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:
Certification to the Supreme Court. Under the provisions of section 7322 of the 1923 Code of Alabama, we hereby submit to the Supreme Court of Alabama for determination, the question of the validity of section 254 of the so-called 1927 Agricultural Code of Alabama. In a proceeding now pending before this court, this statute or regulation which appears in margin, contained in said so-called Agricultural Code, is attacked as being in violation of the Constitution of Alabama and of the Constitution of the United States.
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."
Response to Foregoing Certified Question by the Court of Appeals.