Earl Warren: Number 92, Service Storage & Transfer Company, Petitioner versus Commonwealth of Virginia. Mr. McInerny, you may proceed.
Francis W. McInerny: Mr. Chief Justice, may it please the Court. This case was on writ of certiorari to the Supreme Court of Appeals of Virginia. Petitioner is a motor carrier holding operating authority from the Interstate Commerce Commission. It conducts operations of principally between defined areas in the States of Virginia and West Virginia. The State Corporation Commission instituted proceedings against petitioner which led to fines totalling of $5000 for transporting shipments between two points in Virginia through Bluefield, West Virginia in accordance with its interstate certificate as construed by the Interstate Commerce Commission. There were a total of 17 counts specified in the rule to show cause before the State Corporation Commission. And at the hearing, in the submission of briefs there, they convicted on a total of the seven counts omitting three that the Government later confessed thereon. So to summarize on that points -- on that point, Your Honors, there were 10 counts involving shipments moving from one point in Virginia to a second point in Virginia where the State authority has conceded that the operations were interstate in character. Now, I believe that if I can make reference to a map that I have here behind me. I may more quickly inform the Court on the facts and circumstances surrounding the growth or development of these interstate certificates and I earnestly state that an understanding of these facts, I believe, will make it easy for the Court to decide the question of law that's involved. Here is Southwestern Virginia.Above the black line is the State of West Virginia and over here to the west or left is a portion of Kentucky. Soon after the enactment of the Motor Carrier Act, a petitioner qualified as a grandfather operator and was issued a certificate of public convenience and necessity which generally describe and as is depicted here, permits operations between Bluefield, West Virginia and points within five miles thereof, on the one hand, and on the other points in Southwestern Virginia and described by this blue line and points in West Virginia. Now, the Interstate Commerce Commission's --
Earl Warren: What is the scale of that map, please do -- just -- just so we would know approximately.
Francis W. McInerny: By maintenance is 5000 -- about 40 miles.
Earl Warren: Period is 40 miles.
William J. Brennan, Jr.: Yes, you mean the whole -- all of that is 40 miles?
Francis W. McInerny: No, Your Honor, from Old Bluefield to Roanoke is about 54 miles. This -- this would be about 54 miles, Your Honor.
Earl Warren: The one inch to five miles that's the -- one is to five miles.
Francis W. McInerny: That's correct, sir. Now, with respect to this first certificate of petitioner, the Interstate Commerce Commission has consistently held that a -- the radial authority of this truck authorizes the whole of thereof to conduct operations between the radial base which would be the Bluefield area here on the one hand and on the other any or all points described in the outlying territory. That is, that it could pick up a shipment at Roanoke and deliver it in Bluefield or pick up a shipment in Bluefield West Virginia and deliver it in Bristol or Whitfield or Charleston, West Virginia. (Voice Overlap) --
William O. Douglas: They pick up the shipment at Bristol and deliver it to Roanoke?
Francis W. McInerny: It could not, sir. Later, I believe in 1943 Service Storage through a Section 5 application asking Interstate Commerce Commission to be permitted to acquire the authority previously issued to a gentleman by the name of (Inaudible) and he was the holder of authority described here in yellow that is between Bluefield, West Virginia enforced within five miles thereof and on -- on the one hand and on the other points in within 75 miles of this base area in Virginia and West Virginia. Now, pursuant to the provisions of Section 216 (a) of the Motor Carrier Act, prior to the time that these two individual carriers were merged in one carrier, they were permitted to interchange or interline the track just as railroads and for the regulated carriers are permitted. For example, a shipment could be picked up at Roanoke on the yellow certificate brought to the radial base which is the point in common to both certificates and then delimit, so to speak, on the blue certificate or pick up at Roanoke brought to Bluefield, West Virginia and deliver it at Charleston, West Virginia. Now, getting to the actual operations that were involved in this controversy, I have drawn in an attempt at simplification of the whole problem, some of the halving of operations that have been conducted historically since the certificates were merged but certainly as the record discloses for a period of more than four years. They had the -- a collection of LTL shipments as they say in the trade, less-truckloads, small shipments averaging, in my case I believe, approximately 400 pounds. They would be consolidated at a terminal location at Roanoke, Virginia and move in line haul service or over the road service to the base territory Bluefield, West Virginia where the carrier has its principal terminal and some 74 odd units of equipment. They also had operations coming down from Charleston, West Virginia into this area. Coming up from Bristol, Virginia into this area moving through the same terminal so the result of it would be, you'd probably have 20 shipments on a vehicle, moving from Roanoke to Bluefield, 17 of them going on to destinations in West Virginia, and the remaining three going on to various points down on Southwestern Virginia. It was stipulated on the record, there's no dispute about this fact. And that is that all operations. All questioned shipments physically moved from a point in Virginia out-of-state through the Bluefield, West Virginia terminal. So, we have no problem of them -- in some cases where a carrier short -- shortcut its radial base or its so-called gateway point. Now, the State of Virginia's evidence in this case consist almost exclusively apart from the conceded facts that we were doing this, of a map, an official map of Virginia. And they take the position that operations conducted between Roanoke and Whitfield, since they have a percentage of security greater than the most direct highway through were illogical, none direct and the abnormal routes of movement. Unfortunately, by using a map and picturing oneself as driving a car instead of working at -- worked through the transportation experts (Inaudible) It is -- we are easily mislead by the security problem raised by the State of Virginia. They contend that since there is certain securities in certain of these operations that the operations are a subterfuge to evade the State regulatory process. We introduce evidence in this proceeding demonstrating that the operations conducted again, I take my example as Roanoke because it's the only large city in the area and it generates the most traffic. From Roanoke to White Sulphur, from Roanoke to Bacliff, from Roanoke to Charleston all of these operations, Your Honors, are securities. So also is the one that -- one of those seven to Whitfield. It is securities for mileage and some cases is but twice as great as great as the direct route. The reason why there was twice as great as the direct route in transportation handling is that in order to effectively transport a lot of traffic and conducting operations profitably, you must have a flow of freight as the only qualified express transportation witness stated in this proceeding. He stated that because the flow of freight -- freight was moving towards Bluefield he could handle shipments down in Whitfield economically by moving them first into Bluefield and then later consolidating with shipments coming in from the north out-of-state points such as Charleston, West Virginia.
Felix Frankfurter: May I ask whether the Commonwealth of Virginia through this claim of designed security by evidence other than mere geographical evidence?
Francis W. McInerny: Nothing, Your Honor.
William J. Brennan, Jr.: You mean only the map withheld to routes, leads over to Bristol --
Felix Frankfurter: Roundabout.
William J. Brennan, Jr.: -- to many roots and that's the direct line to South Virginia?
Francis W. McInerny: Yes. Yes, Your Honor.
William J. Brennan, Jr.: Oh, yes.
Francis W. McInerny: That is the only evidence, Your Honor, that they did -- response of two witnesses who had made the investigations which we admitted that we did handle traffic for example from Roanoke to Whitfield. It was established, it was conceded almost stipulated that these operations were performed. We admitted it. In fact we granted several more.
William J. Brennan, Jr.: Now, what was usual points to the --
Francis W. McInerny: Whitfield, sir.
William J. Brennan, Jr.: Whitfield?
Francis W. McInerny: Yes.
William J. Brennan, Jr.: And you point to this to the boundary in some area of Bluefield, that is from (Inaudible) to that from the West Virginia town which you deliver to Whitfield, an economical and to yourselves an economical (Inaudible)
Francis W. McInerny: Yes, Your Honor.
William J. Brennan, Jr.: And -- and coming to the direct routes from (Inaudible)
Francis W. McInerny: That's right. May I --
William J. Brennan, Jr.: It's a direct route to the -- taking all with that factor, thus, would be not favorable.
Francis W. McInerny: Yes, Your Honor.
William J. Brennan, Jr.: Couldn't define the relevance.
Francis W. McInerny: Yes.
Felix Frankfurter: Were the roads, the direct roads equally favorable to truck traffic?
Francis W. McInerny: In some cases yes, Your Honor, in another cases no. Now, for example on Whitfield, Whitfield is either on U.S. Highway 11 or very close to it. If U.S. Highway 11 extends down at Shenandoah Valley through Roanoke towards Bristol and it either passes directly through Whitfield or close to it. So if the most direct highway route would be U.S. Highway 11, but if you only have 400 pounds shipment sent you don't have to go that way I'm not talking of this.
Earl Warren: Well, was there any -- was there any attempt to buy the other side to -- to show that you had acted differently so far as that central terminal is concerned in -- in intrastate shipments from interstate shipments. Now, I noticed that from Roanoke there up to that other -- other map, other city you probably make the greatest detour of all and that's in the -- that's in another State, that's interstate. You wouldn't have the same problem that you have in this State in this case would you?
Francis W. McInerny: That's correct, Your Honor.
Earl Warren: Now, did they -- did they claim that that was deliberate, they secure too and for the same reason?
Francis W. McInerny: No, they did not. We were the ones that that produced the evidence with respect to operations for example between Roanoke and White Sulphur.
Earl Warren: Yes.
Francis W. McInerny: Only for the purpose of demonstrating that are clearly interstate movements --
Earl Warren: Yes.
Francis W. McInerny: -- were handled in precisely the same way that the movements moving between Virginia points.
Earl Warren: Yes, that's what I was saying.
Charles E. Whittaker: (Inaudible)
Francis W. McInerny: I do not believe so, Your Honor, not under the -- the decisions of this Court. No.
William O. Douglas: What was the question?
William J. Brennan, Jr.: And then there's a question of state power in relation to a modification or other effects upon the -- basically, the district. Is that a question for deciding that?
Francis W. McInerny: Well, it maybe implied, Your Honor, but I believe that the only question is whether -- the first question is whether or not the Interstate Commerce Commission with respect to this particular certificate and this particular operator had occupied the field by having issued him --
William J. Brennan, Jr.: Well, that's what I meant and there is that question.
Francis W. McInerny: Yes.
Felix Frankfurter: This was the proceeding started by the Virginia Authorities wasn't it?
Francis W. McInerny: Yes, Your Honor.
Felix Frankfurter: A criminal proceeding?
Francis W. McInerny: Yes, Your Honor.
Felix Frankfurter: Now, would you be good enough to state what the cause of the litigation was,(a) what did the State prove before it rested? They had the burden, didn't they?
Francis W. McInerny: Yes, Your Honor.
Felix Frankfurter: Now, what did -- what was their case before you were called upon to decide whether to stand pat or put in evidence of your own?
Francis W. McInerny: Their evidence consisted of the presentation of two witnesses stating that they had intercepted that these vehicles on Virginia Highways moving traffic from such points as Roanoke to Whitfield or Bristol, Chicago and in addition to that they presented the state -- the official state highway map and that is all.
Felix Frankfurter: And -- and they said you had no certificate from their local authority.
Francis W. McInerny: Oh, that's true. We conceded that, Your Honor.
Felix Frankfurter: Now, when -- that's all. That -- that took a day or less than a day?
Francis W. McInerny: Your Honor, the whole proceeding was concluded in a day.
Felix Frankfurter: Now, what -- what did you do? What was your case after the State Commonwealth Wealth rested?
Francis W. McInerny: If I sponsor the general manager of the company put an evidence to show that traffic moving between Virginia points through Bluefield consisted or three percent of the total of the traffic handled by the company that it was a distribution carrier serving rural areas certainly that the operations performed in Virginia were precisely of the same character as those performed between Virginia and West Virginia. I also sponsored a two-shipper witnesses stating in effect that they knew when the shipment was picked up at a Virginia origin that it was going to be routed through Bluefield and finally delivered in Virginia.
Felix Frankfurter: Would the -- would the rate for the shippers be different if you had routed directly?
Francis W. McInerny: No. Your Honor. In this case, for example, counsel for the Government down there stipulated that in those cases the rates were -- were --
Felix Frankfurter: The same.
Francis W. McInerny: -- the same. There was no -- no question on the rate.
Felix Frankfurter: The area rate, is it not?
Francis W. McInerny: That's right. Well, one the -- one of the shipper witnesses did imply that he was willing to pay a higher rate, so apparently on some of his traffic there was a higher rate charge because of -- it moved through a route in West Virginia.
William J. Brennan, Jr.: Did you put in your certificate or you did not?
Francis W. McInerny: Oh, yes sir. I put in the certificate in a series of exhibits that are all in the record.
William J. Brennan, Jr.: Now, the Court rules --
Francis W. McInerny: This was held before the State Corporation Commission of Virginia which I understand is -- or has the position of a court of record down there.
William J. Brennan, Jr.: Criminal proceeding?
Francis W. McInerny: It was a criminal proceeding, Your Honor.
William J. Brennan, Jr.: And it's a commission of judgment?
Francis W. McInerny: They have -- three main commissions sat on this particular case and they have powers quite similar to what judges would have in -- in other States that they have almost the unique status as I understand it.
William O. Douglas: There's no jury?
Francis W. McInerny: No jury.
William J. Brennan, Jr.: This is an -- what's -- what's the burden without the reason (Inaudible)
Francis W. McInerny: Well, I tried to persuade the Supreme Court of Appeals of Virginia that they had to run, at least have evidence and they didn't accept it. I took this whole matter the Supreme Court of Appeals and they just confirmed it.
William J. Brennan, Jr.: And it became like a motion to direct a verdict, the federal courts have as opposed to these -- you didn't make a case, before that's here?
Francis W. McInerny: I suppose that could have made it. I don't know the -- I'm not a Virginia practitioner. I was there by leave by -- and I have to confess I don't know, but I assume that could be.
William J. Brennan, Jr.: Did you make that motion?
Francis W. McInerny: No, I did not. I was afraid to. In any event at the close of the State Corporation Commission proceeding, I have to try to inform them concerning what I believe to be lower -- it was issued by the Interstate Commerce Commission in a number of cases and including Atlantic Freight Lines which is cited in my brief also informal memorandum from the staff officials of the Interstate Commerce Commission when I was persuaded that the Commission was not going to accept those statements from the Interstate Commission, I filed a petition for declaratory order with the Interstate Commerce Commission asking it to construe our certificate. A copy of that petition was filed appropriately on the state officials. And thereafter, the Interstate Commerce Commission issued an order stating that their interpretation of the certificate is just as I have outlined. That we could handle traffic between points in Virginia so long as we observe the gateway point.
Speaker: Did -- did the State participate in those -- Interstate Commerce Commission?
Francis W. McInerny: No, they did not, Your Honor.
Hugo L. Black: And they -- do you say it was not used as a service?
Francis W. McInerny: Yes, sir. Now, the State relies on Eichholz versus Missouri, a position in 306 U.S. 268. That case involved that on operated transporting traffic by Motor Carrier Act from St. Louis, Missouri to Kansas City, Missouri through Kansas City, Kansas. He was not at the time that apprehended by the state officials of Missouri, he was not the holder of an Interstate Commerce Commission certificate. And all the -- although the Court recognized that the Commission under the Federal Motor Carrier Act which had just here before them passed, might authorize such a movement in this particular case that it had not yet been authorized and no jurisdiction had yet vested in the Interstate Commerce Commission to control the operations. And accordingly this Court held or sustained the holding of the Missouri authorities to the effect that this was a subterfuge to avoid or evade state regulation. Now, the -- the difference in Eichholz are on the facts wholly beyond the -- the question of Eichholz not being (Inaudible) holder are this. Eichholz was handling the traffic at two-thirds of the rate that was prevailing generally within the State of Missouri at that time. He converted the traffic to interstate traffic only for the purpose of making available two shippers a low -- a rate of 66 cents a hundred with a prevailing rate was something like 98 cents a hundred. He consistently handled what we call volume traffic or truckload traffic, contrary to the type of traffic that we're handling here LGL distribution traffic to a -- rural area. He heavily solicit this traffic whereas here there was no showing of any vigorous solicitation for this traffic only that it was in interstate commerce pursuant to interstate rates, pursuant to interstate insurance and all the tariffs were filed with the Interstate Commerce Commission. We distributed those generally through the terminals in the area and it makes the case different on the facts as well as on the law from Eichholz. We rely wholly on Atlantic Freight Lines petition for declaratory order and our own declaratory order. The best --
Earl Warren: Was it shown that -- do they attempt to show in any way that your rates were out of line with the other operations one way or the other?
Francis W. McInerny: In other words, there is some vague record references to it, Your Honor, but so vague that it's undependable. I believe that the rates were about the same. At least counsel for Virginia stated that and I --
Earl Warren: But they're about the same.
Francis W. McInerny: About the same.Yes, Your Honor.
Potter Stewart: Was there anything in the record that there -- that there was in the other carrier operating intrastate say between Roanoke and Whitfield?
Francis W. McInerny: Your Honor, the -- the record is wholly bound on -- on the existence of interstate carriers.
Earl Warren: Are there others -- are there others that make the same points or approximately the same points?
Francis W. McInerny: Your Honor, I know of one carrier that can't serve some of the points. I know this out of my own knowledge of --
Earl Warren: Yes.
Francis W. McInerny: -- the -- of the game, but there was no record evidence on it but the holding of was, I don't know, what the service facts is what I don't know either. Now, in the precedent which we rely on presently, the Interstate Commerce Commission case involving Atlantic Freight Lines 51 M.C.C. 175, Atlantic Freight Lines was a carrier and authorized to conduct operations between Pittsburgh all over Maryland, Philadelphia and points in the upper east including New York City. It conducted operations in the transportation of sugar from Philadelphia to McKeesport which is a point adjoining Pittsburgh. The Pennsylvania authorities prosecuted or proceeded otherwise simply I believe against them. And ultimately prohibited them from further transporting traffic between two Pennsylvania points when they were going out-of-state over this -- over to secure this route through Baltimore and Maryland. After the -- the approval of PUC's order in Pennsylvania that case came up here on writ of certiorari which was denied. The carrier then went to Interstate Commerce Commission under Section 5 (d) of the Administrative Procedure Act and asked the Interstate Commerce Commission to construe its certificate. The PUC or -- or Public Utilities Commission of Pennsylvania intervened. They became a party to that proceeding and ultimately the Interstate Commerce Commission said, “We have issued a certificate here, both points were on the routes involved even though it goes through Baltimore. We have authorized it, is bona fide, that certificate is a final order and cannot be attacked collaterally in a state court.” And, subsequent thereto, the Public Utilities Commission and the Atlantic Freight Lines in and then there were a consent decree which I have made an appendix to by in my reply brief. The situation of Pennsylvania at least with regard to that carrier has been clarified. And I think that it's very strong precedent that the -- the order and the report sustaining the order by the Commission is persuasive on every point and it does consider this Court's opinion and decision in my calls a case that became a -- came on 10 years before. Now, in addition to the criticism that we may have of the decisions of the Virginia authorities, we'd like to raise the point developed in Castle versus Hayes Freight Lines. The Interstate Commerce Act has, as you know, Section 204 (c) which permits State or any interested party to complain to the Interstate Commerce Commission if the State feels that an interstate operator is conducting operations in violation of its interstate certificate. I think the strong suggestion if not actual statement in the Hayes case is to this effect. Now, whether is a genuine problem, a dispute between carrier and State and it appears that the Interstate Commerce Commission has finally jurisdiction, instead of taking up the matter in their own forums, the State should first resort to the Interstate Commerce Commission. On the State's reply brief they have suggested that there are so -- certain local aspects in this case and that accordingly that the order be given jurisdiction because of the local aspects. The local aspects -- Your Honors, in this case are no more local and operations between Philadelphia and points of New Jersey, New York and New Haven they're 90 miles apart. Some of these points in -- in Virginia are as many as 150 miles apart. But on the law I believe the -- the cases that I've cited on my reply trial brief, Capital Transit cases where you held that the Interstate Commerce Commission had great jurisdiction over the -- over Capital Transit in spite of the fact that they didn't leave or that carrier didn't leave the District of Columbia, fully disposed of the local aspects, contention of the State in amicus curiae. They cite in support to their contention the Panhandle case and the Connecticut Light and Power case. Both of these same cases were cited by the same parties to this Court in the Capital Transit cases and no -- no reference is made to those authorities cited by the State of Virginia in your decision or in your disposition of the Capital Transit cases. Moreover, and finally on the issue of local aspects, protection of local carriers. Let's assume that there are so. I know of one that served at some point. But let's assume that there are some carriers.These carriers are assumedly, would have the most direct routes. They would be able to operate more quickly, assumedly, or at least that's what the State asks this Court to accept. Assumedly, they can operate on -- under lower rates because their -- their cost would be lower. Then it would seem to me that they could capture all of these traffic which amounts to about $500 per week without difficulty. Having the direct routes, I see no reason why they couldn't capture it. But Congress must have recognized in defining interstate commerce as it did in Section 203 for intent of the act that there would be some effect on state operators. And accordingly, I believe that they enacted 206 or the second proviso of 206 (a). That proviso permits any Virginia intrastate operator holding a certificate issued by the Virginia State Corporation Commission, to mail that certificate to Washington with an appropriate application form, identify itself, to publish tariffs and it automatically is entitled to an interstate authority, coextensive with its intrastate authority.
Felix Frankfurter: Where is that provision, if you have to read it?
Francis W. McInerny: It's in this -- I believe it's on the very last page of my reply brief. It's the second proviso of Section 206 (a) of the Act.
Felix Frankfurter: Well, the text -- we haven't read the text.
Francis W. McInerny: No, the text is not in there, Your -- Your Honor. I'm sorry.
Felix Frankfurter: You don't deny that this is interstate commerce, do you? I'm not talking about, is it within the Act. You do not deny this is interstate commerce in this case. That is, it isn't governed by federal legislation. Congress is asking, we just bring it within the federal issues. Do you deny that?
Francis W. McInerny: No, Your Honor. I've -- I -- that's my position. This interstate commerce as a matter of fact -- and its in interstate commerce is a matter of law. That's my --
Felix Frankfurter: Would -- do you say that -- that is -- so, into interstate commerce that it couldn't be left to the State?
Francis W. McInerny: It could have if Congress had withheld its hand. We might have got back to a -- a situation something like Buck versus -- Buck versus Kuykendall where with the proper arrangements, the -- the --
Felix Frankfurter: Or Eichholz. It is conceded in Eichholz or in Hanley or Eichholz.
Francis W. McInerny: Eichholz. Yes, sir.
Felix Frankfurter: But I never recite them?
Francis W. McInerny: Well, I've cited that on my brief, Your Honor.
Felix Frankfurter: If he did it for the interstate commerce and yet, would be left to the State because it was that case, it's legally acceptable (Inaudible)
Francis W. McInerny: No, to me Your Honor if I'm not interrupting. The -- the assumption of jurisdiction by the Interstate Commerce Commission hadn't been had in Eichholz. It has been had here. There's a final order, there's a judgment in this case. Our certificate is a judgment. This Court had said so in the Seatrain case. It has the same effect of -- as a judgment. It's the final order of proceedings before the Interstate Commerce Commission. It's can't be attacked.
Felix Frankfurter: The interstate -- does the -- does the certificate which you have explicitly deal with this very problem?
Francis W. McInerny: No, Your Honor. It -- it only deals in a -- in a general sense and by construction by the Interstate Commerce Commission. They're -- they're the office of the order and they say that --
Felix Frankfurter: That certificate from the Commission, preclude your doing the kind of thing that in Eichholz allows the state officer there. If I read what the Interstate Commerce Commission, would I get an answer to an Eichholz property from your certificates.
Francis W. McInerny: Not -- not by reading the --
Felix Frankfurter: Oh
Francis W. McInerny: -- certificate alone, Your Honor.
Felix Frankfurter: Well -- well usually use whatever. What if. When you say it's a judgment usually I can find out what the Court has decided by reading the judgment but I can't the answer to this question by reading the certificate, can I?
Francis W. McInerny: No, only with the guides and standards that have been established by the Interstate Commerce Commission in the last 20 years so, since 1935 construing their own certificates and they have been --
Felix Frankfurter: And if the State -- if the State could prove, could prove the substance if they can, but I don't know whether it has or not. Would there be anything in that -- what the Interstate Commerce Commission either promulgated or said that it's foreclosed that determination on the same clause?
Francis W. McInerny: Yes, because I think it's a collateral attack on a valid and subsisting order defined by the Interstate Commerce Commission.
Felix Frankfurter: You just told me that the order would give me the answer.
Francis W. McInerny: Well, there were -- Your Honor -- Your Honor taken together that the declaratory report of the Commission plus the certificate.
Felix Frankfurter: The Commission discussed the questions whether routing by way subterfuge under the route which is authorized would be covered by a certificate?
Francis W. McInerny: They did in this particular case, Your Honor. In the -- in the declaratory report issued --
William J. Brennan, Jr.: That's 171.
Francis W. McInerny: Yes, Your Honor.
William J. Brennan, Jr.: M.C.C.
Francis W. McInerny: Yes, Your Honor.
Hugo L. Black: It's not in the record.
Felix Frankfurter: When -- when was that? What's the date of that in relation to what you say is right?
Francis W. McInerny: The State Corporation Commission Act and I believe around the 1st of February and the Interstate Commerce Commission acted about a month later.
Felix Frankfurter: Well, then it couldn't have been thought then -- then the -- what the Commission did wasn't foreclosed by what -- what Virginia did wasn't' foreclosed by what -- what the Commission prior thereto did.
Francis W. McInerny: Well it was by the precedent established in Atlantic Freight Lines plus the order that we had issuing us the certificate.
Felix Frankfurter: (Voice Overlap) That depends on what the facts were that we're advocating by the State tribunal and what the Commission did is declaratory order, declaratory pronouncement was labeled so one can judge utilizing that those are judgments by Virginia it was finding on the Commission.
Francis W. McInerny: There is ever --
Earl Warren: Is that your -- what is your point that you do have by virtue of your certificate itself, if you had a binding of judgment?
Francis W. McInerny: Yes, Your Honor.
Earl Warren: That annotated the action of course with the -- with the Virginia Court.
Francis W. McInerny: Yes, this certificate was issued in 1943.
Felix Frankfurter: But the certificate did not preclude the determination by the Virginia authority that in fact we use the certificate as a substitute for State practice isn't it?
Francis W. McInerny: No, Your Honor. But may I explain my -- my feeling on my thought on that. The certificate was an order. It didn't have all the detail in it. However, the one who was best qualified to determine what the order meant was the Interstate Commerce Commission. That was held in Atlantic Transit Lines which is cited in Atlantic Freight Lines. That the -- that the Interstate Commerce Commission has said and I think this Court has approved the Atlantic Freight Lines case cited in the 51 M.C.C. to the effect that when the Interstate Commerce Commission orders, issues a certificate it is the best interpreter of that certificate --
Felix Frankfurter: But it is an interpreter of facts de jure and I do not see that that certificate will preclude the State from fully to preclude that under a guise of an interstate commerce certificate, you are in fact engaged in intrastate business in utilizing the certificate to escape the responsibility that they've assigned. That certificate wouldn't do, would it?
Francis W. McInerny: Well, that --
Felix Frankfurter: I'm not saying that's the case in this -- I'm not saying you're wrong on very hand but the certificate doesn't establish a substitute in use of the certificate.
Francis W. McInerny: May I please use the remaining time for rebuttal?
Earl Warren: Yes, you may. Mr. McIlwaine.
Robert D. McIlwaine, III: Mr. Chief Justice, may I please the Court. It is the position of the Commonwealth of Virginia in this case that it has the right to enter the order of which he did finding the appellants in this case on the occasion's name upon the ground, two grounds one, asserted chiefly by our State Corporation Commission which is in effect our Public Utilities Commission. That the use of an indirect and abnormal right through another State is not interstate commerce protected by the Interstate Commerce Act and secondly, upon the ground that if it is interstate commerce within the protection of the Federal Motor Carrier Act, then in any situation in which the Virginia Public Utilities Commission makes a determination of fact, prior to the time in which the matter has been ultimately and dispositively settled by the Interstate Commerce Commission then Virginia has the right to regulate, at least, until the time the I.C.C. has entered an order which is contrary. Now --
Felix Frankfurter: Was that on the theory that merely because traffic originated in Virginia and came back to Virginia makes it local in commerce? Is that the position or --
Robert D. McIlwaine, III: That position plus the fact that a circuitous route was used between those 2 points, Your Honor.
Felix Frankfurter: But which point --
William J. Brennan, Jr.: But isn't that precise route that the Commission authorizes the certificate?
Felix Frankfurter: No, sir. The -- the I.C.C. certificate authorizes transportation between points and certain points on routes but not route, if I may explain it.
William O. Douglas: Could you refer for me to the exact language that the Commission --
Felix Frankfurter: Yes, Your Honor I can. It is set out in the record if you have the transcript of the record there. You will find it set out on page 90 at the top of the page. This is quoted from the opinion of Mr. Justice Kennon Whittle, it is there and it is also at various places in the record and in the brief.
William J. Brennan, Jr.: Well, what about -- what about the petitioner himself, at least may get to -- page 101 going back to the record. Are these one of the things you're talking about (Inaudible)
Robert D. McIlwaine, III: Yes, Your Honor, they are. This is -- yes -- this is the combined certificate on page 101. They're set out in two separate places on page 90 and combined on page 101.
William J. Brennan, Jr.: Although fining those and I think that that was on page 101 (Inaudible) And that's the significant part of the certificate (Inaudible)
Robert D. McIlwaine, III: It -- it is, Your Honor, but it's -- it is not as -- it does not require the use of a specific right. It permits as shown here the -- in the first opinion it permits the transportation of from (Inaudible) located in this area to Bluefield, West Virginia and without specific reference to route.
Felix Frankfurter: But it -- it is a little bit more specific Mr. McIlwaine, because it says that part of the Virginia West of the U.S. Highway 29 and south of Highway 60.
Robert D. McIlwaine, III: Yes.
Felix Frankfurter: Are you saying that that is still a geographic designation and not a route designation?
Robert D. McIlwaine, III: Yes, Your Honor. That is a geographic destination, West of Highway 29 which is here and South of Highway 60 which is here. Now, it is the position of the Virginia Public Utilities Commission which is our State Corporation Commission that if the goods originate in Virginia and they are destined for another place in Virginia and if in transit, they -- a circuitous route is used to take them through another State or as in this case not actually through another State but merely into a city which is in another State. And then out again, when the normal and logical right as in this case of Roanoke to Whitfield is 80 miles across the base of the triangle down U.S. 11 on flat land exactly the case here. When you look at the usual logical normal route between those two points and see that it is in Virginia. And when you are faced with the proposition in which an interstate carrier is holding the same goods as shown by the record twice the distance, 160 miles from Roanoke to Bluefield and back to Whitfield. Instead of moving in a generally southwesterly direction for 80 miles, moving in a westerly direction beyond the point of destination and then coming back that the fact that the origin and the destination points are in Virginia coupled with the fact that the route being used by the particular carrier is not the normal and logical route is sufficient to constitute this transportation intrastate transportation.
Felix Frankfurter: Normal and logical. Does that mean that you consider merely geographic distance and not transportation facts which may make the routing through the gateway points a normal and logical transportation transaction?
Robert D. McIlwaine, III: That was the view of the State Corporation Commission in this case, Your Honor. Whether it had specific knowledge of other intrastate carriers moving down U.S. 29, this distance of 80 miles or knew from its own knowledge that this distance of 80 miles was the simpler with method insofar as economy of handling or are both the breaking points such as Bluefield, West Virginia. That is not shown in the record. So far as the record is concerned, the State Corporation Commission took the point of origin and the point of destination.
Felix Frankfurter: It said 80 is -- is smaller than 160, is that it?
Robert D. McIlwaine, III: Yes, if it's over you --
Felix Frankfurter: That's all -- that's all they said.
Robert D. McIlwaine, III: Yes, sir pointing out that it is U.S that it is a good route between at the base.
Felix Frankfurter: So now, did -- did the petitioners here introduce evidence justifying that security on transportation economics?
Robert D. McIlwaine, III: Yes, Your Honor. They introduced evidence to show that for them that circuitous route could be used economically for them. But if Your Honors, please that is one of the two points I want to make. I understand that -- that it wasn't asked of appellant's counsel here, why was this done and was it done for purposes of economics? That is assumed that it was done for purposes of economics. The primary reason it was not carried from Roanoke to Whitfield is because he's not authorized by the Virginia Public Utilities Commission to run from Roanoke to Whitfield down U.S. 11.
William J. Brennan, Jr.: Well now, where if it's before us, the evidence for that matter?
Robert D. McIlwaine, III: For the conclusion that --
William J. Brennan, Jr.: (Inaudible)
Robert D. McIlwaine, III: -- said he has no certificate, Your Honor.
William J. Brennan, Jr.: (Inaudible)
Robert D. McIlwaine, III: Well --
Hugo L. Black: Where -- where is the -- where is the basic (Inaudible) merely to the fact that he does not have another certificate before it's in -- to use the circuitous routes?
Robert D. McIlwaine, III: Well I -- I would say the reason for the use of the circuitous route is that he could not use U.S. 11 from Roanoke to Whitfield wholly within the State of Virginia --
Hugo L. Black: Well, I know but isn't -- isn't the evidence that he did not -- that he used the securities route because he didn't have another certificate.
Robert D. McIlwaine, III: No, sir.
William J. Brennan, Jr.: That the evidence is --
Robert D. McIlwaine, III: The evidence is that he used it -- for that he could use it economically.
Felix Frankfurter: The examiners have -- did you challenge that he had a bona fide business purpose, bona fide transportation reason. The question of dollars and cents in the profitable conduct of his business of not doing the U.S. route 11 but he went through -- through the West Virginia town for the reason that an honest businessman would. Did you challenge that?
Robert D. McIlwaine, III: We did not challenge that before in this -- in the Corporation Commission, Your Honor upon -- upon the ground that without a certificate, there would not be any reason to ascertain whether or not this intrastate route could be used. There would be no basis of comparison. Even if he could do it profitably by -- as he established by his evidence that he could --
Felix Frankfurter: But now, I ssuppose the Interstate Commerce Commission had in that certificate explicitly taking over the fact of the kind of business they're engaged in, they said, that this certificate allowed the certificate holder to go from Bluefield to West Virginia although he knew this route. Would the State Commission then have -- could then have as -- as in the case you now have?
Robert D. McIlwaine, III: It would not have the case we now have, Your Honor.
Felix Frankfurter: And therefore, the question is whether a certificate which designates, gives the authority, that supreme point one outside the State and one inside the State.
Robert D. McIlwaine, III: That is correct.
Felix Frankfurter: Nevertheless, the exercise for that certificate is a bona fide transportation reason.
Robert D. McIlwaine, III: Yes, sir.
Felix Frankfurter: Does that bar him from exercising that certificate in that way simply because geographically that he might have gone go between those two points on the basis of the triangle.
Robert D. McIlwaine, III: Well --
Felix Frankfurter: That is your position or isn't it?
Robert D. McIlwaine, III: Our position is, Your Honor that -- that is substantially our position with one further fact that we would like to make clear on the record namely that this particular case was decided by the Virginia State Corporation Commission. It was heard on November the 29th of 1956. It was decided the following February. There were no proceedings pending before the I.C.C. at the time the Virginia Public Utilities Commission or our State Corporation Commission issued its order or had its hearing. The I.C.C. application was filed on January the 14th. On February the 26th, the Virginia State Corporation Commission entered its order fining the appellant in this case. It came -- its opinion was rendered on March 21st. The State's opinion was rendered on March 21st implementing its order of preceding February the 26th and it was not until March the 29th after, all of these had transpired, that the I.C.C. interpreted its certificate.
Charles E. Whittaker: As meaning what?
Felix Frankfurter: But the certificate was outstanding?
Robert D. McIlwaine, III: The certificate was definitely outstanding. Yes, Your Honor. But the --
Charles E. Whittaker: As meaning what?
Robert D. McIlwaine, III: I beg your pardon?
Charles E. Whittaker: As meaning what?
Robert D. McIlwaine, III: Interpreted it. They say as meaning that this --
Hugo L. Black: (Inaudible)
Robert D. McIlwaine, III: There is to my mind, Your Honor especially in connection with their reliance upon the Atlantic case because the interpretation of the certificate by the I.C.C. is by no means definite and clear. And to my mind it raises a very serious question as to whether or not the I.C.C. might not have decided this matter another way upon other evidence. Now the particular decision the --
William J. Brennan, Jr.: (Inaudible)
Robert D. McIlwaine, III: I believe I can best explain it, Your Honor by referring to the actual language of the certificate which is of the declaratory order of the I.C.C. which is set out on page 27 (a), Appendix 3 of the petition for writ of certiorari. It is not in -- the language is not contained in the --
Felix Frankfurter: What page are your reading?
Robert D. McIlwaine, III: -- brief. It's on page 27 (a). Now, that is -- that was decided as Your Honors will note on March 29th 1957. That is the last action that was taken in this case before the matter was brought to the Supreme Court Appeals of Virginia and ultimately here. This is the last administrative action taken in this place. When this decision was rendered, the Virginia rule to show cause had already been issued. The cause had been heard, Virginia Public Utility Commission had decided it which of State Corporation Commission --
William J. Brennan, Jr.: Isn't that (Inaudible)
Robert D. McIlwaine, III: Be -- yes, Your Honor it was.
Hugo L. Black: What did they say to that?
Robert D. McIlwaine, III: If I may call Your Honors attention to the language on page 29 (a) in the middle of the page, it says petitioner, that is the appellant here asserts that the Virginia State Corporation Commission during the past several months has instituted proceedings against it for the purpose of penalizing it for conducting operations from one point in Virginia to another point in that State, notwithstanding the fact, that the shipments moved through Bluefield West Virginia. Additionally, staff members of the State Corporations Commission's Office are said to have advised shippers and consignee's that transportation performed by petitioner in a -- the single line or joint-line service from one Virginia point to another Virginia point through Bluefield, West Virginia does not constitute interstate commerce and that they should cease tendering to petitioner traffic moving between Virginia points. That also is currently defendant before the Virginia State Corporation Commission, a proceeding in which state enforcement officials contended that certain shipments handled from Virginia origins to Virginia destinations through Bluefield West Virginia are not interstate and accordingly cannot lawfully be handled by the petitioner. That if you will turn over to page 30, you have the -- what we consider the heart of the order here. The Court, the I.C.C. said this. In the absence of any showing that petitioner's use of its authorized route is a subterfuge to avoid state regulation or other than the logical and normal operation to the carrier's headquarters we are of the opinion that petitioner's operations in the manner of described constitute bona fide transportation in interstate commerce. Now, you will note that that language says that in the absence of any showing that petitioner's use of its authorized route is a subject used to avoid state regulation. We hold that it is bona fide interstate commerce but there is nothing in this declaratory order which shows what operations the I.C.C. had under consideration when it made that determination or what operations the I.C.C. is referring to.
Hugo L. Black: As I understand it did it , it just shows how the certificate was granted.
Robert D. McIlwaine, III: No sir. It did not. It had even then in the best of the Public Utilities Commission the very question which the appellant sought to make the Virginia Public Utilities Commission a defendant or a party in.
William J. Brennan, Jr.: And I am also correct that while this determination (Inaudible) brought to your attention and this would be the opinion of the Court with no reference that whatever is made here to the opinion.
Robert D. McIlwaine, III: No, sir. No reference is made to it --
William J. Brennan, Jr.: (Inaudible)
Robert D. McIlwaine, III: No -- no consideration. There is no mention of it in the Virginia Supreme Court of Appeal's decision, Your Honor.
Felix Frankfurter: There was any -- must not -- this be read in the light of the Eichholz decision and doesn't that the decision rest on the fact -- fact in those cases namely, that there was no such justification going from Kansas City, Missouri from Kansas (Inaudible)
Robert D. McIlwaine, III: Yes sir. And then --
Felix Frankfurter: There was not such justification in transportation economics as the -- as the petitioner made in this case. But in that case the (Inaudible) that there was that security for the very purpose of avoiding the direct intra point of transportation.
Robert D. McIlwaine, III: But as I read the --
Felix Frankfurter: Is that true, isn't that true?
Robert D. McIlwaine, III: I don't understand that the Eichholz case is --
Felix Frankfurter: I wanted to know of your -- I'm just standing right behind you.
Robert D. McIlwaine, III: My understanding of that case, Your Honor is that it was not for economic reasons but simply to avoid regulation by the State Commission that in Eichholz the petitioner went across the river and came back in effect --
Felix Frankfurter: But -- but --
Robert D. McIlwaine, III: -- simply to escape the regulation not because of --
Felix Frankfurter: (Voice Overlap) did I understand you to agree that the petitioners, the defendants in your proceedings did establish that the honest and -- and profitable way of doing business is the way they did it?
Robert D. McIlwaine, III: No, sir. They established that they could do it profitably this way. There is nothing to compare it with, with respect to the -- how much more profitable it might be or would be.
Felix Frankfurter: But they couldn't have picked up traffic as (Inaudible) they could go on directly, could they? They didn't have to prove that. That's self evident, isn't it?
Robert D. McIlwaine, III: I -- I don't understand Your Honor's question, I'm sorry.
Felix Frankfurter: Why did they take the circuitous route?What did they establish, would it be against him?
Robert D. McIlwaine, III: Well, it is to Virginia -- of course, we say they took the circuitous route because --
Felix Frankfurter: (Voice Overlap)
Robert D. McIlwaine, III: -- it is the only route they could legally take.
Felix Frankfurter: But that I understand that. That's a legal question.
Robert D. McIlwaine, III: Yes, sir.
Felix Frankfurter: But what economic fact did they prove when it came to them, what is their defense?
Robert D. McIlwaine, III: Well, they approved what Mr. McInerny had show here. That this is a -- a breakdown point for them that they take the smaller shipment here, move them to Bluefield in truckload lots. They have the -- it is broken up and other shipments which are purely interstate since they originate in West Virginia and come to Virginia, are also brought here broken down, particular shipments rearranged and then carried to Whitfield and Bristol and (Voice Overlap)
Felix Frankfurter: I suppose they've done what you wanted them to do. They couldn't have done any of those things, could they? Their traffic would have been less and handling of it would be more costly. Isn't that correct?
Robert D. McIlwaine, III: I don't understand that that is established on the records, Your Honor. I don't understand there's anything with respect to cause if they had done it as the Virginia State Commission says they should have done it.
Felix Frankfurter: They couldn't have (Inaudible) with the other -- with the non-bulk with the bulk --
Robert D. McIlwaine, III: No, sir.
Felix Frankfurter: (Inaudible)
Robert D. McIlwaine, III: No, sir. They couldn't have done that. That's true because they would not have been in their headquarters breakdown point in Bluefield West Virginia. That is unquestionable truth.
Earl Warren: It seems to me significant that after finding that this constituted bona fide transportation in interstate commerce, the Commission said, “This conclusion finds support in the fact that the routes employed between Virginia points are not only -- are not unduly circuitous or impracticable but, on the contrary, are such as might normally be used by any carrier authorized to operate between the Virginia points involved in the Bluefield, West Virginia, this petitioner's headquarters and the base and whether substantial operators to and from points in Virginia from which the operation challenge are only a part.” And then they go on to find that the operation with -- within the authority granted by them in the certificates. Now, it seems to me that they did have those routes before them in someway or another.
Robert D. McIlwaine, III: Well, if I may make two observations --
Earl Warren: Yes.
Robert D. McIlwaine, III: -- in connection with that, Mr. Chief Justice.
Earl Warren: Yes.
Robert D. McIlwaine, III: The first is the fact that the routes employed between Virginia points are not unduly circuitous or impracticable.
Earl Warren: Yes.
Robert D. McIlwaine, III: Now, we have in this case 17 charges of violation in which the Virginia Public Utility Commission or State Corporation -- State Corporation Commission found a violation in only seven. So -- and as they pointed out in their opinion, they agree that transportation from some Virginia points to other Virginia points may well be interstate commerce, subject only to the regulation of the Interstate Commerce Commission if the normal and logical route lies that way. But on seven of them, Virginia found that those routes were not the normal and logical routes. Now, there's nothing in this declaratory order which is all we have with respect to what transpired before the I.C.C. There is nothing in this to show exactly which of the routes or if there is in fact a conflict between what the I.C.C. has said here and what the Virginia Public Utilities Commission found with respect with -- to this particular example, for instance. They also said it is not unduly circuitous for one who must go through this point. Now, we -- we will agree for one who must, under his I.C.C. certificate, go through this point. This route is not unduly circuitous.
Potter Stewart: (Voice Overlap)
Robert D. McIlwaine, III: But the Virginia State Corporation --
Potter Stewart: (Inaudible)
Robert D. McIlwaine, III: I beg your pardon?
Potter Stewart: (Voice Overlap) just a moment to -- right on that point to clarify something in my own mind. It's true, is it not, that under the I.C.C. certificate which it had, this carrier could not have operated between Roanoke and Whitfield over the shortest route, over route 11?
Robert D. McIlwaine, III: No doubt, Your Honor. You must go through Bluefield as gateway. And that is -- that is the distinction between what the Virginia State Corporate Commission said and what the I.C.C. said. The I.C.C. said this route is not unduly circuitous for one who must go from this point. But the Virginia State Corporation Commission said, 160 miles over a mountain range rather than 80 miles down the valley is unduly circuitous for a businessman who would not be regulated. They stressed the word “unregulated” no “unregulated” businessman would do that.
Hugo L. Black: Suppose that is true, I -- I don't quite get (Inaudible), you say they do that, so that's the only way they can legally go.
Robert D. McIlwaine, III: Yes, Your Honor.
Hugo L. Black: Well, if they can legally go that way, why can they legally go that way?
Robert D. McIlwaine, III: I mean that is the only way they could -- it would be possible for them to legally go. Now, I don't --
Hugo L. Black: Well now, if -- if the Government certificate made it impossible for them legally go there, what right does anybody will do something different?
Robert D. McIlwaine, III: The question in this -- and that is the question in this case Your Honor. Whether this certificate which authorizes this transportation by the attacking of two particular grounds, does authorize this transportation between two Virginia termini over an --- a circuitous and illogical route.
Hugo L. Black: You would agree, wouldn't you, that if the -- if the Commission wants to give them the certificates to go that circuitous route, then it's all right.
Robert D. McIlwaine, III: Yes, Your Honor, I --
Hugo L. Black: And if they --
Robert D. McIlwaine, III: -- would.
Hugo L. Black: -- really couldn't anything to go on because it is circuitous.
Robert D. McIlwaine, III: I think that may someday become a question, Your Honor. I will stipulate it for the purposes of this particular case because I don't think the conflict exists. We take the point, Your Honor, that there is no conflict between what the I.C.C has said in this case or no demonstrable conflict on the record between what the Virginia --
William J. Brennan, Jr.: Are you saying that -- I understand you to say (Inaudible) including what the I.C.C. has told them legally he may do what it needs, legally the only way through that.
Robert D. McIlwaine, III: We say that Virginia may penalize this traffic. We -- as I said we have two alternative values. We say that Virginia may penalize this traffic in the first instance when there has been no final determination by the I.C.C. that this particular traffic is authorized by their certificate.
Felix Frankfurter: What you're saying is on that point is that the certificate didn't grant that.
Robert D. McIlwaine, III: That is then it could not be shown by looking at the certificate that it did grant that authority and it is not certain at this point whether or not even under the -- the declaratory judgment which was answered that the I.C.C. was actually passing on the particular case which the Virginia State Corporation Commission had before it.
Felix Frankfurter: Could the I.C.C. -- I'm asking because I don't know. Could the I.C.C. in this proceeding and if this so-called declaratory proceeding has said, but this has then created a controversy about this thing we now amend this certificate. Could they have done in actual proceedings and leave no doubt about it. Could they have done that?
Robert D. McIlwaine, III: I don't believe in that particular proceeding simply as a procedural matter, Your Honor.
Felix Frankfurter: I'm not saying that if they could have if presenting is all they have or didn't they have. I'm just asking you whether they could if they chose to.
Robert D. McIlwaine, III: No, sir.
Felix Frankfurter: And that is definitely certain.
Robert D. McIlwaine, III: I don't think they could have amended this --
Felix Frankfurter: Does this require an independent proceeding?
Robert D. McIlwaine, III: I believe it would. Yes.
Felix Frankfurter: And with notice to everybody, is that it?
Robert D. McIlwaine, III: I would have -- I would think so, Your Honor. I -- I have no expertise before the I.C.C. on that point of amending a certificate but I would believe so. But I would point --
Earl Warren: Is the record -- was your record before the Railroad Commission or your Public Utilities Commission before the I.C.C.?
Robert D. McIlwaine, III: I have no way of knowing, Your Honor nor on the record does any member of this Court. This Court knows what went on before the I.C.C. because of the declaratory judgment in this case. That is all the record shows in this case. I don't know what was before the I.C.C. and I most respectfully submit that no member of this Court can from the record determine what was before the I.C.C. And I use that point in specific reference to the Atlantic case upon which they rely, the opinion in the Atlantic case for I.C.C. shows definitely and firmly that they were taking up exactly the same case which the State had taken up, that they were deciding exactly the same point. That they were considering exactly the same route which the State had held the carrier could not go over and they were directly holding that under their certificate he could go over that route so that you had a direct conflict between the two. Under the record in this case, no such conflict exist between the decision of the declaratory judgement although the I.C.C. with respect to the prior determination by the Virginia Commission that this traffic was in fact intrastate and could be regulated by the Virginia State Corporation Commission. Thank you.
Earl Warren: Well, Mr. McIlwaine, have you finished your argument or were you just stopping now because -- because of adjournment time.
Robert D. McIlwaine, III: I am -- I have substantially completed my argument --
Earl Warren: Thanks --
Robert D. McIlwaine, III: -- Your Honor if --
Earl Warren: Well then I -- because if you have, I'd just like to ask Mr. McInerny and if he has anything (Inaudible), if he do, well, he might as well finish it. We only have a few moments. No, you have -- no you have thirty seven minutes that you got. So if you have more, we'll hear in the morning.
Francis W. McInerny: Yes, Your Honor. I may -- I may --
Earl Warren: Yes.
Francis W. McInerny: -- I made for rebuttal for that argument --
Earl Warren: Yes.
Francis W. McInerny: -- argument tomorrow.
Earl Warren: Oh, Monday afternoon. It's when we'll meet not --
Francis W. McInerny: I will (Inaudible) them tomorrow if I'm going away.
Earl Warren: Yes. All right.