An act of the legislature of Nebraska, approved March 31, 1921 (Laws 1921, c. 2, p. 56)
Four of the plaintiffs in error are engaged in Nebraska in the business of baking and selling bread for consumption there and in other States. Their total annual output is alleged to be 23,500,000 pounds. The other plaintiff in error is a retail grocer at Omaha, and sells bread to consumers principally in single loaf lots. They brought this suit against the Governor and the Secretary of the Department of Agriculture of the State to restrain the enforcement of the act on the ground, among others, that it is repugnant to the due process clause of the Fourteenth Amendment. The State Supreme Court sustained the act. The case is here on writ of error.
Plaintiffs in error do not question the power of the State to enact and enforce laws calculated to prevent the sale of loaves of bread of less than the purported weight; but they contend that the provision fixing the maximum weights in this statute is unnecessary, unreasonable and arbitrary.
Undoubtedly, the police power of the State may be exerted to protect purchasers from imposition by sale of short weight loaves. Schmidinger v. Chicago, 226 U.S. 578, 588. Many laws have been passed for that purpose. But a State may not, under the guise of protecting the public, arbitrarily interfere with private business or prohibit lawful occupations or impose unreasonable and unnecessary restrictions upon them. Lawton v. Steele, 152 U.S. 133, 137; Meyer v. Nebraska, 262 U.S. 390, 399. Constitutional protection having been invoked, it is the duty of the court to determine whether the challenged provision has reasonable relation to the protection of purchasers of bread against fraud by short weights and really tends to accomplish the purpose for which it was enacted. Meyer v. Nebraska, supra; Welch v. Swasey, 214 U.S. 91, 105; Dobbins v. Los Angeles, 195 U.S. 223, 236; Connolly v. Union Sewer Pipe Co., 184 U.S. 540, 556; Lawton v. Steele, supra.
The loaf is the usual form in which bread is sold. The act does not make it unlawful to sell individual loaves weighing more or less than the standard weights respectively. Loaves of any weight may be sold without violation of the act, if the average weight of not less than 25 does not exceed the permitted maximum or fall short of the specified nominal weights during 24 hours after baking. Undoubtedly, very few private consumers purchase at one time as many as 25 loaves of the same standard size or unit. And it is admitted that the sale of a lesser number not within the permitted tolerance does not constitute an offense. Plaintiffs in error do not claim that it is impossible to make loaves which for at least 24 hours after baking will weigh not less than the specified minimum weights, but they insist that the difference permitted
The parties introduced much evidence on the question whether it is possible for bakers to comply with the law. A number of things contribute to produce unavoidable variations in the weights of loaves at the time of and after baking. The water content of wheat, of flour, of dough
No question is presented as to the power of the State to make regulations safeguarding or affecting the qualities of bread. Concretely, the sole purpose of fixing the maximum weights, as held by the Supreme Court, is to prevent the sale of a loaf weighing anything over nine ounces for a one pound loaf, and the sale of a loaf weighing anything over eighteen ounces for a pound and a half loaf, and so on. The permitted tolerance, as to the half pound loaf, gives the baker the benefit of only one ounce
MR. JUSTICE BRANDEIS, (with whom MR. JUSTICE HOLMES concurs) dissenting.
The purpose of the Nebraska standard-weight bread law is to protect buyers from short weights and honest bakers from unfair competition. It provides for a few standard-size loaves, which are designated by weight, and prohibits, as to each size, the baking or selling of a loaf which weighs either less or more than the prescribed weight. Schmidinger v. Chicago, 226 U.S. 578, settled that the business of making and selling bread is a permissible subject for regulation; that the prevention of short weights is a proper end of regulation; that the fixing of standard sizes and weights of loaves is an appropriate means to that end; and that prevalent marketing frauds make the enactment of some such protective legislation
The Nebraska regulation is in four respects less stringent than the ordinance upheld in the Schmidinger Case: (1) It provides for a tolerance. That is, it permits a deviation from the standard weight of not more than two ounces in a pound, provided that the prescribed standard weight shall be determined by averaging the weights of not less than twenty-five loaves of any one unit. (2) The prescribed weight applies for only twenty-four hours after the baking. (3) The weight is to be ascertained by weighing on the premises where the bread is baked. (4) No label stating the weight is required to be affixed to the loaf. That is, as a representation of the weight, the familiar size of the loaf is substituted for the label. On the other hand, the Nebraska requirement is more stringent than the Chicago ordinance, in that it prohibits making and selling loaves which exceed the prescribed weight by more than the tolerance. This prohibition of excess weights is held to deny due process of law to bakers and sellers of bread. In plain English, the prohibition is declared to be a measure so arbitrary or whimsical that no body of legislators acting reasonably could have imposed it. In reaching this conclusion, the Court finds specifically that this prohibition "is not necessary for the protection of purchasers against imposition and fraud by short weight"; that it "is not calculated to effectuate that purpose"; and that the practical difficulties of compliance with the limitation are so great that the provision "subjects bakers and sellers of bread to restrictions which are essentially unreasonable and arbitrary."
To bake a loaf of any size other than the standard is made a misdemeanor. Why baking a loaf which weighs
With the wisdom of the legislation we have, of course, no concern. But, under the due process clause as construed, we must determine whether the prohibition of excess weights can reasonably be deemed necessary; whether the prohibition can reasonably be deemed an appropriate means of preventing short weights and incidental unfair practices; and whether compliance with the limitation prescribed can reasonably be deemed practicable. The determination of these questions involves an enquiry into
First. Why did legislators, bent only on preventing short weights, prohibit, also, excessive weights? It was not from caprice or love of symmetry. It was because experience had taught consumers, honest dealers and public officials charged with the duty of enforcing laws concerning weights and measures that, if short weights were to be prevented, the prohibition of excessive weights was an administrative necessity. Similar experience had led to the enactment of a like prohibition of excess quantities in laws designed to prevent defrauding, by short measure, purchasers of many other articles.
In January, 1858, the late corporation of Washington adopted an ordinance fixing a standard-weight loaf, and establishing an excess tolerance.
Second. Is the prohibition of excess weights calculated to effectuate the purpose of the act? In other words, is it a provision which can reasonably be expected to aid in the enforcement of the prohibition of short weights? That it has proved elsewhere an important aid is shown by abundant evidence of the highest quality. It is shown by the fact that the demand for the legislation arose after observation of its efficacy during the period of Food Administration control.
Third. Does the prohibition of excess weight impose unreasonable burdens upon the business of making and selling bread? I other words, would compliance involve bakers in heavy costs; or necessitate the employment of persons of greater skill than are ordinarily available? Or, would the probability of unintentional transgression be so great as unreasonably to expose those engaged in the business to the danger of criminal prosecution? Facts established by widespread and varied experience of the bakers under laws containing a similar provision, and the extensive investigation and experiments of competent scientists, seem to compel a negative answer to each of
Much evidence referred to by me is not in the record. Nor could it have been included. It is the history of the experience gained under similar legislation, and the result of scientific experiments made, since the entry of the judgment below. Of such events in our history, whether occurring before or after the enactment of the statute or of the entry of the judgment, the Court should acquire knowledge, and must, in my opinion, take judicial notice, whenever required to perform the delicate judicial task here involved. Compare Muller v. Oregon, 208 U.S. 412, 419, 420; Dorchy v. Kansas, ante, 286. The evidence contained in the record in this case is, however, ample to sustain the validity of the statute. There is in the record some evidence in conflict with it. The legislature and the lower courts have, doubtless, considered that. But
To decide, as a fact, that the prohibition of excess weights "is not necessary for the protection of the purchasers against imposition and fraud by short weights"; that it "is not calculated to effectuate that purpose"; and that it "subjects bakers and sellers of bread" to heavy burdens, is, in my opinion, an exercise of the powers of a super-legislature — not the performance of the constitutional function of judicial review.
Section 1. Department of agriculture to enforce. — It shall be the duty of the Department of Agriculture to enforce all provisions of this Act. It shall make or cause to be made all necessary examinations and shall have authority to promulgate such rules and regulations as are necessary to promptly and effectively enforce the provisions of this Act.
Section 2. Bread, standards of weight. — Every loaf of bread made or procured for the purpose of sale, sold, exposed or offered for sale in the State of Nebraska shall be the following weights avoirdupois, one-half pound, one pound, one and one-half pounds, and also in exact multiples of one pound and of no other weights. Every loaf of bread shall be made of pure flour and wholesome ingredients and shall be free from any injurious or deleterious substance. Whenever twin or multiple loaves are baked, the weights herein specified shall apply to each unit of the twin or multiple loaf.
Sec. 3. Tolerance, how determined. — A tolerance at the rate of two ounces per pound in excess of the standard weights herein fixed shall be allowed and no more, provided that the standard weights herein prescribed shall be determined by averaging the weight of not less than twenty-five loaves of any one unit and such average shall not be less than the minimum nor more than the maximum prescribed by this Act. All weights shall be determined on the premises where bread is manufactured or baked and shall apply for a period of at least twenty-four hours after baking. Provided, that bread shipped into this state shall be weighed where sold or exposed for sale.
Sec. 4. Penalties for violation. — Any person, firm or corporation violating any of the provisions of this Act, shall be punished by a fine of not less than ten dollars nor more than one hundred dollars or by imprisonment in the county jail for not more than thirty days. Provided, however, that upon the second and all subsequent convictions for the violation of any of the provisions of this Act such offender shall be punished by a fine of not less than fifty dollars nor more than one hundred dollars, or by imprisonment in the county jail for not more than ninety days.
The "Preliminary Report on the Bread Problem, September 29, 1917," of Duncan McDuffie includes the following recommendation (p. 47): "The Food Administration is charged, not only with seeing that the public secures its bread at the lowest possible price, but that in making its purchases of this commodity it receives a square deal. In my opinion, both these objects can best be obtained by permitting bread to be sold only in units of fixed weight. As these units I recommend loaves weighing, twelve hours after being baked, not less than 16 nor more than 17 ounces, and not less than 24 or more than 25 1/2 ounces and multiples of both these weights."
Ordinances in force, at that time, in Chicago, Dallas, Detroit, Jackson, Minneapolis, Seattle, Tacoma and Washington, and the statutes of Kansas, Idaho, Nevada and North Dakota provided for a few standard size loaves; and some of these provided, further, that the loaves must be labeled with the weight, if not in these units. (See Appendix.) Referring to such regulations, the report says (p. 49): "Many of these regulations permit the manufacture of bread of other sizes provided that bread is labeled with its exact weight. Tolerances are also permitted in some instances on account of shrinkage of weight due to evaporation of the moisture contained in the bread. Many of these regulations provide merely that bread shall not be produced in units weighing less than those fixed. The result of this regulation has been that bakers labeled the bread with the unit weight next below its actual weight, thus making standardization ineffective.
"In many instances these regulations have not produced satisfactory results. This may be attributed to lack of universality, evasion on the part of the baker, or failure of the law to provide an upper as well as a lower limit of weight. There is no reason to think that a regulation, providing that bread shall be sold in units of fixed weight with a limited upward variation to provide for inequalities of evaporation and scaling, if applied universally, will not prove an effective protection of the public and assist in reducing the cost of bread through fixing competition on price alone."
See "Report of the Federal Trade Commission on Bakery Business in United States," Nov. 3, 1917, made at the request of Mr. Hoover, and published by the United States Food Administration with "Report of Bakery Section of Food Administration," November, 1917. In the latter, Duncan McDuffie (pp. 20-21) recommended the following regulation as to weights: — "All bread should be baked in loaves weighing, unwrapped, 12 hours after baking, not less than 16 nor more than 17 and not less than 24 nor more than 25 1/2 ounces and multiples thereof. Any greater variation in weights than those indicated may defeat the whole object of standardization."
"Eight months ago the standard-weight bread law became effective in Ohio. We cannot say that this law is perfect in every detail — very few laws are — but we can today realize the great benefits of standardization. . . . On May 1 a questionnaire was mailed to city and county sealers of Ohio, making inquiry as to the attitude of the public and the baking industry relative to the standard-weight provision, and every reply brought the answer of complete satisfaction to both bakers and the general public. We cannot find that the standard of quality has been in any way lowered, due to standardization of weight. With only the two factors of quality and price to be considered, the purchasing public is well able to determine for itself the fairness of the prices charged. With hearty co-operation of 98% of the baking industry, and having the support of the general public, we can safely say this is one of the best statutes enacted in Ohio in recent years." See also 126 Northwestern Miller, pp. 908, 1390.