Where the record does not show that it was contended in the
state court that a state law under which the plaintiff in error was
convicted was in contravention of the Constitution of the United
States, the objection that the law is unconstitutional must be
regarded as relating only to the constitution of the state.
Where the highest court of a state sustains the validity of a
statute of the state when tested by the provisions of the
constitution of that state, it cannot be regarded as having decided
a federal question because the provisions of the state constitution
are similar to those of the Fourteenth Amendment, if it appears
from the record that it was not called upon to do so and its
decision rested upon another ground.
When the highest court of a state holds that it has no
jurisdiction of an appeal on the ground that a constitutional
question is involved unless the question was raised in, and
submitted to, the trial court, this Court cannot interfere with the
action of the state court in adhering to that conclusion.
Nor can this Court review the final judgment of the state courts
on the ground that the validity of state enactments under the
Constitution of the United States has been adjudged when those
courts have done nothing more than to decline to pass on the
federal question because not raised in the trial court as required
by the state practice.
See also Jacobi v. Alabama, decided this term, p.
187 U. S. 133,
ante.
Layton was prosecuted in the St. Louis Court of Criminal
Correction, on information, 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," approved May 11, 1899, and reading as follows:
"SEC. 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
Page 187 U. S. 357
of food, in which article, compound, or preparation there is any
arsenic, calomel, bismuth, ammonia, or alum."
"SEC. 2. Any person or corporation violating the provisions of
this act shall be deemed guilty of a misdemeanor and shall, upon
conviction, be fined not less than one hundred dollars, which shall
be paid into and become a part of the road fund of the county in
which such fine is collected."
Laws, Missouri, 1899, p. 170.
The information charged that the defendant, in the City of St.
Louis, then and there doing business in the State of Missouri,
unlawfully manufactured, sold, and offered for sale a certain
compound and preparation for the purpose of its being used, and
with intent that it should be used, in the preparation of food, and
that said compound and preparation so manufactured and sold
contained alum.
Defendant pleaded not guilty, and, 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 information
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 alum baking powders, which tended
to establish that that business was, and had been for many years,
very extensive in Missouri and in the United States, and that
defendant, for some years before the statute 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
economical, 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 immateriality, was
excluded by the court, and defendant excepted.
Defendant asked the court to give six separate instructions
predicated on the admission of the testimony which had been
Page 187 U. S. 358
excluded, 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 evidence 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, 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.
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
unconstitutionality of the act was relied on in defense, the record
does not show that it was contended in the trial court that the act
was in contravention of the Constitution of the United States, and
it is settled that the objection in the state courts that an act of
the state is "unconstitutional and void" relates only to the power
of the state legislature under the state constitution.
Miller
v. Cornwall Railroad Company, 168 U.
S. 131;
Jacobi v. Alabama, 187 U.
S. 133..
In the Supreme Court of Missouri, division No. 2, Layton filed
his statement and brief, which brief contained an assignment of
errors, as required by the rules of that court. Four
Page 187 U. S. 359
errors were assigned, the third of which was that "the court
erred in refusing to declare that the law under which the defendant
was convicted was unconstitutional and void." This assignment was
followed by points one of which was that
"the law under which the defendant was convicted conflicts with
the Fourteenth 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 Constitutions of the State of Missouri
and of the United States in that it deprives the appellant 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 section 28 of article 4 of the
Constitution of Missouri, providing that no bill "shall contain
more than one subject, which shall be clearly expressed," and that
it conflicted with sections 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 industry; 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 process of law."
It was held that, when an act of the legislature is attacked as
unconstitutional because 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 be 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 dispute as to the fact of its wholesomeness for
food or drink, then the legislature can either regulate or prohibit
it,"
and the validity of the act was sustained.
Page 187 U. S. 360
The decision was strictly a decision sustaining its validity
when tested by the provisions of the state constitution, and
whatever the similarity between the language of those provisions
and that of the Fourteenth Amendment, the state court cannot be
regarded as having decided the federal question now suggested
because necessarily involved 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 supreme court was divided
into two divisions; division No. 1, consisting of four judges, and
division No. 2, consisting of three judges, the latter having
exclusive cognizance of all criminal causes, and it was provided
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;
Moore v. Missouri, 159 U. S. 678.
And see Railway Company v. Elliott, 184 U.
S. 530, as to exclusive appellate jurisdiction of state
supreme court over cases involving constitutional questions.
It thus appears that the supreme court, not only by declining to
consider the contention in the brief and argument in respect of the
Fourteenth Amendment, but by denying the motion to transfer the
cause, was of opinion that the validity of the statute was not so
drawn in question for repugnancy to the Constitution of the United
States as to require 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.
By rule of division No. 2, in criminal cases, printed statements
containing assignment of errors and brief of points of argument
were required, or, in prosecutions
in forma pauperis, the
same in typewriting. 160 Mo. appx. vi.
Page 187 U. S. 361
Errors were so assigned, but the only one of them which referred
to the constitutionality of the act was the third, stating that
"the court erred in refusing to declare that the law under which
the defendant was convicted was unconstitutional and void." This
related to the state constitution, and the court so treated it, and
confined its decision to the errors specified. Whether it was
obliged to do this is not material, as the court, in any event,
proceeds on the record of the trial court for errors committed
there. Exceptions in criminal cases occupy the same footing as in
civil.
State v. Cantlin, 118 Mo. 111;
State v.
Sacre, 141 Mo. 64,;
State v. Laycock, 141 Mo. 274;
State v. Barton, 142 Mo. 450.
And it has been repeatedly laid down by the Supreme Court of
Missouri, in disposing of questions of jurisdiction as between
itself and intermediate courts of appeal, that
"the appellate jurisdiction of the supreme 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
jurisdiction of an appeal, on the ground that a constitutional
question is involved, unless the question was raised in and
submitted to the trial court."
Browning v. Powers, 142 Mo. 322;
Bennett v. Railway
Co., 105 Mo. 645;
Shewalter v. Railway Co., 152 Mo.
551.
As we observed in
Jacobi's case, p.
187 U. S. 133,
ante, we cannot interfere with the action of the highest
court of a state in adhering to the usual course of its judgments,
and we have frequently ruled that this Court cannot review the
final judgments of the state courts on the ground that the validity
of state enactments 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 Railroad
Company v. Purdy, 185 U. S. 148,
185 U. S.
154.
This case falls within that rule, and the writ of error is
Dismissed.
