The opinion
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 (un *436 less 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.