author: LAMM, J.-

text:
    CITY OF ST. LOUIS v. BARNEY KRUEMPELER, Appellant.
    In Banc,
    July 1, 1911.
    1. MILK ADULTERATION: Added Water: Percentage of Milk Solid. The statute (Sec. 6595, R. S. 1909) does not mean to say that skim milk is not adulterated by the addition of water so long as it contains “not less than 9.25 per cent of milk solids.” it. maa.ns that whatever may be the percentage of milk solids after the water is added, the adding of water to skim milk is unlawful. The city makes out a case when it shows that water was added.
    2. -: Milk Solids: Standard Fixed by U. S. Department: Judicial Notice. The statute (Sec. 6595, R. S- 1909) provides that food shall he deemed to he adulterated “if it does not conform to the standard of strength, quality and purity now or hereafter to be established by the United States Department of Agriculture.” Held, that courts do not . take judicial cognizance of the rules, regulations and orders of the administrative departments of the United States Government; and if there was no proof offered at the trial that said department had established a standard for skim milk of “not less than 9.25 per cent of milk solids,” the court will not assume that such a standard has been established.
    3. -: -: -: Conflict Between Statute and Ordinance. And without the standard as fixed by the Department of Agriculture in the record there is nothing by which to test or establish a conflict between said statute (See. 6595) and an ordinance declaring that no person shall have in his possession, with intent to sell, milk which is adulterated by the addition of any substance that lowers or depreciates its strength or purity.
    4. -: No Standard of Strength Fixed by Ordinance: Added Water. Where defendant is charged with selling skim milk to which water has been added, in violation of an ordinance which prohibits the addition of any substance to milk that lowers or ■ depreciates its strength, quality or purity, it will not be held that said ordinance is void for that is does not fix a standard of strength for skim milk, though it be conceded that the largest constituent of skim milk is water and that the percentage of water in natural milk constantly varies, and more widely after skimming. It is unlawful under that ordinance to add water with the intention to sell the mixture as milk.
    5. -: Conflicting With Statute. Said ordinance is not in conflict with Sec. 640, R. S. 1909. The ordinance covers a phase of the offense of adulterating milk omitted from the statute, and where the statute is silent the ordinance may speak.
    Appeal- from St. Louis Court of Criminal Correction.— Hon. Benjamin J. Klene, Judge.
    Affirmed,

      William L. Bohnenkamp and E. F. Stone for appellant.
    (1) At the time this prosecution was begun, the State law required that skim milk, to be saleable in this State, should contain not less than 9.25 per cent of total solids, saying nothing about the percentage of water, non-fatty solids .or ash. In other words, if such milk contained 9.25 per cent of total solids, or more, it could not be deemed adulterated, and its sale could not be prohibited or prevented anywhere in this State. The strength, - quality and purity for skimmed milk was regulated and established by a certain percentage of total solids, and nothing more. This was the particular regulation for this specified product, and took it out of any general provisions applying to adulteration of food products in general, relative to. strength, quality and purity. (2). Therefore, said ordinance is void, with reference to the strength and quality of skimmed milk, as being in conflict and inconsistent with Laws 1907, p. 240, subdiv. 10, estabhshing standards for skimmed milk for this State. Said act provides that the standard for strength and quality for skimmed milk shall be, “not less than 9.25 per cent of milk solids.” Said standard being the same as • established by the U. S. Dep. of Agriculture. St. Louis v. Klausmeier, 213 Mo. 119. The evidence showed that the total solids of this sample was 10.10 per cent; thereby fully complying with the State law as to strength and quality, the State law . requiring that such milk have only 9.25 per cent total solids, to be saleable as to strength and quality. All that a party was required to do, to comply with and be protected by the State law, as to strength and quality, was to have it contain not less than 9.25 per cent total solids, and therefore, not more than 90.75 per cent of water. Under the evidence herein the sample showed upon analysis that it contained less than 90.75 per cent of water, to-wit, 89.90 per cent of water. Therefore, as to compliance with the State law, said sample could not be adulterated by the use of “water.”- Its strength and quality could not have been lowered or depreciated by the use of “water,” and its sale was sanctioned and authorized anywhere in this State by and under the State law, and hence, could not be prohibited by any ordinance of any city in the State. The ordinance cannot denounce the sale of that which the statute authorizes. “To hold otherwise would be to subject the statute of the State to the operation of the ordinance of the city.” St. Louis v. Klausmeier, 213 Mo. 129; St. Louis v. Meyer, 185 Mo. 593; Dillon on Mun. Corp. (4 Ed.), sec. 329. (3) Ordinance 24297 is void for vagueness and uncertainty. It provides that milk or cream shall be deemed adulterated, “If any substance or substances have been mixed with it so as to lower or depreciate or injuriously affect the strength, quality or purity.” It is uncertain and indefinite, because it fails to fix, directly or indirectly, expressly or impliedly, any standard or measure of strength, quality or purity, for milk or cream. How then can it be determined whether its strength or quality, as required to be done in this case, has been lowered or depreciated? How can it be said that the strength of a food product has been reduced or lowered so as to constitute a violation of law, when no standard of strength is pointed out by the law itself? Railroad v. Com., 99 Ky. 136; Tozer v. IT. S., 52 Fed. 917; Cook v. State, 26 Ind. App. 278; Com. v. Roy, 140 Mass. 432; McConville v. Mayor, 39 N. J. L. 38; Lusk v. Chicago, 176 111. 207.

      Lambert E. Walther and A. H. Boudebush for respondent.
    (1). Circular 19, U. S. Dep. of Agriculture, as to milk standards, was not offered in evidence, and will not be judicially noticed on appeal. Nagle y. IT. S., 145 Fed. 302; The E. A. Packer, 140 IT. S. 360; IT. S. v. Bedgood, 49 Fed. 54; Hensley v. Tarpey, 7 Cal. 288; Moore v. WertMngton, 63 Ky. 307. 2. So far as the Act of March 15, 1907, attempts to adopt the standards fixed by the U. S. Department of Agriculture, it is void as a delegation of legislative power. Const. Mo., art. 4, sec. 1; .art. 2, sec'. 2. 3. The Act of 1907 also forbids adulteration in the same language as the ordinance, and therefore the milk standards said to be established by it cannot be construed to authorize adulteration. Laws 1907, p. 239, sec. 4, cl. 1. • 4. If the Act of 1907 is to be construed as authorizing adulteration it is repealed by the Act of 1909' forbidding it. Laws 1909, pp. 118,119, sec. 10. 5. If the Act of 1907 has the effect of establishing a standard for skimmed milk, it is repealed by Act of 1909 defining other standards. Laws 1909, p. 117, cl. 3. 6. There is no conflict between the statute and the ordinance because the. former does not authorize the adulteration which is prohibited by the latter.' St. Louis v. Klausmeier, -213 Mo. 127. (2) Ordinance 24297 is sufficiently definite and clearly defines the offense here involved, and the charge is supported by the evidence.
   LAMM, J.-

— This is one of eight cases so briefed as to test the validity of the milk ordinances of St. Louis in one or another phase. Some of those cases have already been written, viz., Ameln’s, Meyer’s and Kellman’s, all handed down at this delivery. Any questions in the instant case common to the Ameln, Meyer or Kellman eases and there ruled will not be again considered. The curious in that behalf may consult those cases, which are reported at pages 669, 699, and 687, respectively, of this Report.

On April 30, 1909, Kruempeler was charged in due form with violating ordinance No. 24297, approved March 26, 1909, in that, contrary to the terms of said ordinance at a time, to-wit, the 22d day of April, and at a place in St. Louis, to-wit, Newstead and Farlin avenues, he did then and there have in his possession, with the intent to sell and offer and expose for sale, skim milk, adulterated by mixing a substance known as water therewith so as to lower and depreciate its strength and quality.

At the trial the city proved its milk inspector took a sample of skim milk from defendant’s milk wagon at the time and place charged in the complaint, sealed it in a bottle and turned bottle and contents over to Dr. Moody, assistant city chemist. Dr. Moody testified he analyzed the milk sample and found it contained “added water,” the effect of which lowers and depreciates its quality and strength. On cross-examination, he said he was not an eye witness to adding any water to the milk, and that the total solids of the sample were 10.10 per cent. The city then offered in evidence ordinance 24297. Defendant objected to the ordinance for certain reasons enumerated. The objection was overruled. Whereat defendant read into the record sections 499 and 505 of the Revised Code of St. Louis, 1907.

(Nota lene: The material parts of ordinance 24297 and sections 499 and 505 of the Revised Code of St. Louis appear, ipsissimis verlis, in said Ameln ease, and they will not be here set out.)

From a conviction and fine of $25 in the court of criminal correction on an appeal from the first district police court, Kruempeler appeals.

As in companion cases, sundry questions were raised below in appropriate and formidable motions and exceptions were saved to lay the foundation for an appellate review of all of them. But as only certain of them are presented in briefs, the others will be put aside. Those raised on this record are:

First. Ordinance 24297 is void as in conflict with an act of the Legislature. [Laws of 1907, p. 240, subdivision 10 of section 4.]

Second. Further, is void for vagueness and uncertainty.

Third. Further, is void as in conflict with section 10 of another act of the Legislature. [Laws 1909, p. 118.J (And herein of the contentions that the ordinance is broader than the statute and is repealed by implication.)

Those contentions will be disposed of in the order named.

I. In 1907 the General Assembly passed an act relating to the adulteration of foods and drugs. [Laws 1907, p. 238.] Section 4 of that act is now section 6595, Revised Statutes 1909. The parts pertinent are: .

“Food shall be deemed to be adulterated: 1. If any substance or substances have been mixed with it so as to lower or depreciate or injuriously affect its strength, quality or purity. . . . 6. . . . And in the case of dairy products, if any such product be drawn or produced from cows fed on unhealthy or unwholesome food, or on waste, slops, refuse, leavings or residue of añy nature or kind from distilleries, breweries or vinegar factories, or on food in a state of putrefaction, or from cows diseased in any way, . . . or, 10. If it does not conform to the standard of strength, quality and purity now or hereafter to be established by the United States department of agriculture.”

Learned counsel seek to root their theory in the words of clause 10 of section 6595. They ingeniously argue after this fashion: The United States department of agriculture has established a standard for skim milk at “not less than 9.25 per cent of milk solids.” Such standard, they say, became an integral part of. our statute and must be read into it. In short, if the Federal department of agriculture does but establish a standard, that standard, ex vi termini, is instantly read into clause 10 of section 6595, supra; or if that department does but change its standard for skim milk, then/ onr statute, ex vi termini, automatically opens to throw out the old and take in the new standard as part and parcel of the body of our law. Based on such premise, the conclusion is that our statutory standard for skim milk is the standard of said department of agriculture, viz., 9.25 per cent of milk solids. Accordingly, the mere question of watering milk is eliminated or rejected by the lawmaker as outside the domain. of legislative policy. Therefore, there is a direct conflict between ordinance 24297 and clause 10 of section 6595, Revised Statutes 1909.'

The situation thus presented, delicate and baffling on first blush, may be profitably developied a little further. Thus: Counsel in their reply brief repudiate the idea that their defense is based on any assumed right, natural or vested, to water milk, or that their client stands for the proposition that he may lawfully add water to his milk and sell it at the price of (and as and for) milk.

Responding to that1 view of it, we cheerfully do them the justice of saying we* have not a particle of doubt of their sincerity in taking that position. Nevertheless, we must follow the reason of the thing, and reason points! the other way. To illustrate: The United States department of agriculture, they say, recognizes a standard for skim milk as milk containing 9.25 per cent total solids.. That standard is read into our statute per force of its own terms. The per cent of solids, deducted from 100 per cent, leaves remaining an allowable 90.75 per cent of water. (Observe, now, the conclusion of counsel*- quoted from their brief.) “Therefore, as to compliance with the State law, said sample” (the sample in question) “could not be adulterated by the use of ‘water.’ Its strength and quality could not have been lowered or depreciated by the use of ‘water,’ and its sale was sanctioned and authorized anywhere in this State by and under the State law, and could not be prohibited by any ordinance of any city in the Stated’

It would be toying with the matter to shut our eyes to the plain drift — the inevitable and only end of that theory. Its end, looming large, is seen from the start. It means this; The milkman, after the cow is through watering her own milk, may himself add water from the spring, ad libitum, so long as the total per cent of her milk solids remains 9.25 per cent. You may add water, but .do so with circumspection. Be careful and scientific about it. Keep your eye on the solids while adding the water, because the standard pertains to solids only; ergo, permits water so long as the proper per cent of milk solids remains. The consumer (the public) has no concern with “added water.” He looks alone to the per cent of solids left in the milk when tendered him for potable or table use. Seal up the milk can to scientific investigation as to added water and leave it open to only one query, viz.: Do the solids fall below the standard? If so, water may have been added; if not, it has not been added in contemplation of law.

Of that position, it may be said: If science could not detect “added water,” except through the per cent of milk solids remaining then there would be substance in the contention that the statute repudiates an investigation for water in milk having standard solids. We dealt with that phase of the matter in the Ameln case and now can add nothing more.

It was argued orally at this bar, on one side, that a scientific analysis of milk could detect the presence of added water. And, contra, on the other, that- it was exceedingly difficult to do so and that any result reached is either inconclusive, arbitrary or whimsical. But in briefs that feature is not dealt with. To the contrary, the force of the argument of defendant’s counsel is spent on the proposition that so long as the standard for solids is maintained, the statute permits the sale of the milk; that such milk cannot be adulterated by water or its strength or quality be lowered or depreciated by added water. On such theory the testimony of an eye witness that he saw the milkman add water would be rejected so long as the standard solid remains. If that argument does not spell in letters so large that he who runs may read, a statutory permission to add water up to a given point, what does it spell? We decline to follow its lead, and leave the subject by pointing out that the testimony of the chemist established the fact that water was added. That testimony stands unimpeached.

Passing to a closer view of the question, we confront the proposition that we do not judicially know the standard established for skim milk by the United States department of agriculture. Defendant’s brief says it is 9.25 per cent. Counsel leftdn our files a document purporting to be the regulations of that department, but it was not introduced in evidence below; therefore, may not be taken into account here. Courts do not take judicial cognizance of the rules, regulations and orders of administrative departments' of the United States government. (See authorities cited in respondent’s brief, appearing in the reporter’s notes. In those cases the reasons for the rule are gone into.)

The United States standard when read into our statute being the premise upon which conflict between ordinance and statute is predicated, we do not say that a conflict would exist if such standard was in the record, but we do say that without the standard in the recoid (as here) there is nothing by which to test or establish a conflict.

This view makes unnecessary any consideration of further contentions of counsel for the city, viz., (1) that clause 10 of section 6595 is void as a delegation of legislative power; and (2) that the ordinance, as well as clause 1 of said section, forbid adulteration by mixing any substance with milk which lowers or depreciates its strength or quality, therefore, the establishment of the standard contended for is not to be construed as authorizing adulteration; and (3) the further contention that if it, the statute, be construed to authorize adulteration by adding water, then it is repealed by the Act of 1909, forbidding adulteration and establishing other standards. [ Vide See. 640, R. S. 1909.]

The premises considered, the point is ruled against defendant.

II. Is ordinance. 24297 void for uncertainty and vagueness? The answer to that question is: No. Because:

Its vagueness and uncertainty are said to consist in the fact that it fails to fix directly or indirectly any standard or measure of strength, quality or purity for milk — that is, that the law should fix a standard of strength on account of the known fact that the largest constituent of skim milk is “water” and that the percentage of water in natural milk constantly varies, and more widely after skimming. But all this is wide of the mark. The answering proposition is that it is unlawful for the milkman to add water to his milk with the intention to sell the mixture as milk. How the city may prove the addition of water is another matter. If it fail to prove that fact, the prosecution should fail. In the Ameln case it was argued that the ordinance should be aided by the complaint, which should set forth the standard. Thus the identical argument against the ordinance, now in hand, was there turned against the complaint itself. We disallowed it then and disallow it now. [See the Ameln ease.] It was also considered in the Meyer case. [See that case.]

The point is ruled against defendant.

III. Is ordinance 24297 void as in conflict with section 640, Revised Statutes 1909? That proposition was ruled against defendant in the third paragraph of the Ameln case and we remain content with that ruling. [Quod vide.1

In. this connection it is contended that the ordinance is broader than the -statute and is repealed by-implication. Counsel do not point out the excess of breadth. As to repeal by implication that would arise in ease of conflict and we ruled in the Ameln case there was no conflict. If by being too broad counsel mean that the ordinance deals with a phase of the~matter omitted from the statute entirely, then the contention resolves itself into the proposition ruled in St. Louis v. Klausmeier, 213 Mo. p. 119, viz.-, that where the statute is silent the ordinance may speak.

The premises considered, the judgment should be affirmed. It is so ordered.

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


source: Caselaw Access Project

author: LAMM, J.

license: Public Domain

text:
    CITY OF ST. LOUIS v. AUGUST SCHEER, Appellant.
    In Banc,

      July 1, 1911.
    1. ORDINANCE: Conflict With Statute: Milk Solids: ■ Different Standards. So long as an ordinance, within the grant of municipal power, falls within the State statute on the same subject (that is, does not exceed it,-or is not inconsistent with it), there is no conflict in the sense of making the ordinance void. Where the statute sets up a standard for milk of 8.75 per cent of solids not fat, an ordinance which requires milk to contain not less than 8.5 per cent of non-fatty solids is not in conflict therewith. The lower municipal standard is not an authorization to sell in violation of the State law; it is merely prohibitive in character. The city may carve out a lesser offense and remain passive as to the rest of its legislative power on the subject-matter.
    2. -: -: -: -: Contrary to State Policy. It is the policy of the State to permit a city to exercise its municipal discretion in passing ordinances differing in terms and limits from statutes, so long as those limits are not broader than and inconsistent with statutory provisions. An ordinance fixing the standard for milk solids at 8.5 per cent is not in conflict with the policy of the State as evidenced by a statute fixing that standard at 8.75 per cent of milk solids.
    3. -:--: -: -: Discrimination Against Rest of State. An ordinance which requires all milk sold within the city to come up to a certain standard, while a statute requires a higher standard, does not discriminate against the inhabitants of the city and in favor of non-residents, In permitting the sale of inferior milk in the city which cannot be sold elsewhere in the State. Nor does it discriminate in favor of milk dealers who sell in the city as against dealers who sell milk outside.
    4. -: Fixing Standard for Milk. A city may prescribe a scientific standard indicative of the nutritive contents of milk, and may forbid the sale of milk which, through fault of cow or dealer, does not come up to that standard.
    5. -: Repeal by Statute. Where there is no express repeal of an ordinance by statute, there can be no repeal by implication except where there is a conflict.
    Appeal from St. Louis Court of Criminal Correction.— Hon. Benjamin J. Klene, Judge.
    Affirmed.

      Wm. L. Bohnenlcamp and E. F. Stone for appellant.
    (1) Ordinances which assume directly or indirectly to permit acts or occupations which the State statutes prohibit are uniformly declared null and void. Howlett v. Camp, 115 Ala. 499, is directly in point, as it passes upon the question that an ordinance can not permit or authorize that to be done which the statute forbids, especially when the Constitution of the State provides that the municipal corporation shall have no power to pass any ordinance inconsistent with the general laws' of the State. State v. Caldwell, 3 La. Ann. 435; Flood v. State, 19 Tex. App. 584; Bohney v. State, 21 Tex. App. 597; Lynn v. State, 33 íex. Cr. R. 153; Fay v. State, 71 S. W. 603; In re Desanta, 96 Pac. 1027; State v. Caldwell, 3 La. Ann. 435; New York v. Nichols, 4 Hills, 209; In re Ridenbaugh, 49 Pac. 12; Ex parte Solomon, 91 Cal. 440: Thompson v. CarrolL 22 How. 422; Ex parte Hoffman, 99 Pae. 519. In the ease at bar, the ordinance, Sec. 501, fixes the standard for milk at: butter-fat not less than 3 per cent, non-fatty solids not less than 8.5 per cent, and ash not less than .7 per cent. This standard is in conflict with the standard fixed by the act of the Legislature, Laws 1909, p. 116, which fixed the standard for the whole State at 3.25 per cent butter-fat and 8.75 per cent non-fatty solids. Defendant is charged with selling milk containing less than 8.5 non-fatty solids, being one of the elements of the standard of the ordinance. Defendant now insists that said element of the ordinance is in conflict and inconsistent with said general law of the State, and hence null and void. (2) The State has manifested a policy by a general enactment of the legislature relative to the quality and sale of dairy products. The State (Laws 1909, p. 118) having done so, “the city of St. Louis is restricted to the exercise of only such jurisdiction as is consistent with and in harmony with that policy of the State so manifested.” Said act expressly fixes standards for milk and cream and commands that they shall apply to, and be for, the entire State. This general law certainly expresses the policy of the State, “is applicable to every citizen of the State and its force and vitality can not be limited by municipal authority.” Ordinances must harmonize with the policy of the State. From the acts of the Legislature the public policy of the State is determined, for by them it is created and declared. Canton v. Nist, 9 O. St. 439; Thompson v. Mt. Yernon, 11 O. St. 688; Collins v. Hatch, 18 O. St. 53; Durango v. Reinsley, 16 Colo. 327; Phillips v. Denver, 19 Colo. 179; Theobald v. Lodge, 59 Mo. Ápp. 91; Dillon, Munic. Corp. (4 Ed.), sec. 329; Baxter v. Tripp, 12 R. I. 310; U. S. v. Assn., 166 U. S. 290. (3) As between said ordinance and the statute, the ordinance is void, because it operates to discriminate in favor of the residents .of the city of St. Louis who produce, sell and distribute milk in said city and against non-residents thereof who produce said products and sell or offer them for sale within the city. The non-resident could not produce and sell them with 8.75 per cent non-fatty solids, as required by the State law, in competition with the resident selling under the ordinance with only 8.50 non-fatty solids. An ordinance is void which discriminates between residents and non-residents. Hayden v. Noyes, 5 Conn. 391; Borough v. Phillips, 148 Pa. St. 482; Walton v. Missouri, 91 U. S. 275; Darnell v. Memphis, 208 U. S. 123; State v. North, 27 Mo. 464; Fechheimer v. Louisville, 84 Ky. 306; State v. Browning, 62 Mo. 5'91. A law professing to be non-discriminating on its face-may, from the circumstances, and in its application, be held to be really discriminating, and hence unconstitutional. Brimmer v. Behman, 138 U. S. 78; Minnesota v. Barber, 136 U. S. 313; Fertilizer Co. v. Board, 43 Fed. 613; Cooley, Const. Lims. 479; Grapty v. Rushville, 107 Ind. 502. (4) Sec. 501 is void, because it is absolutely prohibitive upon the sale of milk unless it contains not less than a certain percentage of certain constituents, especially non-fatty solids, regardless of whether it is wholesome or unwholesome, or adulterated or unadulterated. Sec. 501 does not go to the wholesomeness or healthfulness of the product, but simply condemns and prohibits the sale, unless it comes up to a specified percentage of solids. It is not a regulation in the interest of health, but a prohibition. Righers v. Atlanta, 66 S. E. 991. To say that no one shall sell milk containing less than 8.5 non-fatty solids is unreasonable, especially where the city’s power to pass it rests upon an implied power, as in this case, for the city of St. Louis has no express power to enact standards for milk.

      Lambert E. Walther and A. H. Roudebush for respondent.
    The Act of 1909 in so far as it defines milk standards is not an effective law, because it does not require conformity to these standards or provide a penalty for non-conformity thereto. Laws 1907, p. 116, sec. 9; 1 Blackst. Com., pp. 43, 44, 57; State ex inf. v. Railway, 146 Mo. 168; Bishop on Stat. Crimes (3Ed.), sec. 22; 1 Bishop, Crim. Law (8 Ed.), sec. 6. The standards prescribed by ordinance are less restrictive' than those of the Act of 1909, and there is, therefore, no conflict. St. Louis v. Klausmeier, 213 Mo. 127. The Klausmeier case should not be overruled because it is sustained by abundant authority. St. Louis v. Cafferata, 24 Mo. 94; Independence v. Moore, 32 Mo. 392; State v. Harper, 58 Mo. 530; State v. Wister, 62 Mo. 592; Ex parte Holwedell, 74 Mo. 395; St. Louis v. Schoenbusch, 95 Mo. 518; State ex rel. v. Walbridge, 119 Mo. 383; State v. Gustin, 152 Mo. 108; Hill v. St. Louis, 159 Mo. 167; State v. Muir, 164 Mo. 610; Canton • v. McDanie, 188 Mo. 207; St. Louis v. De Lassus, 205 Mo. 578; St. Louis v. Liessing, 190 Mo. 64; St. Louis v. Dairy, 190 Mo. 492; St. Louis v. Dairy, 190 Mo. 567; St. Louis v. Reuter, 190 Mo. 594; St. Louis v. Polinsky, 190 Mo. 516; St. Louis v. Schuler, 190 Mo. 524; St. Louis v. Bippin, 201 Mo. 528. The city of St. Louis can by ordinance prohibit acts which are also prohibited by statute, provided such ordinances are within its charter power, and not in conflict with the statute. State ex rel. v. Walbridge, 119 Mo. 383; Canton v. McDanie, 188 Mo. 207; St. Louis v. Schoenbusch, 95 Mo. 618; St. Louis v. Cafferata, 24 Mo. 94; St. Louis v. De Lassus, 205 Mo. 578; Kansas City v. Bacon, 147 Mo. 259.
   LAMM, J.

— Defendant was charged, and, offering no evidence- on his own behalf, was found guilty of violating section 501 of the municipal code of St. Louis and fined $25. From that conviction he appeals to this court.

The charge is that on the 30th day of July, 1909, at Sidney street and Indiana avenue, in the city of St. Louis, he did carry and have in his possession and expose for sale milk having on analysis less than 8.5 per cent non-fatty solids, to-wit, 7.91 per cent — said non-fatty solids being estimated by the difference between the total solids determined by evaporation and the butter fat determined gravimetrieally by the Adams paper-coil process.

The ordinance reads:

“Sec. 501. 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 any one, unless it shows on analysis not less than three per cent by weight of butter-fat, eight and five-tenths per cent solids not fat, and 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 article, butter-fat shall be estimated gravimetrieally by the Adams paper-coil process; total solids by evaporation, and nón-fatty solids by difference between total solids and butter fat, and ash by weighing the residue after 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 inore than one hundred dollars for each and every offense.”

The facts: A city milk inspector on the date and at the place alleged took a sample of milk from defendant’s wagon. The city chemist, Moody, analyzed it, testifying that it contained less than 8.5 per cent non-fatty solids, viz., 7.91 per cent, and that he estimated non-fatty solids by the difference between the total solids determined by evaporation and the butter-fat determined gravimetrieally by the Adams paper-coil process. The city then offered in evidence section 501, supra, and rested.

Such motions were filed and overruled and exceptions saved below as properly bring here the only question for decision, viz.:

Is section 501, supra, void?

In a brief showing marked industry in research, the ordinance is attacked from several angles. We pass to the consideration of material propositions advanced, taking them to be:

First. The ordinance is void because in conflict with the milk standard fixed by the act of the General Assembly. [Laws 1909, p. 116.]

Second. Yoid because running counter to the policy of the State as evidenced by said act regulating the sale of dairy products.

Third. Yoid because it discriminates against non-residents of St. Louis and in favor of residents thereof.

Fourth. Yoid because passed without regard to the wholesomeness or adulteration of milk, in that it absolutely prohibits its sale unless it comes up to an arbitrary standard of percentage in non-fatty solids.

Fifth. Yoid because “repealed by an act of the Legislature of the State.” [Laws 1909, pp. 116-7.]

Of the foregoing propositions in the order named.

I. Is the ordinance void because in conflict with the statute?

In 1909 the General Assembly enacted a law (Laws of 1909, p. 116, section 9), so far as material here, reading:

“For the purposes of this act, the following definitions and standards of purity for dairy products are hereby established:
“1. Milk is the fresh, clean, lacteal secretion obtained by the complete milking of one or more healthy cows, properly fed and kept, . . . and contains not less than eight and three-fourths per cent (8.75) of solids not fat, and not less than three and one-quarter (3.25) per cent of milk fat. . . .”

Said section 9 of the act is now section 639, Revised Statutes 1909.

Attending to that statute the first proposition of counsel is at once disclosed to be that the statutory standard requires milk to contain not less than 8.75 per cent of solids not fat, while the ordinance, supra, sets up a standard for municipal purposes of only 8.5 .per cent of solids not fat. The ordinance varies from the statute by falling within and below it, not in .exceeding it. Hence, counsel say, the conflict and the invalidity of the ordinance.

As to which we say: If the contention was new and open in this jurisdiction it would be entitled to fresh and full exposition. But it is neither new nor open. Whatever the rule elsewhere, in Missouri the doctrine is firmly established that so long as an ordinance, within the grant of municipal legislative power, falls within (that is, does not exceed, or is not inconsistent with) the State statute there is no conflict or inconsistency in the sense making the ordinance void. Contra, if it goes beyond the limits of the municipal grant of power, if it is in excess of the standard and limitations of the statute, if it add provisions prohibited by the statute, it is in conflict therewith in the sense making the ordinance void. For the voice of the State law-maker, evidenced by his laws passed within constitutional bounds in the exercise of the police power, is the voice of the overlord and as such is paramount to that of the municipal law-maker’s. Therefore, there must be such substantial conformity in the latter to the public policy evidenced by the former as makes the one not inconsistent with the other. [Sec. 9582, R. S. 1909.]

City of St. Louis v. Klausmeier, 213 Mo. 119, in Banc, was ruled unanimously by a bench of six judges. In that case the point now up was in judgment. It was held, in effect, that a lower municipal standard for milk was not in the nature of an authorisation to sell in violation of the State law. It was merely prohibitory in character. It did not invite or permit a violation of the statute. It was the mere exercise of a proper municipal discretion not to bring the machinery of city courts and city laws into operation to prosecute for violations in excess of the municipal standard. By so doing, the State is left to enforce its own iaw at all points and to the full limit — the city electing to remain passive when the violation falls between the municipal standard on one side and the State standard on the other. “If a person,” says Woodson, J. (who spoke for this court in the Klausmeier case, p. 129), “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 hable 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.”

The philosophy of the matter is illustrated in many eases cited by our learned brother. Take an example or two:

In St. Louis v. DeLassus, 205 Mo. 578, it was ruled that an ordinance' punishing the sale of meat after 9 o’clock in the forenoon of Sunday was- not inconsistent or in conflict with the State statute, prohibiting the sale of goods, wares and merchandise on Sunday — i. e., an ordinance did not become void from the mere fact that it was ^not as broad as the statute. It was also ruled (pp. 584-5) that an ordinance could provide its own limits of punishment, and, by that token, could prescribe a greater fine than the statute. All of which means that the city may carve out a lesser offense and remain passive as to the rest and residue of its legislative power on the subject-matter.

In Canton v. McDaniel, 188 Mo. l. c. 228, it was ruled, following abundant authority, that a conviction under a city ordinance could not be pleaded in bar of a State prosecution, or vice versa. The reason underlying that pronouncement obviously connects itself on one side with the reason of the rule that a city ordinance need not be as broad as a State statute.

The right of St. Louis to establish a milk standard is not an open question. It has that right under its charter and its delegation of police power. [St. Louis v. Liessing, 190 Mo. l. c. 480, et seq.; St. Louis v. Bippen, 201 Mo. 528.]

If the Klausmeier case is to be followed, it is con-elusive. However, that case is vehemently criticised. In handling it without gloves, counsel enter against it (quoting) “a respectful but earnest and solemn protest, and proclaim it as being a declaration in direct and positive violation of the rulings made and principles laid down by every court of last resort in this.country, where such proposition was presented and determined.” As construed by counsel, its doctrines are characterized as “shocking,” and, again, as “paralyzing.” We are cited to many eases, which, it is argued, run counter to it. But a close gloss shows most of those cases deal with the generality that an ordinance so in conflict with a State law as to be inconsistent with it must give way. We have no bone to pick with that generalization. It is the doctrine of this court. In so far as any cases in other appellate courts hold contrary to the Klausmeier case they may instruct and persuade, but not control. We shall not reopen the question, but announce ourselves content with the doctrine of the Klausmeier case. Stare decisis.

On this view of it, we reserve the other contentions of the city, viz., that the State statute is not really a law regulative of milk standards since it does not measure up to the definition of a “law;” is a “mere collection of words” (State ex inf. Crow v. Railway, 146 Mo. l. c. 168); and has no “penal sanction” — that is, provides no punishment [Bish. Stat. Crimes, (3 Ed.), sec. 22; 1 Bish. Crim. L. (8 Ed.), sec. 6.]

Our conclusion is that defendant’s point is without substance and should be held against him. We so hold;

II. Is the ordinance void because against the “policy of the State” as evidenced by section 639, Revised Statutes 1909?

This question, logically, is the same discussed in the first paragraph under another name. In no just sense does the ordinance impinge upon the policy of the State as was the case in St. Louis v. Meyer, 185 Mo. l. c. 593, et seq. The State’s policy (its milk standard) is left intact, to be enforced, if possible, by the State. The city only elects in its own behalf to use part of the power it has under its grant of power. It might have passed an ordinance as broad as the statute but on the other hand it might stop short of that, as it did. Furthermore, it is the policy of the State as evidenced by its statutes and Constitution (as they, in turn, are construed by the courts) to permit St. Louis to exercise its municipal discretion in passing ordinances differing in terms and limits from State statutes, so long as those limits are not broader than and in conflict with statutory provisions. We have already ruled, in paragraph one of this opinion, so much as that. That ruling disposes of the proposition in hand.

III. Is the ordinance void because it discriminates against non-residents and in favor of residents of St. Lords?

We are not quite sure we grasp the force of defendant’s position. One phase seems to be that the ordinance discriminates in favor of residents of the city who deal in milk and against non-residents who produce milk for sale in the city. But the ordinance says nothing about that. Its primary object was the welfare of the milk user, not the milkman. To that end it requires all milk to come up to a standard, no matter where produced. So that neither resident or non-resident milk producers come within its purview qua residents or qua non-residents. It deals with any one having in his possession impoverished milk in the city of St. Louis with intent to sell the same for use.

From other phases of the argument, we conclude the real objection to the ordinance, in counsel’s mind, is that all people, countrymen, dwellers in villages or inhabitants of cities, are entitled to wholesome milk; that the people in St. Louis have the same right to such milk as the people outside of St. Louis. In that view of it, the proposition we are discussing is stated wrong end to by counsel. They get the cart before the.horse. Thé question should be put this way: Does the ordinance discriminate against the inhabitants of St. Louis and in favor of the rest of the State?

Mark. The proposition defendant asserts is that the people elsewhere get milk of 8.75 per cent of non-fatty solids, while' the people of St. Louis get milk of. only 8.5 per cent non-fatty solids.

It may be a little afield, but we- take space and time to rémark in passing, that ordinarily penal laws are criticised by a defendant, when haled into court, because they are oppressive and unfair to him. The shoe pinches him. His opinion of the law takes color from that fact. It is rare in this court that a defendant, moved thereto as if yearning for the welfare of his victim, denounces the law because it is too light in punishment, and too easy in its terms. But we shall not hold this defendant has not the constitutional right to stand upon such altruistic and ideal platform. He has the right to defend milk, and insist on its being good. '

We think there is no substance in the suggestion, as applied to this ordinance. The State law is not emasculated by it. If the State authorities enforce or •can enforce the State law its blessings descend on the heads of all men in and out of the city. So, the ordinance could not regulate the milk standard for dwellers in other cities or in the country. It is common knowledge that the countryman does not depend on the milkman for his table or potable milk. Doubtless, other-towns may protect themselves by such domestic municipal regulations as are suitable to their wants.

In this connection counsel invoke St. Louis v. King, 226 Mo. 334, in support of the proposition that it is as necessary that milk be nutritious in a city in per . cent of non-fatty solids, as it is to people outside the city. The King case related to obscene advertisements. It was ruled that the city of St. Louis held no charter grant of power to pass the ordinance questioned in that ease. What was said, arguendo, went to that proposition. Judicial utterances must be construed with reference to the propositions submitted for decision, and the facts held in judgment in the particular case.

In this ease there is no question but what St. Louis has the power to regulate the sale of milk by prescribing a standard. Its charter grants such power and the policy of the State allows its exercise. [St. Louis v. Leissing, 190 Mo. l. c. 480.] In the exercise of that power, so long as it does not impinge upon the State law, it may prescribe regulations suited to its own congested population. That is what it did in this instance.

We rule the point against defendant.

IV. Again, the ordinance is said to be void because passed without regard to the wholesomeness or adulteration of milk. That contention, we take it, means that the city has no power to regulate milk otherwise than to prevent the sale of adulterated or diseased milk — in other words, has no power to prescribe a scientific standard, indicative of the nutritive contents of milk. Such is not the law. The city may prescribe such standard, and milk that does not come up to it, whether through fault of cow or dealer, may not be dealt in. [St. Louis v. Reuter, 190 Mo. 514; St. Louis v. Grafeman Dairy Co., 190 Mo. 507; and see City of St. Louis v. Leissing, 190 Mo. 464, where there is an elaborate and exhaustive discussion of the matter.]

This point also is ruled against defendant.

V. Finally, it is said the ordinance is void because “repealed” by the Act of 1909, pp. 116-7. [Sec. 639, R. S. 1909.]

We dismiss the proposition with these remarks: There was no express repeal. There could be none by implication except there is a conflict. No conflict is pointed out, and in paragraph three of the Ameln case (reported at page 684 of this Report) we held none existed.

Accordingly we rule the point against defendant.

This ruling disposes of the case. The premises all considered, the judgment is affirmed.

All concur, except Valliant, C. J.


author: LAMM,’ J.

text:
    CITY OF ST. LOUIS v. JOHN H. SCHULTE, Appellant.
    In Banc,
    July 1, 1911.
    MILK: Standard Fixed By Ordinance: Lower Than Statutory Standard. An ordinance which fixes a lower standard of the amount of fatty solids milk sold to the public may contain than is fixed by statute is not in conflict with that statute.
    Appeal from St. Louis Court of Criminal Correction.— ■ Hon. Benjamin J. Klene, Judge.
    Affirmed.

      Wm. L. Bohnenkamp and E. F. Stone for appellant.
    What the statute denounces and prohibits, the ordinance can not permit and authorize, and what the statute sanctions, permits and authorizes, the ordinance can not prohibit. There is such a conflict here between this ordinance and the statute, that one or the other must give way. An ordinance can not legalize an act that is committed in violation of a general law of the State. Any ordinance which from its face shows that it would or could so operate, is null and void under the constitution and laws of this State, and of other States. Ex parte Hoffman, 99 Pac. 519; Howlet v. Camp, 115 Ala. 499; Bohney v. State, 21 Tex. App. 597; State v. Keith, 94 1ST. C. 933; In re Murphy, 128 Cal. 29; State ex rel. v. Railroad, 117 Mo. 1; St. Louis v. Meyer, 185 Mo. 598; State ex rel. v. Bell, 119 Mo. 75; State v. Dower, 134 Mo. App. 357; State v. Kessels, 120 Mo. App. 239; People v. Henshaw, 76 Cal. 441; Bowyer v. Camden, 50 N. J. L. 87; Murdock v. Memphis, 87 U. S. 616; U. S. v. Claflin, 97 U. S. 546; Muleahy v. Newark, 57 N. J. L. 513; People v. Furman, 85 Mich. 110.

      Lambert E. Walther and A. H. Boudebush for respondent.
    (1) The Act of 1909 in so far as it defines milk standards is not an effective law, because it does not require conformity to these standards or provide a penalty for non-conformity thereto.- Laws 1907, p. 116, see. 9; 1 Blackst. Com., pp. 43, 44, 57; State ex inf. v. Railway, 146 Mo. 168; Bishop on Stat. Crimes (3 Ed.), see. 22; 1 Bishop, Crim. Law (8 Ed.), sec. 6. (2) The standards prescribed by ordinance are less restrictive than those of the Act of 1909, and there is, therefore, no conflict. St. Louis v. Klausmeier, 213 Mo. 127. (3) The Klausmeier ease should not be overruled because it is sustained by abundant authority. St. Louis v. Cafferata, 24 Mo. 94; Independence v. Moore, 32 Mo. 392; State v. Harper, 58 Mo. 530; State v. Wister, 62 Mo. 592; St. Louis v. Schoenbusch, 95 Mo. 518; State ex rel. v. Walbridge, 119 Mo. 383; State v. Gustin, 152 Mo. 108; Hill v. St. Louis, 159 Mo. 167; State v. Muir, 164 Mo. 610; Canton v. McDanie, 188 Mo. 207; St. Louis v. DeLassus, 205 Mo. 578; St. Louis v. Liessing, 190 Mo. 64; St. Louis v. Dairy, 190 Mo. 492; St. Louis v. Dairy, 190 Mo. 567; St. Louis v. Reuter, 190 Mo. 594; St. Louis v. Polinsky, 190 Mo. 516; St. Louis v. Schuler, 190 Mo. 524; St. Louis v. Bippin, 201 Mo. 528.
   LAMM,’ J.

— Convicted and fined $25 for violating section 501 of (Woerner’s) Revised Code of St. Louis, 1907, relating to milk, defendant on due steps comes up by appeal.

In 1905 there was a series of milk cases pending in Banc and, speaking through our brother Gantt, they were unanimously ruled. [190 Mo. pp. 464 to 539, inclusive.]

There having been some changes in milk statutes, in 1908 another series of milk cases were submitted here and ruled by Bane, speaking through our brother Woodson, [St. Louis v. Klausmeier, 213 Mo. 119, and cases following to 151, inclusive.]

There having been new legislation by statute and ordinance, another series of milk cases come here to test one or another phase of the police regulations in St. Louis pertaining to milk.

The instant case is a companion with seven others — ■ those of Scheer’s, Kellman’s, Ameln’s, Kruempeler’s and. Meyer’s have been written and will be handed down at this delivery. In not all, but in some there are common questions. It is useless to cumber our reports with a reconsideration of questions freshly ruled in a companion case. Accordingly, we have passed such by referring to the ease where the question is ruled. That plan will be followed now.

The charge is and the proof shows that on July 18, 1909, at a named place in St. Louis, defendant, John Henry Schulte,, in violation of said section 501, carried and exposed for sale milk, on analysis showing less than three per cent by weight of butter fat, viz., 2.48 per cent —said butter fat estimated gravimetrically by the Adams paper-coil process. The city proved its case by its milk inspector and city chemist, read said section of its code into the record and rested.

Defendant stood mute on the facts, but his counsel raised for him certain questions of law by certain motions which were overruled. Such exceptions were saved below as present one of those questions here, viz.:

Section 501, supra, is in conflict with the State statute — an act passed by the General Assembly in 1909, relating to agriculture and creating a bureau of dairying. [Laws 1909, p. 113, et seq.] The ordinance is said to conflict with section 9 of that act. Section 9 of that act is now section 639, Revised Statutes 1909.

The instant case, mutatis mutandis, is the same as the Scheer case (just handed down and reported at page 721, ante. Quod vide). We will not reproduce section 501 of the municipal code, nor section 639, Revised Statutes 1909. Compare the Scheer case, where their material parts appear.

In that case, Scheer was convicted of selling milk impoverished below the ordinance standard for non-fatty solids. The ordinance balled for 8.5 per cent of solids not fat. Scheer’s milk had only 7.91 per cent. '

In this case the same ordinance calls for three per cent of butter fat by weight. Schulte’s milk had only 2.48 per cent by weight of butter fat.

In Scheer’s case the statutory standard was 8.75 per cent of non-fatty solids. Based on such premise, it was contended there were conflicts and inconsistencies between the ■ statute and ordinance in that the ordinance standard for non-fatty solids was lower than the statutory standard.

In the instant case the ordinance standard for fatty solids is 3 per cent by weight, while the statutory standard is 3.25 per cent. Based on such premise it is here contended there are conflicts and inconsistencies between the same statute and the same ordinance in that the ordinance standard is lower than the statutory standard.

We ruled that contention against Scheer; ergo, we must rule it against Schulte; for we may reason from similars to similars. It is axiomatic that on the same facts, the law is the same and the judgment is the same. Here we are dealing with fatty solids. There we dealt with non-fatty solids. If the city may prescribe a lower standard for the one, by the same token, it may prescribe a lower standard for the other.

On the reasoning and authority of the City of St. Louis v. Scheer, supra, the judgment is affirmed.

All concur, except Valliant, C. Jwho dissents.


text:
    CITY OF ST. LOUIS v. BEDA JUD, Appellant.
    In Banc,
    July 1, 1911.
    1. ORDINANCE: Adulteration of Milk: Enriching Color: Annatto. An ordinance declaring that milk is adulterated “if it is mixed or colored in any manner whereby damage or inferiority is concealed, or if by any means it is made to appear better or of greater value than it really is,” and forbidding the sale of such mixture, is a reasonable municipal regulation, and is valid unless it conflicts with a statute on the same subject. And the addition of annatto to milk, whereby it is given the rich and golden color of milk from cows fed on green food, whether dtherwise harmful or not, and the offering of the same, for sale, is a deception and a fraud upon milk users, and is a violation of said ordinance.
    2. -: Conflict with Statute: Adulteration^ Annatto. Said ordinance is not in conflict with the present statute (Sec. 640, U. S. 1909) which prohibits the sale of “adulterated” milk. To adulterate means “to improve or change their appearance or flavor in imitation of an article of higher grade or of a different kind,” and adulteration means a “treatment to simulate a better article,” an “artificial concealment of defects;” and the addition of annatto, whereby its color is enriched and its real color is concealed, is an adulteration. And that' being the case, there is no conflict between such statute, and ait ordinance which declared milk to be adulterated “if it is mixed or colored in any manner whereby damage or inferiority is concealed, or if by any means it is made to appear better or of greater value than it really is.”'
    Appeal from St. Louis Court of Criminal Correction.— Hon. Benjamin J. Klene, Judge.
    Affirmed.

      Wm. L. Bohnenkamp and E. F. Stone for appellant.
    Ordinance 24297, section 2, under which, this prosecution was had, undertakes to prohibit methods of adulterations other than those to be found in the Revised Code of St. Louis. This action is brought for violation of subdivision 3 of See. 2 thereof, for adding to skimmed milk a foreign substance called “annatto,”' for the purpose of coloring said milk. Annatto is a coloring matter and a foreign substance. The evidence showed that it is absolutely harmless when used in a food product as a coloring matter. Said ordinance is an absolute prohibition against the use of any substance of any kind whatsoever, whether injurious to health or not, as a coloring matter. Therefore, said ordinance is void, as being in conflict with and repugnant to section 10 of an act of the Legislature of this State, Laws 1909,. p. 118, for the plain reason that said act prohibits the sale of milk anywhere in this State, containing any foreign substance injurious to health. This act of the State prohibits only the use or addition of such foreign substances as are injurious to health. Here is a plain and irreconcilable conflict and inconsistency between said ordinance and the said statute. St. Louis v. Wortman,. 213 Mo. 131. The ordinance operates to forbid that, which the statute permits and authorizes, and is,, therefore, null and void. “That which is allowed by tho general laws of the State can not be prohibited by ordinance.” Collins v. Hatch, 18 Ohio, 523; State v. Brit— tain, 89 N.’C. 574; Eobinson v. Franklin, 34 Am. Dec. 625; Newton v. Belger, 143 Mass. 598.

      Lambert E. Walther and A. H. Roudebush for respondent.
    (1) There is no conflict between ordinance 24297 and See. 10 of the Act of 1909, for the reason that adulterated milk is also prohibited by that section of the statute. Law 1909, p. 48, sec. 10; St. Louis v. Klausmeier, 213 Mo. 127. (2) Furthermore, the ordinance definition of adulteration is identical with the.statutory definition. Laws 1907, p. 239, see. 4, cl. 4. (3) Eegardless of the foregoing propositions there is no conflict between the ordinance prohibiting substance tending to deceive and the statute prohibiting substances injurious to health; and the ordinance provision is within the police powers of the city. St. Louis v. Polinsky, 190 Mo. 516; Dairy v. Ohio, 183 U. S. 238; Plumley v. Mass., 155 U. S. 475. (4) The statutory provisions here are broader than those in the Wortman case and there is no conflict between ordinance and statute, and the Wortman ease is not applicable. Laws 1905, p. 133, sec. 5; Laws 1907, p. 239, see.4, cl. 4; Laws 1909, p. 118, sec. 10; St. Louis v. Wortman, 213 Mo. 131.
   LAMM, J.

This is one of eight companion cases to test the validity of the milk ordinances of St. Louis— all handed down at this delivery.

Jud was tried in the police court of St. Louis for having in possession on the 1st day of May,-1909, at a given place, with intent to sell and offer and expose the same for sale, sldm milk adulterated in that it was colored by annatto, whereby its inferiority was concealed and it was made to appear to be better and of greater value than it really was — all, contrary to ordinance 24297. Convicted anew on his appeal to the court of criminal correction and fined $25, he appeals here.

Section 2 of said ordinance reads:

“Section 2. In addition to other methods of adulteration prohibited by the Revised Code of St. Louis, milk or cream shall be deemed to be adulterated:
“First. If any substance or substances have been mixed with it so as to lower or depreciate or injuriously affect the strength, quality or purity.
“Second. If any substance or substances have been substituted wholly or in part for the same.
“Third. If it is mixed or colored in any manner whereby damage or inferiority is concealed, or if by any means it is made to appear better or of greater yalue than it really is.”

The city offered said section in evidence, supplementing it by testimony of its inspector and chemist to the effect (from the inspector) that he took from defendant’s wagon, at the time and place mentioned in the complaint, a sample of his milk, sealed it and delivered it to said chemist; and (from the chemist) that he analyzed the milk, found it contained annatto, a coloring matter used to make milk appear richer in fat than it really is. On cross-examination, he said annatto is not harmful and is used in coloring butter — by not being harmful, he meant when prepared in a pure condition. He then described how it was made and from what, testifying that stale urine is frequently used in its manufacture to give it stability and to keep it moist.

Defendant put in no proof, but stood for his defense on a single proposition, viz.: The ordinance is void as in conflict with an act of the Legislature (Laws of 1909, sec. 10, p. 118) — the argument being that the statute “permits and authorizes” the use of annatto, hence the ordinance falls.

(Note: Annatto is a red or yellowish red dye prepared from the pulp surrounding the seeds of a tree of tropical America, Bixa orellana, and used for coloring cheese, etc. Web. Tit. “Annatto.”)

The statute, relied on to overturn the ordinance, is section 640, Revised Statutes 1909 (formerly section 10 of an act relating to. agriculture and creating a bureau of dairying, Laws 1909, p. 113, et seq.) — so far as material reading:

“Whoever shall sell, or offer or expose for sale anywhere in this State, any milk . . . containing any foreign substance, or preservative of any kind whatsoever, injurious' to health, or shall sell or offer for sale or deliver to another, for domestic or potable use, or to be converted into any product for human food, any unclean, impure, adulterated or unwholesome milk, or milk from which has been held back what is commonly known as strippings . . . shall be guilty of a misdemeanor, and shall be punished,” etc.

In the judicial exposition of the matter, a retrospect is in place, viz.:

In 1905 we decided St. Louis v. Polinsky, 190 Mo. 516. That was a prosecution begun in 1903 against Polinsky for carrying and exposing for sale cream adulterated by annatto contrary to an ordinance. We held in that case that adding annatto, whether harmful or not, in order to give milk the rich and. golden color of milk from cows fed on green food, was a deception and a fraud upon milk users, and on honest competition; and that an ordinance prohibiting it was a reasonable and valid police regulation. That pronouncement was the unanimous resolution of this court in Banc. It was made on a review of many authorities on full consideration and has never since been shaken or exploded.

In so ruling, we held in judgment the ordinance dealing with the subject in the then condition of our statutory law. Since the Polinsky case there has been State legislation. So that, we start with the assumption that unless the new legislation conflicts with the present ordinance, the charter power of St. Louis to enact it must be taken as ample, and the ordinance itself be held a reasonable ‘ regulation.

In 1908 we decided City of St. Lonis y. Wortman, 213 Mo. 131, in Banc. That case dealt with a preservative, formaldehyde, in milk. After the Polinsky case and before the Wortman case, a State law had been passed forbidding putting foreign substances or preservatives in milk, injurious to health. Moreover, in 1907 there was enacted a law ordaining that food should be taken as adulterated if it contained any added substance which is poisonous or injurious to health.. In view of those two statutes we held in the Wortman case that an ordinance, prohibiting placing any foreign substance or preservative of any hind in milk, conflicted in its broad language with State laws then in force. In the Wortman case we affirmed a judgment discharging him.

It must be conceded that if there has been no change in the statutes since the Wortman case, that .case is authority for reversing the judgment against ' Jud.

At this point comes the crux. The city plants itself on a change in the statutory law, validating the ordinance in question, and that change, so far as material, we have set forth in the language of the statute. [Sec. 640, R. S. 1909, supra.] The defendant-relies on the same statute' and puts a contrary construction on it.

Attending to that statute it deals- not only with foreign substances or preservatives injurious to health, but goes on to denounce “adulterated” milk. “Adulterate,” means, to corrupt, debase, or make impure by an admixture of a foreign or baser substance. [Web. Tit. “Adulterate.”] That standard work illustrates the application of the word. It states that articles are adulterated “to improve or change their appearance or flavor in imitation of an article of higher grade or of a different kind.” Adulteration is a “treatment to simulate a better article”- — an “artificial concealment of defects.”

When the statute denounces adulterated milk without defining adulteration, the word may be allowed the meaning given it by lexicographers and understood by people using the English language accurately.

If, however, by the use of the word the lawmaker had in mind the definition of adulterated food given by a former legislature in 1907, it is pertinent to say that we have held the addition of water an adulteration under such statutory definition. [ Vide, the third paragraph of the opinion in a companion case, St. Louis v. Ameln, 235 Mo. 669.

So that whether we go to the dictionary or to the former statute, for our definition, the admixture of annatto with milk must be held an adulteration prohibited by State law. In that view of it, there is now no statutory ban upon the ordinance and without such ban the ordinance stands solidly as valid under the police power granted St. Louis. [ Vide, the Polinsky case, supra.]

This conclusion runs on all-fours with the good sense of the thing. - The housekeeper who buys milk for her table or children should be protected from adroit ■tricks cheating her judgment by deceiving her eyes. Peradventure, gold'en-hued milk speaks of 'cows browsing in dewy meadow grasses. It harks back to blue grass and clover with a sprinkle (as suggested by a learned Brother) of buttercups and daisies- — not to annatto or any other dye. If such good woman wants annatto in her milk, the policy of the State is to let her put it in herself.

Fireside lore and philosophy connect rich yellow milk with the food of the cow, not with an artificial dye like annatto. Witness- — the chimney-corner adages:

Barley straw’s good fodder — when the cow gives water. It is the head of the cow gives milk. The cow gives milk through her mouth, (i.e., as she is fed).

We conclude that annatto in' milk is not only ■against the policy of our State, and in contravention of a valid ordinance of St. Louis, but it is a species of petty treason to domestic pbilosopby and the simple verities of nature itself. Learned counsel for the city said, ore terms, in a flourish of rather startling rhetoric, that the city child now starts on its journey in life flanked by annatto on one side and by formaldehyde on the other. We shall not pass on the issue thus raised, in a hot foot of argumentation, but content ourselves with affirming the judgment on the cold record.

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


text:
    CITY OF ST. LOUIS v. HERMAN NIEHAUS, Appellant.
    In Banc,
    July 1, 1911.
    1. ORDINANCES: Redundant: Not Conflicting: Mixing Water in Milk- An ordinance forbidding the addition of any substance to milk so as to lower or depreciate its strength, quality or, purity, is not in conflict with another ordinance which requires milk to be'“free from foreign additions of any kind.” Either is available to prevent the addition of water to milk. At most they are cumulative and indicate redundancy rather than repugnancy.
    2. -: Milk Adulteration: Interstate Commerce: Regulations of U. S. Department. Courts do not take judicial notice of regulations of an administrative department of the United States Government, and therefore will not undertake to determine whether the provisions of an ordinance forbidding the sale of milk mixed with water, shipped into this State from another State, are in conflict with standards and regulations of the Department of Agriculture adopted and applied in regulating commerce in milk among the states in pursuance of the Pure Pood Act enacted by Congress, unless such regulations are put in evidence at the trial.
    3. -: -: -: -: Not Applicable. But even if the court were to take judicial notice of the existence of such regulations it would be in no position to determine whether or not the ordinance is in conflict therewith, where the facts are so scantily developed that it cannot-be said with any degree of certainty whether or not the milk was sold in “the original package” in which it was shipped from the other State into this, or by whom it was purchased, who was its shipper, who was its consignee, how it was shipped, whether by bulk, can or bottle.
    -4. -: -: -: Not Raised at the Trial. The court will not decide whether or not an ordinance is in violation-of a law of Congress regulating commerce among- the states, or whether in conflict with regulations of an administrative department of the 'Government adopted in pursuance thereto, unless the question was raised at the trial, and decided by the. court adversely to appellant.,
    Appeal from St. Louis Court of Criminal Correction.— Hon. Benjamin J. Klene, Judge.
    Affirmed.

      Wm. L. Bohnenkamp and E. F. Stone for appellant.
    (1) Said ordinance is void as being in conflict with provisions of the Act of Congress, approved June 30, 1906, known as the “Pure Food and Drug Act,” and the standards and regulations of the Department of Agriculture of the United States used and applied in regulating commerce between the states. The evidence shows that said milk was shipped to defendant from Illinois and hence was within the laws of interstate commerce, relative to food products. State v. Railroad, 212 Mo. 680; Cooley’s Const. Lim. (7 Ed.) p. 856; Railroad v. Alabama, 128 U. S. 96; Railroad v. Husen, 95 U. S. 465; State v. Addington, 77 Mo. 116; State v. Railroad, 212 Mo. 680. “In whatever language a statute may be framed, its purpose must be determined by its natural and reasonable effect.” Collins v. New Hampshire, 171 U. S. 29; Morgan v. Louisiana, 118 U. S. 455; People v. Hawkins, 157 N. Y. 15; Buffalo v. Reavy, 55 N. Y. Supp. 792. And the ordinance is unconstitutional and void because the public power of the city cannot be allowed by regulation and supervision to amount to prohibition of the sale of lawful subjects of interstate commerce. Collins v. New Hampshire, 171 U.-S. 33; Ex parte Scott, 66 Fed. 45; Stubbs v. People, 40 Colo. 414; In re Worthen, 58 Fed. 467. An article having been recognized by an act of Congress as a proper subject of traffic and exportation and importation, is a proper subject of commerce among the states, and a state cannot, directly or indirectly, wholly exclude it from the state. Schollenberger v. Penn., 171 U. S. 1; Minnesota v. Barber, 136 U. S. 313; Scott y. Donald, 165 U. S. 581; Leisy v. Hardin, 135 U. S. 125. And this is true whether the state claims to be acting under its police, power, or under its power of taxation. . Walton v. Missouri, 91 U. S. 275; Cook v. Penn., 97 U. S. 566; State v. Brophy, 14 S. D. 119. And one state, under the commerce clause of the Constitution, has no right to prohibit the importation into that state of an article of commerce for sale simply because it may have, by act of its legislature prohibited the sale of such article by its own citizens. Buffalo v. Reavy, 55 N. Y. Supp. 795. That cows’ milk has been, by Congress, “affirmatively pronounced” an article of food and a proper subject of commerce between the States and under the rules and regulations made by way of definitions and standards, there can be no doubt, especially “so far as such standards might be a basis of executive judgment to guide executive action in the enforcement of existing laws.” June 26, 1907. Circular 19, Dept, of Ag., p. 6. Report Com. on Food Standards of the Assn, of Off. Agri. Chém. October, 1907. “Food and Drugs Act,” June 30, 1906. And that the United States has recognized milk of a standard, without regard to the percentage of “ash,” as being a food product in commerce there can be no doubt, for it fixed said standard at “8.5 non-fatty solids and 3.25 per cent butter-fat, and skimmed milk at 9.25 total solids.” Therein no ash element is considered at all in its percentage. This alone renders said ordinance provision void, for it requires a specific percentage element of the standard not required by the United States and hence interferes with, and prohibits, the shipping of milk into the state from other states, that is recognized as a product of commerce by the United States as a “sound article.” Minnesota v. Barber, 136 U. S. 313; Schollenberger v. Penn., 171 U. S. 12.

      Lambert E. Walther and A. H. Roudebush for respondent.
    It was for the defendant below to establish sufficient facts to bring his property within the effects of interstate commerce laws; and he failed to do so. Savings Inst, v. Jacoby, 97 Mo. 627. In order for a party to raise a question as to the constitutionality of an act, he must direct the court’s attention to the particular section of the Constitution alleged to have been contravened. Hulett v. Railroad, 145 Mo. 35; Kirkwood v. Meramec Co., 160 Mo. Ill; St. Joseph v. Ins. Co., 183 Mo. 1; Ash v. Independence, 169 Mo. 77; Excelsior Springs v. Trust Co., 188 Mo. 132; State to use v. Lumber Co., 170 Mo. 7; Stave Co. v. Butler Co., 166 U. S. 648. The question of invalidity not having been brought to the attention of the trial court can not be raised for the first time on appeal. Curtwright v. Crow, 44 Mo. App. 563; Cauble v. Craig, 94 Mo. App.675; Vaughan v. Railroad, 145 Mo. 57; James v. Assn., 148 Mo. 1; Keller v. Ins. Co., 95 Mo. App. 627; Eruit Co. v. McKinney, 103 Mo. App. 304. The act of Congress, approved June 30, 1906, does not establish standards for milk, but does prohibit adulterated foods and in the same language as the ordinance. Hence there is no conflict. Circular No. 19 of the U. S. Department of Agriculture as to milk standards was not offered in evidence below and will not be judicially noticed on appeal. Nagle v. U. S., 145 Fed. 306; The E. A. Packer, 140 U. S. 360; U. S. v. Bedgood, 49 Fed. 54; Hensley v. Tarpey, 7 Cal. 288; Moore v. Worthington, 63 Ky. 307. The ordinance is a reasonable and valid police regulation notwithstanding Federal regulation of the subject-matter. 17 Am. and Eng. Ency. .Law (2 Ed.), 59; Railroad v. Haber, 169 U. S. 613; Sinnat v. Davenport, 22 How. (U. S.) 227; State v. Randolph, 1 Mo. App. 17; State v. Addington, 12 Mo. App. 214, 77 Mo. 116.
   LAMM, J.

The complaint charged that on the 2d day of July, 1909, at a named place in St. Louis, defendant had in his possession with intent to sell and offer and expose for sale skim milk, adulterated, in that a substance, water, had been mixed with it so as to. lower and depreciate its strength and quality, contrary to the ordinance in such case made and provided.

This is one of eight companion cases ‘(Ameln’s, Heilman’s, Meyer’s, Kruempeler’s, Schulte’s, Scheer’s, Jud’s and the instant ease — all handed down at this delivery and reported in this Report, and in 235 Mo.), testing St. Louis milk ordinances. In some of them are common questions. In so far as that is so, when such question has been once ruled it has not been reconsidered, but reference has been made to the principal case to avoid duplicating exposition — the same counsel representing the city and the several defendants respectively in all'the cases, and all of them being consolidated, argued together and heard practically as one case. We shall follow that plan in this case..

In one of the companion cases, Ameln’s, those sections of ordinance 24297, material here,.are set forth, as well as sections 449 and 505 of the Revised Code of St. Lotus. [See that case for their terms.]

At the trial the city read section 2 of the ordinance into the record. Defendant read into it said sections 499 and 505 of the Revised Code of St. Louis of 1907 (Woerner’s).

The oral testimony follows:.

The city put on the stand Roeder, a milk inspector, an attache of the city chemist’s office, who testified that at the time and place charged in the complaint he took a sample of skim milk from defendant’s wagon and put it in the hands of an assistant city chemist, Fitzwilliams. Further, he,testified “defendant’s milk is all shipped in the city by railway.” The chemist, Fitzwilliams, testified that he analyzed the sample given him by Eoeder “and found it contained added water, the effect of which lowers and depreciates its quality and value.” Such was the city’s ease.

At this point defendant asked a mandatory instruction to acquit. Failing in getting that instruction, to sustain the issues on his own behalf, he offered (in addition to said sections 499 and 505 of the Eevised Code of St. Louis) oral testimony from.Niehaus in substance as follows: He did not handle his own milk. He forbade his drivers doing anything wrong. He had never before been prosecuted for adulterating milk. “He did not produce the milk and all of his milk was purchased in and shipped from the State of Illinois,”

(a) . Among contentions below and here is one that the prosecution should have been under section 499 of said Eevised Code, instead of under ordinance 24297. That contention in all its phases, so far as relates to section 499, was ruled against defendant in the .Ameln case, which see. Point IY .of defendants brief relates to that, contention and may be put aside.

(b) . Another contention below and here is one to the effect that ordinance 24297 is void because in conflict with an act of the Legislature (Laws of 1909, p. 118), the same being section 10 of an act relating to agriculture and creating a bureau of dairying. [Laws of 1909, p. 113.] Said section 10 is now section 640, Eevised Statutes 1909. That contention was ruled against defendant in the third paragraph of the Ameln case. {Quod vide.) Point III of defendant’s brief relates to that contention and may be put aside.

(e). In point Y of his brief defendant asserts that if guilty at all he is guilty of violating section 505 of the Revised Code of St. Louis. That section, as said, read in evidence, is set forth in Ameln’s case, but that case did not break on the point. However, in the companion case (Kellman’s, reported at page 687, 235 Mo. which see), it appears that the identical section 505, was “struck out” and repealed by a later ordinance 24582, approved October 23, 1909. The Kellman case rode off on the validity of that very repeal. However, this case was tried in the court of criminal correction in September, 1909, before that repeal, so that the point is left for consideration in this particular case although it could not again arise.

Section 505 establishes a standard for skim milk in total solids, butter fat, specific gravity, freedom “from foreign additions of any kind,” and any evidence of decomposition and which is transported and delivered at a temperature provided elsewhere for sweet milk. It does not appear what the ■ constituent elements and properties of this milk were with reference to those standard requirements. However, “water” might be a “foreign addition.” The proposition that the prosecution should have been under that ordinance is somewhat dark. As preserved in the record, section 505 provides no punishment and winds up with the phrase “may be lawfully sold, under the following regulations.” What those regulations are, we do not know. We think there is no substantial merit in the point. Counsel do not develop it and we construe it as made more by way of parenthesis than, otherwise. To all intents and purposes it falls within and is disposed of adversely to defendant by the "reasoning in the series of companion cases already decided and to which reference has been made. The two ordinances do not conflict. At the worst possible view they seem cumulative and indicate redundancy rather than repugnancy.

The point is rifled against defendant.

With these subsidiary questions at rest, we come to the remaining proposition in the ease — one emphasized by a scholarly and industrious elaboration, to-wit:

(d). Counsel, assuming the milk in question at the time and place in question was the subject-matter of interstate commerce and as such came within the purview of the provisions of the Federal law known as “The Pure Food and Drug Act,” and the standards and regulations of the United States Department of Agriculture, adopted and applied in. regulating commerce in milk between the states, say the ordinance is in conflict with that Federal act and the standards and regulations of that department, hence is void.

We rule the point against defendant — putting our ruling on the following propositions:

(1) In the first place, in making the point counsel assume as essential to it that we will judicially notice milk standards prescribed by the United States Department of Agriculture, and thereby work out a conflict.

In the Kruempeler cáse (reported at page 710, 235 Mo.), we declined to take judicial notice of milk standards so prescribed. On argument, a pamphlet was left with the files which is said to establish those standards, but it was not introduced in evidence and, under like circumstances, we ruled in the Kruempeler case we would not notice it. The field of .judicial notice is a large one and has often been partly explored. For our purposes we may safely rest on some general and well-recognized rules. For instance: The rule is to not judicially notice the laws of a sister state or the ordinances of a city or the regulations of local boards and councils. [Sec. 6b, 1 Green’f on Ev., 16 Ed.] Why should that rule not apply here? Are rules of an administrative department of more consequence, or publicity, or more likely to be known as authentic than the laws of a sister state, or the general ordinances of one of our great cities? The doctrine of judicial notice, in so far as it relates to regulations of executive departments of the United States government, seems to be that they are “sometimes, but not usually noticed” (Ibid), and we think that general doctrine sound. It avails nothing that there are exceptions to it called in play when peculiar facts put the case outside the reason of the rule. There are respectable authorities back of our holding — ex gr.: Nagle v. U. S., 145 Fed. I. c. 306; The E. A. Packer, 140 U. S. l. c. 367-8; U. S. v. Bedgood, 49 Fed. 54; Hensley v. Tarpey, 7 Cal. 288; Moore v. Worthington, 63 Ky. l. c. 308-9; The Clara, 5 C. C. A. 390; Com. v. Crane, 158 Mass. 218.

We are cited by defendant’s counsel in their reply brief to Campbell v. Wood, 116 Mo. 196, as holding a contrary doctrine; but, read with care, that case does not run quatuor pedibus. It dealt with an old land grant and survey. On the documents were certain peculiar marks. The question was: What did those marks mean? This court felt “at liberty” to take judicial notice of instructions issued by the Surveyor-General for the States of Illinois and Missouri to deputy surveyors as bearing on those peculiar marks made by deputy surveyors acting under those instructions.

The doctrine of judicial notice is not a hard and fast one. It is modified by judicial discretion. In this view it becomes apparent at once that such discretion in the Campbell case was properly exercised; for the court put the matter on “the circumstances connected with the case,” citing with approval some observations made by Brown, J., in Hunter v. Railroad,, 116 N. Y. 615, in favor of taking judicial notice of the size and height of an average man, standing or sitting. Says Brown, J. , by way of philosophical generalization, in leading up to his foregoing concrete ruling:

“Courts are not bound to take judicial notice of matters of fact. Whether they will ■ do so or not depends on the nature of the subject, the issue involved and the apparent justice of the case.
“The rule that permits a court-to do so is of practical value in the law of appeal, where the evidence-is clearly insufficient to support the judgment. In such ease judicial notice may be taken of facts which are a. part of ~the general knowledge of the country, and which are generally known and have been duly authenticated in repositories of facts open to all, and especially so of facts of official, scientific or historical character.”

(2). In the next place, the facts are darkly developed and it would be a leap in the dark for us to acquit defendant on the theory his milk was within the protection of the Federal law and Constitution relating to interstate commerce. There comes a time in every shipment of goods into the United States from a foreign country, or from one state to another, when those goods are released from the protection of interstate commerce or importation acts and become subject to state taxation and state police regulation by being merged, into the' body of the property within the state, and impressed with the character of goods employed in local traffic. There is much learning on the question, and this case does not call for its exposition. In passing, we-refer to one feature, viz., “the original package” feature, which is allowed some controlling significance in leading-cases. Take Canton v. McDaniel, 188 Mo. 207, for-example.

Turning to the record we see there was proof from the inspector that defendant’s milk was brought into the city by “railway.” -That evidence was supplemented by defendant’s to the effect “that all of his milk was. purchased in and shipped from the State of Illinois.” Such is the scant record. By whom was it purchased? Who was the shipper? Who was the consignee? How was it shipped, by bulk, can or bottle? Was it stored, its bulk broken and thus made ready to be dealt out to buyers or was it still in the original package and was the act of delivery to the customer but a. continuation of ■the shipment? Obviously, the facts showing this milk came within the protection of interstate commerce, if existent, do not sufficiently appear. The milk was on a retail wagon in the streets of St. Louis, in charge of an agent then and there about the business of selling and delivering it to Missouri customers by the small at a price named. If defendant claims a privilege as a dealer in interstate milk not allowed to his rivals, dealing in Missouri milk, to sell added water in his milk, he must do so without the grace or hazard of a guess upon the part of an appellate court on the facts bringing him within that privilege.

(3). In the next place, we are not satisfied that the question was properly lodged below and decided by the trial court. Without going into detail, the motions filed and overruled, the instruction asked, and the exceptions saved below do not explicitly raise the proposition. Accordingly, we think it not here for review.

The premises all considered, the judgment is affirmed.

All concur, except Valliant, C. J.