Opinion — Jay Burns Baking Co. v. Bryan

8 80 ordered.

JAY BURNS BAKING COMPANY ET AL. v. BRYAN,

AS GOVERNOR OF THE STATE OF NEBRASKA,

ET AL.

ERROR TO THE SUPREME COURT OF THE STATE OF NEBRASKA.

No. 94. Argued October 19, 1923—Decided April 14, 1924.

1. The power of a State to protect the public from imposition by

sale of short-weight loaves of bread cannot be exerted in such a

way as arbitrarily to prohibit or interfere with, or impose unrea-

BURNS BAKING CO. v. BRYAN. 505

504 Argument for Plaintiffs in Error.

sonable and unnecessary restrictions upon, the business of making

and selling it. P. 513.

2. It is the duty of the court to determine whether a regulation

challenged under the Constitution has a reasonable relation to, and

a real tendency to accomplish, the purpose for which it was

enacted. Id.

. A statute of Nebraska prescribes the minimum weights of loaves

of bread to be made, or offered, for sale in the State, and, in order

to prevent the palming off of smaller for larger sizes, fixes a

maximum for each class, by allowing a “ tolerance” of only two

ounces per pound in excess of the minimum, the weights to be

determined by averaging loaves of each class in lots of twenty-five,

and to apply for twenty-four hours after baking. The evidence

demonstrated that owing to normal evaporation from bread under

conditions of temperature and humidity often prevailing in

Nebraska, it is impossible to manufacture good bread in the regular

way without frequently exceeding the prescribed tolerance and

incurring the burden of penalties prescribed by the statute, and

that compliance would necessitate selection of ingredients making

an inferior and unsalable bread, or wrapping the loaves, although

wrapping is not required by the statute and unwrapped loaves are

wholesome food in much demand by consumers. Held, That, in

the circumstances, the provision that average weights shall not

exceed these maxima is not necessary to protect purchasers against

imposition and fraud by short weights, and not calculated to

effectuate that purpose; and that it subjects bakers and sellers

of bread to restrictions essentially unreasonable and arbitrary;

and is therefore repugnant to the Fourteenth Amendment. P. 514.

108 Neb. 674, reversed.

os

Error to a judgment of the Supreme Court of Ne-

braska affirming a decree dismissing a suit brought by

bakers and sellers of bread against state officials to restrain

enforcement of a statute regulating the weights of loaves.

Mr. Matthew A. Hall, with whom Mr. Raymond G.

Young and Mr. Carroll S. Montgomery were on the briefs,

for plaintiffs in error.

Laws fixing specific weights for loaves of bread are

construed to be only against short weights, and do not

prohibit greater weights than the standards provided,

506 OCTOBER TERM, 1923.

Argument for Plaintiffs in Error. 264 U.S.

People v. Wagner, 86 Mich. 594; State v. Huber, 4 Boyce,

259; Allion v. Toledo, 99 Oh. St. 416; Chicago v. Schmid-

inger, 243 Ill. 167; Schmidinger v. Chicago, 226 U. 5S.

578; Chicago v. Schweifurth, 174 Ill. App. 64.

The same is true in regard to other articles. Spokane v.

Arnold, 73 Wash. 256; State v. Co-Operative Store Co.,

123 Tenn. 399. :

A law fixing a maximum as well as a minimum weight

fdr a loaf is illegal and invalid. Harwood v. Williamson,

1 Sask. L. Rep. 66.

Dangerous articles are subject to regulation by law,

where harmless articles are exempt. Williams v. Walsh,

79 Kan. 212; s. c. 222 U.S. 415.

There must be some logical connection between the ob-

ject sought to be accomplished by the law and the means

prescribed. Chicago v. Chicago, etc. Ry. Co., 275 Ill. 30;

Chicago, etc. Ry. Co. v. State, 47 Neb. 549.

The right to contract is property. Taylor, Due Process

of Law, § 265, pp. 490, 491; State v. Goodwill, 33 W. Va.

179; Braceville v. People, 147 Ill. 66.

Laws enacted under the guise of police regulation must

have some relation to the public health, welfare or safety.

Smiley v. McDonald, 42 Neb. 5; Wenham v. State, 65

Neb. 394; Union Pacific Ry. Co. v. State, 88 Neb. 247;

State v. Withnell, 91 Neb. 101; Urbach v. Omaha, 101

Neb. 314; Mugler v. Kansas, 123 U.S. 623.

The regulation must not be an arbitrary and unreason-

able interference with the rights of individuals. Jn re

Anderson, 69 Neb. 686; Lawton v. Steele, 152 U. S. 133;

Connecticut Co. v. Stamford, 95 Conn. 26.

Police power means the power of the State to prohibit

all things hurtful to the comfort, safety or welfare of the

community. License Cases, 5 How. 504.

The police power does not justify an enactment merely

because there is a possibility of danger which it is sought

to avert. Ex parte Whitewell, 98 Cal, 73; Freund, Police

_—

BURNS BAKING CO. v. BRYAN. 507

504 Argument for Plaintiffs in Error.

Power, § 494; State v. Sperry, 94 Neb. 785; Young v.

Commonwealth, 101 Va. 853; State v. Ramseyer, 73

N. H. 31.

If an invalid portion of an act formed an inducement to

the passage of the act, the whole act will be declared in-

valid. Trumble v. Trumble, 37 Neb. 340; State v. Poyn-

ter, 59 Neb. 417; State v. Junkin, 85 Neb. 1.

The Constitution is violated when persons engaged in

the same business are subjected to different restrictions.

Soon Hing v. Crowley, 113 U. S. 703; Louisville & Nash-

ville R. R. Co. v. Bosworth, 230 Fed. 191; Standard Oil

Co. v. Red River Parish Police Jury, 140 La. 42 ; Black v.

State, 113 Wis. 205; In re Von Horne, 74 N. J. Eq. 600.

A law palpably unreasonable and arbitrary and exceed-

ing all reasonable classification, is not within the police

power of a State. Price v. Illinois, 238 U. S. 446; Meyer

v. Nebraska, 262 U.S. 390; Mugler v. Kansas, 123 U. S.

623.

Determination by the legislature of what constitutes

proper exercise of police power is subject to supervision

by the courts. Meyer v. Nebraska, supra; Mugler v.

Kansas, supra.

The business of baking is not clothed with a public

interest. Wolff Packing Co. v. Court of Industrial Rela-

tions, 262 U. S. 522.

Freedom of contract is the general rule, and restraint

is the exception; and restraint can only be justified by

exceptional circumstances. Adkins v. Children’s Hos-

pital, 261 U. S. 525; State v. Edgecomb, 108 Neb. 859.

Only public necessity can justify the exercise of the

police power by a State. Chicago, etc. Ry. Co. v. Drain-

age Commissioners, 200 U. S. 561; State v. Edgecomb,

supra; People v. Klinck, 214 N. Y. 121.

The constitutionality of a law may depend upon the

result of its practical operation. Erickson v. Nine Mile

Irrig. Dist., 192 N. W. 694.

508 OCTOBER TERM, 1923.

Argument for Defendants in Error. 264 U.S.

Mr. Lloyd Dort, Assistant Attorney General of the

State of Nebraska, with whom Mr. O. S. Spillman, Attor-

ney General, was on the brief, for defendants in error.

Equity will mot interfere with the enforcement of

criminal statutes.

The mere possibility that property rights of an indi-

vidual may be affected is not sufficient.

In the present case no criminal prosecution had been

instituted and even before the law was in operation it

was attacked. The bakers have never made any bona

fide effort to comply with the law.

The law in question does not violate the Constitution

of the United States nor that of Nebraska.

The law is a regulatory law and it does not in any

manner confiscate the property or business of the bakers

nor prohibit them from continuing their occupation.

It is claimed that the law makes no provision for the

punishment of nonresidents of the State. It is not re-

quired, however, that the law be uniform except as

operating within the jurisdiction of the State.

It has been definitely decided that the regulation of

the manufacture and sale of food articles, bread in par-

ticular, is a proper subject of legislation. Schmidinger

v. Chicago, 226 U. S. 578; Chicago v. Schmidinger, 243

Ill. 167; People v. Wagner, 86 Mich. 594; State v. Nor-

mand, 76 N. H. 541; State v. Layton, 160 Mo. 474.

The bread law is not invalid under § 14, Art. ITI, of

the Constitution of Nebraska, which provides that no bill

shall contain more than one subject and that the same

shall be clearly expressed in the title. Merrill v. State,

65 Neb. 1.

The law does not deprive the bakers of their vested

property rights without compensation. Enos v. Hanff,

95 Neb. 184; Chicago, etc. Ry. Co. v. State, 47 Neb. 549.

The law cannot be held unreasonable because it limits

the size of the loaves to specified weights or because it

caemeeueaie

BURNS BAKING CO. v. BRYAN. 509

504 Argument for Defendants in Error.

does not permit loaves of other weights to be made for

sale by special contract. Schmidinger v. Chicago, 226

U. S. 578.

The mere fact that there may be expense in connection

with change of appliances and equipment of the bakeries

does not constitute a taking of vested property rights

without compensation, in violation of law. The right to

operate any business is always dependent upon the gen-

eral welfare of the people and the operation of the police

power. The legislature has determined that the law is

necessary on account of the frauds being perpetrated upon

the purchasing public and in order that the public may be

advised of the merchandise which they receive for the

purchase price.

This being true, it appears that any of the property of

the bakers which can be used only for the baking of

bread which is in fraud of the public would have been

used in the perpetration of a fraud upon the public in the

production of short weight loaves.

It is contended by the bakers that they fluctuated the

sizes of the loaves to meet the cost of the ingredients.

The legislature, however, has said with good reasoning

that it is just as easy for the bakers to give a standard

weight loaf and to fluctuate the price instead of the weight

of the loaves.

Considering the minimum weight provision in the law,

it has been decided that laws prescribing standard size

loaves of bread and prohibiting with minor exceptions the

sale of other sizes, should be sustained. Schmidinger v.

Chicago, supra; Mobile v. Yuille, 3 Ala. 137; Chicago v.

Schmidinger, 243 Ill. 167; People v. Wagner, supra; Com-

monwealth v. McArthur, 152 Mass. 522.

The law is uniform in operation within the State.

Necessity for the law is exclusively a legislative ques-

tion. State v. Morehead, 99 Neb. 527; Schultz v. State,

89 Neb. 34; State v. Collum, 138 La. 395; Halter v. State,

74 Neb. 757; 205 U. S. 34.

OCTOBER TERM, 1923.

Opinion of the Court. 264 U.S.

Plaintiffs in error have introduced much evidence con-

cerning the scientific baking of bread. If, after fre-

quent attempts to bake bread which complies with the

provisions of the law, they had failed, such evidence would

have some bearing. They failed to make one attempt to

comply with the law. The evidence shows that bread

may easily be baked within the two ounce tolerance.

Mk. Justice Butuer delivered the opinion of the Court.

An act of the legislature of Nebraska, approved March

31, 1921 (Laws 1921, c. 2, p. 56)" provides that every loaf

of bread made for the purpose of sale, or offered for sale, or

sold, shall be one-half pound, one pound, a pound and a

half, or exact multiples of one pound, and prohibits loaves

of other weights. It allowsa tolerance in excess of the speci-

fied standard weights at the rate of two ounces per pound

2 An Act establishing a standard weight loaf of bread for the State

of Nebraska and providing a penalty. . .

Section 1. Department of agriculture to enforce: —lIt shall be the

duty of the Department of Agriculture to enforce all provisions of

this Act. It shall make or cause to be made all necessary examinations

and shall have authority to promulgate such rules and regulations as

are necessary to promptly and effectively enforce the provisions of

this Act.

Sec. 2. Bread, standards of weight.—Every loaf of bread made or

procured for the purpose of sale, sold, exposed or offered for sale in

the State of Nebraska shall be the following weights avoirdupois, one-

half pound, one pound, one and one-half pounds, and also in exact

multiples of one pound and of no other weights. Every loaf of bread

shall be made of pure flour and wholesome ingredients and shall be

free from any injurious or deleterious substance. Whenever twin or

multiple loaves are baked, the weights herein specified shall apply to

each unit of the twin or multiple loaf.

Sec. 3. Tolerance, how determined—A tolerance at the rate of two

ounces per pound in excess of the standard weights herein fixed shall

be allowed’ and no more, provided that the standard weights herein

prescribed shall be determined by averagiag the weight of not less

than twenty-five loaves of any one unit and such average shall not

BURNS BAKING CO. v. BRYAN. 511

504 Opinion of the Court.

and no more, and requires that the specified weight shall be

the average weight of not less than 25 loaves, and that

such average shall not be more than the maximum nor less

than the minimum prescribed. Violations of the act are

punishable by a fine or imprisonment.

Four of the plaintiffs in error are engaged in Nebraska

in the business of baking and selling bread for consump-

tion there and in other States. Their total annual output

is alleged to be 23,500,000 pounds. The other plaintiff in

error is a retail grocer at Omaha, and sells bread to con-

sumers principally in single loaf lots. They brought this

suit against the Governor and the Secretary of the De-

partment of Agriculture of the State to restrain the en-

forcement of the act on the ground, among others, that it

is repugnant to the due process clause of the Fourteenth

Amendment. The State Supreme Court sustained the act.

The case is here on writ of error.

Plaintiffs in error do not question the power of the

State to enact and enforce laws calculated to prevent the

sale of loaves of bread of less than the purported weight;

but they contend that the provision fixing the maximum

weights in this statute is unnecessary, unreasonable and

arbitrary.

be less than the minimum nor more than the maximum prescribed by

this Act. All weights shall be determined on the premises where

bread is manufactured or baked and shall apply for a period of at

least twenty-four hours after baking. Provided, that bread shipped

into this state shall be weighed where sold or exposed for sale.

Sec. 4. Penalties for violation—Any person, firm or corporation

violating any of the provisions of this Act, shall be punished by a fine

of not less than ten dollars nor more than one hundred dollars or by

imprisonment in the county jail for not more than thirty days. Pro-

vided, however, that upon the second and all subsequent. convictions

for the violation of any of the provisions of this Act such offender

shall be punished by a fime of not less than fifty dollars nor more

than one hundred dollars, or by imprisorment in the county jail for

not more than ninety days.

512 OCTOBER TERM, 1923.

Opinion of the Court. 264 U.S.

The brief of the Attorney General states that the law is

concerned with weights only. The State Supreme Court

said (108 Nebr. 674, 678): “It is to prevent a loaf of one

standard from being increased in size until it can be readily

sold for a loaf of a larger standard that a maximum weight

is fixed. The test isreasonableness. . . . (p.679.) The

statutory margin or tolerance being two ounces to the

pound, can bakers, for example, make a loaf 18 ounces in

weight that will weigh not less than 16 ounces 24 hours after

it is baked? The tests and proofs on behalf of the State

tend to show that the regulation is reasonable and can be

observed at all times. [In most of these tests, wrapped

loaves were used.| It is fairly inferable from the evidence

adduced by plaintiffs that compliance with the regulation

is practicable most of the time, but that tested by their ex-

periments as made, there are periods when the operation

of natural laws will prevent compliance with legislative

requirements. There are a number of reasons, however,

why the tests made to prove unreasonableness should not

be accepted as conclusive. If correctly understood, these

tests were made w *h bread manufactured in the regular

course of business, without any attempt to change in-

gredients or processes or to retard evaporation of moisture

in loaves by the use of wax-paper or other means.

(p. 680.) The act of the legislature does not fix prices but

leaves bakers free to make reasonable charges for bread

wrapped in inexpensive wax-paper for its preservation in

transportation and in the markets. . . . Precautions

to retard evaporation of moisture in bread for the purpose

of keeping it in a good state of preservation for 24 hours

may be required as an incidental result of a police regu-

lation establishing standards of maximum weights for

loaves of bread. Palatableness, a quality demanded by

the public, is affected by excessive evaporation, if food

value isnot. . . . The evidence does not prove that,

if reasonable means or precautions are taken by plaintiffs

BURNS BAKING CO. v. BRYAN. 513

504 Opinion of the Court.

and other bakers to retard evaporation, they cannot

comply with the act of the legislature, or that the regula-

tion is unreasonable.”

Undoubtedly, the police power of the State may be

exerted to protect purchasers from imposition by sale of

short weight loaves. Schmidinger v. Chicago, 226 U. S.

578, 588. Many laws have been passed for that purpose.

But a State may not, under the guise of protecting the

public, arbitrarily interfere with private business or pro-

hibit lawful occupations or impose unreasonable and un-

necessary restrictions upon them. Lawton vy. Steele, 152

U. S. 133, 137; Meyer v. Nebraska, 262 U. 8. 390, 399.

Constitutional protection having been invoked, it is the

duty of the court to determine whether the challenged

provision has reasonable relation to the protection of

purchasers of bread against fraud by short weights and

really tends to accomplish the purpose for which it was

enacted. Meyer v. Nebraska, supra; Welch v. Swasey,

214 U.S. 91, 105; Dobbins v. Los Angeles, 195 U. S. 223,

236; Connolly v. Union Sewer Pipe Co., 184 U. S. 540,

556; Lawton v. Steele, supra.

The loaf is the usual form in which bread is sold. The

act does not make it unlawful to sell individual loaves

weighing more or less than the standard weights respec-

tively. Loaves of any weight may be sold without viola-

tion of the act, if the average weight of not less than 25

does not exceed the permitted maximum or fall short of

the specified nominal weights during 24 hours after bak-

ing. Undoubtedly, very few private consumers purchase

at one time as many as 25 loaves of the same standard

size or unit. And it is admitted that the sale of a lesser

number not within the permitted tolerance does not con-

stitute an offense. Plaintiffs in error do not claim that

it §s impossible to make loaves which for at least 24 hours

after baking will weigh not less than the specified mini-

mum weights, but they insist that the difference per-

97851°—24—_38

514 OCTOBER TERM, 1923.

Opinion of the Court. 264 U.S.

mitted by the act between the weight of loaves when

taken from the oven and their weight 24 hours later is

too small, and that it is impossible for bakers to carry

on their business without sometimes exceeding the maxi-

mum or falling short of the minimum average weights.

Any loaves of the same unit at any time on hand during

24 hours after baking may be selected to make up the

25 or more to be weighed in order to test compliance with

the act. Therefore, if only a small percentage of the

daily output of the loaves in large bakeries shall exceed

the maximum when taken from the oven or fall below the

minimum weight within 24 hours, it will always be pos-

sible to make up lots of 25 or more loaves whose average

weight will be above or below the prescribed limits.

The parties introduced much evidence on the question

whether it is possible for bakers to comply with the law.

A number of things contribute to produce unavoidable

variations in the weights of loaves at the time of and

after baking. The water content of wheat, of flour, of

dough* and of bread immediately after baking varies

substantially and is beyond the control of bakers. Gluten

is an important element in flour, and flour rich in gluten

requires the addition of more water in breadmaking and

makes better bread than does flour of low or inferior

gluten content. Exact weights and measurements used

*Wheat bread dough is the dough consisting of a leavened and

kneaded mixture of flour, potable water, edible fat or oil, sugar

and / or other fermentable carbohydrate substance, salt, and yeast,

with or without the addition of milk or a milk product, of diastatic

and / or proteolytic ferments, and of such limited amounts of unob-

jectionable salts as serve solely as yeast nutrients, and with or with-

out the replacement of not more than three per cent of the flour

ingredient by some other edible farinaceous substance. (Definition

of Joint Committee on Definitions and Standards, September 28,

1922, and approved by the Association of American Dairy Food and

Drug Officials, October 5, 1922, and by the Association of Official

Agricultural Chemists, November 17, 1922.)

—_—~—"

BURNS BAKING CO. v. BRYAN. 515

504 Opinion of the-Court.

in doughmaking cannot be attained. Losses in weight

while dough is being mixed, during fermentation and

while the bread is in the oven, vary and cannot be

avoided or completely controlled. No hard and fast rule

or formula is followed in breadmaking. There are many

variable elements. Bread made from good flour loses

more weight by evaporation of moisture after baking than

does bread made from inferior flours. Defendants’ tests

were made principally with loaves which were wrapped so

as to retard evaporation; and it was shown that by such

wrapping the prohibited variations in weight may be

avoided. On the other hand, the evidence clearly estab-

lishes that there are periods when evaporation under ordi-

nary conditions of temperature and humidity prevailing

in Nebraska exceeds the prescribed tolerance and makes it

impossible to comply with the law without wrapping the

loaves or employing other artificial means to prevent or

retard evaporation. And the evidence indicates that

these periods are of such frequency and duration that the

enforcement of the penalties prescribed for violations

would be an intolerable burden upon bakers of bread for

sale. The tests which were described in the evidence and

referred to in the opinion are not discredited because

“made with bread manufactured in the regular course of

business.” The reasonableness of the regulation com-

plained of fairly may be measured by the variations in

weight of bread so made. The act does not require bakers

to select ingredients or to apply processes in the making

of bread that will result in a product that will not vary

in weight during 24 hours after baking as much as does

bread properly made by the use of good wheat flour. As

indicated by the opinion of the State Supreme Court,

ingredients selected to lessen evaporation after baking

would make an inferior and unsalable bread. It would

be unreasonable to compel the making of such a product

or to prevent making of good bread in order to comply

516 OCTOBER TERM, 1923.

Opinion of the Court. 264 U.S.

with the provisions of the act fixing maximum weights.

The act is not a sanitary measure. It does not relate to

the preservation of bread in transportation or in the

market; and it applies equally whether the bread is sold

at the bakeries or is shipped to distant places for sale.

Admittedly, the provision in question is concerned with

weights only. The act does not regulate moisture con-

tent or require evaporation to be retarded by the wrap-

ping of loaves or otherwise. The uncontradicted evi-

dence shows that there is a strong demand by consumers

for unwrapped bread. It is a wholesome article of food,

and plaintiffs in error and other bakers have a right to

furnish it to their customers. The lessening of weight of

bread by evaporation during 24 hours after baking does

not reduce its food value. It would be unreasonabie to

prevent unwrapped bread being furnished to those who

want it in order technically to comply with a weight

regulation and to keep within limits of tolerance so

narrow as to require that ordinary evaporation be re-

tarded by wrapping or other artificial means. It having

been shown that during some periods in Nebraska bread

made in a proper and usual way will vary in weight more

than at the rate.of two ounces to the pound during 24

hours after baking, the enforcement of the provision

necessarily will have the effect of prohibiting the sale

of unwrapped loaves when evaporation exceeds the

tolerance.

No question is presented as to the power of the State

to make regulations safeguarding or affecting the qualities

of bread. Concretely, the sole purpose of fixing the

maximum weights, as held by the Supreme Court, is to

prevent the sale of a loaf weighing anything over nine

ounces for a one pound loaf, and the sale of a loaf weigh-

ing anything over eighteen ounces for a pound and a half

loaf, and so on. The permitted tolerance, as to the half

pound loaf, gives the baker the benefit of only one ounce

BURNS BAKING CO. v. BRYAN. 517

504 Branvets and Hotes, JJ., dissenting.

out of the spread of eight ounces, and as to the pound

loaf the benefit of only two ounces out of a like spread.

There is no evidence in support of the thought that pur-

chasers have been or are likely to be induced to take a

nine and a half or a ten ounce loaf for a pound (16 ounce)

loaf, or an eighteen and a half or a 19 ounce loaf for a

pound and a half (24 ounce) loaf; and it is contrary to

common experience and unreasonable to assume that

there could be any danger of such deception. Imposition

through short weights readily could have been dealt with

in a direct and effective way. For the reasons stated, we

conclude that the provision, that the average weights

shall not exceed the maximums fixed, is not necessary for

the protection of purchasers against imposition and fraud

by short weights and is not calculated to effectuate that

purpose, and that it subjects bakers and sellers of bread

to restrictions which are essentially unreasonable and

arbitrary, and is therefore repugnant to the Fourteenth

Amendment.

Judgment reversed.

Mr. Justice BRANDEIS, (with whom Mr. Justice

HouLMEs concurs) dissenting.

The purpose of the Nebraska standard-weight bread

law is to protect buyers from short weights and honest

bakers from unfair competition. It provides for a few

standard-size loaves, which are designated by weight, and

prohibits, as to each size, the baking or selling of a loaf

which weighs either less or more than the prescribed

weight. Schmidinger v. Chicago, 226 U. S. 578, settled

that the business of making and selling bread is a permis-

sible subject for regulation; that the prevention of short

weights is a proper end of regulation; that the fixing of

standard sizes and weights of loaves is an appropriate

means to that end; and that prevalent marketing frauds

make the enactment of some such protective legislation

—

518 OCTOBER TERM, 1923.

Branveis and Hoimes, JJ., dissenting. 264 U.S.

permissible. The ordinance there upheld, besides defin-

ing the standard-weight loaf, required that every loaf

should bear a label stating the weight; and to sell a loaf

weighing less than the weight stated in the label was

made a misdemeanor.

The Nebraska regulation is in four respects less strin-

gent than the ordinance upheld in the Schmidinger Case:

(1) It provides for a tolerance. That is, it permits a

deviation from the standard weight of not more than two

ounces in a pound, provided that the prescribed standard

weight shall be determined by averaging the weights of

not less than twenty-five loaves of any one unit. (2)

The prescribed weight applies for only twenty-four hours

after the baking. (3) The weight is to be ascertained by

weighing on the premises where the bread is baked. (4)

No label stating the weight is required to be affixed to

the loaf. That is, as a fepresentation of the weight, the

familiar size of the loaf js substituted for the label. On

the other hand, the Nebraska requirement is more strin-

gent than the Chicago ordinance, in that it prohibits

making ana selling loaves which exceed the prescribed

weight by more than the tolerance. This prohibition of

excess weights is held to deny due process of law to

bakers and sellers of bread. In plain English, the pro-

hibition is declared to be a measure so arbitrary or whim-

sical that no body of legislators acting reasonably could

have imposed it. In reaching this conclusion, the Court

finds specifically that this prohibition “is not necessary

for the protection of purchasers against imposition and

fraud by short weight”; that it “is not calculated to

effectuate that purpose”; and that the practical diffi-

culties of compliance with the limitation are so great that

the provision “subjects bakers and sellers of bread to

restrictions which are essentially unreasonable and arbi-

”

To bake a loaf of any size other than the standard is

made a misdemeanor. Why baking a loaf which weighs

_ ene

BURNS BAKING CO. v. BRYAN. 519

504 Branpeis and Hoimes, JJ., dissenting.

less than the standard size should be made a crime is

obvious. Such a loaf is a handy instrument of fraud.

Why it should be a crime to bake one which weighs more

than the standard is not obvious. The reason given is

that such a loaf, also, is a handy instrument of fraud. In

order that the buyer may be afforded protection, the

difference between the standard sizes must be so large as

to be evident and conspicuous. The buyer has usually in

mind the difference in appearance between a one-pound

loaf and a pound-and-a-half loaf, so that it is difficult for

the dealer to palm off the former for the latter. But a

loaf weighing one pound and five ounces may look so

much like the buyer’s memory of the pound-and-a-half

loaf that the dealer may effectuate the fraud by delivering

the former. The prohibition of excess weight is imposed

in order to prevent a loaf of one standard size from being

increased so much that it can readily be sold for a loaf

of a larger standard size."

With the wisdom of the legislation we have, of course,

no concern. But, under the due process clause as con-

strued, we must determine whether the prohibition of ex-

cess weights can reasonably be deemed necessary ; whether

the prohibition can reasonably be deemed an appropriate

means of preventing short weights and incidental unfair

practices; and whether compliance with the limitation

prescribed can reasonably be deemed practicable. The

determination of these questions involves an enquiry into

“See Charles C. Neale, “ Weight Standardization of Bread”, 13

'Conf., Weights & Measures, pp. 115, 116; C. J. Kremer, “ Bread

Weight Legislation and Retail Bakers”, 16 Conf., Weights & Meas-

ures, pp. —; Hearings on H. R. 4533, Feb. 18, 19, 1924, pp. 11, 12.

Compare 4 Conf., Weights & Measures, pp. 18, 19; 5 Conf., Weights

& Measures, p. 113; 1914 Wisconsin Dairy, Food and Weights and

Measures Dept., Bul. No. 14, p. 18; 1920 New Jersey Weights and

Measures Dept., p. 18; 1921 Chicago Weights and Measures Dept.,

p. 4.

520 OCTOBER TERM, 1923.

Branpeis and Hoimes, JJ., dissenting. 264 U.S.

facts. Unless we know the facts on which the legislators

may have acted, we cannot properly decide whether they

were (or whether their measures are) unreasonable, arbi- -

trary or cepricious. Knowledge is essential to under-

standing; and understanding should precede judging.

Sometimes, if we would guide by the light of reason, we

must let our minds be bold. But, in this case, we have

merely to acquaint ourselves with the art of breadmaking

and the usages of the trade; with the devices by which

buyers of bread are imposed upon and honest bakers or

dealers are subjected by their dishonest fellows to unfair

competition; with the problems which have confronted

public officials charged with the enforcement of the laws

prohibiting short weights, and with their experience in

administering those laws. |

First. Why did legislators, bent only on preventing

short weights, prohibit, also, excessive weights? It was

not from caprice or love of symmetry. It was because ex-

perience had taught consumers, honest dealers and public

officials charged with the duty of enforcing laws concern-

ing weights and measures that, if short weights were to be

prevented, the prohibition of excessive weights was an

administrative necessity. Similar experience had led to

the enactment of a like prohibition of excess quantities in

laws designed to prevent defrauding, by short measure,

purchasers of many other articles.* It was similar ex-

2A similar policy, enacted by statute or regulation, is applied to

fish, pork, milk, gasoline, hay, fruits, vegetables and other com-

modities. See Maryland, Laws of 1817 (Session of December, 1817 to

February, 1818), c. 114, § 1; New York, Laws of 1910, ec. 470, §§ 5a,

5b, Laws of 1912, c. 81, §§ 240, 252, 1911 Weights and Measures

Dept., p. 46; Maine, 1913 Pub. Laws, c. 81, § 1, 1916 Rev. Stat. c. 37,

§ 20, 1919 Rev. Stat. c. 37, § 20; Arizona, 1913 Laws, § 26; Massa-

chusetts, 1921 Gen. Laws, ¢. 23, § 85, c. 98, § 15. See specifications

and tolerances adopted by the department of weights and measures in

Arizona, 1921; California, 1914, 1915, 1919, Report of Dept. Weights

& Measures, 1917-1918, p. 65; Indiana, 1913; Massachusetts, 1917, .

-

BURNS BAKING CO. v. BRYAN. §21

504 Branvbeis and Houmes, JJ., dissenting.

perience which had led those seeking to prevent the sale of

intoxicating liquor to enact the law which prohibits the

sale of malt liquor, although not containing any alcohol

(sustained in Purity Extract Co. v. Lynch, 226 U.S. 192),

and that which prohibits the sale of liquor containing

more than one-half of one per cent. of alcohol (sustained

in Ruppert v. Caffey, 251 U.S. 264). Compare Armour &

Co. v. North Dakota, 240 U. S. 510.

In January, 1858, the late corporation of Washington

adopted an ordinance fixing a standard-weight loaf, and

establishing an excess tolerance.* The standard-weight

bread ordinance adopted by Chicago in 1908 and sustained

in the Schmidinger Case is said to have been the first

standard-weight bread law in the United States enacted

in this century.‘ Prior thereto many different kinds of

legislation had been tried in the several States and cities

Report of Sealer of Weights and Measures for Worcester, Mass., 1905,

p. 5; New York, 1910, 1913, 1915; North Dakota, 1919; Pennsyl-

vania, 1921; Tennessee, 1914; Vermont, 1920; Washington, 1913;

Wisconsin, 1911, 1913; District of Columbia, 1897, 1901. See, also,

regulations promulgated by the Secretary of Agriculture pursuant to

§ 4 of the Standard Container Act, Aug. 31, 1916, c. 426, 39 Stat. 673;

specifications and tolerances adopted by the Conference on Weights

and Measures, 1915, 1916, 1920. And see Report, Conf. Weights &

Measures, 1911, pp. 127, 129; 1913, pp. 278, 284, 289; 1914, p. 57,

et seq.; 1916, p. 130 et seq.; 1919, p. 169, et seq.; 1920, p. 110. Com-

pare Turner v. Maryland, 107 U. 8. 38, 50, 51, note, 53 note, 54, 56.

® Permitted a tolerance in excess of 2 ounces on the 1 pound loaf;

3 ounces on the 2 pound loaf; and 4 ounces on the 4 pound loaf. The

ordinance, promulgated by the mayor and aldermen of the late cor-

poration of Washington, Jan. 7, 1858, was not questioned until Aug.

31, 1908. In District of Columbia v. Hauf, 33 App. D. C. 197, it was

held that the Organic Act of Feb. 21, 1871, 16 Stat. 419, repealed this

ordinance by implication. Up to the date of the decision, its operation

had been entirely satisfactory. See statement of W. C. Haskell,

5 Conf., Weights & Measures, pp. 19-22.

*See Hearings on H. R. 4533, Feb. 18, 19, 1924, p. 18; 5 Conf,

Weights & Measures, pp. 26-29.

| Sei ieee RAE SREY EREDAR OTT

522 OCTOBER TERM, 1923.

Branvers and Hoimes, JJ., dissenting. 264 U.S.

with a view to preventing short weights.” Experience had

shown the inefficacy of those preventive measures. Ex-

perience under the Chicago ordinance indicated the value

of introducing the standard-weight loaf; but it proved,

also, that the absence of a provision prohibiting excess

weights seriously impaired the efficacy of the ordinance."

When in 1917 the United States Food Administration was

established, pursuant to the Lever Act (August 10, 1917,

c. 53, 40 Stat. 276), the business of baking came under its

supervision and control; and provision was made for

licensing substantially all bakers." The protection of

buyers of bread against the fraud of short weight was

deemed essential. After an investigation which occupied

three months, the Food Administration issued the regu-

5 See Mayor and Aldermen of Mobile v. Yuille, 3 Ala. 137; Kansas

v. McCool, 83 Kans. 428; Guillotte v. New Orleans, 12 La. Ann. 432;

Commonwealth v. McArthur, 152 Mass, 522; People v. Wagner, 86

Mich, 594; Paige v. Fazackerly, 36 Barb. 392. Also brief for plaintiff

in error (appendix) in Schmidinger v. Chicago, 226 U. 8. 578. Com-

pare Harwood v. Williamson, 1 Sask. L. Rep. 66.

® See Report Chicago Dept. Weights & Measures, 1913, p. 6; 1917,

p. 6; 1918, p. 3. See also 1911 New York Dept. Weights & Measures,

p. 46; “ Weights and Prices of Wheat Bread in Mass.,” compiled by

director of Standards, Jan. 1, 1924. Compare Report, Conf. on

Weights & Measures, 4, pp. 18, 19; 6, p. 47; 8, pp. 18, 19; 9, pp- 20.

22; 14, pp. 30, 35. The new ordinance in Chicago is operating suc-

cessfully. See 1921 Chicago Dept. Weights & Measures, p. 4; 14

Conf., Weighis & Measures, p. 36.

7 See 1917 Report U. 8. Food & Fuel Administrations. pp. 10, 11,

36-38.

8 The license regulations issued by Herbert Hoover, with the ap-

proval of the President, on November 16, 1917 were “ worked out to

a large degree with the bakers themselves with the co-operation of the

Federal Trade Commission and the Agricultural Department.” See

Letter of Herbert Hoover to the President, Nov. 6, 1917. They were

aided by a Consumers’ Committee. The Food Administration had,

also, the results of an investigation, which had been theretofore con-

ducted by Benj. R. Jacobs of the Bureau of Chemistry, on the market-

ing of bread in the City of Washington. In his “ Preliminary Report,

BURNS BAKING CO. v. BRYAN. 523

504 Branveis and Hoimes, JJ., dissenting.

lations by which licensees were to be governed. No

standard-weight bread statute had then been enacted in

B. R. Jacobs to Duncan McDuffie, Aug. 14, 1917,” he recommended:

“The standardization of the loaf of bread by weight . . . (c)

because when weights are declared they are made in such small-size

type that it is very difficult for the consumer to see it and also when

the weight is declared the bakers seem to enter into an agreement

whereby they all mark the same weight on the bread regardless of

the size, thus nullifying to a great extent the value of this declaration.”

The “ Preliminary Report on the Bread Problem, September 29,

1917,” of Duncan McDuffie includes the following recommendation

(p. 47): “The Food Administration is charged, not only with seeing

that the public secures its bread at the lowest possible price, but

that in making its purchases of this commodity it receives a square

deal. In my opinion, both these objects can best be obtained by

permitting bread to be sold only in units of fixed weight. As

these units I recommend loaves weighing, twelve hours after being

baked, not less than 16 nor more than 17 ounces, and not less than 24

or more than 254% ounces and multiples of both these weights.”

Ordinances in force, at that time, in Chicago, Dallas, Detroit,

Jackson, Minneapolis, Seattle, Tacoma and Washington, and the

statutes of Kansas, Idaho, Nevada and North Dakota provided for

a few standard size loaves; and some of these provided, further, that

the loaves must be labeled with the weight, if not in these units.

(See Appendix.) Referring to such regulations, the report says

(p. 49): “Many of these regulations permit the manufacture of

bread of other sizes provided that bread is labeled with its exact

weight. Tolerances are also permitted in some instances on account

of shrinkage of weight due to evaporation of the moisture contained in

the bread. Many of these regulations provide merely that bread shall

not be produced in units weighing less than those fixed. The result

of this regulation has been that bakers labeled the bread with the

unit weight next below its actual weight, thus making standardization

ineffective.

“In many instances these regulations have not produced satis-

factory results. This may be attributed to lack of universality,

evasion on the part of the baker, or failure of the law to provide an

upper as well as a lower limit of weight. There is no reason to think

that a regulation, providing that bread shall be sold in units of fixed

weight with a limited-upward variation to provide for inequalities

of evaporation and scaling, if applied universally, will not prove an

524 OCTOBER TERM, 1923.

Branpveis and Houimes, JJ., dissenting. 264 U.S.

any State.’ The regulations adopted established standard-

weight loaves; prohibited the sale of loaves other than of

the standard weights; ana limited the excess weight to not

more than one ounce to the pound.’ This provision re-

mained in force unchanged until the licensing system was

abrogated on December 19, 1918 (after the Armistice )."

effective protection of the public and assist in reducing the cost of

bread through fixing competition on price alone.”

See “ Report of the Federal Trade Commission on Bakery Business

in United States,” Nov. 3, 1917, made at the request of Mr. Hoover,

and published by the United States Food Administration with “ Ke-

port of Bakery Section of Food Administration,” November, 1917.

In the latter, Duncan McDuffie (pp. 20-21) recommended the fol-

lowing regulation as to weights:—‘All bread should be baked in loaves

weighing, unwrapped, 12 hours after baking, not less than 16 nor more

than 17 and not less than 24 nor more than 251 ounces and multiples

thereof. Any greater variation in weights than those indicated may

defeat the whole object of standardization.”

® See “ Preliminary Report on the Bread Problem, Sept. 29, 1917,”

Appendix. In 1916, the California state superintendent of weights

and measures promulgated a regulation fixing a standard-weight loaf

and permitting a tolerance in excess. It was not enforced, because of

the opinion expressed by the attorney general that the regulation was

beyond the scope of the official’s authority. See 1915-16 Calif. Dept.

Weights & Measures, pp. 63-66. In 1917, due to the influence of the

bakers of the State, the legislature passed an amendment to the

California weights and measures law which would clearly prevent the

state superintendent from fixing a standard-weight loaf. An ordi-

nance, fixing a standard-weight loaf with an excess tolerance, was

prepared by the state superintendent and was “ enacted in all large

counties, cities and many towns throughout the state and has been

effective in the uniform enforcement of a standard of weight for

bread.” 1919-20, op. cit., pp. 30-31. In 1921, a law was passed in-

corporating these same features. Act of June 2, 1921, ¢. 704.

10 The first “ Rules and Regulations Governing Licensees Manu-

facturing Bakery Products,” effective Dec. 10, 1917, issued by the

United States Food Administration, adopted the recommendation of

the November Report, which limited the tolerance for excess weights

to one ounce in the pound.

11 In some other respects, the regulations were changed from time

to time. See “ Revised Rules and Regulations, etc.,” effective Feb-

Keane ee ¥ ail he ai al bias al lida lb aad

BURNS BAKING CO. v. BRYAN. 525

504 Branveis and Houmes, JJ., dissenting.

The efficacy of the prohibition of excess weights as a

means of preventing short weights having been demon-

strated by experience during the period of Food Adminis-

tration control, a widespread demand arose for legislative

action in the several States to continue the protection

which had been thus afforded. Dissatisfaction with the

old methods of regulation was expressed in a number of

States.”* During the years 1919 to 1923, standard-weight

bread laws, containing the prohibition of excess weights,

were enacted in twelve States."* Similar bills were intro-

duced in others.’* Congress enacted such a law for the

ruary 1, 1918, pp. 14, 15; “Special License Regulations, No. XIII,

Manufacturers of Bakery Products,” including May 3, 1918, Rule 2,

p. 8; “Special License Regulations, No. XIII, Manufacturers of

Bakery Products,” Second Issue, effective September 1, 1918, Rule

2, p. 5.

* Washington changed from a law permitting the sale of any weight

bread provided that it is properly labeled to a law fixing a standard-

weight loaf with an excess tolerance. See Laws of 1913, c. 52, § 9;

Laws of 1923, c. 126, § 1. West Virginia, Utah, Nevada, Detroit

and Milwaukee desire to do likewise. See 1922, W. Va. Dept.

Weights & Measures, pp. 14-15; 1920 Utah Dept. Weights & Meas-

ures, p. 61; 13 Conf., Weights & Measures, pp. 188, 189; Hearings on

H. R. 4533, Mar. 3, 1924. In New Jersey, the department of weights

and measures opposed a law similar to the Massachusetts act which

embodied an alternative provision. See Report, Dept. Weights &

Measures, 1921, p. 20; 1922, p. 14.

*See Indiana, Laws of 1919, c. 56, § 9; Montana, Laws of 1919,

c. 155, § 1; Oregon, Laws of 1919, c. 82, § 1; South Dakota, Laws of

1921, c, 239, § 1; California, Laws of 1921, c. 704, §§ 1, 2; Connecti-

cut, Laws of 1921, c, 261, §§ 2, 3, 4; Nebtaska, Laws of 1921, c. 2,

§§ 2, 3; Ohio, Laws of 1921, §§ 16, 17, pp. 604, 607; Texas, Gen.

Laws, 1921, c. 63, p. 129; Massachusetts, Laws of 1922, ¢. 186, §§ 1,

2, 3; Washington, Laws of 1923, ¢. 126, § 1, Rem. Comp. Stat.,

§ 11,612; Wisconsin, Laws of 1923, ¢. 123, §§ 1, 2.

“Standard weight bread legislation was recommended in the reports

of the departments of weights and measures in Arizona, 1922, pp. 13,

14; District of Columbia, 1914, pp. 3, 6; 1916, p. 4; 1917, p. 6;

Maine, 1913, p. 1; Massachusetts, 1916, p. 16; 1917, pp. 14, 15;

1919, p. 14; New Jersey, 1913, p. 24; 1916, p. 11; 1920, p. 18; 1921,

— NP URINE ENMHIOI STEM BORAT AOE AR ROME

526 OCTOBER TERM, 1923.

Branpeis and Hotmes, JJ., dissenting. 264 U.S.

District of Columbia."* Hawaii and Porto Rico did like-

wise. The national conference on weights and measures

indorsed a similar provision.’ A bill embodying the

same principles, applicable to sales of bread in interstate

commerce, prepared by the Department of Agriculture

and the Department of Commerce, was introduced in

1923 and is now pending.” At the congressional hearings

thereon, it was shown that the provision against excess

weights is deemed necessary by a large majority of the

bakers, as well as by consumers and by local public

officials charged with the duty of preventing short

weights.”* In Nebraska the demand for the legislation

under review was general and persistent. It was enacted

p. 22; 1922, p. 14; New York, 1911, pp. 12, 40-41; Oregon, 1917,

p. 7; Utah, 1920, p. 61; Vermont, 1920, p. 57; West Virginia, 1922,

p. 14; Wisconsin, 1916-1917, p. 137, 1919-1920, pp. 18, 34. Bills

were introduced in the legislatures of Maine, Maryland, Mississippi,

New Jersey, New York, Pennsylvania, Vermont, West Virginia and

Wisconsin. See 6 Conf., Weights & Measures, p. 22; 5 ibid, p. 88;

1919-1920 Wisconsin Weights & Measures, p. 147; 1922 New Jersey

Weights & Measures, p. 14; 1921, ibid, p. 19. See Hearings on H. R.

4533, Feb. 18, 19, testimony of Congressman Brand of Ohio, pp. 9,

10; F. C. Blenck, Bureau of Chemistry, Department of Agriculture,

pp. 11-15; F. 8. Holbrook, Chief of the Weights and Measures

Division, Bureau of Standards, pp. 16-19.

See Act of March 3, 1921, c. 118, § 13, 41 Stat. 1217, amended

Aug. 24, 1921, c. 92, 42 Stat. 201.

“See Hawaii, Laws of 1919, Act 176, § 1; Porto Rico, Laws of

1917, Act No. 13, §§ 1, 2, 3.

* See 14 Conf., Weights & Measures, pp. 72, 73, 81; 15 ibid, p. 79.

See also 13 ibid, p. 174. The conference changed from an alternative

measure, like the Massachusetts law, to a standard weight measure

with an excess tolerance. See 8 Conf., Weights & Measures, pp. 278,

284, 289; 6 ibid, pp. 132, 133, 157.

“H. R. 4533, Sixty-eighth Congress, first session. See Hearing

before the Committee on Agriculture, H. R. 4533, Feb. 18, 19, Mar.

3, 1924.

* See Hearings on H. R. 4533, Feb. 18, 19, pp. 11, 12, 16, 20. The

opponents of the bill did not question the necessity of an excess

weight prohibition. See Hearing of March 3, 1924.

en

BURNS BAKING CO, v. BRYAN. 527

504 Branveis and Hoimes, JJ., dissenting.

after a prolonged public discussion carried on throughout

the State as well as in the legislature.” Can it be said,

in view of these facts, that the legislators had not reason-

able cause to believe that prohibition of excess weights

was necessary in order to protect buyers of bread from

imposition and honest dealers from unfair competition?

Second. Is the prohibition of excess weights calculated

to effectuate the purpose of the act? In other words, is

it a provision which can reasonably be expected to aid in

the enforcement of the prohibition of short weights?

That it has proved elsewhere an important aid is shown

by abundant evidence of the highest quality. It is shown

by the fact that the demand for the legislation arose after

observation of its efficacy during the period of Food

Administration control.”" It is shown by the experience

* See Nebraska State Journal, Jan. 11, 16; Feb. 9, 11, 13, 19, 23,

24; March 2, 4, 7, 8, 9, 13, 15, 16, 17, 21, 23, 30, 31; April 1, 1921.

See also Bakers Weekly, Feb. 19, 1921, p. 52; Feb. 26, 1921, p. 42;

Mar. 12, 1921, p. 48.

*“ What the bakers had thought impossible before the creation of

the Food Administration worked like a charm, and the trade, being

relieved of the destructive competition in weight and the necessity

of constantly watching the juggling of weight by their competitors,

could settle down to the more important problem of furnishing the

people, even under adverse conditions, with quality bread, at a price

which, despite the extraordinary and oftentimes exasperating cir-

cumstances, made bread still the cheapest and best food on the

American table. . . . This standard weight insisted upon by the

Food Administration is one of the regulations referred to as having

been found so advantageous by the majority of bakers that in a great

many cities the rule has been either voluntarily adopted as a sound

business practice by the bakers or, at the instance of the trade, has

been incorporated into new afterwar bakery laws and regulations.”

See 14 Conf., Weights & Measures, p. 27. See also Bakers Weekly,

Dec. 20, 1919, p. 49. There is a similar movement in England to

incorporate war experience (Bread Order, May 18, 1918, No, 547 (8))

into permanent legislation. See Bakers Weekly, Jan. 15, 1921, p. 40.

The Montana bakers in convention approved a law similar to the

i cciineereseecimteneneet PANEL IORIR ESE

3 g

, OCTOBER TERM, 1923.

Branpets and Hotmes, JJ., dissenting. 204 U.S.

528

of the several communities in which the provision has

since been in operation: Chicago; ** California; ** Ohio; *

Nebraska act. See Bakers Weekly, Feb. 1, 1919, p. 55. The present

Oregon law was sponsored by the bakers. See Bakers Weekly, Mar.

15, 1919, p. 42. The “ Federal Bread Bill” has the approval of the

retail bakers of the country. See Hearings on H. R. 4533, Mar. 3,

1924. See also Statements by E. M. Rabenold, 14 Conf., Weights &

Measures, pp. 43, 74-75; Charles C. Neale, “ Weight Standardization

of Bread ”, 13 ibid, p. 115.

™See testimony of William F. Cluett, Chief Deputy Inspector of

Weights and Measures for Chicago, Record, pp. 56-59.

*™See Statement of C. M. Fuller, Sealer of Weights and Measures

of Los Angeles County, California, 14 Conf., Weights & Measures,

p. 37: “ The following suggestions in regard to the enforcement of

bread legislation, including tolerances, are offered as a result of five

years’ successful enforcement of a standard-weight bread law. The

law itself provides that the standard weights of all loaves of bread

within twelve hours after baking shall be 16 ounces . . . or multiples

of the 16 ounce size. A tolerance of one ounce above the standard

weight is allowed for each 16 ounce unit. No stated tolerance below

the standard weight is allowed, for the reason that were there such a

tolerance, certain unscrupulous bakers would not hesitate to scale

their bread that amount short... . In the enforcement of this act

we have convicted 25 bakers, $535 in fines being paid, and several

thousand loaves of bread confiscated and turned over to charity. It

is interesting to note that the act has worked out so successfully in

eliminating the unfair competition of bakers who would cut the price

by selling an underweight loaf, that even those firms which were first

opposed to the idea of a standard weight bread law are now in favor

of it. And I have before me a communication from the Secretary of

the Southern California Bakers’ Association stating that at a meeting

af the Wholesale and Retail Bakers’ Association a unanimous resolu-

tion was passed indorsing this law.” See also Bakers Weekly, Jan.

17, 1920, p. 43.

“See Hearings on H. R. 4533, Feb. 18, 19, 1924, pp. 3-6, 20. Also

Statement of John M. Mote, Chief Inspector of Weights and Meas-

ures of Ohio, 15 Conf., Weights & Measures, pp. 88, 89, 90, 91:

“ During the period of the war control of the bakers by the United

States Food Administration it was clearly demonstrated that it was

entirely feasible for bakers to bake loaves to a uniform size, and this

js also admitted by the bakers themselves. This indicates that the

ERI IO PL IT EL I TS hiatal

~_~— weve

BURNS BAKING CO. v. BRYAN. 529

504 Branpeis and Hotmes, JJ., dissenting.

Indiana; * and the District of Columbia.” The value of

the prohibition is shown, also, by the fact that, after

proposal to standardize the weight of loaves of bread presents no diffi-

culties of manufacture which may not readily be adjusted. . .

“ Eight months ago the standard-weight bread law became effective

in Ohio. We cannot say that this law is perfect in every detail—very

few laws are—but we can today realize the great benefits of standard-

ization, . . . On May 1 a questionnaire was mailed to city and

county sealers of Ohio, making inquiry as to the attitude of the public

and the baking industry relative to the standard-weight provision,

and every reply brought the answer of complete satisfaction to both

bakers and the general public. We cannot find that the standard of

quality has been in any way lowered, due to standardization of

weight. With only the two factors of quality and price to be con-

sidered, the purchasing public is well able to determine for itself the

fairness of the prices charged. With hearty co-operation of 98% of

the baking industry, and having the support of the general public,

we can safely say this is one of the best statutes enacted in Ohio in

recent years.” See also 126 Northwestern Miller, pp. 908, 1390.

*See I. L. Miller, “ Results of the Indiana Model Bakery Law”,

Bakers Weekly, Jan. 15, 1921, p. 47. The writer says that the law

works well and “ rarely do we find an instance in which the standard

weight requirement is being violated”; that only one case of short

weight had to be prosecuted; that the law itself came into existence

through the desire of the bakers of the State for a system “ of control

that would elevate the industry by eliminating certain objectionable

trade practices”; that the law has placed the industry on a fair

basis; that volume of business no longer depends on shrewd but

objectionable trade practices, but upon quality of product; that the

size of the loaf does not grow smaller in greater proportion than the

price; that the law has been a protection to the consumers and has

the approval of at least 98 per cent. of the bakers. See also Bakers

Weekly, Feb. 7, 1920, p. 67. The Indiana Bakers Association unani-

mously adopted a resolution expressing satisfaction with the operation

of the standard-weight bread law of Indiana, and offered their assis-

tance and the benefit of their experience to other States attempting

to settle the question. See 15 Conf., Weights & Measures, p. 90.

See also Hearings on H. R. 4533, Feb. 18, 19, 1924, pp. 3-6; 12 Conf.,

Weights & Measures, pp. 32, 33.

* See testimony of George M. Roberts, Superintendent of Weights

and Measures for the District of Columbia, Hearings on H. R. 4533,

97851°—24—_34

— EPPS SY ONYRTTS LE TIER RP NEN RT

“ fe sii Naa ad a R ¢ S re

530 OCTOBER TERM, 1923.

Branpeis and Homes, JJ., dissenting. 264 U.S

extensive application and trial, it has been endorsed by

the national conference on weights and measures and is

included in the proposed “ Federal Bread Law.” Can it

be said, in view of these facts, that the legislature of

Nebraska had no reason to believe that this provision is

calculated to effectuate the purpose of the standard-

weight bread legislation?

Third. Does the prohibition of excess weight impose

unreasonable burdens upon the business of making and

selling bread? In other words, would compliance involve

bakers in heavy costs; or necessitate the employment of

persons of greater skill than are ordinarily available? Or,

would the probability of unintentional transgression be so

great as unreasonably to expose those engaged in the

business to the danger of criminal prosecution? Facts es-

tablished by widespread and varied experience of the

bakers under laws containing a similar provision, and the

extensive investigation and experiments of competent

scientists, seem to compel a negative answer to each of

Feb. 18, 19, 1924, p. 51: “I am firmly of the opinion that the law is

very well enforced in the District of Columbia . . . I had totaled

up the other day a list of weights that came into my office in one

day, for two hundred and some odd loaves, I think it was 250 loaves,

and, of course, the weights would vary a little, but I do not believe

that there were a dozen of those loaves that were out of the legal

tolerance. My recollection is that none of them were out more than

one-tenth of an ounce. The average weight was 16.03 ounces. That

indicates to my mind how the law is being observed here. The

bakers generally, while they are opposed to the law, were very much

disturbed when the law was first passed, and made strenuous efforts

to have it amended. Congress did not amend it. So far as I know

the law has proven very satisfactory. I cannot speak for the bakers,

but I do not recall that I have ever had a complaint come into my

office from a consumer about the law. They seem to be very well

satisfied and the law is very well observed. The bakers have gone

along and observed the law very well. We have found it necessary

to institute very few prosecutions, and those only for very ininor

infractions of the law against a few small bakers . . .”

pe

BURNS BAKING CO. v. BRYAN. 531

504 Branvets and Hotes, JJ., dissenting.

these questions. Rut we need not go so far. There is

certainly reason to believe that the provision does not sub-

ject the baker to an appreciable cost ;* that it does not

require a higher degree of skill than is commonly available

to bakery concerns;** and that it does not expose honest

27 Standard-weight legislation does away with the necessity for

frequent pan changes. See Bakers Weekly, Nov. 29, 1919, p. 37.

The prevailing bread prices in Ohio and Indiana are 8¢ for a 16 oz.

loaf and 12¢ for a 24 oz. loaf. In New York, the same prices are

charged for loaves running two ounces short on the average. See

Hearings on H. R. 4533, Feb. 18, 19, 1924, pp. 3, 8. Prevailing bread

prices in Wisconsin are 7-10¢ for the 16 oz. loaf and 10-15¢ for a

24 oz. loaf; California, 74-9¢ and 10-13¢; District of Columbia, 9¢

and 13¢; Chicago, 8¢ and 12¢; Texas, 8¢; and Washington, 10¢ and

15¢. But in Iowa, the prices in the larger cities are 9¢ and 12¢ for a

16 oz. and 24 oz. loaf and, in the smaller cities, 8-10¢ for a 14 oz.

loaf and 13¢ for a 20 oz. loaf; Idaho, 10¢ and 15¢; Nevada, 10¢ and

15¢; Virginia, 9¢ and ifi¢ (18 o2.). See Information received by

Director, Bureau of Standards, Dec., 1923-Jan., 1924, on file Mar.

25, 1924.

28 While there are a large number of uncertain factors connected

with the art of breadmaking, reasonable legislation fixing standard

weights is practicable. See C. J. Kremer, “ Bread Weight Legislation

and Retail Bakers,” 16 Conf., Weights & Measures, p. —. At the

hearings on the “ Federal Bread Bill,” this was not disputed. See

Hearings on H. R. 4533, Mar. 3, 1924. It is generally conceded that

the baker can predetermine with great accuracy the weight of a loaf

of bread immediately after baking. See 14 Conf., Weights & Meas-

ures, p. 77; 15 ibid, pp. 80-84. Neither can it be reasonably con-

tended that a 2 oz. tolerance is not enough to cover shrinkage after

baking. For, pursuant to a resolution adopted at the Fourteenth

Conference on Weights and Measures (p. 87), a series of scientific

experiments were conducted. See 15 Conf, Weights & Measures,

pp. 80-84. The committee on specifications and tolerances recom-

mended to the conference a tolerance not in excess of the one here

allowed. See ibid, p. 79. An investigation on the shrinkage of white

bread, conducted in the District of Columbia by the Bureau of

Standards, showed that the shrinkage, during the first twenty-four

hours, from a one-pound loaf, round top, not wrapped, was 4.4%;

round top, wrapped, 2.7%; lunch, not wrapped, 5.7%; one-and-one-

532 OCTOBER TERM, 1923.

BraNvets and Hotes, JJ., dissenting. 264 U.S.

bakers to the danger of criminal proceedings.” As to

these matters, also, the experience gained during the

period of Food Administration control, and since then in

the several States, is persuasive. For under the Food

Administration, and in most of the States, the business

was successfully conducted under provisions for tolerances

which were far more stringent than that enacted in

Nebraska. In the Food Administration regulation, and in

most of the statutes, the tolerance was one ounce in the

pound.” In Nebraska it is two. In some States the

weight is taken of the individual loaf." In Nebraska it is

the average of at least twenty-five loaves. In some States

in which the average weight is taken, it is computed on

t less number of loaves than twenty-five.** In some,

where an average of twenty-five is taken the tolerance is

half pound loaf, round top, not wrapped, 4.1%; and round top un-

wrapped, 3.0%. See Hearings on H. R. 4533, Feb. 18, 19, 1924, pp.

62-64. On file at the Bureau of Standards, Mar. 15, 1924, is a record

of a large number of experiments conducted in Chicago to the same

effect. See also Mass. Dept. Weights and Measures, Bul. No. 4,

March, 1915, pp. 7-8.

2° Bakers have found very little difficulty in complying with the

measures where enacted. See Hearings on H. R. 4533, Feb. 18, 19,

1924, p. 31, Mar. 3, 1924; H. E. Barnard, “ Bread Legislation from

the Standpoint of the Baker,” 14 Conf., Weights & Measures, p. 24.

The regulations promulgated by the Food Administration had the

approval of the bakers. See Report of the Bakery Division, Nov. 1,

1917, to May 31, 1918. Also in Ohio. See 15 Conf., Weights &

Measures, pp. 88-91. See also 5 ibid, pp. 19-22; 1917 Oregon Dept.

Weights & Measures, pp. 7-9.

%© California, Connecticut, and old Washington Corporation ordi-

nance. See Hearings on H. R. 4533, Feb. 18, 19, 1924, pp. 12-18, 38.

31 Connecticut, District of Columbia, Indiana, Texas, and old

Washington Corporation ordinance.

82 Chicago (see letter of Wm. F. Cluett to Geo. K. Burgess, Direc-

tor, Bureau of Standards, Dec. 28, 1923), Connecticut, Massachusetts,

Model Bread Law (see 15 Conf., Weights & Measures, p. 79), Wash-

ington and Wisconsin. ?

BURNS BAKING CO. v. BRYAN. 533

504 Branveis and Houtmes, JJ., dissenting.

smaller.** Moreover, even if it were true that the varying

evaporation made compliance with the law difficult, a

sufficiently stable weight can, confessedly, be secured by

the use of oil paper wrapping (now required in several

States for sanitary reasons‘), which can be inexpensively

supplied.** Furthermore, as bakers are left free to charge

for their bread such price as they choose, enhanced cost

of conducting the business would not deprive them of

their property without due process of law. Can it be said,

in view of these facts, that the legislature of Nebraska had

no reason to believe that the excess weight provision

would not unduly burden the business of making and

selling bread?

Much evidence referred to by me is not in the record.

Nor eould it have been included. It is the history of the

experience gained under similar legislation, and the result

of scientific experiments made, since the entry of the

judgment below. Of such events in our history, whether

occurring before or after the enactment of the statute or

of the entry of the judgment, the Court should acquire

knowledge, and must, in my opinion, take judicial notice,

whenever: required to perform the delicate judicial task

here involved. Compare Muller v. Oregon, 208 U.S. 412,

419, 420; Dorchy v. Kansas, ante, 286. The evidence

contained in the record in this case is, however, ample to

sustain the validity of the statute. There is in the record

some evidence in conflict with it. The legislature and

the lower courts have, doubtless, considered that. But

83Qhio and “Federal Bread Bill.” See also Hawaii, Montana,

Oregon and Washington.

*4 Wrapping is required by statute or regulation in Louisiana,

Maine, Maryland, New Hampshire, Ohio, South Dakota, Vermont and

West Virginia. See Hearings, H. R. 4533, Feb. 18, 19, 1924, pp. 11, 16.

35 See Bakers Weekly, Oct, 16, 1920, p. 61; Hearings on H. R. 4533,

Feb. 18, 19, 1924, pp. 16, 20, Mar. 3, 1924; “ Report of Federal Trade

Commission on Bakery Business in United States,” Nov. 3, 1917, p. 13.

Sa ee eH pos d

RED RPE LT I ILE EES AE EINES, LEA ISIS EOS OEE

534 OCTOBER TERM, 1923.

Branpbets and Hoimes, JJ., dissenting. 264 U.S.

with this conflicting evidence we have no concern.” It

is not our province to weigh evidence. Put at its highest,

our function is to determine, in the light of all facts which

may enrich our knowledge and enlarge our understanding,

whether the measure, enacted in the exercise of an un-

questioned police power and of a character inherently

unobjectionable, transcends the bounds of reason. That

is, whether the provision as applied is so clearly arbitrary

or capricious that legislators acting reasonably could not

have believed it to be necessary or appropriate for the

public welfare.

To decide, as a fact, that the prohibition of excess

weights “is not necessary for the protection of the pur-

chasers against imposition and fraud by short weights ”’;

that it “is not caiculated to effectuate that purpose”;

and that it “subjects bakers and sellers of bread” to

heavy burdens, is, in my opinion, an exercise of the powers

of a super-legislature—not the performance of the con-

stitutional function of judicial review.

“For arguments in favor of standard-weight loaf law, see Bakers

Weekly, Nov. 29, 1919, p. 37; Dee. 20, 1919, pp. 37, 49; Apr. 24,

1920, p. 69; June 26, 1920, p. 49; July 3, 1920, pp. 39, 40; Aug. 7,

1920, p. 55; Jan. 22, 1921, p. 62. For the arguments urged against

the legislation, see Northwestern Miller, Vol. 122, pp. 1381, 1401;

Vol. 123, p. 406; Vol. 126, p. 398; Bakers Weekly, May 8, 1920, p. 65;

May 15, 1920, p. 61. It is interesting to note that none of the writers

contend that the tolerance provision is unreasonable. See also Hear-

ings on H. R. 4533, Mar. 3, 1924. There is a great contrariety of

opinion among bakers themselves as to the advisability of the legisla-

tion and the limits of a reasonable tolerance. “Tolerances of some

kind are absolutely necessary, but in view of the conflicting opinion

of bakers, weights and measures officials, chemists and others inter-

ested in solving the problem, a ‘ reasonable’ tolerance is about as hard

to determine as the traditional age of Ann.” See 134 Northwestern

Miller, p. 1373. Also Bakers Weekly, Jan. 11, 1919, pp. 51, 54; Jan.

18, 1919, pp. 35, 45; Feb. 1, 1919, pp. 46, 50, 55; Mar. 15, 1919,

pp. 42, 52; Jan. 17, 1920, p. 43; Mar. 27, 1920, p. 57; May 22, 1920,

p. 40; June 12, 1920, p. 57; June 26, 1920, pp. 45, 49; Aug. 7, 1920,

p. 39; Jan. 1, 1921, pp. 39-40; Jan. 22, 1921, p. 37.