicial cognizance of the mere ordinances and by-laws of villages, towns and cities. They are evidential facts to only cross the line of judicial vision, if at all, by being first made part of the record. To go outside the case to decide the case is, as has been said of old, to embark on a shoreless sea without chart, rudder or compass. “Keep within the record” is a stern and cardinal precept of the law. [St. Louis v. Roche, 128 Mo. l. c. 544 et seq.; Bailey v. Kansas City, 189 Mo. l. c. 514; St. Louis v. Liessing, 190 Mo. l. c. 490.]

By force of that rule we put section 555 away from us, “sub silentio and with averted eye.”

(b). The last proposition is delicate and nice. It is better elucidated by outlining the argument advanced in its support, viz.:

Counsel say in effect, ex vi termini, ordinance 24297 (quod vide) is limited and confined in its application to narrow and inflexible bounds, viz., to those cases only where the adulterations charged differ in kind from those struck at by the municipal code of 1907. Now, the municipal code (Sec. 499, supra, quod vide) counsel say denounces the* adulteration of milk by adding “water;” therefore the offense of watering milk was already provided for before the passage, on March 26, 1909, of ordinance 24297. In this view of it the prosecution should have been under section 499.

Moreover, in the evolution of their argument, they say section 499 is special, while ordinance 24297 is general. Having reached that conclusion they invoke the doctrine that where there are two statutes and the provisions of one apply specially to a particular subject clearly including the matter in question, and the other is general in terms and such that if standing alone it would include the same matter, and thus conflict with each other, then the special act must be taken as constituting an exception to the general act. Applying that doctrine, they say the prosecution should, have been based on section 499, not on 24297, as it was. •

The instant case is one of an aggregation of cases submitted together to test the legality of certain milk ordinances of St. Louis. In some of them ordinance 24297 is criticised from another side, but the foregoing sufficiently indicates the scope and character of the criticism in hand.

An analysis and comparison of the terms of ordinance 24297 and of section 499 of the municipal code show the one covers a different field from the other. They are leveled at different phases of the subject. The complaint in this case counts on Ameln’s having “in his possession with the intent to sell and offer and expose for sale,"etc., skim milk adulterated with water, etc. That allegation connects itself with the language of ordinance 24297, viz.: “No person . . . shall . . . have in his . . . possession with intent to sell, any milk . . . which is adulterated,” etc. Turning to section 499 of the municipal code, so far as pertinent it reads: “Any.person who shall . . . adulterate milk . . .” (in enumerated ways) “with a view of selling or offering the same for sale . . . or shall deliver the same to a purchaser . . . shall be deemed guilty of a misdemeanor,” etc. It will thus be seen that section 499 is leveled against the act of adulteration with the intent pointed out — to be guilty under that section one must create the contraband milk; while ordinance 24297 is leveled against the act of having in possession the contraband milk with the intent, etc. — to be guilty under that ordinance one need not create the contraband mixture, he need only have it in possession with the interdicted intent. Ameln was charged and convicted of the latter offense, viz., of having the forbidden milk in possession with the intent denounced. He testified he did not create the forbidden thing himself; that is, water his milk. • But he said nothing about having it in his possession. 'His predicament is that of a man who, charged with a certain offense, undertakes to acquit himself by testifying he was not guilty of another and separate offense — ■ palpably a shot at the wrong mark; therefore a' miss, not a hit.

Something was made, ore tenus, of a supposed or possible case— put thus: A milk peddler buys watered milk in bulk for his trade in good faith, i. e., in ignorance of the water and honestly believing it unwatered. He has the mixture in possession with intent to sell. Query. Can he be convicted under the terms of the ordinance? That raises the question of guilty knowledge, the scienter, in prosecutions under pure food laws. Must a dealer know, must he have a criminal intent, before he can be -adjudged guilty? Or is the burden and duty on the dealer to inform himself in the premises before handling contraband goods? Which of the two (the innocent and deceived public or the innocent and deceived dealer) must suffer? Something of substance might be said on both sides of that proposition — one not unknown to the enforcement of laws relating to pure foods. But the question does not arise on the record in this case and, therefore, is in the air. When, if ever, a case is here involving and turning on that question, then will be the fit time and season to decide it.

There is no conflict in the particulars discussed between ordinance 24297 and section 499 of the municipal code. They do not relate to the same offenses. Accordingly, the proposition up is ruled against defendant.

III. Does the ordinance conflict with Revised Statutes 1909, section 640 — the latter being section 10 of the Act of 1909 (Laws 1909, p. 113).

Section 640, Revised Statutes 1909, is an elaborate attempt - at State regulation of the sale of milk under the police power. As the voice of the State lawmaker is paramount to that of the municipal lawmaker, and as the duty of the latter is to conform to the former, in a field where the right to legislate is concurrent, in case pi conflict between a State law and a municipal ordinance, the latter must give way. [St. Louis v. Wortman, 213 Mo. 131; St. Louis v. Klausmeier, 213 Mo. 119.]

Attending to that section, it contains a series of enumerated and interdicted kinds of milk, each connected with the other by the disjunctive conjunction “or,” and all relating to the selling, offering or exposing for sale anywhere in this State any milk or cream of the several kinds described. The law is so framed that a swarm of separate offenses might arise. One of them strikes at milk mixed with foreign substances or preservatives “injurious to health.” Another, at the sale for domestic or potable use of “any unclean, impure, adulterated or unwholesome milk.” The section describes and forbids the sale of other milk not material here. It is long and will not be reproduced.

The ruling heretofore made in the analysis and comparison of ordinance 24297 with section 499 of the municipal code in clause b of paragraph, II of this opinion, to the effect that they were in.part leveled at different phases of the same subject (viz., the ordinance struck at the possession of adulterated milk with the intent to sell, offer to sell or exposure to sale, while section 499 of, the municipal code struck at the act of adulterating itself with a view of selling), bears upon the proposition now under consideration. The pertinent language of the State statute (Sec. 640, supra) is: “Whoever shall sell or offer or expose for sale anywhere in this State any milk ... or shall sell or offer for sale or deliver to another . . . adulterated or unwholesome milk • . . . shall be guilty of a misdemeanor.” Observe, the statute denounces the selling or offering for sale or delivering to another milk under the ban. It is silent on a phase of the matter covered by the .ordinance, to-wit, possession with the intent to sell. Hence, under the ruling in clause b of paragraph II there is no conflict between the ordinance and the statute in that particular. The doctrine of this court is that where the statute is silent the ordinance may speak. [St. Louis v. Klausmeier, 213 Mo. l. c. 127.] Furthermore, the statutory phrase, “injurious to the health,” is used only in connection with milk “sold, offered or exposed for sale containing foreign substance or preservatives of any kind.” In such case the substance or preservative must be injurious to health in order to constitute the particular misdemeanor dealt with in that part of the statute. If that were all of tjhe statute, it might well be argued that, as pure water is not injurious to health, the ordinance is broader than the statute and therefore in conflict. But, as said, it does not stop there. It goes on and makes it a misdemeanor to sell or offer, etc., “adulterated” milk for domestic or potable use. That statute must be read with another, a prior one, Revised Statutes 1909, section 6595 (Laws 1907, p. 239) defining the adulteration of food. They are in pari materia.

Section 6595, supra, provides, inter alia, as follows: “Food shall be deemed to be adulterated: 1. If any substance or substances have been mixed with it so as to lower or depreciate or injuriously affect its strength, quality or purity.” Keeping in mind the statutory definition of “adulterated,” it may not be soundly argued (as it was in effect at this bar) that the public policy of this State is to permit the sale of watered milk, so long as a scientific standard is observed. The boasted mind of man that encompasses the great may be allowed to encompass the small, and it is but a small grain of sand on the shores of common knowledge, that water lowers, depreciates and injuriously affects the strength, quality or purity of cow’s milk. Milk is the food of foods. The felicity of the table hinges on milk. Nay, considered by and large, bar milk, and how long would the race itself last? We know, too, that cow’s m'lk is a respectable and common substitute for mother’s milk. To injure the young is to grind the seed corn. It being essentially a food, when the Legislature two years later used the word “adulterated” in section 640, supra, in connection with food, it was presumably connected in the legislative mind with its prior legislative definition in section 6595 — a definition on all-fours with that of standard lexicographers and with ordinance 24297.

On such premises, we hold there is no conflict between the ordinance and the statute,-and that they are neither inconsistent nor irreconcilable with each other.

It follows that the conviction was right and the judgment should be affirmed. It is so ordered.

All concur, except Valliant, C. J., who dissents.


source: Caselaw Access Project

license: Public Domain

text:
    CITY OF ST. LOUIS v. EWALD ,KELLMAN Appellant.
    In Banc,
    July 1, 1911.
    1. ORDINANCE: Repeal. Repeals are not favored by the law.
    2. DEFINITION OF REPEAL. By repeal is meant tbe abrogation or annulment of a previously existing law by tbe enactment of a subsequent one, which either declares that the former law is revoked and abrogated, or which contains provisions so contrary to or irreconcilable with those of the earlier law that only one of the two can stand in force. The latter is repeal by implication, the former is express repeal.
    3. ORDINANCE: Presumption of Validity. As it is with statutes, so it is with ordinances, they are clothed, in the first instance, with a presumption of validity.
    4. -: Relation to Charter. The charter of a city bears to its ordinances the same relation that the constitution of a state bears to its statutes; that is, the charter or constitution is the measuring rod by which the validity of the statute or ordinance is measured.

      5. -: -: Repeals: Terms Used: Strict Construction. But in considering the provision of a charter declaring that “no special or general ordinance, which is in conflict or inconsistent with general ordinances of a prior date,' shall be valid or effectual until such prior ordinance, or the conflicting parts thereof, are repealed by express terms,” courts have no call to apply to it any rigid or technical rule, but should be governed by considerations of reason and justice. Such charter provision is not so narrow and rigid as to demand that the repealing ordinance use the very word “repeal.” Any synonym or equivalent expression filling the same office would subserve the purpose of this charter provision.
    6. -: -: -: In Express Terms: Definition of Express and Implied. The word “terms” used in the charter provision requiring repeals to be by “express terms,” speaks for itself; it signifies words, provisions. But there is larger significance in the word “express.” It is used in contrast with “implied.” It means, stated directly and distinctly, not left to inference, exact, precise, clear, unambiguous, outspoken. "Implied” signifies, inferential, tacitly conceded, involved in substance; and an implied repeal would be one not declared by spoken words but left to be reasoned out by inference; and that manner of repeal is abolished by the charter of St. Louis.
    7- -: Repeal In Express Terms: Striking Out. In determining whether or not a later ordinance “in express terms” re-pealed a prior one, the thing done, and not the words used, is the determinative matter. Other words that effectually destroy the prior law are just as effective as the words “hereby repealed.” The title of the ordinance was, “An Ordinance to amend Section 505, Article 5, Chapter 11, of the Revised Code of St. Louis, 1907, by Striking out said Section and Inserting in Lieu thereof a New Section, to be Known by the Same Number, in Relation to the Sale and Custody-of Skimmed Milk and Providing Penalties for the Violation thereof;” and then the ordinance declared, "Section 505, article 5, chapter 11, of the Revised Code of St. Louis, 1907,' is hereby amended by striking out said section and inserting in lieu thereof the following new section bearing the same number.” Then follows language which is repugnant and irreconcilable with the language of the old section in at least one very material matter, namely, the percentage of butter-fat the milk must contain. Held, that the old section was repealed “in express terms,” and the new section is therefore valid. The words “strike out” are not a charter term, but they have come into use in legislative proceedings to indicate that a certain clause is expunged, abolished or destroyed by the authority of the legislative body.

      8. -: -: -: To Amend by Striking Out. The fact that the idea of amending by striking out and inserting in lieu thereof is also present in the ordinance does not tend to show a repeal by implication. In a legislative sense a proposition may be amended by an alteration which entirely defeats the purpose of the Qriginal mover.
    Appeal from St. Louis Court of Criminal Correction.— Hon. Benjamin J. Klene, Judge.
    Affirmed.

      William L. BohnenJcamp and E. F. Stone for appellant.
    (1) Ordinance 24582, although, in thé form of an amendment, is, in reality, and as a matter of law, but a repeal by implication of section-505 of the Revised Code of St. Louis. It nowhere repeals the said prior ordinance in express terms, as required by the Charter. City v. Sanguinet, 49 Mo. 581. (2) Ordinance 24582 operates to repeal prior ordinance, section. 505, Revised- Code, although in the form of an amendment. On its face, said ordinance simply strikes out said'section 505 and inserts a new section in its place. This is, in effect and operation, á repeal. It is a repeal, though in the form of an amendment. Whether it is an amendment or a repeal, does not depend upon the language of the ordinance; for that is a judicial question to be determined from the effect of the ordinance. U. S. v. Claflin, 97 TJ. S. 546; Yan Steenwick v. Sackett, 17 Wis. 645; State v. Ingersoll, 17 Wis. 631. If the caption of an ordinance shows that it was intended as an amendatory act, while, the body shows it, either in direct or express Terms, is a complete scheme of legislation, intended to cover the whole field, it is construed judicially to be a repeal and not simply an amendment. Malone v. Williams, 118 Tenn. 441; State v. McKee, 126 Mo. App. 524. And where a new law, whether it be in the form of an amendment or otherwise, covers the whole subject-matter of the former and is inconsistent with it (as in this case), and evidently intended to supersede and take the place of it (as in this ease), it repeals the old law by implica^ tion. Minnesota v. Billings, 111 Fed. 972; Schneider v. Staples, 66 Wis. 167; Yandeveer v. Herbert, 76 N. J. L. 173; People v. Saginaw, 36 Mich. 260. And “where an amendment is made that changes the old law in its substantial provisions, it mast by necessary implication repeal the old law so far as they are in conflict.” 26 Am. and Eng. Ency. Law, 717; Landlois v. Landlois, 48 Ind. 60; Brerting v. Lindauer, 37 Mich. 217; Jacobus v. Mesehill, 66 N. J. L. 255. A subsequent municipal ordinance, fully covering the subject-matter of a previous ordinance, being a substitute therefor, repeals the former by implication, without words to that effect. Knight v. Town, 45 W. Va. 194; David v. Levy, 119 Ala. 241; Atty. Geni. v. Railroad, 117 Mich. 477; State v. Hickman, 84 Mo. 79; Meriwether v. Love, 167 Mo. 521; Young v. Kansas City, 33 Mo. App. 517. Therefore, it is conclusive that there can be a repeal, or an attempted repeal, of an ordinance by a later ordinance in form of an amendment. This is the case here. Brooks v. Hydorn, 76 Mich. 281. This ordinance is, therefore, not only a repeal of said section 505, but a repeal by implication only and not in express terms. There is no repealing clause of any description, either in the title or body of the ordinance. To be a repeal in express terms “there must be a repealing clause in the body of the act.” 26 Am. and Eng. Ency. Law, 717; 1 Sutherland on Stat. Const., sec. 246. This provision condemns repeal by .implication where there is any conflict between the old and the new, as in this case, and requires such repeal to be in express terms. Lamoine v. City, 72 Mo. 406.

      Lambert E. Walther and A. H. Roudebush for respondent.
    The purpose of See. 28, art. 3 of the Charter of St. Louis, is to avoid repeals by implication, and it has no application to an amending ordinance. St. Louis v. Klausmeier, 213 Mo. 127; 1 Blackst. Com., p. 87; 26 Am. & Eng. Ency. Law (2 Ed.), 706, 721 and 722; Sutherland on Stat. Const., secs. 133, 137; Endlich on Stat. Const., see. 203.
   LAMM, J.

— This case is a companion with a series, idz., City of St. Louis v. Ameln, City of St. Louis v. Ferd Meyer, and other cases (just handed down and reported in this Report and in 236 Mo.), in which the appeals are intended to test the validity of one or another phase of the milk ordinances of St. Louis. Kellman was convicted for violating ordinance 24582, fined $25, and appealed here.

The substance of the complaint against him is that he, on the 17th day of November, 1909, in violation of ordinance 24582 (pleaded by its title, number and date of approval, viz., October 23, 1909), did have in his possession and carry at a named place in said city,' with intent to sell and expose for sale, skim milk showing on analysis less than 8.5 per cent milk solids, not fat, to-wit, 7.74 per cent. Ordinance 24582 follows:

“An Ordinance to amend Section Five Hundred and Five, Article Five, Chapter Eleven, of the Revised Code of St. Louis, Nineteen Hundred and Seven, by striking out said section and inserting in lieu thereof a new Section to be known by the same number, in relation to the sale and custody of skimmed milk and providing penalties for the violation thereof.
“Be it ordained by the Municipal Assembly of the city of St. Louis as follows:
“Section One. Section Five Hundred and Five, Article Five, Chapter Eleven, of the Revised Code of St. Louis. Nineteen Hundred and Seven, is hereby amended by striking out said section and inserting in lieu thereof the following new section bearing the- same number.
“Section Five Hundred and Five. Notwithstanding the provisions of Section Five Hundred and One of the Revised Code of St. Louis, Nineteen Hundred and Seven, milk from which a part or all of the cream has been removed and which is known as skimmed milk, may be lawfully sold as herein provided and not otherwise. a. No skimmed milk shall.be sold, kept, offered or exposed for sale, stored, exchanged, transported conveyed, .carried or delivered or with such intent as aforesaid be in the care, custody, control or possession of anyone, unless it show on analysis not less than(One) nine and one-quarter per cent of milk solids. (Two) Eight and one-half per cent of milk solids, not fat.” . . . (Here follow clauses b, c, and d, immaterial here.) . . . “e. Any person, persons, firm or corporation violating any of the provisions of this section, or who fails to comply with any of the regulations as provided for in this section, shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined not less than twenty-five dollars nor more than one hundred dollars for each and every offense.”

Section 505 of the Revised Code of St. Louis, 1907, reads:.

“Sec. 505. The following regulations shall govern the sale of milk known as skimmed milk:
“First. All milk which contains not less than ten and five-tenths per cent of total solids and one and five-tenths per cent butter fat, which is of a specific gravity between one thousand and thirty-two and one thousand thirty-eight, which is free from foreign additions of any kind and any evidence of decomposition, which is stored, transported and delivered to purchasers at the temperature provided in this article for sweet milk, shall be known as skimmed milk, and may be lawfully sold as such under the following regulations.”

The city through its inspector took a sample of skim milk from defendant’s wagon, on the date and at the time and place mentioned in the complaint, had the same analyzed by the city chemist, who testified it showed on analysis only 7.74 per cent of milk solids,non-fat. It then read in evidence ordinance 24582, supra. Defendant objected to the introduction’ of the ordinance because in conflict with a prior general ordinance, and it failed to repeal the same “by express terms,” as provided by the charter (art. 3, sec. 28). Defendant read in evidence section 505, supra. The objection was overruled, defendant excepted, and put in no other evidence.

The charter provision invoked (art. 3, sec. 28, supra) reads:

“Sec. 28. Numbering, Printing and Repeal of Ordinances. — . . . and no special or general ordinance, which is in conflict or inconsistent with general ordinances of prior date, shall be valid or effectual until such prior ordinance, or the conflicting parts thereof, are repealed by express terms.”

(Nota bene: The groundwork was laid below, by motions overruled and exceptions saved, to review a series of questions — some of them disposed of in the Ameln and Meyer cases and some of them presented in cases following.)

The question here is single, viz.: Is ordinance 24582 invalid for that it violated the charter in attempting a repeal of a former ordinance, section 505, supra, by implication?

There are certain familiar principles of law to keep in mind in disposing of the question in hand, viz.: Repeals are not favored by the law. As it is with statutes so is it with ordinances, they are clothed, in the first instance, with presumptive validity. The charter of a city bears to its ordinances the same relation that the constitution of a state does to its statutes; that is, the charter or constitution is the measuring rod by which the validity of the statute or ordinance is measured. There are two ways of repealing an ordinance or statute — one total, where the repeal is by express terms the other (complete) arises by necessary implication where total repugnancy exists between a later and an elder ordinance or law; or a repeal pro tanto, when such partial'repugnancy exists; or, again, total or partial, where the whole or part of the subject-matter of the former is covered by the later and revising regulation.

Keeping in mind the foregoing trite principles, it is well to round out defendant’s contention a little. It may be stated this way: Section 28, supra, of the charter of St. Louis forbids the repeal of. one ordinance by another by implication; the provision of the later ordinance, 24582 (in question here), is repugnant to the provision of the prior ordinance, section 505, of the Revised Code of 1907, in the requisite per cent of solids, non-fat, in saleable skim milk. By that token, measured by the charter, the later ordinance falls within the charter interdiction, is invalid because the conflicting parts of the prior one were not “repealed by express terms.” Wherefore, the ordinance falling, the prosecution must fall with it, the judgment be reversed and defendant discharged.

Contra, the contentions of the city are two. First. That the prior ordinance was repealed by express terms. Second. That if that be not so, yet the fact remains that the charter provision does not apply to ordinances amendatory in character, and that 24582 was an ordinance of that kind.

Whether it be necessary to consider the last branch of counsel’s argument will depend on the disposition made of the issue joined on the repeal of section 505.

The repugnancy between the two ordinances is not an open question. It is argued on all sides that they are at cross purposes and in conflict, if both be allowed life at one and the same time. Therefore, we shall assume repugnancy as a premise for what we have to say.

It is clear that safe exposition of the matter hinges on the analysis, meaning and office of the charter term, “repealed by express terms.”

Attending to that term, what does the word “repeal” mean when used by lawmaker or judge? “ Repeal” is defined as the abrogation or annulling of a previously existing law by the enactment of a subsequent statute, which either declares that the former law shall be revoked and abrogated or which contains provisions so contrary to or irreconcilable with those of the earlier law that only one of the two can stand in force — the latter is the “implied” repeal, heretofore mentioned; the former, the “express” repeal. [Black, L. Diet. Tit. “Repeal.”] Bouvier defines it to be: “The abrogation or destruction of a law by a legislative act.” [Bouv. L. Diet. Tit. “Repeal.”] Note the word destruction. Webster defines it: To recall; to rescind or abrogate by authority; to revoke. He gives among its synonyms annul, cancel, reverse, abolish. He defines the noun “repeal” as meaning: Revocation, rescission, abrogation. Abrogate, in turn, means to annul by an authoritative act, to abolish by the authority of the maker, to repeal. Other instructive shades of meaning come out in accredited definitions of the several synonyms, but the foregoing are enough for our purpose. The repeal of an ordinance, then, is accomplished when it is destroyed, abolished, abrogated, cancelled, annulled recalled or rescinded by a later one.

In construing the charter provision in hand, courts have no call to apply to it any “rigid or technical rule, but should be governed by considerations of reason and justice.” [Ruschenberg v. Railroad, 161 Mo. l. c. 84.] We think the charter not so narrow and rigid as to demand the repealing ordinance use the very word “repeal.” Any synonym or equivalent expression, filling the same office, would subserve the object of the charter provision. Any other view stickles and quibbles on mere words. Qui haeret in litera, haeret in cortice.

Going a step further, the charter requires the repeal to be by “express terms.” The word “terms” speaks for itself. It is a primary concept in the connection used. Broadly, however, it may be said to signify: words, provisions.' But there is significant and controlling matter in the word “express.” “Express” is used in contrast with (i. e. as a counterterm, an antonym for) “implied.” “Express” means: Stated directly and distinctly, not left to inference — exact, precise — its synonyms being: Clear, unambiguous, outspoken. [Web.] The law dictionaries do not differ from that, viz.: “Made known distinctly and explicitly and not left to inference or implication. Declared in terms; set forth in words. . . .” [Black, L. Diet. Tit. “Express.”]

Conversely, “implied,” in its ordinary acceptation, signifies inferential, tacitly conceded, involved in substance. It is the correlative of “express.” An implied repeal would be one not declared by spoken words, but left to be reasoned out by inference. That happens, as said, when, without express repeal, the provisions of two ordinances or laws so conflict that they cannot stand together and be in force at the same time, or occupy the same territory and are directed to the same end.

Obviously, the plan of repealing an earlier ordi- . nance by implication, because in conflict with a later ordinance, is abolished by the charter. The effectual charter plan to reach that end is by the stroke of making the later ordinance invalid. Under any system the lawmaker sh&uld have in mind the present condition of the law in order to legislate intelligently. Under the charter system here he must have in mind the present condition of the law in order to legislate at all.

Sometimes courts will aid the lawmaker by making a later special ordinance not a repeal by implication, but an exception to the prior general ordinance (Ex. gr., Ruschenberg v. Railroad, supra; Campbell v. Railroad, 175 Mo. l. c. 176), and others avoid conflict and- give both ordinances a field of operation. Sometimes courts are able to construe the two ordinances so that the one is cumulative, or that there is no conflict or inconsistency, in which event the charter provision does not apply. As where the two are not “materially variant.” [St. Louis v. Weitzel, 130 Mo. l. c. 617.] But no help of that sort can obtain here. There is clear conflict and unless the first is repealed in express terms the last is invalid.

Considering not only the definitions of “repeal,” “express,” and “implied,” but looking to the heart of the thing, is not section 505 of the Municipal Code to all intents and purposes repealed by ordinance 24582? Observe, it is identified by being referred to by its section number in 24582; therefore, must be taken as in the legislative mind. The new ordinance destroyed the old as a law — not by inference or impliedly. To the contrary, it expressly struck it out, the whole of it, by clear and unambiguous words. A repeal could do no more. The thing done, not the mere words said, is the substance. One must “not be so lost in lexicography as to forget that words are the daughters of earth and that things are the sons of heaven.” (Vide. Johnson, Samuel, in the preface to his dictionary.)

“Strike out” is not a charter term, and yet it has come in use in legislative proceedings to indicate that a certain clause or section of a law, or proposed law, is expunged, abolished or destroyed by the authority of the lawmaker. The term “strike out,” in some of its legislative uses means: to force out, to blot out, to efface, to erase. It may well be allowed, then, the same meaning as destroy, cancel'or abolish. So construed, it overlaps or connects itself with the definition of “repeal.” In the sense and connection used in ordinance 24582 it could have no other meaning. It should be given some meaning, if possible, and it is reasonable to assign to it that here given it.

It would have been in better form to have used the words of the charter. But ordinances are not to be criticised with overniee refinement, nor are municipal lawmakers required to use the most exact and precise terms in expressing their intendment. Such ruling would lead up to distress by unsettling much law.

The fact that the idea of amending by striking out and inserting is also present in ordinance 24682 does not tend to show a repeal by implication, whatever office may be assigned to it. Primarily, amend means to mend, improve. It involves the conception of something left to amend, as a stock or stem on which to graft an improvement. In this view of it to strike out a thing and thus obliterate it, does not accord' with the idea- ¡of improving the thing itself by amendment. But in a legislative sense “a proposition may be amended by an alteration which entirely defeats the purpose of the (original) mover, or it may be turned into a motion of a different kind.” [Per Locke, J., in Brake v. Callison, 122 Fed. l. c. 724.] In that sense to strike out does not grate on the sense when the lawmaker has in mind an amendment by striking out the entire law. Indeed it would be daring to hold that to strike out some laws would not improve them.

The premises considered, we rule that section 505 of the municipal code is repealed by express terms. That ruling renders unnecessary further consideration. The judgment is affirmed.

All concur, except Valliant, C. J., who dissents.


author: -LAMM, J.

text:
    CITY OF ST. LOUIS v. FRED MEYER, Appellant.
    In Banc,
    July 1, 1911.
    1. COMPLAINT: Ordinance Must Be Alleged. A complaint should specifically point out the ordinance defendant is charged to have violated.
    2. LATER ORDINANCE: Shown by Its Number. Where the date of the approval of an ordinance is not shown, and there is no method of determining whether or not it is a later ordinance than another defendant is charged with violating, except that it seems to beai a later serial number, the court will not assume that it is a later ordinance. An ordinance is matter of - proof.
    3. -: Different Offenses: No Replacement. An ordinance forbidding' one to have in his possession, with intent to sell, milk adulterated by mixing with it any substance so as to lower or depreciate its strength, is not repealed or annulled by a later ordinance providing a standard for saleable skim milk with reference to milk solids — fatty and non-fatty- — but silent on adulteration by water or otherwise. The two are not in conflict; and hence a defendant convicted of having in his possession, with intent to sell, a- mixture of skim milk and water, cannot be heard to complain that he ought to have been prosecuted under the later ordinance.
    4. LATER ORDINANCE: Milk Adulteration: Standard.of Solids Fixed by Ordinance: Exclusive. A city by enacting an ordinance which seeks -to prohibit the sale of impoverished milk by requiring it to have a certain percentage- of fatty and non-fatty solids, is not thereby precluded from enacting another ordinance which forbids the mixing of water with milk. A defendant charged with adding water to milk cannot escape conviction by showing, that the milk, after the water was added, still contained a larger per cent of milk solids than another ordinance required.
    5. -: -: Sal© and Possession: No Conflict in Ordinances. An ordinance which denounces the sale or offer for sale of milk adulterated with wat,er or other substances or any milk product from diseased cows, and another ordinance which prohibits the possession of adulterated milk, with intent to sell, are not in conflict. If a defendant is prosecuted, for the ode act, under the latter ordinance, he cannot complain that he was not prosecuted under the former.
    6. CONTEMPORANEOUS ORDINANCES: Repugnant: Milk Adulteration. Two ordinances of the same date, one interdicting traffic in milk containing a substance “which is poisonous or injurious to health,” and the other forbidding any person from having in his possession, with intent to sell, milk with which has been mixed a substance “so as to lower or depreciate the strength, quality or purity” of the milk, are not in such conflict as to bar a convicting of a defendant for having in his possession, with intent to sell, a .mixture of water and milk. Water is not a substance poisonous or injurious to health, and putting water in milk is not putting therein a substance poisonous or injurious to health.
    7. ORDINANCE: Conflicting With Statute: Not Raised at Trial. An assignment that the ordinance of the city under which defendant was convicted is in conflict and inconsistent with an act of the Legislature and an act of Congress cannot be considered on appeal unless the conflict was pointed out in the trial court, a decision invoked thereon and an exception to the ruling saved.
    Appeal from St. Louis Court of Criminal Correction.— Hon. Benjamin J. Klene, Judge.
    Affirmed.

      Wm. L. Bohnenkamp and E. F. Stone for appellant.
    (1) This case is brought under ordinance 24297, for adulterating skimmed milk with “water.” Said ordinance is a general one, and applies to all ‘ ‘milk and cream” offered for sale in St. Louis. It also applies .generally to the sale or offering for sale of all kinds of milk when adulterated by mixing any substance or substances whatever with it. It fixes no standard for strength, quality or purity for milk, and certainly not for skimmed milk. It also applies only to methods of adulteration not prohibited by the Revised Code of St. Louis. Therefore, this prosecution was improperly brought under it, for the reasons following: Said ordinance was' approved, March 26, 1909. Defendant offered in evidence Ordinance 24582, which was approved Oct. 23,1909. Therefore, the latter was approved about six months after the former. The latter ordinance was enacted for the specific purpose and particular object of providing standards of strength, quality and purity for skimmed milk. It is a general ordinance applying specially to the sale of a single commodity, and nothing more. It fixes standards for it alone, and makes regulations for its sale alone. It expressly strikes out, and thereby repeals the provision of the code, which applied only to standards and regulations for the sale of skimmed milk. It expressly limits its provisions to the sale of skimmed milk, for it provides for its sale “notwithstanding the provisions” of the section of the Eevised Code applying to the sale of whole milk. It also defines skimmed milk, and distinctly provides that it “may be lawfully sold as herein provided and not otherwise.” It also expressly provides that skimmed milk shall not be sold'or offered for sale “unless it show on analysis not less than 9.25.per cent of milk solids and 8.50. per cent of milk solids not fat.” And the title expressly shows that it is an ordinance “in relation to the sale and custody of skimmed milk.” In short, ordinance 24297 is general and might include the matter in this ease, were said ordinance standing alone, and defendant might be prosecuted thereunder. But, ordinance 24582, being one that applies specifically and particularly to the matter involved herein, and thereby constituting an exception to said general ordinance, the defendant, if prosecuted at all, should be proceeded against under this exception. • (2) This prosecution is brought under the wrong ordinance, and for the reason of the existence of a different ordinance, Eevised Code of 1909, sec. 555. Said section was offered in evidence by defendant, and it also applies specifically and particularly to the adulteration of milk with “water,” whilst the ordinance under which this prosecution was brought, applies generally to the adulteration of milk with “any substance or substances.” (3) " Said prosecution is wrong and should be dismissed, for the reason that it clearly appears from the existence of said sections 499 and 555 or either of them, and the evidence in this case, that said ordinance 24297, sec. 2, positively prohibits such cases, as the one at bar, being brought under its provisions. It only includes and applies to cases of adulteration of milk, other than those prohibited by the Revised Code 1907; and sections 499 and 555 of Code apply to just such cases as the one at bar, as shown conclusively by the allegations of the complaint and the evidence. Section 555 must be regarded as an exception to this general ordinance 24297, as applying to adulteration by “water” alone. City v. Wortman, 213 Mo. 143; Ruschenberg v. Railroad, 161 70; Lamoine v. St. Louis, 72 Mo. 406; Charter of St. Louis, art. 3, sec. 28; Revised Code, 1907, p. 339.

      Lambert E. Walther and A. H. Roudebush for respondent.
    (1) 1st. The two ordinances (24297 and 24582) are not in conflict and there is no room for the application of the principle that a special statute may constitute an exception to a general statute including the same subject-matter. 2nd. Ordinance 24582 does not aid appellant because the record does not show that the milk in question conformed thereto. 3d. There is no conflict between the ordinances because ordinance 24582 does not authorize adulteration of skimmed milk. St. Louis v. Klausmeier, 213 Mo. 127. (2) The prosecution could not be based on See. 555, Revised Code, because that section does not prohibit the offense here charged. Sec. 555 is incorporated in ordinance 24297 by reference and there can be no conflict. (3) There is no conflict between ordinance 24297 and Sec. 499, for the reason that they prohibit different offenses. (4) Ordinance 24297 and ordinance 24295 do not cover the same ground and are not in conflict. Each is but a repetition of provisions in a State statute and in a Federal statute. Laws 1907, p. 239, sec. 4, cl. 1, 5; Act of Congress, June 20, 1906, sec. 7. (5) If there is any conflict, ordinance 24295 must be construed as an exception to ordinance 24297 and both will be upheld. Gilkeson v. Eailroad, 222 Mo. 204; Sutherland, Stat. Cons., see. 217.
   -LAMM, J.

— Defendant, found guilty and fined $25 for violating a milk ordinance, appeals.

The case is one of a group to test the validity of one or another of the milk ordinances of St. Louis in one or another phase. It is a companion case to that of St. Louis v. Ameln, handed down at our present sitting, and reported at page 669 of this Eeport. While differing in points of detail from that case, it has propositions in common. Where propositions are common reference will be made to the Ameln case, which should be read with this, since common propositions will receive no reconsideration.

The complaint is under ordinance 24297, as was that in Ameln’s case. While its form is criticized in motions below as vague, uncertain and as stating no offense in particulars discussed in Ameln’s case, yet defendant’s brief does not renew the criticisms here, and the complaint need not be reproduced. Defendant is charged with having in his possession, with intent to sell and expose for sale, skim milk mixed with water so as to lower and depreciate its strength and quality, contrary to the ordinance in such case made and provided, as was Ameln.

The city put on the stand an inspector, who testified he took a sample of skim milk from defendant’s wagon, at a time and place charged in the complaint, and turned it‘ over to an assistant of the city chemist. The chemist took the stand and testified he analyzed the sample and found it contained “added water.”

Such was the oral testimony'.

The city offered in evidence ordinance 24297. [ Vide Ameln’s ease for its terms.]

Defendant offered in evidence ordinance 24582, reading: “No skimmed milk shall be sold, kept offered or exposed for sale, stored, exchanged, transported, conveyed, carried or delivered, or with such intent as aforesaid be in the care, custody, control or possession of anyone, unless it show on analysis not less than: One. Nine and one-quarter per cent of milk solids. Two. Eight and one-half per cent of milk solids, not fat.”

(Nota bene: No date of approval is shown by the record. Hence, unless controlled by the number, we may not know whether it is elder or younger than ordinance 24297.)

He next put in sections 499 and 505 of the Revised Code of St. Louis, 1907. [See Ameln’s case for their terms.]

He next offered section 555 of said Code, reading: “Sale of adulterated milk forbidden.- — Whoever shall sell or offer for sale any milk adulterated with water or other substance, or any milk produced from diseased cows, shall be deemed guilty of a misdemeanor.”

He next put in ordinance 24295, approved March 26, 1909 (Nota bene: the date of approval of the ordinance is the same as that of ordinance 24297, supra), reading: “Sec. 1. Any person, firm or corporation who shall sell, expose for sale, exchange, deliver, dispose of or transport, convey or carry, or with any such intent as aforesaid' have in his or her possession, any milk or cream having therein, or containing any added substance which is poisonous or injurious to health, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be fined not less than twenty-five dollars nor more than one hundred dollars for each and every offense.”

Elaborate motions to quash, for a new trial and in arrest, were filed and overruled, due exceptions being saved. It would but pad the opinion to swollen proportions to set them forth. For our purposes, it is enough to say that the single and separate propositions announced by learned counsel for defendant in their brief, and upon which they rely for reversal, were presented and decided below; and that exceptions to the decisions, nisi, well preserved in the record, are properly here for review.

Those propositions are:

(a) . That defendant should have been prosecuted under ordinance 24582 and not under ordinance 24297 (and herein that the former.is a later ordinance than the latter).

(b) . That if not prosecuted under ordinance 24582, he should have been prosecuted under section 555 of the municipal code.

(c) . That if not prosecuted under section 555, he should have been prosecuted under section 499 of the municipal code (and herein that ordinance 24297, ex vi termini, prohibits a ease like the instant one from being brought under its provisions).

(d) . That ordinance 24297 is invalid because it fails to repeal in express terms ordinance 24295 (and herein that they conflict and are repugnant to each other).

(e) . That their repugnancy and conflict make them both null and void (and herein that a study of them and a comparison with the acts of the Legislature and the acts of Congress will shew an “abominable condition” of milk regulations — conflicts, inconsistencies and contradictions so serious and numerous as to justify a judicial condemnation of them all).

Of these seriatim.

I. Of proposition “a.”

It goes .as of course that when a citizen is charged with the breach of a municipal regulation the complaint should put its finger on the ordinance breached. Certainty in that regard is a sine qua non. A false call is worse than none at all. It deceives and misleads defendant. The law, moving with sober dignity, tolerates no tricks of that sort. Therefore, if there be a false call for the ordinance in the complaint, absent amendment, the prosecution is halted and must fall. So, too, if the ordinance alleged to be breached has been superseded or repealed by a later ordinance there can be no breach, for the ordinance is nil; hence there is nothing to •break. Out of nothing, nothing comes.

Based on such premises, defendant argues he is not guilty under ordinance 24297, the one charged, but is guilty, if at all, under 24582. Further, that the latter is later than the former; hence, as the newest, becomes the controlling legislative utterance.

Of the last branch of the contention, it would be sufficient to say that the date of the approval of 24582 is not shown by the record and we may not know whether it took effect after 24297 or before. If the ordinances of St. Louis are numbered and if a higher serial number always means a later ordinance, then we have some evidence on that score for we have the number. But a court that may not take judicial cognizance of any ordinance whatever unless it be introduced in evidence can hardly take judicial cognizance of the significance of an ordinance number, as bearing on the date of the passage and approval of a municipal law, absent evidence (as here) tending to show that the higher the number the younger the law. In this view of it, one of the theories of defendant is afield.

However, there is no need to let proposition “a” ride off, in part, on such technical view. Let it stand on its merits. We shall assume, as counsel on both sides do, that ordinance 24582 is a later law. The pivotal question then is: Does it cover the offense charged — that is, do both ordinances occupy the same territory and deal with the same phase of the subject? We do not think so. Ordinance 24582 provides a standard for saleable skim milk, with reference to milk solids — fatty and non-fatty — but is silent on adulteration by water or otherwise. Therefore, it is not in conflict with the elder law, ordinance 24297, which, inter alia, denounces having in possession with intent to sell any milk, adulterated by mixing with it any substance or substances so as to lower or depreciate its strength. [St. Louis v. Ameln, supra.]

We are not quite sure we grasp the rounded scope and full force of the contention of learned counsel in this connection. Has a milkman a right, vested or natural, to put water in his milk, or have in his possession watered milk, with intent to sell the same for domestic use? Counsel, arguendo, would not stand for that mischievous proposition, thus nakedly put. Again: Is it the present policy of the city’s law to encourage, countenance or permit watering milk or’ the possession of watered milk intended for sale for domestic use? Counsel would not stand, arguendo, for that bad proposition either. ' And yet, as we see it, they contend quite earnestly that the standard for skim milk having been fixed as to solids by ordinance 24582, such standard is the only one recognized by the law. All of which, when brought to book, means by necessary inference that the standard permits water; ergo,' watered milk is countenanced by the law. In this view of it, while the right, natural or legal, to water milk for sale is repudiated when badly put, yet a position is maintained which in roundabout or indirect way is bound to reach to that very end. There is a legal maxim, expressio unius est exclusio alterius — that is, the express mention of one thing implies the exclusion of another. Seizing on that maxim for use, it is argued that the standard fixed by ordinance 24582 excludes any other. That might be true if no other standard was fixed in any other ordinance. But the fertility of the legislative mind is not confined or restricted to expressing everything relating to the same subject-matter in one law at one time. A law at the outset may be too short or too narrow, too long or too broad; hence it is subject to reconsideration by the legislative mind. It may be lengthened, broadened, shortened or narrowed. So laws are passed to meet new or changed conditions. Astuteness in the lawbreaker may be met by astuteness in the law-maker. One law may supplement another, and, when such is a fact, the duty of the court is to construe them together, so far as possible, as a harmonious and symmetrical body of law, so that all of them may stand as related and cognate and none of them perish by construction, unless there is clear repugnance, irreconcilable conflict or complete overlapping. As said heretofore no such repugnancy or conflict exists between ordinances 24297 and 24582 — one- of them provides a given standard for nutritive elements, solids, in milk. That ordinance strikes at milk impoverished below the standard. Milk impoverished in solids exists by the act of man or because the cow is poor or her food is poor. The other strikes at adulterated milk — milk diluted and weakened by the addition of water. Both can stand together, both fill a useful office.

The point is ruled against defendant.

II. Of proposition “b.”

Defendant invokes section 555 of the municipal code (quod vide) and insists he should have been prosecuted under that section. That section denounces the sale or offer for sale of milk adulterated with water or other substances or any milk product from diseased cows; whereas ordinance 24297 denounces the possession of adulterated milk with the intent to sell. It is conceivable that the same milkman might violate both those municipal laws by one act. For instance: He might have guilty possession and he might make or offer to make the guilty sale at the same time. If prosecuted simultaneously under both ordinances for the one act to the point of conviction, he might complain. When we have such a case, we can deal with it. Or if prosecuted under one and convicted, and the city should undertake, by splitting one collective or composite act into two parts, to prosecute him again under the other, he might have a grievance worthy the ear of a court. The law should be administered with common sense and with, no spirit of oppression- or overrefinement. But no sneh case is here. The ordinance provisions as'they stand written are not in conflict. The latter law in order to All its office would not have to repeal the former. Both may stand, and, under the doctrine of the Ameln case, the point is ruled against defendant.

III. Of proposition “c.”

This proposition is identical with one decided in the Ameln case and will be ruled the same way, viz., against defendant.

IV. Of proposition “d”

Two ordinances were approved on the same day — - one, '24297, under which defendant is prosecuted; the other, 24295. They were presumably • passed at the same legislative sitting. They were likely under consideration at the same time, and certainly pertained to the same general subject-matter. Ordinance 24295 interdicts the traffic in milk containing a substance “which is poisonous or injurious to health.” Water is not a substance poisonous or injurious to health qua water; therefore, putting water in milk or having possession of watered milk is not putting therein a substance poisonous or injurious to health, or having possession of milk so dosed and doctored. If defendant were prosecuted under that ordinance a conviction could not be sustained on the charge made here. We see no repugnancy between the two ordinances. One merely supplements the other; the latest does not repeal the earlier and the charter provision forbidding repeal by implication is not applicable; therefore,' both may stand.

Accordingly, the point is ruled against defendant.

V. Of proposition “e.”

If there were conflicts, inconsistencies and contradictions between the ordinances considered and the State laws or the laws of Congress pertinent to the individual ease held in judgment, making the ordinances void, as urged under the' collective proposition now up, it was for defendant to point out with particularity his grievances, invoke a decision, nisi, thereon, save his exception and bring the identical point here in his brief for review. The generality of the grievance put to us forbids consideration. All separate points have been heretofore decided in other paragraphs. It may be that the ordinances might be improved, clarified, revised and condensed. It may be that individual hardships arise in enforcing these ordinances that might be obviated by a proper city inspection of all milk that comes into it for sale; so that the milkman, unable to analyze his own milk, would be protected from imposition by the producer or shipper by the same stroke that' protects the consumer. Whether such plan is practicable or wise is for the municipal assembly to decide in the first instance. Whether it would be legal is for the courts to decide when the municipal assembly has put such regulation on its ordinance book. But it would add nothing to the cause of jurisprudence to consider (by way of anticipation) matters not before us.

The point now up — an omnibus and composite one — is ruled against defendant.

That ruling disposes of the ease and leads to an affirmance of the judgment. It is so ordered.

All concuir, except Valliant, C. J., who dissents.