text:
    ANTHANETTE E. HEINZLE, by Next Friend, MARTIN HEINZLE, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant.
    Division Two,
    June 16, 1908.
    1. NEGLIGENCE: Perilous Position: Moving Towards Track: Instruction: Variance. When a motorman in charge of an electric car, moving from fifteen to twenty miles an hour along a street, sees a child leave the curb and start diagonally across the street in front of the car, he sees that child in a perilous position. And so where the petition charged that the motorman saw or could have seen the child’s “dangerous and perilous condition,” it was not error to instruct the jury that if he saw or could have seen her “moving towards and upon said tracks in time,” etc. There is no vital or .fundamental difference between the allegation and the facts submitted by the instruction.
    2. -: -: Child. The doctrine that an adult standing near a street-railway track is in no peril, and is not actually in a perilous position until standing on. the track or near thereto, has no application to a young, inexperienced child. Such a child is in peril and in a perilous situation when it begins to move towards the track in front of an approaching car, and the motorman who sees it moving towards or upon the track in front of his car, is chargeable with notice of its peril, as he is also if by the exercise of ordinary care he can see it but does not.
    U. -: Instruction: General Words: Agent: Restricted to Motorman. The general words in plaintiffs instruction that if “the agents, servants and employees in charge of and operating said car, either saw, or by the exercise of ordinary care on their part could have seen, plaintiff moving towards or upon said track in time to have checked the speed of said car,” etc., were made sufficiently specific and cured of their too general character, by an instruction for the defendant which told the jury that if the “motorman” saw, or could have seen, etc. The instructions are not in conflict, but defendant’s simply made definite and specific the general language of plaintiff’s.
    4. -: Injury to Child: Wantonness. Where a child of tender years is seen moving towards or upon the tracks in front of an approaching car, and is struck by the car, it is not necessary to show that the acts of the motorman were wilful or wanton in order for plaintiff to recover. Wherever the language of the opinions in other cases indicates that the acts of the servants must amount to wilfulness or wantonness, it was used with reference to adults in the full possession of their faculties, who the motorman had a right to presume would not go on the track in front of his car.
    '5. -: Different Acts: Consistent Allegations. Negligence in failing to discover plaintiff approaching and going upon- defendant’s tracks in time to have checked the speed of the car; negligence in failing to keep a vigilant and reasonable lookout for children upon the track or approaching the same, and whether the motorman in the exercise of ordinary care could have discovered plaintiff in the act of approaching the tracks, etc., and negligence in failing to approach the crossing with said car under reasonable control, are consistent allegations, ^.nd each might have contributed to the injury of plaintiff.

      Appeal from Jackson Circuit Court. — Hon. Jas. H. Slover, Judge.
    Affirmed.

      John H. Lucas and Ben F. White for appellant.
    (.1) The court erred in giving instruction 1 for plaintiff, (a) It was an enlargement of the issues in that it authorized a verdict for plaintiff if the car could have heen stopped after plaintiff could have been seen, when, under the allegations, she was only entitled to recover if it was not stopped after her peril could have been seen. Reno v. Railroad, 180 Mo. 486; Kellny v. Railroad, 101 Mo. 75; Van Bach v. Railroad, 171 Mo. 338; Markowitz v. Railroad, 186 Mo. 350; Eppstein v. Railroad, 197 Mo. 733; Boyd v. Railroad, 105 Mo. 371; Percell v. Railroad, 103 S. W. 1038; Schmidt v. Railroad, 160 Mb. 52; Hogan v. Railroad, 150 Mo. 54; Fiedler v. Railroad, 107 Mo. 652; Dunkman v. Railroad, 95 Mo. 232; Williams v. Railroad, 96 Mo. 275; Ozezwzka v. Railroad, 121 Mo. 215; Lloyd v. Railroad, 128 Mo. 601. (b) There was no evidence on which to base a submission on the humanitarian doctrine, (c) The facts necessary to be found by the jury in order to entitle plaintiff to recover on the humanitarian doctrine are flatly contradicted by specifications of the petition; and it is also in conflict with instruction 3 for plaintiff. Grout v. Railroad, 102 S. W. 1029; Mc-Quillin on Instr., p. 51; Haley v. Railroad, 197 Mo. 25. (d) It assumes plaintiff’s peril in approaching the track, in place of leaving it to the jury. Ruschenberg v. Railroad, 161 Mo. 87. (e) It ignores the question as to the time when plaintiff’s position became perilous, which was the gist of the case. Bird-whistle v. Woodward, 95 Mo. 117. (2) The court erred in giving plaintiff’s instructions 2 and 3. (a) They both impose the duty of keeping a lookout ahead on both the motorman and conductor. This very feature was condemned by this court when this casé was here before. Heinzle v. Railroad, 182 Mo. 559. (b) They are both subject to the same criticism as instruction 1 in regard to the humane doctrine; and also in authorizing a recovery if plaintiff could have been seen by the motorman in time to have stopped the car, and did not require that her peril could have been seen in such time.

      Douglass & Watson and Wright & Smith for respondent.
    Plaintiff’s instructions properly declare the law. Meeker v. Railroad, 178 Mo. 173; Prick v. Bailload, 75 Mo. 595; Welsh v. Railroad, 81 Mo. 471; Kelley v. Railroad, 75 Mo. 138; Werner v. Railroad, 81 Mo. 368; Winters v. Railroad, 99' Mo. 509; Scullin v. Railroad, 184 Mo. 695; Eppstein v. Railroad, 197 Mo. 733; Moore v. Railroad, 92 S. W. 390; Hovarka v. Railroad, 191 Mo. 453; Eckhard v. Railroad, 190 Mo. 606; Bunyan v. Railroad, 127 Mo. 12; Cytron v. Railroad, 104 S. W. 109'.
   GANTT, J.

This is an appeal from a judgment of the circuit court of Jackson county, for personal injuries received by the- plaintiff, who, at the time of the injury, was a little girl not quite six years old. The accident happened on the 26th of February, 1901. The jury returned a verdict for the plaintiff for $10,000', and after the usual preliminary steps, the defendant has brought the case to this court on appeal. This is the second appeal in this case, the former one appearing in the 182 Mo. 528.

It is conceded by counsel on both sides that the facts in evidence on this second trial are practically the same as those appearing on the first trial, and as there is a full statement in the former report in the 182 Mo. 528, it is not thought necessary to- reproduce the evidence of the different witnesses further than to note the changes in the testimony on the last trial from that in the first. The injury to plaintiff occurred at the intersection of Fifth street and Metropolitan avenue in Argentine, Kansas. Metropolitan avenue runs east and west, is forty-one feet in width from curb to curb, the sidewalk on the north side thereof being six feet nine inches wide, and Fifth street runs north and south and is fifty-five feet wide from walk to walk. Fifth street lies west of Fourth street. The defendant company owned and operated two railway tracks running parallel with each other on Metropolitan-avenue, the cars running west occupying the north 'track while the cars moving east run on the south track. A cross-walk spanned the avenue on the east side of Fifth street from sidewalk to sidewalk. Metropolitan avenue has a steep down grade from Fourth street to this cross-walk on the east side of Fifth street and from that point west for some distance it is practically level. The avenue otherwise was smooth and the view unobstructed. At the southeast corner of the intersection of Fifth street and Metropolitan avenue stood a two-story building, known as “The Building and Loan Association Building,” and plaintiff’s parents and plaintiff occupied rooms in this building. At the northeast corner of this intersection of Fifth street and Metropolitan avenue was a two-story building known as “The Fifth Avenue Hotel,” which fronted seventy-five feet on Fifth street and •extended east on the avenue to the alley between Fourth and Fifth. At the northwest corner of said Intersection was the office of a lumber company and the southwest corner was vacant. These streets were constantly traversed by both vehicles and pedestrians, and the motorman in charge of the ear which inflicted the injury upon plaintiff had been on this run for over two years at the time of the accident and was well acquainted with all the conditions and surroundings. The east-bound cars stopped at the cross-sidewalk on the east side of Fifth street to receive and discharge passengers and the west-bound cars stopped at the cross-walk on the west side of Fifth street for the same purpose. On the 26th day of February, 1901, the plaintiff was struck by one of the defendant’s westbound street cars at a point a little west of the center of Fifth street at its intersection by Metropolitan avenue, and received an injury which necessitated the ■amputation of her right leg below the knee. The accident occurred late in the afternoon of the 26th of February, 1901. A few moments before the accident the plaintiff, who as already said, lived with her parents in the second story of the Building and Loan Association Building, at the southeast corner at the intersection of Fifth street and Metropolitan avenue, started on an errand for her mother, which necessitated the crossing by her of Metropolitan avenue and Fifth street at their intersection in order to reach her point of destination. As the plaintiff and a small companion of hers were crossing this intersection from the southeast to the northwest corner in a diagonal and northwardly direction, one of the defendant’s ■ street cars approached from the east, down grade, without giving any notice or warning to the children as they were running toward the track. From Fourth street to Fifth street on Metropolitan avenue the block is 226 feet with an alley-way on the north side about midway between the two streets. This west-bound car was at or east of the alley in the rear of the hotel at the time the plaintiff and her companion started across the intersection of these streets. She was seen by several witnesses from the car after it turned west on the avenue on Fourth street, as by a number of -other witnesses situated around the intersection. It was forty-two feet diagonally northwest from the curb from the southeast corner of Fifth and Metropolitan avenue to the point where the little girl was struck in Fifth street. Stella Drollinger was sitting in a room upstairs in the Fifth Avenue Hotel of the south side. She testified that the east-bound ear passed east before the west-bound car came along- going west. She saw the plaintiff start across the street as the eastbound car approached the Fifth street crossing, when the plaintiff stepped back to the curb to let that car pass and then plaintiff started in a diagonal direction northwest, and the east-bound car passed on east. The gripman of this west-bound car testified that as soon as the front end of his car came even with the rear end of the east-bound car he had a clear vision of the street and saw the plaintiff, but he testified further, “There was nothing when the cars got even to prevent his seeing the little girl, but when they got even was just the time when the little girl stepped upon the track.” The conflict between the witnesses was as to the point where the two cars passed each other. Miss Drollinger testified that the east-bound car had passed east out of her sight before the west-bound car came within her view. Her testimony tended to show that these cars passed by each other east of her, and thus making the point east of her where the gripman saw or could have seen the little girl leaving this point at the southeast corner of the intersection of these two streets and going- diagonally across to the northwest corner, and the evidence tended to show that the plaintiff traveled forty-two feet in this angling direction and all the time approaching the tracks, and Miss Drollinger saw her all the time and her testimony tended to show that the gripman on this west-bound car could have seen the plaintiff had he looked, but his testimony was to the effect that he saw the child when the front end of his car got even with the crossing, and this would have placed him twenty-seven feet from the point where he struck the plaintiff. According to Miss Drollinger’s evidence, the two cars passed each other at least seventy-five feet east of Fifth street so that he had a clear view of the plaintiff for that distance east of where his car struck her. The evidence of the witnesses tended to show that the rate of speed of the ear was such that it would have traveled over one hundred feet while the plaintiff was traveling the forty-two feet. The gripman testified on a former occasion that if he had seen the child approaching from behind this east-bound car, he could have saved her. Blatherwicke testified for the defendant that he was going west on Metropolitan avenue on the north side and before he could get to the Fifth Avenue Hotel he saw the two children come from behind the east-bound car and that this west-bound car which struck plaintiff was still behind him, so . that the gripman could have seen the child had he looked as soon as this witness did. Mrs. Egan, who was a passenger on the car, saw the children when the car was 200 feet away, and her attention was directed to them because she was apprehensive of danger. There was also evidence on the part of Mrs. Egan that the gripman was giving his attention to a young lady upstairs and never saw the little child until she was right in the middle of the track. The testimony of others was that they saw the child in the street, but the gripman did not. The cause is before this court on alleged errors in the giving of instructions for the plaintiff. No exceptions or objections as to evidence are insisted upon.

I. Instruction number one given by the court in behalf of the plaintiff is as follows:

“The court instructs the jury that if they find and believe from all the evidence in this case that Metropolitan avenue at Fifth street in the city of Argentine, on February 26, 1901, was an open and public street in said city, and that at said date defendant operated an electric street railway running east and west on said Metropolitan avenue, for the purpose of transporting persons for hire from one point to another in said city, and was using the tracks and operating the railway car mentioned in the evidence, and that plaintiff was, at said date, crossing said Metropolitan avenue from the south to the north at the intersection of Fifth avenue, and that, while she-was so crossing said avenue, she was run upon and knocked down by the west-bound car mentioned in the evidence, and injured to such an extent as to cause' the amputation of her foot and part of her leg, and if you further find and believe from the evidence that, at the time above mentioned, plaintiff exercised such care and caution, for her own safety, as a reasonably prudent child of her age and capacity would have exercised under the same and similar circumstances, and that defendant’s agents, servants and employees, in charge of and operating said car, either saw, or by the exercise of ordinary care on their part could have seen plaintiff moving toward and upon said tracks, if you so find, in time to have checked the speed of said car with safety to its passengers and to have avoided running over and injuring plaintiff, if you find such were' the facts, and that said servants and employees neg’lected and failed to do so, and that such failures, if any, directly and proximately caused the injury to plaintiff, then your verdict shall be for the plaintiff.”'

It is insisted that this instruction is erroneous and misleading because it authorizes the verdict for the plaintiff upon proof that defendant’s agents, servants and employees in charge of and operating said car either saw or by the exercise of ordinary care on their part could have seen plaintiff moving .towards and upon said tracks, whereas the petition charges that said servants and employees of the defendant ‘1 saw the -dangerous and perilous condition of plaintiff on, near and approaching its said tracks in time to have cheeked the speed of. said car or to have stopped the same before striking plaintiff, or by the exercise of ordinary care could have seen and discovered the-perilous position in which plaintiff was situated in time to have done so.” The insistence is that the difference between the allegation in the petition and the facts submitted to the jury in this instruction is vital and fundamental, and that there was no proof to show that after the motorman saw or could have-seen plaintiff’s “position of peril” or her “dangerous position on, near and approaching the track,” he could thereafter have stopped the car.

We do not think it is open to serious controversy that there was sufficient evidence to show that the motorman saw, or at least could have seen, plaintiff' the moment the west end of his car got even with the rear end of the east-bound car, as there was nothing there to prevent his seeing the plaintiff. The evidence on the part of the plaintiff tended to show that these two cars passed each other east of the hotel, thus giving the motorman a clear view of the street crossing over which the two children were passing from behind the east-bound car, and there was ample evidence, if' believed by the jury, that the motorman could have seen this little girl approaching or moving towards this track; if this were true, and the jury so found, then the child was in a situation of danger from the time she left the sidewalk, the whole of the forty-two feet she traveled in this direction towards the car track, and was in the plain view of the motorman all this time. It is true the court in this instruction did not use the word “perilous,” or “perilous situation,” hut when a motorman in charge of an electric car moving from fifteen to twenty miles an hour along the street sees a child of six years of age leave the curb and start diagonally across the street in front of his car, then he sees that child is in a perilous situation and this is what the court instructed the jury they must find before they could render a verdict for the plaintiff.

In Cytron v. Railroad, 205 Mo. 692, l. c. 719, in a case very similar in its facts to this, it was said: “The motorman knew his car was bound to occupy, with crushing force, the very spot the child’s steps were directed to. It was obvious to the motorman that the child did not know that fact.” Under such circumstances it was said: “Both danger and duty began the instant the child left the sidewalk, bound headlong into peril.”

In Meeker v. Railroad, 178 Mo. l. c. 176, it was said: “The negligence charged in the petition is that the defendant’s servants ‘saw the child upon the tracks of the said defendant and approaching there at said crossing of said Summitt and Twenty-third streets in a position of imminent peril, or when by the exercise of ordinary care they might have seen said child upon said tracks and approaching thereto in such position of imminent peril in time to have stopped said train of cars and avoided the injury complained of. ’ ” • The defendant asked the court in that case to instruct the jury that defendant could only be held liable if the child was actually on the track and actually in a position of peril' and that it could not be held liable if the child was only approaching the track and about to be placed in a position of peril. But the court refused to so instruct and the refusal of the court was assigned as error. The testimony disclosed that at sometime after the train passed the north line of Twenty-third street, the child left the southeast comer of the street and started east crossing Summitt avenue (directly across, most of the witnesses say, and diagonally across, the others say) and that she had traveled the space of ten and a half feet from the water ping to the curb line, stepped from the curb to the street and traveled fourteen feet further eastwardly and had nearly crossed the south-bound track when she .was struck by the car. The defendant complained that the court modified its instruction by inserting the words “or about to be placed” in such peril, and that by so doing enlarged the issue and without this that it misstated the law in that it made the defendant liable if the child was in a position of peril as well as if it was about to be placed in such a position, but this court said: “The modification did not enlarge the issues, for the petition charges the negligence to be that the servants of the defendant ‘ saw the child upon the tracks of the said defendant and approaching thereto,’ etc. This is tantamount to the same thing as expressed in the instruction, that the child was in a position of peril or about to be placed in such position.”. The court cited with approval Livingston v. Railroad, 170 Mo. 452, in which it was insisted that there was no danger to the child until it actually got upon the track, but this court said: “The defendant’s instructions, in that case, were erroneous because they were predicated upon rules applicable to persons of mature years, but were wholly inapplicable to a child of three and a half years.” And this court in the Meeker case concluded this proposition by saying: “The gripman in this case saw or could have seen this child approaching the track and about to be placed in a position of danger, or more properly spealdng, running into inevitable danger and death, in ample time to have stopped the car and have averted the injury, and it was negligence for him not to do so.”

While the instruction in this case did not use the words “peril” and “perilous situation” it told the jury in plain and simple language that if the defendant’s servants in charge of and operating the car, either saw or by the exercise of ordinary care on their part, could have seen the plaintiff moving towards and upon said tracks in time to have checked the speed of said car with safety to its passengers and have avoided running over and injuring plaintiff, and neglected and failed to do so, and that such failure directly and approximately caused the injury to plaintiff, then they should find for the plaintiff. This instruction meant nothing less than that, if the servants saw the plaintiff moving into a perilous situation in time to have checked the speed of said car and avoided injuring her, and failed to do so, they were guilty of negligence. The difference between the two formulas, the one in the petition and that used in the instruction, is a mere difference in words and not in substance, and we think the objection to the instruction is not tenable. This court has often declared that the presence of a railroad track is of itself a warning of danger. And, as already said, when a child of the tender years of this plaintiff is seen by the engineer or motorman in charge of a train or car, approaching the track in its front, then he sees the child is in a perilous or' dangerous position. And the contention that the motorman or engineer, under such circumstances, is not obliged to stop his car simply because he sees a child on the sidewalk, or on the pavement near the sidewalk, falls far short of the facts predicated in this instruction, which required the jury to find that the child ivas moving towards and upon said- tracks with the evident purpose and intention of crossing the same. And as was said in Livingston v. Railroad, supra, the doctrine so often declared as to an adult standing near the railroad track, has little or no application to a young, inexperienced child in such circumstances.

We think that the perilous situation of the plaintiff was fairly submitted to the jury in this instruction. The jury were not authorized to find for the plaintiff merely upon a showing that the child could have been seen on the sidewalk or south side of the street, but only upon finding that the little girl was moving to and approaching the track and that the servants of the defendant saw or by the exercise of ordinary care could have seen her so moving towards the tracks in time to have avoided injuring her. The case of Reno v. Railroad, 180 Mo. 469, and other cases cited by the learned counsel for the defendant, do not in our opinion militate against the conclusion we have reached in view of the cases we have already cited.

II. Without reproducing all the testimony, it must suffice to say that we think there was ample testimony, if credited by the jury, to justify their finding that the motorman either saw or could by the exercise of ordinary care have seen the little girl in ample time to have checked his car and avoided injuring her.

III. It is insisted, however, that the court’s instructions are erroneous in that they submit to the jury, “That if the agents, servants and employees in charge of and operating said car, either saw, or by the exercise of ordinary care on their part could have seen, plaintiff moving towards and upon said track in time to have checked the speed of said car,” etc., because this court in the former appeal said: “Upon another trial plaintiff’s instruction number four should be restricted to the ‘motorman’ who had control of the movement of the train. ’ ’ It will be noted that in this instruction the servants charged with the duty of keeping an outlook for plaintiff and of checking the car in time to avoid injuring her, were the “agents, servants and employees in charge of and operating the said car. ’ ’ And by the sixteenth instruction given on behalf of the defendant, the jury were instructed that although they might believe the “motorman” saw, or by the exercise of ordinary care might have seen, the plaintiff standing on the south side of the street to permit the train going east to pass, and although they might believe the “motorman” knew or ought to have known that she intended to cross the tracks, he had a right to presume that she would not cross in front of a moving car and he was not required to stop or attempt to stop his train until such time as he saw or could have seen her in a position of peril, that is, after she had started after so stopping and was on or so near the track on which the said motorman’s train was running that, if he did not stop, she would be injured, and if it was then too late to stop his train and avoid the injury plaintiff could not recover. This court has uniformly announced the rule that instructions are to be considered as a whole and when this instruction of the defendant is read in connection with the instructions given for the plaintiff, and the general language of the plaintiff’s instructions as to the agents and servants mentioned therein, it is clear that the jury were directed that the motorman was the agent directly charged with the duty of seeing or exercising due care to see plaintiff moving towards and upon the defendant’s tracks. In Baird v. Railroad, 146' Mo. 281, the court gave an instruction on behalf of the plaintiff using the general language, servants or agents of the defendant in charge of and operating said train, etc., and in another told the jury that the plaintiff must prove by the preponderance of evidence that the grip-man saw or by the exercise of ordinary care could have seen the infant approaching the track in time to have avoided injuring it, and this court approved those instructions. We think, considering these instructions altogether, the jury could not have been misled as to the motorman being the agent or servant for whose negligence alone the plaintiff could, recover. The plaintiff’s instructions numbered one, two and three, are very different from instruction number four, which was disapproved on the former appeal in this ease. That instruction in effect told the jury that if either the motorman or the conductor was not keeping a vigilant watch, and that the plaintiff was injured by the failure so to do, then the jury must return a verdict for the plaintiff. In other words, although the motorman, who had control of and was in charge of the motive power of the car, might have been keeping a vigilant watch ahead of the track, yet if the conductor was not doing so, the defendant would be liable. This was clearly erroneous and was properly condemned. Whereas' in this case instructions for the plaintiff required in a strict sense that the plaintiff should prove, not only that the motorman was not keeping a vigilant lookout, but that the conductor also was negligent in this respect, but when defendant’s sixteenth instruction is considered the liability was placed entirely upon the negligence of the motorman, and the jury must so have understood the instructions. Nor do we think they were in conflict, but simply made the general language of the other definite and specific. Accordingly we think this assignment of error is not well taken.

IY. Defendant also contends that the acts of the defendant’s servants in charge of the ear must have been wanton or willful to hold it liable for the injury to plaintiff, but such is not the doctrine of this court. While in some of the cases the language of the court would indicate that the action of the servant must amount to wantonness or willfulness, it was used in those cases with reference to adults in full possession of their faculties, and the servants of the defendants had a right to rely upon the presumption that a grownup man or woman would act with due caution for his or her own safety and not go upon a railroad track immediately in front of an approaching engine or car, and had a right to act upon such presumption. In the very recent case of Hovarka v. Railroad, 191 Mo. 453, this court held that no- such right of presumption existed in the case of a young child approaching the track, and in Eppstein v. Railroad, 197 Mo. 733, and Cytron v. Railroad, 205 Mo. 692, it was determined that if the servants of the defendants in charge of its engine or cars saw, or might have seen by the exercise of ordinary care, a person in a situation of danger in time to have avoided the injury to such person, and negligently failed to- do so, the defendant was liable, and it is not necessary to show that such agents or employees wantonly and willfully injured or killed such a person even though he was himself negligent in going on the track. Nor is there anything in Kellny v. Railroad, 101 Mo. 75, which properly understood conflicts with this view. The most that can be said of the last-mentioned case is that the negligence of a servant under such circumstances was characterized as reckless, willful and wanton, but after all the ground of recovery was negligence.

Y. As to the claim that the various acts of negligence alleged in the petition are contradictory of each other, it is sufficient to say that the only issues of negligence submitted to the jury under the instructions were, first, negligence in failing to discover plaintiff approaching and going upon defendant’s tracks in time to have checked the speed of its cars; second, in failing to keep a vigilant and reasonable lookout for children upon the track or approaching the same and whether the defendant’s motorman could have in the exercise of reasonable care discovered plaintiff in the act of approaching its tracks, etc.; third, in failing to approach said crossing with said car under reasonable control. Each of said acts is consistent with the other, and each might have contributed to the injury of the plaintiff.

VI. We think there was no error in refusing other instructions prayed for by the defendant, as those given for the plaintiff and the defendant fully covered all the facts and law applicable thereto, and this court has often condemned the practice of giving unnecessary instructions. Certainly there can be no complaint in regard to the court not having submitted the contributory negligence of the plaintiff in this case. It was specifically presented to the jury in each of the plaintiff’s instructions and in no event could the defendant have suffered on that ground, and. hence we are not required to say that any error would have been committed had the court neglected to have submitted the question of contributory negligence of a child of this tender age. We have endeavored to carefully go through all the assignments of error and have read the record, and in our opinion the case was one for the jury under proper instructions of the court. We think that the instructions read all together fairly submitted the case and the judgment, therefore, must be and is affirmed.

Fox, P. J., and Burgess, J., concur.


source: Caselaw Access Project

author: WOODSON, J.

license: Public Domain

text:
    CITY OF ST. LOUIS, Plaintiff in Error, v. WILLIAM KLAUSMEIER.
    In Banc,
    June 26, 1908.
    1. ORDINANCE AND STATUTES: Pure Food: Conflict. An ordinance of St. Louis prescribing a penalty for selling dairy products of a standard below that fixed by the Legislature is valid.

      2. -: -: - Milk. There is nothing in the statutes or the Constitution which prohibits the city council of St. Louis from enacting statutes supplementary of and in addition to statutes establishing standards of purity for milk; and an ordinance which in every instance fixes an equal or lower standard of strength and purity of milk than that fixed by the statute is not in conflict with the statute. The legal effect of such an ordinance would not be to authorize the sale of milk which does not come up to the standard fixed by the statute. It would merely impose a penalty for selling milk that does not come up to the standard fixed by the city, and thereby in no manner interfere with the statute.
    3. -: -: -: Higher Standard. But where the ordinance fixes a higher standard than the statute they are in conflict, and the ordinance to that extent is invalid. So that where the ordinance requires skimmed milk to contain not less than 10.5 per cent of total solids, and the statute fixes the standard at 9.25 per cent of total solids, the ordinance denounces as a crime what the statute says may be done, and they are in conflict, and this part of the ordinance is repealed by the statute by necessary implication. But a repeal of that portion does not operate as a repeal of the whole ordinance.
    4. -: -: -: -: Guilty, Nevertheless. And where defendant is charged, not with selling skimmed milk, but cream containing less than twelve per cent of butter fat, he cannot, if guilty on that charge, escape punishment on the ground that the same ordinance prescribed that skimmed milk should contain not less than 10.5 per cent of total solids whereas the statute says it must not contain less than 9.25 per cent of total solids. The conflict between the ordinance and the statute as to skimmed milk does not destroy the whole ordinance or affect the non-conflicting provisions of the ordinance as to cream.
    Error to St. Louis Court of Criminal Correction.— lion. Hiram N. Moore, Judge.
    BEVERSED AND REMANDED.

      Charles W. Bates and Charles P. Williams for plaintiff in error.
    (1) By solemn instrument, in pursuance of constitutional provision, the State has granted to. the city of St. Louis broad and extensive police powers for the regulation of its local affairs. St. Louis v. Liessing,. 190 Mo. 480; Railroad v. Railroad, 148 Mo. 676; Ex parte Lucas, 160 Mo. 236; State v. Tower, 185 Mo. 95; State v. .Cafferata, 24 Mo. 94. (2) The charter-power of the city to enact the precise ordinances herein question and the validity of these ordinances have-been repeatedly affirmed in this court. Charter of St. Louis, art. 3, sec. 26, clauses 5, 6, 7 and 14; St. Louis-v. Liessing, 190 Mo. 64; St. Louis v. G-rafeman Dairy Co., 190 Mo. 492; St. Louis v. Grafeman Dairy Co.,. 190 Mo. 507; St. Louis v. Reuter, 190 Mo. 514; St. Louis v. Polinsky, 190 Mo. 516; St. Louis v. Schuler, 190 Mo. 524; St. Louis v. Bippen, 201 Mo-. 528. (3) Similar powers are possessed by the city with respect to the regulation of dairies and cow-stables. St. Louis v. Fischer, 167 Mo. 654; Fischer v. St. Louis, 194 U. S. 361; St. Louis v. Schefe, 167 Mo. 666; Schefe v. St. Louis, 194 U. S. 373. (4) The acknowledged existence of a power of concurrent regulation both in the city and in the State negatives the notion that such regulations must be absolutely identical. The true rule is that they can validly coexist as long as they are not irreconcilably repugnant in their operation. (5) It is, at best, a case of implied repeal, and implied repeals are narrowly and strictly construed. (6) The ordinances remain good under-the decisions of this State. St. Louis v. Bentz, 11 Mo. 61; St. Louis v. Cafferata, 24 Mo. 94; City v. DeLassus, 104 S. W. 12; State v. Muir, 164 Mo. 610; State v. Gustin, 152 Mo. 108; Canton v. McDaniel, 188 Mo. 228; Lebanon v. Gordon, 99 Mo. App. 277; Kansas City v. Hallett, 59 Mo. App. 164; Kansas City v. Za'hner, 73 Mo. App. 396; Hill v. St. Louis, 159 Mo. 167. (7) The-ordinances in question do not undertake to say that milk which does not equal the standard set by the State can be sold in the city of St. Louis. They merely .provide a penalty for selling milk that does not at least. equal the percentages and grades set by the city, and the percentages and grades set by the city are strictly descriptive of the offense as against the city, and have nothing to do with the standard that is descriptive of the offense against the State. The penalties provided can operate concurrently and without interference.

      E. F. Stone for defendant in error.
    (1) The ordinances, in order to be of any validity, must be consistent with the general laws of this State, and must be in harmony with the “legislative policy of the State manifested by its general enactments,” and as commanded by the express provisions of the Constitution. Dillon on Mun. Corps. (4 Ed.), sec. 329; St. Louis v. Meyer, 185 Mo. 594; City of Moberly v. Hoover, 93 Mo. App. 663; State ex rel. v. St. Louis, 117 Mo. 13; State v. Kessels, 120 Mo. App. 239 ; Ewing v. Hoblitzelle, 85 Mo. 78. (2) The ordinance fixes a standard for whole milk, cream, skimmed milk and condensed milk. The statute does the same. That an irreconcilable conflict and inconsistency exists between the standards for each of said products as fixed in the ordinance and the statute, there can be no question as is clearly shown when they are put side by side. The ordinance authorizes that to be done which the statute forbids. State v. Dorn, 145 Mo. 482. (3) These inconsistencies, both in specific provisions and in policy, operate as a repeal of said ordinance, as the Legislature can modify or repeal ordinances, and “such repeal need not be in express terms.” If the intention clearly appears to repeal, the ordinance must give way, and the city must take notice of said inconsistency and repeal and regulate its affairs accordingly. State ex rel. v. Bell, 119' Mo. 70; State ex rel. v. Stobie, 194 Mo. 61; People v. Thurman, 85 Mich. 110; Mulcahy v. Newark, 57 N. J. L. 513.
   WOODSON, J.

This prosecution was instituted against the defendant in error to recover a penalty of $100 for violating section 19' of ordinance No. 20808 of the city of St. Louis. Said section reads as follows:

“No cream shall he sold,, offered for. sale, exchanged, delivered or be transported for the. purpose of sale, offering for sale, exchange or delivery, that contains less than twelve per centum of butter fat, or that is taken from any impure, diseased, unhealthy, unclean, adulterated, or unwholesome milk, or milk to which any foreign or other substance of any kind has been added. Any person violating any of the provisions of this section 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.”

The complaint charged that the defendant in error carried and exposed for sale, in the city of St. Louis, cream containing less than twelve per centum •of butter fat.

The defendant in error was fined in the police ■court and took an appeal to the St. Louis Court of Criminal Correction. In said last-mentioned court, the defendant in error filed a motion to quash the information. The court entered judgment sustaining the motion to quash and discharging the defendant upon the fifth ground set out in the said motion to quash, which is as follows: “Because said ordinance is void as being inconsistent with the statute of "this State. ’ ’

After the case had been removed by writ of error to this court, the defendant in error filed a motion to ■dismiss the writ of error, together with the cause, upon the ground that certain statutes had been enacted which were irreconcilably inconsistent with the further enforcement of the ordinance. The statutes which are invoked to defeat and to dismiss this prosecution are as follows:

Session Laws of 1905, page 133, entitled, “Dairy Commissioner — State: Terms, Duties and Powers Defined.”

Session Laws of 1907, page 246, entitled, “Dairy and Food Commissioner. ’ ’ ■

Session Laws of 1907, page 238, entitled, “Crimes and Punishments: Adulteration of Foods and Drugs. ’ *

I. There are many legal propositions presented and learnedly discussed by counsel for both plaintiff •and defendant in error; but when reduced to their final analysis only one question remains for the consideration of this court, namely: Was the ordinance mentioned, which was in force at the time of the institution of this prosecution, subsequently repealed by the acts of the Legislature of 1905 and 1907 ?

The ordinance in question fixed the percentages and standards of whole milk and skimmed milk as follows:

Whole Milk:

Butter fat not less than 3 per cent.

Non-fatty solids not less than 8.5 per cent.

Ash not less than .7 per cent.

Total solids not less than 12.2 per cent.

Butter fat to be determined exclusively by the Adams paper coil process.

Cream:

Butter fat 12 per cent.

Skimmed Milk:

Total solids not less than 10.5 per cent.

Butter fat not less than 1.5 per cent.

Specific gravity between 1.032 and 1.038.

While the acts of the Legislature mentioned prescribed the following percentages:

Whole Milk:

Butter fat not less than 3.25 per cent.

Non-fatty solids not less than 8.5 per cent.

Total solids not less than 11.75 per cent.

No process for analysis designated.

Cream:

Butter fat 18 per cent.

Skimmed Milk:

Total solids not less than 9.25 per cent.

It-is the contention of the plaintiff in error, who will hereinafter be called the plaintiff, that these laws and the provisions contained therein' were intended for the guidance of the State officers referred to in those acts; that it was not the intention of the Legislature to take away the powers of cities granted by charter to make additional and further regulations in respect to the same subject-matter; that the standards referred to in the statutes were intended to be descriptive only of the State offense, and that the ordinances of the city of St. Louis in question remain unimpaired, in full force and effect. The defendant, upon the other hand, insists that there is an irreconcilable conflict and inconsistency existing between the standards for such of said products as are fixed by the ordinance and those prescribed by the statutes. These respective contentions of the parties sharply present the legal proposition involved in this case.

It is not disputed, but it is conceded by plaintiff, that the acts of 1905 and 1907 are .general laws of the State, and that they by their terms apply to the entire State and to all the cities thereof. And it is well settled that the ordinances of the city of St. Louis in order to be of any validity must be consistent with the general laws of the State, and must be in harmony with the “legislative policy of the State manifested by its general enactments,” and as provided for in express terms by the Constitution. This proposition is fully supported by the following authorities: Dillon on Mnn. Corps. (4 Ed.), see. 329; St. Louis v. Meyer, 185 Mo. 593-4; State ex rel. v. Railroad, 117 Mo. 1, 13; State v. Kessels, 120 Mo. App. 239; Ewing v. Hoblitzelle, 85 Mo. 64, 78.

But there is nothing in the Constitution or laws of the State which prohibits the city council from enacting ordinances supplemental of and in addition to the State laws in the establishment of standards of purity and providing for the inspection of dairy products. In fact, section 26 of article 3 of the charter of the city of St. 'Louis expressly authorizes the enactment of just such an ordinance as the one here in question, and the validity of this particular ordinance has been repeatedly sustained and upheld by this court. [St. Louis v. Liessing, 190 Mo. 464; St. Louis v. Grafeman Dairy Co., 190 Mo. 492; St. Louis v. Bippen, 201 Mo. 528.]

This brings us to the vital question involved in this case. Are the acts of 1905 and 1907, prescribing the percentages and standards of purity of dairy products and providing for their inspection, in conflict with the ordinance in question, which deals with the same subjects?

The ordinance in every instance, excepting one, fixes an equal or a lower standard of strength and purity than that fixed by the statute. The exception mentioned relates to one of the elements of skimmed milk. The ordinance fixes the total solids of skimmed milk at not less than 10.5 per cent, while the statute fixes the total solids at 9.25 per cent. The ordinance also requires certain ingredients and percentages thereof in whole milk and in skimmed milk which are not called for by the statutes. Those things called for by the ordinance and not by the statute are as follows: In whole milk, ash not less than 7 per cent, and in skimmed milk, butter fat not less than 1.5 per cent; specific gravity between 1.032 and 1.038.

We suppose it will not be claimed, nor could it be logically contended, that there could be a conflict between the statute and the ordinance regarding those matters called for in the latter, and upon which the statute is silent. In order to be a conflict of any kind, two things must of necessity exist, and when it is contended that there is a conflict between two laws both must contain either express or implied provisions which are inconsistent and irreconcilable with each other. If either is silent where the other speaks, there can be no conflict between them.

The ordinance in those particulars is but additional to and supplemental of the statute in fixing the standard and purity of dairy products to be sold in the city of St. Louis. Those requirements of the ordinance are not in conflict with the statute, and there is nothing in the letter or spirit of the statute which prohibits the city from adding those requirements, while, upon the other hand, the charter of the city in express terms grants it the powers here claimed for it. If it can re-enact only such laws as are enacted by the Legislature, then the grant of such power to the city would be vain and useless in its object and purposes. The test being, there must be such inconsistency between the provisions of the ordinance and the statute as to annul the former. [St. Louis v. Cafferata, 24 Mo. 94; St. Louis v. DeLassus, 205 Mo. 578.]

And it is equally well established that where a city has concurrent powers with the State it may prescribe a penalty for the violation of its ordinances different from that prescribed by the State for the violation of a statute regarding the same subject-matter. [Hill v. St. Louis, 159 Mo. l. c. 167, and cases cited.] That being true, then we are unable to distinguish on principle why the city of St. Louis, which has express authority to establish standards of strength and percentages of purity of dairy products, and the power to provide for their inspection, may not by ordinance fix ■a lower standard and percentage of strength and purity than that fixed by the State law. It must be ■conceded that even though the city possesses the power to pass such ordinances, it is not compelled to do so. If it sees proper it may enact no ordinance whatever •upon the subject and rely exclusively upon the State law for protection against the sale of impure milk and butter. If the city can entirely decline to legislate upon the subject, then why may she not partially, decline, that is, why may she not legislate so- far along the lines covered by the statute and no further? The legal effect of such an ordinance would not be to authorize the sale of dairy products which do not equal the standards fixed by the State. It would merely impose a penalty for selling such products that do not come up to the standards fixed by the city, and thereby in no manner interfere with the State law. No good reason has been pointed out why the city may not remain inactive so long as milk dealers do not sell milk below a certain standard, even though that standard may be lower than that fixed by the Legislature of the State. Nor are we able to see any valid objection that can be urged against an ordinance prescribing a penalty for selling dairy products at a standard below that fixed by the State. The city might wisely rely upon the State law for protection against such illegal sales unless the products so sold fell below a certain standard of purity fixed by ordinance, and at the same time prescribe a penalty for selling such products which fall below the standard fixed by ordinance.

While such ordinance might not be as broad as the statute, yet it would not be inconsistent with the statute on that account. Both would proceed along the same lines, but the requirements of the former would fall short of the requirements of the latter. This, however, would not render the ordinance void, as was held in the case of St. Louis v. DeLassus, 205 Mo. 578.

•If a person sells dairy products in the city of St. Louis which come up to the standard of strength and purity fixed by the State, then he would be guilty of no offense either under the State law or the ordinances of the city; but if he should sell such products which do not come up to that standard, then he would be liable to punishment under the State law and not under the ordinance, unless the standard of strength and purity thereof should also fall below the standard prescribed by the city ordinance; in which event he would be liable to prosecution and punishment under' both. Such has 'been the ruling of this court for many years, as is shown by the following cases: St. Louis v. Cafferata, 24 Mo. 94; St. Louis v. DeLassus, 205 Mo. 578; State v. Muir, 164 Mo. 610; State v. Gustin, 152 Mo. 108; Canton v. McDaniel, 188 Mo. 228; Hill v. St. Louis, 159 Mo. l. c. 167; St. Louis v. Bentz, 11 Mo. 61.

In the particulars just considered we are of the opinion that there is no conflict between the ordinance and the statutes mentioned, and for the reasons stated the latter does not repeal the former as to the matters indicated. But so much cannot be said of the standard of solids prescribed by the ordinance for skimmed milk. For skimmed milk the ordinance fixed the total solids at not less than 10.5 per cent, while the statute fixed it at 9.25 per cent. In this particular there is a clear conflict between the statute and the ordinance, for a person might sell skimmed milk containing 9.25 per cent of solids, as prescribed by the State law, and still be guilty of an offense under the ordinance. In other words, the ordinance denounces that to be a crime which, the statute authorizes to he done. That cannot be true because section 23 of article 9 of the Constitution expressly provides that the charter and ordinances of the city shall be in harmony with and subject to the Constitution and laws of the State. To hold otherwise would be to subject the statute of the State to the operation of the ordinance of the city. [Dillon on Mun. Corp. (4 Ed.), sec. 329; St. Louis v. Meyer, 185 Mo. 593.]

We are, therefore, clearly of the opinion that the clause of the ordinance just mentioned is in direct conflict with the acts of the Legislature mentioned, and is repealed by necessary implication. But what bearing does that holding have upon the defendant in this case? It must be borne in mind that he is not charged with selling shimmed milk of standard -but with selling cream in violation of section 19 of the ordinance, containing less than twelve per cent of butter fat. The defendant’s contention in that regard is that a repeal of any portion of the ordinance operates as a repeal of the entire ordinance. We are unable to lend our assent to that contention. The law does not favor repeals by implication and must be narrowly and strictly construed, and will be permitted only where the conflict is so inconsistent and repugnant to each other that both laws cannot stand together. [State ex rel. v. Hopkins, 87 Mo. 519; Manker v. Faulhaber, 94 Mo. 430.] Clearly, under this rule, the other portions of the ordinance are not repealed, for the reason before stated, namely, the statute and the ordinance in all other respects stand together.

Thus viewing the case, we must conclude that the Court of Criminal Correction committed reversible error in quashing the information.

It is, therefore, ordered that the judgment be reversed and the cause remanded to be proceeded with in conformity to the views herein expressed.

All concur, except Vallicmt, J., absent.


author: "WOODSON, J.

text:
    CITY OF ST. LOUIS, Plaintiff in Error, v. HENRY WORTMAN.
    In Banc,
    June 26, 1908.
    1. CONSTITUTIONAL LAW: Title: Dairy Commission: Adultera-' tion: Penalty. That portion of the Act of 1905 whose title is, “An act to create the office of State Dairy Commissioner, and to define his term of office, duties and powers,” which attempts to establish a standard of strength and purity of milk and cream, and declares that “whoever shall sell, or offer or expose for sale anywhere in this State, milk or cream containing any foreign substance or preservative of any kind whatever injurious to health, shall be- guilty of a misdemeanor,” etc., is unconstitutional, because not embraced in the title. Nor is it germane to the title, but is independent and outside of the title.
    2. ORDINANCE AND STATUTE: Conflicting: Preservatives in Milk. An ordinance providing that no foreign substance or preservative of any kind shall be placed in milk or cream for any purpose whatsoever, and the statute of 1905, providing that no foreign substance or preservative of any kind shall be placed in milk or cream which is injurious to health, are in conflict, .and if the statute is valid the ordinance is invalid.
    3. -: -: -: Unconstitutional Statute. But the statute being invalid, because that portion thereof referring to preservatives in milk or cream was not embraced in the title of the act of which it is a part, the ordinance, though in conflict with it, is not for that reason invalid, and defendant cannot, because of the conflict between the ordinance and that invalid statute, escape punishment ’in a prosecution by the city for a violation of the ordinance if it is otherwise valid.
    4. -:' -: Formaldehyde: Pure Food Law. But the ordinance, which prohibits the adding to milk or cream any foreign substance of any kind for any purpose, and the Act of 1907, providing that “food shall be deemed adulterated if it contains any added substance which is poisonous or injurious, to health,” are inconsistent and in conflict. The ordinance is-much broader than the statute and is invalid, being by necessary implication repealed by the statute. Defendant cannot be punished for violating the ordinance in a prosecution by the city, though the substance in his milk was formaldehyde.

      5. -: -: -: -: Poison. But formaldehyde is a well-known poison, and the putting of it in milk is prohibited by that statute and defendant can be prosecuted by the State. That statute does not mean that poisons or other substances injurious to health may be placed in milk or cream provided the quantity used is not sufficient to cause. injury ■ to health. It means that to place any substance in food of any kind, in any quantity, for any purpose, which is poisonous or injurious to health, is a misdemeanor.
    6. -: -: -: -: -: Guaranty. Section 12 of the Pure Food Law of 1907, providing that a retail dealer who can establish a guaranty signed by the wholesaler or manufacturer that the substance is not adulterated or misbranded, is not liable to punishment, does not mean that food containing poison in any quantity can .be sold. It means that the dealer can sell any food in original packages, without opening and testing them, if they are protected by such guaranty.
    7. -: -: -: Interstate Commerce: Original Packages. The city of St. Louis does not have the right to prohibit the sale of interstate shipments of products in the original unbroken packages. But if the original packages are broken, and the milk, cream or butter is sold in or from packages different from those in which it was shipped into this State, the city can enact an ordinance in harmony with the statute that makes such sales invalid in prosecutions by the city.
    8. CONVICTION: Repeal of Law After Appeal. The repeal of an ordinance by a statute, pending a prosecution under its provisions, operates to relieve defendant, unless it is otherwise provided in the act repealing the ordinance.
    Error to St. Louis Court of Criminal Correction.— Ron. Hiram N. Moore, Judge.
    Affirmed.

      Charles W. Bates and Charles P. Williams for plaintiff in error.
    (1) With respect to the acts of the Legislature passed in 1907 while these cases were pending in the Supreme Court, section 1327 of the general ordinances of the city prevents a legislative appeal from abating a suit to collect the penalties provided. (2) Section 5 of the Act of 1905 relating to the State Dairy Commissioner, if it be interpreted as nullifying the provisions of city ordinances and charters, is unconstitutional because no hint of any such purpose appeared in the title. (3) All the governments, Federal, State and city, can and do work together in harmony, furnishing treble guarantee for the wholesomeness of the milk and cream sold in this city.

      Won. L. BoJmenkamp for defendant in error. '
    (1) (a) The statute provides that the products shall be deemed adulterated if they do not conform to certain standards. But the ordinance absolutely prohibits the sale of any such products if they do not come up to certain standards, regardless of whether they are adulterated or not. This is a fatal inconsistency, for the ordinance is clearly broader than the statute, being an absolute and sweeping prohibition, whilst the statute limits the prohibition to the question of adulteration as a fact, when non-compliance with "the standards is found to exist. This conflict is also fatal because a different form of pleading is required and the defendant has a defense under the limited prohibition of the statute that is denied him by the ordinance. (b) The statute authorizes and permits the use of preservatives in milk if not injurious to health, while the ordinance prohibits the use of preservatives for any purpose and however harmless or useful the preservation may be. St. Louis v. Dorr, 145' Mo. 482; Newton v. Belger, 143 Mass. 598. (2) Section 17 of ordinance No. 20808, which is the section under which this defendant is being prosecuted, prohibits the use of any foreign substance or “preservatives” for any purpose whatsoever, even to preserve the sweetness or condition thereof, whilst section 5 of the Act of 1905 only prohibits the use of any foreign substance or preservative that is injurious to health. Both cannot stand together. Said ordinance also prescribes penalties from $25 to $100, whilst said act prescribes penalties from $10 to $100. The Act of 190'5, Laws 1905> page 131, provides, in substance, that no person shall sell or offer for sale, anywhere in this State, milk or cream containing any foreign substance or preservative “that is injurious to health.” This clearly permits and authorizes the use of preservatives which do not render the product injurious to health, whilst the said ordinance expressly and absolutely prohibits their use for any purpose. “That which is allowed by the general laws of the State cannot be prohibited by ordinance.” Collins v. Hatch, 18 Ohio 523; State v. Brittain, 89 N. C. 574; Robinson v. Franklin, 34 Am. D'ec. 625; Newton v. Belger, 143 Mass. 598. ■ (3) These inconsistencies and conflicts, both in specific provisions and in policy, operate as a repeal of said ordinance by a statute of the State. The Legislature can modify or repeal ordinances, and “such repeal need not be in express terms.” If the intention clearly appears to repeal, the ordinance must give way to- legislative act.* State ex rel. v. Stobie, 194 Mo. 61; State ex rel. v. Bell, 119 Mo. 75; People v. Thurman, 85 Mich. 110; Mulcahy v. Newark, 57 N. J. L. 513.
   "WOODSON, J.

-It is conceded by the defendant, in error that the plaintiff’s statement of the case is full and fair; and for economy of time I will adopt that statement as the statement of court, which is as follows:

“This was a prosecution instituted by the city attorney of the city of St. Louis against Henry Wortman, the defendant in error, to recover a penalty of $100 for the violation of section 17 of Ordinance 20808, approved August 27, 1902. Section 17 of the ordinance, upon which the prosecution was founded, is as follows:
“ ‘Section 17. Any person, firm or corporation, who shall sell, expose for sale, exchange, deliver,' dispose of or transport, convey, carry, or with any such intent as aforesaid have in his or her care, custody, •control or possession, any milk or cream having therein, or containing any foreign substances of any kind whatever, or coloring matter, or any adulteration or preservative, whether for the purpose of artificially increasing the quality of the milk or cream, .or for preserving the condition or sweetness thereof, or for any purpose whatever, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be fined not less than twenty-five dollars nor more than one hundred dollars for each and every offense.’ •
“The information charged that the defendant in error carried and exposed for sale, in the city of St. Louis, skimmed milk, containing a preservative known as formaldehyde. The defendant was fined in the police court and took, an appeal to the St. Louis Court of Criminal Correction. In said last-mentioned court, the defendant filed a motion to quash the information. The court entered judgment sustaining the motion to quash and discharging the defendant upon the fifth ground set out in the said motion to quash, which is as follows: ‘Because said ordinance is void as being inconsistent with the statute of this State.’ ”

After the case had been removed by writ of error to this court, the defendant in error filed a motion to dismiss the writ of error, together with the cause, upon the ground that certain statutes had been enacted which were irreconcilably inconsistent with the further enforcement of the ordinance. The statutes which are invoked to defeat and to dismiss this prosecution are as follows:

Session Laws of 1905, page 133, entitled, “Dairy Commissioner — State: Terms, Duties and Powers Detraed.”

Session Laws of 1907, page. 246, entitled, “Dairy •and Pood Commissioner.”

Session. Laws of 1907, page 238, entitled, “Crimes and Punishments: Adulteration of Poods and Drugs.”

I. Counsel in this case, as in the ease of St. Louis y. William Klausmeier, reported at page 119 of this volume, have presented and discussed many legal questions, most of which have been disposed, of by this court in a series of cases, known as the “milk cases,” reported in the 190 Missouri Report. No wise or useful purpose would be served by re-opening or discussing those questions again in this case. The questions presented by this record, not common to those presented in those cases, are but three in number, and they are as follows:

First: Is section 5 of the Act of 1905, entitled, “An Act to create the office of State Dairy Commissioner and to define his term of service, duties and powers,” constitutional?

Second. Is section 17 of Ordinance No. 20808 of the city of St. Louis repealed by the acts of 1905 and 1907 before mentioned?

Third. Have dealers in dairy products the right under said ordinance to sell or offer for sale in the city of St. Louis milk, cream, butter and other such products which contain formaldehyde or other foreign substances?

We will consider these three propositions in the order stated.

It is the first contention of the' plaintiff that the Act of 1905 mentioned is unconstitutional and void for the reason that it was not enacted in accordance to the mandate of section 28 of article 4 of the Constitution of the State. That provision of the Constitution reads as follows: “No bill . . . shall contain more than one subject, which shall be clearly expressed in its title. ’ ’ The Act of 1905, now under consideration, is entitled as follows:

“An Act to create the office of State Dairy Commissioner, and to define Ms term of service, duties and powers.”

Section 3 of the act points out the duties of the commissioner and therein provides that, “it shall he the duty of the State Dairy Commissioner to inspect or cause to he inspected all creameries, public dairies, butter and cheese factories at least once a year, and oftener if possible, prescribe such reasonable rules and regulations for their operation as he deems necessary to fully carry out the provisions of laws now in force or that may be hereafter enacted relative to dairy products for the promotion and maintenance of public health and safety.....He shall keep on hand a supply of standard test tubes or bottles and milk measures or pipettes adapted to the use of each milk testing machine the manufacturers or dealers of which have filed with the- State Dairy Commissioner a certificate from the director of the Missouri agricultural experiment station that said milk testing machine when properly operated will produce accurate measurements of butter fat, and to furnish same at actual cost to any person desiring them, upon written request therefor, such tubes, bottles, measures and pipettes to be stamped with the letters £S. D. C.’ as certifying to their accuracy.”

Section 4 of the act points out the powers of the commissioner and therein provides: “In the performance of his official duty the State Dairy Commissioner is hereby authorized and empowered to enter during business hours all creameries, public dairies, butter and cheese factories or other places where dairy products are sold or kept for sale, for the purpose of inspecting same'; to take' samples anywhere of any dairy product, or imitation thereof, suspected of being made or sold in violation of law, and cause the same to be analyzed or satisfactorily tested by the State Agricultural College chemist, and such analysis or test shall be recorded and preserved as evidence, and the certificate of snch test, when sworn to by snch chemist, shall be admitted in evidence in all prosecutions that may result under the operations of this act.”

Section 5 of the act and the section objected to defines what creameries, public dairies, butter and cheese factories shall be, and further provides that “in all prosecutions and proceedings for the enforcement in any of the courts of this State, of all laws and regulations of whatsoever nature now in force, or that may hereafter be enacted, pertaining to the production, sale, and distribution of dairy products of any kind whatsoever, the standard of purity and the definition of said products shall be such as are now, or may hereafter be adopted, recognized and published by the officials of the United States Department of Agriculture, and whosoever shall sell, or offer or expose for sale anywhere in this State, milk or cream containing any foreign substance or preservative of any hind whatsoever injurious to health, shall be guilty of a misdemeanor, and on conviction be fined not less than ten dollars, nor more than one hundred dollars, for each offense.”

It will be seen from reading the title of the act that it only authorizes the passage of an act creating the office of State Dairy Commissioner, the term of his service, his duties and powers, while the act itself not only creates that office and defines his term of service, duties and powers, but goes one step further and by section five thereof attempts to establish the standard of strength and purity of all dairy products, and provides that whosoever shall sell or offer for sale any of such products containing any foreign substance or preservative of any kind injurious to health shall be guilty of a misdemeanor and on conviction shall be punished by a fine of not less than ten nor more than one hun-, dred dollars. The plaintiff insists that if the validity of said section is tested by the constitutional provision before quoted, then that portion of it which establishes the standard of strength and purity of dairy products and prescribes the penalty for their adulteration is unconstitutional and void, for the reason that they are not expressed or mentioned in the title of the act. Counsel for .defendant concede that the matters mentioned are not expressed in the title of the act, but contend that they are germane to the matters which are stated therein, and for that reason the section is valid notwithstanding said omission, for the reason that matters found in the body of the act and which are germane to those stated in the title need not be stated in the latter. If defendant’s major premise is correct, then his conclusion must necessarily follow from the repeated decisions of this court; but if the matters stated in section five of the act are not germane to those stated in the title, then under the plain mandate of the Constitution we must hold that part of the section to be invalid. This brings us to the point where we must determine whether the matters stated in section five are independent of and outside of the title of the act, or whether they are germane to those expressed therein.

This court, in discussing this question in the ease of St. Louis v. Weitzel, 130 Mo. l. c. 616, used this language: “The evident object of the provision of the organic law relative to the title of an act was to have the title like a guide board, indicating the general contents of the bill, and containing but one general subject which might be expressed in a few or a greater number of words. If those words only constitute one general subject; if they do not mislead as to what the bill contains; if they are not designed as a cover to vicious and incongruous legislation, then the title can stand on its own merits, is an honest title, and does not infringe on constitutional prohibitions.”

Judge Cooley, in treating this question, in his valuable work on Constitutional Limitations (7 Ed-.), at page 205, used this language: “It may therefore be assumed as settled that the purpose of these provisions was: .... Second, to prevent surprise or fraud upon the Legislature by means of provisions in bills of which the titles gave no intimation, and which might therefore be overlooked and carelessly and unintentionally adopted; and, third, to fairly apprise the people, through such publication of legislative proceedings as is usually made, of the subjects of legislation that are being considered, in order that they may have opportunity of being heard thereon, by petition or otherwise, if they.shall so desire.” And, continuing on page 212, he says: “The courts cannot enlarge the scope of the title; they are vested with no dispensing power; the Constitution has made the title the conclusive index to the legislative intent as to what shall have operation; it is no answer to say that the title might have been made more comprehensive, if, in fact, the Legislature have not seen fit to make it so. Thus, ‘ an act concerning promissory notes and bills of exchange’ provided that all promissory notes, bills of exchange, or other instruments in writing, for the payment of money, or for the delivery of specific articles, or to convey property, or to perform any other stipulation therein mentioned, should be negotiable, and assignees of the same might sue thereon in their own names. It was held that this act was void as to all the instruments mentioned therein except promissory notes and hills of exchange; though it was obvious that it would have been easy to frame a title to the act which would have embraced them all, and which would have been unobjectionable.”

At an early date this court, in the case of State v. Persinger, 76 Mo. l. c. 347, said: “We are of the opinion that the motion to quash was properly sustained, for the reason that said act was entitled, ‘An act to change the penalty for disturbance of the peace. ’ This title only authorized the passage of an act chang-' ing the penalty for such disturbances of the peace as were then by law declared punishable. The said Act of 1870, while it changed the punishment for such offenses, went further and undertook to amend the Act of 1868 by so changing it as to make it an offense for one person to disturb the peace of another person. While the title of the act embraced but one subject, namely, a change of the penalty for disturbing the peace, the body of the act not only included that subject, but also another, viz: amending the law so as to make that a disturbance of the peace under the Act of 1870 which was not an offense under the Act of 1868. It therefore follows that as the Act of 1870 embraced two subjects, one of which was not - expressed in its title, it is violative of the 32d section, .article 4 of the Constitution of 1865, and void as to so much thereof as is not expressed in the title.”

If we view the act in question in the light of the rule announced by the foregoing authorities, the conclusion is irresistible that the portion of section five under consideration is unconstitutional, null and void for the reason it is not expressed in the title of the act nor germane to the subject stated therein.

II. The second question presented by this record for our consideration involves the contention of the defendant that section 17 of Ordinance No. 20808 of the city of St. Louis is repealed by the acts of 1905 and 1907.

One of the arguments presented here by defendant in favor of the repeal of section 17 of Ordinance No. 20808 involved the sole question decided in the case of St. Louis v. Klausmeier, supra; and we there held adversely to the contention of the defendant, and what we there said must be taken as conclusive against the defendant upon the same proposition presented here. But defendant presents an additional reason here in favor of the repeal not presented in that case, which we will now consider.

Section 17 of the ordinance mentioned, the one defendant is charged with violating, provides that any person who shall sell or offer for sale any milk or cream having therein or containing any foreign substance of any kind whatever, or coloring matter, or any adulteration or preservative whether for the purpose of artificially increasing the quality of the milk or cream, or for preserving the condition or sweetness thereof, or for any purpose whatever, shall be deemed guilty of a misdemeanor. And section five of the Act of 1905, before mentioned, provides that “whosoever shall sell or offer for sale anywhere in this State milk or cream containing any foreign substance or preservative of any kind whatsoever injurious to health shall be guilty of a misdemeanor.” The defendant was charged with offering for sale in the city of St. Louis milk containing a preservative known as formaldehyde, contrary to the provisions of said section seventeen of said ordinance. The defendant contends that the said section 17 of the ordinance and said section 5 of the Act of 1905 are so inconsistent that both of them cannot stand together, and that by necessary implication the latter repeals the former.

There can be no doubt but what there is such an inconsistency and irreconcilable conflict between the statute and the ordinance that both cannot stand together. The ordinance provides that no foreign substance or preservative of any kind shall be placed in milk or cream for any purpose whatsoever, while the statute provides that no foreign substance or preservative of any kind whatsoever shall be placed in milk or cream which is injurious to health. The italicized words differentiate the meaning of the two sections. The ordinance absolutely prohibits the placing of alt foreign substances and preservatives in milk or cream for any purpose, while the statute only prohibits the placing in milk and cream foreign substances and preservatives which are injurious to health. The former is an absolute prohibition, while the latter is conditional, or permissible if the preservatives are not injurious to health. We are, therefore, clearly of the opinion that there is an irreconcilable conflict between the two; and there would be no doubt but what the statute would repeal the ordinance by necessary implication if the statute was constitutional, but it is not, for the reasons stated in the first paragraph of this opinion.

We must, therefore, hold that said section of the ordinance is not repealed by that section.

III. This brings us to the consideration of the third or last proposition presented by this record, namely: Has a person in the city of St. Louis the legal right, under ordinance No. 20808-, to sell or offer for sale dairy products which contain formaldehyde or other foreign substances?

That question involves two legal propositions, viz:

First. If the sales consist of interstate shipments and the products are sold in the original unbroken packages, then the answer would be in the affirmative; for the reason that all such sales are governed by the acts of Congress and not by the State laws. But if the original packages are broken and the milk, cream or butter is sold in different- packages from those in which they were shipped into the State, then the answer would be the same as that stated in the next succeeding clause of this opinion, for the reason that such transactions would then be changed from interstate to intrastate commerce.

Second. Clause five of section four of an Act of 1907, entitled, “An Act to prohibit the manufacture and sale of foods . . . ; and prescribing penalties for violations thereof,” Laws 1907, p. 239, provides that “food shall be deemed to be adulterated: . . . . 5. If it contain any added substance which is poisonous or injurious to health.” And section 14 of the same act prescribes a penalty of hot less than ten nor more than five hundred dollars for the violation of. any of the provisions of the act.

Said clause five of said section does not prohibit the adding of any substance to food (which, of course, includes dairy products) which is not poisonous or injurious to health, but it does expressly prohibit the adding thereto of any substance which is poisonous or injurious to health.

As shown by paragraph II of this opinion, the section 17 of the ordinance absolutely prohibits the adding to milk and cream any foreign substance of whatsoever kind for any purpose. The ordinance is much broader than is the statute. It covers all that the statute covers and more too. The statute only covers matters which are poisonous or injurious to health, while the ordinance covers those matters and all others, whether poisonous or injurious to health or not. There is clearly an inconsistency and repugnancy between the two, and so much so that both cannot stand; and we must, therefore, hold that the statute by necessary implication repeals said section 17 of the ordinance.

We must, therefore, hold that defendant cannot be punished for selling milk in the city of St. Louis, adulterated with formaldehyde, or other foreign substance, in violation of said section of the ordinance.

But since formaldehyde is a well-known poison, it cannot be placed in food of any kind, in any quantity, and be sold or offered for sale anywhere in the State without violating the express terms of clause 5 of said section 4 of the Act of 1907. And if such is being done, then the guilty parties may be prosecuted under the State laws and punished for» such violation. Learned counsel for defendant misapprehend the meaning of the statute in that regard. They contend that, under the statute, poison or other substances which are injurious to health may be lawfully placed in food and dairy products, provided the quantity used was not sufficient to cause death or injury to health. That is neither the letter nor spirit of the act. The statute makes it a misdemeanor to place any substance in food of any kind, in any quantity, for any purpose, which is poisonous or injurious to health. If this is not the meaning of the statute, then who would determine what quantity is or is not injurious to health? Which one of the thousands of dairymen and farmers who sell milk throughout the State would determine that most important question? If one may determine that question, then each and all of them may do the same; and in that ease the quantity of poison contained in milk and cream sold on the market would depend solely upon the individual judgment of each and every producer and vendor of dairy products. Of course where the law absolutely prohibits the' use of all poisonous matters and other substances which are injurious to health, there could be no legal standard by which any one could determine what quantity is or is not dangerous to health. And under that condition of the law one person might conclude that a certain quantity was not injurious, another might think twice that quantity was not, while a third might believe both were too large and injurious, and so on to the end of the long list. If ■counsel for defendant are correct in their contention, then the foregoing would be the practical manner in which the dairy business of the State would be conducted ; and the citizens of the State would thereby be subjected to the extremely dangerous judgment or -caprice of each and every dairymen doing business in the State. Such a result shows the unsoundness of their contention.

Nor is there anything in section 12 of said Act of 190*7 which' militates in the least against the conclusions above reached. That section reads as follows:

“Sec. 12. No dealer shall be prosecuted under the provisions of this act when he can establish a guaranty, as provided for in the National Food and Drug Act, approved June 30, 1906, or a guaranty, signed by the wholesaler, jobber, manufacturer or other party, residing in the State of Missouri, or who shall have filed in the office of the dairy and food commissioner a designation of the name and residence of some competent person being and continuing a resident of this State, process served on whom shall be valid and acceptable as personally served upon such party in any suit or proceeding under this act, from whom he purchased such articles, to the effect that the same are not adulterated or misbranded in the original unbroken packages, within the meaning of this act. Said guaranty, to afford protection, shall contain the name and address of the party or parties making the sale of such articles to such dealer, and in such case said party or parties shall be amenable to the prosecutions, fines and other penalties which would attach, in due course, to the dealer under the provisions of this act. ’ ’

The clear and manifest meaning of that section is to relieve the dealer of the necessity of analyzing each and every original and unbrohen package of milk and cream sold or consigned to him by the wholesaler, jobber or manufacturer, and to authorize him to sell from said packages under the guaranty mentioned therein, provided the wholesaler, jobber or manufacturer from whom he purchases has complied with the provisions of said section. In such case, if the^wholesaler, jobber or manufacturer places any substance in such packages which is poisonous or. injurious to health, then he, and not the retail dealer, is liable to prosecution and fine for violating the statute. In other words, the clear meaning of the statute is that neither the wholesaler, jobber, manufacturer nor retail dealer of food or dairy products can lawfully place any substance in any food or dairy products which is poisonous or injurious to health, in any .quantity, for any purpose whatsoever.

The argument of the learned City Counselor, that, to place jhe'above construction upon the Acts of 1905 and 1907, and ordinance No. 20,808, would virtually destroy the city’s system of inspection, is, it seems to us, without much real merit, for the reason that the city is protected by the State law, and whoever sells or offers to sell dairy products in the city of St. Louis in violation thereof is guilty of a misdemeanor and is liable to a fine of not less than ten nor more than five hundred dollars. With that law in force no very great injury could be inflicted upon the citizens of St. Louis before the city could pass an ordinance in harmony with the views herein expressed; and by so doing the entire laws of Congress, the State of Missouri, and the ordinances of the city would be brought into one general harmony, and thereby furnish to the citizens of that great city perfect protection against adulterated milk and cream, and at the same time relieve the city and milk dealers of the disorder and confusion that now prevail there.

We are, therefore, of the opinion that section 17 of Ordinance No. 20,808, of the city of St. Louis was repealed by clause five of section 4 of the Act of 1907, and, consequently, the action of the Court of Criminal Correction in quashing the information was correct, notwithstanding the fact that the Act of 1907 was not enacted until subsequent to the commission of the offense charged in the information, for the reason that the law is well settled in this State that the repeal of an ordinance pending a prosecution under its provisions operates to relieve the defendant unless it is otherwise provided in the act repealing the ordinance. [City of Kansas v. Clark, 68 Mo. 588.] There is no such saving clause in the Act of 1907, and that omission cannot be supplied by an ordinance of the city containing such a clause.

The city council have no authority to act for the Legislature of the State, nor bind the Legislature by the passage of such an ordinance..

The judgment should be affirmed, and it is so ordered.

All concur, except Valliant, J., absent, and Lamim, J., dubitante.


text:
    CITY OF ST. LOUIS, Plaintiff in Error, v. UNION DAIRY COMPANY.
    In Banc,
    June 26, 1908.
    MILK: Illegal Sale. Where defendant was charged with selling “whole milk” in violation of the ordinance prohibiting the sale of “whole milk showing on analysis less than three per cent of butter fat,” and the evidence sustains that charge, an order of the trial court quashing the information on the ground that the ordinance was in violation of the statute, which was error, will be reversed on appeal, and the case remanded for new trial.
    Error to St. Louis Court of Criminal Correction.— Eon. Hiram N. Moore, Judge.
    Reversed and remanded.

      Charles W. Bates and Charles P. Williams for plaintiff in error.

      E. F. Stone for defendant in error.
   "WOODSON, J.

This is one of a series of four test cases, brought to test the validity of Ordinance No. 20808, known as the Milk Ordinance of the city of St. Louis. It is conceded that plaintiff’s statement of the case is correct, and, omitting formal parts, it is as follows:

“This was a prosecution instituted by the city attorney of the city of St. Louis against the defendant in error, to recover a penalty of $100 for the violation of section 18 of Ordinance 20808, approved August 27, 1902. Section 18 of the city ordinance, upon which the prosecution was founded, is as follows:
“ ‘Section 18. No 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 three per cent by weight of butter fat, eight and five-tenths per cent of solids not fat, seven-tenths of one per cent ash, of which fifty per cent shall be insoluble in hot water. Provided, however, that in contested analyses of milk condemned under this ordinance, butter fat shall be estimated gravimetrically by the Adams paper coil process; total solids by evaporation, and non-fatty solids by the difference between total solids and butter fat, and ash by weighing the residue incineration of total solids at a dull red heat until all the organic matter is destroyed. Any one violating any of the provisions of this section shall be deemed guilty of a misdemeanor, and upon conviction thereof be punished by a fine of not less than twenty-five dollars nor more than one hundred dollars for each and every offense.’
“The information in this case charged that the defendant in error carried and exposed for sale, in the city of St. Louis, milk showing on analysis less than three per centum of butter fat. The defendant in error was fined in the police court and took an appeal to the St. Louis Court of Criminal Correction. In said last-mentioned court, the defendant filed a motion to quash the information. The court entered judgment sustaining the motion to quash and discharging the defendant upon the fifth ground set out in the said motion to quash, which is as follows: ‘Because said ordinance is void as being inconsistent with the statute of this State.’ ”

After the ease had been removed by writ of error to this court, the defendant in error filed a motion to dismiss the writ of error, together with the cause, upon the ground that certain statutes had been enacted which were irreconcilably inconsistent with the further enforcement of the ordinance. The statutes which are invoked to defeat and dismiss this prosecution are as follows:

Session Laws of 1905, page 133, entitled, “Dairy Commissioner — State—Terms, Duties and Powers Defined.”

Session Laws of 1907, page 246, entitled “Dairy and Food Commissioner.”

Session Laws of 1907, page 238, entitled, “Crimes and Punishments: Adulteration of Foods and Drugs. ’ ’

The complaint in this case is substantially the same as that filed in the case wherein the city of St. Louis was plaintiff in error and William Klausmeier was defendant in error, and decided at this term, reported ante, at page 119.

In that case, as in this, the defendant was charged ' with the violation of the eighteenth clause of Ordinance No. 20808, which relates to what is known as “whole milk,” and the evidence disclosed he was not selling or offering to sell whole milk, but was selling skimmed milk, which was governed by section 22 of the ordinance, and for that reason we held there was a fatal variance between the information and proof, and discharged the defendant. But in this case the proof corresponded to the complaint and showed that defendant was carrying and exposing for sale “whole milk” which contained less than three per cent of butter fat, in violation of section 18 of said ordinance.

Counsel for defendant make the same contentions and present the same arguments in this case as they presented in the other case against the same defendant. After a careful consideration of that case, we name to the conclusion that those contentions were unsound, and reversed the judgment and remanded the cause for trial. The views expressed in that case are conclusive upon defendant in this ease.

We, therefore, reverse the judgment, and remand the cause to be proceeded with in harmony with the views herein expressed.

All concur, except ValUamt, J., absent.