‘WHITNEY LAYTON, Plff. in Err.,

v.

STATE OF MISSOURI.

(See S. C. Reporter’s ed. 356-361.)

Error to state court — Federal question.

a state statute Is unconstitutional and void, relates only to the power of the state legis¬ lature under the state Constitution, and raises no Federal question which will give the Supreme Court of the United States jurisdiction to review a judgment of the state court sustaining the validity of the statute.

state statute which Is claimed to violate the Federal Constitution is not reviewable in the Supreme Court of the United States, where the state court declined to ppss on the Fed-

Note. — On writs of error from United States

Supreme Court to state courts — see notes to

Hamblin v. Western Land Co. 37 L. ed. U. S.

267 ; Kipley v. Illinois ex ret. Akin, 42 L. ed.

U. S. 998 ; and Re Buchanan, 39 L. ed. U. S.

214

eral question because it was not raised In the trial court as required by the state prac¬ tice.

[No. 69;]

Submitted November 6, 1902. Decided De¬ cember 22, 1902.

IN ERROR to the Supreme Court of the State of Missouri to review a judgment of Division No. 2 of that court which af¬ firmed a conviction in the St. Louis Court of Criminal Correction of a violation of a statute to prevent the use of unhealthy chemicals in articles to be used in the prep¬ aration of food. Dismissed.

See same case below, 160 Mo. 474, 61 S.

W. 171.

Statement by Mr. Chief Justice Fuller: Layton was prosecuted in the St. Louis court of criminal correction, on informa¬ tion, for violation of an act of the general assembly of the state of Missouri, entitled “An Act to Prevent the Use of Unhealthy Chemicals or Substances in the Preparation or Manufacture of Any Article Used, or to be Used, in the Preparation of Food,” ap¬ proved May 11, 1899, and reading as fol¬ lows :

“See. 1. That it shall be unlawful for any person or corporation doing business in this state to manufacture, sell, or offer to sell any article, compound, or preparation, for the purpose of being used, or which is intended to be used, in the preparation * of

food, in which article, compound, or prepa¬ ration there is any arsenic, calomel, bis¬ muth, ammonia, or alum.

“Sec. 2. Any person or corporation vio¬ lating the provisions of this act shall be deemed guilty of a misdemeanor, and shall, upon Conviction, be fined not less than $100, which shall be paid into and become a part of the road fund of the county in which such fine is collected.” Mo. Laws 1899, p.

The information charged that the defend¬ ant, in the city of St. Louis, then and there doing business in the state of Missouri, un¬ lawfully manufactured, sold, and offered for sale a certain compound and prepara¬ tion for the purpose of its being used, and with intent that it should be used, in the preparation of food, and that said com¬ pound and preparation so manufactured and sold contained alum.

Defendant pleaded not guilty, ajnd, a jury being waived, the cause was submitted to the court for trial.

The compound and preparation consisted of two dozen one-pound cans of baking powder, and the facts as charged in the in¬ formation were admitted; but defendant contended that he should not be convicted, because' the statute was unconstitutional; and he offered voluminous evidence tending to show the details of the manufacture of baking powders of various kinds, and among them baking powders containing alum, as well as the history of the business of the manufacturing, selling, and using

187 TJ. S.

Layton v. Missouri.

alum baking powders, which tended to es¬ tablish that that busin.ess was, and had been for many years, very extensive in Mis¬ souri and in the United States, and that defendant, for some years before the stat¬ ute was enacted, had been engaged in that business. He further offered evidence to the effect that the use of alum in baking powders was wholesome, useful, and eco¬ nomical; and that most grocers in Missouri kept and sold alum baking powders, and no harm had been known to result from their use in the preparation of food. All this evidence, on objection by the state for incompetency, irrelevancy, and immaterial¬ ity, was excluded by the court, and defend¬ ant excepted.

Defendant asked the court to give six sep¬ arate instructions predicated on the admis-

sion of the testimony which had been *ex- cluded, in which the court was requested to declare the law to be that defendant must be acquitted, if the court sitting as a jury found the facts to be as the excluded evi¬ dence tended to show. These instructions were refused and defendant excepted.

The court found defendant guilty as charged in the information, and assessed the penalty at $100. Motions for new trial and in arrest were made and overruled, and exceptions taken. Judgment having been entered, defendant perfected an appeal to the supreme court of the state of Missouri, and the cause was docketed in division No. 2 of that court, being the criminal division. The judgment was affirmed (160 Mo. 474, Cl S. W. 171), and thereupon defendant moved that the cause be transferred to the court in banc, which motion was overruled. The case was then brought here on writ of error.

Messrs. Silas H. Strawn and James L. Blair submitted the cause for plaintiff in error. Messrs. James H. Seddon and Stan¬ ley Stoner were with them on the brief.

Mr. E. C. Crow submitted the cause for defendant in error.

Mr. Chief Justice Fuller delivered the opinion of the court:

While it appears from the proceedings on the trial and the grounds assigned for the motion for new trial, that the unconstitu¬ tionality of the act was relied on in defense, the record does not show that it was con¬ tended in the trial court that the act was in contravention of the Constitution of the United States; and it is settled that the ob¬ jection in the state courts that an act of the state is “unconstitutional and void” re¬ lates only to the power of the state legisla¬ ture under the state Constitution. Miller v. Cornwall R. Co. 168 U. S. 131, 42 L. ed. 409, 18 Sup. Ct. Rep. 34; Jacobi v. Ala¬ bama, 187 U. S. 133, ante, 106, 23 Sup. Ct. Rep. 48.

In the supreme court of Missouri, divi¬ sion No. 2, Layton filed his statement and brief, which brief contained an assignment of errors, as required by the rules of that

court. Four terrors were assigned, the third of which was that “the court erred in 187 IT. S.

357-360

refusing to declare that the law under which the defendant was convicted was un¬ constitutional and void.” This assignment was followed by points one of which was that “the law under which the defendant was convicted conflicts with the 14 th Amendment to the Constitution of the United States, which guarantees to every man the equal protection of the law;” and these points were accompanied by printed arguments, in which it was insisted that the law violated “the guaranties of the Consti¬ tutions of the state of Missouri and of the United States, in that it deprives the appel¬ lant of his liberty and his property without due process of law.”

The supreme court, however, did not in terms pass on the question whether the act was in contravention of the Constitution of the United States, and, on the contrary, said that its constitutionality was assailed on two grounds, namely : that" it violated the provisions of § 28 of article 4 of the Consti¬ tution of Missouri, providing that no bill “shall contain more than one subject, which shall be clearly expressed;” and that it con¬ flicted with §§ 4 and 30 of article 2 of that Constitution, providing “that all persons have a natural right to life, liberty, and the enjoyment of the gains of their own indus¬ try; that to give security to these things is the principal office of government . . .;”

and “that no person shall be deprived of life, liberty, or property without due proc¬ ess of law.”

It was held that when an act of the leg¬ islature is attacked as unconstitutional be¬ cause invading the right of the citizen to use his faculties in the production of an article for sale for food or drink, the rule of construction that legislative acts should not be declared void “unless the violation of the Constitution is so manifest as to leave no room for reasonable doubt,” required the test of constitutionality to be that “if it he an article so universally conceded to be wholesome and innocuous that the court may take judicial notice of that fact, the legislature, under the Constitution, has no right to prohibit it; but if there is a dis¬ pute as to the fact of its wholesomeness for food or drink, then the legislature can either regulate or prohibit it;” and the va¬ lidity of the act was sustained.

*The decision was strictly a decision sus-[36P taining its validity when tested by the pro¬ visions of the state Constitution, and what¬ ever the similarity between the language of those provisions and that of the 14th Amendment, the state court cannot be re¬ garded as having decided the Federal ques¬ tion now suggested because necessarily in¬ volved in the case, if it appears from the record that it was not called upon to do so, and that its decision rested on another ground.

After judgment was entered affirming the judgment of the trial court, defendant moved that the cause be transferred to the court in banc, and the motion was denied.

By the Constitution of Missouri, the su¬ preme court was divided into two divisions;

215

360-862 Supreme Court of

division No. 1, consisting of four judges, and division No. 2, consisting of three judges, the latter having exclusive cogni¬ zance of all criminal causes ; and it was pro¬ vided that cases, in certain circumstances, among others when a Federal question was involved, on the application of the losing party, should be transferred to a full bench for decision. Duncan v. Missouri, 152 U.

S. 377, 38 L. ed. 485, 14 Sup. Ct. Rep. 570; Moore v. Missouri , 159 U. S. 678, 40 L. -ed. 303, 16 Sup. Ct. Rep. 179. And see Mis¬ souri, K. cC- T. R. Co. v. Elliott, 184 U. S. 530, 46 L. ed. 673, 22 Sup. Ct. Rep. 46, as to exclusive appellate jurisdiction of state supreme court over cases involving consti¬ tutional questions.

It thus appears that the supreme court, not only by declining to consider the con¬ tention in the brief and argument in respect of the 14th Amendment, but by denying the motion to transfer the cause, was of opin¬ ion that the validity of the statute was not so drawn in question for repugnancy to the Constitution of the United States as to re¬ quire decision as to its validity in that view.

The rules of the court provided: “The brief filed by appellant shall distinctly and separately allege the errors committed by the inferior court, and no reference will be permitted at the argument to the errors not thus specified, unless for good cause shown the court shall otherwise direct.” Rule 15, cl. 3, 160 Mo. appx. iv., 16 S. W. vi.

By rule of division No. 2, in criminal cases, printed, statements containing assign¬ ment of errors and brief of points of argu¬ ment were required, or, in prosecutions in forma pauperis, the same in typewriting. 160 Mo. appx. vi., 47 S. W. v.

‘Errors were so assigned, but the only one of them which referred to the constitution¬ ality of the act was the third, stating that “the court erred in refusing to declare that the law under which the defendant was con¬ victed was unconstitutional and void.” This related to the state Constitution, and the court so treated it, and confined its de¬ cision to the errors specified. Whether it was obliged to do this is not material, as the court in any event proceeds on the rec¬ ord of the trial court for errors committed there. Exceptions in criminal cases occupy the same footing as in civil. State v. Cant- lin, 118 Mo. Ill, 23 S. W. 1091; State v. Sacre, 141 Mo. 64, 41 S. W. 905; State v. Laycock, 141 Mo. 274, 42 S. W. 723; State v. Barton, 142 Mo. 450, 44 S. W. 239.

And it has been repeatedly laid down by the supreme court of Missouri, in dispos¬ ing of questions of jurisdiction as between itself and intermediate courts of appeal, that “the appellate jurisdiction of the su¬ preme court contemplates a review only of the matters submitted to and examined and determined by the trial court. Hence it is well settled that this court has no jurisdic¬ tion of an appeal, on the ground that a con¬ stitutional question is involved, unless the question was raised in and submitted to the trial court.” Browning v. Powers, 142 Mo. 216

the United States. Oct. Term,

322, 44 S. W. 224; Bennett v. Missouri P.

R. Co. 105 Mo. 645, 16 S. W. 947; Shew- alter v. Missouri P. R. Co. 152 Mo. 551, 54

S. W. 224.

As we observed in Jacobi’s Case, we can¬ not interfere with the action of the highest court of a state in adhering to the usual course of its judgments, and we have fre¬ quently ruled that this court cannot review the final judgments of tne state courts on the ground that the validity of state enact¬ ments under the Constitution of the United States had been adjudged, where those courts “did nothing more than decline to pass upon the Federal question because not raised in the trial court, as required by the state practice.” Erie R. Co. v. Purdy, 185 U. S. 148, 154, 46 L. ed. 847, 850, 22 Sup. Ct. Rep. 605, 607.

This case falls within that rule, and the writ of error is dismissed.