                                                                          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
