Jay Burns Baking Company v. Bryan/Opinion of the Court
An act of the Legislature of Nebraska, approved March 31, 1921 (Laws 1921, c. 2, p. 56)  provides that every loaf of bread made for the purpose of sale, or offered for sale, or sold, shall be one-half pound, one pound, a pound and a half, or exact multiples of one pound, and prohibits loaves of other weights. It allows a tolerance in excess of the specified standard weights at the rate of two ounces per pound and no more, and requires that the specified weight shall be the average weight of not less than 25 loaves, and that such average shall not be more than the maximum nor less than the minimum prescribed. Violations of the act are punishable by a fine or imprisonment.

Four of the plaintiffs in error are engaged in Nebraska in the business of baking and selling bread for consumption there and in other states. Their total annual output is alleged to be 23,500,000 pounds. 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. The state Supreme Court sustained the act. The case is here on writ of error.

Plaintiffs in error do not question the power of the state to enact and enforce laws calculated to prevent the sale of loaves of bread of less than the purported weight; but they contend that the provision fixing the maximum weights in this statute is unnecessary, unreasonable and arbitrary.

The brief of the Attorney General states that the law is concerned with weights only. The state Supreme Court said (Jay Burns Baking Co. v. McKelvie, 108 Neb. 674, 678 189 N. W. 383, 385 [26 A. L. R. 24]):

'It is to prevent a loaf of one standard from being increased      in size until it can be readily sold for a loaf of a larger      standard that a maximum weight is fixed. The test is      reasonableness. * * * [Page 679, 189 N. W. 385.] 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 most of these tests, wrapped loaves were      used.] 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. There      are a number of reasons, however, why the tests made to prove      unreasonableness should not be accepted as conclusive. If      correctly understood these tests were made with bread      manufactured in the regular course of business, without any      attempt to change ingredients or processes or to retard      evaporation of moisture in loaves by the use of waxpaper or      other means. * * * [Page 680, 189 N. W. 385.] 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 evidence does not prove that,      if reasonable means or precautions are taken by plaintiffs and other bakers to retard evaporation, they cannot comply      with the act of the Legislature, or that the regulation is      unreasonable.'

Undoubtedly, the police power of the state may be exerted to protect purchasers from imposition by sale of short weight loaves. Schmidinger v. Chicago, 226 U.S. 578, 588, 33 Sup. Ct. 182, 57 L. Ed. 364, Ann. Cas. 1914B, 284. Many laws have been passed for that purpose. But a state may not, under the guise of protecting the public, arbitrarily interfere with private business or prohibit lawful occupations or impose unreasonable and unnecessary restrictions upon them. Lawton v. Steele, 152 U.S. 133, 137, 14 Sup. Ct. 499, 38 L. Ed. 385; Meyer v. Nebraska, 262 U.S. 390, 399, 43 Sup. Ct. 625, 67 L. Ed. 1042. Constitutional protection having been invoked, it is the duty of the court to determine whether the challenged provision has reasonable relation to the protection of purchasers of bread against fraud by short weights and really tends to accomplish the purpose for which it was enacted. Meyer v. Nebraska, supra; Welch v. Swasey 214 U.S. 91, 105, 29 Sup. Ct. 567, 53 L. Ed. 923; Dobbins v. Los Angeles, 195 U.S. 223, 236, 25 Sup. Ct. 18, 49 L. Ed. 169; Connolly v Union Sewer Pipe Co., 184 U.S. 540, 556, 22 Sup. Ct. 431, 46 L. Ed. 679; Lawton v. Steele, supra.

The loaf is the usual form in which bread is sold. The act does not make it unlawful to sell individual loaves weighing more or less than the standard weights respectively. Loaves of any weight may be sold without violation of the act, if the average weight of not less than 25 does not exceed the permitted maximum or fall short of the specified nominal weights during 24 hours after baking. Undoubtedly, very few private consumers purchase at one time as many as 25 loaves of the same standard size or unit. 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. Any loaves of the same unit at any time on hand during 24 hours after baking may be selected to make up the 25 or more to be weighed in order to test compliance with the act. Therefore, if only a small percentage of the daily output of the loaves in large bakeries shall exceed the maximum when taken from the oven or fall below the minimum weight within 24 hours, it will always be possible to make up lots of 25 or more loaves whose average weight will be above or below the prescribed limits.

The parties introduced much evidence on the question whether it is possible for bakers to comply with the law. A number of things contribute to produce unavoidable variations in the weights of loaves at the time of and after baking. The water content of wheat, of flour, of dough,  and of bread immediately after baking varies substantially and is beyond the control of bakers. Gluten is an important element in flour, and flour rich in gluten requires the addition of more water in bread-making and makes better bread than does flour of low or inferior gluten content. 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. Defendants' tests were made principally with loaves which were wrapped so as to retard evaporation; and it was shown that by such wrapping the prohibited variations in weight may be avoided. On the other hand, the evidence clearly establishes that there are periods when evaporation under ordinary conditions of temperature and humidity prevailing in Nebraska exceed the prescribed tolerance and make it impossible to comply with the law without wrapping the loaves or employing other artificial means to prevent or retard evaporation. And the evidence indicates that these periods are of such frequency and duration that the enforcement of the penalties prescribed for violations would be an intolerable burden upon bakers of bread for sale. The tests which were described in the evidence and referred to in the opinion are not discredited because 'made with bread manufactured in the regular course of business.' The reasonableness of the regulation complained of fairly may be measured by the variations in weight of bread so made. The act does not require bakers to select ingredients or to apply processes in the making of bread that will result in a product that will not vary in weight during 24 hours after banking as much as does bread properly made by the use of good wheat flour. As indicated by the opinion of the state Supreme Court, ingredients selected to lessen evaporation after baking would make an inferior and unsalable bread. It would be unreasonable to compel the making of such a product or to prevent making of good bread in order to comply with the provisions of the act fixing maximum weights. The act is not a sanitary measure. It does not relate to the preservation of bread in transportation or in the market; and it applies equally whether the bread is sold at the bakeries or is shipped to distant places for sale. Admittedly, the provision in question is concerned with weights only. The act does not regulate moisture content or require evaporation to be retarded by the wrapping of loaves or otherwise. The uncontradicted evidence shows that there is a strong demand by consumers for unwrapped bread. It is a wholesome article of food, and plaintiffs in error and other bakers have a right to furnish it to their customers. The lessening of weight of bread by evaporation during 24 hours after baking does not reduce its food value. It would be unreasonable to prevent unwrapped bread being furnished to those who want it in order technically to comply with a weight regulation and to keep within limits of tolerance so narrow as to require that ordinary evaporation be retarded by wrapping or other artificial means. It having been shown that during some periods in Nebraska bread made in a proper and usual way will vary in weight more than at the rate of 2 ounces to the pound during 24 hours after baking, the enforcement of the provision necessarily will have the effect of prohibiting the sale of unwrapped loaves when evaporation exceeds the tolerance.

No question is presented as to the power of the state to make regulations safeguarding or affecting the qualities of bread. Concretely, the sole purpose of fixing the maximum weights, as held by the Supreme Court, is to prevent the sale of a loaf weighing anything over 9 ounces for a one pound loaf, and the sale of a loaf weighing anything over 18 ounces for a pound and a half loaf, and so on. The permitted tolerance, as to the half-pound loaf, gives the baker the benefit of only 1 ounce out of the spread of 8 ounces, and as to the pound loaf the benefit of only 2 ounces out of a like spread. There is no evidence in support of the thought that purchasers have been or are likely to be induced to take a 9 1/2 or a 10 ounce loaf for a pound (16-ounce) loaf, or an 18 1/2 or a 19 ounce loaf for a pound and a half (24-ounce) loaf, and it is contrary to common experience and unreasonable to assume that there could be any danger of such deception. Imposition through short weights readily could have been dealt with in a direct and effective way. For the reasons stated, we conclude that the provision, that the average weights shall not exceed the maximums fixed, is not necessary for the protection of purchasers against imposition and fraud by short weights and is not calculated to effectuate that purpose, and that it subjects bakers and sellers of bread to restrictions which are essentially unreasonable and arbitrary, and is therefore repugnant to the Fourteenth Amendment.

Judgment reversed.

Mr. Justice BRANDEIS (with whom Mr. Justice HOLMES concurs) dissenting.

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. Schmidinger v. Chicago, 226 U.S. 578, 33 Sup. Ct. 182, 57 L. Ed. 364, Ann. Cas. 1914B, 284, settled that the business of making and selling bread is a permissible subject for regulation, that the prevention of short weights is a proper end of regulation, that the fixing of standard sizes and weights of loaves is an appropriate means to that end, and that prevalent marketing frauds make the enactment of some such protective legislation permissible. The ordinance there upheld, besides defining the standard weight loaf, required that every loaf should bear a label stating the weight, and to sell a loaf weighing less than the weight stated in the label was made a misdemeanor.

The Nebraska regulation is in four respects less stringent than the ordinance upheld in the Schmidinger Case: (1) It provides for a tolerance; that is, it permits a deviation from the standard weight of not more than 2 ounces in a pound, provided that the prescribed standard weight shall be determined by averaging the weights of not less than 25 loaves of any one unit. (2) The prescribed weight applies for only 24 hours after the baking. (3) The weight is to be ascertained by weighing on the premises where the bread is baked. (4) No label stating the weight is required to be affixed to the loaf; that is, as a representation of the weight, the familiar size of the loaf is substituted for the label. On the other hand, the Nebraska requirement is more stringent than the Chicago ordinance, in that it prohibits making and selling loaves which exceed the prescribed weight by more than the tolerance. This prohibition of excess weights is held to deny due process of law to bakers and sellers of bread. In plain English, the prohibition is declared to be a measure so arbitrary or whimsical that no body of legislators, acting reasonably, could have imposed it. In reaching this conclusion, the court finds specifically that this prohibition 'is not necessary for the protection of purchasers against imposition and fraud by short weights,' that it 'is not calculated to effectuate that purpose,' and that the practical difficulties of compliance with the limitation are so great that the provision 'subjects bakers and sellers of bread to restrictions which are essentially unreasonable and arbitrary.'

To bake a loaf of any size other than the standard is made a misdemeanor. Why baking a loaf which weighs less than the standard size should be made a crime is obvious. Such a loaf is a handy instrument of fraud. Why it should be a crime to bake one which weighs more than the standard is not obvious. The reason given is that such a loaf, also, is a handy instrument of fraud. In order that the buyer may be afforded protection, the difference between the standard sizes must be so large as to be evident and conspicuous. 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. 

With the wisdom of the legislation we have, of course, no concern. But, under the due process clause as construed, we must determine whether the prohibition of excess weights can reasonably be deemed necessary, whether the prohibition can reasonably be deemed an appropriate means of preventing short weights and incidental unfair practices, and whether compliance with the limitation prescribed can reasonably be deemed practicable. The determination of these questions involves an enquiry into facts. Unless we know the facts on which the legislators may have acted, we cannot properly decide whether they were (or whether their measures are) unreasonable, arbitrary or capricious. Knowledge is essential to understanding, and understanding should precede judging. Sometimes, if we would guide by the light of reason, we must let our minds be bold. But, in this case, we have merely to acquaint ourselves with the art of bread-making and the usages of the trade, with the devices by which buyers of bread are imposed upon and honest bakers or dealers are subjected by their dishonest fellows to unfair competition, with the problems which have confronted public officials charged with the enforcement of the laws prohibiting short weights, and with their experience in administering those laws.

First. Why did legislators, bent only on preventing short weights, prohibit also excessive weights? It was not from caprice or love of symmetry. It was because experience had taught consumers, honest dealers, and public officials charged with the duty of enforcing laws concerning weights and measures that, if short weights were to be prevented, the prohibition of excessive weights was an administrative necessity. Similar experience had led to the enactment of a like prohibition of excess quantities in laws designed to prevent defrauding, by short measure, purchasers of many other articles.  It was similar experience which had led those seeking to prevent the sale of intoxicating liquor to enact the law which prohibits the sale of malt liquor, although not containing any alcohol (sustained in Purity Extract Co. v. Lynch, 226 U.S. 192, 33 Sup. Ct. 44, 57 L. Ed. 184), and that which prohibits the sale of liquor containing more than one-half of 1 per cent. of alcohol (sustained in Ruppert v. Caffey, 251 U.S. 264, 40 Sup. Ct. 141, 64 L. Ed. 260). Compare Armour & Co. v. North Dakota, 240 U.S. 510, 36 Sup. Ct. 440, 60 L. Ed. 771, Ann. Cas. 1916D, 548.

In January, 1858, the late corporation of Washington adopted an ordinance fixing a standard weight loaf, and establishing an excess tolerance.  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.  Prior thereto many different kinds of legislation had been tried in the several states and cities with a view to preventing short weights.  Experience had shown the inefficacy of those preventive measures. Experience under the Chicago ordinance indicated the value of introducing the standard-weight loaf; but it proved, also, that the absence of a provision prohibiting excess weights seriously impaired the efficacy of the ordinance.  When in 1917 the United States Food Administration was established, pursuant to the Lever Act (Act Aug. 10, 1917, c. 53, 40 Stat. 276 [Comp. St. Ann. Supp. 1919, §§ 3115 1/8 e-3115 1/8 kk, 31151/8 l-3115 1/8 r]) the business of baking came under its supervision and control; and provision was made for licensing substantially all bakers.  The protection of buyers of bread against the fraud of short weights was deemed essential.  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.  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.  This provision remained in force unchanged until the licensing system was abrogated on December 19, 1918 (after the Armistice). 

The efficacy of the prohibition of excess weights as a means of preventing short weights having been demonstrated by experience during the period of Food Administration control, a widespread demand arose for legislative action in the several states to continue the protection which had been thus afforded. Dissatisfaction with the old methods of regulation was expressed in a number of states.  During the years 1919 to 1923, standard weight bread laws, containing the prohibition of excess weights, were enacted in 12 states.  Similar bills were introduced in others.  Congress enacted such a law for the District of Columbia.  Hawaii and Porto Rico did likewise.  The National Conference on Weights and Measures indorsed a similar provision.  A bill embodying the same principles, applicable to sales of bread in interstate commerce, prepared by the Department of Agriculture and the Department of Commerce, was introduced in 1923 and is now pending.  At the congressional hearings thereon, it was shown that the provisions against excess weights is deemed necessary by a large majority of the bakers, as well as by consumers and by local public officials charged with the duty of preventing short weights.  In Nebraska the demand for the legislation under review was general and persistent. It was enacted after a prolonged public discussion carried on throughout the state as well as in the Legislature.  Can it be said, in view of these facts, that the legislators had not reasonable cause to believe that prohibition of excess weights was necessary in order to protect buyers of bread from imposition and honest dealers from unfair competition?

Second. Is the prohibition of excess weights calculated to effectuate the purpose of the act? In other words, is it a provision which can reasonably be expected to aid in the enforcement of the prohibition of short weights? That it has proved elsewhere an important aid is shown by abundant evidence of the highest quality. It is shown by the fact that the demand for the legislation arose after observation of its efficacy during the period of Food Administration control.  It is shown by the experience of the several communities in which the provision has since been in operation: Chicago,  California,  Ohio,  Indiana,  and the District of Columbia.  The value of the prohibition is shown, also, by the fact that, after extensive application and trial, it has been indorsed by the National Conference on Weights and Measures and is included in the proposed 'Federal Bread Law.' Can it be said, in view of these facts, that the Legislature of Nebraska had no reason to believe that this provision is calculated to effectuate the purpose of the standard weight bread legislation?

Third. 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? Or would the probability of unintentional transgression be so great as unreasonably to expose those engaged in the business to the danger of criminal prosecution? Facts established by widespread and varied experience of the bakers under laws containing a similar provision, and the extensive investigation and experiments of competent scientists, seem to compel a negative answer to each of these questions. But we need not go so far. There is certainly reason to believe that the provision does not subject the baker to an appreciable cost;  that it does not require a higher degree of skill than is commonly available to bakery concerns;  and that it does not expose honest bakers to the danger of criminal proceedings.  As to these matters, also, the experience gained during the period of Food Administration control, and since then in the several states, is persuasive. For under the Food Administration, and in most of the states, the business was successfully conducted under provisions for tolerances which were far more stringent than that enacted in Nebraska. In the Food Administration regulation, and in most of the statutes, the tolerance was one ounce in the pound.  In Nebraska it is two. In some states the weight is taken of the individual loaf.  In Nebraska it is the average of at least 25 loaves. In some states in which the average weight is taken, it is computed on a less number of loaves than 25.  In some, where an average of 25 is taken, the tolerance is smaller.  Moreover, even if it were true that the varying evaporation made compliance with the law difficult, a sufficiently stable weight can, confessedly, be secured by the use of oil paper wrapping (now required in several states for sanitary reasons ), which can be inexpensively supplied.  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?

Much evidence referred to by me is not in the record. Nor could it have been included. It is the history of the experience gained under similar legislation, and the results of scientific experiments made since the entry of the judgment below. Of such events in our history, whether occurring before or after the enactment of the statute or of the entry of the judgment, the court should acquire knowledge, and must, in my opinion, take judicial notice, whenever required to perform the delicate judicial task here involved. Compare Muller v. Oregon, 208 U.S. 412, 419, 420, 28 Sup. Ct. 324, 52 L. Ed. 551, 13 Ann. Cas. 957; Dorchy v. Kansas, 264 U.S. 286, 44 Sup. Ct. 323, 68 L. Ed. --, No. 163, October term, 1923, decided March 10, 1924. The evidence contained in the record in this case is, however, ample to sustain the validity of the statute. There is in the record some evidence in conflict with it. The Legislature and the lower court have, doubtless, considered that. But with this conflicting evidence we have no concern.  It is not our province to weigh evidence. 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.

To decide, as a fact, that the prohibition of excess weights 'is not necessary for the protection of the purchasers against imposition and fraud by short weights,' that it 'is not calculated to effectuate that purpose,' and that it 'subjects bakers and sellers of bread' to heavy burdens, is, in my opinion, an exercise of the powers of a super-Legislature-not the performance of the constitutional function of judicial review. 

Notes