Appellees Brief — PF Petersen Baking Co. v. Bryan

Supreme Court brief1934

Ask Donna

What actually matters in this document.

Text

Table of .Cases ‘and Authorities Cited

Ut S. Supreme Court Deéisions................605 et ca.

Uz. S. Constitution and Statutes....... 0.6... cee eee cere ee ees

Lower. Federal Court Decisions. ..............0..seeeeeee. ;

» State Decisions pias abetaeeasnken Waecesess Seekvanteinag.

‘State Statutes .............. ee Saket cash uakundataleaeaan

‘Miscellaneous Data .................. roe Teesee seepecees ss

“Statement ......: isa ® Suwxis det roaces sesene cove covesssecesess

‘Summary’ of WIE so in pcicd sep cir POT TL eT Tee TEE *

Argument EE IE E Sa FSO wesweka bes dove sar ere Leseeecees “%

es Point I.° In, prescribing standard weights tor loaves of bread

ae the-fixing of a maximum limit of weight or-excess

- usefal and necessary ‘and bears a reaseuable rela-

tion to the purposes of the Act and iz not an arbi- .

trary or capricious exercise of the police power..

Point II. Even-though the Court should hold that the maxi-

mum weight limit feature of the Act is invalid,

the remaining provisions of the Act should not be

held: void for that reagon...... eee eeeeseceseceees

Point III. The delegation of. authority to the Saseseny of

Agriculture to prescribe administrative details. in

the enforcement of the instant act does not vio-

late the fourteenth amendment........ patviaeness

Point iv. The provisions of the statute and ie rules and

regulations are plain and definite and ‘do not sub-

ject appellants to unreasonable standards. . Objec-

tions to the rules of the Secretary of Agriculture

. will not be considered in view of the failure of

' appellants to apply to the administrative board

. for a modifieation of the rules...............06-

Point V. «The statute and. the rules: of the Secretary of Agri-

culture prescribe. standards with which the appel-

lants may reasonably comply...... Shits Wireaieca rss 9

reasonable conditions as may be imposed by the

governing power of the state; and the fact that a

réasonable exercise of the police power results in

, tolerance for each standard weight prescribed is —

oe. Point VI. ‘The business’ of the. appellants is held on such .

il Rs. °- INDEX

: Page

restrictions of appellants’ business and imposes -

some inconveniences upon them does not render .

the law invalid. . errr fb eee ptcekaxoneee eikonal 41

Conclusion Jaws ee eros ree Vitor kieiaberee 45

ie '.. TABLE OF CASES AND AUTHORITIES CITED |

U. 8.. specced ‘Court Decisions :

Advance Rumely ‘Thresher Co. v. Jackson, 287 U. _S. 283, 7 L. Ea.

OY ola a ae a a eee ee Red oe ea aa eee 15

Armour & Co. v. North Dakota, 240 U. 8. 510, 60 L. Ed. 771. . -3, 4, 10, 13, 14,

\ per oa 15, 21, 23, 43, 44

Bitras Baking Co. v: Bryan, 264 U. S. 504, 68 L. ‘Ba. eee 4, 11,18, 22, 28,

i 2% 24, 26, 36, 37 ©

Buttfield v. Strahahan, 192 U. 8. 420, 48 L. Ed. EE ae 6, 28

Crowley ve Christensen, 137 U. S. 86, 34 L. .Ed. 620. ee OTe 10, 44

Dorchy Vv. Kansas, 264 Ps; S. 286, 290, 68 L. Ed. 686, 690 ye 5, 8, 9, 25,35, 36

: Erle.R. Co. v. Williams, 233 U. S. 685, 58 L. Ed. BN 6406 98460 9,44

my King Manuf. Co. v. ‘Augusta, 277 U. S. 100......... ay ee on

Lockner v. New York, 198 U. S. 45, 49 L. Ed. 937..........--.,.-- 3,11

» L’Hote v. New Orleans, NTU, 8. 587, 44 L. Ed. 899........ a anaes 9,44

Louisville & N.‘Ry. Co. v. Garrett,.231 U. 8. 298, 305, 58 L. Ed. 229,

se PRO ies, “ie eater es 6, 28."

* Mugler v. Kansas, 123-U. S. 623, 31 “S fem eG ee ea ee

Muller v. Oregon, 208 U. S. 412, 419, 420, 52 L. Ma. 551, 554, 555.... 4, 20

Northwestern Laundry v, Des Moines, 239 U.S. 486, BOL. Ed. 396.. 9, 44

‘New York v. Van De Carr, 199 U. S. 552, 560, 50 L. Ed. 305, SQ... .7, 30, 36

Red “Cc” ‘Oil Mfg. Co. v. North Carolina, > S. 380, 394, 6e

Ea. 240 senedgueds peneGennaaihescWencedhes npareyener , -6, 7; 8, 27,29, .

; 30, 31, 32, 34, 36

Schebedtngee v. Chicago, 226 U. S. 578, se Seer 3, 5, 10; 12, 25,

: cone 32, 33,41, 44

Sultan Ry Co. v. Dept.-of Labor, 277 U. S. 185..............0005. 29

“St. Louis, Iron Mountain & So. Ry. Co. v. Tae 210 U.:S, 281, 52

i 2. 2 ere Leeothktsktnea elas aes caedwad deena bed — 6,28 .

‘Union Bridge Co.“v. U"8., 204 U. S. 364, 51 L. Bd. 364............ 6, 28

U. S. y. Grimaud, 220 U. S. 506, 55 L. Ed. 563............... obs 6, 28.

Walls y. Midland Carbon Co., 254 U. S. 300, 65 L. Ed. 276......... 9, 44

Washington v. Dawson & Co., 264 U. S. 219, 236, 68 L. Ed. 546,.565-. 24

Aaa Reman Co. v. White, 3 Fed. Suppl. SL uksaaon Sane 5; 23,26 |

"Fourteenth Amendment to the Co

te INDEX F a = iii

aa ‘Page

_U. 8. Constitution a

itution of the United States... .6, 36,27

Chicago & N. W. By<Co. v.-Dey, 35 Fed. 866, 875.....:........0.- 27

Holsum Baking Co. v. Greene, 45 Fed. (2nd) 238................: 23

Petersen’ Baking Co. v. Weaver, Appendix “A,” Appellants’ Brief 36

2 State Decisions .

Allion v. Toledo, 99 Oh. ‘St. O06, 206 MH. T. BOT... . 00405555 oe -

Buffalo v. Collins Baking Co., 39 App. Div. 48, 52. N. Y. ‘Suppl.

ERPS E.R SRR oreo enn ne Sime in depweewenee 16

Comm. v. McArthur, 152 Mass. 522, 25 N. E. 836............. ees 4, 13, 16

Ex Parte Fujii, 189 Calif. 55, 207 Pac. 537.:..............000000- -4, 13, 16

McShane v. Douglas County, 96 Neb. 664, 667, 148 N. W.569,570...> 5, 25

Mobile v. Yuille, 3 Ala. 137, 36 Am. Dec. 441................0000: ” 4, 16

Noté to Burns Baking Co. v. Bryan, 68 L. Ed. 814....'............ 14, 16

People v. Wagner, 86 Mich: 594, 49 N. W. GOD... cece ee eee eees 13

Petersen Baking Co. v. Bryaui, 124 Neb. 464, 247 i. see 6, 8, 26, 32,

; 35, 45

State v. Co-operative Store Co., 123 Tenn. 399,.131 S. W. _ eer 4, 13, 6

State v. Curran, 220 Ala. 4,6, 124 So. 909, 912..........0.2.....5. 23

State v.. McCool, 83 Kans. 429. 111 ee ee eer ere 13

State v. Moore, 104 N. C. 714, 10 S. BE. 148...........:. cdulvanis ec a

“State v. Painter, 117 Neb. 42, 46, 219 N. W. 794, 796.............. 5, 26.

. Stegmann v. Weeke, 279 Mo. 140, 214 S. W, 137, 5 A. L. R. 1061....4, 13, 16

State Statutes

Nebraska, Laws, 1931, p. 430. (The act challenged)............. ---

Miscellaneous Dete

Eighteenth a Conferente on Weights and Measures, 1925,

Dept. of Commerce Publication, pp. PPA Se denceevecdantss ~.. 20

Fifteenth Annual Conference on Weights and Measures, 1922,

Dept. of Commerce Publication, OR Ws Bac thaccwcnsccecsccte —

H. R. 8981—Federa! Bread Bill..... ae beachéunuden deena 19

iv INDEX

“Information for the Press”, U. S. Department of Agricultur ., Ad-

* justment, Administration, Washington, D. C., Sept. 25, 1933,

Seventeenth Annua! Conference on Weights and Measures, 1924

‘Dept. of Commerce Publication, pp. 40-47........--+--+--+-+++

‘Sixteenth Annual Conference on. Weights: and Measures, 1923

Dept. of. Commerce Publication, pp. 104-111, 116-118..........

Special Rules and Regulations Governing Licensees Manutactur-

ing Bakery Products, United States Food Administrator, Series

D, Febr. 1, 1918, Rule 2, Class 1.........-.-- +2 eee eee ee eens

United States Food Administration, Bulletin No. 11, December,

NE Se eee erent reereer "Rh ee Ce

IN THE

SUPREME COURT

OF THE

“UNITED: ‘STATES

OCTOBER TERM, 1933

_ No. 203°

P. F. PETERSEN BAKING COMPANY, SCHULZE _

. BAKING COMPANY, CONTIN ENT AL BAKING

COMPANY, GENERAL-BA KING COMPANY,

QUAKER BAKING COMPANY, CorporATIons, FOR

THEMSELVES AND OTHERS SIMIL ARLY SITU ATED, APPEL-

LANTS (PLAINTIFPS),. ..

VS. .

CHARLES W. BRYAN, as GoOvERNOR OF THE STATE OF

NEBRASKA, AND DWIGHT F. FELTON, as Deputy SEc-

RETARY OF THE DEPARTMENT OF AGRICULTURE OF THE

STATE OF NEBRASKA, APPELLEES ( DEFENDANTS).

APPEAL FROM THE SUPREME COURT OF THE STATE OF NEBRASKA

BRIEF OF APPELLEES

PatL F;: Goop,

DANIEL STUBBS,

Counsel for Appellees.

SRB PMP eI. ene A

LOLS PND iy Ne ee

SW ye Tt i ian ars ee hag Tt wo PON, "Gate Ce aes

POM» TL

Breer wey ere rn ue

STATEMENT OF ‘THE CASE”

The statement of the case made by appellants ‘in their

brief is, in the main; correct, but is subject. to the followixg

additions and changes in emphasis.

This case was commenced on July 23, 1931, by ‘the filing

of appellants’ petition, ten days before the Act assailed as-

unconstitutional became. a law and effective as such on

August 2, 1931 (Appellants’ brief, p. 4), A temporary

restraining order was entered restraining the defendants

from operating under the Act on July 23, 1931 (R., p. 1).

Subsequent orders were superseded [Original record (not

printed), Vol. I, p. 91, and Vol. II, Pp. 107] so that oe Act

has never been operative.

The rules of the Depyty. Secretary of Agriculture adopted

on & September 19, 1931 (R. “Pp. 28), were the rules considered

‘by the trial court (R., p. 38) and the Supreme Court of

Nebraska (R., p. 46).

In addition to the provisions iti the rules of the Secretary

of Agriculture of September 19, 1931, set out in appellants’

brief (IX, p. 28) it is also provided in said rules that the

baker shall not be respopsible for the maintenance of. the

minimum weight after ddlivery of the bread (R., p- 29).

nee OF ARGUMENT

| po.

‘In sini standard weights for loaves of ——"

the fixing of a maximum. limit of weight or excess ©

. tolerance for each standard weight prescribed is use-

ful and necessary and bears a reasonable relation to.

the purposes of the Act and is not an arbitrary or

capricious exercise of the ee ‘power. -

_. a The viii of standard weights of bread to prevent

~ short weight frauds*and: unfair competition is a reasonable

exercise of the police. power.

_Schmidinger v. Chicago, 226 U. 8. 578, 57 L. “Ed.

. 364.

Armour & Co. v. North Dakota, 240 U. S. 510, 60

L. Ed. 771:

b. The scope of. judicial. inquiry in examining the ques-

. tion of the validity of a provision of a state law, the pur-

pose of which is concededly a valid subject for police regu-

lation, is limited to determining whether the legislature |

could reasonably have believed that the provision bears a

reasonable relation: to ‘the purposes of the law.

“Lochner v. NewYork, 198:U. 8. 45, 49 L. Ed. 937.

Schthidinger v. Chicago, ‘226 U. 8. 578, 587, 57 L.

Ed. 364, 368. ee

c. In order to fix a standard weight it is necessary to

place minimum and’ maximum limits upon that weighit.:

If weights of a commodity may deviate from the standard.

either up or down in an unlimited amount no standard

has been fixed. If no standard weight is fixed which neces-

sarily included the limitation of a maximum weight, the act -

is deprived of all force to prevent ,weight frauds which

concededly the state has power to. prevent.

Armour & Co. v. North Dakota. 240 U.: S. 510, 60

L. Ed. 771.

d. The court cannot say that the legislature of Nebraska

‘had no reasonable grounds to believe that a maximum -

weight limit is essential and bears a reasonable relation to

the fixing of standard weights and: the prevention of weight

frauds when it ‘considers:

VET IES TREN MMR ES LIL CE AE RAID i dete

ae,

Someta

i 34

Pe PY

NS BETTI HINT

BILE SOLER E ISL EEE POON IEE YRS ALS SN TE

n bape , 1 :

* 1. That this court has sustained ‘such a. maximuni

weight limit. oe | ;

Armour & Co. ¥. North Dakota, 240 U. S510, 60

L. Ed. 771. | -

2. That the state supreme courts have sustained

such a maximum weight limit. . .

State .v. Co-operative Store Co., 123 Tenn. 399,

131 S. W. 867. i

Ex Parte Fujii, 189 Calif. 55, 207 Pac. 537.

Mobile y. Yuille, 3 Ala. 137, 36 Am..Dec. 441.

Com. v. McArthur, 152 Mass. 522, 25 N. E. 836.

Stegmann v. Weeke, 279 Mo. 140, 214 S. W. 137.

3. Numerous other legislatures have enacted pro-

visions similar to the Nebraska. Act. .

4. The trend of contemporary thought and literature .

support the view, and this should he considered.

Muller v. Oregon, 208 U. 8. 412, 419, 420,-52 L. Ed.

551, 554, 555. a

-§. The testimony of experts sustains the view. .

6. Logical reasoning reaches the ‘same conclusion.

- @. The case of Burns Baking ( Co. Vv. ipa, 264 U. S. 504,

68 L. Ed. 813, does not support a contrary view, and if

interpreted to do 80, * should * in so far as it does, dis-

approved. |

II.

Even though the court should hold ‘that the maxi-

mum — limit feature of the Act, is 3 invalid, | the |

remaining provisions of the Act- ‘should not be held |

void for that reason.

Whethier the whole Act. falls —_ one provision is in-

valid depends upon whether that provision is separable.

from the remainder of the Act. Fae :

Dorehy Vv. Kansas, 264 U. ‘8. 286, 290, 68 L. Ed.

686, 690.

The determination of this question is primarily for the

state court, - but this court having acquired jurisdiction

may decide it. in the absence of a ruling in the state court

or it may remand it for deter mination bythe state court.

— v. K ansas, ‘supra.

Legal effect may be given to the act though the maximum

weight limit be eliminated.

Schmidinger v. Chicago, 226 U. S. 578, 57 se Ea.

- 364.

-The quéstion may be determined upon the face of the

act in Nebraska. |

McShane v. Douglas County, 96 ‘Neb. 664, 667,

148 N. W. 569, 570.

State v. Painter, 117 Neb. 42, 46, 219 N. W. 794,

796.

Such an act has been held separable.

Wonder Bakeries Co.-v. White, (D. C. Ia.) 3F.S.

311, 318.

If the provision for a maximum. weight limit is held void

te court should either (1) hold the remainder of the Act

separable therefrom or (2) remand the case for a deter-

mination of that question by the State Court.

III.

+ The delegation of authority to the Secretary of

Agriculture to prescribe administrative details in the .

enforcement ‘of the instant act does not violate the

fourteenth amendment. ‘

‘That the authority given to the Secretary of Agriculture — |

| is a proper delegation of power under the state ‘constitu-

tion is settled by the opinion below.

Petersen Baking Co. v. Bryan, (R. p. 7) 124

Neb. 464, 467-8, 247 N. W. 38, = /

That it. is a resssnahie iahigeiton under the due process

clause of the federal constitution is settled by a long line

of decisions in this court. ==> .

Buttfield v. Stranahan, 192 U. S. 420, 48 L. Ed.

B25. | el

Union Bridge Co. v. U. S., 204 U.S. 364, 51 L. Ed.

364. ie: 5

. St. Louis, Iron Mountain & Southern Ry. Co. Vv.

Taylor, 210 U. 8. 281, 52 L. Ed. 1001.

” Louisville & N. R. Co. v. Garrett. 231. US _ 298,

305, 58 L. -Ed. 229, 239.

- Red “C” Oil Manuf. Co. v. North pevetines 229

| U. 8. 380, 394, ——

U.S. Y. Grimaud, 220 U. 8. 506, 55 L. Ed. 563. ~

_ The provisions of the statute and the. rules and _

regulations are plain and definite and do not subject

appellants to unreasonable standards. Objections to

the rules of the Secretary of Agriculture will not be

considered in view of the failure of appellants to

_ apply to the administrative board for a modification

of the rules. SOA De heee athe eee

a. Neither the statute nor the rules of the Secretary of

Agriculture subject appellants to responsibility for the

weight of bread after it has left their possession for the -

rules provide that responsibility ceases after delivery.

(RB: p. 29). It will not--be presumed’ that thé discretion

. authorized by the statute will be unreasonably exercised

by the publie oficer charged with administration of the act.

a | .

New York v. Van De Carr, 199 U. 8. 552, 560, 50

L, Ed. 305, 310. Ee Dal

The objection that the statute does not fix a time_dur-

_ ing which the maximum limit must be maintained is with-

’ out merit, for bread does not increase in size after it is

baked. ie .

b. Objections to the rules adopted by the Secretary of

Agriculture are not before the court in view of the failure ©

of appellants to. request modification of said rules of the

administrative officer prior to commencing suit. ”

Red “C” Oil Mfg. Co. v. North Carolina, 222 U.S.

380. ; - raat

3ut if the court examines the rules,

41) the term “fancy breads” is a well defined ‘trade :

term and is so held by the trial court (R. p. 39):

(2) The authorization of the Sovnetary of Agriculture

“to make “reasonable tolerances” is'a definite delega-

tion of discretion, and that it is a proper one: is

shown under Point 3 of. our brief. The rules fix a

tolerance of 3 ounces to the pound which is rather

» definite. Appellants object to this as being too

definite. — sf

(3) All other terms used in the act when given their

plain and ordinary meaning have a definite and —

I), clear connotation and appear: are not misled by

. them. — | , © oe

(4) If the. rules are held subject to examination, and: are

held void for indefiniteness, the statute should still

“be held valid. ,

.Dorchy v. Kansas, supra. \

the statute and the rules of the Secretary of Agri-

culture prescribe standards with which the 7

id ‘veasonably comply.

\a. The objection that the ‘weight limitations of 3 ounees —

~ . to the pound ‘are impossible of compliance is directed to the

rules of the Secretary of Agriculture who prescribed the

limitation (R., p. 29). The court will not consider objec-

. tions to the rules-in view of the failure of appellants to

first request modification of - same of the administrative

officer. » : Soe

‘Red “C” Oil Mfg. ro v. North Carolina, supra. ;

Petersen Baking Co.. Vv. Bryan, 124 Neb. 464, 247

N. W. 39. |

b. If the court should hold that the’ rules may be exam-

ined there is ample evidence to support the finding of the -

trial judge (R., p. 38) that appellants may. reasonably com-

' ply with the iol limitations in the conduct of their

business, and that finding should not be disturbed.

ce. If the court should find that the rules should be ex-

amined and should hold that they prescribe. impossible

. standards, only the rules should be held void and the matate

x should be held valid.

Dorchy v. Kansas, supra.

VI.

The business of the appellants is held on such ©

reasonable conditions as‘ may be imposed by the °-

governing powér of the state; and the fact that a

YTeasonable exercise of the police power results in|

restrictions of appellants’ business and imposes some

inconveniences upon them does not render the law

invalid.

. The purpose of the act is to secure for thé benefit of. the

_ publie a system of honest weights and measures. If an act

reasonably effectual for that- purpose results in. restrictions

of appellants’ business, the restrictions are merely a valid

; exeit'ise of police regulations. ;

. Mugler Vv. Kansas, 123 U. S. 628, 31 L. Ed. 205.

Walls v. Midland Carbow Co., 254 U. 8. 300, 65

OL, Ed. 276. , ra

Erie R. Co. v. Withiams. 233, U. S. 685, 58 L. Ed.

1155. | *

7 Northwestern Laundry v. Des Moines, 239. U. .

486, 60 L. Ed. 396.

‘I ‘Hote vy. New Orleans, 177 U. S. ‘587, 44 L. ‘Ba.

899.

spite

i ; are

7 ' 10

\ . ‘ t

' ae Gas

| Crowley Vv. Christensen, B7ULS S. 86, 34 Le “Ed. 620.

> Schmiding wer Ve Chicago, supra.

Armonr € Co.¥. V orth ae. mr.

}

_ The objfrction’ that appellants must replacessome of their

nipment with new sizes. and that they’ will be forbidden

* Be

_ closed . Dy

Armour, me Me. v. North Dakota, —

| ‘constitution ‘to conduct their business im a manner sus-

ceptible wt fraudulent practices. . .

}

"ARGUMENT

ie *

Point L

2 _ tolerance. for ‘each, standard weight prescribed is use-

a. capricious exercise of the police power. we

axiom: ditic that. it is well within the. pow er of the legislature

in regulating, business dealing with commodities in. general

use and that. such regulation may extend to the business

‘of baking bread. “Schmidinger v. Chicago, 226 U. S. 578,

-57-L. Ed. 364 (1913). Armour & Co. v. North Dakota. 240

U.-8.-510,.60 L, Ed. 771: (1916). The purpose of such

legutation is | “to protect buyers from short weights and

| honest bakers from unfair competition.” . Brandeis, J..

to bake a loaf of bread previously baked have been fore-.

the cases. of Sc ‘hnnidinger v. Chicago, stipra, and.

_ Appellants > ae not acquire a wniacriptive right under the «

In presarjbing standard weights fer: seni of bread. |

> “the: fixing of a. maximum limit of weight or excess

ful and necessary and: bears a reasonable relation to

' the purposes. of the Act and is not an arbitrary or .

Tt is- ot flenied- By abet and has become almost

_<of Nebraska ‘to: _prescribe-Standard weights and measures ~

Bel

dissenting i in Jes y.Burns Baking Co. v. Bryan, 264 U. S. 504,

' 517,68 L. Ed. 813, .828.

The Nebiesky Act of 1931, challenged by seiiinibiie and

set out in full-on pages 3-4 of their brief prescribes definite

standard weights for loaves of bread made for sale in the

State of Nebraska and. prohibits the making of any other

size loaf for sale in said’ state. Because of thé infirmity .

P existing in the art of baking. bread making it impossible |

to maintain a definite fixed weightin a loaf of bread after. :*.

it is baked the Act permits a tolerance differing from the

standard weight. This is accomplished by fixing a maxi-

mum and’ minimum weight for each standard weight. The.

minimum weight is fixed at the standard weight. - The

Sizé of the tolerance from the. standard, weight permitted

and the time during: which the minimum weight must be

maintained (it is obvious that a loaf of .bread does not -

_increase in weight after baking) is left to be prescribed

as an. administrative detail -by the ‘Secretary of the De- .

partment of Agriculture. . a -

The ‘first and principal objection te the Act urged -by

appellants is dirécted to the maximum weight limit pre-

scribed. Point Fot. Appellants’ Brief (p. 15) urges that

_to prescribe a maximum tolerance i§ in and of itself a -

. Violation of the fourteenth amendment regardless of w hether:

compliance w an geen oaae is possible and reasonable. -

“When: a “state law is so clearly inappropriate to the

“purposes sought to be attained ‘and the relation it: bears

to those purposes is 80 arbitrary as to “shock the con-

science” of the court it will not be Sustained. But business

_ and personal “liberty” .may not be freed from all. restric-

tions. Lochier vy. New York, 198 U. 8. 45, 49 L. Ed. 937..

Stee

Ere Phin

TTL S

py PALER PROTECTS

“nD BLE a lide hs cil ala oll Bl a

“Regulations r respecting the pursuit of a lawful trade

or business are of very frequent occurrence in the

various cities of the country, and what such regula-

tions shall be. * * *. are questions for the state

to determine, and their determination comes within

‘“the proper exercise of the police power of the state,

and ‘unless the regulations are so utterly unreasonable

‘and ertravagant in théir nature and purpose that the

property and personal rights of the citizen are un-

necessarily and in a manner wholly arbitrary, inter-

fered with or destroyed without due process of law,

they do not ertend beyond the power of the state to

pass, and they form no subject for Federal inter-

ference.” (Italics ours.)

acai v. Chicago, 226 U. s. 578, 587.

The validity of the Nebraska Act. in the premises must

therefore be sustained unless the court can say that the.

‘legislature of Nebraska cannot reasonably have had “in

mind any relation between a maximum weight limit and

the evils which the stantere weight law was designed 1 to -

prevent.

The question is not whether the court finds the law

necessary but rather is: whether she court can say that the

law is sO apparently unnecessary that no reasonable mind

could differ.

The purposes of the Act are the same as all standard

- weight aets, to prevent short weight frauds and unfair

competition. The principal object is to prevent the imposi-

tion of short Weights on the undiscerning public consumer.

No one denies -s that this | is a laudable purpose.

The reason that’ standard tipi laws prevent short

weight frauds is not obscure. ‘Articles of general con-

in an infinite number of weights. The ‘difference in ‘size

of two containers of lard, one weighing 14 oz., the other 18

02z., is not readily distinguishable by the average consumer.

The two containers look the same to him. There is no |

standard by which he can and will readily - ‘determine

whether he is getting his money’s worth. ~ It is probably

true that said consumer never learns that he has been

‘deceived. The business of the fraudulent company depends

upon keeping the consumer deceived.

If, on the other hand, a standard weight is fixed for lard

and it may be sold in a container of only one pound net

weight, the purchaser is certain. of the amount he receives

and has a standard upon which to base a selection.

The purchaser, in short, has “a means of estimating his

purchase free from disguise or the necessity of an arith-

metical estimate of what he is getting or paying for * *

* *” Armour & Co. v. N. D., 240 -U.'S. 510, 516. .

The limitation of the sale of miailities ‘“ define

standerd weights and measures , has a held valid by

state courts, ;

Stegmann.v. Weeke, 274 Mo. 140, 214 $ . 137.

State v. McCool, 83 Kans. 429, 111 Pac. 477.

People v. Wagner, 86 Mich. 5946, 49 N. W. 609.

Com. v. McArthur, 152 Mass. 522, 25 N. E. 836.

State v. Co- -onerutive Store Company, 123 Tenn.

399, 131 S, W.. 867.

Ex Parte Fujii, 189 Cal. 55, 207 Pac. 537.

Allion v. Toledo, 99 Oh. St. 416, 124 N. E. 237.

Ntate v. Moore, 104 N. ©. 714, 10S. E. 143.

sumption not sold in bulk weight may be prepared for sale .

OLS ape ny ONL ee

FPF ARNT RAC TOEIRRHCR IM HT

~T4

See cases in note to Burns Baking Vo. V. Bryan, 68 —

~ L. Ed. 814. |

and by this court,

Armour-& Co, v. N. D., supra:

Now, it would seem to. be: clear that a standard weight |

necessitates both a minimum and a maximum weight. If.

a maximum only of three pounds weight is. fixed for a

commodity, it is clear that the commodity may. be sold in |

an infinite number of weights from zero to three pounds

and no STANDARD WEIGHT has been fixed. This is as

: apparently trie of.an act fixing a minimum limit only. It

follows irresistibly that a maximum is a necessary incident

to prescribing a standard weight.

The fixing of standard weights has been uniformly. held

to be a reasonable means to effect a prevention of short

weight frauds. See cases supra. '

Can it be said that a maximum limit, a limit which is

“necessary to fix a standard weight, so obviously bears ‘no

relation to. the purposes of a standard weight law that the

legislature of Nebraska acted in an arbitrary dua ae

manner? |

The North Dakota Act sustained in Armour € Co. V. |

North Dakota, supra, fixed a maximum limit. The North _

Dakota Act provided that lard, not sold in bulk, should be

put up in containers holding one, three, or five pounds net

weight and whole:multiples thereof AND NOT ANY FRAC-

TIONS THEREOF. 240 U. S. 510, 511.: .

The only difference between the North Dakota Act and

the one at bar is’ that lard is a commodity aaa of

pe , oe =

a 3)

exact weight control-and bread is not. The Nebraska legis-

lature recognized this and provided a tolerance so that it.

would be possible to adapt the principles of standard weight

- acts to bread without prescribing — with which com-

“may not be sold in a container of over 1 pound net weight |

and bread may not be sold in a loaf of over 19 oz. net ~-

pliance would be impossible.

When the Act of North’ Dakota prescribes that lard shall |

be sold at one pound or three pounds when sold in a-con-

tainer, a sale of a container holding one pound one ounce -

is illegal. The reason is that the act prescribes a maximum

of: one pound for the standard weight of one pound. The

provisions of that act were held to be valid and not an

arbitrary exercise of the state’s police power in Armour &

Co. V. North ae, supra.

Ww hat difference is there between prescribing that lard

weight?

Can the court now say that the maximum weight limit _

cannot reasonably bear any relation to the purposes of the

Nebraska Act?

"Is not the relation of the maximum weight limit to the

prevention of weight frauds as close as the relation of the

prohibition of waiver of warranty to the prevention of ©

‘Selling threshers and combines unfit for the -purpose -for

which sold?

—— Rumely Thresher Co. Vv. Jackson, 287 U:

S. 283, 17 L. Ed. 306.

Both tend to prevent ima from deceiving the —

public who are unable to form a competent judgment on

first inspections. —

EOLA OPEN

REINA! HT EI Rt ME MIR RY By

State laws fixing standard weights or measures and_

prohibiting the sale of commodities in other than the

prescribed standards have been sustained by many state

courts.. The following fixed a MAXIMUM as well as a

minimum limit and prohibited sales of. weights in excess. ie

of ‘the MAXIMUM. State v. Co-operative Store Co., 128

Tenn. 399, 131 8. W. 867 (fixing standard weight of bushel

of corn meal at 48 pounds and prohibiting ‘sales in -bags .

or other containers. except those containing 2, 1, 4%, %,

‘or 1/8 bushel by weight). Ea Parte Fujti, 189 Calif.

- 5S, 207 Pac. 537. (fixing standard berry basket of a dry pint ~_

.and dr¥ ¥, pint and a standard strawberry basket of one

dry pint), Mobile v. Yuille, 3 Ala. 137, 36 Am .Dec. 441

(prescribing the weight of bread on a graduated scale),

Com. v. McArthur, 152 Mass. 522, 25 N. E. 836 (requiring

bread to be sold in whole, half, three-quarter or one-quarter

loaves), Stegymann v. Weeke, 279 Mo. 140, 214 8S. W. 137;

5 A.'L. R. 1061, (1919), (fixing the shape and cubic con-

‘tents of bushel and half-bushel measures and forbidding

the sale of certain produce in other than the prescribed.

measures). And see related cases in note to ‘Burns Baking

Co. v. Bryan, 68 L. Ed. 813, 814, ees annotations 5 A. L. R.

1068. : ;

In these acts where a sale'in any weight other than the

prescribed standard weight is prohibited, the act created

a MAXIMUM weight limit. : GF.

‘These cases represent the almost uniform holding of all

state courts to-whom the question has been presented. (See

one case to the contrary, Buffalo v. Collins Baking Co., 39

“App. Div. 432, 57 N. Y. Supp. 347.)

These cases and the opinions therein (written by pre-

-sumably reasonable judges) are submitted not as of judi-

PRC ky

cial influence on the constitutional question, but to show

that others than ‘the legislature of. Nebraska ‘have believed

that the maximum. weight limit in ‘Standard Weight Laws

4 a reasonable relation to the purposes of the Act.

Can this court now say that the legislature of Neliniien .

had no reasonable grounds upon which to base a belief

that the maximum weight limit was a necessary part of the

standard weight bread law?

Numerous other - legislatures have enacted provisions

similar to the Nebraska Act. lowa,’1927 Laws, Chapt. 62;_

Ohio, 1921 Laws, p. 604 {very,.similar, to instant statute

except the permitted wiliuenee: is much. less). Indiana,

Burns Ann. Stat. Supp. 1921, Chapt. 81, Pp. ‘1117. (same) ;

Wisconsin, Laws 1923, Chapt. 123, p. 227; Chicago City

Ordinance, August, 1921, Section 188; Texas, Sec. 719 °

(1921) ; California, Stats. and Amendments, 1921, Ch. 704,

p..1196;. South Dakota, Laws 1921, Ch. 239, as anntiitia

by ‘hens 1923, p. 174; North Dakota, Laws, 1923, p. 289;

Montana, Rev. Code 1921, Vol. 1, Pol. Code, Part 3, p.

1547. Oregon, Laws 1919, Chapt. 82, Sec. 1.° Connecticut,

‘Laws 1921, Chapt. 261, Sec. 2, 3, 4. Washington, Laws

1923, Chapt. 126, Sec. 1.. Arizona (1925), sec. 4, 5; Chapt.

13, Laws 1925. Minnesota ( — sec. 1-4, Chapt. 351,

Laws 1927. ?

An examination discloses that twelve of these - finite 2

- acts provide for a maximum tolerance. In four of: them.

the tolerance is fixed by an administrative officer.

A comprehensive survey of the field of thought upon the

subject and the attitude of the Federal government during

_ the war as exemplified by the rules promulgated Feb. 1,

1918, by the United States Food Administrator, “Series -

D” under authority of the Lever Act (August 10, 1917,

18 ©

Chapt. 43, 40 Stat. at L. 276), the attitude of the ; one

_ Conference of Weights and Measures as shown by. their

.. reports, the attitude of a number of state legislatures and

state officers, and of a number of committees investigat-

ing the subject, is made and the authorities collected in

the opinion of Mr. Justice Brandeis (dissenting opinion in

Burns Baking Co. v. Bryan, 264 U. S. 504, 519-534, 68 L.

Ed. 818, .829- —_

Although our woiittien does not require us. to support. —

the proposition that a maximum weight limit: is absolutely

necessary to sustain the act and justify an affirmance, we

_ believe that a careful consideration of the authorities and

arguments therein collected will Jead to the conclusion that

, a regulation of maximum, weight limits is essential to pre-

vent weight frauds in loaves of bread as in deed other com-

modity:

-The Revised Rules and Regulations Governing Licensees

Manufacturing Bakery Products of the United States Food

‘s Administrator effective Febr. 1, 1918, referred to in the

second next preceding paragraph fixed MAXIMUM LIMITS

for each standard weight therein prescribed of 1° ‘pound,

1% pounds, and multiples ofa pound.. maximum varia-

-tion of 1 ounce per pound over each weight and 1 ounce

per pound under each weight was permitted. (Rule 2,

Class 1, Special Rules and Regulations Governing Licensees

Manufacturing Bakery Products, United States Food Ad-

ministrator, Series .D, -Febr. 1, 1918.) ,

For the reason for the rules” see United States Food

Administration, Bulletin No. 11, ‘December 1917, p. 3:

“A multitude of sizes—there are now not less than

38 different sizes on the market, all the w av from 6),

ounces to 4 pounds—is to be reduced ts 3 or 4. The E

standard weight is a protection to the buyer. Among ‘

38 sizes and ever so many varieties, it is hard for any 3

one to tell which is the best velen.* But when. there hs

is a standard 1-pound loaf, one can choose on the

_ basis of price and good baking. — ours. )

And see in 1933, “Infor mation for the Press,” . Sept. 25, _

1933, U.S. Department -of : Agriculture, Adjustment. Ad-

- ministration, Washington, D. (., p. 2 (extract from letter

of consumers’ counsel ‘of the Agricultural Adjustment- :

administration >, ,

ESOT MY DIED- 1. RO ait

“There has been a great deal of confusion and mis- :

understanding about bread prices during the past two §

or three months, because of ‘this lack of standards.

This applies also to a lack of . uniformity in weights.

Many bakers have made ‘cnanges.. in weight.”

H. R. 8981, The Federal — Bill introduced but not

yet passed by Congress fixes a maximum weight limit. for

each standard size. '

The annual conference of weighed and measures has

continuously urged and supported a maximum tolerance for

standard weights of bread. Fifteenth Annual. Conference @

_ on Weights and Measures, 1922, p: 88, “Reason for Standard

Weight Loaves of Bread.” John M.. ‘Mote, after calling

attention to the fact that three variables are fvolved in :

- calculating - ‘the worth of a loaf of bread, and that loaves. ¥

if baked in any number of -different sizes, result in con- © ao a

fusion even though labeled, p. 90,

i‘ a

ott Ww ould’ really be ‘necessary, under these cireum-

Stances, if a housewife desired to. compare carefully

two loaves of bread of different weights to compute.

the price per pound or per ounce, for each loaf before

she could proceed with her comparison. It is obvious |

that such a comparison is entirely impracticable * *

* 2 * Bal ” .

"See remarks of C. J. Kremer representing Retail Bakers’

Association of America, 16th Anytial Conference on Weights

and Measures, Dept. gf Compierce Publication, ‘¥923, pp.

104-111. And see pp. 116-118, Indorsement of a Model

Bread Law therein get forth which fires standard weights of

loaves and provides for tolerances to be fied by the ad- |

' ministrative officer. s

And see 17th Annual iii of Weights ont Meas-

ures, 1924,: Dept. of Commerce. Publication, “pp. 40-47,

Xnforcement of the Indiana Bread Law, by I. L.> Miller.

on Weights and Measures, 1925, pp. 163-169, Dept. of. Com-

tions and Tolerances on Tolerances for Bread.

The court has taken judicial notice sa iki like

information ‘upon a question of similar purport. Muller.

.V. Oregon. 208 c= a, 419, 420, 52 head Ed. 551, 554, 555.

This material is offered ‘to show {tin trend of thought of |

those giving the ‘subject consideration. .It shows clearly

that the legislature of Nebraska had reasonable ‘grounds

upon which to base a belief that the maximum weight limit

- was useful and, indeed, necessary, to adequately effect the

purpose of a standard weight law. It shows that the. act -

- of the legislature was not an arbitrary or capricious. exercise

of the police sic

We cident and earnestly urge that it we that a court

with omagrny information as to the facts and theory of®

The law fixes a maximum weight limit. 18th Conference 7

' merce Publication, Report of the Committee on =e Fa

_ standard weight’ laws must reach the conclusion that the

_ excess tolerance of the instant Nebraska: Act bears: a

reasonable relation to the purpose of' the act, coucededly a =~

valid subject of legislation, and must therefore be sustained. 3

The evidence ‘in the record sustains . these conclusions.

Mr. O. P. Skaggs, who does a large retail marketing busi-_

ness as well as a baking business, testified that it was im-

possible for the average consumer to compare weights while’

buying the bread. (-R., p. 189). . He testified that the 12 oz.

loaf baked by. his bakeries was tal same size as the 16 oz.

loaf (R., p-. 189). a aE . Ba

The problem of selecting bread with no standard weight

imposed is influenced by three variables, weight, quality,

_and price. To adequately compare tao loaves of bread with

the weight uncontrolled requires an extensive mathematical

. computation, Armour & Co. v. North Dakota, supra, which

a large numher of consumers, probably the great majority, y

are unable to make, and the remaining few will. not take -

the time and trouble. This is the situation which un: ;

scrupulous bakers may turn to their advantage. (See testi- & é

mony of 0. P. Skaggs, R.. p. 188.) cs . :

- The testimony of James Nelson Tracy, an officer charged

_ With. enforcing the Ohio bread. law, ‘testified to the abuses

and deceptive practices engaged in by bakers (R., p. 254).

A baker labeled a loaf ‘at, 16 02.., and then sold it in a 20

0%. sizéy the purpose being to lead the public to believe that

he was ‘delivering 4 oz. overweight. Appellants ask (as

they do throughout their brief ) how this practice is harmful.

The answer is that the price the baker received was the same

‘as other bakers ‘received for a 24 ounce loaf. Such a

raed would be prevented if all loaves must conform to

standard weight.

22.

The fallacy of the argument “that if a ‘consumer asks for

_ a pound. loaf -of bread ‘and’ reeéives one w eighing 20 ounces

hei is not injured thereby is that it does not reflect the evils

the e at a vei to remedy and is, —- a false

—_ ene

Consumers do not ask, for a pound loaf of bread. _They

only ask for.a loaf of bread. The unsuspecting public does

not enter a store full: of suspicions bout the weight of "s

_* bread. If there are two makes of bread selling at ten cents; ~

one weighing, : 21 ounces and the other weighing 24 ounces,

which look about the same size; x ithe consumer is unable to.

ascertain from appearances witch one will be nearest to

giving him his money’ s worth. ‘

9. yee

If it is true that a 30 ounce loaf, when sold as a 16 ounce

loaf does no injury don this may not be true depending

on the price) then it is equally true that the transaction is.

fraudulent and injury results if the purchaser believes he _

is getting a 24 ounce loaf. ae

As long as mene baker may. aie. any size » heal from 16 -

oz. up that he desires no standard is fixed, and the situation

> \Jeaves the doors ‘open for: fraudulent. practioners to deceive 3

the public purchaser. A maximum weight limit is essential .

to any regulation of standard weights that tends to prevent

—n*.

suc » ‘frauds. __. ac °

| Appeltants’ principally rely ‘upon »the case’ ‘of i

Baking Co. v.. Bryan, 264 U. S. 504, 68 L. Ed. 813. We:

: -submit that the case was decided upon the groand that it

was impossible for. bakers: to comply with the tolerance

deviation permitted by the act considered in that case.

The. «ase is supportable upon that ground. — It was not |

fo. tn.

a .

“ae . ro ee ‘

4 sO 23 oie

a Rate .

thy e

* necessary to determine the. validity of a maximum tolerance |

_ in a standard weight law in that case. op

‘We are aware.that the last. paragraph of. the opinion in

” the Burns’ Baking Co. case contains language to the effect -

that a maximum weight limit. is not..necessary to the en-"

forcement of a standard weight law, and is therefore arbi-

trary and invalid: In view of the arguments, cases and

material heretofore referred to in this brief, and especially

‘ the case of Armour & Co. y. North Dakota: supra, decided

by this court, we do_ not believe that the ‘court had an

adequate presentation in the Burns Baking Co. case, so as”

fully to inform it. as to the facts relative to.the maximum :

tolerance feature and the necessary connection it has’ with

a Standard weight law.

“Wwe. believe that ‘this information and the authorities

presented merit further: consideration. of the language re

ferred to, in the Burns east Company case.

The tenses in that case to which we referred ser rves |

. now as a har to the successful operation and enforcement

of: Jaws to protect the consuming public from weight frauds. |

The remainder of the cases cited | by appellants upon this.

‘point in lower federal and state courts serve only -as iHus-

- trations of this fact. ( Appellants’ Brief, pp. 21-23, citing

Holsum Baking Co.-x. (reene, 45 Fed. (2nd) 238; Quaker

Baki ing Co..v. Herring, 3 Fed. Suppl. 118; Wondet Bak eries

_ Co. v8 White, 3 Fed. Suppl. 311; Ntate v. Curran, 220 Ala.

4-6, 124 So. 909, 912 .) An examination of these cases. will.

" disctose that none of them purport to arrive at the con-

‘clusion that maximum weight limits are invalid because of...

any independent investigation of the court. The courts in»

- these cases do not purport to agree with the ‘conclusion, but.

—? h hat théy are bound by the language used in the

Bute Raking Co. case.

LOOT PALE OR TET se nee Fo Tiree |.

—

, a = ‘ x ie Ta

- These cases prove no more adherence to the lan-.

3 referred to in the Burns ee Co. case. Nothing is

| anki mere sae ie SG a)

=i 9.

/ W * should the edurt’ repeatedly ‘hold that the preven-

tion of weight frauds: in commodities of general use is a.

/ valid subject of legislation. by the states and deny the use

% of an incidental power necessary to vail exercise of the prin-

cipal bow rer?

We respectfuliy suggest that- in’ questions P this mnie 7?

the court should bear in mind the _wends ‘of Mr. Justice . ©

r| “Such limitation of principles previously announced,

and such. express disapproval of dicta, are often neces- -

sary: It is an unavoidable infcident of the search -by .

. courts of last resort for the true rule. The process

of inclusion and exélusion, so often. applied in de

veloping a rule, cannot end. with its first. enunciation.

The rule as announced must be deemed tentative: For .

the many and varying: facts to. which it will be applied

cannot be foreseen. Modific ation ba aa growth. ‘Tt

is the life of the law.” |

W ‘ashington v.-Dawson- €. Co., 264 U. S. 219, 236,

68... Ed. 646, 565. : as

_ We respectfully submit that’ in the light of the material

presented herewith the Burns Baking «Co. cause, supra,

‘in so far as it may be interpreted to prehibit the fixing of.

maximum\ weight limits should be disapproved. And we.

- earnestly urge that there can be no reasonable doubt that

_-the legislature of Nebraska in passing the instant law did

not act in an arbitrary or capricious manner—but—reason-

ably believed that the maximim weight limit was ‘neces- |

sary and bore a reasonable relation to the purpose of the -

standard weight, bread law. y

©)

’ | a?

-Even though the court should hold that the maxi.

mum ‘weight limit feature of the Act is invalid, the

_ remaining provisions of the Act should not be held

_. void for that reason.

‘Because one. provision’ in an act is bad it does not follow

that the whole act of which it forms -a part must fall. The

test is whether the Anvalid gcd is separable. from - re--

mainder. a rae ;

J .

a. cannot be deemed ‘separable: unless it appears

both that, standing alone, legal effect can be given to

it, and. that the legislature intended the provision to

' gtand, in case others ‘in¢ Inded: in the act and held--bad —

Should. fall.” =

Rats v. Kansge, "264 U. S. 286, 290, 68 L.°Ed.

‘The Seiiiateatieks of this question is ‘piimarily for the |

State court. If the highest state court has not passed upon

_ the question this court may do so, Dore hy v. Kansas. supra, —

or it may reniand the case to the. state court” “for its deter-

—taination,Dokohy. Kansas, supra

Vv. Chicago, 226 U, S. 578, 584-5; 5% L. Ed.. 364, 366-7.

Legal effect may be given to it. Schmidinger v. Chicago.

sispra. | i.

Whether the legislature would probably have passed the

remainder of the act without the maximam weight limit

may be determined fromthe face of the act: McShane v.

‘ ji . Se

. ? °

. . ° ° °

. .

o@W ‘ ‘ -

, Ne a EE ce

If the provision fixing a seniicttonan weight limit is elim.

inated from the act, its provisions are in substance like ,

those’ in the. Chicago ordinance sustained ir Schmidinger .

| 26

Douglas: County, 96 Neb. 664, 667, 148 N. W. 569, 570;

- State v. Painter, ui Neb. 42, 46, 219 N . W. 794, 796. :

_ The minimum: weight limit feature of a standard weight

bread law: was separated and held valid after the maximum

weight limit’ was held invalid because of the language in

' . the Burns. Baking Co. ~Ca8e, supra, referred to on page 23

of this brief’ -(we submit, erronecusly ). on the ground that

it-would b be unreasonable to hold that ‘the legislature would ¢

_ not have enacted ‘the former pr ovision in -the absence of*

the. latter. , |

“Wonder Bakeries Co. v. White, (D. C. Ia.) 3 F- 8.

811, 313. $ Ln ae

We saiieentt that if the court holds the maximum weight | -

. limit provision void, it should either hold that the remain-

der of the act is separable ‘and valid or remand the ‘case

~ to the Supreme: Court of Nebraska for its determination

of the issue. este |

is fourteenth amendment.

The antigution of authority to the hineieny of

Agriculture to prescribe administrative details in the

enforcement of the instant act does not violate the

~ ees °

That the autliority given to the Sec atery of Agriculture

in’ the instant_act_was_a_ proper—delefertton to” a proper

~~ officer under. the state constitution is settled by the opinion |

of. the Supreme Court of Nebraska .in this case below,

‘Petersen Baking (o. v. Bryon. oR. Dp. 42) sabia 164.

+ 467-8, 247 N. W. 39, 41. ae x

ne ° a J

The only. snhations before this ‘court is the reasonable.

‘ness of the delegation under the’ due process clause. . Red,

<— Oil Mfg. Co. v. }. North’ Carolina, _ U. 8.380, 56 L. Ed. |

240. - .

The actual rile: adopted. bear no , relation to this ques-

“ tion and are therefore not discussed ‘under this point.

Section 2 of the Act,. Chap. ‘i62, Laws, Neb. 1931, p. 430

.” (KR, p28), fixes ‘Standard weights for loaves of ‘bread.

ch A “primary standard” ‘is thus fixed. Section 3 then pro-

vides that the Secretary of Agriculture shall - prescribe

4 “reasonable tolerances”\in excess of these weights so fixed |

Within which legal. loaves, may be baked and also shall

prescribe the time during which the — must be main-

_ tained. . Ma

This simply Recognizes that the art of baking bread _

" not reached: the stage where bread may be baked at a

definite. unchanging’ Weight and that these weights varr ae

with. ‘varying - atmospheric _ conditions: - ~The legislature, ‘i

_.___Yealizing the need ‘for a tolerance. which could be varied ‘in

_ order to be reasonable and to accord -with the-state of the .

art authorized the authority charged with the enforcement |

of the act to fix the tolerances. He may not change the

standard: weights nor the minimum weight.

As ‘Sede shiewer ‘one: in Chicago & y. Ww ; Ry, Co. Y.

Fed. 366, 875 Sat ae oo

Bey, 85 Red, 866, 875:

\ “The reasonablediess of a. rate changes with the

: changed conditica of circumstances. That Which would ie

be fair and reasonable today, six months or a year .

hence may be either too higlt or too low. .The legis-—

lature convenes only at stated periods; ‘in this state

‘once in two years: Justice’ yill be more: likely done

sit. this power of fixing rates is vested in a body of -

° . .

° . . « ©

. es . ‘ ’ ( °

. : ° : y

. 5 Ad css Legs ery AE RK any bas hme et

. a DEL SY i So y Aerie wig et = we 7 ; ae Naan ae ae MPry 4m y

o- " 4 4

ol eae Ve a

P E a 98:

continual session ; than if left with one megting | only

at stated and Jong intervals. ds $,

° re]

This court in a long line ‘of decisions, has held delega-

not to violate the due process clause.

Buttfeld v. Stranahan, 192 U. 8.. 420, 48 L. Ed.’ 525.,

(An act to prevent the» importation | of impure téa ‘and —

bi authorizing the Secretary of the ‘Tr easury to fix ‘the “stan-

darde of “purit y, quality, ard fitness” which might be

—

no y - —_ o

act to protect. forest, reservations , authorizing the Becre-

tary of Agriculture. to make | rules to effect that purpose

and sane violation of such. rules punishable wet io

“Union ‘priaje Co. Vv. 204 U. 8. 364, 51 L. Ea. 364.

(An act to prevent the. pecan of navigable rivers and

\ “authorizing the Secretary of War to require“alterations in

ridges necessary to render navigation . safe and unob-

al and making’ non- ee? punishable crimic

| nally. )

St. Leiude,; Iron Mountain é ‘insite Ry. Co. Vv. Taylor.

authorizing Interstate Commerce Commission to fix the

. standard height of drawbars used in interstate commerce.

Ed. 229, 239. “An act authorizing the Kentucky Railroad

Commission to fix intra state rates. )

tions of power far greater than found in: the Nebraska act

“. 8, Y. dniwo: 220 U. 8. 506, 55 L., Ed, 563. (An

210 U. 8. 281, 52 L.Ed. 1001. (Safety, appliance: act

| Louieville & N. R. Co. v. Garrett, 231 U. 8. 298, 305, 58 L. |

oe aoe. . ; ; ; : i prt

ee [ ee

Red "— Oil Manuf. ‘Co. v. North Carolina; 209 U. SB.

380, 394: (An act to fix standards of ‘Safety and value ‘of

iNuminating oil authorizing the*Commissioner- of Agricul-

~ ture to prescribe the standards and making violations of

_ the rules of _ them Ce ommissioner "punishable . criminally. ) 3

(See Bee: :-9 Public Laws, North Carolina, (1909, p. 911.)

: ee A > . «

‘ Sa ee .

— We submit that the. validity. of the instant act in | the

premises. follows a fortiori | from: the Red “C” Oil Manuf.

case, supra. -In the Red “C” Oil Manuf. case, the. commis-

sioner feed the standard and his authority was sustained.

‘In the instant case ‘the standards are ~— in. the act.

It: is apparent that the powers granted by the North

* — act were far broader than in the —— act.

les of _the Secretary are Bae | they may he re-

a in the courts. ites St >

“S

7 + The cases cited by dapiiiiiie’ (Appetiantié’ Brief, p. 81),

King Manuf. Co, v. Augusta, 277 U. 8. 100, and Sultan Ry.

_ Co. v. Dept. of Labor, 277 U.S. 135, hold merely that & city

‘éordinance and an order of.a state bureau fall in the classi-

fication “statute of the state” and May: be reviewed. In

so far as they deal’ with delegation of legislativé powers

these cases. assume that it was properly et under

‘the facts in | those cases. °

™ legislature has’ fixed the “primary standards” and if -

the/ru

ae ; : i Point IV.

- The provisions of the statute ‘and\ the Tules ‘and

regulations are plain and definite and do not ‘subject

appellants to unreasonable standards. Objections to.

the rules of the Secretary of Agriculture will not be

- 6 2p)

- considered. in view of the failure of appellants to

‘apply to the administrative ‘board for ‘a, modification .

of the rules. _ : ere rie

‘We exclude. from our submissions under this point the _

argument that compliance- with: the act is impossible. ‘We

-show that itis reasonably possible to comply, with the

standards prescribed under Point V, page 35 of our brief.

| We limit discussion hereunder to the objections (a) that

the act, imposes on appellants the maintenance of standards ~

after loaves of bread have left their possession and beyond

their control and therefore irrespective. of their negligence ~

(urged by appellants: in point 3, pp. 30-38 of their brief) .

and (b) that the terms of the act aie so. indefinite as to—

be void. - | Sire eee

‘

a. Section 2 of the Act prescribed. standard weights for

loaves of bread.. Section 3, provides for a reasonable taxi-

mum limit upon these weights to pe¥fixed by the Secretary’

‘of Agriculture and also authorizes that officer: to” prescribe

‘the time within Which the minimum weight shall be main-

tained (R., pp. 24-25). This is a reasonable authorization

(cases cited Point Iil, pp. 26-29, this brief). It cannot

be assumed that the administrative officer will adopt’ un-

reasonable rules which . will impose unreasonable stand-

_ ards upon appellants. New York v. Van De Carr, 199° U. 8.

559. 560, 50 L. Ed. 305, 310. . loa

‘And the rules adopted are not properly before this court

for examination. Red “C” Oil Manuf. Co. v. North (aro-

lina, supra. The court there held: © |” oh,

“We have not attenipted to enumerate the objections

urged against the rules and regulations adopted = by

the board of agriculture. The court below was clearly <_

right. when. it observed that if, as the complainant :

° : _ culture to modify them.”

eae 31

; hy at ; : 5

alle ed, he standard of sills fixed. by the lad was :

unreasonably.. Kigh, ' or the method of testing vil un-

satisfactorysand not such as was in general, use, or the _

weulations i In Other respects were unjust: or oppressive, ° é

“it should seek relief by applying to the Board of Agri:

‘*

This is.a reasonable rule tending to reduce litigation. i

It is pincinpil that a public officer will te his Sel

: if unreasonable rules are adopted the presumption follows .

from the first. that upon proper showing he will modify )

- them. . He should be given that opportunity before. his acts

may be termed arbitrary., Thergfore the rule isthat’ the,

court ‘will not exainine the rules: if the objections arged :

have not -been first submitted to the administrative. officer |

- who.then refused, to m the rules.: Red “om Oil- Manuf.

Co. ¥. North Carolina, ma... ee a |:

The statute does not ikepene “any. urireasonable time limi-

a tations for they are to be: fixed by. the Secretary of Agri-

culture. The time limits there adopted are not before

the court.

But the vides of * the bias if examined, do not

‘ impose elimitations upon the ‘appellants after thé. subject.

‘of limitation has passed beyond theiy — ia IT pro-—

vides in part:

. ;

: a . . , bd

“The bakér. of ‘such bread, howeyer, shall not be

responsible for the maintenance of said minimum

- weight after deljyering thé same to a retail dealer or

consumer, or to a transportation agency in Nebraska ‘

for delivery to a retail dealer or consumer.” AR. P. * 29. u

te short, the. baker is ‘only responsible for the weight

of the bread while’ in his possession. Since the argument

r . ™ . .

a” ° . . P :

° ~ . . .

. . ° oe

. . . . A ‘ F . >

. so ,

o — ee .

s . : am,

aes >was “ . , ’ e .

for appellants is that the appellants are + acai Mor |

loaves of ‘bread after-they have left their possession (Appel-—

lants’ Brief, p. 35) it is clear that the objection is without .

merit. . oo ;

That the rules _— vl to are within: the authority of

_, the Secretary of Agriculture and are the rules in issue’ is a

- a, matter of interpretation and procedure settled in the state

court. Petersen Beking Co. v. Bryan, 124 Neb. 464, 466, ©

247 N. W. 39, 41. Schmidinger v. Ch icago, supra. i

“The objection that the statute and the rules’ do net fix a

time during which the inaximum limit must be observed

- has po merit. “It is-not argued that . the evidence or any

theory of the art of breadmaking shows that the bread IN. .

CREASES in weight after, baking. Once the loaf is baked

within the maximum weight there is no danger ‘that it will -

later exceed that weight. A regulation —_— such a time —

would ‘be aseless and absurd. ;

b. _ The appellants complain that thestatute — the rules -

and regulations do not fix standards definite énough to in-

form them to what the act applies. Insofar as such objec-

tions are directed to the rules of the Secretary of Agricul-

ture the appellants are precluded from examining them

now. Red “C” Oil Manuf. a. v. North Carolina, hans steel

If the court examines the rules, angie first object

, to sas exemption in the act of “fancy breads.”

‘We are not as courageous as appellants whe een that

the .evidence on ‘this point:as well as on most others is

uncontradicted. That is seldom true-in a case of this

nature. ‘Appellants, who desire to continue baking bread |

without any restrictions would find means of justifying in

_" es

. & . 33

their own ‘minds that they. know not what a “faney bread” |

. is, and have testified a .

. We do ‘submit that t the evidence is sufficient to sustain

-* the finding of the trial court that the term “fancy bread”

has’a well defined meaning (R., p. 39). The trial court

saw and heard the witnesses. - It is not the province of -

this enurt. to determine a conflict in ‘oma de novo.

“@

- Je, Caer, president of the ‘Nebraska an Associiition

(R., p. 305), testified that there is a term in bakers par-'

lance such as fancy bread (R., p. 306) ; that the term refers

to bread in which special ingredieats or special labor~ has:

been used, such as nut bread, cheese bread, or colored

‘bread (R., p. 306).

Carl Ebner, a baker in Lincoln, Nebraska (R., P. 307),

testified . that che’ term “fancy breads’: is. used in bakers

parlance to. mean ‘special bread as distinguished. from. ordi-

nary bread. That the general. wholesaler baked mostly

“s arsine “—- (R., pp. 307-308). : '

made of ordinary grain flour and excludes all ree breads

(Dee ree of District Court, R.. P. 39).

The ordinance of, Chicago sustained in Schmidinger v.,

esate — exempted “stale” aenae.

Appellants complain that the Secretary of Agriculture

must make “reasonable tolerances.” The objection that this é

‘is: indefinite ‘may be made to every act which authorizes

rules to be wade by an administrative officer’ as ‘to the de-

tails of enforcement of an act and is answered by the cases

Submitted under Point - ITI, supra, pages 26-29 of our brief.

; as

, : . : . t

. — ied ° ‘ 70. P ? ’ ig ‘ p oa

he 71

. Appellants do not urge that the tolerance, of 2 ounces to the

pound ‘fixed by rule is a oe.

' Appellants’ “objection that an overw eight loaf is not de *.

fined by the act is the same argument worded differently.

The answer is that the maximum tolerance fixed by the ;

- rules of the Secretary of Agri¢ ulture determine what an

‘overweigMt loaf is. - Appellants’ objection really is that the

authorization is an improper delegation of legislative

- powers which we examine in Point III, supra, pp. 26 to 7”

and show to be without merit.

Appellants. protest that the term “made for sale in the

State of Nebraska” is indefinite ( Appellants’ Brief, pp.

_ 46-47). Obviously the legislature did not intend to regulate

the baking of bread in other states. We confess that we

fail to comprehend how this phrase could be stated more

clearly.

Objection is made as to the terms contained in the rules

of the Secretary of Agriculture. We submit again, that

these rules are not properly before: the court due to the

' failure of appellants to object concerning them to the ad-

ministrative officer. Red “C” Oil ces Co. v.- North Caro-

lina, supra. Diy. ‘

How ever, . the terms have well defined meanings and would

not tend to lead appellants astray. “After cooling” and

“ander normal conditions” must be given the plain, ordi-

nary meaning of the language used, and it is obvious there

is nothing uncertain about them. “Cooling” of bread is also

a trade term and the Petersen Baking Co. maintain a cool-

ing room in their factory (R.. p. 150).

. ?

Furthermore, if the court should hold the rules of the

Secretary of Agriculture properly subject. to examination,

jw spite of the Red, “C” Oil Afanuf. Co. case, supra, and °

should hold them or any part of them so indefinite as to

be void. tt does not follow that. the statute is invalid for. that

' reason, and the statute should be held valid nevertheless.

Dorchy v. Kansas, supra,

a Point V. eee =

‘The statute and the rules of the Sikes of: Agri- )

culture prescribe standards with which the appellate |

may reasonatly comply.

Appellants. object that the act\is arbitrary in that it is

impossible to comply with the tolerance of. three ounces to

the pound. This tolerance is fixed by the’ ‘rules of ‘the Secre-_

tary of Agriculture (R., p. 29), "by rules adopted September

19, 1931. TheyZhave never been operative as to- appellants

for*they have superseded all orders subsequent tothe tem-

porary restraining order. (Original Record {nat aes,

Vol: I, P. 91, and Vol. IL: 107. )

The « abjection is not direr wa, to the statute, but toXbe

Tules of the Her retary of Agriculture.

We submit | that this court will ndt consider objections

to the said rules in view of the failure of the appellants to —

submit them to. the administrative officer whose duty: it is

to prescribe them. Petersen Baking Co. v. Bryan. 124 Neb.

464, 468-9, 247 N. W. 39. 41; Lae “C" Ow Manuf. Co. v.

North Carolina, supra, a

This is a reasonable rute to prevent unnecessary litiga- ”

tion and based upon the theory that 3 public officer is pre-

J 36.

sumed to exercise ‘honest and reasonable dieeetion. New

~ York y. Van De Carr, 199 U. S. 552, 560, 50 L. Ed. 305, 310.-

It follows that if the rules adopted: are anreasonable and

' the attention of the adininistrative officer had been directed.

thereto: by objec tion, it . is presumed that’ he would have

changed them. |

And the nities of the oa is all that may - ac-

complished by review by the courts. If they should be held

unreasonable restrictions it does not follow that the statute

fixing {he “primary” standards is yoid. Dorchy v. Kansas,

' supra, ° a eee

We therefore submit, first, that the rules are not properly

before this court to permit an examination of them. :

Sec ondly, if the court should hold that the rules may be

examined, then we submit that the rules are reasonable

* and that appellants may comply with them in the reason-

able conduct of their business.

The objection is that the appellants | are unable _to_bake

a loaf of bread which will weigh 16 oz. or more within -

-twelve hours after the bread has cooled, and not weigh

_fmore than 19 oz. immediately after baking.- In short, that

=the * 04. ner ‘is too small. :

A _ part of the evidence submitted upon this point

- was simply an introduction into the. evidence of a-trans-:

_cript ef the evidence in the Burns Baking Co. case, 264,

U. S- 504 (R., p. 63), ‘decided in ‘this court April 14, 1924. —

of the evidence (R., pp. 167-272) in Petersen Baking (Co.

v. Weaver, (Appendix —", appellants’ brief) decided De-

cember 30, 1929, and tried some time prior thereto.

cy a .

There is no pee Tn ‘the record nor any offer P" cain’

tending to show that ‘conditions inthe art of baking in ~

1931, were similar to those ‘existing ‘at the time the above

evidence was taken. We submit that it is not cémpetent

or material proof of the ability of appellants in 1931. to -

- reasonable in the Burns Baking ‘Co. Case, supra, was 2

7 with the provisions of - rules.

The deviation ‘from the standard a held to < un-

ounces, and the: minimum — was required to be main-

tained for 24 hours, 264 U. S. 504, 510. The’ rules of the

Secretary. of Agriculture permit a deviation of 3 ounce:

and. require the nmiinimum to be maintained for only. 12

’ hours or until delivery by the baker ife ‘that be earlier (R.,

p. 28)., Obviously the “present provisions are much less i

strict than those considered in the Burns Baking Co. case,

supra.

_We do not say that ‘there is no conflict_in_ the-evitencé a

although_there-is- lessthan might be expected, but wé dé

insist that there is ample evidence. to Support the finding

-of the trial judge that it is hot impossible. for appellants

to, comply with: the law and that they may do so: in the

reasonable conduct. of their business: (Decree of the trial

court, R., p. 38). ; betes ae

: “This court finds that under the evidence in this

case theré can be no question but that.such a toler-

ance, as three ounces, is sufficient and that such a

; tolerance. requirement could readily. be complied with

by bakers affectéd.”- ~~

The various tests made by the plaintiffs ( appellants) as.

well as by defendants disclose that the provision is reason-

. able and compliance therewith is. : possible.

-At page 40 of appellants’ brief, certain of these tests are. —

set out which they assert show that the tolerance is too

small. We confess that it is not clear to us: how appellants

derive the figures set out in their brief from the exhibits

~ referred: to, and we are content with eramining the e-

hibits. The first is plaintiffs’ exhibit “D” (R., p. 113).

This shows that 12 loaves were scaled at 20% oz., and

baked. Of these 12 loaves only 1 weighed over 1%0z. when _

baked, the rest ‘eighing between 18% and 19 oz. The

- figures were not carried out to sliow the weights 12 hours

after cooling (about 1 hr. and 30 minutes, R., pp. 262..

263), but they show the Me ag 12 hours after haking«

The lowest is 1634 0z., whic

weight lin of: 16 oz. “Thus {1 of the 12 loaves maintained.

a weight of between 19 oz: and 6 oz. after baking, which

-. is all the law: requires. The one loaf was kept in a moist

room ‘and .was. under all the most unfavorable ‘conditioné.

The loss of weight after baking on this loaf was only %

oz. LOAF NUMBER 11 HAD THE MAXIMUM. LOSS

WHICH WAS 13% oz. If ‘this exhibit shows anything it

shows it is reasonably, poasihle to comply with the. Jaw.

And, we pees that an average of any ‘five of. these _

_ loaves would show a range of variation far less than anus

in any One loaf. st '

The appellants in arriving at: their conclusion are in-

cluding one weight variation that is not material. _ They”

include the loss of weight during baking! (Appellants’

Brief, pp. 40, Al.) . The law makes no requirement “of.

’ weight before or during baking. It only requires that a.

loaf in the standard weight of one pound shall weigh be —

tween 19 oz. and 16 oz. after baking and for 12 hours after

cooling time. The only material loss of weight therefore

is that occurring after baking, and the inclusion of a‘ bak-

ing variation is improper and misleading.

is-well above the minimum =“

‘

(R., p. 114), shows

weighed 19 oz. or

en from the oven and 16 ‘0%. or more 12 hours

after baking, The, maximum variation after baking ~ is

2% oz. (R., p. 114). This. exhibit’ ig referred to on: page .

40 of appellants’ brief. :

__ Plaintiffs’ exhibit “F(R, p. 115), shows~%2 loaves

_ Scaled at 20 oz. The maximum variation within 12 hours

after ‘taken from the-oven is 3 oz., and therefore within the |

permitted tolerance. |

These are Single loaves of bread whereas the rules of

the Secretary permit averaging.tlhe weights of 5 loaves (R.,

p. 29). It is obvious that the ‘average variation would be

less than the maximum. | ee

- Néxt,. appellants (Appellants’ brief, p. 40) refer to four

exhibits (R., pp. 310 and 311). It will be observed that -

the maximum variation ‘in. ALL FOUR TABLES after

baked and: until 12 hours thereafter, is 23, oz. The aver.

age of any 5 loaves would be less, SINCE THERE ARE

ONLY 2 LOAVES OUT: OF THE 38 SHOWN THATS

REACHED. 234 oz.

a 6

Plaintiffs’ exhibit 1931 B-3 (R., p. 312), it will be noticed:

- ffom the scaling weights and baked weights, is approach.

“ing the standard weight of 1%. pounds.where the permitted

variation is 4144 ounces ( R., p. 29). .The largest ‘variation

shown is 334 ounces. ‘It seems too obvious for further dis-

cussion that this table is not material to show variations

in the one pound standard weight. ‘Appellants on page 31

of their brief refer to this table but FAIL TO STATE:

“THAT FACT. -. |

. . tg

- se)

° 7 ad a

od Q

40 s

hae aa9 : fe ie .

We refer the court to plaintiffs’ (appellants’) Exhibit 2

7 -(R., p. 160): Although the- ‘weights ‘were not scaled: to:

properly produce .a standard Weight. loaf of bread - these

exhibits show the variations obti tined “by stead them-

selves of unwrapped bread.

The first test of twelve loaves scaled at 27 oz. _ making it

relevant to the 24 oz. standard weight shows a maximum >

- yariation of 3 oz. although the rules permit 44% 02. for

' this weight (R., p. 29). The second table-of Vienna Bread, _

j unwrapped, is referrable to the one ‘pound standard and

' shows a maximum variation of 234 :0z. for the twelve hour

-. period where 3 oz. is allowed (R., p. 29).

The: ‘ind, “Tests June 20, 1927,” at a weight in between

_, the one pound and one and one-half pound standard show '—

- a variation of 2 0z. And see remaining tables on this page ~:

and the following one reaching the same conclusions (R., |

y Pp. 160- — e

And see plaintifts exhibit ‘eK Y/, »” (R.; ‘p. 118). Plaintiffs’

—- = (R:, PP. 120 and 121).

The defendants (appellees) introduced” ‘tests. and sabibes.

showing that these variations madé by ‘appellants and all

‘je within the permitted variation are unusual and not ordi-

'/- marily experienced in the, baking business. Defendants”.

exhibit No. 37 (R., pp. 262 and 263). Defendants’ exhibit

1931-1 (R., PP. 272-276, ine., with chart on p. 274A).

A catetal examination of ‘the record and these exhibits _

. will show that the ‘evidence ‘discloses, if anything, that

‘ appellants may reasonably comply with the a and will

have no difficulty ‘in doing so.

Theirs is the burden of oenitl

4 a

We respectfully urge that the evidence does not sustajn °—

a finding that the trial court erred: in ita finding of fact.

But,if the court should find that the weight limitations

. prescribed by the Secretary of Agriculture may be exam, .

ined ‘and that compliance ,with them is. impossible we

_further submit-that although the rules be void, the statute.

is not. affected thereby and remains a valid enactment ‘and

. should be so held. aie

Point VI. F

“The business of the appellants is held on such _

_ reasonable conditions as may. be imposed by the gov-

_ erning power of the state; and the fact that a reason-

able exercise of the police power results in restric-.

tions of appellants’ business and imposes some incon-

veniences upon them does not render the law invalid. -

Appellants in point 6 of their prief, pages 51-54, argue

that in order to comply with the instant standard weight ~

bread law they must (1) replace some of their equipment

with ‘another size, and (2) cease baking a 20 oz. loaf of |

aii, bread. | a tetany ae -

The same argument has Been so oftert urged and so often:

overruled. that it would Seem unnecessary to cite author-

ities to show: its fallacy.

. Every police regulation. that can be conceived has for its’

. purpose the restriction of the conduct’ on the part of some .

one or some class. If it were for’ that reason’ void a valid

police regulation could hot be drawn.

“It was urged in Schmidinger v. Chicago, 226 U, 82378, . -

that there was a large demand for a size of bread not per-

¢ , . = *

: ; ° °

. :

‘ " -

s . pn | : ° . 7 . a ee zt

AE yes vans Me ve eee, RRR NT SIE . P*

peat, ;: ‘ ;

See a8

mitted’ by the ordinance ‘therein considered and that the

bakeries: had established a right to make that size bread in

their business . of which they could ‘not be deprived. 226.

U. 8. 578, 586. The veur? held; 226 Us. 578, 588 : .

“It is further urged that this: ordinance ‘interferes

with the freedop) of contract. guaranteed -by— the .

Fourteenth Amendment; for it is said that there is a

demand for loaves of bread of sizes other than those

fixed in the ordinance, which demand exists among

* many people and also among contractors. whose busi-

ness requires. special sizes to be made for.thetn. This

court has had frequent occasion to ‘declare that there

'..° the police power fixing weights and measures ‘and

standard sizes must necessarily. limit the freedom of .

contract “whieh would otherwise exist. Such limita-.

tions are constantly imposed upon the right to contract |

freely, because of restrictions upon that right deemed

Necessary in the interest of the general. welfare. So.

long as such action has a reasonable relation to the

_ exercise of the power belonging to the local ‘legislative oo

body’ and is. not so arbitrary or capricious as. to be a. :

deprivation of due: process: of law, freedom of contract

is not interfered with in a i Sense.’ ;

. ; It Was urged that tke. cost of Paneer from old con- :

- tainers.to a new -size. container rehdered the North Dakota

* lard weight act invalid. Armour & Co. v. No orth. Dakota, |

240-0. 8. +510, 515. The court said. not. . Me . :

“The testimony of the company was directed at great

length to show the advantages of selling in containers

‘ over selling in bulk, and the expense to the company.

of the former and the additional expense which the

law *would require. And. meeting the objection that

the company fixed the price of the lard by the, gross

weight of the package, in, other words; as though there —

were three pounds instead of two pounds. six ounces,

__ Ee a ae

» it was replied that- by so doing there was no~protit to

the company and only.a réimbursement of the cost.

_ Of the tia container and extra cost of putting up the

lard in that style of package: - is:

company nor. es‘ablish. the invalidity of the law of

the State. The advantages dre in a sense made a snare.

ahd the testimony means no more than that the-packer ‘

has. built up a‘trade on a system: of gross weight which

enaljes it to practice 4 kind of deception on ‘the:

. purchaser that he is getting three pounds-of lard: when |

_he is only getting two pounds-six ouricés, and enables

the packer to pay for ,the container.. The evil of the —

trémsaction is not in the latter but in. the former,

‘| * ‘that is, in the deception. The correction of the statute

' is¢that the lard and the ‘container shall be unequive-

cally distinguished and the purchaser have the direct .

‘assurance -of the quantity of lard he is receiving, ae

knowledge of its” price and the cost of the container

to him, a means ‘of estimating his. purchase free from

_, Gisguises ‘or the necessity ‘of an arithmetical estimate

of what he is getting or paying for upon the market

fluctuttions of lard and tin. This may. involve a change

_ of packing by the company and the Cost of that change, .

' but. this is a sacrifice the law can require to protect

_ from the‘ deception, of the old: method. The law is

allied in’ principle, as the Supreme Court of the State |

_ Observed, to regulations: in the interest of. honest: :

‘weights and measures, -It involves no giving up. of

what the company has a right to retain and the cost

: of the container as well after. change as now can be

‘— cast upon the purchaser, he, however, being able to

- determiné if it is worth the price he has to pay for it.”

It seems unnecessary to say more. Snffice it that the

purpose of the act is to secure fer the bé@hefit of the public”

a system of honest weights and measures. An act for that ~

purpose is concededly valid. The restrictions upon’ appel-

_ lagts’ business are necessary or useful to that en as we

have shown, and the rentriction, therefore, is a, valid exercise

of the police power. |

That to comely with the law will result in some incon-

venience and additional expense in appellants’ business —

does not render the-law invalid has been often held by this

court.

Mugler Vv. Kansas, 423. U. S. 623, 31 L. Ed. 205.

Walls v. Midland Carbon Co., 254 U. 8. 300, 65. L.

_ Ed. 276. :

Erie Ry. Co. ¥. W ‘titans, 2233 U. S. 685, 58 L. Ed.

‘ _ 11565. :

_ Northwestern Laundry V. Des. Moines, 239 U. 8. .

486, 60 L. Ed. 396. *

L’Hote v. New Orleans, 177 U. S. 587, 44 L. Ed.

899.

Cresoley-’ v. Christensen, 137 U.S. 86, ade L. Ed. 620.

Schmidinger V. Chicago, supra... ¢

Armour & Co. V. ‘North ‘Dakota, supra. '

The statement on page 52 of appellants’ brief represents

the language of the Supreme Court of Nebraska in a very >

unfair manner. ‘The court ‘is not evén referring to the

objection - by appellants that the act prohibits a twenty-

ounce loaf of bread, but is presenting thé ‘reason that a

maximum weight limit is necessary in fixing a standard

weight to prevent weight frauds. This is dlear upon read-

ing the remaining part of the opinion to which appellants

refer, but which they refrain from including in their qnota-

tion.

° “Plaintiffs urge that the’ act is unreasonable and

arbitrary because it’ prohibits a maximum weight in-

each size of mee loaf. The very provision against

permitting excess of more than threé- ounces to the

pound prevents short weight frauds. Neither the act.

itself nor the regulation prescribed by the secretary

of ‘agriculture requires wrapping, labelling or branding

of. loaves. Bakers may make as a-pound loaf one’

perfectly legal but‘ weighing 19 ounces and sell it as

ea substitute for the present twenty-ounce loaf which.

Some of the “plaintiffs greatly favor. It may ‘or may

nat deceive the consumer accustomed to a twenty-ounce *

loaf. Whether it deceive him. or not, no action will

lie because the loaf is within the tolerance provided by

the act. Lut if the baker, make a loaf weighing 1914

ounces, a purchasing consumer may be actually and

legally defrauded by believing ‘it is one of the former |

twenty-ounce loaves. Or an undiscriminating pur-

- chaser may even he. de@ived into thinking it a pound

and a half loaf. Thus, in a very practical way, it is

demonstrated that the state attempts'to prevent short.

‘weights by prohibiting excess tolerance or. variation. |

That is the plain intent_.of the law.” —

Petersen Baking Co. v. Bryan, 124 Neb. 464, 469.

247 N. W.'39, 42.

CONCLUSION

Appellants submit:

oad

1. That the act at bar and the rules of the Secretary of

Agriculture presented are a valid exercise of the police

power of the State of Nebraska and. the. judgment below

Should be affirmed.

2, ‘Tf, the court should hold that “the maximuy weight

. limit prescribed in the act is void then the court should

(a) affirm the jndgment below as to all parts /of the act

except the provision containing the maximum limit feature

or (b) remand the case for determination by the Supreme

Court of Nebraska as to the. separability of the two parts

- of the act. ;

3. If the court sheuld hold that the rules of the Secre-

tary of the Department of Agriculture are void, the judg--

ment below should be affirmed in so far as it relates to the

validity of the statute and reversed only as to the punt sus-

anene the rules of the said Secretary.

Respectfully submitted,

Pau F. Goon,

Attorney General of

Nebraska,

DANIEL STUBBS,

Assistant Attorney Geneee!

of Nebraska,

Attorneys for Appellees.

VW,

‘

‘ - °

F |

. * ;

. raid

F ¢

- e -

: g

: a *

‘

. e . 2

. . 7

: '

- !

‘ °

id «

4 .

6 |

4 .

> bd .

» 2

5 i

“- & . °

: e

o .

4 .

‘

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.