| Mo. | Jun 26, 1908
This prosecution was instituted against the defendant in error to recover a penalty of $100 for violating section 19' of ordinance No. 20808 of the city of St. Louis. Said section reads as follows:
“No cream shall he sold,, offered for. sale, exchanged, delivered or be transported for the. purpose of sale, offering for sale, exchange or delivery, that contains less than twelve per centum of butter fat, or that is taken from any impure, diseased, unhealthy, unclean, adulterated, or unwholesome milk, or milk to which any foreign or other substance of any kind has been added. Any person violating any of the provisions of this section shall be deemed guilty of a misdemeanor, and on conviction thereof shall be fined not less than twenty-five dollars nor more than one hundred dollars for each and every offense.”
The complaint charged that the defendant in error carried and exposed for sale, in the city of St. Louis, cream containing less than twelve per centum •of butter fat.
The defendant in error was fined in the police ■court and took an appeal to the St. Louis Court of Criminal Correction. In said last-mentioned court, the defendant in error filed a motion to quash the information. The court entered judgment sustaining the motion to quash and discharging the defendant upon the fifth ground set out in the said motion to quash, which is as follows: “Because said ordinance is void as being inconsistent with the statute of "this State. ’ ’
After the case had been removed by writ of error to this court, the defendant in error filed a motion to ■dismiss the writ of error, together with the cause, upon the ground that certain statutes had been enacted which were irreconcilably inconsistent with the further enforcement of the ordinance. The statutes
Session Laws of 1905, page 133, entitled, “Dairy Commissioner — State: Terms, Duties and Powers Defined.”
Session Laws of 1907, page 246, entitled, “Dairy and Food Commissioner. ’ ’ ■
Session Laws of 1907, page 238, entitled, “Crimes and Punishments: Adulteration of Foods and Drugs. ’ *
I. There are many legal propositions presented and learnedly discussed by counsel for both plaintiff •and defendant in error; but when reduced to their final analysis only one question remains for the consideration of this court, namely: Was the ordinance mentioned, which was in force at the time of the institution of this prosecution, subsequently repealed by the acts of the Legislature of 1905 and 1907 ?
The ordinance in question fixed the percentages and standards of whole milk and skimmed milk as follows:
Whole Milk:
Butter fat not less than 3 per cent.
Non-fatty solids not less than 8.5 per cent.
Ash not less than .7 per cent.
Total solids not less than 12.2 per cent.
Butter fat to be determined exclusively by the Adams paper coil process.
Cream:
Butter fat 12 per cent.
Skimmed Milk:
Total solids not less than 10.5 per cent.
Butter fat not less than 1.5 per cent.
Specific gravity between 1.032 and 1.038.
While the acts of the Legislature mentioned prescribed the following percentages:
Butter fat not less than 3.25 per cent.
Non-fatty solids not less than 8.5 per cent.
Total solids not less than 11.75 per cent.
No process for analysis designated.
Cream:
Butter fat 18 per cent.
Skimmed Milk:
Total solids not less than 9.25 per cent.
It-is the contention of the plaintiff in error, who will hereinafter be called the plaintiff, that these laws and the provisions contained therein' were intended for the guidance of the State officers referred to in those acts; that it was not the intention of the Legislature to take away the powers of cities granted by charter to make additional and further regulations in respect to the same subject-matter; that the standards referred to in the statutes were intended to be descriptive only of the State offense, and that the ordinances of the city of St. Louis in question remain unimpaired, in full force and effect. The defendant, upon the other hand, insists that there is an irreconcilable conflict and inconsistency existing between the standards for such of said products as are fixed by the ordinance and those prescribed by the statutes. These respective contentions of the parties sharply present the legal proposition involved in this case.
It is not disputed, but it is conceded by plaintiff, that the acts of 1905 and 1907 are .general laws of the State, and that they by their terms apply to the entire State and to all the cities thereof. And it is well settled that the ordinances of the city of St. Louis in order to be of any validity must be consistent with the general laws of the State, and must be in harmony with the “legislative policy of the State manifested by its general enactments,” and as provided for in express terms by the Constitution. This proposition
But there is nothing in the Constitution or laws of the State which prohibits the city council from enacting ordinances supplemental of and in addition to the State laws in the establishment of standards of purity and providing for the inspection of dairy products. In fact, section 26 of article 3 of the charter of the city of St. 'Louis expressly authorizes the enactment of just such an ordinance as the one here in question, and the validity of this particular ordinance has been repeatedly sustained and upheld by this court. [St. Louis v. Liessing, 190 Mo. 464" court="Mo." date_filed="1905-10-20" href="https://app.midpage.ai/document/city-of-st-louis-v-liessing-8015498?utm_source=webapp" opinion_id="8015498">190 Mo. 464; St. Louis v. Grafeman Dairy Co., 190 Mo. 492" court="Mo." date_filed="1905-10-20" href="https://app.midpage.ai/document/city-of-st-louis-v-grafeman-dairy-co-8015499?utm_source=webapp" opinion_id="8015499">190 Mo. 492; St. Louis v. Bippen, 201 Mo. 528" court="Mo." date_filed="1907-03-05" href="https://app.midpage.ai/document/city-of-st-louis-v-bippen-8016021?utm_source=webapp" opinion_id="8016021">201 Mo. 528.]
This brings us to the vital question involved in this case. Are the acts of 1905 and 1907, prescribing the percentages and standards of purity of dairy products and providing for their inspection, in conflict with the ordinance in question, which deals with the same subjects?
The ordinance in every instance, excepting one, fixes an equal or a lower standard of strength and purity than that fixed by the statute. The exception mentioned relates to one of the elements of skimmed milk. The ordinance fixes the total solids of skimmed milk at not less than 10.5 per cent, while the statute fixes the total solids at 9.25 per cent. The ordinance also requires certain ingredients and percentages thereof in whole milk and in skimmed milk which are not called for by the statutes. Those things called for by the ordinance and not by the statute are as follows: In whole milk, ash not less than 7 per cent, and in
We suppose it will not be claimed, nor could it be logically contended, that there could be a conflict between the statute and the ordinance regarding those matters called for in the latter, and upon which the statute is silent. In order to be a conflict of any kind, two things must of necessity exist, and when it is contended that there is a conflict between two laws both must contain either express or implied provisions which are inconsistent and irreconcilable with each other. If either is silent where the other speaks, there can be no conflict between them.
The ordinance in those particulars is but additional to and supplemental of the statute in fixing the standard and purity of dairy products to be sold in the city of St. Louis. Those requirements of the ordinance are not in conflict with the statute, and there is nothing in the letter or spirit of the statute which prohibits the city from adding those requirements, while, upon the other hand, the charter of the city in express terms grants it the powers here claimed for it. If it can re-enact only such laws as are enacted by the Legislature, then the grant of such power to the city would be vain and useless in its object and purposes. The test being, there must be such inconsistency between the provisions of the ordinance and the statute as to annul the former. [St. Louis v. Cafferata, 24 Mo. 94" court="Mo." date_filed="1856-10-15" href="https://app.midpage.ai/document/city-of-st-louis-v-cafferata-7999934?utm_source=webapp" opinion_id="7999934">24 Mo. 94; St. Louis v. DeLassus, 205 Mo. 578" court="Mo." date_filed="1907-07-01" href="https://app.midpage.ai/document/city-of-st-louis-v-delassus-8016217?utm_source=webapp" opinion_id="8016217">205 Mo. 578.]
And it is equally well established that where a city has concurrent powers with the State it may prescribe a penalty for the violation of its ordinances different from that prescribed by the State for the violation of a statute regarding the same subject-matter. [Hill v. St. Louis, 159 Mo. l. c. 167, and cases cited.] That being true, then we are unable to distinguish on principle why the city of St. Louis, which has express
While such ordinance might not be as broad as the statute, yet it would not be inconsistent with the statute on that account. Both would proceed along the same lines, but the requirements of the former
•If a person sells dairy products in the city of St. Louis which come up to the standard of strength and purity fixed by the State, then he would be guilty of no offense either under the State law or the ordinances of the city; but if he should sell such products which do not come up to that standard, then he would be liable to punishment under the State law and not under the ordinance, unless the standard of strength and purity thereof should also fall below the standard prescribed by the city ordinance; in which event he would be liable to prosecution and punishment under' both. Such has 'been the ruling of this court for many years, as is shown by the following cases: St. Louis v. Cafferata, 24 Mo. 94" court="Mo." date_filed="1856-10-15" href="https://app.midpage.ai/document/city-of-st-louis-v-cafferata-7999934?utm_source=webapp" opinion_id="7999934">24 Mo. 94; St. Louis v. DeLassus, 205 Mo. 578" court="Mo." date_filed="1907-07-01" href="https://app.midpage.ai/document/city-of-st-louis-v-delassus-8016217?utm_source=webapp" opinion_id="8016217">205 Mo. 578; State v. Muir, 164 Mo. 610" court="Mo." date_filed="1901-11-12" href="https://app.midpage.ai/document/state-v-muir-8014071?utm_source=webapp" opinion_id="8014071">164 Mo. 610; State v. Gustin, 152 Mo. 108" court="Mo." date_filed="1899-10-31" href="https://app.midpage.ai/document/state-v-gustin-8013316?utm_source=webapp" opinion_id="8013316">152 Mo. 108; Canton v. McDaniel, 188 Mo. 228; Hill v. St. Louis, 159 Mo. l. c. 167; St. Louis v. Bentz, 11 Mo. 61" court="Mo." date_filed="1847-10-15" href="https://app.midpage.ai/document/city-of-st-louis-v-bentz-6612202?utm_source=webapp" opinion_id="6612202">11 Mo. 61.
In the particulars just considered we are of the opinion that there is no conflict between the ordinance and the statutes mentioned, and for the reasons stated the latter does not repeal the former as to the matters indicated. But so much cannot be said of the standard of solids prescribed by the ordinance for skimmed milk. For skimmed milk the ordinance fixed the total solids at not less than 10.5 per cent, while the statute fixed it at 9.25 per cent. In this particular there is a clear conflict between the statute and the ordinance, for a person might sell skimmed milk containing 9.25 per cent of solids, as prescribed by the State law, and still be guilty of an offense under the ordinance. In other words, the ordinance denounces that to be a
We are, therefore, clearly of the opinion that the clause of the ordinance just mentioned is in direct conflict with the acts of the Legislature mentioned, and is repealed by necessary implication. But what bearing does that holding have upon the defendant in this case? It must be borne in mind that he is not charged with selling shimmed milk of standard -but with selling cream in violation of section 19 of the ordinance, containing less than twelve per cent of butter fat. The defendant’s contention in that regard is that a repeal of any portion of the ordinance operates as a repeal of the entire ordinance. We are unable to lend our assent to that contention. The law does not favor repeals by implication and must be narrowly and strictly construed, and will be permitted only where the conflict is so inconsistent and repugnant to each other that both laws cannot stand together. [State ex rel. v. Hopkins, 87 Mo. 519" court="Mo." date_filed="1885-10-15" href="https://app.midpage.ai/document/state-ex-rel-gordon-v-hopkins-8008531?utm_source=webapp" opinion_id="8008531">87 Mo. 519; Manker v. Faulhaber, 94 Mo. 430" court="Mo." date_filed="1887-10-15" href="https://app.midpage.ai/document/manker-v-faulhaber-8009217?utm_source=webapp" opinion_id="8009217">94 Mo. 430.] Clearly, under this rule, the other portions of the ordinance are not repealed, for the reason before stated, namely, the statute and the ordinance in all other respects stand together.
Thus viewing the case, we must conclude that the Court of Criminal Correction committed reversible error in quashing the information.
It is, therefore, ordered that the judgment be reversed and the cause remanded to be proceeded with in conformity to the views herein expressed.