A statement to the effect that all scales of a certain kind must
be equipped with automatic devices to compensate for changes of
temperature, appearing as an item in a "bulletin of instruction and
information to dealers and weights and measures officials," issued
by the New York Superintendent of Weights and Measures, was acted
upon by certain county and city sealers of weights, with the
resulting injury to the business of the plaintiff, a manufacturer
of scales of the kind specified but not equipped with such devices.
considering the Superintendent's functions and
powers under the New York law and the purpose of the statement,
that it was educational and advisory merely, not binding on the
city and county sealers and not a rule or regulation of a
legislative character such as might impair the plaintiff's
constitutional rights under the Fourteenth Amendment or the
commerce clause. P. 249 U. S.
242 F. 7 affirmed.
The case is stated in the opinion.
Page 249 U. S. 572
MR. JUSTICE BRANDEIS delivered the opinion of the Court.
By the statutes of New York, a sealer of weights and measures is
appointed in every county and every city by the local authorities,
with the duty, among other things, to keep safely the standards and
to seal and mark such weights as correspond with the standards in
his possession. The statutes provide also for a state
superintendent of weights and measures with, among other things, a
like duty to keep the state standards, and,
"where not otherwise provided by law,' to 'have a general
supervision of the weights, measures, and measuring and weighing
devices of the state and in use in the state."
General Business Law of New York, sections 11-15; Laws 1909, c.
25, amended by Laws 1910, c. 187. Under a specific appropriation,
he publishes and distributes "bulletins of instruction and
information to dealers, and weights and measures officials." Laws
1914, c. 521, p. 2093. In the bulletin for August, 1914, there
appeared, among other matter, the following item:
"Automatic Computing Scales"
"All combination spring and lever computing scales must be
equipped with a device which will automatically compensate for
changes of temperature at zero balance and throughout the whole
range of weight graduations."
The Standard Company manufactures a combination spring and lever
computing scale which was then being used and sold in New York. It
is equipped with a compensating device which is not automatic.
Because of these "specifications," some county and city sealers of
weights neglected to seal scales of plaintiff's make, and warned
scale users to discontinue the use thereof. A state inspector, who
was a subordinate of the state superintendent,
Page 249 U. S. 573
also marked some of these scales "slow and faulty." As a result,
the Standard Company's business in New York was injured -- sales
diminished and collections for scales theretofore sold became
difficult. The Standard Company contends that its scales with a
mechanical compensating device are at least as trustworthy as those
of its competitor with the automatic device, and it presented these
views to State Superintendent Farrell both before the
"specifications" were issued and thereafter. Failing to secure a
withdrawal of the "specifications," it brought, in February, 1915,
this suit in the District Court of the United States for the
Southern District of New York against the State Superintendent,
setting forth in substance the facts above stated and praying that
the issuing of the "specifications," which it termed a "rule," be
declared an invalid exercise of the police power of the state, and
their enforcement enjoined on the ground that the rule violates the
federal Constitution in that it impairs the obligation of
contracts, interferes with interstate commerce, abridges the
privileges and immunities of a citizen, deprives the plaintiff of
property without due process, and denies to it equal protection of
the laws. An answer was filed, and, upon full hearing on the
evidence, the bill was dismissed on the merits. 242 F. 87. The
circuit court of appeals affirmed the decree, but, at appellant's
request, the mandate was later withdrawn and the appeal dismissed
for want of jurisdiction because it appeared that the jurisdiction
of the district court had been invoked solely under § 24, paragraph
14, of the Judicial Code on the ground that the defendant's "rule"
was unconstitutional. Carolina Glass Co. v. South
Carolina, 240 U. S. 305
240 U. S. 318
Thereupon the case was brought here by direct appeal under § 238 of
the Judicial Code.
No question is made as to the constitutionality of the statute
creating the office of state superintendent and defining his
duties. The attack is upon the "specifications"
Page 249 U. S. 574
in the bulletin which plaintiff assumes are a regulation -- that
is, a law. Its contention is that the so-called "rule" is not a
proper exercise of the police power and is void because it is
arbitrary and unreasonable, because it unjustifiably discriminates
against plaintiff's product, and because it interferes with
interstate commerce. The claim that it impairs the obligation of
contracts is not now insisted upon.
The "specifications" were not published as a regulation
purporting to prescribe a course of action to be enforced by the
power of the state. They embody, as the evidence shows, the result
of prolonged investigation and extensive experimentation, and
formulate the conclusion reached by the state superintendent that
every known automatic computing scale without an automatic
compensating device is likely to mislead the customer who purchases
at retail. In other words, the vice in this kind of scales was
found by him to be generic, and, as the objection was not one due
to a defect of an individual machine, it was deemed useless to make
individual tests. The "specifications" are a law only in the sense
that every truth of general application may be spoken of as a law.
If they may be termed a rule, it is only in the sense that they
furnish a guide for the action of those interested -- that is, the
function of the "specifications" is educational, and at most
The item was one appropriate for a bulletin "of instruction and
information to dealers and weights and measures officials." That
such was its purpose is shown also by the other items contained in
the same issue of the bulletin. In the pages preceding the
"specifications" here in question was one item giving elementary
information as to how prosecutions for violation of the General
Business Law may be conducted, and two recent opinions of the
Attorney General of New York addressed to the state superintendent.
The first concerned the power of
Page 249 U. S. 575
local magistrates to punish for violation of that law; the other
the right to mark containers in terms of the metric system.
Following the "specifications" in question are two more opinions of
the Attorney General and the opinion of a municipal court. The last
item of the bulletin is entitled "Specifications -- Measuring
Pumps," and conveys useful information concerning automatic
measuring devices. The information given in the "specifications"
complained of may, as the plaintiff contends, be incorrect; the
instruction may be unsound, and, if it is so, may be mischievous
and seriously damage the property rights of innocent persons. But
the opinions and advice, even of those in authority, are not a law
or regulation such as comes within the scope of the several
provisions of the federal Constitution designed to secure the
rights of citizens as against action by the states.
If the state superintendent had undertaken to introduce a
regulation legislative in character -- that is, to prescribe rules
of action which the city and county sealers would be forced to
follow, and to prohibit the use in the state of scales not sealed
in accordance with his regulations -- he would have exceeded his
powers, for the few conferred upon him are not of that character.
The General Business Law, substantially as enacted in 1909,
provided by § 11 that:
"The state superintendent of weights and measures shall take
charge of the standards adopted by this article as the standards of
the state, cause them to be kept in a fireproof building belonging
to the state, from which they shall not be removed, except for
repairs or for certification, and take all other necessary
precautions for their safekeeping. He shall maintain the state
standards in good order and shall submit them once in ten years to
the national bureau of standards for certification. He shall
correct the standards of the several cities and counties, and, as
often as once in five years, compare the same with those in his
possession, and, where not otherwise provided
Page 249 U. S. 576
by law, he shall have a general supervision of the weights,
measures, and measuring and weighing devices of the state and in
use in the state."
The statutes give the state superintendent no control of county
or city sealers. He does not appoint them, and they are in no
respect his subordinates. The powers which they new exercise are
substantially the same as those conferred upon them by the Colonial
Act of June 19, 1703, [Footnote
] which created those offices. Section 11 of the General
Business Law was a reenactment of § 11 of the Domestic Commerce
Law, Laws 1896, c. 376, and the latter was substantially a
reenactment of § 17 of c. 134 of the Laws of 1851, which act
created (by § 16) the office of State Superintendent. [Footnote 2
] Section 11, as enacted in
1909, was amended (Laws 1910, c. 187), so as to prescribe
additional specific duties of the state superintendent. [Footnote 3
] But none of these
Page 249 U. S. 577
is legislative in character, and the enumeration of them serves
rather to limit than to enlarge the meaning of the clause giving
"general supervision of the weights . . . in use in the state."
If the "specifications" had been issued as a regulation -- that
is, a law -- we might have been called upon to inquire whether it
was a proper exercise of the police power, or was, as plaintiff
contends, void. because arbitrary and unreasonable, or because it
was discriminatory, or as interfering with interstate commerce. For
the protection of the federal Constitution applies whatever the
form in which the legislative power of the state is exerted -- that
is, whether it be by a constitution, an act of the legislature, or
an act of any subordinate instrumentality of the state exercising
delegated legislative authority, like an ordinance of a
municipality or an order of a commission. Great Northern Ry.
Co. v. Minnesota, 238 U. S. 340
Home Telephone & Telegraph Co. v. Los Angeles,
227 U. S. 278
227 U. S.
-288; Oregon Railroad & Navigation Co. v.
Fairchild, 224 U. S. 510
Grand Trunk Western Ry. Co. v. Railroad Commission of
Indiana, 221 U. S. 400
221 U. S. 403
But since the "specifications" are not in the nature of a law or
regulation, the prohibitions of the federal Constitution cannot
The district court did not err in dismissing the bill, and its
Report upon Weights and Measures, by John Quincy Adams,
Secretary of State, February 22, 1821, p. 189.
An act passed February 2, 1804, had provided that the Secretary
of State should be ex officio
state sealer of weights and
measures, and that, "from time to time, as occasion may require,"
"one assistant state sealer" might be appointed. Report upon
Weights and Measures, by John Quincy Adams, Secretary of State,
February 22, 1821, p. 194.
"He shall, upon the written request of any citizen, firm,
corporation, or educational institution of the state, test or
calibrate weights, measures, weighing or measuring devices, and
instruments or apparatus used as standards in the state. He, or his
deputies or inspectors by his direction, shall at least once
annually test all scales, weights, and measures used in checking
the receipt or disbursement of supplies in every institution under
the jurisdiction of the fiscal supervisor of state charities, and
he shall report in writing his findings to said fiscal supervisor
and to the executive officer of the institution concerned, and, at
the request of said officers, the superintendent of weights and
measures shall appoint in writing one or more employees, then in
actual service, of each institution, who shall act as special
deputies for the purpose of checking the receipt or disbursement of
supplies. He shall keep a complete record of the standards,
balances, and other apparatus belonging to the state, and take
receipt for the same from his successor in office. He shall
annually during the first two weeks of January make to the
legislature a report of the work done by his office. The state
superintendent, or his deputies or inspectors by his direction,
shall inspect all standards used by the counties or cities at least
once in two years, and shall keep a record of the same. He, or his
deputies or inspectors at his direction, shall, at least once in
two years, visit the various cities and counties of the state in
order to inspect the work of the local sealers, and, in the
performance of such duties, he may inspect the weights, measures,
balances, or any other weighing or measuring appliances of any
person, firm or corporation."