#### The City of Buffalo, Plaintiff, *v.*The Collins Baking Co., Defendant.

(Municipal Court of Buffalo,

October, 1898.)

Municipal ordinance — Is unreasonable, where it fixes an arbitrary weight for a loaf of bread.

A municipal ordinance declaring, under a penalty, that all bread sold or offered for sale in the city shall be made into loaves weighing not less than one and one-half pounds each, and prescribing no price for that or any other weight, is unreasonable. A city baker who sells a one pound loaf for five cents, when the one and one-half pound loaf is selling for seven cents, incurs no penalty.

■ Action by the city of Buffalo for a violation of certain sections of the ordinances of said city, and for the recovery of the penalty prescribed by section 8 of said ordinances.

F. M. Spitzmiller, for plaintiff.

Louis L. Babcock, for defendant.

Braunlein, J.

This action is brought by the plaintiff against the defendant for a violation of sections 6, 7 and 8 of chapter 22 of the ordinances of the city of Buffalo, and for the recovery of the penalty prescribed by said section 8.

Said section 6 reads as follows:

“ § 6. All bread baked by any baker, to whom a license or permit is issued, * * * and all bread baked at the place mentioned in such license or permit, and all bread sold or offered for sale in the city of Buffalo, wherever baked, shall be made into loaves weighing not less than one and one-half pounds each. No bread shall be baked, sold or offered for sale contrary to the provisions of this section; and any person'violating the provisions of this section shall be liable to the penalty hereinafter prescribed.” Section 7 defines the word *“*baker,” and section 8 prescribes a penalty of “ not less than $5¡00 nor more than $50.00 ” for such violation.

On behalf of the plaintiff, it was shown that on September 13, 1898, the defendant baked and sold to one August Farron, at its place of business in the city, one loaf of bread, weighing one pound, for which it charged and received from said Farron the sum of five cents. This is not disputed.

*746The defendant produced evidence showing that the loaf so sold weighed a full pound; that the purchaser thereof knew what he was getting; that the same was made of wholesome material, and that it was fairly and reasonably worth the sum charged. The loaf purchased was produced in court, and had affixed to it a label striped with patriotic colors, the red stripe at -the top contained the word *“*Collins ” in white letters; the white stripe in the center, contained the words “ 1 lb., 5 cents ” in blue letters, and the blue stripe at the bottom, contained the word “ Bread ” in white letters.

It further appears, from the evidence, that loaves of this size, and the price charged therefor were convenient, and that there was a large and growing demand for such loaves; and, further, that' the production thereof entailed about 20 per cent, more labor than the production of the one and one-half pound loaf. It is practically conceded that the latter was sold in the market at the ■price of seven cents.

The defendant presents several objections to the plaintiff’s right to recover in this action:

1. That the common council has no power to pass such an ordinance as the one under consideration; and

2. That the ordinance under consideration is unreasonable and oppressive.

The first objection -may be practically regarded as disposed of by the defendant’s answer in the case, in which, among other things, it admits *“*that by virtue of chapter 105 of the Laws of 1891, and the acts amendatory thereof and supplementary thereto, the common council of the city duly enacted and passed the ordinances in question.”

The second, it, seems to me, presents a very serious and grave obstacle to the plaintiff’s right to recover.' The courts have uniformly held, that ordinances must be reasonable in their character and effect; that they must not be oppressive in their operation, and not repugnant to the fundamental rights of citizens, as guaranteed by the constitution and laws. When either of these elements are manifest, the ordinances- will be declared void.

Plaintiff’s counsel calls attention to certain authorities, which he insists are decisive of this case.' . Mobile v. Yuille, 3 Ala. (N. S.) 137; Paige v. Fazackerly, 36 Barb. 392; In re Nasmith, 2 Ont. 192. A careful examination of the same, however, will not bear out his contention. In each of said .cases the ordinances pre*747scribed the weight and size of the loaves, and the price or prices to be charged therefor were fixed by the ordinance or the prevailing market price thereof established by evidence, and it was clearly shown that the bread baked or sold actually weighed less than, and was not of the size prescribed, but was offered for sale or sold ;at the prices fixed, or the prevailing market price established. The persons charged with such violations failed to establish that the weight and size specified was unreasonable, or that the prices fixed or' established did not admit of a fair profit; and having failed to do this, they clearly violated the ordinances considered, and were justly convicted.

The facts in the case at har are vastly different. The ordinance in this case simply prescribes the weight. The market price is established. While the bread sold did not accord with the weight fixed by the ordinance, it cannot be- said that it was -the intention or desire of the defendant to lead the public, or anybody within the municipality, to believe or infer that it was of such weight. On the contrary, the label pasted thereon conveyed notice to all persons as to what was being sold. In like manner, it also conveyed notice of the price charged therefor, which was less than the established market price paid for bread of the weight mentioned in the ordinance. There was no fraud, deceit or imposition, and nothing to indicate unfair dealing.

Plaintiff’s counsel lays great stress upon the pricc-s charged for the several loaves in question and contends that the one and one-half pound loaf is a saving to the people, but in his argument he ignores the fact that it requires 20 per cent, more labor in baking the one pound loaf. Taking this element into consideration, it clearly establishes beyond dispute, that the price charged for the one pound loaf is just as fair and reasonable as the price charged for the one and one-half pound. Besides, it is important, at all times, to note that the ordinance in question prescribes no price for any weight of loaf.

The defendant is engaged in a perfectly lawful business, which appears to he conducted in a perfectly legal manner. The legislature cannot, by its.own act, nor can the common council of this city, by virtue of any power delegated to' it, deprive a party engaged in such business so conducted, of profits pr gains derived therefrom by limitations or restrictions pertaining to the same. No greater power is vested in those bodies to arbitrarily interfere with or fix the weight of the commodity, than to interfere with *748or fix the rate or price to be charged therefor so as to deny a reasonable profit thereof. If this is sought-to be done, such act is unreasonable and oppressive. Chicago, etc., Ry. Co. v. Becker, 35 Fed. Repr. 883; People v. Marx, 99 N. Y. 386; Chicago, etc., Ry. Co. v. Dey, 35 Fed. Repr. 866; People v. Gillson, 109 N. Y. 389; Pensacola Co. v. State, 5 So. Repr. 833; People v. King, 110 N Y. 418; Stone v. Trust Co., 116 U. S. 307; Chicago, etc., Railway Co. v. Minnesota, 134 id. 418; Chicago, etc., Ry. Co. v. Wellman, 143 id. 339; Matter of Jacobs, 98 N. Y. 98; Tiedemann on Mun. Corps., §§ 150, 159; Fisher v. Harrisburg, 2 Grant, 291; City of St. Louis v. Weber, 44 Mo. 547; Commonwealth v. Robertson, 5 Cush. 438; Poulter Co. v. Phillips, 6 Bing. N. C. 314; City of St. Paul v. Colter, 12 Minn. 41; Commonwealth v. Patch, 97 Mass. 221.

It would, contravene the fundamental rights and privileges of the citizen in his pursuit of a livelihood by engaging in, as above stated, a'perfectly lawful business, conducted in a perfectly legal manner, and could not be upheld as an exercise of the so-called police power. It, therefore, follows that the defendant is entitled to judgment.

Judgment accordingly.