Pierce Butler

“ The buyer has usually in mind the difference in appearance between a one-pound loaf and a pound and a half loaf, so that it is difficult for the dealer to plam off the former for the latter. But a loaf weighing one pound and five ounces may look so much like the buyer's memory of the pound and a half loaf that the dealer may effectuate the fraud by delivering the former. The prohibition of excess weight is imposed in order to prevent a loaf of one standard size from being increased so much that is can readily be sold for a loaf of a larger standard size. ”

“ Does the prohibition of excess weight impose unreasonable burdens upon the business of making and selling bread? In other words, would compliance involve bakers in heavy costs, or necessitate the employment of persons of greater skill than are ordinarily available? ”

“ Put at its highest, our function is to determine, in the light of all facts which may enrich our knowledge and enlarge our understanding, whether the measure, enacted in the exercise of an unquestioned police power and of a character inherently unobjectionable, transcends the bounds of reason; that is, whether the provision as applied is so clearly arbitrary or capricious that legislators acting reasonably could not have believed it to be necessary or appropriate for the public welfare. ”

“ 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. ”

“ 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. ”

“ There is a great contrariety of opinion among bakers themselves as to the advisability of the legislation and the limits of a reasonable tolerance. 'Tolerances of some kind are absolutely necessary, but in view of the conflicting opinion of bakers, weights and measures officials, chemists and others interested in solving the problem, a 'reasonable' tolerance is about as hard to determine as the traditional age of Ann.' See 134 Northwestern Miller, p. ”

“ Furthermore, as bakers are left free to charge for their bread such price as they choose, enhanced cost of conducting the business would not deprive them of their property without due process of law. Can it be said, in view of these facts, that the Legislature of Nebraska had no reason to believe that the excess weight provision would not unduly burden the business of making and selling bread? ”

“ The writer says that the law works well and 'rarely do we find an instance in which the standard weight requirement is being violated'; that only one case of short weight had to be prosecuted; that the law itself same into existence through the desire of the bakers of the state for a system 'of control that would elevate the industry by eliminating certain objectionable trade practices'; that the law has placed the industry on a fair basis; that volume of business no longer depends on shrewd, but objectionable, trade practices, but upon quality of product ”

“ The purpose of the Nebraska standard weight bread law is to protect buyers from short weights and honest bakers from unfair competition. It provides for a few standard size loaves, which are designated by weight, and prohibits, as to each size, the baking or selling of a loaf which weighs either less or more than the prescribed weight. ”

“ The law itself provides that the standard weights of all loaves of bread within 12 hours after baking shall be 16 ounces * * * or multiples of the 16-ounce size. A tolerance of 1 ounce above the standard weight is allowed for each 16-ounce unit. No stated tolerance below the standard weight is allowed, for the reason that, were there such a tolerance, certain unscrupulous bakers would not hesitate to scale their bread that amount short. ”

“ 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 protection of buyers of bread against the fraud of short weights was deemed essential. [10] After an investigation which occupied three months, the Food Administration issued the regulations by which licensees were to be governed. No standard weight bread statute had then been enacted in any state. [11] The regulations adopted established standard weight loaves, prohibited the sale of loaves other than of the standard weights, and limited the excess weight to not more than one ounce to the pound. ”

“ 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 January, 1858, the late corporation of Washington adopted an ordinance fixing a standard weight loaf, and establishing an excess tolerance. [5] The standard weight bread ordinance adopted by Chicago in 1908 and sustained in the Schmidinger Case is said to have been the first standard weight bread law in the United States enacted in this century. [6] Prior thereto many different kinds of legislation had been tried in the several states and cities with a view to preventing short weights. ”

“ 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. ”

“ 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. ”

“ H. E. Barnard, 'Bread Legislation from the Standpoint of the Baker,' 14 Conf. Weights and Measures, p. 24. The regulations promulgated by the Food Administration had the approval of the bakers. See Report of the Bakery Division, Nov. 1, 1917, to May 31, 1918. Also in Ohio. See 15 Conf. Weights and Measures, pp. 88-91. See, also, 5 Conf. Weights and Measures, pp. 19-22: 1917 Oregon Dept. Weights and Measures, pp. 7-9.↑ California, Connecticut, and old Washington corporation ordinance. See Hearings on H. R. 4533, Feb. ”

“ Indiana, 1913; Massachusetts, 1917, Report of Sealer of Weights and Measures for Worcester, Mass., 1905, p. 5; New York, 1910, 1913, 1915; North Dakota, 1919; Pennsylvania, 1921; Tennessee, 1914; Vermont, 1920; Washington, 1913; Wisconsin, 1911, 1913; District of Columbia, 1897, 1901. See, also, regulations promulgated by the Secretary of Agriculture pursuant to section 4 of the Standard Container Act Aug. 31, 1916, c. 426, 39 Stat. 673 (Comp. St. § 8907o) ”