# Opinion — Jay Burns Baking Co. v. Bryan

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0457%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opinion
- **Published:** January 1, 1924
- **Citation:** 264 U.S. 504

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0457%3A3. Public record. Not legal advice.