Mathias Schmidinger v. City of Chicago

Decision Date13 January 1913
Docket NumberNo. 115,115
Citation57 L.Ed. 364,226 U.S. 578,33 S.Ct. 182
PartiesMATHIAS SCHMIDINGER, Plff. in Err., v. CITY OF CHICAGO, Illinois
CourtU.S. Supreme Court

Messrs. Harry Rubens and Benjamin F. Ninde for plaintiff in error.

[Argument of Counsel from pages 579-581 intentionally omitted] Messrs. Joseph F. Grossman and William H. Sexton for defendant in error.

[Argument of Counsel from pages 581-583 intentionally omitted] 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 cir- cuit 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...

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