1. A State has power to prescribe the standards for the
containers in which horticultural products are marketed. P.
296 U. S.
2. An administrative order pursuant to a statute of Oregon
prescribed containers for raspberries and strawberries of specified
capacity and of a form commonly used in that State, and fixed the
against the complaint of a manufacturer
of containers of another type who made them in another State and
sold them in Oregon:
(1) That the regulation could not be considered arbitrary or
capricious in that it prescribed the form and dimensions, since
these bore reasonable relation to protection of buyers and to the
preservation and shipment of the fruit. Pp. 296 U. S.
(2) Whether it was necessary in Oregon to provide a standard
container for raspberries and strawberries, and, if so, whether the
one adopted should have been made mandatory involve questions of
fact and policy the determination of which rests in the legislative
branch of the state government -- a determination which may be
made, if the constitution of the State permits, by a subordinate
administrative body. P. 296 U. S.
(3) The regulation is not in conflict with the Standard Baskets
and Containers Acts of May 21, 1928, and August 31, 1916. P.
296 U. S.
(4) The regulation did not operate to grant a monopoly to
manufacturers of the type of containers prescribed, and, moreover,
the grant of a monopoly, if otherwise an appropriate exercise
Page 296 U. S. 177
the police power, is not void as denying equal protection of the
law. P. 296 U. S.
(5) As the regulation does not affect the importation of other
kinds of containers, but only their use after they have come into
the State and been taken from the original packages, it is not an
undue burden on interstate commerce. P. 296 U. S.
3. A bill attacking, under the Federal Constitution, a state
regulation dealing with a subject clearly within the police power
cannot be sustained on allegations which are merely general
conclusions of law or fact; the facts relied on to rebut the
presumption of constitutionality must be specifically set forth,
and a motion to dismiss, like a demurrer, admits only those which
are well pleaded. P. 296 U. S.
4. Every exertion of the police power, either by the legislature
or by an administrative body, is an exercise of delegated power,
and, where the regulation is within the scope of authority legally
delegated, the presumption of the existence of facts justifying its
specific exercise attaches alike to statutes, to municipal
ordinances, and to orders of administrative bodies. P. 296 U. S.
5. There is added reason for applying this presumption to a
regulation adopted after notice and public hearing, as required by
statute. P. 296 U. S.
6. The validity of a general regulation made by an
administrative body under a state statute is not dependent upon the
making of special findings of fact when not required by the
statute. P. 296 U. S.
7. On an appeal from the District Court in a suit attacking a
state regulation under the Federal Constitution, and based also on
diversity of citizenship, held
that there was no occasion
to consider an objection under the constitution of the State which
was not made or discussed below or included in the assignment of
errors. P. 296 U. S.
9 F. Supp. 341 affirmed.
Appeal from a decree dismissing the bill in a suit to set aside
an order fixing standard containers for raspberries and
strawberries. The jurisdiction of the District Court was based on
constitutional grounds and also on diversity of citizenship.
Page 296 U. S. 178
MR. JUSTICE BRANDEIS delivered the opinion of the Court.
This suit was brought in the federal court for Oregon, in May,
1934, to enjoin enforcement of an order of the Department of
Agriculture of that state, dated May 3, 1933, entitled "Standard
Containers for Fruits and Vegetables." [Footnote 1
] The plaintiff, Pacific States Box & Basket
Company, is a California corporation which manufactures there fruit
and vegetable containers. The defendants are the Director of
Agriculture and the Chief of the Division of Plant Industry of
Oregon. The jurisdiction of the District Court was invoked both on
the ground of diversity of citizenship and on the ground that the
order, and the statutes purporting to authorize it, violate rights
of the plaintiff guaranteed by the Federal Constitution. The case
was heard upon plaintiff's motion for a preliminary injunction and
defendants' motion to dismiss the bill on the ground that it does
not state facts sufficient to entitle the plaintiff to relief. The
court denied the injunction and dismissed the bill. Pacific
States Box & Basket Co. v. Gehlar,
9 F. Supp. 341.
Oregon Code of 1930, § 18-2902 and § 18-2903, as amended by
Oregon Laws 1931, c. 136, and 1933, c. 225, authorize the Chief of
the Division of Plant Industry, after investigation and public
hearing and subject to the approval of the Director of Agriculture,
to fix and promulgate "official standards for containers of
horticultural products" "in order to promote, protect, further and
develop the horticultural interests" of the state. After a
Page 296 U. S. 179
has been prescribed, these statutes make it unlawful for anyone
to pack for sale or transport for sale, or sell, the article in a
container unless it conforms to the standard. They make any
violation of the order a misdemeanor, and charge the Director with
the duty of enforcement.
The order challenged, so far as it prescribes containers for
raspberries and strawberries, is:
"As provided for in §§ 18-2902 and 18-2903, Oregon Code 1930,
and chapter 136, Oregon Laws, 1931, a public hearing was held in
Portland, Oregon, on the date of April 15, 1933, to consider
standard containers for fruits and vegetables. Containers for the
following fruits and vegetables were considered and
"Crate -- 24-pint hallocks, . . . Size of hallock, 2 x 5 1/4 x 5
1/4 inches outside measurements, bottom set up 3/4 inch, inside
depth 1 1/4 inches."
"Crate -- 24-pint hallocks, . . . Size of hallocks, 2 1/2 x 4
3/8 x 4 3/8 inches outside measurements, bottom set up 3/4 inch,
inside depth 1 3/4 inches."
". . . the above-mentioned containers are hereby declared to be
standard for the designated fruits and vegetables and this order
shall become effective on June 15, 1933. Provided, however, that
persons now having on hand new containers or shooks for same not of
standard sizes as hereby approved will be allowed an extension of
time until January 1, 1934, in order to make use of such
A hallock is a type of rectangular till box with perpendicular
sides and a raised bottom. It is usually made of rotary cut veneer,
taken directly from spruce logs, but is sometimes made of paper or
The plaintiff manufactures a type of container other than
hallocks. Its type, which is also used for raspberries
Page 296 U. S. 180
and strawberries, is known as tin top or metal rim. It differs
from the hallock both in shape and construction. In shape, it is
more like a cup; its sides slope outward, and it has not the raised
bottom. This cup is made from two thin strips of wood crossing each
other to form the bottom of the container and then bent upward to
form the sides, reinforced with a narrow metal strip to insure
protection of the cup and its contents, as well as to insure
uniformity of cubic measure. The plaintiff has for years sold a
part of its product of tin top cups to dealers in Oregon for
ultimate use as containers for raspberries and strawberries to be
The bill alleges "that the effect" of the order is to prevent
the sale by plaintiff for use in Oregon of
"the metal top variety of containers or cups with the solid
bottom . . . because dealers who formerly purchased such baskets
from Plaintiff have been warned by officials . . . that they would
not be allowed to sell strawberries or raspberries in any
other than that prescribed; that it has no facilities for
manufacturing hallocks, and that, because of the expense of
installing the requisite machinery and the cost of transporting the
appropriate supplies to its plant, it is impracticable for it to
arrange to make hallocks.
The claim is that, since the order prescribed hallocks as the
only permissible type of container, its necessary effect is to
exclude containers of the plaintiff's manufacture from use in
Oregon, and therefore the order violates its rights: (a) under the
due process clause of the Fourteenth Amendment, because the order
is arbitrary, capricious, and not reasonably necessary for the
accomplishment of any legitimate purpose of the police power; (b)
under the equal protection clause of the Amendment, because the
order grants a monopoly to manufacturers of hallocks; (c) under the
commerce clause, because the order imposes undue burdens on
interstate commerce. The defendants
Page 296 U. S. 181
insist that the order is an appropriate exercise of the police
power of the State; does not create a monopoly, and does not burden
interstate commerce. We think the defendants are right.
The power of a State to prescribe standard
containers in order to facilitate trading, to preserve the
condition of the merchandise, to protect buyers from deception, or
to prevent unfair competition, is conceded. Such regulation of
trade is a part of the inspection laws; was among the earliest
exertions of the police power in America; has been persistent, and
has been widely applied to merchandise commonly sold in containers.
See Turner v. Maryland, 107 U. S. 38
107 U. S. 51
Latterly, with the broadening of the field of distribution and the
growing use of containers in the retail trade, the scope of the
regulation has been much extended.
Plaintiff does not question the reasonableness of the standard
so far as it prescribes the capacity of the box or basket. Its
challenge is directed solely to the fixing of the dimensions and
the form of the container. But to fix both the dimensions and the
form may be deemed necessary in order to assure observance of the
prescribed capacity and to effect other purposes of the regulation.
It may be that, in Oregon, where hallocks have long been in general
use, [Footnote 2
] buyers at
retail are less likely to be deceived by dealers as to the
condition and quantity of these berries if they are sold in
containers of the prescribed form and dimensions. It is said that
there are 34 other styles or shapes of berry basket in use
somewhere in the United States. Obviously, a multitude of shapes
and sizes of packages tends to confuse the buyer. Furthermore, the
character of the container may be an important factor in preserving
the condition of raspberries and strawberries, which are not
Page 296 U. S. 182
perishable, but tender. A shallow container, like the hallock
prescribed, may conceivably better preserve these fruits than the
deeper cup which the plaintiff manufactures. A container with
perpendicular sides, like the hallock, may conceivably preserve
them better than a metal rim cup with outward sloping sides. And,
since the containers are to be packed and shipped in crates of 24,
the berries may conceivably be better stowed where the fruit basket
has the bottom set-up peculiar to the hallock than if it had the
flat bottom of the plaintiff's metal rim cup. Considerations of
this nature led the Colonies, the individual states, and Congress
to prescribe for many articles not only the capacity, but the size
and form, of containers. [Footnote
Different types of commodities require different types of
containers, and as to each commodity there may be reasonable
difference of opinion as to the type best adapted to the protection
of the public. Whether it was necessary in Oregon to provide a
standard container for raspberries and strawberries, and, if so,
whether that adopted should have been made mandatory, involve
questions of fact and of policy the determination of which rests in
the legislative branch of the state government. The determination
may be made, if the Constitution of the State permits, by a
subordinate administrative body. With the wisdom of such a
regulation we have, of course, no concern. We may inquire only
whether it is arbitrary or capricious. That the requirement is not
arbitrary or capricious seems clear. That the type of container
prescribed by Oregon is an appropriate means for attaining
permissible ends cannot be doubted.
The standard prescribed by the order does not
conflict with any established by Congress. The Standard Baskets and
Containers Act of May 21, 1928, c. 664, 45 Stat. 685, has no
relation to the matter here under consideration.
Page 296 U. S. 183
That statute deals solely with hampers, round stave, and splint
baskets of capacity not less than one-eighth bushel. The Standard
Baskets and Containers Act of August 31, 1916, c. 426, 39 Stat.
673, which in § 2, deals with containers for small fruits and
vegetables, prescribes merely the capacity of the containers. It
fixes the cubic contents for dry half-pint, pint, and quart. It
makes no reference to the dimensions or form of the container, and
has left to the individual States the adoption of the standards in
these respects if deemed necessary. Compare Savage v.
Jones, 225 U. S. 501
Merchants' Exchange v. Missouri, 248 U.
, 248 U. S. 368
Mintz v. Baldwin, 289 U. S. 346
289 U. S.
The charge that the order is void because it
grants a monopoly to manufacturers of hallocks is unfounded. The
plaintiff and all others are free to engage in the business which,
so far as appears, is not protected by patent or trademark and does
not rest upon trade secrets. The business is not closely
controlled, nor is it peculiar to Oregon. In 1933, at least 25
concerns were engaged in the United States in manufacturing
hallocks. Less than one-fourth of them were located in Oregon and
Washington. [Footnote 4
Plaintiff asserts that the order excludes it from the Oregon trade,
since its plant cannot be equipped to manufacture hallocks except
at a prohibitive cost, and that the spruce logs, the veneer of
which is customarily used in making hallocks, is not obtainable
except in the Pacific Northwest. Obviously these allegations afford
no support to the charge of monopoly, among other reasons, because
the order does not prescribe the material from which hallocks may
be made. They are,
Page 296 U. S. 184
in fact made, to some extent, from material other than spruce
veneer. Moreover, the grant of a monopoly, if otherwise an
appropriate exercise of the police power, is not void as denying
equal protection of the law. Compare 83 U.
16 Wall. 36; Nebbia v. New York,
291 U. S. 502
291 U. S.
The order does not unduly burden interstate
commerce. It is aimed not at the importation or sale of other type
of containers, but at their use in Oregon by packers of raspberries
and strawberries, and the later transportation and sale of the
packages. The prohibition of other types involved in prescribing
the standard is nondiscriminatory. It applies regardless of the
origin of the containers. The plaintiff is a manufacturer of
containers, not a packer or shipper of berries. It is not
prohibited from shipping its tin top containers into Oregon, nor
from selling them there. The operation of the order is intrastate,
beginning after the interstate movement of the containers has
ceased and after the original package has been broken. To sustain
this contention of the plaintiff would be to hold that its
containers, because of their origin, are entitled to immunity from
the exercise of the state regulatory power. Compare Packer
Corp. v. Utah, 285 U. S. 105
285 U. S.
Plaintiff contends that, since the case was
heard on motion to dismiss the bill, all allegations therein made
must be accepted as true, and, among others, the charge that
"there is no necessity for the particular orders relating to
strawberries or raspberries . . . based on considerations of public
health, or to prevent fraud or deception, or any other legitimate
use of the police power, and the particular container described . .
. does not of necessity promote, protect, further or develop the
horticultural interests of the State,"
and that its necessary effect is "to grant a monopoly to
manufacturers of the so-called hallocks."
Page 296 U. S. 185
The order here in question deals with a subject clearly within
the scope of the police power. See Turner v. Maryland,
107 U. S. 38
such legislative action
"is called in question, if any state of facts reasonably can be
conceived that would sustain it, there is a presumption of the
existence of that state of facts, and one who assails the
classification must carry the burden of showing by a resort to
common knowledge, or other matters which may be judicially noticed,
or to other legitimate proof, that the action is arbitrary."
Borden's Farm Products Co., Inc. v. Baldwin,
293 U. S. 194
293 U. S. 209
The burden is not sustained by making allegations which are merely
the general conclusions of law or fact. See Public Service
Commission v. Great Northern Utilities Co., 289 U.
, 289 U. S.
-137. Facts relied upon to rebut the presumption of
constitutionality must be specifically set forth. See Aetna
Insurance Co. v. Hyde, 275 U. S. 440
O'Gorman & Young v. Hartford Fire Insurance Co.,
282 U. S. 251
Hegeman Farms Corp. v. Baldwin, 293 U.
. A motion to dismiss, like a demurrer, admits
only facts well pleaded. Compare St. Louis, Kennett &
Southeastern R. v. United States, 267 U.
, 267 U. S.
It is urged that this rebuttable presumption of
the existence of a state of facts sufficient to justify the
exertion of the police power attaches only to acts of legislature,
and that, where the regulation is the act of an administrative
body, no such presumption exists, so that the burden of proving the
justifying facts is upon him who seeks to sustain the validity of
the regulation. The contention is without support in authority or
reason, and rests upon misconception. Every exertion of the police
power, either by the legislature or by an administrative body, is
an exercise of delegated power. Where it is by a statute, the
legislature has acted under power delegated to it through the
Constitution. Where the
Page 296 U. S. 186
regulation is by an order of an administrative body, that body
acts under a delegation from the legislature. The question of law
may, of course, always be raised whether the legislature had power
to delegate the authority exercised. Compare Panama Refining
Co. v. Ryan, 293 U. S. 388
and A.L.A. Schechter Poultry Corp. v. United States,
295 U. S. 495
where the regulation is within the scope of authority legally
delegated, the presumption of the existence of facts justifying its
specific exercise attaches alike to statutes, to municipal
ordinances, and to orders of administrative bodies. Compare
Aetna Insurance Co. v. Hyde, 275 U. S. 440
275 U. S. 447
Here there is added reason for applying the presumption of
validity; for the regulation now challenged was adopted after
notice and public hearing, as the statute required. It is contended
that the order is void because the administrative body made no
special findings of fact. But the statute did not require special
findings, doubtless because the regulation authorized was general
legislation, not an administrative order in the nature of a
judgment directed against an individual concern. Compare
Wichita Railroad & Light Co. v. Public Utilities Comm'n,
260 U. S. 48
260 U. S. 58
Mabler v. Eby, 264 U. S. 32
264 U. S. 44
Southern Ry. Co. v. Virginia, 290 U.
, 290 U. S.
It is argued that, under the Constitution of
Oregon, its legislature was without power to delegate the authority
to prescribe standard containers, citing Van Winkle v. Fred
49 P.2d 1140. This objection (which involves
solely a question of state law) was not made below, was not
discussed by the lower court, and is not included in the assignment
of errors filed in this Court. We have no occasion to consider it.
Rule 27(4); Blair v. Oesterlein Co.,
275 U. S. 220
275 U. S. 225
Bradley v. Public Utilities Comm'n, 289 U. S.
, 289 U. S.
The same provision concerning containers for strawberries is
incorporated also in an order dated June 1, 1933, and the prayer
for an injunction extends likewise to that order.
"Containers used in Shipping Fruits and
Vegetables," U.S. Department of Agriculture, Farmers' Bulletin No.
1579 (1934) pp. 7-9.
See Turner v. Maryland, 107 U. S.
, notes, pp. 107 U. S.
See "Production and Carry-over of Fruit and Vegetable Containers
for the Year 1933," U.S. Department of Agriculture, Bureau of
Agricultural Economics, pp. 3, 7, 16, 19, 22; ibid.
1934, pp. 2, 6. Compare
U.S. Department of Agriculture,
Farmers' Bulletin No. 1579, pp. 7-9.