
    J. A. Guillotte v. City of New Orleans.
    Such portions of the Act No. T1 of 1852, entitled “ An Act to consolidate the city of New Orleans and provide for the government and administration of its affairs,” as are not contrary to the Act No. 164 of 1856, entitled M An Act to amend an Act entitled * An Act to consolidate the city of New Orleans and to provide for the government of the city of New Orleans and the administration of the affairs thereof,’ ” are not repealed by the latter Act.
    The former city authorities having had the power “ to regulate every thing which relates to bakers,” the present city authorities have not been deprived of it by the Act of 1856.
    There is nothing unconstitutional in those parts of the city ordinance which regulate the weight and inspection ofbread.
    The authority given by the ordinance to seize bread unstamped or deficient in weight, and to conduct the offender before the Recorder to be by him dealt with, is not a violation of Article 6 of the amendments to the Constitution of the United States.
    Violations of the city ordinances may be prosecuted before the Recorders of New Orleans, where it is so directed by law or the ordinance.
    The forfeiture, for the use of the city workhouse, of bread illegally baked is not a violation of Art. 105 of the Constitution.
    The contract spoken of by Article 105 of the Constitution, the obligation of which the Legislature is prohibited from impairing, is a contract in existence at the time of the passage of the law.
    APPEAL from the Third District Court of New Orleans, Kennedy, J.
    
      G. Dvfour, for plaintiff and appellant.
    
      J. J. Miehel, for defendant.
   Merrick, C. J.

This suit, commenced by injunction, is brought to cause the ordinance of the city “Establishing the assize and regulating the weight and inspection ofbread,” to be decreed illegal.

The question to be decided is thus stated by the plaintiff’s and appellant’s counsel, viz:

“The issue submitted to this court is whether there is any such law as would authorize the defendant to pass and enforce the ordinance referred to above,— marking out the bakers of New Orleans as a peculiar set of traders, and holding that thebread manufactured by their skill and labor is notproperty, and its worth depends not on the market price. If no such law exists, the ordinance is an oppressive municipal assumption of power. If a provision is designated, as a warrant for the action of the city, it must, like all legislation in derogation of common right, he strictly construed. And the duty would then arise for this court to see how far such an exceptional law could stand the test of the Constitution.”

The powers of the city of New Orleans are in part conferred by the Constitution of the State, and in part by legislative enactments. It can have no other powers, from those sole sources of power, than those conferred either expressly or by necessary implication.

Assuming the title of the ordinance to express clearly it objects, has the Constitution or the Legislature conferred upon the city of New Orleans the right to pass the ordinance?

We find by the Act of 1816, the Legislature conferred upon the city, among other things, the right “ To establish one or more market places, and to determine the mode of inspection for all comestibles sold publicly, either in said markets or in other places; to regulate everything which relates to bakers, butchers, tavern keepers, or to grog shops, and other persons keeping public houses, draymen, horse drivers, water carriers, and slaves employed as day laborers ; to fix the salaries of the said draymen, horse drivers, water carriers and day laborers, and to make any other regulation which may contribute to the better administration of the affairs of the said corporation, as well as for the maintenance of the police, tranquility and safety of said city.” This power however was accompanied by a proviso, that the Mayor and council should not have the power of fixing the price of any article sold in market or other places. But in regard to butchers moat, and to the bakers of bread, the statutes of 1807 and 1814 seem to have expressly conferred the power to regulate the price, and by the 7th section of the Act of 1816 it was provided that no powers before granted were withdrawn from the Mayor and council by that Act.

When the city was divided into municipalities, in 1836, allythe powers of the city government were conferred upon the respective municipalities, and these again were, by the twenty-second section of the Act of 1832, consolidating the city, conferred upon the new corporation. Acts, 1852, p. 48.

But the Act of 1856, which is entitled “An Act to amend An Act entitled ‘ An Act to consolidate the city of New Orleans, and to provide for the government of the city of New Orleans and the administration of the affairs thereof,’ ” has, while making, in many respects, the most minute provisions for the administration of the government of the city, only vested the Common Council with “ all the powers, rights, privileges and immunities incident to municipal corporations and necessary to the proper government of the same,” thus adopting the precise language of the commencement of the 22d section of the Act of 1852, but entirely omitting the most important portion of that section which conferred upon the city “ all the powers, rights, privileges and immunities possessed and enjoyed,” as already observed, by the First, Second and Third Municipalities of New Orleans, and which provided further, that the ordinances in force in said municipalities should remain in full rigor, until modified or repealed by the Common Council. Moreover, the 133d section of the Act of 1856 repeals all laws and parts of laws contrary to the provisions of the Act. The ordinance in question having been passed in October, 1856, two questions fairly arise, viz : Is the pow'er to establish the assize and regulate the weight and inspection of bread, a power, right, privilege or immunity incident to a municipal corporation, and necessary for the proper government of the same ? If not, were the powers conferred upon the city or rather continued in the city by the Act of 1852 repealed by the Act of 1856 ?

As it is the duty of municipal corporations, for the government of cities, to have regard to the health of the same, it is possible that the Act of 1856, considered as an original Act and only charter of the city, might be held to confer the power upon the city to prevent the sale of bread made out of unwholesome flour and materials, and, as a consequence, cause the same to be inspected; but we do not think it could be held, under any of the ordinary rules of construction, to have conferred the right to regulate the assize, that is the weight and price of bread, for this is a power not absolutely necessary for the proper government of the city, although it is a power we presume expressly conferred upon most cities by their charters.

It becomes important, therefore, to consider the second question, viz: whether the Act of 1856 has repealed so much of the former law as conferred the power upon the city to regulate the assize of bread ?

It will bo observed that the title of the Act of 1856, as recited, is to emend the Act of 1852. Under Article 115 of the Constitution it cannot, therefore, be hold a total repeal of that statute, nor does it under Article \16 pwrport to reenact and publish at length any portion of the twenty-second section of the Act of 1852, although it has adopted a phrase from this section. We conclude that such portions of the Act of 1852 as are not contrary to the Act of 1856, are not repealed by it. The powers, therefore, conferred by the former Legislatures upon the city, and embraced in the 22d section of the Act of 1852, and not contrary to nor inconsistent with it, have not been repealed.

The city, and formerly the municipalities, having had the right “ to regulate everything which relates to bakers,” (provided they allowed them the proper profit upon a barrel of flour,) the Act of 1856 has not deprived the present city authorities of that power.

Coming now to examine the particular portions of the ordinance complained of, we see nothing unconstitutional or illegal in those parts of the ordinance requiring every baker to cause the bread to be marked with his initials or some other mark, nor in regulating the size of the loaves of bread to he sold. The fifth section which authorizes, between the rising and setting of the sun, certain police officers to enter any bake-house, shop, store-house, &c., where bread is kept, and stop and detain all bakers carrying bread for sale, to examine whether the same is marked, and ascertain the weight thereof, and in case it is unstamped, or wanting in weight, or not baked according to the ordinance, to conduct the offender before the Recorder, there to be dealt with, is no violation of Article 6 of the amendments to the Constitution of the United States.

That Article applies to process issued and searches made by officers of the of the United States Government, and has no application, as a shield, to persons who, by their employment, bind themselves to comply with certain police regulations of the individual States, or of particular cities deriving their powers from one of the States.

The Recorders of New Orleans, under the Constitution and laws of the State, have certain judicial powers. Offences for the violation of the city ordinances may be prosecuted before them where it is so directed by law or the ordinance, and we see nothing illegal in enforcing the penalties of the ordinance before the Recorder. The forfeiture of the bread illegally baked for the use of the city workhouse is no more a violation of Article 105 of the Constitution, which provides that vested rights shall not he divested unless for purposes of public utility and for adequate compensation previously made, than is the fine of a thousand dollars, or other sum, inflicted at the discretion of the coui’t in the case of a conviction for an assault and battery, or other offence.

The illegal bread, if it can be considered as having any value, andthe penalty in money denounced for crime, are forfeited to the State or city by reason of the crime, and the State or city in exacting the penalty is not taking that which is strictly the property of another in the sense of Article 105 of the Constitution.

Judgment affirmed.

SAME CASE ON A RE-HEARING.

Merrick, O. J.

An application for a re-hearing has been made by the plaintiffs in this case, on the ground, that the argument of plaintiff’s counsel on the constitutional question has been entirely overlooked.

We think we misapprehended the force of the plaintiff’s argument on one branch of the case. As we understand it now, it is thus: that the Act of the Legislature allowing the city authorities to fix the price of bread as well as the size of the loaves to be sold, violates Articles one hundred and five and one hundred and twenty-three of the Constitution, because it enables the city to fix the price of bread below its market value, and thus take from the plaintiff, for the public use, the difference between the actual value and the price fixed without compensation, and also imposes upon him a tax or burden which is unequal, and not in proportion to the value of the property he sells with referance to other property.

The contract spoken of by Article 105 of the Constitution, the obligation of which the Legislature is prohibited from impairing, is a contract in existence at the time of the passage of the law. The Article 105 has never been supposed to infringe upon the power of the Legislature to regulate future contracts; a power exercised by every people and inherent to sovereignty. Thus, our Legislature has prescribed the forms and conditions of contracts, and, in the contract of sale has declared that unless certain forms be observed the sale shall be null as to third persons; that if the thing sold is affected by vices and defects the purchaser may rescind it, that if the owner of an immovable should sell the same for less than one-half of its true value, he may annul the same although in his contract he had expressly abandoned the right of claiming such rescission, and had declared that he gave to the purchaser the surplus of the value of the thing sold. In these and the like cases there is no pretence that the obligation of a contract had been impaired, because the law in force at the time enters into and forms a part of the contract. If the supposed contract is made in violation of the law, it has no valid existence as a contract.

Now, when the lawgiver says to the baker, “ you shall not make and sell bread within certain boundaries unless you limit your profits to a certain sum for each barrel of flour which you make into bread, and unless you conform to certain regulations as to the size of the loaves, the places and times of sale,” the obligation of no contract has been impaired, for none has been entered into ; no vested right has been taken away, for no man has a vested right (unless the same be expressly granted by a special Act of the Legislature) to furnish a certain portion of the population with bread, and no tax has been levied upon the baker, for no part of the price of the bread goes into the public trcasury, and it is entirely optional with him whether he will sell his flour or make it into bread, or pursue some other vocation.

Re-hearing refused.  