October
Term, 1941.
"Short
Weight" Sales.---1. Food Container Markings, P. L. 7688
No. 208 of the Acts of 1939.---2. Judicial Notice of
Container Tolerances, P. L. 7662.---3. Statutory Tolerances
or Variances.---4. Pleading Conclusions of Law.
1.
Since rules and regulations promulgated by authority of P. L
7688 as amended by No. 208 of the Acts of 1939 concerning the
marking of food containers must be given the force of law
thereby, the Court will take judicial notice of all such
rules and regulations.
2. The
Court will take judicial notice of permitted tolerances in
quantities of food in their containers established pursuant
to P. L. 7662, as these tolerances by force of the statute
are legal and remain in force until changed, modified
nullified or repealed by competent authority.
3. The
contention of a respondent charged with selling a deficiency
in food of a marked weight that the statute is invalid
because it denies a reasonable variation is without merit
when the statute indicates that a tolerance which is
reasonable is permitted.
4. An
allegation in a plea to an information for "short
weight" on food produce that the variation between the
actual and marked weight was unreasonable because of the
difficulties and expense of a closer approximation is merely
the statement of a conclusion of law supported by no
traversable facts and so is without force or effect in the
plea.
INFORMATION charging the defendant, doing business as
Fassett's Bakery, with violation of P. L. 7688 as amended
by No. 208 of the Acts of 1939. Plea, unconstitutionality of
statute. State demurred. Demurrer was sustained by Addison
County Court, June Term, 1941, Adams, J., presiding. The
opinion states the case.
Judgment of the county court in sustaining the demurrer
is affirmed and cause remanded.
Present:
MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS,
JJ.
OPINION
This is a criminal case in which the respondent,
Hyman Gladstone, was charged with a violation of P. L. 7688
as amended by No. 208 of the Acts of 1939. The specific
charge in the information was in substance that the
respondent offered for sale thirty loaves of bread each loaf
wrapped in a separate wrapper on which appeared the marking
"20 Ozs." and the weight of each loaf was two
ounces less than so represented. To this charge the
respondent filed a plea in the nature of a plea in abatement
to which the State demurred. The case is here before final
judgment under authority of P. L. 2072 upon exceptions taken
by the respondent to the action of the court in sustaining
the demurrer.
The
portions of the plea here material were as follows:
"1. That the act on which said information is based is
unconstitutional and void as to your respondent in that it
forbids variation from the net quantity set forth on the
container regardless of whether said variations are above or
below the quantity set forth on said container and thus said
act imposes upon respondent the arbitrary, unreasonable and
extreme burden of not inserting too great a quantity in said
containers, which burden has no relation to the public
welfare and is not calculated for the protection of the
purchaser against imposition and fraud by short quantities,
and which burden makes extremely, unreasonably, arbitrarily
and unnecessarily difficult the burden of not inserting too
small a quantity in said containers and has thus deprived
respondent of his rights guaranteed under the Fourteenth
Amendment of the United States Constitution.
"2. That the statute on which said information is based
is further unconstitutional and void in that it makes no
provisions for averaging the weight of a number of loaves,
nor for the period of time during which the weight of each
loaf must correspond to the weight set forth on the
container, nor for any tolerance or variation other than that
permitted by rules and regulations made from time to time by the director of standards, which rules and
regulations allow for no tolerance or variation whatsoever,
and for these reasons and each of them said statute deprives
respondent of his constitutional rights under the Fourteenth
Amendment of the United States Constitution by imposing upon
respondent a burden which is unreasonable, arbitrary and
burdensome to an extreme degree and which has no necessary or
proper relation to the public welfare.
"3. That said information fails to state an offense
against the State of Vermont for the reason that it fails to
negative a reasonable variation and for the further reason
that the variation set forth in said information is as a
matter of law reasonable under the meaning and intent of said
act because of the difficulties and wasteful expense which
would result from a closer approximation of the exact net
weight of bread contained in said containers and for the
further reason that any finding that said variation was
unreasonable under the circumstances and difficulties
involved in the labeling of the exact quantity of bread
contained would render said act unconstitutional under the
Fourteenth Amendment of the United States Constitution as an
arbitrary and unreasonable restriction having no sufficient
relation to the public welfare."
P.
L. 7688 as amended by No. 208 of the Acts of 1939
states:
"
Marking containers. A person who sells, offers or
exposes for sale food in containers or package form shall
have the correct net quantity of the contents plainly and
conspicuously marked on the outside of the package or
container in terms of weight, measure or numerical count; but
reasonable variation shall be permitted and allowance and
exemption as to small packages shall be established by rules
and regulations made from time to time by the director of
standards. The term food' as used herein
shall mean articles used for food or drink for man or animals
and articles used for components of any such article."
Chapter
298 of the Public Laws deals with weights, measures and state
standards. The sections of this chapter here material as
amended by No. 197 of the Acts of 1937 are:
P. L.
7653. " Director of standards. The commissioner
of agriculture, by virtue of his office, shall be director of
standards."
P. L.
7662. " Tolerances. The director, after
consultation with and with the advice of the National Bureau
of Standards, shall establish tolerances for use in the state
and such tolerances shall be the legal tolerances in the
state."
P. L
Sec. 7663. " Rules and regulations. The
director may make suitable rules and regulations to...
