A-Loaf Baking Co. v. Pace

• Citation: 19 S.W.2d 459
• Decision Date: 19 June 1929
• Docket Number: (No. 3287.)
• Parties: A-LOAF BAKING CO. v. PACE, Mayor, et al.
• Court: Court of Appeals of Texas

19 S.W.2d 459

A-LOAF BAKING CO. v. PACE, Mayor, et al.

(No. 3287.)

Court of Civil Appeals of Texas. Amarillo.

June 19, 1929.

Rehearing Denied July 10, 1929.

Appeal from District Court, Hutchinson County; Newton P. Willis, Judge.

Action by the A-Loaf Baking Company against Glenn A. Pace, Mayor, and others. From the judgment, plaintiff appeals. Reversed and rendered.

Shannon, Ochsner & Pheiffer, of Amarillo, for appellant.

Ove E. Overson and G. C. Harney, both of Borger, for appellees.

JACKSON, J.

This suit was instituted in the district court of Hutchinson county, Tex by the plaintiff, A-Loaf Baking Company, a Texas corporation, to enjoin the defendants, the city of Borger and its officers, from enforcing or attempting to enforce an ordinance, and especially article 2 thereof, enacted by said city to regulate the manufacture and sale of bread, rolls, cakes and other bakery products within the city of Borger.

Plaintiff, on May 9, 1929, presented its petition to the judge of the district court, in chambers, and obtained against the defendants a temporary injunction which provided for a hearing on May 13, 1929. On that date the defendants all answered, and, after a hearing, the temporary injunction was, by judgment of the court, abated, dissolved, and held for naught, from which judgment this appeal is prosecuted.

The ordinance, the validity of which is attacked as a basis for the injunctive relief sought, so far as material to a disposition of this appeal, reads as follows:

"Be it Ordained by the City Commission of the City of Borger, Texas:

"Article I. It shall be unlawful for any person, firm or corporation, or employee thereof, to manufacture any bread, rolls, cakes, or other bakery products within the City of Borger, Texas, without first having the baking establishment where the same is manufactured, and the material, equipment, etc., connected therewith, inspected by the City Health Office of the City of Borger, Texas, as hereinafter provided, and any and all such baking establishments shall be open to such inspection at all hours from 7 o'clock A. M. to 10 o'clock P. M., of each and every day said establishment is operated.

"Article II. It shall be unlawful for any person, firm or corporation, or employee thereof, to sell or offer for sale or cause to be sold any bread, rolls, cakes or other bakery products within the City of Borger, Texas, without the same shall first be held unwrapped ready for inspection by the said Health Office of the City of Borger, Texas, for at least one hour and thereafter to sell, or offer for sale, or cause to be sold any such bread, rolls, cakes or other bakery products, without the same shall before being sold, or offered for sale, or caused to be sold, securely wrapped and sealed in individual waxed paper packages. * * *

"Article IV. It shall be the duty of said Health Officer of the said City of Borger, Texas, to inspect as herein provided, any bread, rolls, cakes, or other bakery products sold or offered for sale or caused to be sold in said City of Borger, Texas, and in the event he shall find any deleterious or harmful substance on or in any such bread, rolls, cakes, and other bakery products, he shall condemn the same and it shall thereafter be unlawful for any person, firm or corporation, or employee thereof, to sell, or offer for sale or cause to be sold such condemned bread, rolls, cakes and other bakery products, and each sale thereof shall constitute a separate offense in violation thereof.

"Article V. It shall be the duty of the said Health Officer of the said City of Borger, Texas, to report all violations of this ordinance to the Police Department and cause complaints to be issued thereon and any person violating the provisions of this ordinance shall upon conviction thereof be fined in a sum not less than Twenty-Five ($25.00) Dollars nor more than One Hundred ($100.00) Dollars."

Plaintiff attacks the validity of said ordinance, and especially section 2 thereof, because: First, the provisions thereof are unreasonable and unnecessary; second, they are discriminatory, prohibitory, onerous, unjust, and unfair; third, they deny to plaintiff the equal protection of the law; fourth, they are in restraint of trade, and tend to create a monopoly in favor of the bakers residing in the city of Borger; fifth, that the methods prescribed by the ordinance for the inspection of bread have no logical relation to the end to be accomplished; sixth, that it provides a different penalty for its violation than the penalty provided by the statutes of the state of Texas; seventh, that by the provisions of such ordinance, the defendants were preventing plaintiff from selling and distributing bread and other bakery products within the city of Borger, and preventing it from carrying out its lawful contracts and obligations within said city, and destroying its business therein.

The defendants answered jointly, pleading a general demurrer, special exceptions, general denial, and alleged that said ordinance was a valid exercise of the police powers of the city of Borger, duly incorporated as a municipality of the state of Texas; that the individual defendants were only discharging their duty in enforcing and attempting to enforce said ordinance, and that said ordinance was enacted solely and only for the purpose of protecting the health of the citizens of the city of Borger.

Title 12, chapter 2 (arts. 706-719), of the Penal Code 1925 of the state, defines "adulterated" and "misbranded" foods, and prescribes the punishment for any person, firm, or corporation that manufactures, sells, or offers for sale, any food in violation of the provisions of such chapter. Said chapter also provides that bakery buildings for the preparation and production of bakery products and for the storage or display thereof for human consumption shall be clean, properly lighted, drained, and ventilated, and provides in detail how this shall be accomplished. It also provides for the ingredients that shall be placed in bakery products and the different weights permissible for a loaf of bread.

Section 6 of article 1015, Rev. St. 1925, authorizes cities to regulate the weight and quality of the bread to be sold or used within the city.

The charter of the city of Borger empowers the city to inspect bakeries and to regulate and inspect the character and standard of articles of food and drink sold or offered for sale in the city, and to establish all proper and reasonable regulations for the health and sanitation of the city and its...