Schmidinger v. City of Chicago/Opinion of the Court
The city of Chicago instituted suit against the plaintiff in error in the circuit court of Cook county, Illinois, to recover penalties for certain violations of an ordinance of that city. The violations alleged in the declaration which are material here consisted in the making and selling of loaves of bread differing in weight from the weights prescribed by the ordinance. Upon the first trial in the circuit court judgment was rendered in favor of the plaintiff in error, then defendant. The judgment was reversed upon appeal to the supreme court of Illinois, and the case remanded to the circuit court (243 Ill. 167, —L.R.A.(N.S.) --, 90 N. E. 369, 17 Ann. Cas. 614). That court, following the decision of the supreme court of Illinois, rendered judgment for certain penalties against the plaintiff in error. The case was again appealed to the supreme court of Illinois, and the judgment affirmed in a per curiam opinion, following 243. Ill. supra (245 Ill. 317, 92 N. E. 244). The case was then brought here on writ of error.

The ordinance in question, passed January 6, 1908, undertakes to regulate the sale of bread in the loaf within the city of Chicago, and the parts pertinent to the present case provide:

'Section 2. Every loaf of bread made or procured for the purpose of sale, sold, offered or exposed for sale, in the city of Chicago, shall weigh a pound avoirdupois (except as hereinafter provided), and such loaf shall be considered to be the standard loaf of the city of Chicago. Bread may also be made or procured for the purpose of sale, sold, offered or exposed for sale, in half, three-quarter, double, triple, quadruple, quintuple, or sextuple loaves, and in no other way. Every loaf of bread made or procured for the purpose of sale, sold, offered or exposed for sale, in the city, shall have affixed thereon in a conspicuous place a label at least 1 inch square, or, if round, at least 1 inch in diameter, upon which label there shall be printed in plain type . . . the weight of the loaf in pound, pounds, or fraction of a pound avoirdupois, whether the loaf be a standard loaf or not. The business name and address of the maker, baker, or manufacturer of the loaf shall also be printed plainly on each label.

'Section 3. Every maker, baker, or manufacturer of bread, every proprietor of a bakery or bakeshop, and every seller of bread in the city of Chicago, shall keep scales and weights, suitable for the weighing of bread, in a conspicuous place in his bakery, bakeshop, or store, and shall, whenever requested by the buyer, and in the buyer's presence, weigh the loaf or loaves of bread sold or offered for sale.

'Section 4. If any person, firm, or corporation shall make or procure for the purpose of sale, sell, offer or expose for sale, within the city of Chicago . . . any bread the loaf or loaves of which are not standard, half, three-quarter, double, triple, quadruple, quintuple, or sextuple loaves, as defined in § 2 of this ordinance, . . . or shall make or procure for the purpose of sale, sell, offer or expose for sale, within the city of Chicago, any standard loaf or loaves of bread which do not weigh 1 pound each, or any bread the loaf or loaves of which do not weigh as much as the weight marked thereon, or any bread the loaf or loaves of which do not have affixed thereon the label marked as hereinbefore provided, contrary to the provisions of this ordinance, such person, firm, or corporation shall be fined not less than $10 nor more than $100 for each offense.

'Section 5. The provisions of this ordinance . . . shall not apply to . . . what is commonly known as 'stale bread,' sold as such, provided the seller shall, at the time of sale, expressly state to the buyer that the bread so sold is stale bread.'

The objections of a Federal character arise from alleged violations of the 14th Amendment to the Constitution of the United States. The plaintiff in error avers that the due process clause of that Amendment is violated in that the ordinance is an unreasonable and arbitrary exercise of the police power, and constitutes an unlawful interference with the freedom of contract included in the protection secured to the individual under that Amendment. In the supreme court of Illinois error was also assigned because of the violation of the clause of the 14th Amendment guarantying equal protection of the laws. That insistence does not appear to be made here, and the right of the legislature or municipal corporation, under legislative authority, to regulate one trade, and not another, is too well settled to require further consideration.

At the hearing the plaintiff in error introduced testimony which tended to establish the following facts: There are between 800 and 1,000 bakers in the city of Chicago, together making about 50 per cent of the bread consumed in that city. Bread is sold in Chicago in large quantities at certain prices per loaf, 95 per cent of the bread made by the bakers, outside of the restaurant business, consisting of loaves sold for 5 cents or multiples thereof, and 85 per cent of such bread being sold for 5 cents a loaf. The 5-cent loaf weighs about 14 ounces when baked, and the weight of the bread in the loaf varies and is adjusted in accordance with the fluctuations in the price of raw material, labor, and other elements of expense of production, and the different qualities of bread, and as a result of competition. There is a considerable demand in Chicago, especially in the restaurant trade, for bread in weights differing from those fixed by the ordinance. In some parts of the city bread weighing 7 pounds is commonly sold. The moisture in the bread after it leaves the oven causes very appreciable shrinkage in weight, the extent of which depends upon the quality and size of the loaf, the atmospheric condition, and the dryness and temperature of the place where kept. It appears that, in order to insure bread of the standard weight of 16 ounces, it is necessary to scale the dough before baking at about 20 ounces.

The record also shows that although the price of bread sold by the loaf in Chicago has generally been 5 cents or some multiple thereof, loaves of bread weighing approximately 1 pound have been sold for 5, 6, and 7 cents at different times.

The right of state legislature or municipalities acting under state authority to regulate trades and callings in the exercise of the police power is too well settled to require any extended discussion. In Gundling v. Chicago, 177 U.S. 183, 44 L. ed. 725, 20 Sup. Ct. Rep. 633, the doctrine was stated by this court as follows:

'Regulations respecting the pursuit of a lawful trade or business are of very frequent occurrence in the various cities of the country, and what such regulations shall be, and to what particular trade, business, or occupation they shall apply, are questions for the state to determine, and their determination comes within the proper exercise of the police power by the state, and unless the regulations are so utterly unreasonable and extravagant in their nature and purpose that the property and personal rights of the citizen are unnecessarily, and in a manner wholly arbitrary, interfered with or destroyed without due process of law, they do not extend beyond the power of the state to pass, and they form no subject for Federal interference.'

See also, in this connection, Holden v. Hardy, 169 U.S. 366, 42 L. ed. 780, 18 Sup. Ct. Rep. 383; McLean v. Arkansas, 211 U.S. 539, 53 L. ed. 315, 29 Sup. Ct. Rep. 206, and other cases in this court, reviewed and commented upon in those cases.

The making and selling of bread, particularly in a large city, where thousands of people depend upon their supply of this necessary of life by purchase from bakers, is obviously one of the trades and callings which may be the subject of police regulation. This general proposition is conceded by counsel for plaintiff in error, but it is contended that the limitation of the right to sell bread which this ordinance undertakes to make in fixing a standard loaf of 16 ounces and other half, three-quarter, double, triple, quadruple, quintuple, or sextuple loaves, is such an unreasonable and arbitrary exercise of legislative power as to render it unconstitutional and void. This court has frequently affirmed that the local authorities intrusted with the regulation of such matters, and not the courts, are primarily the judges of the necessities of local situations calling for such legislation, and the courts may only interfere with laws or ordinances passed in pursuance of the police power where they are so arbitrary as to be palpably and unmistakably in excess of any reasonable exercise of the authority conferred. Jacobson v. Massachusetts, 197 U.S. 11, 49 L. ed. 643, 25 Sup. Ct. Rep. 358, 3 Ann. Cas. 765; Mugler v. Kansas, 123 U.S. 623, 31 L. ed. 205, 8 Sup. Ct. Rep. 273; Minnesota v. Barber, 136 U.S. 313, 320, 34 L. ed. 455, 458, 3 Inters. Com. Rep. 185, 10 Sup. Ct. Rep. 862; Atkin v. Kansas, 191 U.S. 207, 223, 48 L. ed. 148, 158, 24 Sup. Ct. Rep. 124; McLean v. Arkansas, 211 U.S. 539, 53 L. ed. 315, 29 Sup. Ct. Rep. 206.

Furthermore, laws and ordinances of the character of the one here under consideration, and tending to prevent frauds, and requiring honest weights and measures in the sale of articles of general consumption, have long been considered lawful exertions of the police power. McLean v. Arkansas, 211 U.S. 550, 53 L. ed. 320, 29 Sup. Ct. Rep. 206; Freund, Pol. Power, §§ 274, 275. Laws prescribing standard sizes of loaves of bread, and prohibiting, with minor exceptions, the sale of other sizes, have been sustained in the courts of Massachusetts and Michigan. Com. v. McArthur, 152 Mass. 522, 25 N. E. 836; People v. Wagner, 86 Mich. 594, 13 L.R.A. 286, 24 Am. St. Rep. 141, 49 N. W. 609.

It is contended, however, that there are special circumstances in this case that take it out of this rule. The record shows, as we have already said, that the loaf of bread most largely sold in Chicago costs 5 cents, and when it reaches the consumer is generally 14 ounces in weight; and it is urged that to make a loaf of the standard size of 1 pound, as required by the ordinance, would be extremely inconvenient at least, owing to changes and evaporation after the loaf is baked, and that to insure a loaf of full standard size it would be necessary to use 20 ounces of dough. But inconveniences of this kind do not vitiate the exercise of legislative power. The local legislature is presumed to know what will be of the most benefit to the whole body of citizens. Evidently, the council of the city of Chicago has acted with the belief that a full pound loaf, with the variations provided, would furnish the best standard. It has not fixed the price at which bread may be sold. It has only prescribed that the standard weight must be found in the loaves of the sizes authorized. To the argument that to make exactly 1 pound loaves is extremely difficult, if not impracticable, the supreme court of Illinois has answered, and this construction is binding upon us, that the ordinance is not intended to limit the weight of a loaf to a pound or the fractional part or multiple of a pound, but that the ordinance was passed with a view only to prevent the sale of loaves of bread which are short in weight. Thousands of transactions in bread in the city of Chicago are with people who buy in small quantities, perhaps a loaf at a time, and, exercising the judgment which the law imposed in it, the council has passed an ordinance to require such people to be sold loaves of bread of full weight. We cannot say that the fixing of these standards in the exercise of the legislative discretion of the council is such an unreasonable and arbitrary exercise of the police power as to bring the case within the rare class in which this court may declare such legislation void because of the provisions of the 14th Amendment to the Constitution of the United States, securing due process of law from deprivation by state enactments.

It is further urged that this ordinance interferes with the freedom of contract guaranteed by the 14th Amendment, for it is said that there is a demand for loaves of bread of sizes other than those fixed in the ordinance, which demand exists among many people and also among contractors whose business requires special sizes to be made for them. This court has had frequent occasion to declare that there is no absolute freedom of contract. The exercise of the police power fixing weights and measures and standard sizes must necessarily limit the freedom of contract which would otherwise exist. Such limitations are constantly imposed upon the right to contract freely, because of restrictions upon that right deemed necessary in the interest of the general welfare. So long as such action has a reasonable relation to the exercise of the power belonging to the local legislative body, and is not so arbitrary or capricious as to be a deprivation of due process of law, freedom of contract is not interfered with in a constitutional sense. See, in this connection, Chicago, B. & Q. R. Co. v. McGuire, 219 U.S. 549, 55 L. ed. 328, 31 Sup. Ct. Rep. 259, and the previous cases in this court reviewed in the course of the opinion in that case.

We are unable to find that the decision of the supreme court of Illinois, affirming the judgment against the plaintiff in error, deprived him of the constitutional rights secured by the 14th Amendment to the Federal Constitution.

Judgment affirmed. 

Notes