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invalid either as being in restraint of trade or as creating a monopoly. So it has been decided that a municipal ordinance requiring, under appropriate penalty, bulky commodities like cotton and coal for sale within the city limits to be weighed by a public weigher on public scales maintained by the.city is a valid exercise of police power, being designed to prevent fraud and imposition, and that the enactment and enforcement of a weighing ordinance are in discharge of a governmental function, and do not engage the city in commercial business. But the municipality must act within the scope of the powers conferred, and the ordinance should provide reasonable facilities for the accommodation of the public. It has been held that an express power to regulate weights and measures to be sealed by a city sealer so as to be made conformable to the standards of weights and measures established by the general laws of the state does not by implication confer the right to determine the accuracy of charts, ready reckoners, adding machines or other devices by which the value of the thing weighed shall be determined. And a weighing ordinance, requiring that certain commodities shall be weighed on the public scales before being offered for sale in the municipality, must contain ample provision for compliance with its terms, and must be reasonably administered. 10

7. Inspection and Sealing. The inspection of weights, and measures has always been regarded as the proper subject of regulation by the state in the exercise of its police power. This power may also be delegated to a municipality, 11 and it has been held that even in the absence of express authority a city may provide for the inspection of weights and measures.19 It has been decided that an ordinance is valid which confers power on the sealer of weights and measures to inspect them every six months and as much oftener as he thinks proper, and that when not in conformity to the standard they should be sent by the owners to a place designated for correction 13 And under a statute which enabled councils of towns to appoint inspectors of weights and measures, to test, and, if found correct, to stamp

4. Cartersville v. McGinnis, 142 Ga. 121 N. W. 322, 23 L.R.A.(N.S.) 266 71, 82 S. E. 487, Ann. Cas. 1915D 1067 and note. and note.

Note: 51 L.R.A.(N.S.) 732. Notes: 51 L.R.A.(N.S.) 732; Ann. 8. Note: 51 L.R.A.(N.S.) 732. Cas. 1912C 255.

9. Parker v. Austin, 156 Mieli. 573, 5. Cartersville v. McGinnis, 142 Ga. 121 N. W. 322, 23 L.R.A.(N.S.) 266 71, 82 S. E. 437, Ann. Cas. 1915D and note. 1067 and note; State v. Eck, 121 10. Cartersville v. McGinnis, 142 Minn. 202, 141 N. W. 106, Ann. Cas. Ga. 71, 82 S. E. 187, Ann. Cas. 1915D 1914C 678 and note.

1067 and note. 6. Carter.;ville v. McGinnis, 142 Ga. 11. Note: Ann. Cas. 19120 252. 71, 82 S. E. 487, Ann. Cas. 1915D 12. Note: Ann. Cas. 1912C 253. 1067 and note.

13. Notes: Ann. Cas. 1912C 253; 13 7. Parker v. Austin, 156 Mich. 573, L.R.A. 286.

the same, a by-law of a town which prohibited the use of spring scales for any market purpose has been hekl not to be beyond the power of the town.14 So a city ordinance, authorizing an inspector to measure coal sold within the city, and allowing him a fee therefor, has been declared not to be repugnant to the constitution of the United States, as applied to imported coal.15 In some jurisdictions a deputy sealer of weights and measures, appointed by the mayor and aldermen or the selectmen of a municipality, is a municipal officer.16

8. Certificate or Sworn Statement as Evidence.—The legislature has the right to give to the act of the weighmaster a high character as evidence, and to provide that such act can be impeached only when the party complaining or the party under whom he claims was himself free from fault or negligence, and when it is demonstrated by clear, strong, and satisfactory evidence that there was in fact a substantial mistake in the weighing 17 But it is beyond the power of the legislature to make the finding of the weighmaster as to the weights conclusive evidence of that fact,18 and an act so providing has been de clared to be unconstitutional in that it denies the buyer or seller, when sued by the other, due process of law.19 So it has been held that a statute is in excess of the powers of a legislature which makes conclusive the action of a state weighmaster in weighing grain at terminal elevators, it being regarded as an arbitrary exercise of power, and an attempt to deprive a person of his day in court by closing his mouth absolutely.20 The legislature has no power to make the sworn statement of a shipper of grain conclusive as to the amount delivered to the carrier, but the fact that a statute to this effect is unconstitutional does not prevent the use of such statement as prima facie evidence.

9. Fees.-In connection with statutes or ordinances requiring the weighing of articles on public scales by official weighers, it is frequently provided that fees therefor shall be paid by the parties, and provisions of this character have generally been sustained. Thus it

14. Note: 23 L.R.A.(N.S.) 266. dated Elevator Co., 75 Minn, 308, 77

15. Charleston v. Rogers, 2 McCord N. W. 973, 74 A. S. R. 484 and note, L. (S. C.) 495, 13 Am. Dec. 751. 43 L.R.A. 843; Taylor V. Anderson, Note: 51 L.R.A.(N.S.) 732.

40 Okla. 316, 137 Pac. 1183, 51 L.R.A. 16. Note: Ann. Cas. 1911D 1237. (N.S.) 731 and note. See Shellabar

17. Vega Steamship Co. v. Consoli- ger Elevator Co. v. Illinois Cent. R. dated Elevator Co., 75 Minn. 308, 77 Co., 278 III. 333, 116 N. E. 170, L.R.A. N. W. 973, 74 A, S. R. 484 and note, 1917E 1011. 43 L.R.A. 843.

20. Vega Steamship Co. v. ConsoliNote: 51 L.R.A.(N.S.) 732.

dated Elevator Co., 75 Minn. 303, 77 18. Vega Steamship Co. v. Consoli- N. W. 973, 74 A. S. R. 484 and note, dated Elevator Co., 75 Minn. 308, 77 43 L.R.A. 843. N. W. 973, 74 A. S. R. 484 and note, 1. Shellabarger Elevator Co. v. Il43 L.R.A. 843; Taylor v. Anderson, linois Cent. R. Co., 278 Ill. 333, 116 40 Okla. 316, 137 Pac. 1183, 51 L.R.A. N. E. 170, L.R.A.1917E 1011. (N.S.) 731 and note.

2. Cartersville v. McGinnis, 142 Ga. 19. Vega Steamship Co. v. Consoli-_71, 82 S. E. 487, Ann. Cas. 1915D has been held that an ordinance requiring coal dealers to have their coal officially weighed, to pay a small fee therefor, and to furnish official certificates of weights to consumers, is valid under a charter authorizing the city to provide for weighing coal and to regulate retailers thereof. Such fees when exacted for the purpose of covering the necessary expense of carrying out the provisions of the law are not regarded as in the nature of a tax. And the requirement that all sales of certain commodities within a city shall be by the city weights, and the exaction of a market fee for each weighing, do not put the city into a business enterprise. Such regulation of weighing is in the discharge of a governmental function, and in no sense a private enterprise. Measures of this character will be sustained unless they are plainly unreasonable and excessive. They must, however, be for purposes of regulation only, and if so large as to indicate an intention that the fees imposed are exacted for revenue purposes they will be considered as unlawful. It has been held that the power to impose a fine for nonpayment of fees for inspecting a merchant's scales and measures was not to be inferred from a general grant of authority to the city to promote its “general welfare," and that in the absence of explicit authority in positive law, an ordinance was unreasonable which required every merchant and shopkeeper to pay fees twice a year to have the weights and measures necessarily used in his business approved by a local inspector. So it has been decided that a city is not authorized to pass an ordinance which would compel one not engaged in selling merchandise to pay for the inspecting of his scales, where the only power conferred by its charter upon the subject is tu make ordinances "in relation to the inspection and sealing of weights and measures, and enforcing the keeping and use of proper weights and measures by vendors." And in the absence of an express statutory provision delegating such power to a city, it has no authority to provide that its sealer of weights and measures may recover from merchants for unsolicited services in testing their weights and measures. 7

III. PARTICULAR LEGISLATION 10. Labels Indicating Weight of Goods, Capacity of Container, etc., ---Provision is frequently made by law that certain articles shall be

1067 and note; Charleston v. Rogers, 24, 42 Ain. Rep. 527; Charleston v. 2 McCord L. (S. C.) 195, 13 Am. Rogers, 2 McCord L. (S. C.) 495, 13 Dec. 751.

Am. Dec. 751. Notes: 23 L.R.A.(N.S.) 267; 51 Note: Ann. Cas. 1912C 256. L.R.A.(N.S.) 731; Ann. Cas. 1912C 5. Cartersville v. McGinnis, 142 Ga. 256.

71, 82 S. E. 487, Ann. Cas. 1915D 3. Sylvester Coal Co. v. St. Louis, 1067 and note. 130 Mo. 323, 32 S. W. 649, 51 A. S. 6. Note: 51 L.R.A.(N.S.) 732. R. 566 and note.

7. Note: 23 L.R.A.(N.S.) 267. 4. O'Maley v. Freeport, 96 Pa. St.

sold in containers or packages with label thereon stating the net weight of the article sold,' and such laws have been declared to be clearly within the police power of the state for the prevention of fraud," and as not consulating the taking of property without due process of law, or violating the commerce cause of the constitution.io While the ('Kércise of the police power fixing weights and measures and standard size: must necessarily limit the freedom of contract which would otherwise exist, yet such limitations are constantly imposed upon the right to contract freely, because of restriction upon that right deemed necessary in the interest of the general welfare. So long as such action has a reasonable relation to the exercise of the power belonging to the local legislative body and is not so arbitrary or capricious as to be a deprivation of due process of law, freedom of contract is not interfered with in a constitutional sense 11 So it has been held that an ordinance requiring milk dealers indelibly to indicate on the glass jars containing the milk sold the capaeity of the jars does not unconstitutionally deprive them of their property in the old jars. And a provision therein imposing a penalty on a milk dealer for having in possession, with intent to use it, any bottle or jar of less capacity than is marked on it, is also a valid exercise of the police power, and does not unconstitutionally deprive him of his property rights; nor

8. Mobile v. Yuille, 3 Ala. 137, 36 684; Chicago v. Schmidinger, 243 Ill. Ala. 137, 36 Am. Dec. 411, overruled 167, 90 N. E. 369, 17 Ann. Cas. 614, on another point by Huntsville v. 44 L.R.A.(N.S.) 632 and note; State Phelps, 27 Ala. 55; Chicago v. Bow- v. Belle Springs Creamery Co., 83 man Dairy Co., 234 III. 294, 84 Kan. 389, 111 Pac. 474, L.R.A.1915D N. E. 913, 14 Ann. Cas. 700 and 515; People v. Wagner, 86 Mich. 594, note, 17 L.R.A.(N.S.) 684; State v. 49 N. W. 609, 24 A. S. R. 141 and Belle Springs Creamery Co., 83 Kan. note, 13 L.R.A. 286 and note; Fread389, 111 Pac. 47+, L.R.A.1915D 515; rich v. State, 89 Neb. 343, 131 N. W. People v. Wagner, 86 Mich. 594, 49 618, 34 L.R.A.(N.S.) 650; State v. N. W. 609, 24 A. S. R. 141 and note, Armour, 27 N. D. 177, 145 N. W. 1033, 13 L.R.A. 285 and note; State V. Ann. Cas. 1916B 1149 and note, L.R.A. Armour, 27 N. D. 177, 145 N. W. 1916E 380 and note, affirmed in 240 1033, Ann. Cas. 1916B 1149 and note, U. S. 510, 36 S. Ct. 440, 60 U. S. L.R.A.1916E 380 and note, affirmed in (L. ed.) 771, Ann. Cas. 1916D 548 240 U. S. 510, 36 S. Ct. 440), 60 U. and note; State v. Co-operative Store S. (L. ed.) 771, Ann. (as. 19161 548 Co., 123 Tem. 399, 131 S. W. 867, and note; State v. Co-operative Store Ann. Cas. 19120 248 and note. Co., 123 Tenn. 399, 131 S. W. 867, Note: :25 A. S. R. 888. Ann. Cas. 1912C 248 and note.

10. State v. Armour, 27 N. D. 177, Note: L.R.A.1916E 380.

145 N. W. 1033, Ann, ('as. 1916B 1149 Generally as to the labeling or and note, L.R.A.1916E 380 and note, branding of packages containing arti- affirmed in 240 U. S. 510, 36 S. Ct. cles of food, see Food), vol. 11, p. 1106 440, 60 U. S. (L. ed.) 771, Ann. Cas.

1916D 518 and note. 9. Chicago v. Bowman Dairy Co., 11. Schmidinger v. Chicago, 226 U. 234 Ill. 294, 84 N. E. 913, 14 Ann. S. 578, 33 S. Ct. 182, 57 U. S. (L. Cas. 700 and note, 17 L.R.A.(N.S.) ed.) 364, Ann. Cas. 1914B 284.

et seq.

is it special legislation, although it does not apply to all milk dealers, or to all persons who vend substances in liquid form.19 Statutes or ordinances of the kind now under consideration have been sustained as relating to the sale of butter, 18 corn meal, 14 oysters, 15 and bread. 16 There is, however, authority to the effect that a statute 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 is an unconstitutional interference with liberty and property rights, and not :1 legitimate exercise of the police power. 17

11. Weighing Coal at Mines. In the exercise of the right to legislate concerning weights and measures acts have been passed in some states imposing on a coal mine owner or operator the duty of having the mined coal weighed before it is put through the process of screening where the employees are paid in proportion to the weight of coal mined by them. As to the validity of such statutes there is a decided lack of harmony.18 In some jurisdictions they have been sustained, 19 as clearly within the scope of the police power, their manifest purpose being to prevent those who operate coal mines from perpetrating fraud upon laborers whom they have employed to mine coal by the quantity:20 It has also been said in favor of such legislation that information is by this means furnished to the miner by which he may act intelligently, and rest his demand for wages upon the calculated results of what he has accomplished in the past, and that it also affords the operator knowledge, from the use of which wages may be adjusted, based upon known facts. Such a law is further held to be beneficial in that it supplies the public with statistics showing the total amount of coal produced in the state.1 A statute making it unlawful for any mine owner, when more than a certain number of men are employed

12. Chicago v. Bowman Dairy Co., Cas. 1916D 548. 234 III. 294, 84 N. E. 913, 14 Ann. Note: Ann. Cas. 1912C 252. Cas. 700, 17 L.R.A.(N.S.) 684.

17. Ex parte Dietrich, 149 Cal. 104, 13. State v. Belle Springs Creamery 84 Pac. 770, 5 L.R.A.(N.S.) 873. Co., 83 Kan. 389, 111 Pac. 474, L.R.A. 18. Note: 11 Ann. Cas. 74. 1915D 515.

19. McLean v. State, 81 Ark. 304, 14. State v. Co-operative Store Co., 98 S. W. 729, 126 A. S. R. 1037 and 123 Tenn. 399, 131 S. W. 867, Ann. note, 11 Ann. Cas. 72, affirmed in 211 Cas. 1912C 248 and note.

U. S. 539, 29 S. Ct. 206, 53 U. S. 15. Note: Ann. Cas. 1912C 252. (L. ed.) 315; State v. Wilson, 61 Kan.

16. Chicago v. Schmidinger, 243 Ill. 32, 58 Pac. 981, 47 L.R.A. 71; State 167, 90 N. E. 369, 17 Ann. Cas. 614, v. Peel Splint Coal Co., 36 W. Va. 14 L.R.A.(N.S.) 632 and note; People 802, 15 S. E. 1000, 17 L.R.A. 385. v. Wagner, 86 Mich. 594, 49 N. W. 20. McLean v. State, 81 Ark. 304, 609, 24 A. S. R. 141 and note, 13 98 S. W. 729, 126 A. S. R. 1037 and L.R.A. 286 and note; State v. Armour, note, 11 Ann. Cas. 72, affirmed in 211 27 N. D. 177, 145 N. W. 1033, Ann. U. S. 539, 29 S. Ct. 206, 53 U. S. (L. Cas. 1916B 1149, L.R.A.1916E 380 and ed.) 315. note, affirmed in 240 U. S. 510, 36 1. State v. Wilson, 61 Kan. 32, 58 S. Ct. 440, 60 U. S. (L. ed.) 771, Ann. Pac. 981, 47 L.R.A. 71.

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