DISSENTING OPINION.
WOODSON,.J.I dissent from the majority opinion and I fully concur with the learned opinion written by Roy, Commissioner, not only for the reasons stated by him, but also for the following reasons:'
Reasonable Classification. Because it is a well known fact that the bottles, containers or receptacles of the beverages mentioned in the statutes under consideration, must and are, made of extra good and heavy material, and must be extra strong, for the reason that it is common knowledge that such beverages are inflated with strong and highly expansive gases. This makes the cost of such containers very expensive.
It is also well known that the actual cost of the beverages contained therein are' very inexpensive. In fact, much less than the cost of the bottles or containers in which they are placed.
Because of the expensive containers and inexpensive beverages, the former are rarely, if ever, sold with the latter, for the reason that the cost of the drink would be too expensive for general consumption. Prom this condition of things, it becomes highly necessary to protect the ownership of such receptacles, in order that they may be refilled repeatedly, and thereby reduce the cost of such beverages to a minimum, and at the same time protect the public from imposition by having them refilled with spurious goods.
In my opinion, this is a sufficient reason for the classification made by the statute, and removes it from what is known as an arbitrary classification.
The same reason does not exist in favor of the *103classification of containers of beer and milk. The first cost of tbe production of both, are so great that there are but few who do, or could afford to deal therein, and it is a well known fact, that all such wish to, and do, use their own receptacles and trade-marks (except dairymen in small towns, who furnish no containers), in order to build up their own business, and have no desire to build up the business of someone else by the use of their bottles, etc.
Moreover, both of those businesses are conducted at well known places, namely, at the saloon and at the home, which prevents the receptacles mentioned from becoming scattered, lost or stolen, and at the same time renders their collection and return to the owner easy and inexpensive. But not so of the beverages mentioned in the statute; they are sold and scattered to the four quarters of the earth; and if some such protection is not afforded the owners thereof, they can never recover their possession or protect the public from fraudulent imposition of the counterfeiter, or maintain cheap prices for their goods.
As to the druggist, there is no special reason for affording him such protection. The cost of the medicine or other merchandise is so insignificant in comparison to the cost of the receptacles, he invariably sells the latter with the former, and would not, as a rule, receive the bottle back as a gift, if offered, much less pay for its return and cleaning.
I, therefore, concur with the opinion written by Commissioner Rot, which is, hereto attached and made a part hereof.
Walker, J., concurs herein.OPINION BY ROY, C.
ROY, O. — Defendant was convicted of violating what is sometimes called the “Bottling Act” of 1885 (Laws 1885, p. 151), as amended in 1893 (Laws 1893, p. 256), being sections 4829 to 4833 inclusive of the *104Revised Statutes. Section 4829 provided for the registration of their trade-marks by “all partnerships, corporate bodies, manufacturers of glass bottles, bottlers, manufacturers of and dealers in mineral waters, soda water, or any other beverages whatsoever, who-may use boxes, trays, siphons, jugs or any other vessel upon which shall appear the name or names of the partnerships, corporate bodies, dealers, manufacturers or bottlers, or other mark of ownership stamped, engraved, cut, etched, or in any manner affixed thereon,” and for the giving of notice of such registration by publication.
Section 4831 makes it a misdemeanor for any junk-dealer or dealer in second-hand bottles, or others therein named without the written consent of the owner or owners thereof, to trade or traffic in, buy or sell, or wilfully to mar or erase a name, mark or marks thereon, or wilfully to break, destroy or otherwise injure any such bottle, tray, jug or siphon so marked and stamped, a description of which shall have been filed and published as provided in the two preceding sections, or- to fill any such bottle, jug or siphon with mineral water, soda water, seltzer water or any aerated waters or other beverage whatsoever, or any other article of merchandise, medicine, compound or preparation for the purpose of sale or traffic.
Section 4832 makes the possession of such vessels by junk dealers, second-hand dealers and others prima facie evidence that such possession is unlawful.
Section 4833 provides for the issuance of a search-warrant to discover whether any such vessels are unlawfully upon the premises of persons other than the owner.
The material part of the information is as follows : “That on July 21,1902, James M. Dupiech Bottling Company were bottlers, manufacturers of and dealers in mineral water, soda water, and other beverages, and used bottles upon which appeared their *105name and mark of ownership, stamped, cut and affixed thereon, to-wit, ‘James M. Dnpiech & Company, St. Lonis, Mo.’ And on said date the said James M. Dupiech Bottling Company, they having an office within the limits of St. Lonis, Mo., filed with the recorder of deeds of said city a description of said bottles and of the name and mark of ownership of the same, to-wit: ‘James M. Dupiech & Company, St. Louis, Mo.’ And the said James M. Dupiech Bottling Company published in the St. Louis Chronicle, a daily newspaper published in said city, twice a week for two successive weeks, to-wit, July 9th, July 12th,, July 16th and July 19th, a notice of the above stated facts. That in the city of St. Louis, on the 10th day* of June, 1911, S. Baskowitz was a junk-dealer in second-hand bottles and did in said city, without the written consent of James M. Dupiech Bottling Company, trade and traffic in, buy and sell, fifty-eight bottles of the said James M. Dupiech Bottling Company, having his name and mark of ownership, to-wit, ‘James M. Dupiech & Company, St. Louis, Mo.,’ stamped, cut and affixed thereon, the description of which had been filed and published as aforesaid.”
Defendant promptly filed a motion to quash the information for the reason that the statute under which the information is filed is in violation of articles 4 and 5 of the amendment to the Constitution of the United States, and of section one, article 14, of such amendments, and in violation of section 4, 20, 23, 28, 30, article 2, and of section 53 of article 4, of our State Constitution. The motion was overruled.
The evidence was sufficient to show a registration of the trade-mark and the publication of notice thereof as alleged in the information.
The only evidence as to the guilt of the defendant is an admission made by the defendant for the purpose of the trial and made at the time of the trial that he shipped or delivered to the St. Louis & San Fran*106cisco Railroad Company in the city of St. Lonis, for shipment, the bottles in question to one Grady at Flat River, Mo.
The evidence for the State shows that there is in St. Louis a corporation known as the Missouri Bottlers’ Association, of which most of the dealers in soda water in that city are stockholders. That association does not manufacture or deal in soda water or other beverages. It is merely a “clearing house” for the bottles of its members. The members of that association, in the course of their business, gather up the bottles of the other members of the association and take them to# it, where they are distributed to the proper owners, who pay to the association a so-called salvage of ten cents a dozen. The association pays to persons not its members a salvage of six cents a dozen for such bottles. Those bottles cost the dealer new from thirty to thirty-five cents a dozen. There is no evidence in the case as to the price at which the dealers sell their goods in bottles.
There was conflicting evidence as to whether the Missouri Bottlers’ Association, as the agent of its members, issued cards authorizing second-hand dealers and others to buy and sell the bottles, and a declaration of law covering that point was given by the court. The trial was before the court without a jury.
I. It is claimed by the appellant that the statute is in contravention of section 53 of article 4 of our State Constitution, which prohibits what is ordinarily known as “class legislation.”
We are enjoined to proceed with caution in the consideration of this question, and to resolve all reasonable doubts in favor of the validity of the statute, and to indulge all reasonable inferences in support of it. [Cooley on Const. Lim. (7 Ed.), p. 227; State v. Price, 229 Mo. l. c. 678.]
*107A strong presumption exists in favor of the validity of a statute. [Shohoney v. Railroad, 231 Mo. l. c. 148.]
Classs Legislation. The courts have held very uniformly that the State may legislate in regard to a class, but cannot arbitrarily divide that class into two parts, giving to one part a privilege, or subjecting it to restrictions which do not apply to tbe others in tbe same class. [State v. Julow, 129 Mo. l. c. 177; State v. Walsh, 136 Mo. l. c. 405; State ex rel. v. Ashbrook, 154 Mo. 375; Gundling v. Chicago, 177 U. S. l. c. 188.]
This court in State v. Dinnisse, 109 Mo. 434, held that tbe word “any other beverages whatever” must be construed to mean beverages of tbe same kind as mineral or soda waters, and that spirituous liquors were not of that kind. We conclude that tbe statute, for tbe same reason, does not apply to malt or fermented liquors.
Now it appears from tbe evidence that soda water is sold in bottles, and that tbe ownership of tbe bottles is retained by tbe dealer. Tbe course of dealing in tbe trade is such that tbe bottles get scattered about beyond tbe knowledge of tbe owners in such numbers that they bave established tbe Missouri Bottlers’ Association, whose sole business seems to be that of acting as a clearing bouse for tbe bottles. It thus appears that tbe bottles of the' soda water dealers are a property used in a peculiar way, making them tbe special prey of junk-dealers and dealers in secondhand bottles.
If it be suggested that the dealers in malt and spirituous liquors do business in very much tbe same way and are entitled to tbe same kind of protection for their bottles, kegs and boxes, we suggest that tbe mere fact that beer and whiskey are intoxicating, while soda and mineral waters are not, may bave caused tbe Legislature to furnish protection to one class and re*108fuse it to the other. Such distinction is not, to say the least, arbitrary, but one which we must presume the Legislature fully considered. The fact that this court might disagree with the Legislature as to such a policy does not justify us in interfering with the constitutional power of legislation.
Dealers in milk and cream deliver their goods in vessels the ownership of which is retained by the dealer. But milk is ordinarily so delivered at fixed places of residence to persons of known responsibility, and those vessels are ordinarily regularly collected by the same persons who delivered them to the customer. There is not in the dairy business, so far as we know, such scattering of vessels among unknown and irresponsible persons and in unknown places as is the case in the soda water business. A few milk vessels may be occasionally lost or appropriated by junk and second-hand dealers, but, from the very nature of the business, the losses in the dairy business cannot even approximate that in the soda and mineral water business. The Legislature may have taken the view that dairymen would not take the benefit of the act, as their losses would not justify the expense of registering their trade-mark and publishing the notice. Hence, we cannot conclude that in distingmishing’ between the dairyman and the soda water- dealer, the Legislature acted arbitrarily.
If there is any other class of dealers whose business is conducted in such a way as to make their exclusion from'the benefits of the statute an arbitrary distinction on the part of the Legislature, our attention has not been called to it. Whoever asserts the unconstitutionality of a statute must be able to show in what respect his assertion is well founded.
In People v. Cannon, 139 N. Y. 32, the court upheld a similar statute giving protection to dealers in soda and mifieral water, beer, cider, milk, cream, medi*109cines and other things therein mentioned. It must be said, however, that the question as to whether that statute was “class legislation” was not discussed.
In Lippman v. People, 175 Ill. 101, the court held unconstitutional a statute with provisions similar to ours for the protection of dealers in ‘ ‘ ale, porter, lager beer, soda, mineral water and other beverages. ’ ’ That court, in the course of its opinion said:
“This act singles out one branch of a class of manufacturers and dealers who may have occasion to use, or who do use in their business, bottles, barrels, kegs or other package's for their goods. It selects those whose particular manufacture or stock consists of certain varieties of drink. No other person who manufactures any product or sells it in casks, barrels, kegs, bottles or boxes can avail himself of the privilege of registering his trade-marks or of the consequent protection, but the act denies to him the privileges afforded to those named in the act. The grocer, farmer, fruit dealer, merchant, druggist or other-dealer or manufacturer cannot avail himself of the-privileges or remedy afforded by this act to protect himself against the loss of his property under the same circumstances.”
It will be noticed that the court entirely overlooked the difference in the nature and method of the business of the soda water dealer as compared with the business of the farmer, grocer, fruit dealer, merchant and druggist. It is true in statutory as well as in common law that where the reason ceases the law itself should cease. In 1901 the Legislature of Illinois attempted to remedy the defects of their former statute by enacting a statute giving similar protection to all owners of “cans, tubs, firkins, boxes, bottles, casks, bonds, kegs, cartons, tanks, fountains, vessels or containers” without any limitation as to the business in connection with which such vessels were used. The court in Horwich v. Walker-Gordon Laboratory, 205 *110Ill. 497, held it unconstitutional as granting to owners of the specific class of personal property rights and privileges not given to owners of other personal property. We concede that the case was properly decided. It should have been otherwise if the act had provided protection for such articles as named when used in connection with some business peculiarly requiring a kind of protection not necessary for other property. In Commonwealth v. Anselvich, 186 Mass. 376, a statute was upheld giving similar protection to dealers in beverages, milk and cream. The court said:
“The defendant contends that the statute improperly gives advantages to certain classes of persons, which others do not have. In this he is mistaken. It makes provisions in reference to a kind of property, used in a peculiar way, which is of such a nature as to call for peculiar provisions for the protection of the public and of its owners against the fraud of evil doers. So, too, the provision making possession by an agent or dealer, without the written consent of or purchase from the owner, prima facie evidence of a violation of the statute, is not class legislation. The peculiar conditions referred to in this part of the statute have such a probable connection with the commission of the offense, that the Legislature well may legislate in reference to them. It is not persons who are particularly dealt with in the statute, but the conditions which pertain to their occupation and business. It is in the power of the Legislature to make certain conditions prima facie evidence of the commission of a crime, and this is a common kind of legislation. [Commonwealth v. Williams, 6 Gray, 1; Holmes v. Hunt, 122 Mass. 505, 518; Commonwealth v. Hall, 128 Mass. 410; Commonwealth v. Barber, 143 Mass. 560; Commonwealth v. Intoxicating Liquors, 172 Mass. 311.]”
Wé do not affirm that there is no line of business so similar to the'soda water business that a legisla*111tive distinction between them would be arbitrary and against tbe Constitution., , We base our conclusion on tbe fact tbat if such similar business does exist, it is not so well known tbat we can judicially notice it; and the defendant has not furnished any evidence of it.
Prima-facie Case. II. There was evidence tending to prove that defendant trafficked in the bottles as charged. Els possession of them and shipping them to another party was, under the statute, prima facie proof he did so traffic in the bottles. The Legislature has the power to provide that certain facts shall constitute prima facie proof of a controverted fact. [Cooley’s Con. Lim., 524 et seq.; Coe v. Ritter, 86 Mo. l. c. 282; People v. Cannon, 139 N. Y. 32; Commonwealth v. Anselvich, supra.]
Search Warrant. III. It is unnecessary for us to pass on the validity of section 1833 in regard to proceedings under a search warrant. That section is not involved in this case; and, if it is invalid, such fact does not, in the least, affect the ether sections under discussion. [Commonwealth v. Anselvich, supra; State v. Heger, 191 Mo. l. c. 716.]
Restricted Sale. IV. It is contended that the provision of the statute requiring the written consent of the owner to authorize one to traffic in the bottles deprives the defendant of his liberty and property without due process of law. Appellant’s brief has the following: “It is made unlawful by this act to purchase from the owner thereof one of these receptacles bearing the registered mark without first or at the same time obtaining the written consent of the owner to make the purchase. This is an unreasonable restraint upon the right to buy and sell personal property such as that specified, for the *112reason that the original owner has a right to sell his property whether he first secures his own written consent or not, and if he has such right, then his purchaser has an equal right to buy the same from such owner. ’ ’ We see no such incongruity in the law. It' does not invalidate a sale not evidenced by writing. Bottles sold by the dealer pass out from under that law so far as it may affect the right of people to traffic in them. The written consent is not necessary except where the title remains in the owner of the trade-mart. As was said in People v. Cannon, supra, “Under the broadest definition of the term liberty, as used in the Constitution, it is not probable that any one would contend that is covers, or ought to cover the' liberty of dealing in property which the original owner has not sold to any one or authorized any one else to deal in.”