1. The power of a state to protect the public from imposition by
sale of short-weight loaves of bread cannot be exerted in such a
way as arbitrarily to prohibit or interfere with, or impose
unreasonable
Page 264 U. S. 505
and unnecessary restrictions upon, the business of making and
selling it. P.
264 U. S.
513.
2. It is the duty of the court to determine whether a regulation
challenged under the Constitution has a reasonable relation to, and
a real tendency to accomplish, the purpose for which it was
enacted.
Id.
3. A statute of Nebraska prescribes the minimum weights of
loaves of bread to be made or offered for sale in the state, and,
in order to prevent the palming off of smaller for larger sizes,
fixes a maximum for each class, by allowing a "tolerance" of only
two ounces per pound in excess of the minimum, the weights to be
determined by averaging loaves of each class in lots of
twenty-five, and to apply for twenty-four hours after baking. The
evidence demonstrated that owing to normal evaporation from bread
under conditions of temperature and humidity often prevailing in
Nebraska, it is impossible to manufacture good bread in the regular
way without frequently exceeding the prescribed tolerance and
incurring the burden of penalties prescribed by the statute, and
that compliance would necessitate selection of ingredients making
an inferior and unsalable bread, or wrapping the loaves, although
wrapping is not required by the statute and unwrapped loaves are
wholesome food in much demand by consumers.
Held, that, in
the circumstances, the provision that average weights shall not
exceed these maxima is not necessary to protect purchasers against
imposition and fraud by short weights, and not calculated to
effectuate that purpose, and that it subjects bakers and sellers of
bread to restrictions essentially unreasonable and arbitrary, and
is therefore repugnant to the Fourteenth Amendment. P. 514.
108 Neb. 674 reversed.
Error to a judgment of the Supreme Court of Nebraska affirming a
decree dismissing a suit brought by bakers and sellers of bread
against state officials to restrain enforcement of a statute
regulating the weights of loaves.
Page 264 U. S. 510
MR. JUSTICE BUTLER delivered the opinion of the Court.
An act of the Legislature of Nebraska, approved March 31, 1921
(Laws 1921, c. 2, p. 56) [
Footnote
1] 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,
Page 264 U. S. 511
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.
Page 264 U. S. 512
The brief of the Attorney General states that the law is
concerned with weights only. The state supreme court said (108 Neb.
674, 678):
"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.] The statutory margin or tolerance being two 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. . . .
[P. 680.] 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
Page 264 U. S. 513
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,
226 U. S. 588.
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,
152 U. S. 137;
Meyer v. Nebraska, 262 U. S. 390,
262 U. S. 399.
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,
214 U. S. 105;
Dobbins v. Los Angeles, 195 U. S. 223,
195 U. S. 236;
Connolly v Union Sewer Pipe Co., 184 U.
S. 540,
184 U. S. 556;
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
Page 264 U. S. 514
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, [
Footnote
2] 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 breadmaking, and makes better bread than does flour of low
or inferior gluten content. Exact weights and measurements used
Page 264 U. S. 515
in doughmaking 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 breadmaking. 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
Page 264 U. S. 516
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 two 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 nine ounces for a one pound loaf, and the sale of a
loaf weighing anything over eighteen 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 one ounce
Page 264 U. S. 517
out of the spread of eight ounces, and as to the pound loaf the
benefit of only two 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 nine and a half or a ten ounce loaf
for a pound (16-ounce) loaf, or an eighteen and a half 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.
[
Footnote 1]
"An act establishing a standard weight loaf of bread for the
state of Nebraska and providing a penalty. . . ."
"Section 1. Department of Agriculture to Enforce. It shall be
the duty of the department of agriculture to enforce all provisions
of this Act. It shall make or cause to be made all necessary
examinations, and shall have authority to promulgate such rules and
regulations as are necessary to promptly and effectively enforce
the provisions of this Act."
"Sec. 2. Bread, Standards of Weight. Every loaf of bread made or
procured for the purpose of sale, sold, exposed or offered for sale
in the State of Nebraska shall be the following weights
avoirdupois, one-half pound, one pound, one and one-half pounds,
and also in exact multiples of one pound, and no other weights.
Every loaf of bread shall be made of pure flour and wholesome
ingredients, and shall be free from any injurious or deleterious
substance. Whenever twin or multiple loaves are baked, the weights
herein specified shall apply to each unit of the twin or multiple
loaf."
"Sec. 3. Tolerance, How Determined. A tolerance at the rate of
two ounces per pound in excess of the standard weights herein fixed
shall be allowed, and no more, provided that the standard weights
herein prescribed shall be determined by averaging the weight of
not less than twenty-five loaves of any one unit and such average
shall not be less than the minimum nor more than the maximum
prescribed by this Act. All weights shall be determined on the
premises where bread is manufactured or baked, and shall apply for
a period of at least twenty-four hours after baking. Provided, that
bread shipped into this state shall be weighed where sold or
exposed for sale."
"Sec. 4. Penalties for Violation. Any person, firm or
corporation violating any of the provisions of this Act shall be
punished by a fine of not less than ten dollars nor more than one
hundred dollars or by imprisonment in the county jail for not more
than thirty days. Provided, however, that, upon the second and all
subsequent convictions for the violation of any of the provisions
of this Act such offender shall be punished by a fine of not less
than fifty dollars nor more than one hundred dollars, or by
imprisonment in the county jail for not more than ninety days."
[
Footnote 2]
Wheat bread dough is the dough consisting of a leavened and
kneaded mixture of flour, potable water, edible fat or oil, sugar
and/or other fermentable carbohydrate substance, salt, and yeast,
with or without the addition of milk or a milk product, of
diastatic and/or proteolytic ferments, and of such limited amounts
of unobjectionable salts as serve solely as yeast nutrients, and
with or without the replacement of not more than three percent, of
the flour ingredient by some other edible farinaceous substance.
Definition of Joint Committee on Definitions and Standards,
September 28, 1922, and approved by the Association of American
Dairy Food and Drug Officials, October 5, 1922, and by the
Association of Official Agricultural Chemists, November 17,
1922.
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, 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
Page 264 U. S. 518
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
Page 264 U. S. 519
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
palm 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. [
Footnote
2/1]
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
Page 264 U. S. 520
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 breadmaking 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. [
Footnote 2/2]
It was similar experience
Page 264 U. S. 521
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),
and that which prohibits the sale of liquor containing more than
one-half of one percent of alcohol (sustained in
Ruppert v.
Caffey, 251 U. S. 264).
Compare Armour & Co. v. North Dakota, 240 U.
S. 510.
In January, 1858, the late corporation of Washington adopted an
ordinance fixing a standard weight loaf, and establishing an excess
tolerance. [
Footnote 2/3] 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. [
Footnote 2/4] Prior
thereto, many different kinds of legislation had been tried in the
several states and cities
Page 264 U. S. 522
with a view to preventing short weights. [
Footnote 2/5] 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. [
Footnote 2/6] When, in 1917, the United
States Food Administration was established, pursuant to the Lever
Act (Act Aug. 10, 1917, c. 53, 40 Stat. 276), the business of
baking came under its supervision and control, and provision was
made for licensing substantially all bakers. [
Footnote 2/7] The protection of buyers of bread against
the fraud of short weights was deemed essential. [
Footnote 2/8] After an investigation which occupied
three months, the Food Administration issued the regulations
Page 264 U. S. 523
by which licensees were to be governed. No standard weight bread
statute had then been enacted in
Page 264 U. S. 524
any state. [
Footnote 2/9] 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.
[
Footnote 2/10] This provision
remained in force unchanged until the licensing system was
abrogated on December 19, 1918 (after the Armistice). [
Footnote 2/11]
Page 264 U. S. 525
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. [
Footnote
2/12] During the years 1919 to 1923, standard weight bread
laws, containing the prohibition of excess weights, were enacted in
12 states. [
Footnote 2/13]
Similar bills were introduced in others. [
Footnote 2/14] Congress enacted such a law for the
Page 264 U. S. 526
District of Columbia. [
Footnote
2/15] Hawaii and Porto Rico did likewise. [
Footnote 2/16] The National Conference on Weights
and Measures indorsed a similar provision. [
Footnote 2/17] 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. [
Footnote 2/18] 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. [
Footnote
2/19] In Nebraska, the demand for the legislation under review
was general and persistent. It was enacted
Page 264 U. S. 527
after a prolonged public discussion carried on throughout the
state as well as in the legislature. [
Footnote 2/20] 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. [
Footnote 2/21] It is shown by the experience
Page 264 U. S. 528
of the several communities in which the provision has since been
in operation: Chicago, [
Footnote
2/22] California, [
Footnote
2/23] Ohio, [
Footnote
2/24]
Page 264 U. S. 529
Indiana, [
Footnote 2/25] and
the District of Columbia. [
Footnote
2/26] The value of the prohibition is shown also by the fact
that, after
Page 264 U. S. 530
extensive application and trial, it has been endorsed 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
Page 264 U. S. 531
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, [
Footnote
2/27] that it does not require a higher degree of skill than is
commonly available to bakery concerns, [
Footnote 2/28] and that it does not expose honest
Page 264 U. S. 532
bakers to the danger of criminal proceedings. [
Footnote 2/29] 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. [
Footnote 2/30] In Nebraska, it is two. In some states,
the weight is taken of the individual loaf. [
Footnote 2/31] 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. [
Footnote 2/32] In some, where an average
of 25 is taken, the tolerance is
Page 264 U. S. 533
smaller. [
Footnote 2/33]
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 [
Footnote 2/34]), which can be inexpensively
supplied. [
Footnote 2/35]
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,
208 U. S.
419-420;
Dorchy v. Kansas, ante, p.
264 U. S. 286. 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
Page 264 U. S. 534
with this conflicting evidence we have no concern. [
Footnote 2/36] 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.
[
Footnote 2/1]
See Charles C. Neale, "Weight Standardization of
Bread," 13 Conf.Weights and Measures, pp. 115, 116; C.J. Kremer,
"Bread Weight Legislation and Retail Bakers," 16 Conf.Weights and
Measures, p. ___; Hearings on H.R. 4533, Feb. 18, 19, 1924, pp. 11,
12.
Compare 4 Conf.Weights and Measures, pp. 18, 19; 5
Conf.Weights and Measures, p. 113; 1914 Wisconsin Dairy, Food and
Weights and Measures Dept., Bul.No. 14, p. 18; 1920 New Jersey
Weights and Measures Dept., p. 18; 1921 Chicago Weights and
Measures Dept. p. 4.
[
Footnote 2/2]
A similar policy, enacted by statute or regulation, is applied
to fish, pork, milk, gasolene, hay, fruits, vegetables and other
commodities.
See Maryland, Laws 1817 (Session of December,
1817, to February, 1818) c. 114, § 1. New York Laws 1910, c. 470,
§§ 5a, 5b; Laws 1912, c. 81, §§ 240, 252; 1911 Weights and Measures
Dept. p. 46. Maine, 1913 Pub.Laws, c. 81, § 1; 1916 R.S. c. 37, §
20. Arizona, Civ.Code 1913, pars. 5510-5546. Massachusetts, 1921
Gen.Laws, c. 94, § 85, and chapter 98, § 15.
See
specifications and tolerances adopted by the department of weights
and measures in Arizona, 1921; California, 1914, 1915, 1919, Report
of Dept. Weights and Measures, 1917-1918, p. 65; 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 § 4 of the Standard Container
Act Aug. 31, 1916, c. 426, 39 Stat. 673; specifications and
tolerances adopted by the Conference on Weights and Measures, 1915,
1916, 1920.
And see Report, Conf.Weights and Measures,
1911, pp. 127, 129; 1913, pp. 278, 284, 289; 1914, p. 57
et
seq.; 1916, p. 130
et seq.; 1919, p. 169
et
seq.; 1920, p. 110.
Compare Turner v. Maryland,
107 U. S. 38,
107 U. S. 50-51,
note,
107 U. S. 53
note,
107 U. S.
54-56.
[
Footnote 2/3]
Permitted a tolerance in excess of 2 ounces on the 1-pound loaf,
3 ounces on the 2-pound loaf, and 4 ounces on the 4-pound loaf. The
ordinance, promulgated by the mayor and aldermen of the late
corporation of Washington, January 7, 1858, was not questioned
until August 31, 1908. In
District of Columbia v. Hauf, 33
App.D.C.197, it was held that the Organic Act of February 21, 1871,
16 Stat. 419, repealed this ordinance by implication. Up to the
date of the decision, its operation had been entirely satisfactory.
See statement of W. C. Haskell, 5 Conf.Weights and
Measures, pp. 19-22.
[
Footnote 2/4]
See Hearings on H.R. 4533, Feb. 18, 19, 1924, p. 18; 5
Conf.Weights and Measures, pp. 26-29.
[
Footnote 2/5]
See Mayor and Aldermen of Mobile v. Yuille, 3 Ala. 137;
Kansas v. McCool, 83 Kan. 428;
Guillotte v. New
Orleans, 12 La.Ann. 432;
Commonwealth v. McArthur,
152 Mass. 522;
People v. Wagner, 86 Mich. 594;
Paige
v. Fazackerly, 36 Barb. 392. Also brief for plaintiff in error
(appendix) in
Schmidinger v. Chicago, 226 U.
S. 578.
Compare Harwood v. Williamson, 1
Sask.L.Rep. 66.
[
Footnote 2/6]
See Report Chicago Dept. Weights and Measures, 1913, p.
6; 1917, p. 6; 1918, p. 3.
See also 1911 New York Dept.
Weights and Measures, p. 46; "Weights and Prices of Wheat Bread in
Massachusetts," compiled by Director of Standards, Jan. 1, 1924.
Compare Report Conf. on Weights and Measures, 4, pp. 18,
19; 6, p. 47; 8, pp. 18, 19; 9 pp. 20, 22; 14, pp. 30, 35. The new
ordinance in Chicago is operating successfully.
See 1921
Chicago Dept. Weights and Measures, p. 4; 14 Conf.Weights and
Measures, p. 36.
[
Footnote 2/7]
See 1917 Report U.S. Food and Fuel Administrations, pp.
10-11, 36-38.
[
Footnote 2/8]
The license regulations issued by Herbert Hoover, with the
approval of the President, on November 16, 1917, were "worked out
to a large degree with the bakers themselves with the cooperation
of the Federal Trade Commission and the Agricultural Department."
See Letter of Herbert Hoover to the President, Nov. 6,
1917. They were aided by a consumers' committee. The Food
Administration had also the results of an investigation, which had
been theretofore conducted by Benj. R. Jacobs of the Bureau of
Chemistry, on the marketing of bread in the City of Washington. In
his "Preliminary Report, B.R. Jacobs to Duncan McDuffie, Aug. 14,
1917," he recommended:
"The standardization of the loaf of bread by weight . . . (c)
because, when weights are declared, they are made in such small
size type that it is very difficult for the consumer to see it, and
also when the weight is declared the bakers seem to enter into an
agreement whereby they all mark the same weight on the bread
regardless of the size, thus nullifying to a great extent the value
of this declaration."
The "Preliminary Report on the Bread Problem, September 29,
1917," of Duncan McDuffie, includes the following recommendation
(p. 47).
"The Food Administration is charged not only with seeing that
the public secures its bread at the lowest possible price, but
that, in making its purchases of this commodity, it receives a
square deal. In my opinion, both these objects can best be obtained
by permitting bread to be sold only in units of fixed weight. As
these units, I recommend loaves weighing, 12 hours after being
baked, not less than 16 nor more than 17 ounces, and not less than
24 or more than 25 1/2 ounces, and multiples of both these
weights."
Ordinances in force at that time, in Chicago, Dallas, Detroit,
Jackson, Minneapolis, Seattle, Tacoma, and Washington, and the
statutes of Kansas, Idaho, Nevada, and North Dakota provided for a
few standard size loaves, and some of these provided, further, that
the loaves must be labeled with the weight, if not in these units.
See Appendix. Referring to such regulations, the report
says (p. 49):
"Many of these regulations permit the manufacture of bread of
other sizes provided that bread is labeled with its exact weight.
Tolerances are also permitted in some instances on account of
shrinkage of weight due to evaporation of the moisture contained in
the bread. Many of these regulations provide merely that bread
shall not be produced in units weighing less than those fixed. The
result of this regulation has been that bakers labeled the bread
with the unit weight next below its actual weight, thus making
standardization ineffective."
"In many instances, these regulations have not produced
satisfactory results. This may be attributed to lack of
universality, evasion on the part of the baker, or failure of the
law to provide an upper as well as a lower limit of weight. There
is no reason to think that a regulation providing that bread shall
be sold in units of fixed weight with a limited upward variation to
provide for inequalities of evaporation and scaling, if applied
universally, will not prove an effective protection of the public
and assist in reducing the cost of bread through fixing competition
on price alone."
See "Report of the Federal Trade Commission on Bakery
Business in United States," Nov. 3, 1917 made at the request of Mr.
Hoover, and published by the United States Food Administration with
"Report of Bakery Section of Food Administration," November, 1917.
In the latter, Duncan McDuffie (pp. 20, 21) recommended the
following regulation as to weights:
"All bread should be baked in loaves weighing, unwrapped, 12
hours after baking, not less than 16 nor more than 17 and not less
than 24 nor more than 25 1/2 ounces and multiples thereof. Any
greater variation in weights than those indicated may defeat the
whole object of standardization."
[
Footnote 2/9]
See "Preliminary Report on the Bread Problem, Sept. 29,
1917," Appendix. In 1616, the California state superintendent of
weights and measures promulgated a regulation fixing a standard
weight loaf and permitting a tolerance in excess. It was not
enforced, because of the opinion expressed by the Attorney General
that the regulation was beyond the scope of the official's
authority.
See 1915-16 Calif.Dept. Weights and Measures,
pp. 63-66. In 1917, due to the influence of the bakers of the
state, the legislature passed an amendment to the California
weights and measures law which would clearly prevent the state
superintendent from fixing a standard weight loaf. An ordinance
fixing a standard weight loaf with an excess tolerance was prepared
by the state superintendent and was
"enacted in all large counties, cities, and many towns
throughout the state, and has been effective in the uniform
enforcement of a standard of weight for bread."
1919-20,
op. cit. pp. 30-31. In 1921, a law was passed
incorporating these same features. Act June 2, 1921, c. 704.
[
Footnote 2/10]
The first "Rules and Regulations Governing Licensees
Manufacturing Bakery Products," effective December 10, 1917, issued
by the United States Food Administration, adopted the
recommendation of the November report, which limited the tolerance
for excess weights to one ounce in the pound.
[
Footnote 2/11]
In some other respects, the regulations were changed from time
to time.
See "Revised Rules and Regulations," etc.,
effective February 1, 1918, pp. 14, 15; "Special License
Regulations, No. XIII, Manufacturers of Bakery Products," including
May 3, 1918, Rule 2, p. 8; "Special License Regulations, No. XIII,
Manufacturers of Bakery Products," Second Issue, effective
September 1, 1918, Rule 2, p. 5.
[
Footnote 2/12]
Washington changed from a law permitting the sale of any weight
bread, provided that it is properly labeled, to a law fixing a
standard weight loaf with an excess tolerance.
See Laws
1913, c. 52, § 9; Laws 1923, c. 126, § 1. West Virginia, Utah,
Nevada, Detroit, and Milwaukee desire to do likewise.
See
1922 W.Va. Dept. Weights and Measures, pp. 14, 15; 1920 Utah Dept.
Weights and Measures, p. 61; 13 Conf.Weights and Measures, pp. 188,
189; Hearings on H.R. 4533, March 3, 1924. In New Jersey, the
department of weights and measures opposed a law similar to the
Massachusetts act which embodied an alternative provision.
See Report Dept. Weights and Measures, 1921, p. 20; 1922,
p. 14.
[
Footnote 2/13]
See Indiana, Laws 1919, c. 56, § 9; Montana, Laws 1919,
c. 155, § 1; Oregon, Laws 1919, c. 82, § 1; South Dakota, Laws
1921, c. 239, § 1; California, Laws 1921, c. 704, §§ 1, 2;
Connecticut, Laws 1921, c. 261, §§ 2, 3, 4; Nebraska, Laws 1921, c.
2, §§ 2, 3; Ohio Laws 1921, §§ 16, 17, pp. 604, 607; Texas,
Gen.Laws 1921, c. 63, p. 129 (Vernon's Ann.Civ. St. Supp. 1922,
Art. 4595 1/4
et seq.); Massachusetts, Laws 1922, c. 186,
§§ 1, 2, 3; Washington, Laws 1923, c. 126, § 1, Rem.Comp. Stat §
11612; Wisconsin, Laws 1923, c. 123, §§ 1, 2.
[
Footnote 2/14]
Standard weight bread legislation was recommended in the reports
of the departments of weights and measures in Arizona, 1922, pp.
13, 14; District of Columbia, 1914, pp. 3, 6; 1916, p. 4; 1917, p.
6; Maine, 1913, p. 1; Massachusetts, 1916, p. 16; 1917, pp. 14, 15;
1919, p. 14; New Jersey, 1913, p. 24; 1916, p. 11; 1920, p. 18;
1921, p. 22; 1922, p. 14; New York, 1911, pp. 12, 40, 41; Oregon,
1917, p. 7; Utah, 1920, p. 61; Vermont, 1920, p. 57; West Virginia,
1922, p. 14; Wisconsin, 1916-1917, p. 137; 1919-1920, pp. 18, 34.
Bills were introduced in the legislatures of Maine, Maryland,
Mississippi, New Jersey, New York, Pennsylvania, Vermont, West
Virginia, and Wisconsin.
See 6 Conf.Weights and Measures,
p. 22; 5 Conf.Weights and Weights, p. 88; 1919-1920 Wisconsin
Weights and Measures, p. 147; 1922 New Jersey Weights and Measures,
p. 14; 1921; New Jersey Weights and Measures, p. 19.
See
Hearings on H.R. 4533, Feb. 18, 19, testimony of Congressman Brand
of Ohio, pp. 9, 10; F. C. Blenck, Bureau of Chemistry, Department
of Agriculture, pp. 11-15; F. S. Holbrook, Chief of the Weights and
Measures Division, Bureau of Standards, pp. 16-19.
[
Footnote 2/15]
See Act March 3, 1921, c. 118, § 13, 41 Stat. 1217,
amended by Act Aug. 24, 1921, c. 92, 42 Stat. 201.
[
Footnote 2/16]
See Hawaii, Laws 1919, Act 176, § 1; Porto Rico, Laws
1917, Act No. 13, §§ 1, 2, 3.
[
Footnote 2/17]
See 14 Conf.Weights and Measures, pp. 72, 73, 81; 15
Conf.Weights and Measures, p. 79.
See also 13 Conf.Weights
and Measures, p. 174. The conference changed from an alternative
measure, like the Massachusetts law, to a standard weight measure
with an excess tolerance.
See 8 Conf.Weights and Measures,
pp. 278, 289; 6 Conf.Weights and Measures, pp. 132, 133, 157.
[
Footnote 2/18]
H.R. 4533, Sixty-Eighth Congress, first session.
See
Hearing before the Committee on Agriculture, H.R. 4533, Feb. 18,
19, March 3, 1924.
[
Footnote 2/19]
See Hearings on H.R. 4533, Feb. 18, 19, pp. 11, 12, 16,
20. The opponents of the bill did not question the necessity of an
excess weight prohibition.
See Hearing of March 3,
1924.
[
Footnote 2/20]
See Nebraska state Journal, Jan. 11, 16; Feb. 9, 11,
13, 19, 23, 24; March 2, 4, 7, 8, 9, 13, 15, 16, 17, 21, 23, 30,
31; April 1, 1921.
See also Bakers' Weekly, Feb.19, 1921,
p. 52; Feb. 26, 1921, p. 42; March 12, 1921, p. 48.
[
Footnote 2/21]
"What the bakers had thought impossible before the creation of
the Food Administration worked like a charm, and the trade, being
relieved of the destructive competition in weight and the necessity
of constantly watching the juggling of weight by their competitors,
could settle down to the more important problem of furnishing the
people, even under adverse conditions, with quality bread at a
price which, despite the extraordinary and oftentimes exasperating
circumstances, made bread still the cheapest and best food on the
American table. . . . This standard weight insisted upon by the
Food Administration is one of the regulations referred to as having
been found so advantageous by the majority of bakers that, in a
great many cities, the rule has been either voluntarily adopted as
a sound business practice by the bakers or, at the instance of the
trade, has been incorporated into new after-war bakery laws and
regulations."
See 14 Conf.Weights and Measures, p. 27.
See
also Bakers' Weekly, Dec. 20, 1919, p. 49. There is a similar
movement in England to incorporate war experience -- Bread Order,
May 18, 1918, No. 547(8) -- into permanent legislation.
See Bakers' Weekly, Jan. 15, 1921, p. 40. The Montana
bakers in convention approved a law similar to the Nebraska act.
See Bakers' Weekly, Feb. 1, 1919, p. 55. The present
Oregon law was sponsored by the bakers.
See Bakers'
Weekly, March 15, 1919, p. 42. The "Federal Bread Bill" has the
approval of the retail bakers of the country.
See Hearings
on H.R. 4533, March 3, 1924.
See also statements by E. M.
Rabenold, 14 Conf.Weights and Measures, pp. 43, 74, 75; Charles C.
Neale, "Weight Standardization of Bread," 13 Conf.Weights and
Measures p. 115.
[
Footnote 2/22]
See testimony of William F. Cluett, chief deputy
inspector of weights and measures for Chicago, Record, pp.
56-59.
[
Footnote 2/23]
See statement of C. M. Fuller, sealer of weights and
measures of Los Angeles County, California, 14 Conf.Weights and
Measures, p. 37:
"The following suggestions in regard to the enforcement of bread
legislation, including tolerances, are offered as a result of 5
years' successful enforcement of a standard-weight bread law. 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. . . . In
the enforcement of this act, we have convicted 25 bakers, $535 in
fines being paid, and several thousand loaves of bread confiscated
and turned over to charity. It is interesting to note that the act
has worked out so successfully in eliminating the unfair
competition of bakers who would cut the price by selling an
underweight loaf that even those firms which were first opposed to
the idea of a standard weight bread law are now in favor of it. And
I have before me a communication from the secretary of the Southern
California Bakers' Association stating that, at a meeting of the
Wholesale and Retail Bakers' Association, a unanimous resolution
was passed endorsing this law."
See also Bakers' Weekly, Jan. 17, 1920, p. 43.
[
Footnote 2/24]
See Hearings on H.R. 4533, Feb. 18, 19, 1924, pp. 3-6,
20; also statement of John M. Mote, chief inspector of weights and
measures of Ohio, 15 Conf.Weights and Measures, pp. 88, 89, 90,
91:
"During the period of the war control of the bakers by the
United States Food Administration, it was clearly demonstrated that
it was entirely feasible for bakers to bake loaves to a uniform
size, and this is also admitted by the bakers themselves. This
indicates that the proposal to standardize the weight of loaves of
bread presents no difficulties of manufacture which may not readily
be adjusted. . . ."
"Eight months ago, the standard weight bread law became
effective in Ohio. We cannot say that this law is perfect in every
detail -- very few laws are -- but we can today realize the great
benefits of standardization. . . . On May 1, a questionnaire was
mailed to city and county sealers of Ohio, making inquiry as to the
attitude of the public and the baking industry relative to the
standard weight provision, and every reply brought the answer of
complete satisfaction to both bakers and the general public. We
cannot find that the standard of quality has been in any way
lowered due to standardization of weight. With only the two factors
of quality and price to be considered, the purchasing public is
well able to determine for itself the fairness of the prices
charged. With hearty cooperation of 98 percent of the baking
industry, and having the support of the general public, we can
safely say this is one of the best statutes enacted in Ohio in
recent years."
See also 126 Northwestern Miller, pp. 908, 1390.
[
Footnote 2/25]
See I. L. Miller, "Results of the Indiana Model Bakery
Law," Bakers' Weekly, Jan, 15, 1921, p. 47. 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; that the size of the loaf does not grow smaller in greater
proportion than the price; that the law has been a protection to
the consumers and has the approval of at least 98 percent of the
bakers.
See also Bakers' Weekly, Feb. 7, 1920, p. 67. The
Indiana Bakers' Association unanimously adopted a resolution
expressing satisfaction with the operation of the standard weight
bread law of Indiana, and offered their assistance and the benefit
of their experience to other states attempting to settle the
question.
See 15 Conf.Weights and Measures, p. 90.
See
also Hearings on H.R. 4533, Feb. 18, 19, 1924, pp. 3-6; 12
Conf.Weights and Measures, pp. 32, 33.
[
Footnote 2/26]
See testimony of George M. Roberts, superintendent of
weights and measures for the District of Columbia, Hearings on H.R.
4533, Feb. 18, 19, 1924, p. 51:
"I am firmly of the opinion that the law is very well enforced
in the District of Columbia. . . . I had totaled up the other day a
list of weights that came into my office in one day, for 200 and
some odd loaves, I think it was 250 loaves, and, of course, the
weights would vary a little; but I do not believe that there were a
dozen of those loaves that were out of the legal tolerance. My
recollection is that none of them was out more than one-tenth of an
ounce. The average weight was 16.03 ounces. That indicates to my
mind how the law is being observed here. The bakers generally,
while they are opposed to the law, were very much disturbed when
the law was first passed, and made strenuous efforts to have it
amended. Congress did not amend it. So far as I know, the law has
proven very satisfactory. I cannot speak for the bakers, but I do
not recall that I have ever had a complaint come into my office
from a consumer about the law. They seem to be very well satisfied,
and the law is very well observed. The bakers have gone along and
observed the law very well. We have found it necessary to institute
very few prosecutions, and those only for very minor infractions of
the law against a few small bakers. . . ."
[
Footnote 2/27]
Standard weight legislation does away with the necessity for
frequent pan changes.
See Bakers' Weekly, Nov. 29, 1919,
p. 37. The prevailing bread prices in Ohio and Indiana are 8� for a
16-oz. loaf and 12� for a 24-oz. loaf. In New York, the same prices
are charged for loaves running two oz.s short on the average.
See Hearings on H.R. 4533, Feb. 18, 19, 1924, pp. 3, 8.
Prevailing bread prices in Wisconsin are 7-10� for the 16-oz. loaf
and 10-15� for a 24-oz. loaf; California, 7 1/2-9� and 10-13�;
District of Columbia, 9� and 13�; Chicago, 8� and 12�; Texas, 8�,
and Washington, 10� and 15�. But in Iowa, the prices in the larger
cities are 9� and 12� for a 16-oz. and 24-oz. loaf, and in the
smaller cities 8-10� for a 14-oz. loaf and 13� for a 20-oz. loaf;
Idaho, 10� and 15�; Nevada, 10� and 15�; Virginia, 9� and 16� (18
oz.).
See information received by Director, Bureau of
Standards, Dec.1923-Jan., 1924, on file March 25, 1924.
[
Footnote 2/28]
While there are a large number of uncertain factors connected
with the art of breadmaking, reasonable legislation fixing standard
weights is practicable.
See C.J. Kremer, "Bread Weight
Legislation and Retail Bakers," 16 Conf.Weights and Measures, p.
___. At the hearings on the "Federal Bread Bill" this was not
disputed.
See Hearings on H.R. 4533, March 3, 1924. It is
generally conceded that the baker can predetermine with great
accuracy the weight of a loaf of bread immediately after baking.
See 14 Conf.Weights and Measures, p. 77; 15 Conf.Weights
and Measures, pp. 80-84. Neither can it be reasonably contended
that a 2-oz. tolerance is not enough to cover shrinkage after
baking. For, pursuant to a resolution adopted at the Fourteenth
Conference on Weights and Measures (page 87), a series of
scientific experiments were conducted.
See 15 Conf.Weights
and Measures, pp. 80-84. The committee on specifications and
tolerances recommended to the conference a tolerance not in excess
of the one here allowed.
See id., p. 79. An investigation
on the shrinkage of white bread, conducted in the District of
Columbia by the Bureau of Standards, showed that the shrinkage,
during the first 24 hours, from a one-pound loaf, round top, not
wrapped, was 4.4%; round top, wrapped, 2.7%; lunch, not wrapped,
5.7%; one and one half pound loaf, round top, not wrapped, 4.1%,
and round top unwrapped, 3%.
See Hearings on H.R. 4533,
Feb. 18, 19, 1924, pp. 62-64. On file at the Bureau of Standards,
March 15, 1924, is a record of a large number of experiments
conducted in Chicago to the same effect.
See also Mass.
Dept. Weights and Measures, Bul. No. 4, March, 1915, pp. 7-8.
[
Footnote 2/29]
Bakers have found very little difficulty in complying with the
measures where enacted.
See Hearings on H.R. 4533, Feb.
18, 19, 1924, p. 31, March 3, 1924; 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.
[
Footnote 2/30]
California, Connecticut, and old Washington corporation
ordinance.
See Hearings on H.R. 4533, Feb. 18, 19, 1924,
pp. 12-18, 38.
[
Footnote 2/31]
Connecticut, District of Columbia, Indiana, Texas, and old
Washington corporation ordinance.
[
Footnote 2/32]
Chicago (
see letter of Wm. F. Cluett to Geo. K.
Burgess, Director, Bureau of Standards, Dec. 28, 1923),
Connecticut, Massachusetts, Model Bread Law (
see 15
Conf.Weights and Measures, p. 79), Washington, and Wisconsin.
[
Footnote 2/33]
Ohio and "Federal Bread Bill."
See also Hawaii,
Montana, Oregon, and Washington.
[
Footnote 2/34]
Wrapping is required by statute or regulation in Louisiana,
Maine, Maryland, New Hampshire, Ohio, South Dakota, Vermont, and
West Virginia.
See Hearings, H.R. 4533, Feb. 18, 19, 1924,
pp. 11, 16.
[
Footnote 2/35]
See Bakers' Weekly, Oct. 16, 1920, p. 61; Hearings on
H.R. 4533, Feb. 18, 19, 1924, pp. 16, 20, March 3, 1924; "Report of
Federal Trade Commission on Bakery Business in United States," Nov.
3, 1917, p. 13.
[
Footnote 2/36]
For arguments in favor of standard weight loaf law,
see
Bakers' Weekly, Nov. 29, 1919, p. 37; Dec. 20, 1919, pp. 37, 49;
April 24, 1920, p. 69; June 26, 1920, p. 49; July 3, 1920, pp. 39,
40; Aug. 7, 1920, p. 55; Jan. 22, 1921, p. 62. For the arguments
urged against the legislation,
see Northwestern Miller,
Vol. 122, pp. 1381, 1401; Vol. 123, p. 406; Vol. 126, p. 398;
Bakers' Weekly, May 8, 1920, p. 65; May 15.1920, p. 61. It is
interesting to note that none of the writers contend that the
tolerance provision is unreasonable.
See also Hearings on
H.R. 4533, Mar. 3, 1924. 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. 1373; also Bakers'
Weekly, Jan. 11, 1919, pp. 51, 54; Jan. 18, 1919, pp. 35, 45; Feb.
1, 1919, pp. 46, 50, 55; March 15, 1919, pp. 42, 52; Jan. 17, 1920,
p. 43; March 27, 1920, p. 57; May 22, 1920, p. 40; June 12, 1920,
p. 57; June 26, 1920, pp. 45, 49; Aug. 7, 1920, p. 39; Jan. 1,
1921, pp. 39, 40; Jan. 22, p. 37.