and elaborately set forth in People v. Hawkins, forms no part of the police power, and is wholly beyond the prerogative of the Legislature.''

§ 68. Official Certification that Article has been Inspected— Stamping.

In the case of fertilizers a statute requiring them to be inspected, certified to and stamped has been upheld. This was held true even as to fertilizer imported into the State. So a statute has been held valid which required that there shall be attached to each package of fertilizer a tag, to be furnished by the agricultural commissioners of the State. How far the State may go in requiring food to be both inspected and certified to as to its purity or impurity, does not clearly appear. That it may require it to be inspected, is very clear; and that is for the purpose of determining whether or not it is fit for food. As the State may require food offered on the market to be inspected, there is no reason why it may not require a certificate of its purity or impurity to accompany the inspection.3

§ 69. Marking Weight of Packages on Label.

Statutes requiring the weight of a package to be marked on its cover or label have been held both valid and invalid.

3 157 N. Y. 1, 51 N. E. 257, 68 Am. St. 736, 42 L. R. A. 490.

4 Ex parte Hayden, 147 Cal. 649, 82 Pac. 315, 1 L. R. A. (N. S.) 184, 109 Am. St. 183.

So where a statute was held invalid which required goods manufactured in a state penitentiary to be marked "Convict Made." People v. Hawkins, 157 N. Y. 1, 51 N. E. 257, 68 Am. St. 736, 42 L. R. A. 490. But this statute was held invalid on the ground that it was an interference with interstate commerce. The defendant

had been convicted of selling a brush in the State of New York which had been made by convict labor in another State, and which had not been marked "Convict Made" as the statute required.

1 Woods v. Armstrong, 54 Ala. 150, 25 Am. Rep. 671; Renfro v. Lloyd, 64 Ala. —.

2 Campbell v. Segars, 81 Ala. 259, 1 So. 714.

3 See Turner v. Maryland, 107 U. S. 38, 2 Sup. Ct. 44, 27 L. Ed. 370, affirming 55 Md. 240.

Thus one requiring the marking of small packages of butter intended for sale with their weight in figures not less than a quarter of an inch high was held invalid, because an interference with liberty and property rights, and not a legitimate exercise of the police power. "The Act in question here is not for the purpose of preventing the sale of impure food, or the adulteration of food, or selling one kind of food under the name of another. The offense which it endeavors to create is not that of marking in the exact manner prescribed by the Act. And the manner is certainly a most onerous one. Indeed, it would scarcely be practicable to comply literally with the requirement, and an approximate compliance would be exceedingly expensive and burdensome. The Act does not come within the legitimate scope of the police power as described in the cases above cited,' and seems to be an unwarranted restriction on the citizen's constitutional right to his property and to his privilege of freely following a legitimate business, and not required by any public necessity. But a statute which required tobacco to be packed in hogsheads of stated dimensions, and then to be weighed, numbered and marked with the name and address of the owner, is valid. This is based on the power of the State to inspect tobacco. "Fixing the identity and weight of tobacco alleged to have been grown in the State, and thus preserving the reputation of the article in markets outside of the State, is a legitimate part of inspection laws; and the means prescribed therefor in the statute in question naturally conduces to that end. Such provisions, as parts of inspection laws, are as proper as provisions for inspecting quality; and it

112

1 They are Ex parte Drexel, 147 Cal. 763, 82 Pac. 429, 2 L. R. A. (N. S.) 588; Ex parte Hayden, 147 Cal. 649, 82 Pac. 315, 1 L. R. A. (N. S.) 184, 109 Am. St. 183; Ex parte Dickey, 144 Cal. 234, 77 Pac. 924, 66 L. R. A. 928, 103 Am. St. 82; State v. Snow, 81 Iowa 642, 47 N. W. 777, 11 L. R. A. 355; Ex parte Jentzsch, 112 Cal. 468,

44 Pac. 803, 32 L. R. A. 664; In re Kelso, 147 Cal. 609, 82 Pac. 241, 2 L. R. A. (N. S.) 796, 109 Am. St. 178; Ex parte Whitwell, 98 Cal. 73, 32 Pac. 870, 19 L. R. A. 727, 35 Am. St. 152.

2 Ex parte Dietrick, 149 Cal. 104; 84 Pac. 770, 5 L. R. A. (N. S.) 873.

cannot be said that the absence of the latter provision, in respect to any particular class of tobacco, necessarily causes the laws containing the former provision to cease to be inspection laws.''3 So, notwithstanding what has been previously said, it has been held in Nebraska that a statute requiring packages of food to be marked with their weight, was valid.*

§ 70. Weight of Loaves of Bread.

A statute empowering a municipality "to direct and regulate the weight and quality of bread, the size of the loaf, and the inspecting thereof," has been held valid, and authorizes its council to adopt an ordinance carrying out the powers it grants. The court thus discusses the question:

"It is claimed by defendants that, in order to get a pound of baked bread, they are compelled to put into the oven more than a pound of dough, and that the process of baking reduces the weight, and, when asked what it is that evaporates, they reply 'water.' But they say the process of baking is not always uniform. The oven may be too hot. In such case, the bread crusts or skins quickly, retaining its moisture. And, again, it may be too cold; in which case the bread dries up rather than bakes, and, in order to insure a pound loaf, the latter contingency must be provided against, and the weight of the dough must always be regulated accordingly. That fermentation is not always regular, and, when it reaches a certain point, the dough must be put into the oven, without reference to the condition of the oven. That the cutting up of the dough, the weighing of it, and its transfer to the oven is necessarily hurried, and the scales are liable to become clogged or affected by dust. Notwithstanding all the difficulties suggested by respondents, the evidence shows that the bread inspector has been diligent in the performance of his duties; had frequently visited the several bakeries of defendants, and but one of these defendants has, before this time, been complained of, and that was

3 Turner v. Maryland, 107 U. S. 38, 2 Sup. Ct. 44, 27 L. Ed. 370, affirming 55 Md. 240.

4 Frederick v. State (Neb.), 131 N. W. 618; Lichtersteiger v. State (Neb.), 131 N. W. 623.

fifteen years ago; and it is admitted by defendants, not only that the ordinance may be complied with, but that the shortweight bread discovered by the inspector was made for the very purpose of testing the validity of this ordinance; and, after the authorities had caused complaint to be made against defendants, they resumed the former manner of doing business, and made their bread in accordance with the provisions of the ordinance. Again it is claimed that a barrel of flour will make two hundred and fifty loaves of bread, and that it is impossible to distribute an ordinary advance in price of flour over this product; in other words, that the price of a loaf of bread can not be advanced a fraction of a cent. This difficulty affects the retail dealer more than the wholesaler. It has to be met in the sale of a pound of nails, of a dozen buttons, or of a paper of needles, as well as in the sale of a loaf of bread. The ordinance does not attempt to regulate the price of the commodity. That is not necessarily fixed with reference to flour at its cheapest price, so that, until the price of flour is reduced until it reaches a point where the reduction may be distributed, the dealer gets the advantage of the reduction, and when it advances above the standard the consumer gets the advantage, until a point is reached where the advance may be added. This fluctuation and these results are ordinary incidents of trade. The State may institute any reasonable preventive remedy when the frequency of the frauds, or the difficulty experienced by individuals in circumventing them, is so great that no other means will prove efficacious. Bread is an article of general consumption. It is usually sold by the loaf, and the individual consumer, in the majority of cases, buys a single loaf. Fach transaction involves but a few pennies, although the number of individual transactions in a large city reaches each day into the thousands, and the opportunities for fraud are frequent. It would be practically impossible to prevent fraud in the sale of short-weight loaves, if the matter was left to the ordinary legal remedy afforded the individual. consumer for fraud or deceit. The amount involved would not justify a resort to litigation. Sales are invariably made

in loaves of the size of one, two or four pound packages, and the ordinance simply takes the usual and ordinary packages or loaves into which bread is made, and fixes the standard of weight of each package. It does not prohibit the sale of bread by weight if it overruns, as it is claimed that it sometimes does, nor does it prohibit the exaction of an increased price by reason of the additional weight. It does not prohibit the sale of a half or a quarter or any other fraction of a loaf. Our statutes not only fix the number of pounds of each of the various commodities that shall constitute a bushel, but they also provide that a "box" or a "basket" of peaches shall contain one-third of a bushel, and they fix the size of a "barrel" of fruit, roots, or vegetables, and they may, with equal propriety, fix the weight of a package or loaf of bread. The police power of a State is not confined to regulations looking to the preservation of life, health and good order and decency. Laws providing for the detection and prevention of imposition and fraud, as a general proposition, are free from constitutional objection." A statute may be enacted requiring that bread should be sold only in loaves of certain weights, and that they should bear a label showing the weight and address of the maker.2

An ordinance based on such a statute authorizing its enactment is not void as unreasonable on the ground that it attempts to regulate the price of bread, and the elements entering into the composition of bread may so fluctuate in value as to necessitate a change in the price of the loaves. Nor is it invalid on the ground that it can not be complied with without great loss to the baker, as the evaporation of the weight of a loaf changes after leaving the oven. and that to comply with the ordinance the loaf must weigh over a prescribed weight on leaving it. Nor is it void because of the limitation of loaves to certain weights; nor that it did not permit loaves to be sold by special contract other

1 People v. Wagner, 86 Mich. 594, 49 N. W. 609, 13 L. R. A. 286, 24 Am. St. Rep. 141.

2 Chicago v. Schmidinger, 243

Ill. 167, 90 N. E. 369, 372. This was an ordinance authorized by a statute.