State v. Hudson House, Inc.

• Decision Date: 16 May 1962
• Citation: 371 P.2d 675,231 Or. 164
• Parties: STATE of Oregon, Appellant, v. HUDSON HOUSE, INC., dba Luxury Bread Bakery, Robert A. Hudson, President, and Frank J. Bastasch, Vice President, Respondents.
• Court: Oregon Supreme Court

Page 675

371 P.2d 675

231 Or. 164

STATE of Oregon, Appellant, v. HUDSON HOUSE, INC., dba Luxury Bread Bakery, Robert A Hudson, President, and Frank J. Bastasch, Vice President, Respondents.

Supreme Court of Oregon, In Banc.

Argued and Submitted Dec. 4, 1961.

Decided May 16, 1962.

Charles S. Evans, Deputy Dist. Atty., Portland, argued the cause for appellant. On the briefs were Charles E. Raymond, Dist. Atty., and Desmond D. Connall, Deputy Dist. Atty., Portland.

Ronald L. Orloff, Portland, argued the cause for respondents. With him on the brief were Manley B. Strayer and Hart, Rockwood, Davies, Biggs & Strayer, Portland.

Before McALLISTER, C. J., and ROSSMAN, WARNER, PERRY, SLOAN, O'CONNELL and GOODWIN, JJ.

WARNER, Justice.

On January 11, 1961, the Multnomah County Grand Jury returned the following indictment against defendants-respondents (omitting formal parts):

'HUDSON HOUSE, INC., DBA Luxury Bread Bakery, ROBERT A. HUDSON, President, and FRANK J. BASTASCH, are accused by the Grand Jury of the County of Multnomah and State of Oregon, by this indictment of the crime of BAKING COMMERCIAL BREAD IN PANS WHICH EXCEED THE LAWFUL SIZE committed as follows:

'The said HUDSON HOUSE, INC., DBA Luxury Bread Bakery, ROBERT A. HUDSON, President, and FRANK J. BASTASCH, on or about the 21st day of December, A.D. 1960, in the County of Multnomah and State of Oregon, then and there being, did then and there, in said county, wilfully and unlawfully bake white commercial bread in twin standard loaves in pans which did then and there substantially exceed the dimensions of 9.25 inches by 9.5 inches by 3.5 inches, which said dimensions are specified as the maximum pan size for pans used in baking the aforesaid twin standard loaves, by Department of Agriculture Administrative Order Number AD-646, which said order was duly promulgated and adopted on November 14, 1960 under the authority vested in said Department of Agriculture by ORS 625.209 and ORS 561.190, a copy of which said order was thereafter duly filed with the Secretary of State, the aforesaid bread not then and there being round loaves, French, Vienna, or Rye loaves, contrary to the Statutes in such cases made and provided, and against the peace and dignity of the State of Oregon.'

The court sustained defendants' demurrer to the indictment on the ground that the facts stated did not constitute a crime (ORS 135.630). From the judgment dismissing the action, the state of Oregon appeals.

ORS 625.209 (Oregon Laws 1959, ch. 370, § 4), one of the statutes under which the indictment was returned, reads as follows:

'Pursuant to the provisions of ORS chapter 183, the department may promulgate, amend or repeal regulations setting forth the dimensions and size of pans which must be used in Oregon for the baking of bread. The department may take into consideration but is not limited to:

'(1) The laws or regulations of the United States or other states relating to dimensions and sizes of bread pans.

'(2) The customs, practices and problems of the bread baking industry in this state and other states.

'(3) Dimensions and sizes of bread pans reasonably necessary to insure continued fair trade practices in the baking of bread.

'(4) Measures reasonably necessary in order that the consumer will not be deceived or misled by deceptive shapes, dimensions, sizes, contents or the value of loaves of bread.'

The other statute upon which the indictment depends as authority for the promulgation of the rules and regulations giving rise to the instant matter is ORS 561.190, which provides:

'The department is authorized and directed to make any and all rules and regulations necessary for the administration or enforcement of any law with the administration or enforcement of which the department is charged, and not inconsistent with the authority with which the department is vested or with any such law. Such rules and regulations shall be compiled and printed in pamphlet form for distribution. The violation of any rule or regulation made by the department pursuant to this section shall be a violation of the law to which such rule or regulation applies and shall be punishable in the manner provided for violations of such law.'

The regulation referred to in the indictment as Department of Agriculture Administrative Order Number AD-646 furnishes the nub of the alleged crime and will be found in the margin. ¹

The issue raised by the demurrer is the constitutionality of the authority of the State Department of Agriculture to restrict the baking of bread to certain maximum sizes. (See §§ 3 and 4 of Order Number AD-646, supra.)

Defendants contend that under the facts stated in the indictment ORS 625.209, supra, is in violation of the Fourteenth Amendment of the federal Constitution and Art. I, § 20, of the Oregon Constitution. They rest their argument on the claim that: (1) ORS 625.209 arbitrarily prohibits the manufacture of a wholesome article; (2) is an unreasonable and unconstitutional denial of defendants' right to engage in a lawful business; and (3) represents an unconstitutional delegation by the legislature of its law-making power.

The state contends, and we think correctly, that neither the statute in question nor the regulatory order issued pursuant thereto violate any provision of the state or federal constitutions.

Every intendment is to be made in favor of the validity of a statute and, if there is doubt respecting its constitutionality, it must nonetheless be upheld unless it is clearly repugnant to some provision of the constitution. Greenberg v. Lee, 196 Or. 157, 184, 284 P.2d 324, 35 A.L.R.2d 567 (1952). If an act of the legislature would be valid only in the event that certain circumstances would justify its adoption as a reasonable exercise of the police power, the existence of all such circumstances will be presumed unless facts judicially known or proved preclude that possibility. 11 Am.Jur. 794, Constitutional Law § 131; Swift & Co. and Armour & Co. v. Peterson, 192 Or. 97, 128, 233 P.2d 216 (1951); City of Portland v. Stevens, 180 Or. 514, 527, 178 P.2d 175 (1947); Borden's Farm Products Co., Inc. v. Baldwin, 293 U.S. 194, 209, 55 S.Ct. 187, 79 L.Ed. 281; Amer. F. of L. v. Bain, 165 Or. 183, 106 P.2d 544, 130 A.L.R. 1278, 1286 (1940).

Even when a court finds that the subject to which the statute relates is within the scope of the legislative power, the courts, in applying the judicial test of reasonableness to a statute enacted under the police power, will accord to the legislature a large discretion in determining not only what the public interests require, but also what measures are necessary for the protection of such interests. Christian v. LaForge, 194 Or. 450, 461, 242 P.2d 797 (1952); Savage v. Martin, 161 Or. 660, 91 P.2d 273; Union Fishermen's Co. v. Shoemaker, 98 Or. 659, 675, 193 P. 476, 194 P. 854; 16 C.J.S. Constitutional Law § 198, n. 87, page 962; 11 Am.Jur. 1081, Constitutional Law § 305.

Much of defendants' argument is predicated upon the false assumption that the statutes and regulations which we presently examine rest upon the element of police power designed to protect the public health.

Public health is, of course, one of the important factors giving rise to the exercise of the police power and very evidently one of the most impelling reasons of the legislation, generally, relating to bakeries. But the business of baking also involves the business of selling, and the business of selling offers opportunities, unless restrained, to employ to the advantage of the baker or retailer, and the disadvantage of the consumer, deceptive devices contrary to what may be 'reasonably necessary in order that the consumer will not be deceived or misled by deceptive shapes, dimensions, sizes, contents or the value of loaves of bread.' (ORS 625.209(4), supra)

The defendants assert at page 11 of their brief that 'ORS 625.209 is an absolute prohibition of a wholesome article of food.' It is a contention without merit. The wholesomeness of defendants' product is not an issue here. We find nothing in the record challenging the health content of defendants' product nor any warrant to assume that defendants are in any way prohibited from offering their product to the public, if and when they comply with the pan-size regulation of the Department of Agriculture.

The purpose of the order as expressed therein is to carry out the legislative mandate that regulations be enacted to prevent consumer deception caused by deceptive sizes of bread loaves. We learn from § 6 of Order Number AD-646 the nature of the deception which the order is designed to allay. There, we find a recital of the pressing necessity for the regulation. It reads: 'The consumer is being deceived by a recent practice in the baking industry whereby bread ordinarily baked in a smaller pan is being baked in a larger pan with the result that the smaller loaf simulates the larger loaf and in some instances the consumer is actually paying a higher price therefor.'

However, conceding arguendo that the public is being denied a wholesome food, if prepared by defendants contrary to ORS 625.209 and rules issued under the authority of that section, the declaration made concerning the public denial of 'wholesome food' must fail under the rule announced by this court in State v. Schuman, 36 Or. 16, 24, 58 P. 661, 47 L.R.A. 153, 78 Am.St.Rep. 754 (1899), where it was held that the sale of a commodity may be subject to the exercise of the police power, though its use would not necessarily subvert the morals, impair the health, or disturb the peace of society. In the Schuman case the court declared for the validity of a statute making it unlawful to sell or offer for sale any species of trout whether caught in this state or out of it. Followed in State v. Thompson, 47 Or. 492, 500, 84 P. 476, 4 L.R.A., N.S., 480 (1906); Monroe v. Withycombe, 84 Or. 328, 335, 165 P. 227 (1917); Union Fishermen's Co. v....