431
OFFICE OFTHE ATTORNEY GENERALOFTEXAS
AUSTIN
Department or r..grioulture
Austin, Texas
Gentlemen!
of bread made by
uraoturer when
eotlvely shall not
ourth ounoe per
lolsnoy valid?
ror an opinion 0r this Dspart-
fan has been reosived.
r letterTea follows:
utxler Artlole 719 or the Psnal Code
"Seotlon 16 0r Ordlnanoe ITO. 2699 0r the city
or Dallas, in gresorlblng toleranos f%r loaves of
bread, reads In part as followe:
432
Department of Agrloulture, Page 2
n*The variation and toleranae allowed in
the weight of bread shall not exoeed one (1) ounoe
per pound, over or under, on eaoh individual loaf,
within eald 24 hour period; and the varlatilon and
toleranoe allowed on 10 loaves of bread. made bv
the same manufacturer when we1 had oolleotively”,
*In view of the ract that the State Law pm-
vldes that the tolerance shall not exoeed one ounoe
per pound over or under, will you please advise whe-
ther or not that portion of the Dallas City Ordlnanoe
whloh provides that the average toleranoe on 10 or
more loavea of bread made by the same msnufaoturer
shall not exoeed one-fourtdounoe per pound in de-
flolenoy is a valid ordlnanoe?*
RuLe 5, Artlole 719,, Vernonrr, Annotated Penal Code,
reads as followsr
“Rule 5. Weight oi Bread. Bread to be sold
by the loaf made by bakers engaged in the business
of wholesaling and retailing bread, shall be mold
based upon any of the following standards of orsight
and no other, namely: a loaf weighing one pound
or 16 ounces, a Zoaf weighing 24 ounoea or a pound
and a half, and loaves weighing two pounds or 52
ounaes, and loaves welghlng 3 pounds or some other
multlpla of one pound or 16 ounoes. These shall be
EMrstandards or weight for bread to be sold by the
. Variations or, tolerenoe shall not exoeed one
ounce per pound, oviir or under, the said standard
within a period or 24 hours arter baking.”
Section la or Ordlnanoe No. 2769 or the Qltg or Del-
la&, in deaoriblng tolerance for loaves a? bread, reads as fol-
lawa I
“It shall be unlawful for any person by Umeolr
or by his employee or agent, or as the employee or
agent of’ another, to manufacture for #ale, cell, of-
fer or expose for sale any bread otherwise then by
the rollowlng units of weight! One (1) pound net,
one and oneghalf (lb) pound net, of\ multiples ol,one
(1) pound net. When twin or multiple~loaves are baked,
the weights speolfied in this ordlnenoe shalL apply
.-
43
Department of Agrioulture, Page 3
to each unit or the twin or multiple k0ar. when
bread la ellaed priop to aala, t% shall be moped
and the weights epeoifiad ln this ordlnanoe shall
a:,ply to aaah paokape.
%a weight speoified in thla Seotion ahall
mean net we1 ht not more than 24 hours after baking.
All broad of? ered or exposed for sale or ln the pro-
oaea of delivery in the City of Dallas ahall for the
purposea or this Seotfon, be deemad prima iaoia ta
have been bakad wlthln 24 houra, unless auoh bread
la marked~, daalgnated or segregated as ‘atale braad.’
*The variation and toleranoo allowed fn the
ralght OS bread ehall not uooed one (1) ‘ounoe par
ound over or under, on eaoh individual loaf, with-
f n aa i d 24 hour period; and the variation and teler-
anoe allowed on 10 loaves of bread, made by the mama
manufaaturer when wei, ed ~ollectlvelp, ahall not
exoeed one-fourth (1 P4) ounoe per pound in ddiotenoy.
“The weights met out in this aeotion shall not
apply to oraokers, p%Haole blsoults, bunm, rolls or
loavae OS fanay broad we&$&g leas than one-?ourth
(l/4) pound avotrdupoie.
*All bakery prodwts mpged prior to aale,
rhell hava the net weight plainly and aonrplouously
narked on thr outeide of eaoh paokage.
“Any pereon tiol.atlnu any of tho previsiona oi
tMs Seotlon of this Ord%nanoe, ahall be deemed guilty
of a aimdemeanor and rhall be fined not leoa than
#25.00 nor mOre than $200.00.*
Here we have the question
as to tho validity of a
portion of a oLty ordfmnoe ahleh 1s in eertsln
partiaularm
&nllar to the State Law, and makes additionaL requframentm
other than those mentioned In the State law. ~al5 5 0r ml-
sib 719, sugra, pmolfIa8 that Variation or toleranae ahall,
not erased one ounce per pound over QE under tha said stand-
ard within a period of 24 hours aster baking”, and the above
quotsd olty ordlnanoe provldas that -the varlatlon and tiler-
anoa allowed in weight or bread ahall not exaeed one ounoe per
?ound over or under, on aaeh individual loaf, within eaid 24
Department of Agfioulture, Page 4
hour period; and the variation or toleranoe anowed on ten
loaves of bresd, made by the same manufaoturer, when weighed
oolleotlvely, shall not exoeed one-fourth ounoe per pound in
def iolenoy.n It will be noted that in the State etatute there
is no differenoe in the variations or toleranoe when aoneid-
ering one loaf or any number of loaves oolleotivelg, ‘but under
the city ordinanae for one loaf the variation or tolerance la
the same as provided by the State statute; however, when ten
loaves of bread, made by the same manufaoturer, are weighed
colleotivelg then the variation or toleranoe shall not exoeed
one-fourth ounoe per pound in deffcienoy. Thua imposing adai-
tional requirementa upon the baker or manufaoturer when ten
loaves are weighed oolleotively and deoreasing the variation
or toleranoe to an amount considerably less than that would
be permitted should the loaves be weighed separately.
It la stated in the oase Rx Parte Brewer, 15 S. W.
1068, among other things, that “there la no inhibition in the
Constitution or the laws of this State whioh will grevent the
oity from dealing with whioh the State laws do not deal where
the polioe power is oonf’erred upon the city . . .v
we quote from the aitg of Houston Y. Riohter, et al,
157 s. w. 189, as roil0~:
Vhe terms of the ordinance of the oity have
been hssetof’ore set out. The effeot of this provf-
sion is to prohibit, under penalty of fine, any
plumber, who has received his lioense from the Board
of Examiners under the provleione of the statutea,
ffom exercising the privileges given him by the stat-
utes unless he further givea the bond provided by
the ordinanoe and reoeivee a further lloenae from the
oftp of Houston, issued by the City Rngineer . . .
We think it is too olear for argument that the ordin-
anoe in question is ineonaistent with the statute re-
ferred to .”
In the ease of Massaohusetts Bonding & Insurance Com-
pany et al v. MoHay, 10 8. W. (8d) 770, at page 771:
“In supplementary brief, appellants urge aa
fundamental error that the o,rdinanoe in question, re-
quiring plumbera to exeoute a $3,000 bond in order to
prooure lloense to oarry on their business in the
City of Eallas 1s unoonstitutional and void and there-
Department of Agrioulture, Page 5
?ore aaid bond executed pursuant thereto ir of no
foroe and effeot. Wo think their oontentton in
this raspeat is also good. In Artioler 1076 and:
1081, R. S., 19W, the Leglelature ham required that
lumbers in aitlea and towns in oltisa of more than
ii ,000 lnhabitanta be lloenssd before they 0an opor-
ate and has undertaken to regulate the manner in
whioh auoh lloanae shall be issued. The atatute it-
self does not provide for any bond to bs exaautad as
a prerequlalte to the oonduot of a plumber'8 business.
The La ielature having ao regulated the mattar by
presor f[bin2 fully the manner in whioh the pluhbers
should be liosnsed, the City of Dallas had M author-
ity to impbsa additional burdQasand requirwnts in
thess premiaae . This question ~8 erpret&ly deolded
by the Galveston Court or aivil Appeals, in Rouston
v. Xiohter, 147 8. W. lS9. Thts holding was again
expressly reoognieed in Xydias AmuaeunentCompany V.
aity of Rouston, (Tox. air. APP.) 185 9. w. u6,. i3.a
al80 Paohe Y. RI&t (Tox. Dir. Apl,.) , 293 2. W. 689.
And this gsnera.l law of the Stats a plier to thbe Oity
of Dallas, irreapeotive of the prov f sions of apeoial
ahartsr. Davis Y. Hollaran (Tsx. ait. App.) MS S. W.
11; Pa0he v. night, supre. Said ordinanoe imposing
additional burdew to thoae required by the State law
upon plumbers within that 010~ was inoonai8tent with,
and in oonfllat with, the State law and was thereiore
void. It ?ollowo then that said bond given pursuant
to auoh ordinanos wan likewias void.P1
Xydlae Amusament Company v. aity of Roustan, 185 8. w.
145, at page 420:
“The true rule is where the State law speaks, ths
oity ordinanae must be silent: where the State law im
silent, the olty must apeak."'
See also the oaaea of Mantel v. State 117 3. W. 855
and Robinson v. City of Galveston, 111 9. w. lOi
We oonolude, thereiore, that the portion of
. . the alty
Ordinanoe of Dallas above quotad with rererenoe to she raria-
tlon an@ tolerance allowed on ten loaves of bread, made by the
same manufaoturer when weighed oollsotively, shall not exoeed
one-fourth ounoe per pound in de?iolenoy, invades the field
Depart!!nt of kgriOUltUr6, page 6
of le&slatlon already occupied by the Legislature of Texas.
T:;edo not believe that the requirements of the above mention&
-ord!nanoe enlarges upon or adds to the requirements of the
stste statute in apeoi?io matters pertaining to the ;roteotlon
o? the publlo. Xhloh, generally speaking, mnnioipal oorpora-
tlons have the right and the police power to safeguard the
health, ooniort o? their olt:zens by such reasonable repula-
tlona as are neoeasary for that purpose. The polloe power
authorizes only euoh measurea as are reasonable; to be valid
aa an exerolee of this power, an ordlnanoe must be reasonable
in fte operation upon the person to whom it e??eotsand must
not be unduly oppreesive. That is, it muat agpenr that the
means adopt.ed are reaaonably neoessary and appropriate for
tho accomplishments of the legitimate objeot falling within
tho %ominion of the golice power. Tex. Jur. Vol. 30, pp. 120,
121.
Under the Beoisiona of the oourte o? Texas, set out
above, it is our opinion that the portion o? the abolre mentioned
city ordlnanoe whloh reada that *the variation and toloranoe
allowed on ten loaves of bread, made by the same manufaoturer,
when weighed oolleotIvely, shall not exesed one-rourth ounoe
per pound in dePIolenoy* Ia alearly invalid.
Trustin that the foregoing iully answers your In-
quiry, we are
Your0 very truly
ATTORNEY 0sTERA.LQB TEXAS
Ardell Williama
Aarietant
A'J;':BBB