State v. Curran , 23 Ala. App. 275 ( 1929 )

In Burns Baking Co. et al. v. Samuel R. McKelvie, Gov., et al., 108 Neb. 674, 189 N.W. 383, 26 A.L.R. 24, the Supreme Court of Nebraska upheld the constitutionality of the Act of 1921 of that state, fixing the minimum and maximum weights of bread, and providing penalties for the violation thereof. A comparison of the act which is set out in the opinion of the court discloses a marked similarity in its provisions to those found in above noted section 254, the subject of this inquiry. The principle point of difference seems to be that in the Nebraska statute the question of "tolerance" is fixed in the act, while under the provision of said section 254 and section 259 of what is known as the Agricultural Code of Alabama "tolerances" are to be fixed by the state board of agriculture. It may be noted, however, that the "tolerance" fixed by the Nebraska act is more liberal to the baker than that established by the rules and regulations of the state board of agriculture of this state.

The decision of the Nebraska Supreme Court in the above-cited case was brought for review by writ of error before the Supreme Court of the United States; the insistence being that the act was violative of the Fourteenth Amendment to the Federal Constitution. The court held this position well taken, reversed the judgment, and declared the act invalid as violative of said amendment, concluding the opinion in the following language: "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." Burns Baking Co. v. Bryan, 264 U.S. 504, 44 S. Ct. 412, 68 L. Ed. 813, 32 A.L.R. 661, cited approvingly in the more recent case of Weaver v. Palmer Bros. Co., 270 U.S. 402, 46 S. Ct. 320, 70 L. Ed. 654.

So far as the application of the principles and reasoning of that decision is concerned, we can see no substantial grounds of differentiation between the act there considered and that of this state here under review. A federal question is involved, and the above-noted decision in Burns Baking Co. v. Bryan, supra, is conclusive and binding here. Upon that authority, therefore, we hold said section 254 is invalid as violative of the Fourteenth Amendment to the Federal Constitution.

Let this opinion be duly certified to the Court of Appeals.

The foregoing being conclusive of this appeal, no further comment is necessary. The judgment of the lower court is affirmed.

Affirmed.