The right of the legislature, or the municipality under
legislative authority, to regulate one trade and not another is
well settled as not denying equal protection of the laws.
The right of the legislature, or the municipality acting under
state authority, to regulate trades and callings in the exercise of
the police power without federal interference under the due process
clause of the Fourteenth Amendment is also well settled.
Gundling v. Chicago, 177 U. S. 183.
The making and selling of bread, particularly in large cities,
is obviously a trade subject to police regulation.
Local legislative authorities, and not the courts, are primarily
the judges of the necessities of local situations calling for
police regulation,
Page 226 U. S. 579
and the courts can only interfere when such regulation
arbitrarily exceeds a reasonable exercise of authority.
The fact that laws prescribing standard sizes of loaves of bread
and prohibiting the sale of other sizes have been sustained by the
courts of several states shows the necessity for police regulation
of the subject.
Mere inconvenience to merchants conducting a business subject to
police regulation does not vitiate the exercise of the power.
There is no absolute liberty of contract, and limitations
thereon by police regulations of the state are frequently necessary
in the interest of public welfare, and do not violate the freedom
of contract guaranteed by the Fourteenth Amendment.
C., B.
& Q. R. Co. v. McGuire, 219 U. S. 549.
The ordinance of Chicago of 1908 enacted under legislative
authority, fixing standard sizes of bread loaves and prohibiting
the sale of other sizes, is not unconstitutional as depriving those
dealing therein of their property without due process of law or as
denying them equal protection of the law or as interfering with
their liberty of contract.
245 Ill. 317 affirmed.
The facts, which involve the constitutionality under the
Fourteenth Amendment of the bread loaf ordinance of the City of
Chicago, are stated in the opinion.
Page 226 U. S. 583
MR. JUSTICE DAY delivered the 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,
Page 226 U. S. 584
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). 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). 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 one inch
square, or, if round, at least one 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
Page 226 U. S. 585
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 one 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 ten
dollars nor more than one hundred dollars 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 Fourteenth 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
Fourteenth
Page 226 U. S. 586
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 percent of the bread consumed in that city. Bread is sold in
Chicago in large quantities at certain prices per loaf, 95% of the
bread made by the bakers, outside of the restaurant business,
consisting of loaves sold for five cents or multiples thereof, and
85% of such bread being sold for five cents a loaf. The five-cent
loaf weighs about fourteen 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 seven 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 sixteen
ounces, it is necessary to scale the dough before baking at about
twenty ounces.
The record also shows that, although the price of bread sold by
the loaf in Chicago has generally been five cents or some multiple
thereof, loaves of bread weighing approximately one pound have been
sold for five, six and seven cents at different times.
Page 226 U. S. 587
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, 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;
McLean v. Arkansas, 211 U. S. 539, 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 sixteen 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 entrusted with the regulation
of such matters, and not the courts, are
Page 226 U. S. 588
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;
Mugler v. Kansas, 123 U.
S. 623;
Minnesota v. Barber, 136 U.
S. 313,
136 U. S. 320;
Atkin v. Kansas, 191 U. S. 207,
191 U. S. 223;
McLean v. Arkansas, supra.
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, supra, 211 U. S. 550;
Freund on Police 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.
Commonwealth v. McArthur, 152
Mass. 522;
People v. Wagner, 86 Mich. 594.
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 five cents, and when it reaches the consumer is
generally fourteen ounces in weight, and it is urged that to make a
loaf of the standard size of one 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 twenty
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
Page 226 U. S. 589
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 one 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 Fourteenth
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 Fourteenth 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
Page 226 U. S. 590
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, Burlington & Quincy Railroad Co. v.
McGuire, 219 U. S. 549, 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 Fourteenth
Amendment to the federal Constitution.
Judgment affirmed.