Warren E. Burger: We will hear arguments next in 74-775, New Orleans against Nancy Dukes. Mr. Loeffelholz.
Joel P. Loeffelholz: Mr. Chief Justice and may it please the Court. The first issue presented by this matter is one of jurisdiction. We are here before this Court today under the provisions of 28 U.S.C. 1254 Subparagraph 2, which comes from the Fifth Circuit Court of Appeal. The original case being heard by the United States District Court for the Eastern District of Louisiana on an attack upon one of our city ordinances regulating street vendors and hawkers in the historical district known as the Vieux Carre or French Quarters of the City of New Orleans. That particular ordinance holds and provides that holders or permits not valid for eight previous years may not receive or apply for and get another permit for the coming year, what we would commonly call a grandfather clause. The District Court on cross motions for summary judgment held in our favor. The Fifth Circuit Court of Appeals, after placing us on their summary calendar, reversed holding that the ordinance?s grandfather clause was unconstitutional as applied. We filed a direct appeal to this Court under 1254-2. Now under 1254-2, a municipal ordinance that is well established by this time, it can be considered as a statute because 1254-2 merely provides for direct appeal from a Court of Appeals judgment, which holds a state statute invalid. The jurisprudence over the years has established one other requirement. This requirement being that the judgment of the Court of Appeals be a final judgment, and what is ?final? has indeed been an elusive question down through the jurisprudence. Most recently, after my brief was filed, this Court in Doran versus Salem Inn, Inc.did recognize the fact that this question is indeed a hard question. All of the cases that I have been able to find mainly Cox, MTM versus Baxley, North Dakota Board versus Snyder Drugs, and Miami Herald versus Tornillo seem to distill it down to one question, if the Court of Appeals does finally determine the constitutional question before it, and therefore, the question will not survive the remand and the remand has no material effect on the federal constitutional issue, then for purposes of 1254-2, direct appeal to this Honorable Court that is a final judgment.
William H. Rehnquist: Mr. Loeffelholz, will all that really is involved on this jurisdictional place whether you should come here by appeal or by certiorari?
Joel P. Loeffelholz: That is correct, Mr. Justice Rehnquist, and we would also submit that the City of El Paso case would allow you to treat this matter as a matter on certiorari as well. But at any rate, the Fifth Circuit Court of Appeals opinion did finally determine that the grandfather clause is unconstitutional as it appears in that particular city ordinance. The only thing left for the District Court to decide is whether that particular provision of the city ordinance is severable from the ordinance?s general preclusion of hotdog pushcart vendors in the French Quarter. There can be no question that the ordinance does create some form of statutory discrimination that is well established and conceded. However, not all statutory discriminations are violative of the Fourteenth Amendment as this Court has taught in many, many cases. States are afforded wide latitude in the area of regulation of their streets under their police power, and presumption of validity must be presumed at the time of the legislative enactment. To be unconstitutional, there must be some form of invidious discrimination based upon some totally arbitrary ground which bears no rational relation to the legitimate government and sought by the legislation. The case that the Fifth Circuit relied upon heavily in its decision was Morey versus Doud, and Morey versus Doud which was in 1957 sometime ago set forth four distinct requirements to be looked into before a statute is held unconstitutional. It starts out by stating a proposition that the Equal Protection Clause of the Fourteenth Amendment does not take from the state the power to classify in the adaption of police laws, but admits of the exercise of a wide scope of discretion in that regard and avoids what is done only when it was without any reasonable basis and, therefore, arbitrary. The second criteria established by Morey is that the classification, having some reasonable basis, does not offend against the Fourteenth Amendment merely because it is not made with some mathematical nicety or because, in practice, it results in some form of inequality. The third criteria is that when the classification in such law is called in question, if any state of facts, and this is important, can reasonably be conceived that would sustain it, the existence of that state effects at the time the law was enacted must be assumed. The legislative body -- we are talking about judicial restraint at this point, the legislative bodies which is the embodiment of the whole entire City of New Orleans, the Council?s judgment must be presumed to have been valid at the time that the ordinance was enacted. So, what we come down to actually --
Harry A. Blackmun: I take it you feel Morey against Doud has no application here at all.
Joel P. Loeffelholz: Well, Mr. Justice Blackmun, I feel that it has application and that it is the guiding principle. It sets forth very succinctly what the legion of cases seemed to all be saying in different ways. It sets out the requirements which we must investigate and the investigation we must proceed upon very succinctly in 1-2-3-4 terms.
Harry A. Blackmun: But you did not cite it in your brief.
Joel P. Loeffelholz: I mentioned it, I believe. I did not cite it.
Harry A. Blackmun: Well, you did in your jurisdictional statement, but I do not --
Joel P. Loeffelholz: I stand corrected.
Harry A. Blackmun: I do not recall this in your brief at all. So I assumed you felt it had no application.
Joel P. Loeffelholz: Well, I feel that as far as the law is concerned it may have application in the area of the equal protection argument, and I feel that the Fifth Circuit Court of Appeal rightly so looked at those requirements as expressed in Morey versus Doud, but their interpretation of it strongly differs from ours. What we must do, therefore, in the area of equal protection arguments is weigh the society?s interests, and the society is you and we and everyone else, against the particular individual?s interest to see if the societal interest is compelling, and this is important again and, therefore, predominant over the individual?s rights and privileges. If the state?s interest is compelling, then the legislation will and must be upheld.
William H. Rehnquist: Why are we talking about whether or not the state?s interest is compelling when you are simply dealing with ordinary economic legislation? I thought that the test you read earlier is that if any set of facts can be conceived, even hypothetically, that would justify the legislature?s action; the law will be sustained.
Joel P. Loeffelholz: Well--
Warren E. Burger: Well, it is the McGowan versus Maryland.
Joel P. Loeffelholz: That is the McGowan test Mr. Chief Justice; that is correct.
Warren E. Burger: Is that not that controls here?
Joel P. Loeffelholz: That should control. As far as our argument is concerned, we hope it controls, and Mr. Justice Rehnquist, as you pointed out, economic legislation, which is what we are dealing with here. We have a French Quarter of New Orleans and we have an area that must be regulated in some way, shape, or form and the way that it is chosen to be regulated definitely deals upon economics and finance.
William J. Brennan, Jr.: And our rationality test did not say the exception in the Illinois statute in Morey and Doud.
Joel P. Loeffelholz: No, it did not.
William J. Brennan, Jr.: And you have gotten out of syllabus, I gather, that even though it did not there, the grandfather clause here is saved by the rationality test, is that it?
Joel P. Loeffelholz: Well, that is what it boils down to, Mr. Justice Brennan. That is correct. And as far as -- if I may return for just a second to answer Mr. Justice Rehnquist?s question on the economic legislation, we do have economic legislation here. We do not have individual fundamental rights per se in question. The Levy versus Louisiana, Palmer versus Thompson, San Antonio School District versus Rodriguez, and legions of cases all held that there are no constitutional guarantees and rights to financial and economic equality, only that all persons similarly circumstanced be treated alike.
William J. Brennan, Jr.: Well I here you have, I gather, a hotdog vendor, Lucky something of that, was it not?
Joel P. Loeffelholz: Lucky Dogs, that is correct.
William J. Brennan, Jr.: Lucky Dogs, and they have been doing business in the French Quarter for eight years or more, is that right?
Joel P. Loeffelholz: 22 years.
William J. Brennan, Jr.: Well, over eight years.
Joel P. Loeffelholz: Yes sir.
William J. Brennan, Jr.: And this particular appellee has been a competitor of Lucky Dogs for only two years, right?
Joel P. Loeffelholz: No, sir, that is not correct. This particular appellee is not a competitor of Lucky Dogs.
Warren E. Burger: But they have been doing business for about two years.
Joel P. Loeffelholz: Well, it has been doing business for about two years, but if you would look at Volume 1 of the Appendix, Page 80 and 81, which is all the District Court had before it when it decided and the Fifth Circuit had before it as well. This is the entire record. The sworn affidavit, sworn affidavit of Mrs. Dukes and her only employee, Mr. Frank B. Silliker, state that their only business, and I go to the middle of the first paragraph of Mr. Silliker?s affidavit on Page 80, their only business, which business consists of selling drinks, confections, and novelties. It does not mention hotdogs. It mentions cold drinks, confections, meaning, I would imagine, candy, and novelties such as, I guess, stuffed animals, horns with buttons, whatever. It does not mention hotdogs and that is significant because in the French Quarter of New Orleans, over so many years, the hotdog peddler, peddlers, whatever you want to call them, have been distilled out to this one company and I would say that the factual determination contained in these affidavits certainly would not put Mrs. Dukes and Mr. Silliker on the same footing or on the same class as Lucky Dogs.
Speaker: Well they did find out that this is a reasonable classification that hotdogs may be classified one way and the soft drinks, peddlers, and others, is that it?
Joel P. Loeffelholz: That is correct and it is the Fifth Circuit in their decision at Footnote -- on Page 709 Footnote 2, the Fifth Circuit itself says that ?Dukes appears no longer seriously to press for an original attack on discrimination between vendors of different types of goods. In any case, we have no difficulty in concluding that such an equal protection claim on Dukes? part could not withstand analysis.? And they cite McGowan, and this is all we are saying in the instant matter that Mrs. Dukes is not within the same protective class. She is not similarly circumstanced as one of the only two people who do qualify under the ordinance of grandfather clause. Now, the economic legislation argument is important. The Fourteenth Amendment, we feel, was designed to protect those fundamental and personal rights and not economic interests and privileges. The reason behind this statute or any other statue must deal with the policy of the government and, with this in mind, the weighing test, which I have stated before, let us see what interest the City of New Orleans has in this legislation and if that interest is indeed compelling enough to overcome the incidental discrimination which is imposed.
William H. Rehnquist: Why do we weigh any interest in this Court in connection with legislation? Is that not the job for the legislature of the City Council to pick out an interest and support it? What if they wanted to give Lucky Dogs a monopoly in the Vieux Carre? Is there anything wrong with that under the Fourteenth Amendment?
Joel P. Loeffelholz: No, sir, there is not as long as the interest of the Council was rationally guided and it, thus, further a legitimate governmental interest.
William H. Rehnquist: How do we determine what a legitimate governmental interest is?
Joel P. Loeffelholz: Well I would submit, Mr. Justice Rehnquist, as you pointed out, that it is not the function of the judiciary to determine that. I listened --
William J. Brennan, Jr.: Morey and Doud says that kind of monopoly could not withstand the Fourteenth Amendment?
Joel P. Loeffelholz: That is correct, but I believe that Morey versus Doud stated that that type of unregulated monopoly could not withstand it.
William J. Brennan, Jr.: Well, the only one allowed to sell without license whenever they were involved, I have forgotten, was American Express Co.
Joel P. Loeffelholz: That is correct, but I think that --
William J. Brennan, Jr.: By name, American Express.
Joel P. Loeffelholz: And Lucky Dogs is absolutely not mentioned in that ordinance and there is a very good reason for that because of the fact --
William J. Brennan, Jr.: Well, did the ordinance say of anybody except Lucky Dogs?
Joel P. Loeffelholz: Yes, sir, there is one other person. His name is -- his name escapes me, but it is an ice cream vendor in the Jackson Square area who had been there for some 20, some odd years. He was the only other person which was saved by the ordinance, and I--
William J. Brennan, Jr.: Any vendor, no matter what he sells in the French Quarter, I gather, who has been selling over eight years can continue its selling. It is only vendors.
Joel P. Loeffelholz: That is correct and I think we have to look at the overall scheme, Mr. Justice Brennan, because --
William J. Brennan, Jr.: Right, but that distinction there, I gather, is street vendors no matter what they sell, and would, if they were selling over eight years I gather, be allowed to continue selling. Is that right?
Joel P. Loeffelholz: That is correct, except there is a general preclusion of all vendors in the French Quarter except certain classes of vendors as the ordinance so states. I will admit that the ordinance may be inartfully drawn but not so inartfully drawn as to render it unconstitutional. Certainly, there are certain vendors, I believe, provided for in the ordinance of other than hotdogs and hotdogs, actually, is not provided in the ordinance, and I think you have to read both closes at the same paragraph of the ordinance to show, just as you stated, that if you have been there for more than eight years you cannot steady. If you have not, you will not be allowed in that area, and now the central business district which encompasses the French Quarter as well.
William J. Brennan, Jr.: What is her name, Mrs. Dukes, she does not sell ice cream.
Joel P. Loeffelholz: As far as I know, she does not. I do not know. Confections may be ice cream. It depends upon your interpretation. Factually, I do not know. At any rate, the weighing process must be had here and, as I started to point out before when the City Council passed this ordinance, we must under Morey versus Doud as it teaches us, we must presume that their rationale was valid and invoke that presumption at the time the ordinance was passed. The reason behind the ordinance is very clear; it is crystal clear really. The historic district or the French Quarter is the oldest historic district continually in existence that I am able to discover in this country. It is 260 years old. It has been the same since its beginning. It has not changed appreciably other than I would imagine paving of streets etcetera, but it has not changed appreciably, and it is the quaint unique very delicate mixture of both residential and economic interests in that area which make it the heart of the city.
Thurgood Marshall: You cannot change it. The law says you cannot change them. When you pave and put up the same railing you did that.
Joel P. Loeffelholz: That is correct, sir. The constitution of the State of Louisiana provides for the establishment of Vieux Carre Commission, which governs the exterior of all buildings, streets, etcetera in that French Quarter and you cannot change it by law. It is that important. It is the heart; the economic heartthrob of the City of New Orleans is the French Quarter. The whole City surrounds the French Quarter. Hotel and motel construction in the French Quarter is a good indication of real estate values and is a good indication of the economic conditions and important contribution. This area makes to the City of New Orleans tax base. The areas close to the City?s employment and entertainment centers as well and many small businesses are established there to cater to the needs of local residents who live there as well as the tourist who flow there and citizen alike by the thousands daily. So, we have a fairly unique situation as much you can as I pointed out in my brief to the Georgetown area of Washington and what it does for the City of Washington D.C. And, the single most important factor in the French Quarter?s economy is its retailing. A large number of the mini antique shops, gift stores, theaters, restaurants, nationally famous bars, restaurants, etcetera are centered here. And, support for these establishes comes mainly from tourists and citizens who are charmed by this historic district. So, we are talking about not only favoring someone over someone else; we are talking about national historic preservation, and we have a vested interest in this national historic preservation. If that is not a valid and compelling interest, we do not know what is and when the Fifth Circuit declined to even balance the test and said it is enough that the constitutional infirmities that they saw overcame any balancing necessary. I believe they erred gravely, because this area is the most important area of the City of New Orleans. The City definitely, therefore, has a valid propelling interest in maintaining the French Quarter?s physical, social, and economic potential. Preservation and protection to be of any significance at all must encompass both the physical and functional elements of the French Quarter that contribute to its identity and environmental unity. You cannot just say like, Mr. Justice Marshall, as you pointed out, we will let the buildings stay the same and leave everything else unregulated, because if you did that then people would probably come there, both citizen and tourist alike, and say, ?well, the building sure are pretty, but I am being troubled and hustled and jostled on the street by so many street peddlers or whatever,? that they would not come back. And, it would begin to deteriorate.
Harry A. Blackmun: Everything you say, would it not be applicable as applicable if not more so if these street peddlers were all eliminated, and you had no Grandfather Clause? Is this not the crux of your problem?
Joel P. Loeffelholz: This is the crux of our problem, Mr. Justice Blackmun, and as I would state, that it may well be in the regulatory scheme of things that after Lucky Dogs and this other fellow failed to qualify, go out of business or whatever, there will be no peddlers in the French Quarter on the streets, which we maintain we can constitutionally regulate.
William J. Brennan, Jr.: Lucky Dogs, they have more than one of these carts?
Joel P. Loeffelholz: I believe they have about 17 or 18. They definitely have more than one.
William J. Brennan, Jr.: Is it a corporation or a --
Joel P. Loeffelholz: Yes, sir, it is a corporation.
William J. Brennan, Jr.: Likely to be quite a long time that that has legislative monopoly, is it not?
Joel P. Loeffelholz: It has been there 22 years and you are correct when you say it may be a legislative monopoly in so far as hotdog peddlers are concerned.
William J. Brennan, Jr.: And what about this other vendor, the ice cream vendor?
Joel P. Loeffelholz: He may be out of business. He is an individual in the Jackson Square area who sells ice cream, very colorful individual inside. People seek him out to photograph, etcetera.
Harry A. Blackmun: Is there any limit on the number of the carts for Lucky Dogs within 125?
Joel P. Loeffelholz: No, sir, Mr. Justice Blackmun, there is no limit. Again, this is what the Fifth Circuit seemed to be saying when they talked about -- excuse me -- in their decision that the City may well regulate in another way than that which was accomplished, such as limiting the number, the size, the way they looked, etcetera, but, this is the judicial legislation and we feel strongly that the presumption of the City Council must override that judicial legislation, and judicial restraint should be practiced in this particular matter.
Lewis F. Powell, Jr.: The question I wanted to ask you is, let us assume for a moment that Dukes had gone into business in the Latin Quarter at precisely the same time that Lucky Dogs went into business and that both conducted business in substantially the same manner. Would the City Council of New Orleans have had authority to decide which one of those two vendors should remain in business?
Joel P. Loeffelholz: Well, Mr. Justice Powell, under this ordinance obviously it would make no difference, but under the hypothetical -- I think, possibly under the Ladue decision if it was, and in the decisions that float from the Laude, if it was determined in the legislative body?s wisdom that the maintenance of one individual over another would further the industry and that the competition would kill the industry, then I believe that that was a legitimate and valid and rationally guided decision, and it certainly would be within their power under those cases to favor one over the other. We do not have that situation here but, in answer to your question, I believe we could validly enact such type of legislation.
Lewis F. Powell, Jr.: So that the grandfather clause aspect of this case really is immaterial to your position in theory.
Joel P. Loeffelholz: In theory, it is. Yes, sir, it is.
Potter Stewart: What cases said those cases.
Joel P. Loeffelholz: La Ladue.
Potter Stewart: La Duke?
Joel P. Loeffelholz: It is Ladue Local Lines versus Bi-State and Nebbia versus New York are cited in my brief.
Potter Stewart: All right, thank you.
Joel P. Loeffelholz: Simply stated, therefore, when a weighing process is involved affecting the long range economic welfare of an entire city and in the shape of the nation cities are in today, we will all recognize that we must give some form of judicial recognition to the legislature?s wisdom in this area, because cities today are in bad financial shape. And so, we must weigh the city?s interest as opposed to the short range desires of one individual and, therefore, the judgment of the City Council which is the representative of the people must, in this matter, be given wide latitude and liberal construction unless it is patently offensive to the notions of equal protection and fair play which, we submit, it is not. I would reserve any further time I have for rebuttal if necessary.
Warren E. Burger: Mr. Marcal.
Joseph Neves Marcal III: Mr. Chief Justice and may it please the Court. I would like to first begin by pointing out that when you consider the legislative history to this permit law, it takes on an entirely different aspect as presented by the City. This is not simply an identification of a public interest sending out of bids, obtaining people to bid on a lucky draw push cart or whatever maybe that particular interest. This legislative history, as I have tried to point out and outline in my brief, is nothing but an indication to me of what I would, in best terms, describe as legislative chicanery and I follow this permit ordinance through other controversies, and if I can backup and demonstrate first to the Court, as I have tried to touch in my brief, where the City of New Orleans is doing something other than it would pretend in this situation. That is, preserve the charm and beauty of Vieux Carre. Firstly, the City of New Orleans long ago, in 1942, treated with its permit ordinance in a legitimate effort to regulate peddlers on the street and people who generally go about the streets of New Orleans hawking their wares or attempting to sell their wares. It was not about until around 1970, as I treat in my brief, that the City first began to regulate such things as religious activity, benevolence, and education amid the streets of the Vieux Carre. It is no coincidence that at the same time that the City took upon itself to legislate and actually prohibit religious activity on the streets of Vieux Carre which precipitated a case before the Eastern District of Louisiana, which I did handle and was successful in denouncing that particular ordinance as it restricted religious activity. But they also took upon themselves to begin to create -- first, they created exemptions. They said ?generally, all permits are banned from the French Quarter except the following exemptions?, and this is where they began their scheme, the discriminatory scheme. Now, whether or not that was correct or not, I am not going to deal with it at this time. That is not the issue here, but I am giving the Court, hopefully, an idea of the background reiterating this background. They said ?all permits are banned with the exception of the following:? Paragraph 5 which is the important and crucial paragraph dealing with hot tamale pushcarts, and hot tamale and hotdog pushcarts, and alike. They were satisfied with this for a time. Now, at the time that they passed this ordinance, which is in the latter part of the 1971, Nancy Dukes was operating her pushcart selling food, stuffs, hotdogs, cotton candy, confections and alike on the street. She was selling hotdogs.
Potter Stewart: Your brother on the other side has pointed to an affidavit in this record indicating that your client was not in direct competition of Lucky Dogs, that her pushcarts indeed did not sell hotdogs.
Joseph Neves Marcal III: That is a term of a phrase, Justice Stewart, which I feel is unfortunate. I did not supervise the confection of that document, but --
Potter Stewart: That is what the record shows.
Joseph Neves Marcal III: But that is what the record shows undoubtedly. It does. My understanding and appreciation was that she was selling hotdogs among other things.
Speaker: We have to decide this on the record.
Joseph Neves Marcal III: That is correct.
Potter Stewart: Therefore, so far as Judge Goldberg?s opinion for the Court of Appeals states, and it does state in the first sentence that your client maintained a pushcart business in the Vieux Carre of New Orleans selling hotdogs, drinks, confections, and novelties. He has simply mistaken so far as the record goes, when it says hotdogs, has he not?
Joseph Neves Marcal III: Not as far as the record and as I understand it, Mr. Justice.
Potter Stewart: Well, where in the record does it show?
Joseph Neves Marcal III: The record, my understanding, it was before the lower court Judge Gordon and he did consider that and it is --
Potter Stewart: The only part of the record to which, bearing on this, to which we have been directed is the affidavit to which your brother directed us. Now, if there anything else in the record indicating otherwise, please, I would be interested in knowing. Otherwise this --
Joseph Neves Marcal III: It is inarticulately termed and that is the only explanation I can offer this Court. It is inarticulately and within confection was hotdog.
Warren E. Burger: More than inarticulate, it just is a conflict, direct conflict that is what the Court of Appeals sought.
Joseph Neves Marcal III: I was responsible for the Court of Appeal.
Harry A. Blackmun: Did you mention that in the Court of Appeal in oral argument or any agreement that, at that time Nancy Dukes was selling hotdogs?
Joseph Neves Marcal III: There was no stipulation before the Fifth Circuit Court of Appeals.
Harry A. Blackmun: Where did the Court of Appeals get that?
Joseph Neves Marcal III: It obtained it from my brief. I handled the brief before the Fifth Circuit Court of Appeals and it was my understanding based --
Harry A. Blackmun: Was your oral argument in the Court of Appeals mistaken?
Joseph Neves Marcal III: No, Your Honor. There was no oral argument.
Harry A. Blackmun: But it was obtained from your brief.
Joseph Neves Marcal III: That is correct, apparently so, because that was my understanding. I did not represent Ms. Dukes before the lower court, and that was my understanding based upon the records and documents I had in my file. There are several statements contained in the record indicating this to me and I had reason to believe that it was --
Potter Stewart: Perhaps you will have opportunity at once time to find them and pay your attention to them.
William J. Brennan, Jr.: Page 84 of the record, something called Defendant?s Separate Statement of Material Facts. That is assigned by your brother and that states that she was engaged in the sale and distribution of foodstuff, drinks, confections, and novelties. What is that separate statement of material facts?
Joseph Neves Marcal III: That was the material facts submitted by the City in --
William J. Brennan, Jr.: Submitted to whom?
Joseph Neves Marcal III: Submitted to the lower Court, the District Court.
William J. Brennan, Jr.: Well, just this stuff and at least some foodstuff in addition to drinks, confections, and novelty. Whether this is significant or not, I am not sure.
Potter Stewart: Well, I have in mind counsel the very first proposition stated in Nebbia against New York leading case cited by your brother states no more than a well-established law in any area. I read it as a basis for attacking a discriminatory regulation. Under the Equal Protection Clause of the Fourteenth Amendment, the party complaining must show that he himself is adversely affected by it. Now perhaps, as I say, during lunch time, you could --
Joseph Neves Marcal III: The reading of the record and the stipulations, it left me with the conclusion that she was selling hotdogs among other foodstuffs. She does not concentrate. She never has and never suggested that she sold merely hotdogs; she sold other foodstuffs, and, thus, she has the two-prong attack. Unfortunately, the first attack, that is the discriminatory treatment as to the other exemptions was the only attack contained in the original complaint, subsequent in an amendment compliant with the amendments brought on by City Council that was indicated that the grandfather clause was also objectionable and, of course, there were also statements of material facts contained in the record.
Harry A. Blackmun: Well, the record does show she sells something more than hotdogs.
Joseph Neves Marcal III: No, they only sell hotdogs. My client sells foodstuffs generally which, again, inarticulately termed in the stipulation. As I said, I had no supervision over the confection of the lower court pleadings. I was in the Fifth Circuit and it was my understanding from --
Thurgood Marshall: But you are stuck with it.
Joseph Neves Marcal III: That is correct, Mr. Justice Marshall, I am stuck with it.
Thurgood Marshall: What Mr. Justice Stewart, my brother Stewart, was trying to tell you over lunch time, can you find something in this record that says hotdogs?
Joseph Neves Marcal III: I certainly hope I can.
Thurgood Marshall: Well, we are getting a little leeway on Frankfurter.[Laughter]
John Paul Stevens: What does the word ?confection? mean? That is pretty --
Joseph Neves Marcal III: I would think that those sugar-based foodstuffs that would be generally sold. I have relied heavily on foodstuffs in arguing this. By the way, there was no indication that, to my knowledge before the Fifth Circuit, of an objection to the statement -- throughout my brief before the Fifth Circuit that we were dealing with hotdogs and it only comes before Your Honors now. I think this issue could have been pointed out before the Fifth Circuit, at least, by my brother opponent, if I make it back to what I consider it as a treatment of the facts in this case as it relates to the law. First, the city dealt with its exemptions and they said all permits are banned with the following exemptions, and Paragraph 5 was the exemption which dealt with the hot tamale and hotdog pushcart. They said you could obtain a permit to do this in the French Quarter area. Well, low and behold, my client acting under the assumption that they have authority not only to sell hotdogs, they took it upon themselves, other foodstuffs, but they were selling hotdogs at the time of her arrest. One of her employees, in January of 1972, was arrested for selling hotdogs and foodstuffs in the Vieux Carre. In the face of this very specific Paragraph 5 exemption from the general ban in the French Quarter. And, of course, this made it very wary. As indicated in the record, these charges were ultimately dismissed. Subsequent to that, in April of 1972, there appears the grandfather clause which says that all persons as of January of 1972 -- it was retroactive though passed in April of ?72. All persons prior to January of ?72 who have not operated in the Vieux Carre area for more than eight years cannot obtain any permits aside from the fact that they did create some exempt. They still had the exemptions there. Now, this lawsuit was filed in August of 1972. Subsequent to that time, the City again amended its statute and deleted Paragraph 5, the hotdog and hot tamale pushcart exemption. I submit that that is an indication that they had a particular specific design as to hotdog and hot tamale pushcart. They wanted to favor them very specifically. Now, why did they not do the same thing for the flower vendors in the Quarter? They are exempted. I think that is in Paragraph 4 below by Paragraph 45 or 35 or something like this. No, they concentrated on the hotdog and the hot tamale pushcart exemption, because obviously they saw the conflict there that we could not, at one hand, grant them an exemption but then, on the other hand, take it away with the eight-year grandfather clause.
Harry A. Blackmun: That ordinance is not -- That was replaced by the present ordinance.
Joseph Neves Marcal III: That is correct. I do not understand the question, Justice Blackmun.
Harry A. Blackmun: Excuse me.
Warren E. Burger: We will resume there at 1:00. Mr. Marcal, you may continue. You have about 18 minutes remaining.
Joseph Neves Marcal III: Thank you, Mr. Chief Justice. Mr. Chief Justice and may it please the Court. As to the mention of foodstuffs and hotdogs in the lower court, the statement of material facts at Page 78 of Appendix Volume 1, submitted by the City, indicates in a statement made by then attorney representing Ms. Dukes, Okla Jones, that plaintiff Nancy Dukes does business under her name with Louisiana concession, and is engaged in sale and distribution of foodstuffs, drinks, confections, and novelties. And, at Page 84 of the same Volume 1--
William J. Brennan, Jr.: I think on 78, paragraph 5 says -- no, I beg your pardon. In fact, it has reference to the ordinance provision, does it not?
Joseph Neves Marcal III: That is correct, Mr. Justice Brennan.
William J. Brennan, Jr.: I am sorry.
Joseph Neves Marcal III: And at Page 84, Mr. Loeffelholz, then still representing the City, indicated the same thing in a separate statement of material facts that plaintiff Nancy Dukes was engaged in the sale and distribution of foodstuff drinks and confections and novelties. I submit that hotdogs are within foodstuffs. Further, I also submit that whether or not -- excuse me.
Warren E. Burger: Why did Judge Goldberg then, in his opinion, so quaintly emphasized the revision of its ordinances removing hotdog vendors from the list if that is not important, if the distinction between --
Joseph Neves Marcal III: Excuse me, Mr. Chief Justice, I would submit that it was a point of reference by Judge Goldberg in the Fifth Circuit Court of Appeals, and I submit that, ultimately, it is irrelevant to these issues in so far as we have an unconstitutional statute which, I submit, not only is unconstitutional in its application, but also on its face getting to the statute itself and, aside from the arguments on jurisdiction which I have submitted in brief form and I would not dwell on that particular issue. The unusual character of this discrimination created, while it does not make it subject to the language of the Court cited in NAACP versus Button or any such cases where they are dealing with the elective franchise, those very, very fundamental rights. Nevertheless, I submit that the language of Morey versus Doud, and nothing is taken away from Morey by McGowan as I submit. I argue to the Court that there must be some relationship between t object sought in this statute and the discrimination created by the statute. It is --
William H. Rehnquist: How do you know what the object sought is in the statute?
Joseph Neves Marcal III: The object is stated by the City on appeal, Justice Rehnquist, i.e., to preserve the charm and beauty of the Vieux Carre. It is beyond myself to understand. I do not understand how eight years, as I pointed out in the brief, spreading the mustard on hotdog somehow, rather, is going to contribute more to the charm and beauty of the Vieux Carre than merely one year or a year-and-a half of doing the exact same thing on the part of Mrs. Dukes.
William H. Rehnquist: What if they just wanted one hotdog peddler of Vieux Carre?
Joseph Neves Marcal III: Very well if that is what they wanted, what they could have done, which they did not do and this statute does not do, they could have set standards of behavior for hotdog salesmen, which promote the charm and beauty of the Vieux Carre.
William H. Rehnquist: What if the City Council sits down and decides ?we do not want five well-behaved hotdog vendors; we want one well-behaved hotdog vendor.? Is there anything unconstitutional about that?
Joseph Neves Marcal III: I would suggest that that would be a regulation and that opportunity would be given to all individuals to apply for that position to be the one well-behaved hotdog vendor.
William H. Rehnquist: Is that a constitutional requirement? Who owns the astrodome in New Orleans?
Joseph Neves Marcal III: It is the Superdome.
William H. Rehnquist: Superdome.
Joseph Neves Marcal III: It is owned by the State of Louisiana.
William H. Rehnquist: Well, does the State of Louisiana have to have public bidding on its concessions there or can it just pick somebody out and say ?the Superdome can only accommodate one concessionary. You are it.?
Joseph Neves Marcal III: There is a great deal of question as to whether or not they have complied with Louisiana law, but my understanding is that there is a requirement for public bidding in Louisiana
William H. Rehnquist: Well, supposing there were not, as a matter of federal constitutional law, would there be requirement for public bidding?
Joseph Neves Marcal III: I think that the operation that Morey versus Doud, McGowan, and the language of this Court consistently reiterate and would come into play, that when you seek to regulate someone the right to earn a living which is certainly one of the privileges and immunities granted to each individual citizen of this country, you must base your discriminatory scheme upon some rational basis which promotes what you are trying to protect, your public interest created. And, I do not think that any ordinance, any City Council, any state legislature can simply decide that it is going to favor one man over another person for no other reason other than it decides to favor him. Now, I suspect that the City Council, I feel that the City Council, only had one purpose and it was not to promote the charm and beauty of the Vieux Carre. It was simply to favor Lucky Dogs. And, I point to the legislative history behind this particular ordinance. It does not speak of a deliberation about what is the public interest in the Vieux Carre, what should we do about this problem? It is taken for granted by myself that it is one of the interests of the City of New Orleans to protect the Vieux Carre. However, the manner in which they proceed, that is simply saying ?well, if you have been for eight years it is alright, you can continue to be there.? Now, how that promotes, how that can be made to promote in anyone?s mind that the charm and beauty of the Vieux Carre is beyond me? There are no standards as to the design and the decor of these pushcarts or the hotdogs, what type of hotdogs, what grade of hotdogs? There are no standards of behaviour for the hotdog salesman. There are not even minimal health standards applicable to the sale of hotdogs, which somehow or rather would promote the charm and view of the Vieux Carre. There is none of this. All we have is a rather colored legislative history, which I detailed in my brief before this Court and before the Fifth Circuit, which I might add, Your Honors, was not mentioned before the lower court in any detail whatsoever. The first time that United States Court of any moment had before it the legislative history was before the Fifth Circuit Court of Appeal. Before the lower court, and I did not represent this lady before the lower Court, there was not one mention of the legislative history. There was not one detail on how this particular ordinance evolved into its present state. There was no --
Warren E. Burger: Whose fault is that?
Joseph Neves Marcal III: Excuse me, Your Honor?
Warren E. Burger: Whose fault is that and what does it have to do with our issues now?
Joseph Neves Marcal III: The issues now, I would submit that the legislative history is very important to the Court?s consideration because I think it, in and of itself, belies the statement that this particular ordinance promotes the charm and beauty of the Vieux Carre. There was nothing in that ordinance. If anything, there was something, there was a damming trend apparent in the ordinances to simply get rid of what the City of New Orleans considers undesirables. In one case, they thought it was the Hare Krishna people going about the Vieux Carre. In another instance, it happens to be the flower people. All of these exemptions did not come about merely because the City of New Orleans decided that these exemptions promote the charm and beauty. Each one of them practically has a story behind it. The ice cream vendor. A story of litigation, the flower salesman had a long history of litigation behind him. This is not such a thoughtful objective consideration of what is in the best interest of the charm and beauty of the Vieux Carre. I only point that out because much is made of the charm and beauty of the Vieux Carre. I think the legislative history belies that besides the Act itself. There were no standards set, there was no reasonable relationship between the discrimination, i.e., if you have been there for eight years you can sell hotdogs but you cannot if you have been any less. And, the charm and beauty of the Vieux Carre, how is it promoted? Being a lifelong resident of the City of New Orleans, I can say, as I have stated in the brief, that these hotdog pushcarts in no way contribute to the charm and beauty. I think that much was made in the appendices provided by myself in the jurisdictional statement in the City of New Orleans, attached to its brief, of the character of these pushcarts. They do not lend it to the charm and beauty of the Vieux Carre, which is that most of the architecture goes back to the 1700s and the 1800s as New Orleans was then. It has been preserved. And then, we have what subsequently followed and what I mentioned in the brief that the City expanded the operation of this ordinance as grandfather clause, not only it went beyond the Vieux Carre area, it went to the central business district. Now, as it stands, though it was not the case when this case was decided in the lower court, and I point this out to demonstrate that this is a bogus suggestion made by the city that this promotes the charm and beauty. Now, the grandfather clause operates not only in the Vieux Carre, but over the central business district which has no relationship. There is nothing charming or beautiful about concrete and asphalt. And the City continues to do things in past ordinances subsequent to this which really contradict their position here taken today, and I think the Court should be apprised of that. Now, she cannot even sell, Ms. Dukes cannot even sell in the Central Business District. Now, there might be a different reason for that. I do not know. Who knows, why? But I think --
Warren E. Burger: Is that in the record?
Joseph Neves Marcal III: That is in the record. I cited those particular ordinances and put them in my Appendix.
Warren E. Burger: Is that she is not, in fact, engaged in business there?
Joseph Neves Marcal III: I stated in the brief, Mr. Chief Justice, that she is not in there though it is not in the record because at the time she could have possibly gone into the central business district, but I point this out simply to reiterate the point that this is not a serious position taken by the City of New Orleans that somehow or rather allowing a hotdog salesman to be in any place in the City simply because he has been there eight years which just happens to coincide with the fact that there is no one who has been there longer than eight years who was selling hotdogs or any other thing. That does not somehow aid to the charm and beauty of the Vieux Carre. I mean, they first said the reason for this legislation and, I would submit, that they are not making a suit to fit a man. They are taking a man, that is Lucky Dogs, and having him fit the law. And, it is an afterthought, and that is all that this is. It is nothing more than a bear-face monopoly, and it is not like the situation of Ladue cited by my brother opponent. In so far as there, you had a situation of a creation of monopoly, a statewide monopoly for the transit system, granted there was a legitimate state interest to maintain a transit system, which was reliable, which could be controlled by state agency. In that situation, undoubtedly, they were bids put out. Somebody had to qualify for that position or whatever. There were qualifications and there were standards set. Here, we do not have any of that. All of a sudden, in the middle of April of 1972, they passed a law retroactive to, January of ?72, and said ?everybody who was here for beyond eight years passed, in going back to January of 1972, can stay here. And, Ms. Dukes, you have only been here for two years and you cannot stay here.? That is irrational. To allow these people to do this would allow them to run rush shot over other individuals of the callow of Mrs. Dukes who obviously, I think the Court can take notice, is not financially well here and is a small person as opposed to Lucky Dogs. And I would say, as to monopolies, they are generally created only after an interest is established, an interest which, here, protection of the charm and beauty of the Vieux Carre, but still you can not -- though you can establish a monopoly, you still cannot get away from the language of Morey v. Doud and McGowan. You have to establish some rational relationship between the discrimination and the particular purpose of the law. There has to be some supportive facts that support this discrimination. And, here, we find none, except that it is suppose to support the charm and beauty of the Vieux Carre. Using some of the language of Judge Goldberg, it is inconceivable to me, how favoring a venerable hotdog vendor with the skins of eight seasons over one with merely the skins of two seasons, somehow or other promotes the charm and beauty of the Vieux Carre. It does not and I would also submit, as I have touched upon before, that the statute itself, and I reiterate, establishes a monopoly for a lucky business, that is Lucky Dogs. It gives no opportunity to anyone else to provide a hotdog which is better, able to promote the charm and beauty of the Vieux Carre. If you would assume that a hotdog can somehow or other promotes the charm and beauty of the Vieux Carre. And also, it creates a close class. There is no possibility, as pointed out by Judge Goldberg, though it usually, in the Morey v. Doud situation you had there someone who was identified in the Act. As Judge Goldberg pointed out in his decision before the Fifth Circuit, it is a matter of record that the only person who could possibly qualify for this would be Lucky Dogs, mean that there was just nobody else who could possibly ever qualify for this. And, Judge Goldberg took notice of this in his decision in the footnote. And I submit, and as I pointed out before, there is nothing which one could assume, as far as I am concerned, that a hotdog can do for the charm and beauty of the Vieux Carre by virtue of the fact that the person who is selling it has been there eight years selling it. We are not talking about as an Eslin case out of Florida, which I cited for your consideration, the situation of favoring doctors, such as doctors who would seek to be licensing, and exempt these doctors from the operation of the licensing law on the basis that they have been practicing for four years. We are not dealing with doctors. We are dealing with what has generally been considered that a transient vendor who was selling hotdogs on the street corners of New Orleans. And, there is nothing so qualifying about continually putting transient vendors in the street for eight years, which would justify this type of discrimination and go into and violate and deny Nancy Dukes her right to earn a living, which was one of the established constitutional rights and privileges. It has been established in Coryell versus Corfield, cited with approval in Shapiro v. Thompson, and noted by this Court. The right to earn a living is something you simply cannot take away from a person, and this is what this statute does without any rational basis whatsoever. If you really look at it -- and I submit further, and again in a repetition, there was nothing so unique about selling hotdogs for eight years that could somehow or other contribute more to the charm and beauty of the Vieux Carre than one selling it for merely two years.
Harry A. Blackmun: What kind of vendor?s wagon did she have? I do not find any photographs of hers as I do of the others.
Joseph Neves Marcal III: There is nothing in the record, but it is my knowledge and I have it reasonable sources that her pushcart was painted over. It had a flower arrangement of something on the side of it and it was, now, been I think dismantled that she is trying to go onto another business, though certainly, she would like to get back in Vieux Carre. It is a very lucrative area and, certainly, she would be subject to any reasonable regulations, if this statute is declared unconstitutional. Now, of course, that does not really --
Harry A. Blackmun: Nothing was made out of rig she was using.
Joseph Neves Marcal III: No, there was nothing in the record and I know of nothing as to the distinctiveness of her rig as opposed to Lucky Dogs. A Lucky Dogs is a tin arrangement which is supposedly resembling, as I think you have pictures of it in the Appendices.
Harry A. Blackmun: Yes, they are in the record, but we have them out here in front of a building, sometimes it gets in the way.
Joseph Neves Marcal III: Well, I think they are subject to reasonable regulations and that they must move on and not interfere with the flow of traffic. However, I do not think that you could simply eliminate them from the streets in favor of one person that had been there merely for eight years on --
Harry A. Blackmun: Can you eliminate them entirely?
Joseph Neves Marcal III: I would think so, if they desired, but you cannot have this type of discriminatory scheme.
Harry A. Blackmun: But you could eliminate them step by step, could you not?
Joseph Neves Marcal III: Subject to certain regulations, I would think reasonable regulations.
Harry A. Blackmun: We are going to eventually phase out all pushcart dealers. We are going to start with the ones who have been in business the least, the shortest length of time, in order to minimize the upset and, this year, these people will go out of business and the next year, some other people. Finally, in five years, everyone is going to be out of business.
Joseph Neves Marcal III: Again, I would begin with the right which is regulated, the right to earn a living, whether that is reasonable, whether that promotes the purposes.
Harry A. Blackmun: Well, you are getting into a substantive argument there.
Joseph Neves Marcal III: Correct.
Harry A. Blackmun: -- the state could not put you out of business.
Joseph Neves Marcal III: I would think that some regulations that people cannot comply, which have a reasonable, which have a basis -- excuse me -- there are regulations that certainly can be supported, can be substantiated insofar as they have some rational connexity with the desired purpose. That is, it is not in the interest of the Vieux Carre to have any pushcarts, i.e., we are going to phase them out over a period of time. I could speculate all sorts of regulations and it is difficult for me to do that. Thank you, Your Honor.
Warren E. Burger: Do you have anything further?
Joel P. Loeffelholz: Yes, sir. Mr. Chief Justice and may it please the Court. Before the lunch and break, the question was put to me or to Mr. Marcal, I cannot remember exactly which one of us, as to why or was it pointed out to the Fifth Circuit that Lucky Dogs, that Nancy Dukes was not a hotdog salesman. I would draw your attention to Volume 2 of our Appendix at Page 16 which is a reproduction of my brief to the Fifth Circuit. The bottom paragraph does so point out the fact that Nancy Dukes was not a hotdog peddler in the French Quarter.
Harry A. Blackmun: Just that she was doing confections, was she not?
Joel P. Loeffelholz: Confections. And, it was our understanding at the time of the attack originally, when it was brought in 1972, Mr. Justice Blackmun, was that this was an attack by a vendor of different forms or different types of foodstuffs or different types of things. She made the contention orally that she was going to sell sandwiches, etcetera, and nothing about hotdogs, and we are talking about semantics but nothing particularly about hotdogs per se and I think we can see by the --
Harry A. Blackmun: Is her case any better or worse whether she did or did not sell hotdogs?
Joel P. Loeffelholz: I believe --
Harry A. Blackmun: As far as this ordinance is concerned?
Joel P. Loeffelholz: I believe, Mr. Justice Blackmun, it may be in this respect, because we maintain that she is not within that protected class that she claim she carries the banner for, a hotdog salesman.
Harry A. Blackmun: Although she has been eight years, a vendor, whether or not she sells hotdogs.
Joel P. Loeffelholz: Well, it depends. As it stands today, maybe it does in the certain respect, but she claims to be within a class of people who was favored because they were there eight years, and she has only been there two and, therefore, she says she is discriminated against. This is where the Fifth Circuit started, in the very first sentence of its opinion, as Mr. Justice Stewart pointed out, under the faulty premise that she was one hotdog vendor and then it goes on in the same paragraph and the next paragraph to state that Lucky Dogs -- it implies that Lucky Dogs had been there only eight years. And, these two factors combined must be the reason that the City Council sought to favor the one over the other when, in fact, the facts do belie that. The facts are strong, in her own sworn affidavit, she sells confections, novelties, and cold drinks.
Thurgood Marshall: And foodstuffs.
Joel P. Loeffelholz: In her affidavit, she does not say that, Mr. Justice Marshall.
Thurgood Marshall: Your statement did say foodstuffs.
Joel P. Loeffelholz: That is correct because the contention she made to the District Court by her counsel, which I was compelled to answer, was that she wanted to go there and sell. She did not vend. This was the reason that her vendor was arrested, because the hotdog was accepted and he was not selling hotdogs. At that particular time, there was no eight-year -- hotdogs were accepted, they could be in there and there was no eight-year grandfather clause.
Thurgood Marshall: May I get to another point?
Joel P. Loeffelholz: Yes, sir.
Thurgood Marshall: In this protection of the French Quarter, etcetera, whether there are too many of these or you want to get a fewer numbers?
Joel P. Loeffelholz: I believe the overall regulatory scheme shall be, in the future years, to eliminate all transient vendors, street peddlers, and hawkers. And, this is one of the steps in that scheme. But there is no restriction on the number that Lucky Dogs can have, is there?
Joel P. Loeffelholz: There is no restriction at the present time.
Thurgood Marshall: So, Lucky Dogs can put out twice as many as were displaced.
Joel P. Loeffelholz: That is correct. However, I would respectfully point out --
Thurgood Marshall: Could Lucky Dogs also put out one that sold the same things that Ms. Duke sold.
Joel P. Loeffelholz: I do not believe they could under the ordinance as it now stands.
Thurgood Marshall: Why not?
Joel P. Loeffelholz: Because, I think, the policy behind the ordinance is clear. I think it is seeking to regulate vendors and eventually eliminate all of them.
Thurgood Marshall: But it said --
Joel P. Loeffelholz: As it is written, you may be correct.
Thurgood Marshall: That is why I do not understand what you are driving at if you give one man unlimited. Could Lucky Dogs buy all Ms. Dukes? business and keep it operated in his name under this ordinance?
Joel P. Loeffelholz: As far as --
Thurgood Marshall: The answer is yes.
Joel P. Loeffelholz: Maybe under the ordinance as it stands, but --
Thurgood Marshall: Well, that is what we have before us.
Joel P. Loeffelholz: Well, that is correct but we also have to look at the intention of the City Council as well. Now, since this suit has been filed in 1972, Lucky Dogs has not done any of the things that you have suggested that it might under the ordinance, okay?
Thurgood Marshall: But that is why the case is in Court.
Joel P. Loeffelholz: Well, that may be because the case is in Court and it may not be because they were under no restraint. At any rate, when his client was arrested, he was not selling hotdogs which is the only thing he could sell and, therefore, he was arrested. The Court of Appeals? opinion, we would respectfully submit, begins from the two faulty premises and flows there from the entire tenor of the opinion except for those couple of paragraphs. And, the question of grandfather clause is, in this case, illustrative of the desire not to favor any particular business but to maintain only those features which, over the years, have become landmarks in the area of the City of New Orleans, over 260 years, not to suggest that Lucky Dogs has been there that long, but all of the features, that some total of the functional and physical part of the French Quarter. It is this entire area of the City which is intentionally preserved and not individual establishments, and such intent must, must be viewed in its entirety and not as the Fifth Circuit Court of Appeals did, dissected into each of its incidental side efforts. Therefore, we urge this Honorable Court to consider such action on the part of the City that it is representing a legitimate and compelling governmental interest and the presumption, therefore, should be applied as the case law states. And judicial restraint, which is exactly the point as well, should be invoked and the Fifth Circuit Court of Appeals opinion should be overturned and the District Court?s opinion reinstated. Thank you.
Harry A. Blackmun: I take it then you stick on compelling interest.
Joel P. Loeffelholz: I would stress compelling interest. That is correct, Mr. Justice Blackmun.
Harry A. Blackmun: You go that far and you think you have to go that far.
Joel P. Loeffelholz: I believe that, in this Court, we must go that far. Thank you.
Warren E. Burger: The case is submitted.


Earl Warren: -- you may -- you may proceed, Mr. Acker.
Fred N. Acker: If the Court please, I was -- at the recess I was taking what I thought was the very extravagant claim of the Government as to their right to tax and I was countering that with the famous statement that the power to tax is not the power to confiscate, and several other things that are associated with that which I think this Court is familiar with and therefore I will not digress to go into that. The question of the penalties was not even argued. It was not even mentioned so far as the oral argument was concerned and in the briefs, I think it was given three or four lines and I was greatly amazed when the opinion was handed down that the Court spent an extravagant amount of time almost in discussing this subject. I suppose their reason for this was that while they had agreed with me in principle in unmistakable language that the power of the Government to tax was not as extravagant as they claimed it was not as great as they claimed, they gave no relief on that subject. And I thought a leap, or in a summersault that was greater than any leap since Brodie jumped off the Brooklyn bridge, but they did though to a great extent to eluciate a little-- elucidate the -- their reasons for being with the respondent in that action. Now on the affirmative side of my case as to how I would interpret the statute, I think immediately upon reading it after looking at the context of it and format of the statute and the way it is set up and it provides one penalty for not doing a thing and another penalty for not doing a thing, but we have the classic interpretation, the express mention of one thing is the exclusion of another. Now if there was ever a classic principle of interpretation for statutes or for anything for that matter, it is that great principle. In other words where one thing is expressly mentioned that is conclusive and not only do we need to go to that most apparent and evident principle of interpretation, but we can -- we can almost go to Mathematics and in using the word Mathematics, I would direct the Court's attention that that is a branch of philosophy. In other words, the whole includes all of the parts. So when I fail to do one thing, it already included all of the parts. Now it seems to me this is so evident and so apparent on logic that I stand amazed that anyone should be contending to the contrary. Now the Government's counsel had said something about the history of this case and he thought from the history of the case, they should be sustained. Well now the very fact that it was constantly changed during these intervening years, the 1943 and on itself indicates that there was a freedom out of trouble with this and when the Congress' got to 1954, our present Revenue Act, they eliminated it entirely which shows the type of public opinion that was operating at that instance. Now therefore, I want to resume and sort it somehow. I therefore think on the constructive side that the ordinary principles of interpretation would show that it should not be enlarged. I try to show that there was no ambiguity if you will read the statutes. Plainly and unmistakably, there isn't a single ambiguity in it, and all that there is, is an omission and you cannot supply an omission. It was simply something that was overlooked (Inaudible). Now I've learned a very, very long time ago, Your Honor, when you have said what you wanted to say, it is a most excellent time to sit down.


Earl Warren: Mr. Solicitor General you may --
Moore: If the Court please. At the time the Court adjourned last night, I was -- had averted to the paradox of this case, which I mentioned in the opening and that we are here because we passed a tax, the highway use tax, which was apportioned, fairly apportioned to the use of the highways. Now, as an illustration it was open to the New York legislature to measure this tax by a number of ways. They could have had a flat fee imposed for the use of the highways, a yearly flat fee. They could have a gross receipts tax measured by the gross receipts of the carrier. All of these taxes are recognized as much easier to administer. Now, if the New York legislature had adopted this type of legislation. It's certainly the teaching of the (Inaudible) case and the Railroad Reorganization cases I cited yesterday, that a lien, such as the lien in question, would be perfectly valid and constitutional. And I think that that is impliedly admitted in the appellants brief because they state that there are taxes where apportionment is not practicable. And it seems to be the rationale here, that because we have passed a tax, imposed the tax in a fair way and apportioned it to the use of the highways that we have now lost our sovereign right to effectively collect it. And I don't --
Felix Frankfurter: If I may just say, I don't understand the equations you're making --
Moore: Well, let me see the --
Felix Frankfurter: -- before the flat tax, no matter how high would be with reference to the vehicle that uses the highway. I don't suppose that flat tax anywhere, the tax flat on one car or one vehicle for the use of the highway by other vehicles.
Moore: Well, I think --
Felix Frankfurter: Was there such a tax?
Moore: Let me use this illustration, Your Honor. The California gross receipts tax is a tax based on the gross receipts of the carrier. Now, there is no relation between that tax and the individual use of the highway by a particular truck.
Felix Frankfurter: Well, that's a very -- all taxes are taxes people. We may speak of them as taxes on things but ultimately a person is taxed for something and a gross tax on a carrier is the most conventional and obvious kind of a tax, they tax this on gross, subject to the common cause, a problem which we haven't got or is the next (Inaudible) I don't see what they (Inaudible) in fairness to this.
Moore: Well, the analogy I'm trying to make, Your Honor, is that if we'd had this gross receipts tax and we had asserted our lien against these vehicles, which were in the possession of the carrier, then they couldn't come in and say, “Now, you must apportion this lien and assert your lien only for that part of the tax that our vehicles were instrumental in building up," which is just what they are doing here.
Felix Frankfurter: We have some different problem to get it, maybe that if -- if a conditional vendor will walk into your -- put property in the possession of a lessee or a vendee or a mortgagee and the things is -- the thing is so intermingled with the -- make a separation that that's that, a status in the crime upon imposing a tax that it could impose a valid tax because intermingling of ownership bars separation. But here, it is exquisitely -- to exquisitely put a tax on vehicles, the use of the highway by something which a vehicle had no relation to the user.
Moore: If Your Honor please, I -- I would characterized the tax mainly if a law does as a tax on the carrier measured by the use of the vehicles, I think, there is some distinction. It is not on the trucks themselves and the only point I try to make on this and I'll -- I'll leave it with this, is that -- it seems to me that -- that to argue that a constitutional question arises because of the possibility of apportioning the enforcement of the tax when one does not exist, when the tax can't be enforced is not supported by the precedence, it's not supported by logic and I don't believe it's supported by reason because the consequences would be that if -- if effective enforcement means are open only if you have a tax which is not measured accurately like our is that the states would be driven to this other form of taxation.
Felix Frankfurter: Does New York has any legislation which surrounds upon conditional sales? Is that unequal and can we say or infer that this expresses a policy by New York adverse to conditional sales?
Moore: Well, I -- I wouldn't say that expresses a general policy and I'm coming, that leads right into my next point which is the property interest here affected. I would say that it expresses a policy of New York, that New York will not recognize a reservation of legal title in the hands of a person who puts a nine-ton truck in the possession control and use of a carrier, that it will not recognize that reservation of title to defeat its lien for the collection of the taxes.
Felix Frankfurter: (Voice Overlap) -- what I wanna know is whether -- that's merely stating another word, the legal question in this case. What I want to know is whether there is any policy on the part of the State of New York which indicate that selling the conditional sale in accordance leads to abuses because under cover of conditional sales, true ownership may be covered.Is there anything in the -- in New York --
Moore: I would say --
Felix Frankfurter: -- that looks upon those transactions as -- as potentially made fair in this commercial transactions?
Moore: I would say not, Your Honor. I think the only policy in New York is expressed in the Uniform Conditional Sales Act and it is our view of this --
Felix Frankfurter: You have to be -- if they like just have to be filed or anything?
Moore: It -- it has to be filed as any -- any conditional sale is.
Felix Frankfurter: But roughly speaking, would you -- would I be wrong in saying that New York doesn't look upon conditional sales and other than legitimate, conventional, how many place commercial transaction?
Moore: Your -- Your Honor, it's quite correct in the statement. Now, turning to the property interest here involved, we come down to the point that, that basically what this case comes to is whether the action of the New York legislature in cutting off this reservation of security title is an arbitrary and unreasonable action. And that must be judged certainly in the light of the people who are being cut off and in the light of the security of the nature of the interest that's being cut off. Now, these appellants are not exactly strangers to this problem of the highways that in their brief, they -- they indicate that they're better of if you have bad highway systems because then they can collect more money for newer trucks and repairs. Now, I -- I can't take that as a various serious statement of policy. The -- the article they sell has no economic value unless New York and the other States are going to provide these highways for its use. They're the ones who put the carrier in a position to incur this tax, they put in -- in possession and control and use of the trucks and they concept that they be used on our highways to make earnings so we can pay their obligation and save up some money to buy some more trucks. So, certainly, their connection with the problem is an intimate one. Now, what is their property interest? I -- I don't think we have any quarrel here about chattel mortgages or conditional sales. Essentially, these are to be the third person, the third party in New York, they're treated essentially the same. They're treated as a security device and it is a limited property right. I can see that's a property right but certainly, a limited one. And what we have done here, as I mentioned before, is in effect -- merely amend -- put another restriction into the Conditional Sales Act and these people are in no different position than the person who takes saleable goods who puts them in the hand of a retailer.His reservation of title is not -- is not other than New York as against the purchaser regardless of any filing. Now, turning to analogies, they're certainly nothing new or noble about taking the property of one person to pay the obligations of another, provided the person whose property is taken has putted by his own free will into this position which could be regardless someone has a position of jeopardy. Your Honor will -- Your Honors will recall certainly, many of the liens, the all system of the strength for writ which is now abandoned in New York, the innkeeper's lien, all of these devices cut-off not only a security tittle but complete title to the property. Now, it seems to me the best analogy is the old agister's lien. Under the old statutes, an agister was a man who owns some pasture. And when cattle were placed in that pasture, he had a lien on the cattle for the value of the porridge they consumed and that New York, at least, that lien was superior to the lien of a prior encumbrance, sir. And the State here, we claim, is in the role of the modern agister. Their pastures were on highways, they're being consumed, the cattle with the trucks, and all we're doing is asserting a new form of agister's lien. Now, adverting to the secrecy provisions of the Act, there is nothing new or noble about these. Any tax which is a tax so-called “self-imposed” where the tax payer is required to file returns, generally contains some provisions that employees of the State or the Federal Government who have custody of the returns, kept divulge business information. They're in those returns and it's passed to protect this tax payer and that's all the New York statute provides. Now, there's nothing in the New York statute which indicates that had these people come to the State Tax Commission and inquired as to whether or not there was any outstanding tax liability that they would not have been informed. Now, this argument is not a new one. It was made in the Appellate Division in the first court where this was argued in the analogy of other New York statutes which have been so interpreted was pointed out. But more importantly, there was nothing that prevented these conditional vendors from going to the vendee, who obviously was anxious to engage in this transaction, and requiring him to provide them with certified copies of the tax returns he had filed. It -- it seems from the statute that they could get a certified copy from the Tax Department of these returns so that it certainly the information was available as between the buyer and the seller.
Earl Warren: Mr. Solicitor General, did I understand you to say that there was nothing in the secrecy provision that would prevent the -- the head of your department from advising them on inquiry, the amount of the tax due?
Moore: As -- as we read the provision, Your Honor, that is correct. That the fact, whether or not a tax was due in the amount of the tax could have been divulged. Now, there isn't any -- I admit there is no regulation that says that but certainly on the reading of this statute and from this record which doesn't -- and on this record, there was no inquiry of any kind. Now, the statute has since been amended to provide four periodic reports by the State Tax Commission of delinquencies. But, of course, admittedly, this doesn't procure anything. There may be delinquencies here that the State Tax Commission doesn't know anything about. But, finally, in -- in conclusion, there has been a restraint placed on the way these people want to do business. There has been a restraint placed on this security title of theirs. It was a restraint placed by the State in the exercise of its broad power to collect its revenues. It was a restraint but certainly, is amply warranted by the report of this legislative committee by the very nature of the industry that they were regulating. And there's nothing in this record to indicate that the New York legislature and they studied careful act has going to unwarranted arbitrary and unreasonable thing and we submit that the judgment of the New York Court of Appeals should be affirmed.
Stanley Reed: Mr. Solicitor, I -- I understand that the position of the appellant here is if it's perfectly all right for them to have held for the views that their trucks made it to the road but that it is contrary to equal protection and due process unless they're waiting constitutionally. Are you to charge them up with the cause of the -- what -- of the tax for the carriers prior to the time that their trucks went on the road or could they use during the time their truck was on the road of any other truck?
Moore: Yes, Your Honor. That's the position, as I understand it, of the appellants.
Stanley Reed: And now that -- do you understand that that requires, that the tax should be laid on the particular truck, is that the appellant's decision?
Moore: I don't think the appellant claims that the tax is laid on the truck but the appellant's position is that although, admittedly, the tax is not on the truck, it's on the carrier that it's measured by the truck and since it would be possible for us to -- in effect, run on accounting proceeding everytime we wanted to foreclose the lien that we're required by the Constitution to do it.
Stanley Reed: Well, I -- I don't understand that. I understand his opposition is to the levying on your -- his -- your trucks of the tax for the period prior to the time that he had a truck on the road.
Moore: That, that and also for any taxes while he had trucks on the road but they were measured by other trucks. That is his position, Your Honor.
Stanley Reed: And your position is that this is a tax on the carrier that is barely measured by the carrier's use of trucks and that you put a lien on all trucks that belong to the carrier during -- while it's still were used by the carrier during that period?
Moore: Yes, Your Honor. That's our position.
Felix Frankfurter: But the question isn't -- the question really isn't -- allow you to measure whether (Inaudible) profiting you can enforce what you measure?
Moore: I think that's a correct statement of the question Your Honor. I would accept it.
Stanley Reed: And how do you get the right to collect against these trucks, these three trucks?Is there a provision of the Act that says that these trucks are covered?
Moore: Yes, Your Honor. The Act very specifically provides that -- that any truck in the possession of the carrier that -- that when it is used on the highways, that a lien attaches to it for all of the taxes.
Stanley Reed: The tax should be a joint with several liability upon both the carrier and the owner of the truck?
Moore: No. There is no -- we claim no liability --
Stanley Reed: But if that's what --
Moore: -- against the conditional vendor.
Stanley Reed: Such a tax shall be upon the carrier except that where the carrier is not the owner of such vehicular use, the tax shall be a joint in from several liability upon both.
Moore: Well, that is the -- the point, Your Honor, that the Attorney General of New York ruled on when he said that that did not refer, that the word “owner” in there did not refer to the holder of a security title like a conditional vendor. And the administration of the tax, there has been no attempt --
Stanley Reed: And that -- I just -- I don't understand that -- he ruled what?
Moore: He ruled that that provision of the tax did not refer to a conditional vendor and that there was no liability on a conditional vendor for the tax, no liability for the tax. But, there, of course, is the liability we claim under the lien, a liability of his property subject to the lien.
Felix Frankfurter: You couldn't bring an action of debt within the colloquy or something.
Moore: No, we could not, Your honor.
Felix Frankfurter: That -- that's what that ruling means?
Moore: Yes.
Stanley Reed: Well, if you can't bring an action against then where do you get the -- the liability of the International Harvester trucks for obligations for taxes that existed prior to the time of their trucks went there?
Moore: We say that when International Harvester Company put those trucks in the possession of this carrier and the possession and control and use of this carrier that they subjected them to a lien for all of the taxes of the carrier, which were then existing, and for the taxes that accrued against the carrier while he had them in his possession.
Stanley Reed: How -- how do you assess the tax under the statute? When is it assessed?
Moore: The tax is assessed, Your Honor, on the basis of monthly reports --
Stanley Reed: I -- I understand that but --
Moore: -- filed by the carrier and then --
Stanley Reed: So -- so, nothing was -- could have been assessed against these three trucks until they went into operation?
Moore: Not against the trucks, no, Your Honor. But, of course, nothing is assessed against the trucks except against them. It's assessed against the carrier. We assert the lien against the trucks but there could be no -- the carrier would have incurred no liability under the highway use tax measured by these trucks until such time as the trucks came into his possession.
Earl Warren: Thank you, Mr. Solicitor General. Mr. O'Brian.
John Lord O'Brian: If it please the Court. I believe, I have four minutes and if I may briefly make three brief statements, I should be satisfied. Some question -- let me -- let me restate the realities in which we find ourselves. This is the first case that has arisen under this particular statute and the first case that we know of for an attempt has been made anywhere to enforce a lien of the sort here described against anyone except the carrier. In the second place, this is also one of the first cases that has arisen in years. I -- I submit this was a little different, this view where this Court have been confronted boldly with the naked assertion that there are circumstances under which the -- the property of one man may be taken to pay, not -- not liabilities but to pay a tax lien for a use of the highways for which he is not liable in law. That is the situation we find ourselves in. Nobody has said anything of another point, I think, and that is that before the lien was -- this inchoate lien was asserted and so, as we say liquidated by the State firmed up by the assessment and notice to the carrier. Before that happened, the -- these appellants had by proper legal proper -- process recovered their three trucks and were now the sole owners of those trucks. The legal effect of that is that they had extinguished all of their rights against the carting company and therefore, if they pay this tax, they have no recourse against anyone with which to recover it. Now, allusion was made secondly by counsel to the fact that summary process is -- is well recognized in the collection of taxes. But summary process at which is often brought into question in connection with federal taxes, summary process, so this court declared in Phillips against the Commissioner is justified in certain cases because in those cases, adequate judicial review is provided for the person who is against to whom the lien is asserted. On the question of due process, the lower, in the submission of -- in the submission of this case, the stipulated submission, the point was expressly reserved in a separate paragraph that -- that these parties had had no notice of the delinquency of the assessment or the -- or the existence of liabilities and they were given not -- no fair, adequate and timely notice, thereby, permitting their property to be -- to be taken without a reasonable opportunity to be heard etcetera, etcetera in violation of constitutional right. And the lower court commented on that without really passing upon it, related it to the secrecy provisions. And -- and in our briefs, we raised the same question of -- of lack of due process. It is true that the record does not show that these parties ever asked a hearing. The record is silent on that. We have assumed that the record was silent on that because -- because there was no provision in the statute under which we could obtain a hearing and the record is silent as to whether we ever made a demand for information from the Tax Commission as to these trucks. It is silent. I do not agree with the view stated by my opponent that we could have obtained if we had sought a certified copy of -- of the delinquent records. That is a right granted -- certified company be granted by the Tax Commission to federal officials or to officials of government who have a special interest. But there is no provision for the granting of any rights to us that there is an explanation, a possible explanation for that, based purely on conjecture, I admit, and that is that when the statute, draftsman of the statute used the word "owner", he may have meant to include a conditional vendor and make him jointly liable for the collection of the tax. He may have meant that and that would have, of course, included the right of the conditional vendor to have all these statutory reservations of procedure. Now, let me submit one final statement, if the Court will permit, and go back to the flat realities of the situation that we have and that is this, we're perhaps admittedly our property has been ceased to pay taxes assessed against the Cartage Company, that's not in dispute. They were incurred by the Cartage Company through the use of a fleet of trucks, 13 other trucks in addition to our 12 other trucks, in addition to our three. And they -- these taxes, the bulk of them, at the analysis of the submitted statement will show, accrued against the carrier before we sold our three trucks to the carrier.Now, those facts are submitted and that establishes the fact that this tax sought to be -- I am trying to get a word -- away from the ambiguity of the word "liabilities". These taxes now assessed against us by this lien process were taxes measured by the use of other vehicles than ours on the highway. That's the heart of this -- of this assertion and the Commission asserts that nevertheless, this seizure -- this seizure may be made legal through their interpretation of the lien provision of the statute. We have conceded that our taxes -- that out trucks may be taxed by a tax measured by their use. But by the use of this lien provision, and I don't intent to reiterate what's been said on it, by the use of this lien provision, by the interpretation of this lien provision made by the State Tax Commission, they have sought and are seeking here to do something that I think has never been approved by this Court, namely, they are seeking to impose by indirection, those taxes for which we are not liable upon us. That is the heart of this case and that, I think, violates as I said the fundamental conceptions of property rights in relation to taxation as laid down in Knowlton against Moore and many, many, many cases of this Court. And that is the case that we leave with you, Your Honors. Thank you.