# Appellees Brief — PF Petersen Baking Co. v. Bryan > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0431%3A07 ## Record - **Collection:** Supreme Court brief - **Document type:** Appellees Brief - **Published:** January 1, 1934 - **Citation:** 290 U.S. 570 ## 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 or , tolerance for each standard weight prescribed is — oe. Point VI. ‘The business’ of the. appellants is held on such . 10 25 26 29 35 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 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 é . 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 2 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. - ce _. 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 | 5 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- o- 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. \ V. 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. | i 9. 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. Pg 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 _, , 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 20 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 21 _ 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. P 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 . 4 “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? r -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 ae ie _ 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 Pe 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 ee 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 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, . « ‘ 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. z ‘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 30 - 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 . 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 4 _" 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). oe 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). : ' “In short, the act definitely includes the ordinary breads © 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 34 % . 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). is . ? 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. — and tried some time prior to that time, and a transcript © 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 . e 37 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 - 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 a 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 e is no absolute freedom -of contract.” The exercise of © '..° 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: “But. this doesnot justify the practice of the © 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- AS a _ 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. | 9 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 45 « 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 TP 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 46 Court of Nebraska as to the. separability of the two parts - of the act. ; cr 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. © . 4 ¢ VW, ‘ ‘ - ° ° . * F | . * ; s e . raid F ¢ . - e - . : g : a * . . ‘ . e . 2 . . . 7 ' : ' - ! ‘ ° id « 4 . 3 6 | 4 . , . > bd . » 2 x 5 i a ° . e . “- & . ° : e ° o . 4 . ° . . ‘ --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0431%3A07. Public record. Not legal advice.