Earl Warren: Number 51, Leslie Miller Incorporated, Appellant, versus the State of Arkansas. Mr. Gentry.
Leffel Gentry: May it please, Your Honors. Leslie Miller is a corporation engaged in the general contracting business. As such a corporation it entered the -- it submitted a bid for the construction of certain facilities in the State of Arkansas in connection with an airport facility and it entered in the performance of that contract after having been awarded the bid. In this action appearing here, is the result of prosecution of Leslie Miller by the State of Arkansas for having violated the provisions of Act 124 of 1939 as amended by Act 217 of 1945, in that, as a general contractor, he had done these things without having been licensed by the State Licensing Board for General Contractors. The action was tried in the lower court upon a stipulation of facts; and under that stipulation of facts in addition to those facts in the district county, it both appeared that bids were received for the construction of the facilities from licensed contractors within the State of Arkansas, but that such bids were in excess of the bid of the appellant. And it further appeared from the stipulation that other contractors would have submitted bids in connection with the construction of the facilities had it not been for the requirements that they first be licensed. The appellant was convicted in the lower court, notwithstanding, his assertion. Its assertion that the application of the Contractors Licensing Board Act, the Arkansas Contractors Licensing Board Act to wit was unconstitutional inasmuch as it amounted to an interference with the federal function that congressional acts and regulations pursuant thereto accomplished the purposes intended by the State Act. Upon appeal to the Supreme Court of Arkansas and again, the urging of that question, the Supreme Court of Arkansas affirmed the decision of the lower court from whence an appeal was brought to this Court and the Court -- the case is here on appeal by way, of course, the jurisdictional statement having been filed and the Court having indicated the hearing. If Your Honors please, it's the position of the appellant in this case and first, I should say that the Government has filed a brief amicus curiae in the case and we are providing a ton as I understand under the directions we've been given and I shall confine myself to a general discussion of the principle involved here rather than to cover specifically the many instances in which we feel that there is an interference with the governmental function. That feature of the case will be handled by counsel for the Government.There is a fundamental question involved here, of course. The question which necessarily arises at such a time when a State in the purported exercise of its sovereign police power enacts a measure such as the Act here on the consideration, the Contractors Licensing Board Act, which the Court will find as an appendix in the back of the jurisdictional statement. This Act, supposedly by its title, has for its purpose the regulation of the practicing of general contracting within the State of Arkansas and general contracting within the State of Arkansas is then, thereafter, it defined so as to include, we can see the appellant in the instance of bidding upon the work for the Government and exercising the right to perform the contract after having been awarded the contract. In other words, there's no dispute between the parties as to the applicability of the Act in the sense that the corporation here is a general contractor under the definitions of that. The issue here though arises, as to whether the State of Arkansas by this Act can require the appellant under the guise of police power to get a license in order to be able to contract with the Federal Government for the construction of the facilities. It is our position, in this case, that the Government of the Nation and the Government of the State are, of course, each alike, absolute and independent in its -- in their respective spheres, but when conflict arises, that the enactment of the National Government, of course, has supremacy. In this instance, the question arises first as to a conflict and the question arises as to the conflict in two aspects. It is our position that there is no conflict between the congressional enactments and the right of Congress to regulate as to its ports, docks and arsenals under the Constitution's provision and under the regulations that have been enacted pursuant to the congressional enactment, that there is no conflict between the exercise of that power which Congress has undertaken, and the exercise of the State of its sovereign power to protect its citizens in this instance. We say that for this reason. The only object and purpose which the Act under consideration could possibly have is the protection of the welfare, safety and peace of the people of the State of Arkansas. It could not have for its object and purpose the protection of the Federal Government. Then having solely for its purpose, the protection of the welfare, peace and safety of its citizens, if as a matter of fact, Congress in the exercise of it's expressly delegated exclusive power to regulate its ports, docks, arsenals which would include this airport construction, if it has acted, if Congress has acted, so as to regulate it and if in the course of its acting, it has, by its enactments, already done the thing which would be accomplished by the state Act that if it has so regulated that the State's -- that the citizens of the State's welfare, health and safety is amply protected, then we say that we have no issue really to decide other than the question of whether there is any conflict there. And we say in this instance that there is no such conflict. A study of the Act showed that it could have but one purpose and that is, the protection of the citizens of the State of Arkansas from -- in their dealings with contractors from those contractors who were not qualified or who were not ethical, who were unscrupulous and so, would take advantage of the people. Now, that right can be protected and continue to be protected by the State of Arkansas through the application of this Act to all of the contractors who deal with the people in the State of Arkansas. There can be no purpose saved or served in applying the Act to the Government under the guise that the Government needs to be protected by the State of Arkansas in its dealings with contractors from those contractors who would deal with it unethically or unscrupulously. So in the outset of this argument, if Your Honors please, I take the position seriously that there is no conflict between the sovereign power of Arkansas in the exercise of its police power under the Act under consideration with the exercise of the exclusive power of Congress to regulate as to these ports, docks, arsenals, airports, other matters that come within that terminology.
William J. Brennan, Jr.: Would you take the same position if this was a plumbing contractor?
Leffel Gentry: Sir?
William J. Brennan, Jr.: Would you take the same position if this was a plumbing contractor?
Leffel Gentry: Yes, sir. In the sense that the -- I should distinguish, I'd say. If this is a plumbing contractor and he is dealing with the Government and the Government by its rules and regulations is able to protect itself from the plumbing contractor in its relationship with it and that is the only object and the purpose of the Act, then I say it could be -- possibly no reason for the issue to get to the point to where we have that question of the intergovernmental immunities. Now, I go one step further.
Speaker: They usually the license plumbing contractors to protect the health of the people.
Leffel Gentry: You license plumbing contractors to protect the health of the people, but license mean the plumber's contractor to work on a particular job for the Government would not interfere with the health of the people so long as the only job that they did without a license was the job they performed for the Government, because the Government by its statutes has protected that citizen from the hazard which may come by reason of the qualifications that it has set forth that this contractor had -- must have. In other words, we take the position, if Your Honors, please, that we are not dealing here with a situation similar to the situation involved in the Penn Milk case versus the Board of Milk Control Commission where you have a proposition to the decide between the inherent power of the State to protect the welfare of its citizens and against the power of the Government or the right of the Government to exercise a particular function exclusively. We do not have that situation. Here, we have a situation which the contractor can perform the function under the regulations, under the congressional statutes for the Government without any fear as to the rights of the people or Arkansas being adversely affected.
Earl Warren: Can we -- can we say, Mr. Gentry, as a matter of law that this licensing law does not protect among other people the workmen who are on these jobs, under the contract, employment contract.
Leffel Gentry: I think it has no -- absolutely no purpose whatsoever in that connection.
Earl Warren: Well, I thought in some of these licensing laws like that, they have them in part because contractors didn't pay their -- their health and -- and work responsible in some instances so far as payment was concerned in the treatment of their employees and -- and other considerations of that kind.
Leffel Gentry: If, Your Honor, please, I can only answer that with reference again to the -- the specific statute, and I can't find, nowhere in this statute, any such intent and, of course, we do not have the advantage of having statements as to the intent like you have in congressional enactments by the committee reports in those matters that are statements there made. We have to take the Act itself and read it all together and gain the intent from that. But as far as I can see this Act and I may be prejudiced in the cause of my client, but as far as I can see it, I can see nothing except that it was intended to protect people in their dealings with contractors and it has no relation whatever to the employees.
Earl Warren: My point is that employees do deal with the contractor.
Leffel Gentry: Oh, you mean -- I -- I see you mean by that as far as they're contracting with them --
Earl Warren: Right.
Leffel Gentry: -- for the work for a certain wage or something of that sort?
Earl Warren: Yes. Yes, that's what I had in mind.
Leffel Gentry: Well, I think that answers part of that because I think it speaks in terminology of the qualifications of the contractors to perform the jobs that they're seeking to perform rather than dealing with the qualifications that they may have as far as dealing with their employees. Now, if Your Honors, please, we take the position secondly, that if this Act has for its purpose, if this act has for its purpose the protection of the health, welfare and safety in the instance and which a contractor is dealing with the Federal Government, that if so, that then that protection that is sought to be afforded which we say is not there, not intended, but that that protection is afforded by the federal statutes and regulations. And we do say this Your Honor that the imposition of this Act upon the appellant in this case will deprive the Government of its right to select its agent -- agents and determine the competency of those with whom it'd be.
Speaker: What was a character of this air force installation? Was it something that requires special qualifications by a contractor or could anybody do the job?
Leffel Gentry: Well, it was a tremendous airport project in which there is a air base that is one of the larger air bases that the -- where the big bombers are and they have the personnel there that is refrain. They're on the base. So it's a tremendous undertaking as far as the extent and size of the facilities. Now then, I would like to call your attention to this one thing in connection with the Chief Justice's question. In this Act, it purports to define a general contractor as those making contracts for the construction of certain described things involving an amount in excess of $20,000. Now then, I take the position that if anything is intended to be protected by that Act other than to protect the citizens of the State who deal with the contractor and not the Government when it deals with it, that if they were intended to protect the safety and health and so forth of the employee over here or his welfare as the Chief Justice has mentioned, then his safety, health and welfare is just as well involved in a contract involving $19,000 as it is and one involving $20,000. So, I use that as an illustration to say that this Act in my humble opinion could have no object and purpose except the protection of the local citizens from unscrupulous contractors and its absobility or its inabsolubility, I should say, to the Government, because of the reasons we here assert would not let the protection which was intended to be both, are purported by that.
Speaker: Is there any --
Earl Warren: Does federal safety regulations apply to a job of this kind?
Leffel Gentry: Sir?
Earl Warren: Does federal safety regulations apply to a job of this kind?
Leffel Gentry: Yes, sir. They do.
William J. Brennan, Jr.: Is there any history of any mischief at which this statute was seen in Arkansas? Has there been any --
Leffel Gentry: Well, we have -- we have a -- a glimpse at -- at a -- another purpose in the emergency clause contained in the Act because it says on page -- pardon me if I may -- on page -- yes, on page 30 of the jurisdictional statement, at the top of the page, Section 22, "is hereby determined and declared to be a fact that the practice of general contracting in the State of Arkansas is in need of regulations and it viewed the unethical practices of contractors within the State of being unduly penalized and are suffering irreparable injuries and this Act being necessary for the preservation of the public peace, health and safety and emergency hereby declared to exist and this Act shall take effect of the (Inaudible). We glean there --
William J. Brennan, Jr.: Well, that sounds -- that sounds like unethical practices of the contractors other than Arkansas (Inaudible)
Leffel Gentry: Well, unethical practices among the contractors themselves is what it sounds if they are dealing with rather than dealing with and therefore, they want to regulator the contractors so as to permit -- prohibit these unethical practices among themselves so that the public's welfare can be protected.
William J. Brennan, Jr.: No -- no intimation to what those unethical practices were?
Leffel Gentry: No, sir. None, whatever.
Speaker: (Inaudible) against them.
Leffel Gentry: Sir?
Speaker: (Inaudible)
Leffel Gentry: Yes, sir.
William J. Brennan, Jr.: Well --
Leffel Gentry: Now --
William J. Brennan, Jr.: Do you think that actually this was aimed at holding all of business they could for Arkansas contractors, to keep out of the state contractors away?
Leffel Gentry: It could have been. I do not assert that as a fact because I do not know whether you would require me to go out of the record, if I didn't know it. And I do not. But I say that in determining the object and purposes of this Act and determining whether or not the Government is going to be hampered to the extent as indicated by the stipulation in this case that here in this instance, licensed contractors within the State it'd be they were not the lowest responsible bidder, also indicated by the stipulation in this case that there was admittedly other contractors that would have bid except that they were deterred because of the prohibitions of this Act. They didn't want to. The -- the Act provides for certain -- certain application of a license, certain times within which the license can be acted upon certain meetings of the Board at certain intervals. It's our position in this case that if -- that if there is a serious conflict with the right of the sovereign State to exercise these functions under its police power, then we recognize that this Court might likely say as it did in the Penn Milk Dairy case that the Act would not likely struck -- be struck down simply because of the economic words that might be upon the Government as a consequence of the applicability of the Act. But where the burden's upon the Government in the situation are much greater than simply economic burdens whereas will be shown by counsel for Government in his argument in detail, I think that it so happens the Government, that tomorrow -- tomorrow, if they have to depend only upon licensed contractors within the State of Arkansas to do their job, they may not have them available when they want them available and when they need a job to be done. Now, one more statement and I shall conclude.
Earl Warren: Is there any provision in the Act for a temporary permit or anything of that kind?
Leffel Gentry: No, sir. There is not. I recognize the difficulty that Your Honors have, that any court has in passing upon the question where you have a right of a State reserved to it because it was a reserved right as against a proposition in which someone else is asserting. The Federal Government is asserting a particular right delegated to it and the two rights conflict. It certainly is a situation in which any court would be serious in its decision so as not to involve either of those rights or to circumscribe any of those rights and finally, they'd -- if they would have to circumscribe one right, of course, you would have the proposition of the factual question as to which one would be hurt worst, as to which points of the dilemma you took. But certainly, in a situation like this, you do not have a situation in which the dilemma is of that consequence. We simply have a situation in which a contractor dealing with the Government under rules and regulations and under congressional enactments in the building of an airport does not get a license, but admittedly all of the things that would be done to protect the health, welfare and safety are provided by their statutes and regulations. And then you have, when you look at that situation as opposed to that, you have a state statute which by its very -- by its very reading and its entirety does not clearly show -- to not clearly show that there was ever any intention to say we want to protect the -- the Federal Government from unscrupulous contractors.
Hugo L. Black: Well, your state court settled that, hasn't it?
Leffel Gentry: Where they said to this -- to this extent, they said that was applicable and their decision is binding upon that proposition and they have said that it was the intent of the Act to protect the Government from unscrupulous contractors. This Court though --
Hugo L. Black: To protect the Government from unscrupulous contractor?
Leffel Gentry: Yes. Well, I mean for that when they said it was applicable when they didn't mean to say it. It was applicable and thereby accomplished any protection of the local citizens because without having done so, they would have had that defense. But I'm saying when they go so far as to say it is applicable, then this Court had the right to examine into the preposition of whether or not its applicability to this contractor so interfered with governmental function or if it does interfere with governmental function whether (Inaudible) interfere with the governmental functions on the one hand is of greater consequence than the depriving the State of its right to exercise its so-called power, its so-called sovereign power. And if they can be harmonized, it would seem that it would be the duty of the Court to do so.
Hugo L. Black: Why would you have to -- have to pass (Inaudible) thing, wouldn't it?
Leffel Gentry: Well, I'm talking about the consequences of whether or not you say on the hand that the sovereign power of the State to exercise its police power in the -- in the protection of its public health, welfare and safety will be destroyed if we don't apply and uphold the validity of this Act. Now, if you had to do that, in this instance to do that, you would have a serious question. But you don't -- you don't have to do that. You don't have to say and you -- there is no -- nothing in this record that would indicate that the protection of the public health, welfare and safety would not be amply protected even though this statute is not applied to this particular contract dealing with the Government.
Hugo L. Black: I would suppose maybe the chief question would be whether the Government which probably has the constitutional power to decide who it wants to hire had done so, here.
Leffel Gentry: Well, yes. And I'd say on the other side, then you have this situation that if it -- it's the impact upon the Government. It's sufficient that it does not simply incidentally -- incidentally maybe impair the functions of the Government such as making a greater economic cost or economic burden on them, but if it actually puts them in the position with the Government where it's in danger of not being able to get the job done, then, of course, the -- the express power of the Government to -- to regulate must -- must take precedence over this other power. Thank you, Your Honor.
Earl Warren: Do you have any issue here other than the burden that this places upon the Government itself?
Leffel Gentry: No, sir.
Earl Warren: That this was that you were going in this airport for private individual, you would -- you would be obliged to do this switching.
Leffel Gentry: Absolutely, yes, sir.
Earl Warren: Yes.
Leffel Gentry: But I'd say that so long as I'm only doing it for the Government, then I'm not required to get this contract. I do not contend that the Act is not applicable to me and to my client and it's dealing with other -- both, rather the Government.
William O. Douglas: What's the -- was the -- was this contract of instruction on a government-owned property?
Leffel Gentry: Yes, sir. That is in the stipulation, if I failed to state that.
William O. Douglas: What -- what (Inaudible) that -- what rights have been retained by Arkansas?
Leffel Gentry: What rights? All, rights. In other words, the Government has not accepted territorial jurisdiction.
Speaker: A territorial jurisdiction is in the State of Arkansas?
Leffel Gentry: That's right, sir.
Speaker: (Inaudible)
Leffel Gentry: Thank you.
Earl Warren: Mr. Davis.
John F . Davis: Mr. Chief Justice, if the Court please. This case involves a contract to construct a fueling system for bombers at the Little Rock Air Force Base in Little Rock, Arkansas, a property owned by the United States, but where exclusive jurisdiction has not been taken. The United -- the Corps of Engineers --
William J. Brennan, Jr.: What kind of --
John F . Davis: -- on behalf of the air force --
William J. Brennan, Jr.: What kind of jurisdiction was taken, none at all?
John F . Davis: They'd put the bailment the way anybody owns property.
Speaker: (Inaudible) anybody else?
William J. Brennan, Jr.: Or you wouldn't think --
John F . Davis: But maybe not quite the same as anybody else but anyway --
Speaker: Well, it's just -- it's just the need for the Government.
William J. Brennan, Jr.: Would think, Mr. Davis, that whether or not or rather if the Government had taken exclusive jurisdiction, this case would be stronger than the one you're presenting?
John F . Davis: I don't think it depends upon that, Mr. Justice Brennan. The contract in question was for a refueling system. It amounted to about $1,000,000 -- $1,090,000. Bids were invited from about 126 firms. Actually, only 16 bidders submitted bids and I think this is some indication as to the type of work that was involved. It was a very particular kind of work when -- install this kind of system to handle high test gasoline. Sixteen bids were received and of these, only seven were licensed bidders in -- under the Arkansas statute. There were nine unlicensed bidders. In other words, if the United States had been limited by this statute so that it could take only licensed bidders, it would have had the numbers cut down very materially to note your submitted bid.
Speaker: Any indication, how many of the seven were out of state contractors?
John F . Davis: Yes. Of the seven -- oh, I think only two. I don't know whether I get this or not. I'll check it over tonight. But as I remembered, there were only two Arkansas firms and there were five that were out of state. That, I'll have to check, though, I'm not quite sure. Now, the United States is concerned with this case, not because its contractors are required to pay a licensing fee to the State of Arkansas, nor even because they might be subject to incidental regulation by the administrative agency in Arkansas. The reason that we are concerned is because we believe that the United States has a right and a duty to select contractors of its own choice and according to its own standards. And when the State of Arkansas attempts to apply its licensing law to a contract between the United States and a contractor, it is not only telling the contractor that you may not perform upon this work unless you get a license, it is in effect saying to the United States that it may not fill this work with anybody except someone who meets Arkansas standards. And we believe that under the Constitution, Arkansas may not do this.
Stanley Reed: Even with respect to educational qualifications?
John F . Davis: Even with respect to educational qualification.
Speaker: Even with respect to health problems?
John F . Davis: Yes. I do not base this on whether --
Speaker: (Inaudible)
John F . Davis: -- or not this is a --
Speaker: (Inaudible)
John F . Davis: -- police -- within the police power of the State. The Arkansas the Contractors Licensing Law, whatever its purpose falls within the general police power of the State to protect the citizens of the State in one way or another and I believe they have as much power with respect to this kind of thing as -- as they would have under any other police power. I don't -- I do not distinguish between them.
Speaker: Are you going to distinguish Penn Dairies?
John F . Davis: Yes, I'm going to mention Penn Dairies.
Speaker: And Pacific Coast?
John F . Davis: That's right.
Hugo L. Black: And what about Pacific Coast Dairies?
John F . Davis: I don't know the Pacific case, the -- the Pacific Coast Dairies case.
Hugo L. Black: Are you going to mention Hill against Florida?
John F . Davis: Pardon?
Hugo L. Black: Hill against Florida.
John F . Davis: Hill against Florida?
Hugo L. Black: Yes.
John F . Davis: I will. I hadn't intended to, but we --
Hugo L. Black: I thought (Inaudible)
John F . Davis: [Laughs]
Hugo L. Black: (Inaudible)
Felix Frankfurter: But why not? In that case, we have held that they should even post the condition (Inaudible) appellant.
John F . Davis: I was going to --
Felix Frankfurter: You're going to carry that here.
John F . Davis: I was going to refer to in re (Inaudible)
Felix Frankfurter: If a State can make it a condition (Inaudible) because he is the appellant --
John F . Davis: Right.
Felix Frankfurter: (Inaudible)
John F . Davis: It certainly isn't. Actually, this Court has adopted two general approaches to these governmental immunity cases. Chief Justice Marshall in McCulloch against Maryland analyzed, posed the issue as one of sovereignty, a clash between two independent and indeed, he treated them as antagonistic sovereigns and then he would decide the -- the question on the basis of the Supremacy Clause in the Constitution. Justice Holmes, on the other hand, and I refer particularly to Johnson against Maryland, 254 U.S.51 approached the issue as one of adjusting the interest of two related sovereigns whose functions overlapped and that the solution being to permit each to perform insofar as possible his functions without undue interference with the other. When these two approaches appear irreconcilable that troubles come. As for example in the recent case in this Court in New York against United States, where the question was the power of the United States to tax the State of New York on the sale of mineral waters. But in this particular case, I think that either Chief Justice Michael or Mr. Justice Holmes would have come up the same answer. On the McCulloch against Maryland approach, there can be no question that the duty to provide for the National Defense is one of the enumerated powers of the Federal Government and there can be no question that the building of airfields and the equipping of airfields which was involved in this case is part of that constitutional power. Under Article 6 of the Constitution then, it is not possible for the State to interfere with the federal exercise of this particular power. On the other hand, the power to license, which the State of Arkansas insists upon, must certainly involve the power to deny a license; and the power to deny a license certainly interferes with the power to build an airfield. And therefore, by the syllogism which Justice -- Chief Justice Marshal would follow, this statute would be unconstitutional.But if we approach the problem as a problem of adjusting, accommodating the state powers and the federal powers so as to permit each one to be fulfilled with greatest possible extent, here, we have a state power, a state statute which is designed to protect the people, building things in Arkansas, from being treated by unreliable contractors. This isn't the building code. This isn't the health or safety measure. It is a law to promote fair business and as I said a minute ago, I think this is a legitimate exercise of -- of police power and obviously, the -- the federal aim to build and equip this airfield is not basically antagonistic to this state power. The United States has no desire to employ unreliable contractors.
Hugo L. Black: But does it provide some for kind of an investigation?
John F . Davis: Does the United States?
Hugo L. Black: Yes, for these contractors?
John F . Davis: Oh, yes. Yes, indeed.
Hugo L. Black: (Inaudible)
John F . Davis: Well, there are two ways. The -- the --
Hugo L. Black: In other words, if a -- if an irresponsible man makes a bid -- lowest does the Government have to take him (Voice Overlap) --
John F . Davis: No, it does not have --
Hugo L. Black: -- if he's irresponsible?
John F . Davis: It does not have to take him. Specifically, one -- it does not have to take the lowest bid. It has to take -- the standards are set forth. In this case, the bids are -- are made under the Armed Forces Procurement Act. The -- and if the bids are --are let by public advertising, that is by -- by advertising by auction, so to speak, then the United States does not need to take the lowest case, but it takes the lowest responsible bidder and is encouraged to determine not only whether the man is -- is capable, but also certain other factors as to his past experience and whether it's big business or small business, many factors are involved in -- in it and the United States makes a determination on that basis.
Hugo L. Black: May I ask you. This is to -- we said that Hill against Florida that this man under that law could be convicted of a misdemeanor and subjected to fine and imprisonment, but doing something which the Federal Government has -- has stipulated he could do (Inaudible) Does that fit this case?
John F . Davis: I -- I think --
Hugo L. Black: Doing that which an Act of Congress permits him to do. Does an Act of Congress permit this man to do this work if he is a low bidder?
John F . Davis: The -- the Act of Congress -- there isn't any Act of Congress which deals specifically with, of course, with this. There is rather an authority that the armed forces --
Hugo L. Black: Does he come within the -- does he come within the classes, within the category of people who are permitted to make bids and do works for the Government as provided in the Acts of Congress?
John F . Davis: Yes, it does.
Hugo L. Black: So, why is not true then that this is to be measured by whether the State can forbid him to do that and convict him of a misdemeanor, but doing that, which is an Act of Congress permits him to do?
John F . Davis: Well, that -- that is basically the question when you -- whether the State -- whether the state law is intended and we have here a finding, of course, by the -- by the Supreme Court of Arkansas that it is intended to -- to apply to this case. But that is a problem for this Court to decide, to reconcile what appear to be --
Hugo L. Black: What do you have to reconcile? Suppose the Federal Government makes the case, where I hope you can. Suppose the Federal Government decided it wanted to employ doctors who had come here from abroad in the federal -- veteran hospitals, maybe who's a refugee and the State wouldn't give him a license, could the Federal Government employ him or would it be forbidden to do so?
John F . Davis: It has been held that they can employ them. That is that -- that is -- even the State of Arkansas, the -- the Supreme Court in -- of Arkansas in this particular case recognizes the right of doing -- of the Veterans Administration to employ unlicensed surgeons. There -- there can be no -- no question about that kind of -- about that kind of -- of problem.
Hugo L. Black: Well, that's public health. That's -- does it matter as they didn't conflict with an Act of Congress? The Government of the States have their full power in there.
John F . Davis: That is right.
Hugo L. Black: Why --
John F . Davis: They have the --
Hugo L. Black: Why do we have -- why do we have to argue over whether this comes within one category of business or another?
John F . Davis: Well, I don't think --
Hugo L. Black: So that the Government --
John F . Davis: -- they would if we didn't have such cases as Penn Dairies and some others that we have to reconcile with the position that we have here and -- but the -- the line of cases in this Court has gone -- has gone further and further along the -- the line of where the state power doesn't impinge, doesn't prevent this -- the -- the Federal Government from carrying out its functions permitting insofar as possible the -- the state power to continue. The -- the approach which you suggest is the -- is the approach which is followed in many other cases which I describe as the McCulloch against Maryland approach and which is -- sees as black and white this question of the sovereignty and this is within the powers of the United States. The - the United States has determined that this is what should be done and the State can do nothing to interfere with it.
Hugo L. Black: Well, the other -- other can be considered, I assume, in determining whether there -- there's a conflict to be found.
John F . Davis: That's right.
Hugo L. Black: Or whether the Act the Federal Congress did not intend to do as much as you're suggesting. That what that says that it's found that the Federal Congress has decided that and it wants to hire somebody to do a particular kind of work. On the constitutional level, what else is there to negate?
John F . Davis: Then -- then the -- the Article 6 of the Constitution takes over and the laws -- the Constitution and laws are supreme --
Hugo L. Black: That's what they did.
John F . Davis: -- under -- under the Constitution. And that -- that is -- that is the way we must determine if we find that there's a conflict. What this Court has done in some cases is define that the two laws can be reconciled and really, that is the -- that is the question before this Court whether they can be reconciled so that both can -- both can be -- can be enforced. And we feel that that cannot be done in this case that actually the -- the state law is irreconcilable with the -- with the federal powers in -- in this situation.
Felix Frankfurter: Have you -- have you vindicated Mr. Davis, it's not an element here once didn't have in here (Inaudible) namely, here, you have impingement directly upon the operations of Federal Government and not merely the accommodation between two statutes which may affect other (Inaudible)
John F . Davis: That -- that --
Felix Frankfurter: -- what is direct from the United States is it directly found that this case you also have to have much difficulty in reconciling Penn Dairies -- Penn Dairies and all those other cases (Inaudible) showdown.
John F . Davis: That -- that is right.
Earl Warren: We'll recess now.


Warren E. Burger: We'll hear arguments next in 72-1517, Georgia Theresa Gilmore against City of Montgomery. Mr. Levin, you may proceed whenever you're ready.
Joseph J. Levin, Jr.: Mr. Chief Justice and may it please the Court. This Civil Rights litigation comes before this Court on writ of certiorari to the United States Court of Appeals for the Fifth Circuit, and it follows a reversal in part and an affirmance in part of an opinion and an injunction issued by the United States District Court for the Middle District of Alabama. And although only two rather narrow issues remain for consideration by this Court, the litigation started out as a rather complex set of suits and motions which reigned at solving a problem of resegregation of public recreational facilities in Montgomery, Alabama. Prior to 1959, all public recreational facilities in Montgomery were segregated as a matter of law, as a matter of city ordinance. In 1959, the District Court of the Middle District in the initial Gilmore case, the first stage of this case, entered an order requiring desegregation of all public recreational facilities. Now, the city’s response to this order was to close all of the parks, all of the recreational facilities in the city. At about that same time, 1958-1959, the city first began to cooperate with the local private segregated YMCA by entering into a coordination agreement, turning over many public recreational programs to the YMCA. Other changes throughout the 60's and in the early 70's in the recreational programs of the city brought about a situation which the original Gilmore plaintiffs sought to correct. The desegregation of recreational facilities ordered in 1959 had been effectively negated, in our opinion, by increasing resegregation throughout the decade of the 60's. There were three interrelated suits and motions which were filed in order to try and do what could be done to undo what we term “resegregation.” First, in 1970 the District Court, in response to a complaint filed against the private YMCA, found that defendant to be conducting in concert with the city extensive segregated recreational programs. The court determined the YMCA was inseparable from the city itself and ordered desegregation of the YMCA. Second, in 1970, the present petitioners, in another aspect of the Gilmore case, reopened Gilmore alleging vast inequalities in the provision of public recreational facilities to blacks in the community when compared to what whites received. After one day of trial at which the court made a preliminary finding that, petitioners, plaintiffs then, had made a strong case or a strong showing of denial of equal protection. The city entered into an agreement which if followed would significantly and vastly improve recreational facilities in black neighborhoods in Montgomery. Third and finally, in 1972, the District Court entered the injunction, the order and opinion which really forms the basis of this particular stage of the litigation. There, the District Court said and actually issued a two-pronged injunction, enjoining the city from authorizing private segregated school use of public recreational facilities and also enjoining that same use by private segregated non-school clubs and organizations. The Fifth Circuit affirmed the segregated school aspect of the case only insofar as the use by the school proved to be what the Fifth Circuit termed an “exclusive use.”
Byron R. White: That's most of that issue, isn't it?
Joseph J. Levin, Jr.: The exclusive use is entire issue. That is really what is before this Court as to schools.
Byron R. White: So that it is really a -- they today affirmed the District Court almost entirely with respect to schools, isn't that really?
Joseph J. Levin, Jr.: Yes, sir, with the exception of exclusive use, they infer -- they affirmed the District Court entirely. We consider exclusive use to be a major problem in the enforcement of this --
Byron R. White: Yes, but the Court of Appeals says they will -- that non-exclusive use by segregated academies should not be there, is that right?
Joseph J. Levin, Jr.: That's correct.
Byron R. White: And so like they're going to the zoo?
Joseph J. Levin, Jr.: Well, first of all--
Byron R. White: Go in the park?
Joseph J. Levin, Jr.: I don't know that going to a park or going to a zoo is recreational activity in the context of this particular case.
Byron R. White: Well, give me an example, give me an example (Voice Overlap) --
Joseph J. Levin, Jr.: Well, for example, I think if you were to look at the agreement that was actually entered into between the city and the YMCA in 19 --
Byron R. White: You can find out why this is a serious issue in the case at all, is it not?
Joseph J. Levin, Jr.: Yes, sir. We believe it's a very serious issue and I think if you would look at the agreement that was entered into, which is in our reply brief, addendum page 134 (a).
Warren E. Burger: When, what year?
Joseph J. Levin, Jr.: This is 1965 when this became -- submitted into --
Warren E. Burger: What is the situation right now? What public facilities are available to the non-public schools and their students concerning which you complain? Could you just say 1, 2, 3, 4, what they are?
Joseph J. Levin, Jr.: I cannot because the only issue that the Fifth Circuit spoke directly to was private -- it was the private segregated school use of football fields, and then it said, “and similar uses” or something to that effect so that I don't know what other uses would be banned, would be forbidden. Presumably --
Warren E. Burger: Let's focus on the football fields and that's what you're challenging, that exclusion made by the Court of Appeals?
Joseph J. Levin, Jr.: We are challenging the exclusive use doctrine of the Court of Appeals. For example, if you get away from the football field factual situation which the Court of Appeals had before it, what do you do in a situation where there are six basketball courts available and the private segregated academy is only using one of the courts, is that an exclusive use?
Byron R. White: You're challenging a nonexclusive use doctrine in the sense that the segregated school should be barred from so-called nonexclusive use as well as exclusive use?
Joseph J. Levin, Jr.: But well, we're -- what we're trying to say is that exclusive use is not a definition that you can deal with in this situation. What you have to look to is whether or not your enhancing the program or the curriculum of the private segregated academy. And whether the exclusive -- the use is exclusive or nonexclusive is immaterial.
William J. Brennan, Jr.: Well, Let's get back, Mr. Levin. As I understand it, these private segregated academies may not use public football fields?
Joseph J. Levin, Jr.: That is -- that's correct, may not exclusively use a public football field. Now, may not exclusively use --
William J. Brennan, Jr.: I thought they couldn't use them at all, am I wrong?
Joseph J. Levin, Jr.: Exclusively. I --
William J. Brennan, Jr.: No, no, not all of them.
Joseph J. Levin, Jr.: Well, presumably, since the Fifth Circuit says that exclusive use is the only use that is barred. Then, if you could figure a way to use a portion of the football field --
William J. Brennan, Jr.: Well, if the public high schools -- if a nonsegregated public high schools use the football fields Monday, Tuesday, Wednesday, and Thursday, under this order, may a segregated academy use them on Friday?
Joseph J. Levin, Jr.: I would think -- I am not sure you have that in the order. I know, as a matter of fact, the city is not permitting that use.
William J. Brennan, Jr.: Oh, maybe I haven't read that in the record.
Byron R. White: Well I suppose, under the Court of Appeals' order, a segregated academy, a segregated academy team could play a nonsegregated academy team?
Joseph J. Levin, Jr.: Possibly so. The question-- what is exclusive use? You get right back to the problem of defining exclusive use. I might point out that the Fifth Circuit itself runs up against the problem because in a portion of the stipulation of facts submitted to the Fifth Circuit, one of the stipulations was to the effect, I do not have it right before me but it was to the effect that the -- that segregated -- there was no exclusive use. We stipulated that there was no exclusive use of these recreational facilities by private segregated academies and yet the Fifth Circuit’s own opinion upholds the injunction against segregated academy’s use of these football fields. It's -- we're saying it is an unworkable definition and that that is not the issue that you should look to. What one has to look to is whether or not this private segregated academy’s program, curriculum, whatever is being enhanced very, very much in the vain of the Norwood, of the Norwood case. Is the program being enhanced in some way by what the city service is being provided?
Warren E. Burger: Well, let me ask you a hypothetical relating to that. Suppose these were not matters of segregated schools, but suppose you had a Catholic academy run by the Catholic Order. Could, in your view, judicial power enjoin the city from letting the Catholic school play on that field because that had a tendency to enhance the operations of a church-operated school?
Joseph J. Levin, Jr.: No, sir. I do not believe so, and I believe Your Honor spoke to that very kind of point in the Norwood case when you discussed the difference between religious activity which is, if I could be so bold as to say, considered generally to be a good activity. It's not something that's banned by the constitution. And the segregation is the activity which is something that is spoken directly to in the Thirteen and Fourteenth Amendments where, I hate to use a good and evil type definition, but that's essentially what I think this Court was saying in the Norwood case. And, however now a different situation might be presented if the school, for example, were a segregated Catholic academy. Then, the fact of its Catholicism would have no effect on the segregated aspect of the school.
William J. Brennan, Jr.: Mr. Levin, you were satisfied with the District Court order, weren't you?
Joseph J. Levin, Jr.: Absolutely, yes sir.
William J. Brennan, Jr.: Now what is it the Court of Appeals allows that the District Court prohibited?
Joseph J. Levin, Jr.: The Court of Appeals allows nonexclusive use by private segregated academies of public recreational facilities.
William J. Brennan, Jr.: So what you object to is letting the private academies make use of any public facility where in your view its use contributes to the mission of the private academy?
Joseph J. Levin, Jr.: Yes, sir, but I think that it is important in this context to make note of the factual situation we find in Montgomery, Alabama. We’re not talking about any other section of the country or any other part of the country. We’re talking about a city that has a history of segregation and recreation, and I don’t want to get off into other public facilities because I don’t feel that that this case deals with other public facilities. It deals with public recreation facilities in Montgomery and there’s a unique factual background there. And I think that’s where the equal protection violations, if any, and we contend that they do, must be viewed from that point of view.
William J. Brennan, Jr.: Now for example, if there is a public park, with six basketball courts, I gather, in your view the private academy should not be permitted to have, for example, one of its teams practice on one of those six courts?
Joseph J. Levin, Jr.: Absolutely.
William J. Brennan, Jr.: Right, now, but suppose just students who attend the private academy go and just have a pickup team to play them on the courts. Is that permitted?
Joseph J. Levin, Jr.: The issue there is completely different. We believe that what (Voice Overlap) --
William J. Brennan, Jr.: (Voice Overlap) Would you say that should be prohibited?
Joseph J. Levin, Jr.: Only if the activity is school initiated. If individual citizens --
William J. Brennan, Jr.: Well, my hypothetical was there was a bunch of kids, their school day is finished and they stop by and they want to have a pickup game (Voice Overlap).
Joseph J. Levin, Jr.: (Inaudible) that would indeed be a constitutional violation in and of itself to prohibit those children in a non-school connected capacity from using public recreational facilities.
William J. Brennan, Jr.: Well a non-school connected then, that implies that it’s a part of the curriculum of the -- a course of instruction or something.
Joseph J. Levin, Jr.: Or program of the school.
William J. Brennan, Jr.: And if there’s any school program?
Joseph J. Levin, Jr.: Yes, sir.
William J. Brennan, Jr.: And as part of the school program, it’s your view that that ought to be prohibited?
Joseph J. Levin, Jr.: Yes, sir.
Harry A. Blackmun: Mr. Levin, your case is not restricted to schools here, is it?
Joseph J. Levin, Jr.: No, sir. It is not restrict it to schools.
Harry A. Blackmun: Let me ask you a question then. Apart from the school background, suppose a group of Black Muslims wanted to have a picnic in the city park some Saturday morning, under the Court of Appeals decree, is this possible?
Joseph J. Levin, Jr.: Once again, granting that a picnic is recreational in the context of this case, which I really don’t believe it is, but let’s assume that it is, I suppose it would depend on whether or not Black Muslims close their membership to whites or do they have, under the rule that the District Court promulgated, do they have a policy of segregation in admissions.
Harry A. Blackmun: Suppose they do and to get away from the picnic, suppose they wanted to use a basketball court?
Joseph J. Levin, Jr.: That is a much better example because they were dealing strictly with recreational activities that had gone on in the past in this case. And in that situation, if you can’t apply the Fourteenth Amendment to segregated black groups, and I’m not at all 100% certain that you can, but if you can, then the black group with the policy of segregation in its admissions policy would be treated the same as a white group with the policy of segregation because the whole purpose of this series of lawsuits since 1959 has been to desegregate recreational facilities in Montgomery, Alabama.
William H. Rehnquist: Mr. Levin, in the Court of Appeals opinion that is set out in your petition for certiorari and at page 13 (a) of the petitioner is a footnote to the Court of Appeals opinion, Footnote 12 --
Joseph J. Levin, Jr.: Yes, sir.
William H. Rehnquist: -- where Judge Clark said the District Court made no findings about the history, frequency, or effects of public creation -- recreational facilities by such non-school affiliated private organizations. Furthermore, in this case which was tried on stipulated facts, nothing was stipulated which would support this prong of the injunction. I went back over the -- your motion for supplemental relief, your stipulation. The answer is to interact (Inaudible) would incline agree with Judge Clark’s observation and I would think if that’s the case, you never reach a constitutional question on your so-called second prong, the non-school related thing?
Joseph J. Levin, Jr.: The private class --
William H. Rehnquist: You simply -- the Fifth Circuit could’ve reversed that prong of the -- simply because the traditional grounds for an injunction, whether you got a constitutional violation or any other violation, are not made out?
Joseph J. Levin, Jr.: Yes.
William H. Rehnquist: What’s your answer to Judge Clark’s (Voice Overlap) --
Joseph J. Levin, Jr.: I recognize that problem. I’d first like to point out that the court at the same appendix, 15 (a), made a finding which seems inconsistent with that Footnote that a period -- that there was a periodic and I quote, “a periodic use of recreational facilities by private clubs.” Now, there was evidence in the -- in all of the pleadings which the District Court considered, that is, the complaint, the answer, the motion which was a verified motion, there was evidence that all private -- that no one was excluded, but all private clubs and all private organizations were indeed permitted to use these --
William H. Rehnquist: But there was no showing, no indication at all as I read as to what the policies of these groups were with respect to whether or not they had open admissions or didn’t say much about it or what. That issue was really never focused on in your pleadings, I thought, or -- nor really by the District Courts?
Joseph J. Levin, Jr.: Much to the addendum to our reply brief deals with that very problem and we recognize this problem.
William H. Rehnquist: And your stipulation was to submit on the stipulation of facts, the answers to interrogatories in the pleadings without any reference to prior hearings in the case?
Joseph J. Levin, Jr.: I think though that submitting on a stipulation of facts, which we of course did, and perhaps all of this is the result of an over familiarity by us as lawyers and by the court with this case because there's been so much litigation in the past few years. But the District Court did have before it, the District Court level, a great deal of evidence in the Gilmore case of 1970. That was the motion we filed on behalf of petitioners to equalize recreational facilities in the City of Montgomery, both blacks as well as whites. Now, I would like to point out before I get into that, and I do want to talk about what was before the court, that despite the Circuit Court’s contention that there was in -- that there were insufficient facts and evidence it nevertheless has now affected a rule of law which controls every District Court within its jurisdiction.
Byron R. White: (Inaudible)
Joseph J. Levin, Jr.: Sir?
Byron R. White: Didn’t Congress post the case on that?
Joseph J. Levin, Jr.: Yes, it did. That’s my understanding.
Byron R. White: (Inaudible) as a matter of law?
Joseph J. Levin, Jr.: Oh, I see. It finally set it as a matter of law, that the right of association was such an overwhelming right when compared to any right that -- to any Fourteenth Amendment violation.
William H. Rehnquist: It reached the constitutional.
Joseph J. Levin, Jr.: They reached the constitutional issue so we have this -- if there was never a fact in the case, we still have a rule of law that exists in the Fifth Circuit that we think needs correcting.
William H. Rehnquist: But wouldn’t it -- it wouldn’t exist if this court affirmed that prong of the Fifth Circuit’s judgment, not on the basis which the Fifth Circuit had, but on the grounds that no showing of an equitable nature was made out to support such an injunction?
Joseph J. Levin, Jr.: Yes sir, or as the petitioner's suggestion would be rather than that, that perhaps this is a situation where the District Court should have an opportunity to reexamine the factual situation on remand and it might turn out to be administratively burdensome, and that the District Court is going to make findings of fact based upon evidence that it did have before it that was not included to the record going to the Fifth Circuit --
William J. Brennan, Jr.: Is this too simple, Mr. Levin? What you think ought to be held here is that whether this is a private academy or a private club, social club, or anything else that, provided it has a problem of segregation, excluding Negroes, participation in its affairs that in that circumstance no public facility should be opened to a no -- public recreational facility should be opened to it for the furtherance of any program of that organization?
Joseph J. Levin, Jr.: That would be an accurate statement of our position.
Warren E. Burger: How about art galleries?
Joseph J. Levin, Jr.: Once again, I don’t know that an art gallery has ever been an issue in any of these recreational cases.
Warren E. Burger: Well, let’s suppose the academy -- the private segregated academy says that on Saturday morning or Friday afternoon the third and the fourth grades will all go to the gallery as part of our enhancing -- your appreciation of art. So they can’t get in?
Joseph J. Levin, Jr.: I think this, and again this is a little bit away from the recreational area that in my opinion, aside from this case that they should not be permitted to use because it is an enhancement of the curriculum of the school and it is a school-oriented, school-initiated program. It’s a vast benefit to the school. It is certainly something that the school should not be permitted to --
Warren E. Burger: It's a benefit to school or benefit to students?
Joseph J. Levin, Jr.: It’s a benefit to the school. It enhances the school. It makes the parents --
William J. Brennan, Jr.: Each of the benefit (Inaudible)
Joseph J. Levin, Jr.: Well, we have suggested two possible --
William J. Brennan, Jr.: The sewage system and lighting system.
Joseph J. Levin, Jr.: We have suggested two possible exceptions. One, Justice Rehnquist -- Mr. Justice Rehnquist promulgated in Moose Lodge case that is, necessities of life and that that was once again mentioned in Norwood and the other is any bar that might totally ban the existence of the school within -- in the lines of something -- in the lines on Pierce versus Society of Sisters. Those are arguably exceptions and streets, public sidewalks, sewage facilities, those all come within it, I think, at least the necessities of life exception that we suggested.
Warren E. Burger: Would you really distinguish recreation from culture in this context, that is, the art gallery, the symphony concerts? Suppose, for example, the city maintained or engaged a symphony orchestra to come and play or a ballet and they issued free tickets to all the students of public schools, but refused to issue free tickets to students attending private schools. Do you think no equal protection question would arise there?
Joseph J. Levin, Jr.: I think that’s very much like the Norwood case where you issue free -- where you free -- issue free textbooks to all students in public schools, but not free textbooks to --
Warren E. Burger: Well, the textbooks are not quite like art galleries and theaters because other people and students use them. These are public facilities I’m talking about, open to the public generally. But under the hypothesis of my question, the students in the private schools would be excluded because they were students in private school?
Joseph J. Levin, Jr.: Because they were students in private segregated schools and because the permission to use these facilities would enhance the school itself and would be of great benefit to it.
William J. Brennan, Jr.: But as I understand it, you don’t go so far as to say that the school children should be barred to use of the public streets to get back and forth to the private school, the private segregated school?
Joseph J. Levin, Jr.: No, sir. We have specifically written to that several times in or at least tried to in the purpose of --
Byron R. White: How about lunch programs?
Joseph J. Levin, Jr.: Lunch programs, I don’t see any distinction between lunch programs and textbooks. That may be the most analogous situation.
William J. Brennan, Jr.: You mean even free milk?
Joseph J. Levin, Jr.: We’re getting far afield from recreational facilities, but --
William J. Brennan, Jr.: Oh, I’m not sure that they may -- they may not be recreational facilities, but don’t we have to find something (Voice Overlap) --
Joseph J. Levin, Jr.: I could not draw a distinction. I could not draw a distinction between the milk situation and the textbook situation. That’s available from another source. You can buy milk from another source.
Warren E. Burger: How about inoculation against contagious diseases?
Joseph J. Levin, Jr.: Might well come be under the --
Warren E. Burger: We’ll pick up at that point in the morning.