Leo Nebbia on the NRA

Leo Nebbia (credit)

The historian Ellis Hawley noted long ago that business critics of the New Deal seem to have discovered antistatism only after Franklin D. Roosevelt’s administration denied them the particular kind of statism they wanted.  I was reminded of Hawley’s insight and of the doubtless exasperating tendency of celebrity defendants to go off message when I read a transcription of what I assume was a handwritten original of Leo Nebbia’s letter to Hugh S. Johnson, Administrator of the National Recovery Administration.  The transcribed letter survives in box 1 of the Leverett Samuel Lyon Papers at the American Heritage Center at the University of Wyoming.

Nebbia was a Rochester grocer convicted of violating New York State’s milk control law (passed in April 1933) and fined $5 when he gave away a loaf of bread to anyone who bought two quarts of milk at the state-mandated price.  An appeal, ultimately to the US Supreme Court, soon followed.  The Court upheld the conviction in a decision announced on March 5, 1934

In her entry on Nebbia in 100 Americans Making Constitutional History, edited by Melvin I. Urofsky, Victoria Saker Woeste observes that “although no direct evidence proves that Nebbia was allied with the distributors, and purposefully violated the statute to get the law overturned, his swift prosecution and other circumstantial evidence suggest that the milk dealers were in fact involved in the litigation.”  Certainly Nebbia has since become something of a folk hero for critics of the regulatory state.  Thus, Hadley Arkes called Nebbia “an early celebrated casualty” in “the Long March toward the New Deal and a planned economy.”

What seems to have prompted Nebbia to write Johnson was a widely reported address by Donald R. Richberg on March 7, 1934, in which the NRA general counsel argued that the Supreme Court's decision had all but established the constitutionality of the National Industrial Recovery Act under the Due Process Clause.  One would prefer to have the original, but here is my rendering of the transcription:

(Blue Eagle rubber stamped
in this corner)

                                                     L. Nebbia
                                                    348 Jay St.
                                                 Rochester, NY

                                                                                             March 9, 1934

Hugh S. Johnson[:]

I see NRA Counsel use my name, for basic[.]  Well[,] for myself I am very glad that everything went that way.

I will tell something about my stories.  I was selling milk at 6¢ QT[,] then NEW YORK St[ate] set the price at 9¢ Qt.  I sold the milk at 9¢ a quart.  I gave one loaf of bread [a]way with purchases of 2 Qrt. of milk.  I thought I was doing good, to the welfare of the people, also to compe[t]e with the chain stores, [where?] even today the price of milk is chisele[d?].  I do not like to cut prices, but if I don’t cut prices I can’t stay in business.

I like NRA.  I did help a lot.  I put to work two extra boys.  I [e]nlarged my store.  I am not a rich man.  What I have all can be seen with the eyes[–]no money in the bank[;] not any under the mattress.  I served twelve months in the World War, served seven months in France.  When I got married, I had no money.  Now I have a wife and four children and a little business, to [keep?] going on in this world.

I like to say[,] if not out of order[,] to help more[,] the NRA [ought] to have all stores, large and small[,] and all neighborhood stores to be closed at six o’clock in the evening.

I hope I did [not] do anything wrong by sending this letter.

Your truly, Leo Nebbia [signed]

That is, Nebbia still thought he should have been allowed to give away that loaf of bread, but he also believed that something really ought to be done about those chain stores and that NRA should prevent grocers from selling their wares at night.