Jay Burns Baking Company v. McKelvie

• Decision Date: 12 June 1922
• Docket Number: 22452
• Parties: JAY BURNS BAKING COMPANY ET AL., APPELLANTS, v. SAMUEL R. MCKELVIE, GOVERNOR OF THE STATE OF NEBRASKA, ET AL., APPELLEES
• Court: Nebraska Supreme Court

189 N.W. 383

108 Neb. 674

JAY BURNS BAKING COMPANY ET AL., APPELLANTS, v. SAMUEL R. MCKELVIE, GOVERNOR OF THE STATE OF NEBRASKA, ET AL., APPELLEES

No. 22452

Supreme Court of Nebraska

June 12, 1922

APPEAL from the district court for Lancaster county: WILLIAM M MORNING, JUDGE. Affirmed.

AFFIRMED.

Montgomery Hall & Young, for appellants.

Clarence A. Davis, Attorney General, and C. L. Dort, contra.

Heard before MORRISSEY, C. J., LETTON, DEAN, ROSE, ALDRICH, DAY and FLANSBURG, JJ.

OPINION

ROSE, J.

This is a suit for an injunction to prevent the enforcement of the legislative act of 1921, providing: "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." Laws 1921, ch. 2. A rate of two ounces to the pound, and no more, in excess of the maximum standard weights is tolerated by the act. Unreasonableness of the regulation or impossibility of complying with the standards fixed by the legislature is the principal plea for an injunction.

The Jay Burns Baking Company, plaintiff, is a Nebraska corporation with a capital stock of $ 252,000. It manufactures bread for commercial purposes in Omaha and distributes its products in Nebraska and surrounding states. Its annual output of bread is estimated at 10,000,000 pounds, valued at $ 1,000,000. The other plaintiffs are engaged in the same enterprise on an extensive scale. Plaintiffs sue for themselves and for others similarly situated. The act in question is in the following form:

"Section 1. 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. 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.

"Section 3. 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, tat 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.

"Section 4. 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. " Laws 1921, ch. 2.

The legislation is challenged on the ground that it violates the fourteenth amendment to the federal Constitution, providing that "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws;" that it violates section 3, article I of the Nebraska Constitution, providing, "No person shall be deprived of life, liberty, or property, without due process of law;" that it violates section 1 of the Nebraska bill of rights, protecting "life, liberty and the pursuit of happiness."

On the issues raised by the pleadings, plaintiffs took the position that, owing to physical conditions, such as humidity and temperature, and the natural process of evaporation, varying the weight of loaves in the baking pan, in the oven, and in storage, the manufacture and distribution of bread for commercial purposes on a large scale were impracticable without violating the legislative act and subjecting the manufacturers, however conscientious and law-abiding, to fine and imprisonment, and that therefore the regulation was unreasonable, unconstitutional and void. On this phase of the case experiments covering considerable periods of time were made. Testimony was adduced by both sides at great length. After a full hearing the trial court sustained the legislation and dismissed the suit. Plaintiffs have appealed.

The manufacture of bread as an article of commerce is of course a legitimate enterprise and those engaged therein are protected in their constitutional rights. At the same time bread is a necessity of life in universal use without regard to poverty or wealth, class or station. Society as a whole is interested in the quality, quantity, condition, and distribution of the manufactured product. The police power of government extends to these subjects for the protection of public health and welfare. The loaf is the usual form in which the food reaches the consumer. The individual purchaser of a day's supply of bread makes too small an investment to justify litigation for the...