US SUPREME COURT DECISIONS

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 chanrobles.com-red

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.