Petersen Baking Co v. Bryan

• Decision Date: 08 January 1934
• Docket Number: No. 203,203
• Citation: 78 L.Ed. 505,54 S.Ct. 277,290 U.S. 570,90 A.L.R. 1285
• Parties: P. F. PETERSEN BAKING CO. et al. v. BRYAN, Governor, et al
• Court: U.S. Supreme Court

290 U.S. 570

54 S.Ct. 277

78 L.Ed. 505

P. F. PETERSEN BAKING CO. et al.

v BRYAN, Governor, et al.

No. 203.

Argued Dec. 8, 1933.

Decided Jan. 8, 1934.

Appeal from the Supreme Court of the State of Nebraska.

Messrs. John C. Grover, of Kansas City, Mo., and Harold D. Le Mar, of Omaha, Neb., for appellants.

Mr. Paul F. Good, of Lincoln, Neb., for appellees.

Mr. Justice BUTLER delivered the opinion of the Court.

Appellants are makers of bread for sale in Nebraska. The appellees, the Governor and deputy secretary of agriculture, are authorized to enforce an act to establish a standard loaf. Laws 1931, c. 162, p. 430. Appellants sued in the district court of Lancaster county to have the measure decreed invalid and its enforcement enjoined upon the ground of repugnancy to the due process and equal protection clauses of the Fourteenth Amendment. The court upheld the law and dismissed the petition. The Supreme Court affirmed. 124 Neb. 464, 247 N.W. 39.

The challenged enactment declares that every loaf made for sale in Nebraska shall be one-half pound, one pound, one and one-half pounds or exact multiples of one pound and provides that the act shall not apply to fancy breads; directs the Secretary of Agriculture to prescribe reasonable tolerances or variations in excess of, but not under, the specified weights and the time for which said weights shall be maintained, and imposes fines for violations.

Rules and regulations promulgated by the deputy secretary of agriculture require the rate of tolerance not to exceed three ounces to the pound, the bread to be so made that under normal conditions it will maintain the minimum weight for not less than twelve hours after cooling, the weights to be determined by taking the average of not less than five loaves, if available. They do not purport to make bakers responsible for maintenance of minimum weights after delivery to a retail dealer or consumer or to a transportation agency for delivery.¹

So far as need be specifically referred to, appellants' contentions are that: (1) A maximum tolerance is arbitrary and discriminatory. (2) The statute vests arbitrary power in the secretary of agriculture. (3) It is impossible to comply with the prescribed tolerances, and the provisions as to time, place, possession, and particular loaves subject bakers to fines irrespective of negligence.

The fixing of a maximum weight for each size or class of loaves is not unreasonable. In Burns Baking Co. v. Bryan, 264 U.S. 504, 44 S.Ct. 412, 68 L.Ed. 813, 32 A.L.R. 661, we were called on to consider the constitutionality of a similar measure. Nebraska Laws 1921, c. 2, p. 56. We there adverted to the undoubted power of the state to protect purchasers of bread from imposition by the sale of short-weight loaves (Schmidinger v. Chicago, 226 U.S. 578, 588, 33 S.Ct. 182, 57 L.Ed. 364) and showed that the purpose of prescribing minimum weights is to prevent sellers from palming off loaves of smaller size as those of a larger size. The tolerances prescribed by that statute were at the rate of two ounces to the pound of the minimum weight required to be maintained for 24 hours after baking. Here the rate of tolerance is three ounces to the pound, and minima are required to be maintained only 12 hours after cooling. In that case the evidence demonstrated that, owing to evaporation from bread under conditions of temperature and humidity that often prevail in Nebraska, it was impossible to make good bread in the regular way without exceeding the tolerances then prescribed. And it was held that a relatively much wider spread between the required minimum and the permitted maximum weight applicable to each size or class of loaves would be equally effective to prevent deception and that therefore the maxima complained of were unnecessary and arbitrary.

The diminution in weight of dough while being baked or of bread after baking cannot be definitely determined in advance. It may be usefully approximated. It only one size or class of loaves were being made, the fixing of minimum weight might be effective to prevent short-weight sales. But that is not the situation in Nebraska. The classes of loaves being made for sale and distributed there include those being sold as one-half pound, a pound, a pound and a quarter, a pound and a half. The mere prescribing of a minimum weight for each class reasonably may be deemed not effective for there might be made such intermediate sizes as would permit deception and fraud. The danger is illustrated by the twenty ounce loaf being made by appellants. The statute prohibits it, undoubtedly for the reason that its weight is only four ounces more than the pound loaf and four ounces less than the pound and a half loaf. Unquestionably there are adequate grounds for prohibiting a loaf of that size. The fixing of both maximum and minimum weights for each class fairly may be deemed appropriate and necessary. If not too low, there is no support for the claim that the maximum is arbitrary or...