Jay Burns Baking Co v. Bryan

• Decision Date: 14 April 1924
• Docket Number: No. 94,94
• Citation: 44 S.Ct. 412,68 L.Ed. 813,264 U.S. 504
• Parties: JAY BURNS BAKING CO. et al. v. BRYAN, Governor of Nebraska, et al
• Court: U.S. Supreme Court

264 U.S. 504

44 S.Ct. 412

68 L.Ed. 813

JAY BURNS BAKING CO. et al.

v BRYAN, Governor of Nebraska, et al.

No. 94.

Argued October 19, 1923.

Decided April 14, 1924.

Mr. Matthew A. Hall, of Omaha, Neb., for plaintiffs in error.

[Argument of Counsel from pages 505-507 intentionally omitted] Mr. Lloyd Dort, of Lincoln, Neb., for defendants in error.

[Argument of Counsel from pages 508-510 intentionally omitted] Mr. Justice BUTLER delivered the opinion of the Court.

An act of the Legislature of Nebraska, approved March 31, 1921 (Laws 1921, c. 2, p. 56)¹ provides that every loaf of bread made for the purpose of sale, or offered for sale, or sold, shall be one-half pound, one pound, a pound and a half, or exact multiples of one pound, and prohibits loaves of other weights. It allows a tolerance in excess of the specified standard weights at the rate of two ounces per pound and no more, and requires that the specified weight shall be the average weight of not less than 25 loaves, and that such average shall not be more than the maximum nor less than the minimum prescribed. Violations of the act are punishable by a fine or imprisonment.

Four of the plaintiffs in error are engaged in Nebraska in the business of baking and selling bread for 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.

The brief of the Attorney General states that the law is concerned with weights only. The state Supreme Court said (Jay Burns Baking Co. v. McKelvie, 108 Neb. 674, 678 189 N. W. 383, 385 ):

'It is to prevent a loaf of one standard from being increased in size until it can be readily sold for a loaf of a larger standard that a maximum weight is fixed. The test is reasonableness. * * * [Page 679, 189 N. W. 385.] The statutory margin or tolerance being 2 ounces to the pound, can bakers, for example, make a loaf 18 ounces in weight that will weigh not less than 16 ounces 24 hours after it is baked? The tests and proofs on behalf of the state tend to show that the regulation is reasonable and can be observed at all times. [In most of these tests, wrapped loaves were used.] It is fairly inferable from the evidence adduced by plaintiffs that compliance with the regulation is practicable most of the time, but that, tested by their experiments as made, there are periods when the operation of natural laws will prevent compliance with legislative requirements. There are a number of reasons, however, why the tests made to prove unreasonableness should not be accepted as conclusive. If correctly understood these tests were made with bread manufactured in the regular course of business, without any attempt to change ingredients or processes or to retard evaporation of moisture in loaves by the use of waxpaper or other means. * * * [Page 680, 189 N. W. 385.] The act of the Legislature does not fix prices but leaves bakers free to make reasonable charges for bread wrapped in inexpensive wax paper for its preservation in transportation and in the markets. * * * Precautions to retard evaporation of moisture in bread for the purpose of keeping it in a good state of preservation for 24 hours may be required as an incidental result of a police regulation establishing standards of maximum weights for loaves of bread. Palatableness, a quality demanded by the public, is affected by excessive evaporation, if food value is not. * * * The evidence does not prove that, if reasonable means or precautions are taken by plaintiffs and other bakers to retard evaporation, they cannot comply with the act of the Legislature, or that the regulation is unreasonable.'

Undoubtedly, the police power of the state may be exerted to protect purchasers from imposition by sale of short weight loaves. Schmidinger v. Chicago, 226 U. S. 578, 588, 33 Sup. Ct. 182, 57 L. Ed. 364, Ann. Cas. 1914B, 284. 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, 14 Sup. Ct. 499, 38 L. Ed. 385; Meyer v. Nebraska, 262 U. S. 390, 399, 43 Sup. Ct. 625, 67 L. Ed. 1042. 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, 29 Sup. Ct. 567, 53 L. Ed. 923; Dobbins v. Los Angeles, 195 U. S. 223, 236, 25 Sup. Ct. 18, 49 L. Ed. 169; Connolly v Union Sewer Pipe Co., 184 U. S. 540, 556, 22 Sup. Ct. 431, 46 L. Ed. 679; 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 by the act between the weight of loaves when taken from the oven and their weight 24 hours later is too small, and that it is impossible for bakers to carry on their business without sometimes exceeding the maximum or falling short of the minimum average weights. Any loaves of the same unit at any time on hand during 24 hours after baking may be selected to make up the 25 or more to be weighed in order to test compliance with the act. Therefore, if only a small percentage of the daily output of the loaves in large bakeries shall exceed the maximum when taken from the oven or fall below the minimum weight within 24 hours, it will always be possible to make up lots of 25 or more loaves whose average weight will be above or below the prescribed limits.

The parties introduced much evidence on the question whether it is possible for bakers to comply with the law. A number of things contribute to produce unavoidable variations in the weights of loaves at the time of and after baking. The water content of wheat, of flour, of dough,² and of bread immediately after baking varies substantially and is beyond the control of bakers. Gluten is an important element in flour, and flour rich in gluten requires the addition of more water in bread-making and makes better bread than does flour of low or inferior gluten content. Exact weights and measurements used in dough-making cannot be attained. Losses in weight while dough is being mixed, during fermentation, and while the bread is in the oven vary, and cannot be avoided or completely controlled. No hard and fast rule or formula is followed in bread-making. There are many variable elements. Bread made from good flour loses more weight by evaporation of moisture after baking than does bread made from inferior flours. Defendants' tests were made principally with loaves which were wrapped so as to retard evaporation; and it was shown that by such wrapping the prohibited variations in weight may be avoided. On the other hand, the evidence clearly establishes that there are periods when evaporation under ordinary conditions of temperature and humidity prevailing in Nebraska exceed the prescribed tolerance and make it impossible to comply with the law without wrapping the loaves or employing other artificial means to prevent or retard evaporation. And the evidence indicates that these periods are of such frequency and duration that the enforcement of the penalties prescribed for violations would be an intolerable burden upon bakers of bread for sale. The tests which were described in the evidence and referred to in the opinion are not discredited because 'made with bread manufactured in the regular course of business.' The reasonableness of the regulation complained of fairly may be measured by the variations in weight of bread so made. The act does not require bakers to select ingredients or to apply processes in the making of bread that will result in a product that will not vary in weight during 24 hours after banking as much as does bread properly made by the use of good wheat flour. As indicated by the opinion of the state Supreme Court, ingredients selected to lessen evaporation after baking would make an inferior and unsalable bread. It would be unreasonable to compel the making of such a product or to prevent making of good bread in order to comply with the provisions of the act fixing maximum weights. The act is not a sanitary measure. It does not relate to the preservation of bread in transportation or in the market; and it applies equally whether the bread is sold at the bakeries or is...