City of St. Louis v. Kellman

Appellant was prosecuted in one of the city courts of St. Louis, upon the following complaint or information:

"Harry Kellman, To the City of St. Louis, Dr.

"To $200, for the violation of an ordinance of said city, entitled: ``Ordinance in revision of the general ordinance of the City of St. Louis,' being general ordinance No. 28646, Chapter ____, Article ____, Sections 17 to 37 inclusive, approved March 30, 1916 in this, to-wit:

"In the City of St. Louis and State of Missouri, on the 30th day of July, 1917, the said Harry Kellman did then and there operate and conduct a dairy and selling milk without a permit from the Board of Public Service so to do at 3145 Clay Avenue, contrary to the ordinance in such case made and provided.

"WILLIAM YOUNG. "Chief of Police of the City of St. Louis."

In said court he was tried and convicted, and fined $25 and costs. He appealed to the court of Criminal Correction, where he filed an elaborate motion to quash, charging in many ways the invalidity of the ordinance under which he was being prosecuted. This motion the court overruled. Upon a trial in Division 2 of the St. Louis Court of Criminal Correction, the following facts were admitted:

"It is agreed that the defendant on the day charged in the information, the 30th day of July, 1917, was operating and conducting a dairy and selling milk without a permit from the Board of Public Service at 3145 Clay Avenue, St. Louis, Missouri; that said defendant's permit to sell milk in the city of St. Louis had been revoked prior to said 30th day of July, 1917, to-wit, on the 24th day of July, 1917, by the Board of Public Service, which had theretofore been granted to him; that said defendant, Harry Kellman, herein had a hearing before said Board of Public Service on said 24th day of July, 1917, and after such hearing the Board of Public Service revoked his said permit, and that after said permit was so revoked said defendant conducted and operated his said dairy and sold milk therefrom on the date charged in the information.

"That the defendant is the owner of his said dairy, dairy premises and dairy cows, 55 in number, all of which, excluding the family residence, is worth from $15,000 to $18,000. His said residence adjacent to said dairy premises is worth about $7,000.

"That at the time there was existing in the city of St. Louis an ordinance known as General Ordinance No. 28646, which had been passed by the Board of Aldermen of the city of St. Louis and approved by the Mayor of the City of St. Louis on March 30, 1916.

"Defendant, however, does not agree that the Board of Public Service ever had any power to grant the defendant a permit to operate and conduct a dairy and to sell milk therefrom in the city of St. Louis, nor that said board had any power to revoke such permit, nor does the defendant agree that said ordinance heretofore referred to is valid, but to the contrary contends that said Board of Public Service had no power to grant such permit to operate and conduct said dairy and to sell milk therefrom in the city of St. Louis, and therefore had no power to revoke such permit, and further contends that the aforesaid ordinance referred to is unconstitutional, null and void."

In addition to these agreed facts, the plaintiff, city of St. Louis, offered in evidence Sections 17 to 37, inclusive, of Ordinance No. 28646, mentioned above, and the same were admitted over the objections and exceptions of defendant.

On the trial defendant made the following offers of proof, which the court excluded:

"THE COURT: Read into the record what you intend to show by these people.

"Whereupon counsel for the defendant stated that he offered to show by certain witnesses that are familiar with the defendant's said dairy and the milk produced therein and sold therefrom that said dairy was clean and sanitary in every respect and that the milk sold therefrom by the defendant was clean, pure and wholesome.

"Defendant offered to show by a witness whose father and mother had bought milk from the defendant from his said dairy for over a period of twenty years, and that the father and mother of witness have eight children, of which he, witness, is one, all of whom are living; that witness's father and mother are also living, and that said eight children had been raised by the milk that came from the defendant's said dairy, and that each and every one of them are grown up, strong and healthful individuals, and that his mother and father are both living at this time and are well, healthy and happy.

"Defendant further offered to prove by witness John C. Steinlage, who is an experienced dairyman, having been in the dairy business for many years and who lives in the city of St. Louis near the defendant's dairy in question and who observed the defendant's dairy from time to time, that the defendant's dairy is in first-class condition and that the defendant is producing clean and wholesome milk.

"Defendant further offered to prove by witness Fred A. Kuhlmann of 4012 Palm Street, who had known the defendant and his dairy for a period of six years immediately preceding this prosecution, that said witness is a man of family and has raised a baby by the use of the defendant's milk, produced at and sold from his said dairy in question. That witness's baby had been seriously ill, having been at the point of death, and then recovered by the use of milk produced at and acquired from defendant's dairy, and witness has ever since and is now using milk for his said baby and his family from the defendant's said dairy That the baby of witness at the time of its said illness was only eight weeks of age, and that it quickly recovered good health by the use of milk from defendant's said dairy, and that said baby is now thirteen months old, and that witness used that kind of milk so obtained from defendant's dairy for his said baby at the direction of a practicing physician.

"Defendant offered to show by other witnesses instances of like character.

"Defendant also offered to show that prior to the 24th day of July, 1917, the day upon which the Board of Public Service revoked the defendant's permit, the Board of Health on a number of occasions gave the defendant the recommendation of having a good clean dairy."

The court thereupon, December 8, 1917, found defendant guilty, and fixed his fine at $10 and costs. From such judgment this appeal is taken.

Counsel elaborately preserved all points made in a motion for new trial and in arrest of judgment, but to no avail. We are not favored with briefs in behalf of the city, although ten days' time was granted for the filing thereof, at the date of the hearing in this court. The time limit has long since elapsed.

I. We have stated that the city of St. Louis has not enlightened us with briefs herein. It perhaps concluded that all phases of the St. Louis milk ordinance have beenFormer before this court. A very large portion of theAdjudications. 190 Missouri Report, is taken up with St. Louis milk cases. [St. Louis v. Liessing, 190 Mo. 464; St. Louis v. Grafeman Dairy Co., 190 Mo. 492; St. Louis v. Grafeman Dairy Co., 190 Mo. 507; St. Louis v. Reuter,190 Mo. 514; St. Louis v. Polumsky, 190 Mo. 516; St. Louis v. Schuler,190 Mo. 524.]

Since the advent of the writer upon this bench, we have further considered St. Louis milk cases. [St. Louis v. Bippen,201 Mo. 528, and St. Louis v. Klausmeier, 213 Mo. 119.] The present case is a new attack upon St. Louis milk ordinances. We note from the ordinance before us that the city in revising its milk ordinance took note of what we said in Klausmeier's Case, and in the respect there noted has made its ordinance conform with the State law.

In all these sundry cases, we have ruled that the city of St. Louis, in exercise of its police power, could pass ordinances regulating the sale of milk, and fixing a standard of quality below which it could not be sold.

When we concluded Klausmeier's Case it was thought we had fully written upon the St. Louis milk ordinances. This view, may have induced the city to rely upon what had gone before, and stand upon its judgment in this case without further suggestion (by way of brief) at this time. However, if there be a new question in the instant case, we will endeavor to find and dispose of it. We proceed, however, having in view the words of GANTT, J. (for the Court in Banc), in the case of City of St. Louis v. Liessing, 190 Mo. l.c. 480, as follows:

"The ordinance assailed has for its subject-matter the inspection of milk and cream and the regulation of the sale thereof. It is obviously a police regulation to guard against the sale or dissemination of an unwholesome and injurious quality of milk and cream and to protect the public against imposition, fraud and deception as to an article of food almost universally used by the people. The city of St. Louis, as has been repeatedly declared by this court, derives its charter in pursuance of constitutional provisions and the police powers delegated therein are conferred by the State upon the municipality, and so long as they are not inconsistent with the Constitution and laws of the State they are valid upon all who come within their scope and authority. [St. Louis v. Fischer,167 Mo. 654, 194 U.S. 361; Kansas City v. Oil Co., 140 Mo. 458.] By the express provision of Section 26, Article 3, of the charter of St. Louis, authority is given ``for the inspection of butter, cheese, milk, lard and other provisions,' and ``to secure the general health of the inhabitants by any measure necessary,' and ``to pass all such ordinances as may be expedient in maintaining the peace, good government, health and welfare of the city, its trade, commerce and manufactures.' None of the objections sought to be secured by the charter are of more importance than the health of its inhabitants, and ordinances having such in view have been often upheld as an exercise of the police power of the State delegated to the city. [St. Louis v. Galt, 179 Mo. 8-18; Ferrenbach v. Turner, 86 Mo. 416; Smith's Mod. L. Mun. Corp., sec. 1322 et seq.; Crossman v. Lurman, 192 U.S. 189.] The provisions of the Federal Constitution, invoked by appellant, were not designated to interfere with the exercise of the police power by the states, and they have not shorn the states of their police power to regulate trades and occupations so as to guard against injury to the public, nor of regulating the use of property so as to prohibit that which is injurious and dangerous to the community. [St. Louis v. Fischer, 167 Mo. 654; State v. Addington, 77 Mo. 110; State v. Bockstruck, 136 Mo. 335; Powell v. Com., 114 Pa. 265; Powell v. Pennsylvania, 127 U.S. 678.]" II. The only charge against Kellman is that within the city of St. Louis he conducted a dairy and sold milk therefrom without having a permit from the Board of Public Service.Ordinances. Section 17 of the ordinance reads:

"PERMITS. — Every person who shall bring into the city of St. Louis for sale, or who shall, within said city, sell, prepare for sale, offer for sale, expose for sale, dispose of, exchange or deliver, or with the intent so to do as aforesaid, have in his possession, care, custody or control, within said city, milk, skimmed milk, cream, buttermilk or milk prepared by a fermentation or other process, shall first make application for a permit so to do in the office of the Board of Public Service and be granted such a permit by the Board of Public Service. Provided, however, that nothing in this ordinance, except Section 11 hereof, shall be so construed as to apply to the handling of condensed milk."

Section 18 of the ordinance provided for a sworn statement, as to required facts, to be made by the applicant for a permit. Section 19 provides that the permit shall be in the name of the applicant, and shall not be transferable. Section 20 provides that the permit shall run for one year, unless sooner revoked. Section 21 thus reads:

"The Board of Public Service may, in its discretion, refuse to grant a permit to anyone who shall have been repeatedly convicted of violating the ordinances of the city of St. Louis or laws of the State of Missouri, concerning the inspection and regulation of dairies and the inspection and sale of dairy products, or when for any reason in the interest of the health of the inhabitants of the city, it would be inadvisable to grant a permit to such applicant. The Board of Public Service may revoke any permit for the same reason for which they may refuse to issue a permit. No permit as milk vendor shall be refused by the Board of Public Service, nor shall any such permit be revoked, except after a due hearing upon due notice at which the applicant or grantee shall have full opportunity to be heard under such rules and regulations as the Board of Public Service prescribes."

Section 22 fixes standards for whole milk. Section 23 fixes standards for skimmed milk, and the manner of its sale. Section 24 fixes standard for cream. Section 25 fixes standard for buttermilk. Section 26 prohibits sale of adulterated or mis-branded milk. Other sections deal with pasteurized milk, etc. Finally Section 37 makes a violation of the ordinance, or any section thereof, punishable by a fine of not less than ten nor more than two hundred dollars.

We have given this detail of the ordinance, in order that its true character may appear. Its whole purpose is to secure wholesome milk for the citizens of the city.

III. It is urged with much vehemence that the production and sale of milk is a lawful business, and to require persons engaged in that business to secure a permit, is violative of constitutional rights. We have not failed to reachLawful this point in the sundry milk cases from St. Louis. ABusiness. lawful business is subject to the police power of the State, and its municipalities, to which the State had given police powers. In City of St. Louis v. Grafeman Dairy Co., 190 Mo. l.c. 504, this court thus disposed of the question:

"The fact that the selling of milk is a lawful trade or business does not exempt it from reasonable police regulations. In Gundling v. Chicago, 177 U.S. 183, the Supreme Court of the United States tersely stated the recognized rule on this subject. ``Regulations respecting the pursuit of a lawful business or trade are of very frequent occurrence in the various cities of the country, and what such regulations shall be and to what particular trade, business or occupation they shall apply, are questions for the city to determine, and their determination comes within the proper exercise of the police power by the State, and unless the regulations are so utterly unreasonable and extravagant in their nature and purpose that the property and personal rights of the citizens are unnecessarily, and in a manner wholly arbitrarily, interfered with or destroyed without due process of law, they do not extend beyond the power of the State to pass.'

"When it is considered that no article of food is more unversally used by the public, and that no other article is perhaps so sensitive to atmosphere and vegetable influences as milk, and that it is within a common knowledge that impure milk is a fruitful source of disease and disorders, especially among children, it needs no discussion to show that the milk business is one which particularly falls within the power of the State and its municipality to regulate, and that the imposition of one dollar a year for registration is in no sense an onerous or unjust burden, and is intended as a pure police measure to cover in part the cost of inspection of milk and cream, is too plain for discussion. We have no hesitancy in holding that the statement in so far as it charged a failure to register and the failure to pay the one dollar registration and inspection fee, stated a good cause of action, and, therefore, the Court of Criminal Correction erred in quashing the whole case."

In the latter part of Section 19 of the ordinance is found this sentence: "A permit shall be kept conspicuously posted at each business place of the grantee." It thus appears that the very purpose of the permit was to protect the public. It indicated to the purchasers that the municipality had determined that the holder of the permit could be relied upon for a wholesome quality of the article sold. It is like the license from the State Board of Health to a doctor. Such license bespeaks the qualifications of the holder, and thus protects the general public. The permits or licenses authorized by this ordinance perform the same function. They say to the general buying public: You will be safe in buying from this man (the holder of the permit), because he can be relied upon to furnish a wholesome article. And further the issuance of permits is but another method of registration of milk sellers. The city, in the exercise of its police power, had the authority to require milk sellers to take out such permits. In fact there is no question urged in this case (along constitutional objections) which has not been fully threshed out by this court in some of our previous cases, all of which we have cited, supra.

IV. The proffered evidence was properly excluded. The charge was that defendant was doing business without a permit. Whether he was lawfully entitled to a permit is another question, but not in this case. If his permit had been wrongfullyEvidence. cancelled, or if a new permit had been wrongfully refused, he had his appropriate remedies, but that did not justify the doing of business without the permit, or license.

V. Lastly it is charged that the ordinance is invalid in that it contravened the charter provision providing that "no bill shall contain more than one subject." The title reads:

"An ordinance in revision of articles Three and Four of Chapter Nine of the Revised Code of St. Louis, nineteen hundred twelve, and of ordinance number twenty-seven thousand, five hundred and fifteen, and of ordinance number twenty-seven thousand, six hundred and four."

The point made is that by Section 38 of the instant ordinance some named sections of the Revised Code (mentioned in the title) and two ordinances (27515 and 27604, mentioned in the title) were repealed. The repealing of certain parts of previous milk ordinances, by the revised ordinance, is the subject which it is urged is not expressed in the title. We do not think the contention well taken. This was, as the title indicated, a revising ordinance. It was a revision of the previous ordinances, adding and changing some parts and cutting out other parts. This idea was fully expressed in the title.

The sundry constitutional questions are so fully disposed of in our previous rulings, that there is little excuse for the length of this opinion. The other questions are without merit, as above indicated. The judgment is therefore affirmed. James T. Blair,C.J., concurs in result; all other judges concur, exceptWoodson and Higbee, JJ., who dissent; Woodson, J., in separate opinion.