the instrument. But, on the other hand, there is no case which goes to the extent of saying that even an unnecessary allegation that is repugnant and inconsistent with the main charge to the extent of charging that no offense has been committed, will be treated as surplusage. This is a broad admission of record and the state cannot at pleasure deny it and claim that it was unnecessary and should be treated as surplusage. The defendant, before being formally arraigned and hearing this indictment read or upon reading it, had the right to say, "I ought not to be called upon to answer this charge because the state admits a state of facts which shows that I cannot be convicted of the offense alleged."

It is urged by counsel for the state in their brief filed that "it makes no difference, then, that a portion of the stamp, which is usually attached to tickets, was not discernible." This contention by respondent is upon the theory that the evidence is conflicting as to the erasure of the date-stamp. As to this contention, it is sufficient to say that the respondent is bound by the admission of the record and no evidence is necessary to establish it. It is unqualifiedly charged that the date-stamp was "obliterated and erased." In place of making it resemble the genuine ticket, the very thing is done which would prevent it from being an instrument of fraud. While it was discretionary with the court as to sustaining the motion to quash, there is one of three things it should have done. It should have, at the close of the state's case, instructed the jury that, under the indictment and evidence in this cause, they should find defendant not guilty, or this instruction should have been given at the close of the entire case, or it should have sustained the motion in arrest of judgment.

In view of the conclusions reached as set forth in 629 this opinion, it renders it unnecessary to pass upon the other question involved; however, we will say that we have carefully considered the testimony in this cause, and are of the opinion that it is not sufficiently clear and satisfactory to warrant a conviction of the alleged offense. For the reasons herein expressed, the judgment in this cause will be reversed and the defendant discharged.

All concur.

To Constitute Forgery, the resemblance between the forged and genuine instrument should be such as is calculated to deceive a person of ordinary observation and prudence. This, however, is sufficient. It is not necessary that the similarity should be such as to Am. St. Rep., Vol. 94-51

impose on an expert: See the monographic note to Arnold v. Cost, 22 Am. Dec. 321; State v. Warren, 109 Mo. 430, 32 Am. St. Rep. 681, 19 S. W. 191; State v. Gryder, 44 La. Ann. 962, 32 Am. St. Rep. 358, 11 South. 573; State v. Covington, 94 N. C. 913, 55 Am. Rep. 650; Commonwealth v. Stephenson, 11 Cush. 481, 59 Am. Dec. 154. The writing must also be apparently of some legal efficacy: State v. Gryder, 44 La. Ann. 962, 32 Am. St. Rep. 358, 11 South. 573. An instrument invalid on its face cannot be the subject of forgery: State v. Evans, 15 Mont. 539, 48 Am. St. Rep. 701, 39 Pac. 850; State v. Dunn, 23 Or. 562, 37 Am. St. Rep. 704, 32 Pac. 621. A railroad pass or ticket may be the subject of forgery: State v. Weaver, 94 N. C. 836, 55 Am. Rep. 647. So may a theater ticket: Note to Hendricks v. State, 8 Am. St. Rep. 468.

STATE v. GREAT WESTERN COFFEE AND TEA CO. [171 Mo. 634, 71 S. W. 1011.]

CONSTITUTIONAL LAW-Statute, Insufficiency of Title.Under a statute entitled "An act to prevent the use of unhealthful chemicals in the preparation or manufacture of any article used or to be used in the preparation of food," provisions inserted, making it criminal to sell or retail, are not within the title, and cannot be enforced. (pp. 807, 810.)

Thomas B. Harvey, for the appellant.

Edward C. Crowe, attorney general, and Judson & Green, for the state.

637 FOX, J. This prosecution was begun under an act approved May 11, 1899, and found on page 170 of the Laws of 1899, and the information, omitting the caption and oath, reads as follows:

638 "H. A. Clover, Jr., prosecuting attorney of the St. Louis court of criminal correction, now here in court, on behalf of the state of Missouri, information makes as follows: That Great Western Coffee and Tea Company, a corporation existing under and by virtue of the laws of the state of Missouri, duly organized and doing business in this state, did in the city of St. Louis, on the sixth day of July, 1901, unlawfully sell and offered to sell a certain compound and preparation, to wit, one can Great Western Brand Baking-powder, and said compound and preparation was so sold and offered for sale for the purpose of being used and was intended to be used in the preparation of food, and in which said compound preparation and

baking-powder so sold as aforesaid there was then and there alum, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state.” This information was challenged by appellant in a motion to quash on the following grounds: 1. Because it does not allege facts sufficient to show any violation of law; 2. Because all the facts are insufficiently alleged; 3. Because there is no allegation that the defendant knew the article sold contained alum; and it is not alleged that it was intended to be used in food for human beings; 4. Because the act of 1899 creating the alleged offense is violative of section 28 of article 4 of the constitution of the state of Missouri, in this, that the title of the act is leveled against manufacturers only, while the body of the act attempts also to punish not only the manufacturers, but the seller of the inhibited article. Upon the aforesaid motion being overruled and exceptions saved, a plea of not guilty was entered, and the case was tried before the court sitting as a jury.

This prosecution resulted from a purchase of a can of bakingpowder by W. N. Miller, at the store of the appellant, a corporation, doing business in the city of St. Louis, on the twentythird day of May, 1901. The evidence on the part of the state, according to the experts testifying 639 in her behalf, tended to show that the baking-powder contained alum, and it is contended by the state that the alum as described by her experts is the character of alum against which the statute in controversy is directed. On the part of the appellant the evidence tends to show that the baking-powder contained no alum such as was contemplated by the legislative mind at the time of the enactment of the law, which is charged to have been violated. Defendant further introduced its manager, A. H. Freeman, who testified that the defendant had bought the can of bakingpowder in question from a most reputable wholesale grocery firm of St. Louis, with their assurance that it was a pure phosphate powder, containing no alum whatever. The cause was submitted to the court without a jury, and defendant was convicted and fined one hundred dollars. Motions for new trial and in arrest of judgment were filed in proper time, both of which were overruled by the court. Whereupon, the defendant brings the cause here by appeal.

The criminal charge in this cause is a misdemeanor, and this court only has jurisdiction to dispose of it by reason of the constitutional question involved, hence, the all-important question

submitted to us for determination is the alleged unconstitutionality of the act, upon which this prosecution is predicated, in so far as it applies to sellers who are not manufacturers.

The counsel for appellant challenged the validity of this act upon which this information is based, upon the sole ground that it is violative of section 28, article 4 of the constitution of this state, in this, that the title of the act is directed against manufacturers only, while the body of the act attempts also to punish not only the manufacturers, but the sellers of the inhibited article.

This act was approved May 11, 1899, and the title as well as the body of the act, is as follows:

"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.

640 "Be it enacted by the general assembly of the state of Missouri, as follows:

"Section 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 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."

The provision of the constitution involved in this controversy is that contained in section 28, article 4, which says that "no bill [then follow the exceptions, which are not applicable to this act], shall contain more than one subject, which shall be clearly expressed in its title."

We fully agree with the learned counsel for appellant that the phase of this question presented now is presented for the first time to this court for determination. An examination of the innumerable adjudicated cases, wherein similar constitutional provisions were involved, fails to disclose an interpretation and application of this constitutional provision to the same situation or facts as are presented in this cause.

I fully concur in the very appropriate expression of Burgess, J., in the case of Witzman v. Railroad, 131 Mo. 618: "Adjudicated cases do not, as a general rule, afford us much assistance

in passing upon questions of this character, other than in a general way, as each case must be adjudged according to its own peculiar facts and the directness or remoteness, as the case may be, of its provisions to matters in consonance with its title."

With the suggestion of the difficulties as to light from adjudicated cases, we approach the determination of this question upon the facts, as disclosed by the title, 641 as well as the body of the act. The title of this act, if construed literally, is directed against the very origin of the evil intended to be remedied, those who prepare the article used or to be used, or those who manufacture it. It is to prevent the use of unhealthy chemicals or substances in the preparation or manufacture of the article used or to be used in the preparation of food. The title to this act only embraces one class-that is, those who prepare or manufacture the article. The body of the actsection 1-extends the act to all classes of retailers, who may sell the article in which there is any of the unhealthy chemicals designated by the statute. In other words, the man who conducts his little grocery store, in some country village, who knows nothing of the preparation or manufacture of this article, buys it in good faith and sells it in good faith to his customers, is included in the body of the act, the title of which refers to those exclusively who prepare or manufacture the article.

The vital question is: Is the selling of the article by the retailer as contemplated and prohibited in the body of the act so closely allied or nearly related to the subject as contained in the title as to be properly included in the subject as designated by such title? Is it germane to it? It may be said that the ultimate purpose of the subject designated in the title is to prevent the use of unhealthy chemicals in the preparation of food-hence, the prohibition in the body of the act against the retailer is germane to it, for if you punish and prevent the retailer from selling, it would follow that the preparation and manufacture of the article would cease. Could we not say, with the same force of reasoning, that an act entitled, "To prevent the illegal sale of intoxicating liquors," could appropriately include in the body of the act the person who would purchase intoxicating liquor which was being illegally sold? They are distinct classes; yet if you could punish and thereby prevent the individual from purchasing the illegally sold 642 intoxicants, the illegal selling would cease. Upon principle, this fairly illustrates the question presented for our determination.