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 Dspartfan 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 pmvldes that the tolerance shall not exoeed one ounoe 

per pound over or under, will you please advise whether 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 deflolenoy 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 Della&, in deaoriblng tolerance for loaves a? bread, reads as follawa 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, offer 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 

All broad of ? ered or exposed for sale or ln the proht not more than 24 hours after baking. 

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 

f i 

ound over or under, on eaoh individual loaf, withn aa d 24 hour period; and the variation and teleranoe allowed on 10 loaves of bread, made by the mama 

manufaaturer when wei, ed ~ollectlvelp, ahall not 

exoeed one-fourth (1 P 4) 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 

narked on thr outeide of eaoh paokage. 

aonrplouously 

“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 mlsib 719, sugra, pmolfIa8 that Variation or toleranae ahall, 

not erased one ounce per pound over QE under tha said standard within a period of 24 hours aster baking”, and the above 

quotsd olty ordlnanoe provldas that -the varlatlon and tileranoa 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 aoneidering 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 adaitional 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 provfsion 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 statutes 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 ordinanoe in question is ineonaistent with the statute referred to .” 

In the ease of Massaohusetts Bonding & Insurance Company 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, requiring 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 

ii 

lumbers in aitlea and towns in oltisa of more than 

,000 lnhabitanta be lloenssd before they 0an oporate and has undertaken to regulate the manner in 

whioh auoh lloanae shall be issued. The atatute itself does not provide for any bond to bs exaautad as 

a prerequlalte to the oonduot of a plumber'8 business. 

The La 

f[ 

ielature having ao regulated the mattar by 

presor bin2 fully the manner in whioh the pluhbers 

should be liosnsed, the City of Dallas had M authority 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 Amuaeunent Company 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 

of Dallas, irreapeotive of the prov f 

plier to thbe Oity 

ahartsr. 

sions of apeoial 

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. 

to 

It ?ollowo then that said bond given pursuant 

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 

and Robinson v. City of Galveston, 111 

We oonolude, thereiore, that 

v. State 117 3. W. 855 

9. w. lOi 

the portion of the alty 

. . Ordinanoe of Dallas above quotad with rererenoe to she rariatlon 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:;e do 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 oorporatlons have the right and the police power to safeguard the 

health, ooniort o? their olt:zens by such reasonable repulatlona 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 Inquiry, we are 

Your0 very truly 

ATTORNEY 0sTERA.L QB TEXAS 

Ardell Williama 

Aarietant 

A'J;':BBB