Opinion
November 9, 1940.
1. STATUTES: Construction. It is a cardinal rule of construction that every word, clause, sentence and section of an act must be given some meaning unless it is in conflict with the legislative intent.
It is the duty of a court in construing statutes which appear to be in conflict, to reconcile them, if possible, with the general legislative purpose.
2. STATUTES: Filled Milk Statute. Where Section 12408, Revised Statutes 1929, makes it unlawful to manufacture, sell, etc., any milk, cream, etc., to which has been added any fat or oil other than milk fat, either under the name of said product or articles of the derivatives thereof, or under any fictitious or trade name, and Section 12409 which defines filled milk to mean milk or cream, condensed, etc., to which has been added any fat or oil other than milk fat, providing that the definition should not include distinctive proprietary food compound, not readily mistaken for milk or cream, and provided that such compound is prepared for feeding infants and customarily used on the order of a physician and to be used only for said purposes and shipped in interstate commerce exclusively to physicians, wholesale or retail druggists, etc., there is no irreconcilable conflict between these two sections.
Where there is an irreconcilable conflict between two different parts of the same act, as a rule the last in order of position will control unless there is some special reason for holding to the contrary.
3. STATUES: General and Special. Where one statute deals with a subject in general and comprehensive terms and another deals with a part of the same subject in a more minute and definite way, the two should be harmonized, if possible, with a view to giving effect to a consistent legislative policy.
Where the special statute is later, it will be regarded as an exception to, or qualification of, the general one.
And where the general act is later, the special will be construed as remaining an exception to its terms, unless it is repealed by words or by necessary implication.
4. STATUTES: Filled Milk. Sections 12408 and 12413, Revised Statutes 1929, deal with milk to which has been added fat or oil other than milk fat.
Section 12409 deals with the same subject in a more minute and definite way and being special it prevails over Sections 12408 and 12413.
Considering the statutes as a whole it was the intent of the Legislature to prohibit the sale of filled milk, and that filled milk is only that milk to which has been added fat or oil other than milk fat so that the resulting product is an imitation of milk, cream or skim milk, and if the product does not come within the statutory definition of filled milk it can be lawfully sold in this State.
5. QUO WARRANTO: Return. Where relator in a quo warranto proceeding challenges the sufficiency of respondent's return and moves for judgment on the pleadings, the facts pleaded in the return must be taken as the facts in the case.
In a quo warranto proceeding, under the "filled milk" statutes, to prohibit a corporation from doing business in this State, where the respondent's return states that its products are wholesome, nutritious, uninjurious and beneficial food products and uniformly recognized as pure, setting out the details, and that the products comply in all respects with the Federal Food and Drug Laws and with all Missouri laws relating to and prohibiting the adulteration of food products, and such products were properly labeled in large type with the words: "NOT TO BE SOLD FOR EVAPORATED MILK," under the facts found in such return the products sold in this State do not come within the prohibition of the Missouri filled milk statutes.
OUSTER DENIED, PROCEEDING DISMISSED.
Roy McKittrick, Attorney General, Max Wasserman, Robert L. Hyder and Tyre W. Burton, Assistant Attorneys General, for relator; J.R. Baker, special counsel.
(1) The passage and approval of House Bill 652 (Secs. 12408-12412, inclusive) did not repeal the provisions of Senate Bill 338, (Secs. 12413, 12415), because (a) Repeals by implication are not favored. State ex rel. Wells v. Walker, 326 Mo. 1233, 34 S.W.2d 124; State ex rel. McDowell v. Smith, 334 Mo. 653, 67 S.W.2d 50; State ex rel. St. Louis Police Assn. v. Igoe, 340 Mo. 1166, 107 S.W.2d 929. (b) The two acts are not repugnant to each other and for a later statute to operate as a repeal by implication of an earlier one, there must be such manifest and total repugnance that the two cannot stand together. State ex rel. Peck Co. v. Brown, 340 Mo. 1189, 105 S.W.2d 909; State ex rel. City of Springfield v. Smith, 125 S.W.2d 883. (c) The manifest clerical error in what is now Section 12412 where the word "not" is omitted after the word "shall" in the following clause: "except that penalty shall be enforced for any such violation occurring within ninety days after this act becomes law," does not render the statute inoperative. It has long been the rule in this State that the meaning of words may be limited, restricted, or expanded by construction of the courts, when it becomes necessary in order to make the law harmonize with reason and properly express what was in fact intended by the lawmakers. To accomplish this purpose, words omitted may be read into the statute, and for the same reason, a word, phrase, or sentence may be read out of the statute. Lewis Sutherland Statutory Construction (2 Ed.), sec. 382; State ex rel. v. King, 44 Mo. 238; State ex rel. v. Sheehan, 269 Mo. 421, 190 S.W. 864; Stack v. General Baking Co., 283 Mo. 396, 223 S.W. 89; St. Louis v. Christian Bros. College, 257 Mo. 541, 165 S.W. 1057. (2) Neither the provisions of House Bill 652 nor Senate Bill 338, Laws 1923, pages 124 and 229, respectively, being now Sections 12408 to 12415, inclusive, Revised Statutes 1929, are invalid because the provisions of Section 28 of Article IV of the Missouri Constitution are violated when the following well recognized principles for ruling this question are considered: (a) Statutes are presumed to be constitutional and the burden is upon respondent to show beyond a reasonable doubt that they are unconstitutional. State v. Shelby, 333 Mo. 1036, 64 S.W.2d 269; Thomas v. Buchanan County, 330 Mo. 627, 51 S.W.2d 95. (b) This constitutional provision should be liberally construed. Young v. Greene County, 342 Mo. 1105, 119 S.W.2d 369. (c) Subject of act is single when all provisions relate to same subject, have natural connection therewith, and are incidents or means of accomplishing it. Hann v. Fitzgerald, 342 Mo. 1166, 119 S.W.2d 808; Massey-Harris Harvester Co. v. Federal Reserve Bank of K.C., 340 Mo. 1113, 104 S.W.2d 385. (d) Title which indicates character of act and its proper classification, and where neither public nor Legislature would likely have been misled regarding contents of act, is sufficient. Wilhite v. Rathburn, 332 Mo. 1208, 61 S.W.2d 708. (e) Where title to bill includes particulars which are not restrictive of general purpose of bill as set forth in title, but merely descriptive of some of the instrumentalities to be employed in effectuating general purpose of bill, bill may contain provisions germane to and within scope of its general purpose as declared in its title although not set forth in particulars expressed in title, and not out of harmony with them. Graves v. Purcell, 85 S.W.2d 543, 337 Mo. 574; State v. Wipke, 133 S.W.2d 358. (f) Where title of act expressly states it repeals prior act, title of original act must be considered in ruling the question involved. State ex rel. v. Calvird, 338 Mo. 601, 92 S.W.2d 184; Sherrill v. Brantley, 334 Mo. 497, 66 S.W.2d 529; State ex rel. v. Gideon, 277 Mo. 356, 210 S.W. 358. (g) After the lapse of many years during which an act has been acted upon as a valid law, objections to its validity on this ground will not be considered. Goodner v. Mosher, 314 Mo. 151, 282 S.W. 698. (h) Under this section each case must be decided on its own peculiar facts. Witzman v. Ry. Co., 131 Mo. 612, 33 S.W. 181. (3) The statutes under consideration do not violate the following provisions of the Missouri Constitution: Art. II, secs. 4, 30, Art. IV, subsec. 26, 32, sec. 53; Poole Creber Market Co. v. Breshears, 125 S.W.2d 23. (4) The statutes under consideration do not violate the Fourteenth Amendment to the Constitution of the United States. (5) The long established rule in Missouri is that the constitutionality or unconstitutionality of a statute is not a question of fact to be determined by the introduction of evidence. State v. Rich, 20 Mo. 396; State v. Cantwell, 179 Mo. 245. (6) The questions in issue in this case are now res adjudicata contrary to the position taken by respondent. Each and every issue raised in this case was raised or could have been raised in the case of Poole Creber Market Co. v. Breshears, 125 S.W.2d 23. Powell v. Joplin, 335 Mo. 562, 73 S.W.2d 408; State ex rel. v. Homer, 249 Mo. 76; Leahy v. Mercantile Trust Co., 296 Mo. 561, 247 S.W. 396. (7) Quo warranto is the proper remedy where a corporation persistently violates the laws of this State, abuses or perverts its charter, or obtains charter by fraud. The remedy adjudged is governed by sound judgment and discretion of the court. State ex inf. Miller v. St. Louis Union Trust Co., 335 Mo. 845, 74 S.W.2d 348; State ex rel. McKittrick v. Dudley Co., 340 Mo. 852, 102 S.W.2d 895; State ex rel. Barrett v. First Nat. Bank, 297 Mo. 397, 249 S.W. 619; State ex inf. Hadley v. Delmar Jockey Club, 200 Mo. 34, 92 S.W. 185.
Clark, Boggs, Peterson Becker, Howard B. Lang, Jr., and John C. Grover for respondent; Howard C. Knotts of counsel.
(1) The court should examine the facts in determining the constitutionality of the statutes under consideration. Where the existence of a rational basis for legislation depends upon facts beyond the sphere of judicial notice, such facts should be made the subject of judicial inquiry. State v. Rich, 20 Mo. 396; State v. Cantwell, 179 Mo. 245, 78 S.W. 569; United States v. Carolene Products Co., 304 U.S. 144, 58 Sup. Ct. 778, 82 L.Ed. 1234; Carolene Products Co. v. Thomson, 276 Mich. 172, 276 N.W. 608; Borden's Farm Products Co. v. Baldwin, 293 U.S. 194, 55 Sup. Ct. 187, 79 L.Ed. 281; Nashville, C. St. L. Ry. Co. v. Walters, 55 Sup. Ct. 486, 294 U.S. 405, 79 L.Ed. 949; Chastleton Corp. v. Sinclair, 264 U.S. 543, 44 Sup. Ct. 405, 68 L.Ed. 841; Polk Co. v. Glover, 305 U.S. 5, 59 Sup. Ct. 15, 83 L.Ed. 6; Smith v. Texas, 233 U.S. 630, 34 Sup. Ct. 681, 58 L.Ed. 1129; Weaver v. Palmer Brothers Co., 270 U.S. 402, 46 Sup. Ct. 320, 70 L.Ed. 654; Abie State Bank v. Weaver, 282 U.S. 765, 51 Sup. Ct. 352, 75 L.Ed. 690; Poole Creber Market Co. v. Breshears, 343 Mo. 1133, 125 S.W.2d 23; Mo. Pac. Railroad Co. v. Norwood, 283 U.S. 249, 51 Sup. Ct. 458, 75 L.Ed. 1010. (2) Sections 12408 and 12413, Revised Statutes 1929, the "broad sections," as applied to respondent's products, are unconstitutional in prohibiting the sale of the same in violation of Section 30 of Article II of the Constitution of Missouri and the Fourteenth Amendment to the Constitution of the United States, because: The Legislature has no constitutional authority to prohibit the manufacture and sale of wholesome foods when fairly sold, without fraud, upon their merits, merely because such foods may be used as a substitute for other foods. People v. Marx, 99 N.Y. 377; State v. Layton, 160 Mo. 491. (a) The statutes as applied to respondent's products are not sustainable as necessary to protect the public health. Hutchinson Ice Cream Co. v. Iowa, 242 U.S. 153, 37 Sup. Ct. 28, 61 L.Ed. 217; Hebe Co. v. Shaw, 248 U.S. 297, 39 Sup. Ct. 125, 63 L.Ed. 255; Poole Creber Market Co. v. Breshears, 343 Mo. 1133, 125 S.W.2d 23; State ex rel. Carnation Milk Products Co. v. Emery, 178 Wis. 147, 189 N.W. 564; Weaver v. Palmer Bros. Co., 270 U.S. 402, 46 Sup. Ct. 320, 70 L.Ed. 654; Carolene Products Co. v. Thomson, 276 Mich. 172, 267 N.W. 608; Fourteenth Amend., U.S. Const., Secs. 4, 30, of Art. II, Mo. Const.; Ex parte Alexander, 128 Cal.App. 651, 18 P.2d 410. (b) The statutes as applied to respondent's products are not sustainable as a preventive of fraud. Poole Creber Market Co. v. Breshears, 343 Mo. 1133, 125 S.W.2d 23; Plumley v. Massachusetts, 155 U.S. 461, 15 Sup. Ct. 154, 39 L.Ed. 223; Hebe Co. v. Shaw, 248 U.S. 297, 39 Sup. Ct. 125, 63 L.Ed. 255; United States v. Carolene Products Co., 304 U.S. 142, 58 Sup. Ct. 778, 82 L.Ed. 1234; Carolene Products Co. v. Evaporated Milk Assn., 93 F.2d 202; Carolene Products Co. v. Wallace, 27 F. Supp. 110; Carolene Products Co. v. Harter, 329 Pa. 49, 197 A. 627, 119 A.L.R. 325; Capital City Dairy Co. v. Ohio ex rel. Atty. Gen., 183 U.S. 238, 221 Sup. Ct. 120, 46 L.Ed. 171; State v. Addington, 12 Mo. App. 214, 77 Mo. 110; State v. Bockstruck, 136 Mo. 335; State ex rel. Carnation Milk Products Co. v. Emery, 178 Wis. 147, 189 N.W. 564; Powell v. Commonwealth of Penn., 127 U.S. 678, 8 Sup. Ct. 882, 32 L.Ed. 253; Tiedeman, Limitations of Police Powers, p. 296; State v. Layton, 160 Mo. 491; People v. Marx, 99 N.Y. 377. (c) Absolute prohibition of the manufacture and sale of a product is unconstitutional if regulation will protect the public from the anticipated injury. Here, regulation will suffice to protect the public because respondent's products are not injurious to the public, but on the contrary are admitted to be superior in food qualities to whole milk or condensed whole milk. Therefore absolute prohibition of a wholesome and nutritious food product when regulation would afford adequate protection to the public is arbitrary and unconstitutional. (d) A Legislature has no power to outlaw a useful and harmless food product. 11 Am. Jur., secs. 281, 291, pp. 1041, 1056; Fourteenth Amend., U.S. Const.; Secs. 4, 30, Art. II, Mo. Const.; Meyer v. Nebraska, 262 U.S. 390, 43 Sup. Ct. 625, 67 L.Ed. 1042; People v. Weiner, 271 Ill. 74, 110 N.E. 870; People v. Biesecker, 169 N.Y. 53; People v. Price, 257 Ill. 587; People v. Marx, 99 N.Y. 377; Carolene Products Co. v. Thomson, 276 Mich. 172, 267 N.W. 608; Weaver v. Palmer Bros. Co., 270 U.S. 402, 46 Sup. Ct. 230, 70 L.Ed. 654; Poole Creber Market Co. v. Breshears, 343 Mo. 1133, 125 S.W.2d 23. (3) Respondent's products are not prohibited by the Missouri Filled Milk Act (Secs. 12409, 12411, 12412). The act prohibits only foods fraudulently sold which cause injury when used as substitutes. Respondent's products are not fraudulently sold and are not "in imitation or semblance of milk," and therefore not within the prohibition of the Filled Milk Act. Sec. 12409, R.S. 1929; Laws 1923, p. 124. (a) Properly construed, the Missouri Filled Milk Act does not affect compounds which are fairly sold upon their own merit. State v. Shortell, 174 Mo. App. 153, 156 S.W. 991; People v. Arensberg, 103 N.Y. 388, 57 Am. Rep. 741; State of New York v. Guiton, 210 N.Y. 1, 103 N.E. 773, 53 L.R.A. (N.S. (1915a) 757; State v. Armour Packing Co., 124 Iowa 323; State of Wisconsin v. Meyer, 134 Wis. 156, 114 N.W. 501, 14 L.R.A. (N.S.) 1061; State v. Hanson, 118 Minn. 85, 136 N.W. 412, 40 L.R.A. (N.S.) 865; Jelke Co. v. Emery, 193 Wis. 311, 214 N.W. 369, 53 A.L.R. 463; Moxley v. Hertz, 216 U.S. 344, 30 Sup. Ct. 305, 54 L.Ed. 510; Cliff v. United States, 195 U.S. 139, 25 Sup. Ct. 1, 49 L.Ed. 139; Baltimore Butterine Co. v. Talmadge, 32 F.2d 904, affmd. 37 F.2d 1014; People v. Henning Co., 260 Ill. 554, 103 N.E. 530, 49 L.R.A. (N.S.) 1206; Commonwealth v. New England Maple Syrup Co., 217 Mass. 432, 105 N.E. 453. (b) Applicable rules of statutory construction. Natl. Labor Relations Board v. Jones Laughlin Steel Corp., 301 U.S. 1, 57 Sup. Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352; State v. Amer. Colony Ins. Co., 336 Mo. 406, 80 S.W.2d 876; 16 C.J.S., sec. 98, p. 234; 11 Am. Jur., sec. 97, p. 725; State v. Taylor, 133 S.W.2d 336; State v. Shortell, 174 Mo. App. 153, 156 S.W. 991; People v. Marx, 99 N.Y. 377. (c) Respondent's products are superior to milk in nutritive qualities, and in content of vitamins A and D as well as other vitamins found in milk, and therefore are not within the intent of the filled milk act and are not covered by the same. Poole Creber Market Co. v. Breshears, 125 S.W.2d 23; Church of the Holy Trinity v. United States, 143 U.S. 457, 12 Sup. Ct. 511, 36 L.Ed. 226; Carolene Products Co. v. Mahoney, 294 F. 902; United States v. Carolene Products Co., 304 U.S. 142, 58 Sup. Ct. 778, 82 L.Ed. 1234. (4) The application of the Missouri Filled Milk Act (Secs. 12409, 12411, R.S. 1929) to respondent's products is unconstitutional and void, being in violation of Section 30 of Article IV of the Constitution of Missouri and the Fourteenth Amendment to the Constitution of the United States, in depriving respondent of liberty and property without due process of law. Legislative prohibition of a wholesome, nutritious milk compound, superior to milk in every respect, including vitamin content, and fairly and honestly sold on its own merits, cannot be constitutionally supported. Poole Creber Market Co. v. Breshears, 343 Mo. 1133, 125 S.W.2d 23; United States v. Carolene Products Co., 304 U.S. 144, 58 Sup. Ct. 778, 82 L.Ed. 1234; Nashville, C. St. L. Ry. v. Walters, 294 U.S. 405, 415, 55 Sup. Ct. 486, 488, 79 L.Ed. 949; Dahnke-Walker Milling Co. v. Vondurant, 257 U.S. 282, 289, 42 Sup. Ct. 106, 66 L.Ed. 239; Poindexter v. Greenhow, 114 U.S. 270, 295, 5 Sup. Ct. 903, 29 L.Ed. 185; St. Louis, I.M. S. Ry. Co. v. Wynne, 224 U.S. 354, 32 Sup. Ct. 493, 56 L.Ed. 799; Kansas City So. Ry. Co. v. Anderson, 233 U.S. 325, 34 Sup. Ct. 599, 58 L.Ed. 983; Abie State Bank v. Weaver, 282 U.S. 772, 51 Sup. Ct. 252, 75 L.Ed. 690; Smith v. Ill. Bell Tel. Co., 282 U.S. 162, 51 Sup. Ct. 65, 75 L.Ed. 255; Chastleton Corp. v. Sinclair, 264 U.S. 543, 44 Sup. Ct. 405, 68 L.Ed. 841. (5) The law enforcement agencies of the State of Missouri, including the Commissioner of Agriculture, Attorney General, and the prosecuting attorneys, in their enforcement of Sections 12408 to 12415, Revised Statutes 1929, have deprived the respondent of its liberty and property without due process of law, and the equal protection of laws, and are enforcing the said statutes in a manner that abridges the privileges and immunities of respondent as a citizen of the United States, all in violation of the first section of the Fourteenth Amendment to the Constitution of the United States, Section 30, Article II, of the Constitution of Missouri, and Section 4, Article II of the Constitution of Missouri. 12 Am. Jur., sec. 566, p. 257; Yick Wo v. Hopkins, 118 U.S. 366, Sup. Ct. 1064, 30 L.Ed. 225; Sunday Lake Iron Co. v. Wakefield, 247 U.S. 350, 38 Sup. Ct. 495, 62 L.Ed. 1154; Ah Sin v. Whittman, 198 U.S. 500, 25 Sup. Ct. 756, 49 L.Ed. 1142; K. L. Oil Co. v. Oklahoma City, 14 F. Supp. 492. (6) Section 12408 (H.B. 652, Laws 1923, p. 124) and Section 12413 (S.B. 338, Laws 1923, p. 229), Revised Statutes 1929, are unconstitutional and void because the titles to both the original acts of the Legislature of which the statutes are a part do not clearly express the subjects of the acts, in violation of Section 28 of Article IV of the Constitution of Missouri. The title to H.B. 652, Laws 1923, p. 124, does not disclose, when read by itself: (a) That the purpose of the act is to prohibit the sale, possession for sale or exchange of milk, cream, skim milk, buttermilk, condensed milk, evaporated milk and fluid derivatives thereof containing fats other than milk fat. Laws 1919, p. 120, 1923, p. 124.
Langdon R. Jones for Missouri Farmers Assn., amicus curiae.
(1) As heretofore shown, the respondent in this case was the real party in interest in the case of Poole Creber Market Company v. Breshears et al., No. 35,244, decided by Division No. 2 of this court and reported in 125 S.W.2d 23. This court, in the disposition of this case, will take judicial notice of the abstract of the record and the opinion of this court in the Poole Creber Market Company case. This being true all of the issues in this case are now res judicata. State ex rel. Ponath v. Hamilton, 240 S.W. 449; State ex rel. Jones v. Miller, 221 S.W. 89; Meyer v. Goldsmith, 196 S.W. 736; Runnels v. Lasswell, 272 S.W. 1035; Shelly v. Ozark Pipe Line Corp., 2 S.W.2d 121; Divide Creek Irrigation District v. Hollingsworth, 72 F.2d 863. (2) The case of Poole Creber Market Company v. Breshears et al., 125 S.W.2d 23, constitutes res judicata in this case adversely to the contentions of respondent. Not only all questions that were actually presented and decided by the court, but in addition all questions that could have been presented and decided are res judicata. Powell v. Joplin, 73 S.W.2d 408; Leahy v. Mercantile Trust Co., 247 S.W. 404; Huselton v. Commerce Trust Co., 64 S.W.2d 764; State ex rel. Snow Steam Pump Works v. Homer, 249 Mo. 76. In addition, as to some of the questions sought to be presented, such questions are also res judicata. Carolene Products Company v. Wallace, 27 F. Supp. 110; Carolene Products v. Wallace, 59 Sup. Ct. 1022, 307 U.S. 612; Carolene Products Company v. Evaporated Milk Assn., 93 F.2d 205.
Stockard Stockard for Missouri Farm Bureau Federation, Missouri Guernsey Breeders Association, Independent Dairies, Inc., Missouri Holstein Association, and their affiliate associations, amici curiae.
Waldo Edwards for Missouri Illinois Food Distributors, Inc., St. Louis Retail Grocers Assn., Independent Super Markets of Greater St. Louis, Carder Grocery Company, Associated Grocers, Inc., St. Joseph, Associated Grocers, Inc., Kansas City, Associated Grocers, Inc., Springfield, Associated Grocers, Inc., Joplin, Howard Roberts, Walters Grocery, Richards Brothers, Mackie's Markets, Inc., Keifer Wholesale Grocer Company and Stanley Brooks Stores, amici curiae; D.L. Dempsey of counsel.
This is an original proceeding in quo warranto brought by the Attorney General of this State to prohibit the respondent, a Michigan corporation, from doing business in this State, charging that it was violating Sections 12408, 12409, 12411, 12413 and 12415, Revised Statutes of Missouri, 1929. These statutes were referred to in the briefs and the oral arguments of this case as the "filled milk" statutes. To the respondent's return the relator filed a motion for judgment on the pleadings.
Respondent's products are sold in this State under the trade names of "New Vitamin A Carolene" and "New Vitamin A Milnut," and are compounds made from the following natural substances in their natural states: (1) skimmed milk, (2) pure, refined bland cocoanut oil, and (3) pure natural concentrates of vitamins A and D.
Respondent contends that in conducting its business in this State it does not violate the above named sections, and if it does so, these sections contravene both the Federal and State Constitutions.
Section 12408 reads: "It shall be unlawful for any person, firm or corporation, by himself or itself, his or its agent or servant, or as the servant or as agent of another, to manufacture, sell or exchange, or have in possession with the intent to sell or exchange, any milk, cream, emulsified cream, skim milk, buttermilk, condensed or evaporated milk, powdered milk, condensed skim milk, or any of the fluid derivatives thereof, or any of them, to which has been added any fat or oil other than milk fat, either under the name of said product or articles of the derivatives thereof, or under any fictitious or trade name whatsoever."
Section 12409 reads: "The term `filled milk' means any milk, cream or skim milk, whether or not condensed, evaporated, concentrated, powdered, dried or desiccated, to which has been added, or which has been blended or compounded with, any fat or oil other than milk fat, so that the resulting product is in imitation or semblance of milk, cream or skim milk, whether or not condensed, evaporated, concentrated, powdered, dried or desiccated, which has been melted or refined by heating, boiling or mixing, Provided that the above definition shall not include any distinctive proprietary food compound, not readily mistaken in tests for milk or cream, or for evaporated, condensed or powdered milk or cream: Provided, however, that such compound is prepared and designed for feeding infants and young children and customarily used on the order of a physician; is packed in individual cans containing not more than sixteen and one-half ounces and bearing the label in bold type, that the contents are to be used only for said purposes; is shipped in interstate or foreign commerce exclusively to physicians, wholesale or retail druggists, orphan asylums, child welfare associations, hospitals and similar institutions and generally distributed by them."
Section 12410 defines "emulsified cream." Section 12411 prohibits the use of "emulsified cream" (not here involved) and contains this declaration: "It is hereby declared that filled milk, and emulsified cream as herein defined, are adulterated articles of food injurious to the public health and its sale constitutes a fraud upon the public." Section 12412 provides penalties for violation of Sections 12407 to 12411 inclusive. Section 12407 establishes standards for milk and is not challenged as invalid. It is not involved in this case.
Section 12413 is similar to Section 12408, except that it does not name emulsified cream. It was a part of a senate bill enacted at the same session (1923) as the house bill which includes Sections 12408 to 12412. The senate bill was approved April 2, 1923, while the house bill was approved three days later. What is now Section 12415 was the penalty clause of the senate bill. In both acts of 1923, violation was made a misdemeanor punishable by fine or jail imprisonment or both, but the extent of the permissible punishment differs. This difference in the punishment authorized will not need to be considered in this case.
In the case of Poole Creber Market Co. v. Breshears, 343 Mo. 1133, 125 S.W.2d 23, the constitutionality of the above named sections was before us, that not their construction. In that case, the plaintiff who had been selling the respondent's products, which at that time did not contain vitamins A and D, sought to enjoin the enforcement of these sections because they were unconstitutional. We said (l.c. 25): "Upon final hearing the circuit court found for the defendants, holding the statute valid, and dismissed plaintiff's bill. Plaintiff appealed. The question presented here is whether or not said statutory provisions are valid. If they are the judgment below was right." (Italics ours.) Thus, we see that the Poole Creber case is no aid to us in construing the filled milk statutes of this State.
Standing alone and literally construed, Section 12408, supra, prohibits the sale of any milk, whole or skim milk to which has been added any fat or oil other than milk fat. Section 12409 defines filled milk to mean "any milk, cream or skim milk, . . . to which has been added, . . . any fat or oil other than milk fat, so that the resulting product is in imitation or semblance of milk, cream or skim milk . . . Provided that the above definition shall not include any distinctive proprietary food compound, not readily mistaken in tests for milk or cream, or for evaporated, condensed or powdered milk or cream: Provided, however, that such compound is prepared and designed for feeding infants and young children and customarily used on the order of a physician; is packed in individual cans containing not more than sixteen and one-half ounces and bearing the label in bold type, that the contents are to be used only for said purposes; is shipped in interstate or foreign commerce exclusively to physicians, wholesale or retail druggists, orphan asylums, child welfare associations, hospitals and similar institutions and generally distributed by them." (Italics ours.)
So, under Section 12409, supra, skim milk to which has been added fat or oil other than milk fat can be sold, provided the resulting product is not "in imitation or semblance of milk, cream or skim milk." Even milk to which fat or oil is added and which is in imitation or semblance of milk, cream or skim milk can be sold, provided it is a "distinctive proprietary food compound designed for feeding infants and young children" and customarily used on the order of a physician, packed in cans containing not more than sixteen and one-half ounces, and shipped in interstate or foreign commerce exclusively to physicians, druggists, orphan asylums, child welfare associations, etc. Section 12410 deals with emulsified cream which is not involved in this case. Section 12411 declares "that filled milk and emulsified cream as herein defined, are adulterated articles of food injurious to the public health." Section 12412 is a penalty section.
We will undertake first to determine the intention of the Legislature in passing the house bill of 1923.
It is a cardinal rule of construction that every word, clause, sentence and section of an act must be given some meaning unless it is in conflict with the legislative intent. [State v. Wipke et al., 345 Mo. 283, 133 S.W.2d 354; State ex rel. Kansas City Power Light Co. v. Smith, 342 Mo. 75, 111 S.W.2d 513; Holder v. Elms Hotel Co., 338 Mo. 857, 92 S.W.2d 620, 104 A.L.R. 339.] "It is the duty of the court, in construing statutes which appear to be in conflict, to reconcile them, if possible, with the general legislative purpose." [Dysart v. City of St. Louis, 321 Mo. 514, 11 S.W.2d 1045, l.c. 1050, 62 A.L.R. 762.] With these rules of construction in mind, we believe the apparent conflict between Section 12408, supra, and Section 12409 can be reconciled, and reading these two sections together we have come to the conclusion the Legislature sought to prohibit the sale, manufacture or exchange of milk, or skim milk blended with fat or oil other than milk fat when the resulting product is in imitation or semblance of milk.
To hold that there is irreconcilable conflict between these two sections (which we have just held to be to the contrary), we would be forced to reach the same conclusion under the rule announced in the case of State ex rel. Greene County v. Gideon, 273 Mo. 79, 199 S.W. 948, which holds that where there is irreconcilable conflict between two different parts of the same act, as a rule the last in order of position will control unless there is some special reason for holding to the contrary. Such reason does not exist in this case.
Now, in regard to the senate bill, Section 12413, we have already found that it is very similar to Section 12408, with the exception that it does not name emulsified cream. It is our duty to keep the legislative intent in mind, if it can be ascertained, and the whole act, or such portions thereof as are pari materia should be construed together. [Holder v. Elms Hotel Co., supra.]
"Where there is one statute dealing with a subject in general and comprehensive terms and another dealing with a part of the same subject in a more minute and definite way, the two should be read together and harmonized, if possible, with a view to giving effect to a consistent legislative policy; but to the extent of any necessary repugnancy between them the special will prevail over the general statute. Where the special statute is later, it will be regarded as an exception to, or qualification of, the prior general one; and where the general act is later, the special will be construed as remaining an exception to its terms, unless it is repealed in express words or by necessary implication." [Quoted with approval in the case of State ex rel. Buchanan County v. Fulks, 296 Mo. 614, 247 S.W. 129, l.c. 132.]
Sections 12408 and 12413 are general statutes dealing with milk to which has been added fat or oil other than milk fat. Section 12409 deals with the same subject in a more minute and definite way, and being special it will prevail over Sections 12408 and 12413. Considering the statutes dealing with this subject as a whole, we conclude the intent of the Legislature was to prohibit the sale of filled milk, and that filled milk is only that milk to which has been added fat or oil other than milk fat "so that the resulting product is in imitation or semblance of milk, cream or skim milk," and that if the product does not come within the statutory definition of filled milk it can be lawfully sold in this State.
This view is in harmony with the decision of the United States Supreme Court in the case of the United States v. Carolene Products Co., 304 U.S. 144, 58 Sup. Ct. 778, 82 L.Ed. 1234, wherein that court held that the Federal filled milk statutes (Chap. 262, 42 Stat. at L. 1486, 21 U.S.C.A., Sections 61-63) are inoperative unless the product is "in imitation or semblance of milk, cream or skim milk, whether or not condensed." The Federal act is almost identical with Section 12409 of our act.
As previously stated, Section 12411 declares "that filled milk, and emulsified cream as herein defined, are adulterated articles of food injurious to the public health and its sale constitutes a fraud upon the public." We held in the Poole Creber case, supra, that this declaration was only prima facie evidence of that fact, and not conclusive.
Respondent contends that its products, New Vitamin A Carolene and New Vitamin A Milnut, do not come within the statutory denition of filled milk. In other words, its products are not "in imitation or semblance of milk, cream or skim milk."
Where the relator in a quo warranto proceeding challenges the sufficiency of respondent's return and moves for judgment on the pleadings, as was done in this case, the facts pleaded in the return must be taken as the facts in the case. [State ex rel. Barker v. Merchants' Exchange, 269 Mo. 346, 190 S.W. 903; State ex inf. Shartel v. Mo. Utilities Co., 331 Mo. 337, 53 S.W.2d 394, 89 A.L.R. 607.]
The facts as found in respondent's return are as follows: That New Vitamin A Carolene and New Vitamin A. Milnut are identical products, sold under different trade names; that they are wholesome, nutritious, uninjurious, unadulterated and beneficial food products; that each of the ingredients is uniformly recognized as pure, wholesome food; that respondent's products are manufactured in a modern sanitary creamery of the Litchfield Creamery Company at Litchfield, Illinois; that the ingredients are compounded by a special process and evaporated in the same manner as whole or skim milk is evaporated in the manner of evaporated milks; that by evaporation the solids of the mixture are concentrated two and one-quarter times solely from the loss of water and then the products are put in hermetically sealed cans holding fourteen and one-half ounces of respondent's products, which contain 2000 U.S.P. units of vitamin A and 400 U.S.P. units of vitamin D; that respondent's products are pure milk compounds containing approximately the following chemical constituents:
Fats ................................................ 6.00 Protein ............................................. 7.75 Carbohydrates ....................................... 10.72 Mineral Salts ....................................... 1.76 Water ............................................... 73.88
The return also states that respondent's products comply in all respects with the Federal food and drug laws and with all Missouri laws relating to and prohibiting the adulteration and misbranding of food products, that respondent's products are plainly and properly labeled; and that on the label in large type are the words: "NOT TO BE SOLD FOR EVAPORATED MILK."
The return further states:
"That New Vitamin A Carolene and New Vitamin A Milnut is a unique food compound, manufactured and compounded from the following natural substances in their natural states: (1) skimmed milk, (2) pure, refined, bland cocoanut oil, and (3) pure, natural concentrates of vitamins A and D. That in the compounding of these natural products no other substance is added and nothing is done, designed to or which does make the resulting product an imitation or semblance of milk, cream or skimmed milk in any of their forms. That said products are not manufactured, compounded, sold or used as or in imitation or semblance of milk, cream or skimmed milk in any of their forms; but on the contrary, said products are compounded, as aforesaid for the sole purpose of creating a unique food compound, wholesome and nutritious, and superior to milk in any of its forms as a human food, and unanimously accepted as a wholesome, nutitious, growth-promoting food compound containing more than adequate uniform vitamin content; that said products are superior to milk or evaporated milk in uniformity and quantity of all vitamins.
"That in the compounding of said products the pure skimmed milk, the cocoanut oil and the vitamin concentrates are left undamaged and undisguised in their natural states, except for the evaporation of water therefrom. That the appearance, taste, flavor, color and other characteristics of the compound, are the appearance, taste, flavor and color of the natural products used in the manufacture thereof and do not result from any artificial treatment or addition of substances.
". . . That not only is there no intent to imitate or simulate milk, cream or skimmed milk, but on the contrary, all persons handling and dealing in said products, from the manufacturer to the retailer, carefully compound, sell and handle these products in hermetically sealed tins bearing labels which prominently and boldly state the nature of the compound and which prominently and boldly state that said product is a unique cooking compound and not to be sold as or for evaporated milk."
Under the facts found in respondent's return we have reached the conclusion that respondent's products sold in this State do not come within the prohibition of our filled milk statute, set out above.
From the facts set out in respondent's return, we find that respondent's products are wholesome, nutritious, uninjurious, unadulterated and beneficial food products. This was admitted to be true by relator during the oral argument of this case in this court.
Nor do we find from the return that the respondent's products are sold in imitation or semblance of milk, but on the contrary these products are a unique cooking compound and are not sold as or for evaporated milk.
Not only does the label on respondent's products plainly state that it is not to be sold for evaporated milk and that it is "especially prepared for coffee, baking and for other culinary purposes," but the return also states that respondent's dealers do not sell these products for evaporated milk. From the facts above set out we are unable to see how the buying public could be deceived into thinking that they were buying milk when purchasing respondent's products.
It therefore will be unnecessary to discuss the constitutional questions raised by respondent.
For the reasons above stated, ouster is denied, and the proceeding dismissed. All concur.