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 R. Co. 168 U.S. 131, 42 L. ed. 409, 18 Sup. Ct. Rep. 34; Jacobi v. Alabama, 187 U.S. 133, ante, p. 48, 23 Sup. Ct. Rep. 48.
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 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 14th 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 § 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 §§ 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.
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 14th 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, 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 Misouri, K. & T. R. Co. v. Elliott, 184 U.S. 530, 43 L. ed. 673, 22 Sup. Ct. Rep. 46, as to exclusive appellate jurisdiction of state supreme court over cases involving constitutional questions.