8 Div. 789. | Ala. Ct. App. | Jun 25, 1929
Lead Opinion
Defendant was convicted in the county court of Lauderdale county for violation of the bread law (Agricultural Code 1927, § 254, and regulations made thereunder by state board of agriculture).
The specific charge was that appellee did sell bread in loaves known as Pullman bread, of the weight, to wit, of fourteen ounces per loaf, and that said loaves were less in weight than the standard weight as fixed by law and by the regulations of the state board of agriculture, said regulations carrying the following provision:
"1. Any loaf of bread weighing within 10% of excess or 5% less than standard weight shall be deemed of legal weight, provided however that the average weight of twenty five or more loaves shall not be less than standard weight."
Curran appealed, and in the circuit court a demurrer was sustained to the information, and the court declared the statute unconstitutional, and the state appealed.
Upon an examination of the points of decision involved upon this appeal, we were of the opinion that said section 254 is invalid as violative of the Fourteenth Amendment to the Federal Constitution, but, this court being without authority to so declare and strike the section, we submitted the question to the Supreme Court for determination, as provided by section 7322 of the Code 1923. The certification of the question and the response of the Supreme Court thereto are as follows:
We note from the record that the lower court, by sustaining demurrer to the complaint, held the section in question to be unconstitutional. This court is inclined to the opinion that the lower court correctly so held; but, being without authority to "strike down" a statute, the question, as stated, is certified to the Supreme Court for determination pursuant to the terms of section 7322, Code 1923, supra.
CHARLES R. BRICKEN, Presiding Judge. WILLIAM H. SAMFORD, JAMES RICE, Associate Judges.
"1. Any loaf of bread weighing within ten percentum in excess or five percent less than standard weight shall be deemed of legal weight, provided however that the average weight of twenty-five or more loaves shall not be less than standard weight."
Addendum
In Burns Baking Co. et al. v. Samuel R. McKelvie, Gov., et al.,
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 *277
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,
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.