Skaggs v. City of Oakland

CONREY, J.

The sole question here involved is that of the validity of section 5-13.024 of an ordinance enacted by the Oakland City Council relating to regulation of the bakery business (Ordinance 463 C. M. S., adding sections 5-13.021, 5-13.022, 5-13.023 and 5-13.024 to the Oakland Municipal Code, adopted December 18, 1934), which section reads as follows: “Sec. 5-13.024, hours and times of delivery of bakery goods. It shall be unlawful for any person to deliver within the City of Oakland any bakery goods on the following holidays: Sunday, New Year’s Day, Washington’s Birthday, Memorial Day, Fourth of July, Labor Day, Thanksgiving Day and Christmas, or on other days between the hours of 6 p. m. and 6:30 a. m. ”

Plaintiff doughnut and bakery companies instituted this action against the City of Oakland, its City Council, and certain city officials, to obtain an injunction restraining enforcement of the above provision and to have it adjudged null and void. The trial court issued a temporary restraining order but sustained without leave to amend defendants’ demurrer to the. first amended complaint. Judgment was entered accordingly and plaintiffs appealed.

Plaintiffs allege that they are engaged in the business of manufacturing and supplying doughnuts and bakery products in the City of Oakland and that they manufacture, sell and deliver approximately 75 per cent of all fresh, wholesome doughnuts, as well as a substantial portion of all other baked goods consumed in said city. They claim that the effect of enforcement of the above provision would be virtually to destroy their business, for the reason that the major portion of their deliveries, both to retailers and direct to the con

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suming public, must be made during early morning hours in order to have the fresh product reach retailers, such as restaurants and bakeries, in sufficient time to permit of a resale to breakfast patrons and, in case of direct sales, reach consumers’ tables before the breakfast hour, which begins at any time from 2:30 to 7 A. M. To start deliveries at 6:30 A. M. would be too late. Attention is called to the fact- that the section does not deal with both manufacture and delivery but solely with

delivery

of baked products. Plaintiffs submit that the delivery of baked products in no way differs from delivery of other food products prepared for immediate consumption, such as ice cream, confectioneries, milk, butter, etc., all of which may be delivered at any hour without restriction.