Earl Warren: Number 13 Original, State of Wisconsin versus the State of Tennessee. Attorney General Thomson.
Vernon W. Thomson: May it please the Court. This is a motion by the State of Wisconsin for leave to file a complaint in an original action against the State of Tennessee. The motion proposed complaint and brief were served upon the proper officials in the State of Tennessee. The Governor and the Attorney General of that State on the 14th, of October 1955. No answer or other pleading has been served by the State of Tennessee except a brief, which was served and filed and which we construe in the nature of a demurrer to our proposed complaint. We believe the jurisdiction is conferred on this Court by Article 3 Section 2, Clause 2 because it is an action in which one of the sovereign states is a party. In this action, both parties are sovereign states and we believe that Section 1251 (a) of Title 28 of the United States Code gives exclusive jurisdiction of this proposed action to this honorable body. The principal question involved in this proposed action is, does a Tennessee statute which allows residence of a marketing area in Tennessee to sell milk and milk products below a prevailing price without restriction, but subjects the residence of a -- of the State of Wisconsin to a thread of prosecution if they make sales below said prevailing price constitute a direct and undue burden upon interstate commerce? It is our position that it does. We believe that it is discriminatory against interstate commerce and hence violative of the Commerce Clause, Article 1, Section 8, Clause 3, and also violative of the Equal Protection Clause of the Constitution, Article 14, Section 1. The controversy arose as a result of the passage in the State of Tennessee of Public Law 74 of 1955. In this Act, it provides in substance that any person who shall sell milk or milk products in any marketing area for a less than the wholesale or retail price at the place of sale, when such milk has been prepared or processed for resale and transported into the marketing area from any point outside of the marketing area has committed a proscribed act. A shortened quotation from paragraph A of Public Act 74 describes the unlawful act as follows" To sell within any marketing area at wholesale or retail for less than the prevailing wholesale or retail price at the place of sale any of the following named products, market milk. And then they enumerate all various kinds of fluid milk, butter milk and cream that have been prepared or processed for resale and have been transported in the said marketing area from any point outside of said marketing area". Anyone violating the provisions of Public Law 74 will be subjected to penalties up to $300 or by imprisonment not to exceed three months or by both, such imprisonment and fine. It is the position of the State of Wisconsin that this law, the mere passage of this law creates a barrier to the free flow of milk from the State of Wisconsin into the State of Tennessee. And additional prescription in this Act permits an injunctional proceeding by the Commissioner of Agriculture. So, with the passage of this Act, the milk producers in Wisconsin are faced with injunction and prosecution if they transport milk into the State of Tennessee and attempt to sell it competitively in that State. This --
Felix Frankfurter: Are there any relief for such a milk producer of Wisconsin?
Vernon W. Thomson: Apparently, there is no relief except to comply with the law or engage in the expensive litigation in that particular jurisdiction.
Felix Frankfurter: Is it filed into the Commerce Clause, it would (Inaudible) that in light of this not to be in the penalty.
Vernon W. Thomson: Mr. Justice, that is why we are in this Court. This is a matter of great importance, this free interstate commerce in milk to the State of Wisconsin and to the thousands of milk producers in the State of Wisconsin. The second greatest industry in Wisconsin is the dairy industry. We produce tremendous quantities of milk in the State of Wisconsin. Prior to the passage of this law, substantial quantities of milk produced have been sold in the State of Tennessee. In the State of Wisconsin, there are 107,000 farm families engaged in the production of milk, and in 1954, the State of Wisconsin produced 16.5 billion pounds of milk. In addition to that, we exported from the State of Wisconsin more than 1 billion pounds of milk. This industry is vital to the State of Wisconsin. The export of this milk, we have a tremendous reservoir of milk available to the people of America if we are not prevented by a maze of discriminatory statutes and regulations and barriers from moving it freely in interstate commerce. Those 107,000 farm families in Wisconsin have more than 2,600,000 producing dairy cattle and more than 4 million cattle on their farms. The value of this milk exceeds $500 million. And the total volume of butter fat in addition to that milk shipped in interstate commerce out of the State of Wisconsin in 1954 exceeded 28.5 million pounds. So, this industry is vital to the State of Wisconsin and the free flow of this milk is essential to prevent the depression of dairy prices in our state if this milk is not permitted to move freely. And now we're faced --
William J. Brennan, Jr.: This milk -- this milk were being processed or shipped?
Vernon W. Thomson: It is required to be processed under the public health laws and --
William J. Brennan, Jr.: Raw milk to the farm would not come under the Act.
Vernon W. Thomson: Raw milk would not come under this Act, and to properly move it, it has to be pasteurized.
William J. Brennan, Jr.: Yes, and it could be the processes that permits it.
Vernon W. Thomson: The law exempts the producer but imposes restraints which are unreasonable upon him because the individual producer doesn't have adequate volume or adequate finance to move milk in a volume necessary for economical transportation.
William J. Brennan, Jr.: And then -- then it will be the processors who'd affect (Inaudible)
Vernon W. Thomson: Well, our processors in Wisconsin are principally large cooperative farm organizations who gather the milk, process it and transport it or sell it outside of the state as well as within our jurisdiction.
William J. Brennan, Jr.: That they could raise the problem in the Tennessee courts.
Vernon W. Thomson: Individual litigants could go down there.
William J. Brennan, Jr.: Individual processors.
Vernon W. Thomson: Individual processors could go down there.
William J. Brennan, Jr.: Even the -- in the sense of the farm cooperative.
Vernon W. Thomson: That is correct. But we are appearing here as we believe we are entitled to under the doctrine parens patriae to represent the 107,000 farm producers who have neither the adequate finance --
William J. Brennan, Jr.: Well, I -- I don't understand that because of what you said, the processors were the ones affected.
Vernon W. Thomson: Well, it directly affects the farmer if the processor can't --
William J. Brennan, Jr.: Directly or indirectly?
Vernon W. Thomson: It is through --
William J. Brennan, Jr.: Of course, didn't affect the price of milk. I understand that.
Vernon W. Thomson: And it affects the producer if his processor can't move his milk.
William J. Brennan, Jr.: Yes, indirectly. Well --
Vernon W. Thomson: We feel it's quite a direct affect because if the processor can't move it, the price --
William J. Brennan, Jr.: Yes, but my -- I inquired directly to is the problem of the process raises the question of Tennessee and it has relation to Massachusetts versus Missouri. Are you familiar with that case?
Vernon W. Thomson: Illinois versus Missouri?
William J. Brennan, Jr.: No, Massachusetts against Missouri. That -- that's where Massachusetts came into this Court. They wanted to -- to litigate with Missouri in regard to taxation because Missouri felt it was violating the constitution with taxation. Does that go up to the Missouri court, then from there up here? Suppose that we were interested in taxation.
Vernon W. Thomson: Well, we are relying --
William J. Brennan, Jr.: Cook -- Cook against Oklahoma, are you relying on that?
Vernon W. Thomson: We're relying on Pennsylvania versus West Virginia.
William J. Brennan, Jr.: Well, there -- there you have a proprietary matter.
Vernon W. Thomson: The Court permitted the filing of the complaint under the doctrine of parens patriae as we understand it in that case.
William J. Brennan, Jr.: They -- they alleged that they were the owners of buildings, did they not?
Vernon W. Thomson: They alleged they were owner of buildings and schools --
Hugo L. Black: Then use natural gas.
Vernon W. Thomson: And of course, we alleged that this has a direct impact on the tax revenues of the State of Wisconsin that our milk is not permitted to flow freely in interstate commerce.
William J. Brennan, Jr.: But both -- both Georgia and -- and Georgia and also Pennsylvania alleged that they were actual sufferers from the precise Act over the tax.
Vernon W. Thomson: We also alleged that we suffer through the tax revenues and the depressed --
William J. Brennan, Jr.: But that's -- that's (Voice Overlap) --
Vernon W. Thomson: -- conditions.
William J. Brennan, Jr.: -- way from this -- from a direct. Is there any case that where the state has not passed it?
Vernon W. Thomson: Well, in the case of Georgia versus the Pennsylvania Railroads, the Court said there that the proprietary allegation was more or less of a makeweight -- a makeweight argument and that they would permit the State to come into this Court under the doctrine of parens patriae.
Speaker: Of course, you have probably had smoke right over into Tennessee or the poison gas.
Vernon W. Thomson: Georgia versus Tennessee Copper Company, we feel that this is a very direct burden on interstate commerce.
Harold Burton: Mr. Attorney General, in applying your claim of parens patriae, you emphasized the number of uses in Wisconsin, or the numbers people are affected. Would your right be the same if it was a small number instead of a 100,000? The legal issue would be the same would it not?
Vernon W. Thomson: We think the legal issue that we represent the people of the State of Wisconsin even though they may be few that directly suffer, but in this case, many are suffering.
Harold Burton: But if it's few, could you or the State come in and -- and bring a suit against another state?
Vernon W. Thomson: I think we have that right under that doctrine.
Felix Frankfurter: Is cheese making of which (Inaudible) Is that -- is that a part of the dairy industry? Is that a separate industry?
Vernon W. Thomson: It's a very essential part of the dairy industry. It's a manufacturing phase of the industry.
Felix Frankfurter: But we have said the second (Inaudible) to include cheese and butter?
Vernon W. Thomson: Yes, cheese and butter, and fluid milk.
Felix Frankfurter: All the -- all these butter is coming from.
Vernon W. Thomson: In fact, it is a very essential part of the dairy industry. Wisconsin makes more cheese than all of the other states in the union together.
Felix Frankfurter: Does this law affect cheese?
Vernon W. Thomson: They have a -- Tennessee has a separate licensing law which affects manufactured products. This is --
Felix Frankfurter: Is this is part of the statute?
Vernon W. Thomson: This is directed principally to the fluid milk.
Sherman Minton: What do you understand do be the doctrine of parens patriae? How far does this go? What's the scope of it?
Vernon W. Thomson: Well, we construe it to mean the right of the State to appear for the substantial interest of the people of the State.
Sherman Minton: Any interest?
Vernon W. Thomson: Well, any substantial interest that affects the rights or the economy of the state, the rights of the individual people or the economy of the state.
Sherman Minton: Private litigants will just go out of business.
Vernon W. Thomson: Well, Mr. Justice, the Tennessee brief alludes to our pending action which was initiated by a foreign corporation which is a processor of milk and which is now in trouble in the State of Tennessee, but it was a --
Sherman Minton: Well, of course, you'd have the right to assist that individual or a party if you wanted to, but you -- it has the right to come here and have this Court try out the policy of Tennessee with reference to your individual dairy people in Wisconsin.
Vernon W. Thomson: Mr. Justice, that is the position of Wisconsin that we shouldn't be dependent on the benevolence of some private individual or foreign corporation to protect the interest of the people of Wisconsin where a statute directly burdens interstate commerce.
Tom C. Clark: (Inaudible)
Vernon W. Thomson: Well, Mr. Justice Clark, I have no familiarity with the case except that it was made a part of the brief of the State of Tennessee and I am confident that it involves other issues in which that processor may be interested other than the issue of interstate commerce in which we are principally interested here and the discriminatory features of the Tennessee Act.
Earl Warren: Mr. Attorney General, there are great many trade barriers that reflect in the same way against states, would you think that the any trade barrier could be the subject of an original suit here as between the states?
Vernon W. Thomson: Possibly not any trade barrier, I can conceive of some that would not. But we think that this is a barrier, a real barrier and a direct barrier against the free flow of milk between our State and the State of Tennessee. We have pleaded these ultimate facts and none of them have been denied by the State of Tennessee. And we believe that these facts bring into our operation the rules of law laid down by this Court in the decision in Pennsylvania versus West Virginia. One significant part of that case was the fact that Pennsylvania started suit only eight days after the passage of the law in West Virginia, and this Court entertained that suit against the -- we cited to show that this action was brought timely because this Court has entertained these actions when they were brought before any injury has been done and the Court said that the injured State did not need to wait until injury had been done but when the statute was clearly beyond the power of the State that this Court would step in and provide a remedy. And we also think that that doctrine is set forth in the case of Georgia versus the Pennsylvania Railroad which as we understand that case, accepted jurisdiction on the theory of parens patriae and not on the theory that the State of Georgia had a particularly or real proprietary interest.
William J. Brennan, Jr.: What -- what about Oklahoma against Cook?
Vernon W. Thomson: I'm not familiar with that, Mr. Justice. Possibly, that was a case that was for the benefit of private individuals and not for the sovereign state.
William J. Brennan, Jr.: Well, that -- that was the case that was brought likely a liability with people in (Inaudible) This Court said that it was better to let those matters be settled, the suits were -- private litigants were involved but not near incidental an interest of the State. That is not sufficient, the general interest of the state (Inaudible)
Vernon W. Thomson: What we feel in this --
William J. Brennan, Jr.: And particularly when you can get the same relief and it says that you can get the relief in the courts of Tennessee.
Vernon W. Thomson: But the citizen cannot get the relief without being burdened with expensive cost of litigation in a court, in a foreign jurisdiction, and the law -- the mere passage of this Act has effectively prevented it, the movement of milk in interstate commerce between Wisconsin and State of Tennessee.
Felix Frankfurter: If the statute is so obviously unconstitutional, why do we expend so verdantly? All you have to do is to file a bill, a motion to dismiss, motion denied, injunction, why is that so burdensome?
Vernon W. Thomson: Burden --
Felix Frankfurter: Except -- except the general burden with any litigations obviously.
Vernon W. Thomson: Well, we think it's an undue burden. We don't think there's --
Felix Frankfurter: I know but --
Vernon W. Thomson: -- ambiguity in the statute at all. It will take a long time to get the action to the Supreme Court of the United States. If it comes up through the process of starting in the District Court, coming up to the Supreme Court, we think it is direct and real, and present and it should be -- relief should granted.
Felix Frankfurter: We take cases from District Courts on very short notice.
Vernon W. Thomson: True.
Felix Frankfurter: The Court and constitutional questions. I merely meant that monetarily the statute on its face is obvious -- is it obviously unconstitutional, isn't very -- is the cause of litigation, all the -- all that the Court would have to do is to read the statute (Inaudible) And if it isn't that kind of a case, if it's a different kind of a (Inaudible) down the Commerce Clause, it depends on detailed facts, it has to be ascertained that the (Inaudible) case from Indiana. If you require it, it should've been -- it's better there's no place to have them.
Vernon W. Thomson: Mr. Justice, we -- we of course feel that milk is a legitimate article to move in interstate commerce. We feel that the doctrine of Baldwin versus Seelig established that fact. We also think that the doctrine must -- is repeated in the Dean Milk Company case versus the City of Madison, wherein Madison had an ordinance that required pasteurization of that milk within a radius of 25 miles of the City of Madison, and this Court held that it was discriminatory against interstate commerce and that it -- even though it discriminated against some of the people residing in the jurisdiction, that it was an undue burden on interstate commerce, and therefore, it was struck down. A similar rule was ruling in the case of Hood versus Du Mond which we think supports our position of -- that this burden in this particular case is a direct burden on interstate commerce and it is outside of the power of the state to regulate and thus discriminate against the people of the State of Wisconsin. They have further burden placed on interstate commerce in this Act, which requires that the milk must be sold in Tennessee at not less than cost. And then, they described cost as the cost to the producer in the State of Tennessee. It is our contention, and if we have the opportunity to present this matter to this Court that we can more efficiently produce that milk and that it -- that their cost factor is a direct burden on interstate commerce. So, we have this --
Speaker: (Inaudible)
Vernon W. Thomson: Well, Mr. Justice, we can't, the State of Wisconsin can't sue Tennessee in any court but this Court.
Felix Frankfurter: Cannot?
Vernon W. Thomson: As I --
Felix Frankfurter: Why not?
Vernon W. Thomson: As I understand the Constitution and the Code requires that this Court have exclusive jurisdiction of actions between sovereign states.
Felix Frankfurter: That isn't (Inaudible)
Speaker: What I had in mind was the same (Inaudible)
Vernon W. Thomson: The Dean Milk Company operates in Wisconsin. It is not a producer of milk. It is a processor and distributor of milk. It's --
Speaker: (Inaudible)
Vernon W. Thomson: It's a foreign corporation. It's been the subject of prosecution for the State of Wisconsin. We think the issues are so different in that case. We think that we -- there are so many provisions against the State appearing in that case that we appealed to this Court to take original jurisdiction of -- of this situation and we think this is the only place that we have a forum.
Speaker: (Inaudible)
Vernon W. Thomson: I think it -- that was a direct and undue burden on interstate commerce that they probably could.
Speaker: Against another state.
Vernon W. Thomson: That's why we are here in this action. It is our position that these sanctions enacted by the State of Tennessee and the threats of prosecution, the threats of injunctional action have created a real barrier which hamper and impede, and will eventually destroy the Commerce in milk between the State of Wisconsin and the State of Tennessee. And we have appealed to this Court as the only Court that has jurisdiction of this action and the hope that we may be permitted to file our complaint under the doctrine of parens patriae and be heard in this Court.
Earl Warren: Mr. (Inaudible)
Mr. Attorney General: May it please the Court. We don't think that jurisdiction of this Court to entertain suits between states rest upon the effect that an individual suit might have on the pocket book of some citizen of one of the states. It's our position first of all that the State of Wisconsin under the allegations of this complaint has not stated a cause which properly invokes the original jurisdiction of this Court. Secondly, that the state of facts in Wisconsin's proposed complaint justified this Court in exercising its discretion in the matter in refusing to take jurisdiction. And thirdly, that the statute is not unconstitutional. Now, getting to a number of questions that have been raised from the bench with regard to the rights of a private or individual producer in the State of Wisconsin to institute such an action, it's our position that there is nothing in the world to prevent a producer in the State of Wisconsin if the facts are such that bring him within the terms of the Act from coming into the State of Tennessee and sue in there either in the state courts or in the District Court of the United States, or if an action is brought against them in the state court, he can resist on the grounds of the invalidity of this statute. As a matter of fact, a suit to test the statute wherein it is alleged that the Act is unconstitutional under the Commerce Clause is now pending in the United States District Court in Nashville. The pleadings and the orders in that case as set out in the brief that there is a private litigant who is in Court who's fighting just as hard as he can to get the same kind of relief that Wisconsin is trying to get by the exercise of original jurisdiction in this Court. And the matter is now pending, waiting for it to be set before a three-judge court. Now, this matter is of primary importance for this reason. It's well known (Inaudible) only those who are affected by the statute can question its constitutionality. Now, as an example of what I'm talking about with particular reference to the situation that we have before us, suppose the state passes an Act taxing the sale of automobile tires and suppose I as a merchant go in and allege that I am a merchant that I don't like the statute and I want it stricken down. Well, I think I would have to go on and allege that I was engaged in the sale of automobile tires before acted -- get the Court to pass on the validity of the statute. Now, we say that that's exactly the position that the State of Wisconsin is in here. Wisconsin said we have a dairy industry. We've got so many cows and we produce so much milk. But the only allegation in this proposed complaint that comes anywhere near a showing that Wisconsin people and Wisconsin producers will be in any way affected by this Act is the allegation that huge quantities of milk produced in Wisconsin have been sold in Tennessee. Now the statute forbids certain marketing practices if done with intent to injure or destroy competition. It forbids the sale of milk that had been transported into a marketing area at less than the prevailing wholesale or retail prices place of sale. Marketing areas are defined as being counties that have within their borders municipalities which have ordinance is regulating the grading of milk. There is no allegation in this proposed complaint to any Wisconsin producer. Transports milk into any marketing area in the State of Tennessee. There is no allegation in this proposed complaint that any Wisconsin producer has sold milk transported in such a marketing area so as to violate the terms of this Act. Furthermore, there is no allegation that any Wisconsin producer has any desire to do anything that could possibly be construed as a violation of this Act. Now, the point I'm making is this. And it was set up by this Court in the case of United Public Workers against Mitchell. Unless there is a real controversy, neither this Court nor any other Court has jurisdiction to entertain a lawsuit. Now, in that case, the complainants went even further than Wisconsin has gone here because they alleged that they wanted to engage in certain political activity. They wanted to be poll workers and they wanted to go out and solicit for various candidates and all those things were forbidden by the Hatch Act and they said for that reason, it's unconstitutional. But this Court held that they should have been repelled in the lower court and the suit was finally entertained as to only one complainant who had actually done something that violated the Act. Now that brings us down to this proposition, before any suit, in any court should be entertained to test the validity of this Act, the complainant in the suit should be required to show that he has an interest in the matter. He has an interest that is adversely affected by the Act. That is a matter that can be threshed out in the District Court. That is a matter that can be threshed out in the state court between some individual producer in the State of Tennessee or some competitor. All those matters can be determined. A searching inquiry can be gone into, to find out whether or not the Act affects him and whether or not he's entitled to maintain it.
Felix Frankfurter: Mr. Attorney General, there is an allegation as there are 12 of the proposed complaints with the (Inaudible) Wisconsin have been and sold in Tennessee and as such there is (Inaudible) hamper and impede to destroy it, is that it?
Mr. Attorney General: Yes, Your Honor.
Felix Frankfurter: And you think that is sufficiently particular?
Mr. Attorney General: I think it is not sufficiently particular. I think the entire complaint, proposed complaint fails because of that. I think furthermore --
Felix Frankfurter: You mean, there's -- how could you have in the state of the 28 of the millions (Inaudible) 59 million pounds of milk shipped, (Inaudible) in Tennessee where they said that. They haven't said it?
Mr. Attorney General: They haven't said in testimony.
Speaker: Now, substantial -- it might be anything from -- I don't know what, a thousand pounds or 500 pounds or 10,000.
Mr. Attorney General: Yes Your Honor.
Speaker: (Inaudible)
Mr. Attorney General: There'd been no offer to do so as I understand it. I realized that it might come in the future.
Felix Frankfurter: You're speaking against the complaint. We're not speaking against some complaint of (Inaudible)
Mr. Attorney General: That's right.
Speaker: What about Pennsylvania against West Virginia?
Mr. Attorney General: Pennsylvania against West Virginia was an entirely different proposition for this reason. The statute there under attack unequivocally placed a limitation upon the exportation of natural gas from the State of West Virginia. The allegations in the complaint showed very clearly that this would have an adverse effect on -- not only people of Pennsylvania but the State of Pennsylvania itself because there was an immediate threat by the mere passage of the Act to cut off the flow of natural gas.
Felix Frankfurter: Pennsylvania itself was a consumer.
Mr. Attorney General: Yes Your Honor.
Felix Frankfurter: The state itself was a consumer.
Mr. Attorney General: Yes sir. And its people were consumers. Here, you've got nothing of that character. Now, the statute went on --
Speaker: (Voice Overlap) (Inaudible) proprietary in some other angle, isn't it? Then you would have to face Georgia against the Pennsylvania Railroad, isn't it?
Mr. Attorney General: Well, I think it's in the same situation as the Pennsylvania case with regard to the matter where now a discretion because there you had situation where the damage not only was being threatened but was being done according to the allegations in the complaint.
Speaker: Yes. That is -- I was thinking about the other face of it.
Mr. Attorney General: Yes sir. But now you -- pardon me sir.
Speaker: (Inaudible)
Mr. Attorney General: Yes sir.
Speaker: (Inaudible)
Mr. Attorney General: Well, I -- I merely mentioned that incidentally to show that the State of Pennsylvania without any doubt was going to suffer both in a propriety capacity and there's parens patriae.
Felix Frankfurter: Well, we would have a very different case if Wisconsin as was true of North Dakota (Inaudible) for themselves, engaged in the milk business, (Inaudible) if you own warehouses and (Inaudible) activities as a proprietor.
Mr. Attorney General: I think -- I think you --
Felix Frankfurter: You'd have a very different case (Inaudible)
Mr. Attorney General: I think you'd have a different case if Wisconsin went on to allege not only that they occupied a propriety capacity but also that the State of Tennessee had done something that affected them or was threatening to do something --
Felix Frankfurter: I was -- I'm assuming (Inaudible)
Mr. Attorney General: Yes
Felix Frankfurter: (Inaudible) that it's possible
Mr. Attorney General: That's right. Now, there's no showing of that here. This statute went on the books. I believe it was the 28th day of February 1955. This compliant was filed some time in October. There's no allegation in it that any milk has been kept out of in the State of Tennessee. There's no allegation in it that any producer has suffered a penny loss or he suffered at all.
Felix Frankfurter: Well, there -- there are (Inaudible) that were more important state (Inaudible)
Mr. Attorney General: But they haven't alleged that it's been enforced in a way that hurts them.
Earl Warren: Mr. (Inaudible) is -- is it your contention that they have not made the proper allegations here or that they cannot make the proper allegations to get into this Court?
Mr. Attorney General: It's our contention first that they have not made the proper allegations. They have not stated a cause of action. It's our contention in the second place that they can't make proper allegation because of the very nature of the suit.
Earl Warren: Assume for the sake of argument that the economy of Wisconsin has been seriously injured by this -- by this law. Is there any court other than this Court open to the State of Wisconsin to remedy that wrong if it's --
Mr. Attorney General: Not --
Earl Warren: -- if it is wrong?
Mr. Attorney General: Not that I know of. No, sir.
Felix Frankfurter: Why do you say that, I don't understand?
Mr. Attorney General: I think the --
Felix Frankfurter: Is that what happened in Missouri against Massachusetts?
Mr. Attorney General: I'm not familiar with it Your Honor. No, sir.
Felix Frankfurter: I don't understand (Inaudible) familiar with the case which it says that the original jurisdiction is an exercise of discretion by this Court and not a compulsion.
Mr. Attorney General: Well, that's my decisions in not having read it, Your Honor. I -- I understand that it is a matter of discretion and that's what part of my argument is directed at because the very basis of the lawsuit can only be determined between somebody who's engaged in the sale of milk and milk products. It's further our contention that the statute is not invalid on its face. As pointed out --
Earl Warren: Before you get to that. Do you -- do admit Mr. (Inaudible) that it is -- it is a matter of discretion as to whether we should take this case or do you claim that we have no jurisdiction (Inaudible) under the circumstances?
Mr. Attorney General: Well, I -- I think first that you have no jurisdiction under the allegations. Secondly --
Earl Warren: (Voice Overlap) would just have discretion, (Inaudible)
Mr. Attorney General: I think if you do have jurisdiction, it's still a discretionary matter. As pointed out to --
Earl Warren: Yes.
Mr. Attorney General: -- Mr. Justice --
Earl Warren: I thought your answer to Mr. Justice Frankfurter was that that's exactly what you claimed that it was a discretionary matter with this Court whether we would take it or not.
Mr. Attorney General: Only if the Court has jurisdiction. I failed to make myself clear about that.
Earl Warren: I -- I didn't get that.
Mr. Attorney General: We say first you have none and secondly it should not be exercised if the Court has it. It's further the insistence of the State of Tennessee that this statute is not invalid. The primary complaint about it in the proposed pleading is that it is a direct and undue burden on interstate commerce. The terms of the statute primarily provide that it shall be unlawful to sell that below prevailing wholesale or retail price at the place of sale, milk that has been produced for resale and transported into a marketing area. This applies not only to milk that is transported across state lines but also intrastate. Therefore, we insist that there is no discrimination against interstate commerce.
Earl Warren: Does it apply for local -- local producers and distributors also?
Mr. Attorney General: Not with respect to that particular provision of the statute.
Earl Warren: Well, how do you -- how do you avoid that discrimination? Isn't that a discrimination that permits local producers and processors to -- to sell at any price but to charge interstate producers to require them to charge a higher price to take it out of the realm of competition?
Mr. Attorney General: It might be if they were permitted to charge in the price. But while that particular provision of the Act does not affect them, there is another provision of the Act that applies to everybody whether the milk has been transported in or not, which prohibits its sale less than -- at less than cost to the seller.
Earl Warren: Whose cost?
Mr. Attorney General: The seller's cost.
Earl Warren: Fixed by whom?
Mr. Attorney General: There is no party that -- official organization or anything that fix the cost. They -- they just provide cost to the seller.
Earl Warren: Well, I -- I understood the Attorney General of Wisconsin to say that the cost -- the minimum cost was to be fixed by the cost of doing business by the local producers and distributors. I don't know whether I heard him correct that you are not in that -- but that's what I -- I understood him to say.
Mr. Attorney General: I think that's his contention about the matter but --
Earl Warren: That is not the fact?
Mr. Attorney General: That's not as we see it, no, sir. The Act provides this. That no milk where there imported into a marketing area or not shall be sold at less than cost to the seller. That provision goes on to state that proof of cost to other sellers in the marketing area shall constitute prima facie evidence of cost to the seller against him, any action might be taken. Now, it might be said that cost to the seller is fixed. We say that that is merely a rule of evidence established by the Act in order to permit the proper state official or an injured competitor to go into Court and establish some standard of price. Of course, it isn't conclusive on anybody and it can be rebutted.
Earl Warren: But every -- every distributor that -- that came in from the outside would have to establish some action that what his cost would be or he would be subject to imprisonment under this statute.
Mr. Attorney General: That's conceivable, yes Your Honor.
Earl Warren: Well, it's a claim in effect though, isn't it?
Mr. Attorney General: Yes. So, local producers who don't transport across county lines are not left unaffected by the Act. Now the -- the prevailing price provisions don't affect them.
Earl Warren: Does not?
Mr. Attorney General: No, sir. But the below cause provisions do affect them. So, nobody's left unregulated within marketing areas.
Earl Warren: A local -- a local distributor himself or anything he wants as long as it isn't below cost.
Mr. Attorney General: Yes, sir.
Earl Warren: That is his cost.
Mr. Attorney General: Yes.
Earl Warren: His own personal cost.
Mr. Attorney General: Yes, sir.
Earl Warren: But anyone coming from the outside cannot sell for less than the general cost in the industry in that (Inaudible)
Mr. Attorney General: That's right, the prevailing price.
Earl Warren: The prevailing price.
Mr. Attorney General: Yes Your Honor.
Earl Warren: You don't see any discrimination there?
Mr. Attorney General: Not against interstate commerce, because it applies equally to intrastate commerce. Any milk that's imported into an area, whether it comes from the State of Wisconsin or whether it comes from, say DeKalb County, Tennessee, Shelby County, Tennessee is subject to the same restriction. For that reason we say that there is no basis for Wisconsin's allegation that their people are denied the equal protection of the law because it does apply equally to all groups to do such acts as to bring themselves with any term.
Hugo L. Black: Did Wisconsin file a suit for the Tennessee Court? Would they be (Inaudible)
Mr. Attorney General: I'm not prepared to answer that question, if it please Your Honor.
Hugo L. Black: That had considerable -- vary on this Court's opinion in Missouri against Massachusetts.
Mr. Attorney General: I think if Wisconsin --
Hugo L. Black: In that case, the Attorney General said that the state could file a proceeding in the state court.
Mr. Attorney General: I think if they can make the proper allegations as to harm, they can do it. I regret that -- that I'm not prepared to give Your Honor a definite answer to that question yes or no but I'm not. Certainly, any citizen of Wisconsin who is affected and who can make proper allegations of harm has perfect right to try to come into a Tennessee court and have this Act tested. There's no reason on Earth why he can't do that.
Hugo L. Black: I was asking about the state.
Mr. Attorney General: Yes I understand Your Honor's question.
Hugo L. Black: Is there any rule against the state filing a suit in the state court?
Mr. Attorney General: No, sir.
Felix Frankfurter: (Inaudible)
Mr. Attorney General: No sir, none that I'm aware of.
Felix Frankfurter: (Inaudible)
Mr. Attorney General: Yes, it would.
Earl Warren: I understood you to say in answer to my question that there was no forum other than this Court open to the State of Wisconsin in these circumstances.
Mr. Attorney General: I did make that response to your question. I'm not definite about the state court. I -- I feel reasonably sure that Wisconsin on proper allegations could get into the state court.
Felix Frankfurter: Well, you were evidently under the (Inaudible) you make the assumption made by the Attorney General of Wisconsin that all you have to do is to read Article III and (Inaudible) to see whether it would have jurisdiction (Inaudible)
Mr. Attorney General: No, sir. I think the federal statute put exclusive jurisdiction particularly insofar as federal courts go and this Court between -- in suits between states and maybe that I'm confused about that.
Felix Frankfurter: (Inaudible) But it isn't so that (Inaudible)
Mr. Attorney General: No. All right sir.
Felix Frankfurter: Well, it isn't merely what you (Inaudible) Massachusetts against Missouri (Inaudible) the case which has come to this Court from California, or a suit was brought in the District Court. The argument was -- it must be brought (Inaudible)
Mr. Attorney General: If it please Your Honor, we think the cases of Baldwin against Seelig and hood against Du Mond do not support the position of the State of Wisconsin in this case. There, there was an unequivocal barrier to the flow of milk in interstate commerce which does not exist here. On the question of whether this statute is valid or invalid under the Commerce Clause of the constitution, we rely upon the cases of Eisenberg -- Milk Control Board against Eisenberg Farm Products wherein this Court approved the action of a Milk Control Board of a state in setting prices of milk that was -- prices that was to be paid to producers of milk in the state even though milk was to flow in interstate commerce. The same result was reached in the case of City Service Gas Company against Peerless Oil & Gas Company wherein there this Court upheld the action of the State of Oklahoma in fixing prices for gas that was to be taken from a certain field even though that gas was to be transported in interstate commerce. Those cases went even further than the statute in the case at bar because there, there was a definite price fixing arrangement where the State of Oklahoma on one hand and the State of New York on the other hand said, "This shall be paid for Oil & Gas and this shall be paid for milk in no less." There's a statement in City Service against Peerless Oil that we think is directly applicable to the situation at bar. This Court said that it's not every incidental effect on the interstate commerce that will strike down a state statute that the states have a right to enact certain police regulations even though they might have some incidental impact on interstate commerce. The requirements are that interstate commerce not be discriminated against we think that test has been made here that there is no undue burden on it. We think that so far as the pleadings here go, there is no showing of undue burden. There's nothing on the face of -- of the statute itself to indicate that an undue burden will be placed on it. And furthermore, we think that if the safeguards and obvious state interest over which the national interest if there be any and the prevention of all regulation does not prohibit. It's therefore our insistence that Wisconsin has no right to maintain a suit that even if the Court has jurisdiction, its discretion should be exercised against the filing of this complaint and that lastly, the statute is not invalid.
Tom C. Clark: You said the Court (Inaudible) sure whether Wisconsin could sue in a Tennessee court.
Mr. Attorney General: Yes, sir. That's what I --
Tom C. Clark: You're not -- you're not quite --
Mr. Attorney General: -- said. That's right.
Tom C. Clark: You -- and -- at that time, you were speaking about a suit by Wisconsin against some private company or were you thinking of a suit by Wisconsin against Tennessee.
Mr. Attorney General: I was thinking about the suit by Wisconsin against Tennessee because I thought that before the question was directed.
Tom C. Clark: Whether Wisconsin sue in the Tennessee courts a -- the officials who were -- or the producers under the Tennessee law.
Mr. Attorney General: The -- the officials under the Tennessee law?
Tom C. Clark: This is a suit here. This -- this bill seeks (Inaudible) to here, as you know a suit by Wisconsin versus Tennessee.
Mr. Attorney General: Yes, that's right.
Tom C. Clark: What kind of a suit could Wisconsin bring if any in Tennessee?
Mr. Attorney General: Well, I think there's no doubt that she could institute -- well, I started to say a suit against some private individual in the State of Tennessee. I can't conceive to state any facts under this statute that would give her suit against a private individual.
Tom C. Clark: That -- that's what I was wondering here.
Mr. Attorney General: I -- I was thinking about the State of Tennessee as being a party defendant in response to his Honor's question.
Tom C. Clark: Or one of its official.
Mr. Attorney General: Or one of its official. Yes, Your Honor.
Speaker: Do -- do the officials of Tennessee expect to enforce this law?
Mr. Attorney General: The officials of Tennessee do not expect to enforce this law through their own official action. And if I may explain that briefly in this respect, the statute gives to the commissioner of agriculture of the State of Tennessee or any aggrieved party the right to institute an injunction suit against this -- under this statute. It's his policy --
Speaker: (Inaudible) against the violator --
Mr. Attorney General: Against the violator. Yes, sir. It's the policy of the commissioner of agriculture himself not to institute the suit but leave it to the individuals who might be aggrieved.
Felix Frankfurter: Let's (Inaudible) these are non-agricultural members of this Court (Inaudible) Does that mean that a farmer or dairy man in Tennessee complaining against undue or unfair competition, Wisconsin (Inaudible) could bring a suit against that in Wisconsin in a court as though your commissioner of agriculture (Inaudible)
Mr. Attorney General: That's correct. Yes Your Honor.
Earl Warren: How about -- how about your prosecuting attorneys on the criminal -- under the criminal sanction?
Mr. Attorney General: That's something that's up to them individually.
Earl Warren: As to whom in a state?
Mr. Attorney General: The prosecuting attorneys.
Earl Warren: They have an obligation (Inaudible)
Mr. Attorney General: Yes, sir.
Earl Warren: I assume they would, would they?
Mr. Attorney General: I think so, yes.
Felix Frankfurter: Is there -- there are -- there is penal sanction?
Mr. Attorney General: Yes. Yes, Your Honor.
Felix Frankfurter: And what if anybody (Inaudible) the violation of the statutes shall be guilty of misdemeanor (Inaudible)
Mr. Attorney General: It's a misdemeanor. The punishment is set out in the Act --
Felix Frankfurter: How is this -- how does a Tennessee man go against a Wisconsin importer into a Tennessee court?
Mr. Attorney General: You have to catch him in Tennessee. It's a misdemeanor advance, if it please Your Honor.
Felix Frankfurter: Does it go against any of the local distributor for Wisconsin dairy (Inaudible)
Mr. Attorney General: Yes sir, if he violates the Act.
Felix Frankfurter: In other words, suppose (Inaudible) suppose a lot of milk needed in Wisconsin (Inaudible) the distributor in Tennessee whatever the equivalent in the statute (Inaudible).
Mr. Attorney General: Yes, sir.
Felix Frankfurter: The statute is (Inaudible)
Mr. Attorney General: It would hit the man in Tennessee if he violated the statute.
Felix Frankfurter: Well, is that the normal course of business of milk coming in Wisconsin (Inaudible)
Mr. Attorney General: I think so. Yes, sir.
Felix Frankfurter: (Inaudible)
Mr. Attorney General: That's my understanding of it. The allegations of the bill are not specifically as to that so yes.
Speaker: Well, Mr. Attorney General, do I understand that the test is that Tennessee courts, state or federal, would it be necessary for the Wisconsin shipper the (Inaudible) to violate the Tennessee law and be prosecuted (Inaudible), is that it?
Mr. Attorney General: No, sir. I think that he can come in under either the federal or the state declaratory judgement statute and if he can show a real threatened injury he then --
Speaker: (Inaudible) is not a threat to prosecute him.
Mr. Attorney General: Well, I can conceive of a threat if he --
Speaker: I -- I can say that there would be a threat. But I understand that -- that that's entirely within the power of the commissioner of agriculture (Inaudible)
Mr. Attorney General: It was in his discretion and power as to whether he'll institute these injunction suits and he has said that he would not.
Speaker: In the discretion of the prosecuting attorney as to whether he will institute any (Inaudible)
Mr. Attorney General: Yes, Your Honor.
Speaker: How -- how does it going to be tested in a Tennessee court? Have a violation of the law then depend on the ground that it's unconstitutional?
Mr. Attorney General: That's one way. I think it can be done under the declaratory judgment statute if a real dispute arises between somebody who sells milk that's been transported from Wisconsin and perhaps a competitor in Tennessee who is worrying that he is being harmed by the act of --
Speaker: (Inaudible) doesn't do anything about, does he?
Mr. Attorney General: The competitor could institute an injunction suit against the man who is violating the Act.
Speaker: That man in Wisconsin?
Mr. Attorney General: Well, he might be or he might be in Tennessee. It would --
Felix Frankfurter: Well, you don't have to be very hypothetical about this, this Court have had a number of (Inaudible) of this nature dealing with milk coming up in various states complaining against the same kind of barriers by state laws against interstate commerce and they went to either federal or state courts in those states and then came here under a challenge that the state statute would violate the Commerce Clause.
Mr. Attorney General: Yes, sir.
Felix Frankfurter: Isn't that a (Inaudible) if this is invalid and all these suits should've been brought by the state.
Mr. Attorney General: That's right.
Speaker: I understand those cases though. Those were all violations that took place and the jurisdiction of the court should be in the trial.
Mr. Attorney General: I think that's true.
Speaker: So that if -- for instance, the violation in Wisconsin (Inaudible)
Mr. Attorney General: I think in those cases, the milk people who were complaining were actually suffering --
Speaker: Actually suffering and actually (Inaudible)
Mr. Attorney General: Either there, there is a law by its own terms prevented them from selling or building a plan or whatever it was they wanted to do.
Felix Frankfurter: (Inaudible) would it be true to say they are barred from entering Tennessee although the Commerce Clause permits them to enter Tennessee. You don't need any more of the dairy (Inaudible) if you got that kind of a case. I think it goes to your court and (Inaudible) bearing a judgment. The federal court could enter a declaration. That's what happened in those cases. (Inaudible) respectively that New York and Pennsylvania passed statutes dealing with the milk that is beyond the power of the state (Inaudible)
Mr. Attorney General: Yes sir.
Felix Frankfurter: And they would show you that they would be heard hypothetically but immediately.
Mr. Attorney General: Yes.
Speaker: But -- but the fact that your private litigants can sue isn't an answer to this central problem it seems to me. Whether or not the state may also true -- whether or not the state has -- I know you maintain the state has the -- it doesn't have substantial interest here compared to (Inaudible) but -- I mean this was (Voice Overlap) --
Mr. Attorney General: The State of Wisconsin. Yes, sir.
Speaker: But certainly in the -- in the water rights cases, the interstate water rights cases, those issues could be focused in private litigations, being the downstream owners of riparian rights, upstream owners. The fact that they can sue doesn't mean that the states involved may not also.
Mr. Attorney General: It doesn't necessarily mean that, no sir. But we say that the issue here are such that it will be suited to the framework of the -- of a controversy in this Court. And that even if this Court has jurisdiction, as a discretionary proposition, anybody who is suffers because of this Act should be relegated to the more orthodox procedure where those matters can be determined.
Speaker: I -- I could follow that if I could understand as to how they would get that settled without risking the violation of the law, the statute.
Mr. Attorney General: Under the declaratory judgment statute it might not be necessary to go far enough to risk a violation of the law. However, in United Public Workers against Mitchell this Court held that the only people who had a right maintain that suit were the ones who had violated the law and not those who expressed a desire to violate it.
Speaker: (Voice Overlap) --
Earl Warren: Was the statement -- was the statement made by the Director of Agriculture that he did not propose to enforce this law by state action? Was that made for the purpose of preventing someone from filing a complaint claiming that he threatened to enforce this law?
Mr. Attorney General: No, sir.
Earl Warren: What was the purpose of it?
Mr. Attorney General: It's merely a statement of his policy, if it please the Court.
Earl Warren: For what purpose?
Mr. Attorney General: He just doesn't think that the Department of Agriculture has any business in getting involved in matters of this kind.
Earl Warren: Even though the legislature has -- has said that he should then that it's a penal offense for people to violate that law?
Mr. Attorney General: The legislature didn't say that he should. It said that he might. He was given power but no duty was imposed on him to do it if he didn't see fit to.
Speaker: I don't quite understand just what you think would be necessary to authorize filing a suit in Tennessee. Of course if the Court has a discretionary duty (Inaudible) right that it had with him to decline. That discretion might be exercised under some circumstances not under others. It might -- therefore, it might be that the right to sue somewhere else. Suppose we'd first take a dairy man from Wisconsin. Suppose he went down and then said now, I've been shipping business in milk (Inaudible) I want to continue it because I want to start -- ship milk into the market and sell them under the Interstate Commerce Clause (Inaudible) But I'm afraid shipping in because -- (Inaudible) your prosecuting officers are charged with (Inaudible) then you might prosecute me every time I ship something in. And he filed a suit and said no more than that in your state court. Could he -- would your court take jurisdiction of any kind of suit, test that law on his allegations that the law violates the Commerce Clause.
Mr. Attorney General: I don't --
Speaker: Is that enough?
Mr. Attorney General: I don't think that would be enough. No, sir.
Speaker: Well, it's not enough to say that he wants to do business there. That the law is outstanding and that the duty is on the prosecuting attorney to prosecute him so that he couldn't do that. Well, how could he do it?
Mr. Attorney General: I think it would be necessary for him at least to go on and allege that what he proposed to do was some act that this state -- that this statute made a violation.
Speaker: Well, of course he said that. Would that authorize him to challenge it in your court?
Mr. Attorney General: I think so, yes.
Speaker: Suppose, instead of a -- it being the (Inaudible) the state came down, said there are many, many people out there who wants to do business. We've come down and we are authorized on our state law to file a suit for them. And they allege that they had all these people who wants to come in Tennessee and the -- that (Inaudible) prosecuting attorney does (Inaudible) of prosecution and that the -- their sales would violate your law. And if your law violates the Commerce Clause would you still say you aren't certain whether the state could file that suit?
Mr. Attorney General: Yes sir I am. Would the Court give us permission to brief the question of whether or not the State of Wisconsin could maintain such a suit in a state court in Tennessee against the State of Tennessee?
Earl Warren: I think the Court would like to have that information if it doesn't take you so long. If it takes a couple of days, we can do that.
Speaker: I would suggest --
Mr. Attorney General: Thank you sir.
Speaker: -- if you look at several suits that -- cases that haven't been referred to either brief at all, I don't know how you missed them. One of them is Missouri against Massachusetts and the other is the (Inaudible) United States against the Belt Railroad of California. If there were (Inaudible)efforts have been made to file claims here by states and it's been indicated for (Inaudible) suits could be filed either in the state court or in the Federal District Court if the state courts were (Inaudible)
Mr. Attorney General: There were --
Speaker: -- cause of action.
Speaker: Will you permit me to (Inaudible)
Mr. Attorney General: Yes, Your Honor.
Felix Frankfurter: (Inaudible) the preparation of your brief. You indicated or (Inaudible). There are two questions here. One, the question of the exclusiveness of this Court as the forum where it's supervise the state, that's one question having to do with the distribution of jurisdiction of Article III. But there's another question, very different, wholly different on whether or rather when Wisconsin may sue either in Tennessee or in a District Court or here mainly, whether there's a right litigation which you've started out or arguing about, according to the rules of this Court, you must have a really large action, existing litigation by a claimant who is hurt, who is not just generally wanting to get a declaration from the statute to be unconstitutional. And they're very different questions because the lack of (Inaudible) existing likelihood, concrete litigation, has nothing to do with the question whether this Court is exclusive (Inaudible) or not.
Mr. Attorney General: Very well, sir.
Felix Frankfurter: I find this Court as much as (Inaudible) as it does and (Inaudible)
Mr. Attorney General: Yes, sir.
Earl Warren: Mr. (Inaudible), if you can have your memorandum in by tomorrow night then the -- Mr. Attorney General, if you could have yours in by Thursday.
Mr. Attorney General: Very well.
Speaker: Touch also on the --
Earl Warren: They need not be printed.
Speaker: Need not be printed.
Earl Warren: Need not be printed.
Speaker: The possibility of the -- one of the shippers in this (Inaudible) without violation (Inaudible)
Mr. Attorney General: Very well sir. Thank you, sir.
Earl Warren: Mr. Attorney General, did you -- you had a very few moments left if you wish to use them.
Vernon W. Thomson: May it please the Court. Counsel for Tennessee apparently isn't aware of the fact if the Director of Agriculture of the State of Tennessee has placed him a mail and sent to the processors of milk, shipping milk into the State of Tennessee a copy of Public Law 74 which we are here discussing without comment what the processor felt the clear implication of that notice was that the State of Tennessee did intend to enforce the law against people who attempted to deliver milk into the State of Tennessee. It was our position in our plea for right to file a complaint here that speed is one of the reasons -- expeditious relief is one of the reasons for granting a litigant the right to come in parens patriae and represent their people. And particularly in view of the large number of people in the state and the impact on the economy of the state the delay would affect the Dean Milk Company did begin litigating with the State of Tennessee in April of 1955. And that case is still in the District Court of the State of Tennessee and there's no reason for us to believe but what if the Dean Milk Company can find markets elsewhere that they will withdraw from their attempt to go into the State of Tennessee and abandon their lawsuit in the State of Tennessee. The processor in this particular type of industry stands between the producer and the ultimate consumer and his interest may not coincide with the interest of the producer in getting his milk into the hands of consumers. And therefore, we feel that it is vital that the matter be considered in this Court and not make us depend. Not make all of the producers in the State of Wisconsin depend on the interest of some producer to take action in the State of Tennessee to litigate that question.
Felix Frankfurter: Do you happen to know why that (Inaudible) filed in April?
Vernon W. Thomson: It's filed in April of 1955.
Speaker: 1955. Do you happen to know whether the burden of the document in that Court is -- is especially heavy or whether for one reason or other, the parties didn't bring it down or it couldn't be brought out?
Vernon W. Thomson: I have no information Mr. Justice but I am well aware --
Felix Frankfurter: (Voice Overlap)
Vernon W. Thomson: Excuse me.
Felix Frankfurter: It is -- still to enjoin a statute on constitutional (Inaudible)
Vernon W. Thomson: That's correct, yes.
Speaker: A three-judge court.
Vernon W. Thomson: Yes. A three-judge court has now been ordered I understand to here --
Speaker: (Inaudible)
Vernon W. Thomson: I'm just advised --
Speaker: (Inaudible)
Vernon W. Thomson: Well, that's -- mine is hearsay also but I --
Speaker: (Inaudible)
Vernon W. Thomson: The State of Tennessee has threatened enforcement. We feel that it is discriminatory both by requiring us to sell at the prevailing market price and there's no definition of what it is and also requiring us to sell at not below cost which is a cost determined by the producers in the State of Tennessee which may be entirely different from the efficient production cost that can be obtain in the State of Wisconsin. And we feel and we will brief this but we had relied on Title 28 Section 1251 which says, paragraph A, "The Supreme Court shall have original and exclusive jurisdiction of all controversies between two or more states."
Felix Frankfurter: Mr. Attorney General, am I under a misapprehension in assuming the Dean -- milk cooperative in Wisconsin is a rather large organization with considerable methods?
Vernon W. Thomson: They vary in size Mr. Justice. Some of them are small some of them are very --
Felix Frankfurter: (Inaudible) considerable larger --
Vernon W. Thomson: There are some very sizable cooperatives.


Earl Warren: -- Kossick, Petitioner versus United Fruit Company. Mr. Rassner.
Jacob Rassner: Mr. Chief Justice, Justices of the Supreme Court. The question upon which we seek instruction is just to what extent a ship owner owes a seaman the duty of maintenance and cure and whether or not the obligation may be terminated or delegated. The court below has held that a ship owner's obligation to treat its sick or injured seamen is delegable by the expediency or by the method of tendering to a seaman a so called master certificate which is a paper signed by what the master, or one of the other officers, notifying a marine hospital that the bearer of that paper is eligible for treatment. We hold that such decision is contrary to the authorities treating with the subject. We believe that a ship owner's obligation for maintenance and cure just does not ceased by a mere tender of a piece of paper nor that they can delegate it by saying to somebody else, a marine hospital, “Gentlemen, this is your problem from here on. We've given a piece of paper to our seaman. We wash our hands of further obligation. It's your duty.” Another question which I think has been met and discussed many times by Judge Learned Hand as I've pointed out in my brief and I do not intend to repeat that which I have covered in the brief and by this Court that when we are dealing with a maritime composition, state law will not be permitted to alter, diminish or abolish the rights given to seamen. There has been a great deal of talk about seamen now being represented by unions and they do not need the protection of the courts as wards of the Court. But realistically and based on over 35 years of experience, I still consider them as just big overgrown boys, children, they need protection now just as much as years ago. They --
William O. Douglas: I have to pursue the petition -- what happened below?
Jacob Rassner: The plaintiff, the petitioner here was a chief steward working for the United Fruit Line. He had a goiter. He had an illness and he retained Dr. Fricke as his surgeon to treat it. He had had some experience with the marine hospital and was fearful of going back not knowing whether he'd get internist, a learner, a student or some experienced doctor to treat him. He'd had some minor ailments in the past and was quite fearful. He went to the United Fruit Line and said I will pay for my own doctor. I've already retained him and I set forth the names of the people in debates in the amended complaint and in answers to interrogatories. The United Fruit Line said, “You will not be permitted to hire your own doctor or we will stop your maintenance. You go to the marine hospital.” Obviously, the point was that if he went to his private doctor, his maintenance would continue because he does not get maintenance while in the marine hospital. He wanted his maintenance. He had no means. He had no choice of freedom of bargaining. So he discharged his own doctor and went to the marine hospital. He says that but for a promise by the United Fruit Line to indemnify him for any damages, they had a lot of conversations, many and the substance of it was if there is anything that befalls you by reason of faulty treatment or lack of treatment, we will compensate you for all your damage or loss. That was not in writing. The court below, the trial court was a District Judge, Judge Bicks, held that the Statute of Frauds barred the action on the contract made by the United Fruit Line with the chief steward to the effect that the United Fruit Line would indemnify him for damages.
William O. Douglas: And by New York law.
Jacob Rassner: Yes and we take the position that this is a contract. Call it by whatever terms, whatever material may be spoken of, it is still a contract, it is still a seaman's contract and it is still subject to the scrutiny given to a seaman's release. Now that the same scales of justice should be employed in measuring the circumstances under which that contract was entered into. But for the Statute of Frauds of the State of New York, the decision, both in the District Court and in the Circuit Court of Appeals asserts in substance that the petitioner will have a malt -- a valid cause of action for the maltreatment at the marine hospital.
Potter Stewart: Mr. Rassner, is there any claim at all that the petitioner's original condition was the result of any breach of duty on -- on the part of --
Jacob Rassner: No, Justice Stewart, there is not.
Potter Stewart: Just the illness and the --
Jacob Rassner: That is true. And our amended complaint paragraph 19 on page 5 shows that we did allege that he was not treated properly because his maintenance was just cut off and he had no freedom of action, no choice of selecting his own doctor whom he had selected. Now we take the possession that the New York Statute of Frauds which curtails his rights, is no different in the law is applicable to relations generally. You do not judge seamen on the basis of state law when you treat with a contract called a release and I do not see why this type of contract falls on any different category. That's my personal view on it. Now, insofar as the argument and I did not ask for time to rebuttal, I know what the arguments are by Mr. Eugene Underwood that in so far as other States, 50 States have similar statutes that doesn't make any difference because they may have similar statute as to seamen's releases. We're dealing with a maritime tort. Now, the -- to let the court below --
Speaker: Maritime tort you say is (Inaudible)
Jacob Rassner: Maritime tort which illegibly -- which that the tort is the failure to given the treatment a breach of contract is failing to give in his maintenance and cure. So, whether we deal with maritime tort or maritime contract, we're dealing with maritime law and state law should not be permitted, to court -- curtails.
Charles E. Whittaker: (Inaudible) this is a Court Act, not a (Inaudible) form of contract.
Jacob Rassner: The choice of expression was ill advised. I should have -- I should have read -- just refer to the breach of contract. There was a tort involved in the way the complaint is drawn, failure to give him cure and treatment, failure to give him his maintenance was at tort. But we are primarily consigned with the contract at this particular discussion of his rights. We take the position that the contract for maintenance and cure and I do not believe there is any room for rebuttal or refuting that contention, it is maritime. It's part of the wages of the seamen and I think this Court has expressed it any number of cases including the last six or seven that came down dealing with seamen. I have reference to the Mitchell case, (Inaudible), I have reference to the Romero case and several of the others treating with and (Inaudible) all treat with the fact that a seaman's right to maintenance and cure is part and parcel of his contract of employment. Now, if we make a distinction between the responsibility and the end result, we are taking a maritime contract and chopping it into pieces. If he is entitled to maintenance and cure, he is entitled to it by reason of his employment, his contractual relationship to the ship. If something is substituted for it, I do not believe that that creates a cleavage. If they substitute a promise to give him money on shore for the obligation of maintenance and cure, which is certainly ashore most of the time, if not always, I do not see where the learned court below was justified into the conclusion. This was a contract to be performed ashore. It doesn't make the slightest bit of difference in my humble opinion where it was to be performed.
Felix Frankfurter: (Inaudible) position of the lower court that it was to be performed ashore, what you have to attack is that the duty to provide cure wasn't satisfied because the opinion as I read it below rests on the composition that the contract followed the satisfactory of the obligation to provide cure of it.
Jacob Rassner: It is most --
Felix Frankfurter: And therefore, what you have started out was -- and seems to me to be the gravamen of the case namely that did not satisfy the requirement of the cure.
Jacob Rassner: I read the part of the lower court's decision of page 22 of the transcript the above four or five lines down. Nevertheless, it is obvious that it applies only to maritime contracts. The contract sued on is not maritime contract since it was merely a promise to pay money on land if the former seems to be --
Felix Frankfurter: Well, money is a vital thing but, to pay money and -- but go on read the rest of it. It clearly said that the obligation to provide cure satisfy -- I take it --
Jacob Rassner: Oh, that is another point of error which we urge that the mere giving of piece of --
Felix Frankfurter: That is another point. If that is right, if there was a satisfaction of the duty to provide cure, then this is a subsidiary thing that the -- they said whether -- whether the old case in 248 is still valid or not, it's a different situation.
Jacob Rassner: It is most difficult to counsel to differ with the Justice of the Supreme Court but I respectfully --
Felix Frankfurter: You would never have that difficulty Mr. Rassner.
Jacob Rassner: Well, but I do have the difficulty now. I don't see if that's void at all. I see it as a maritime contract. No matter what language is used, no matter what substitution was made.
Felix Frankfurter: Although -- although the provision that preceded it, satisfied the requirement of case, is that right? Is that the difficulty --
Jacob Rassner: Well, it's -- if we take that as an assumption, then the answer is right. I don't think that assumption at all. I say --
Felix Frankfurter: I understand that. But that's a different --
Jacob Rassner: If -- yes, of course.
Felix Frankfurter: Alright, we'll take that assumption.
Jacob Rassner: Then the answer is yes, it's satisfied.
Felix Frankfurter: Alright. Then -- then, the contact nevertheless is a maritime contract outside of the so-called of New York authority, is that right?
Jacob Rassner: Yes, sir. I - I think that the --
Felix Frankfurter: But I -- I -- maybe so but it isn't Erickson case.
Jacob Rassner: Well, I -- I take a great deal of relief from reading the opinion in the Erickson case insofar as eliminating the distinction between whether it's in writing or whether it's forum. And, insofar as (Inaudible) the Statute of Fraud deals only with the distinction. Is it in writing, is it oral? I take the -- the satisfaction to that extent from the Erickson case, but, my point is -- is that being maritime at its very nature. It can't change as substituting, a promise to pay on land doesn't change it. The second point is, there is a difference between the two bargaining parties. It is utterly ridiculous to assume that a seaman is going to ask ship owner or for that matter get from him or a claim agent, a written agreement when they substitute something for the right to maintenance. That's just is unrealistic. And when we're dealing with seamen, we have to be realistic, this Court has so stated. Then the next question comes like Your Honor, I think wrote in Pisel case. You have to consider the bargaining positions of both parties. Here is a man who has actually made an agreement with his doctor to be treated. The United Fruit Line comes in and says "Don't do that. Why go to that expense. Why put us to that expense in substance. We think the US marine hospital is good enough anything happens, we'll make it up to you." Now, if that had been in writing, it have a cause of action but who would ever think of getting that writing so in -- so my position is this that we have to take a realistic approach. Unfortunately, I didn't get this case until several years after the statute against the Government had run.
Felix Frankfurter: I think that's the real gravamen of the case.
Jacob Rassner: Well, that's the -- we -- I would have -- I wouldn't have been here otherwise, but we certainly would not have a complaint dismissed. The point I make is that it's still maritime. It just that it isn't writing.
Felix Frankfurter: Do you think the argument is over when you say I think it's maritime where the state law can apply?
Jacob Rassner: No. No, I think that the question of the Statute of Fraud is only incidental. I think that here is a seaman's action where the more important question is the obligation and I think that that is primarily why we're here. To get instruction, how far is the duty of -- of a ship owner, how far does it extend? Does it extend only to the time they give a master certificate or a hospital certificate or does it go beyond that? Does maximum benefit of pure mean maximum benefit until the seaman is out of their hands and the hands of marine hospital or does it mean what it literally says, maximum cure that the obligation does not die? It is not sent into limbo when the certificate is given. The obligation is, if I read it literally is the big maximum cure is the terminating point. And until then, it is still the ship owner's obligation regardless of who the individual is that gives the treatment. There is nobody can argue that the Government hospital was grossly neglectible here. They gave a man a -- I think it was a male nurse, gave this man an anesthetic full strength and burned the anus completely out that he have to have a colostomy done at one side and then neglect him further, that became effected, he have to do a second colostomy on for a simple goiter operation and turned out that the man is ruined for life as chief steward. Now, the question is one that presents a legal question. Where does -- that is the main point, where does the obligation stop? At the issuing of the certificate, can the ship owner say now I wash my hands of it, of every responsibility I have given you a certificate or does it continue until that particular seaman has gotten the maximum benefit of medical and surgical aid in attendance irrespective of who --
Charles E. Whittaker: Aren't you talking about the second count?
Jacob Rassner: Yes, Your Honor.
Charles E. Whittaker: In that respect?
Jacob Rassner: Yes, sir. Now, discontinued a cause of action for maintenance because his maintenance was paid and we did not want a few dollars that was left over standing away of having the question fully presented and we have to take to the other and I voluntarily discontinue the second cause of action so we can have a main issue taken upon appeal. Otherwise, it would have been premature.
Charles E. Whittaker: So the second count is not here?
Jacob Rassner: It is not here in that sense. It is here in the sense that under the contract that the petitioner entered into with the United States Lines. The question is one, even to come within the very provisions of the New York Statute of Frauds, because of the obligation was the United States -- United Fruit Lines obligation to place distance, then it did not have to be in writing. Then their promise orally made would be sufficient. In other words, if the obligation or death is the primsor's, it does not have to be in writing under the New York Statute. I've quoted it in that brief.
Earl Warren: Mr. Underwood.
Eugene Underwood: Mr. Chief Justice and may it please the Court. I think it might be helpful to say a few words at the outset as to what is not involved in this case. Mr. Rassner has said and I say this somewhat in passing but this man has been ruined for life. There's nothing in the record about this. This case came up from a decision on a motion but the fact is that he has been employed quite frequently in recent times on board United States Lines vessel as a chief steward. As to what is not involved in this case, there is no question about the duty of maintenance and cure being delegable or not delegable. This was not held below. Neither court below discussed or decided such a question. The suggestion seems to be that it's the duty as part of cure for the ship owner to the stand over the medical man and supervise the medical man's attentions to the patient. This has never been held by any court anywhere. There is no question upon seaworthiness or negligence in this case. There is no question as to liability or any breach of duty on the part of this defendant. The only question is one of contract. Indeed, there is no question of maintenance and cure as such. That cause of action has been discontinued. To correct a statement, Mr. Rassner made, no maintenance was ever withheld in this case. There is no suggestion of that in the record and I have brought here for display as may be needed this man's original receipts for a maintenance that was paid to him over the months that follow. There is not therefore any question in this case of maintenance and cure at all. The only question --
Felix Frankfurter: Would you mind stating it again why there is no question of cure? Would you mind stating it again?
Eugene Underwood: Yes, sir, yes, sir. Because cure was supplied by giving the master's certificate to a public health service hospital which this defendant had reason to believe was a competent public institution.
Felix Frankfurter: But as I understand, that is a challenge isn't it Mr. Underwood?
Eugene Underwood: I can't quite tell. I would much rather have Mr. Rassner speak for himself if Your Honor please. He challenges great many things, sometimes more and sometimes less one time or another. However, if that --
Felix Frankfurter: What do you say on the merits whether making appropriate provision for his entering -- entering into then marine hospital, does that take care of the obligation to furnish cure?
Eugene Underwood: I -- I say that it does. In Calmar against Taylor in 303 US, this Court so held, and I have a brief quotation of it on page 22 of the respondent's brief.
Charles E. Whittaker: But are we concerned with that question here? The second count sought recovery for failure to provide maintenance and cure and it was voluntarily discontinued.
Eugene Underwood: That is correct, sir. That is correct.
Charles E. Whittaker: You're at the end of it?
Eugene Underwood: Yes, sir. In my judgment, in my opinion, it is sir. The only question in this case is whether or not – or not this alleged oral contract by this defendant which it denies to answer for the debt or default, the possible debt or default of the public health service people if they should per chance, injure this man in the course of administering cure is a valid contract and enforceable and the defense --
Charles E. Whittaker: (Inaudible) whether it's a Maritime contracts or not, (Inaudible)?
Eugene Underwood: Possibly so, that's one view. Our view was that the Statute of Frauds controls it and it doesn't make any difference whether it's maritime or not because to apply the Statute of Frauds to this contract, if it be maritime would not distort or disarrange the so called uniform admiralty rule.
Felix Frankfurter: (Inaudible) as I understood you, a minute ago in answering Mr. Whittaker, you said the discontinuance of the second account was a discontinuance of claims for maintenance and cure. Did I understand it --
Eugene Underwood: Yes, sir. I so understand it.
Felix Frankfurter: But as I understand the -- Judge Magruder's opinion, he said you can't -- didn't deal with maintenance and cure but just deal maintenance. The cure point is -- your cure point relies on Judge Hawkes' opinion in Barker, isn't that it?
Eugene Underwood: That is -- that is the cure point, Judge Hawkes' opinion in Barker said that that complies with the shipowner's duty--
Felix Frankfurter: Which was cited in -- which was cited in (Inaudible) wasn't it?
Eugene Underwood: Yes, it was sir.
Felix Frankfurter: So the cure point is definitely by Judge Hawkes in Barker and the maintenance point insofar as it is dealt with, it dealt with by the discontinuance without the prejudice of the second count.
Eugene Underwood: My recollection is sir that the second cause of action included maintenance and cure and that that has been discontinued. I can't put my finger on it on the record.
Felix Frankfurter: That is what Justice Magruder said.
Eugene Underwood: But it all -- yes sir.
Charles E. Whittaker: (Inaudible) does say that on record 22 in the last paragraph in his opinion where he says as to the obligation for his maintenance to the (Inaudible) point second count (Inaudible) defendant failed and the (Inaudible) maintenance and cure was in the order of (Inaudible) the second cause of action to discontinue without prejudice and without (Inaudible)
Eugene Underwood: If the Court please, on page six of the record, in the middle of the page where the second cause of action paragraph 22nd, alleges that it was the duty of the defendant to provide the plaintiff for the expenses in his maintenance and cure. Now that cause of action was discontinued. If you'll refer to page 14 of the record ordered that the second cause of action in the within cause be and herby is discontinued without prejudice and without cause.
Felix Frankfurter: What I'm suggesting is that Judge Magruder took it distributively or not conjunctively.
Eugene Underwood: Well, that -- that just may be sir. But our -- our point is that the owner, the ship owner in defending itself against seaman's claims needs the protection of the Statue of Frauds as much as any class of defendants in the community.
Felix Frankfurter: What has happened to Erickson since it was decided? Naturally I don't think anything has happened in 1919 is in the middle ages but it is usually called old in old case. What has happened to that case?
Eugene Underwood: It's very rarely been cited if the Court please and I have no quarrel with Erickson. That was a contract between a ship master and a ship owner to serve as master for an indefinite time, more than a year. Before the lapse of the year had passed, he was fired for failure to perform his duties properly and he sued on the contract. That's all. That was obviously a maritime contract, no doubt about it.
Felix Frankfurter: That's really the -- that was an agreement for employment as a --
Eugene Underwood: -- as the master of a ship and you could hardly get anything more maritime than that.
Felix Frankfurter: The local variation certainly would not be tolerated as to that.
Eugene Underwood: I should think that would be true although the application -- the -- this Court's refusal to apply the statute to that case has been criticized by some of the text writers.
Felix Frankfurter: Anyhow that's not this?
Eugene Underwood: No, sir, no sir. Now, of course to apply the Statue of Frauds to a case of this Court works no prejudice to the uniform maritime rule because there isn't any uniform maritime rule about what must be and may not or need not be in writing. And furthermore, all 50 states do have a Statute of Frauds or its very substantial equivalent so that if you do apply each state's statute, you will get the same result anyway.
Felix Frankfurter: Is there any maritime law regarding the subject matter of what the Statute of Frauds deals with?
Eugene Underwood: No, sir except -- none that I'm aware of except the statutes that required that seaman's articles being writing, I know of no other. Now, this Court has been getting further and further away from the uniformity of doctrine anyway in recent times. In Standard Dredging Company against Murphy where Mr. Justice Black wrote the opinion, you held at New York unemployment insurance tax must be paid by the employers of maritime workers and the payment of such a tax to New York would not destroy a maritime uniformity. In a recent case, Huron Portland Cement against Detroit you held at a municipal ordinance requiring certain smoke retarders in tug boats which all already been passed by the inspectors of the coast guard was not violative of the uniformity concept. In Kelly against Washington several years ago, you held the same way with regard to state inspection of diesel tugs although the Federal Government did not require diesel tugs to be inspected and although the Federal Government had established their (Inaudible) for a system of inspections and exempted them and so on. It seems to me that the basic, the underlying question in this case and the decision that the petitioner would like to get from this Court is one to the effect that the ship owner is bound to pay for the damages resulting for malpractice even in the case such as this where there is no liability for the original ailment that makes it necessary for the man to seek medical attention. Now, there is no precedent for such a ruling anywhere, and there are several contrary to it which I referred to in my brief. In response to Mr. Justice Frankfurter's questions I've already indicated to you that in Calmar, this Court indicated that a limit of the ship owner's obligation where the man does go to the public health service hospital is to make that available to him by master certificate. The books are full of cases where the ship owner has been held to have complied with his requirements, fulfilled his duty by providing competent medical attention. There are I think four cases in the books where the ship owner has provided medical attention by some person or institution which has proved not to be infallible namely where the man has been injured as a result of some malpractice or mistake in the medical institution or at a doctor's hands. And uniformly in those cases, the ship owner has been exonerated has not been held liable for that kind of injury or that negligence because it needs one of those cases as here, the ship owner was justified in believing that the medical institution or the medical doctor was licensed and competent. That's his full duty.
Felix Frankfurter: In other words, if there any ill consequences of discharging his duty by way of a public health hospital be left to the local law authority, is that it?
Eugene Underwood: Yes, sir. And that --
Felix Frankfurter: What you're saying here, what you were arguing here is that this agreement is really an agreement to deal with those consequences which without agreements would be left to the local law.
Eugene Underwood: Yes and there would be no consequences.
Felix Frankfurter: But I mean if there is incompetence on the part of surgeon, (Inaudible)
Eugene Underwood: This man had a perfectly complete and adequate remedy. He could have sued the United States for this injury that befell him and he had a complete remedy. Unfortunately for him and it's very regrettable, he left the time go by but that of course is no reason why the law of maintenance and cure should suddenly and without allowing the industry to be heard on the question would be greatly enlarged to require ship owners to be responsible for the malpractice of any perfectly well-qualified physician or a surgeon to whom it might send a man for treatment. A ship owner can't possibly be expected to stand over the doctor or the surgeon and supervise his treatment and that's what a decision in favor of this petitioner would require.
Potter Stewart: Well, not quite that, there is a allegation here that you promised that you all -- that you promised to do that, that you promised to stand over the physician and make good any harm (Inaudible) commitment?
Eugene Underwood: Oh yes. I've gone one step behind that. I say that the opposition in that believe to be perfectly sound as the Court of Appeals thought and I have said that I think what really the petitioner really wants this Court to decide regardless of the promise or the Statue of Fraud or the maritime nature of the contract, I think what the petitioner really wants for this Court to decide is that maintenance and cure is such a broad thing that it includes not only providing or making you available to competent medical attention, but would also includes actual affecting of a cure. That is what I say has never, never been held. And if that's to be the law then I respectfully submit the Congress should be permitted to make it so.
William J. Brennan, Jr.: Mr. Underwood, is the making of this (Inaudible), is that it?
Eugene Underwood: Oh no sir, no, sir. This has a --
Potter Stewart: -- As to this case I suppose it is, isn't it because it's --
Eugene Underwood: Oh, by virtue of the pleadings for the purposes of this argument, yes.
Potter Stewart: Alleged in the complaint and the –
Eugene Underwood: yes the purposes of this argument, it is admitted but as Judge Bick said in his opinion, we all think there is a strategem to get around the tort three-year statute. Thank you.
Jacob Rassner: I wonder if might my answer to Justice Frankfurter's questions?
Earl Warren: Yes.
Jacob Rassner: Mr. Justice Frankfurter, you asked us to the Union Fish company case Erickson, Judge Ryebell referred to that case. I have that on page 7 of my brief and I would like to ask one more point of Mr. Underwood raised which was not taken up in the Statute of Limitations as to the United Food two or three years. There was nothing to stop them for impleding U.S. Government after the two-year statute had run. So that the fault could've actually be determined at one trial so that a real tort we sought could have been held to account.