Warren E. Burger: Mr. Veldman, you may resume whenever you are ready.
James S. Veldman: Thank you, Your Honor. At the time of the luncheon recess, I was attempting to answer a question by one of the Members of the Court. Mr. Justice Dooley, at page A7 of his opinion as it appears in the petition for certiorari seems to be defining lesser included offense under the concept of double jeopardy, and I submit to you that one of his errors is that he misdefines it. He speaks in terms of what the fact of the lesser offense must usually contain and no element not found in the greater. And I would submit to this Honorable Court that it is abundantly clear from the cases such as Brown v. Ohio, such as, for example, Virgin Islands v. Acquino in the intermediate appellate court, that for double jeopardy purposes the lesser included offense situation is thusly defined. The greater offense will always and of necessity include all of the elements of the lesser.
Potter Stewart: Could you cite where on page A7 he says that it is usually included?
James S. Veldman: He says -- if Your Honor will bear with me for just a moment. On page A7, three lines from the bottom, a new paragraph begins.
Potter Stewart: Well, it says, "As is usually the situation between greater and lesser included offenses."
James S. Veldman: "... the lesser offense, failing to reduce..." -- but, you see, he says, Your Honor, it is usually the situation, and I think, unless I misinterpret his language, I believe that that indicates that he has misapprehended the rule, the rule of the definition there.
Potter Stewart: Well, he says, in any event, in this case the lesser offense requires no proof beyond that which is necessary for a conviction of the greater.
James S. Veldman: Which, of course, I submit to this Court is totally not true.
Warren E. Burger: Certainly the corollary is not true, that the manslaughter charge requires proof of the homicide, whereas the lesser included offense doesn't to have a homicide or even an accident.
James S. Veldman: Yes, the so-called lesser included offense involves no element of death, it doesn't even necessarily involve an element of collision with any person. The so-called greater offense, on the other hand, can be easily proven in a number of instances without proving the lesser, since voluntary manslaughter, as Your Honors can see defined statutorily, and I have set it out at page 16 of our principal brief, clearly you can commit involuntary manslaughter in Illinois easily without the use of an automobile and therefore under no stretch of the imagination.
Harry A. Blackmun: I have two problems with your argument and I would like you to perhaps comment on it. First of all, in the statute which is set out at page A6 in the petition, there is an "(a)" on the manslaughter and there is a "(b)" that says, "If the acts which cause the death consist of the driving of a motor vehicle," and then it goes on, which is I take it a sub-category of the voluntary manslaughter.
James S. Veldman: It is --
Harry A. Blackmun: Which is, of course, the sub-category we have here.
James S. Veldman: It is the offense which is known in Illinois as reckless homicide.
Harry A. Blackmun: Right. Which is, I gather, a lesser included offense within--
James S. Veldman: It is characterized in the statute, if you will notice, as an included offense.
Harry A. Blackmun: Now, would you say that the reckless driving of a vehicle is a lesser included offense within the offense of reckless homicide?
James S. Veldman: Would I say that --
Harry A. Blackmun: In other words, what I am suggesting is a sort of a pyramid, the broadest category is the involuntary manslaughter, included within that category is the species reckless homicide and an even lesser within that category is the reckless driving of the vehicle. Each is lesser of the next step up.
James S. Veldman: Well, perhaps if we had the reckless driving of the vehicle, you might have an instance where it might be an included offense, but what I think you cannot -- even in Your Honor's pyramid of setting up sub-categories, you cannot make failing to reduce speed a lesser included offense even a reckless homicide because all that you are talking about in failure to reduce speed is a simple violation of due care by not reducing speed even to avoid, say, an empty wagon which on the highway.
Harry A. Blackmun: But the statutory definition of failure to reduce speed is not limited to cases of failure to reduce speed but also include driving at a speed that is greater than reasonable and proper and so forth. There are a lot of --
James S. Veldman: Well, I think a great many things, as Your Honor can see at page 17 in the people's principal brief, there are a great many things which are included within this particular section of the Illinois Vehicle Code. And I think there are a number of separate and distinct offenses which might be committed under this section.
Harry A. Blackmun: Right. The question is, I suppose -- let me put it a little differently -- the indictment for manslaughter that is quoted on page 4 of the appendix alleges that John M. Vitale has on or about so-and-so committed the offense of involuntary manslaughter. In that, he without lawful justification, while recklessly driving a motor vehicle, caused the death of George Kech. Could they prove that charge without also proving a violation of failing to reduce speed?
James S. Veldman: I don't think that is clear as the case in the posture in which this case comes before this Court. There was a police report which indicated that Vitale had violate a number of Illinois traffic laws. We don't -- I don't think that at this juncture, as the case presently comes before the Court, that we can say -- and I certainly personally cannot say -- whether the proof of the involuntary manslaughter would have involved the failure to reduce speed necessarily or not. I think that had the case not been --
John Paul Stevens: Wouldn't it necessarily have proved that he was driving recklessly and without proper regard to traffic conditions and the use of the highway in a way that endangered the safety of any person or property? Wouldn't it necessarily prove that he endangered the safety of the person he killed?
James S. Veldman: Oh, it would --
John Paul Stevens: That is what the statute calls -- that is the statutory definition of --
James S. Veldman: But do you notice, Your Honor, that the statute -- the statute begins -- we are talking about traffic statute --
John Paul Stevens: Right.
James S. Veldman: The statute begins, "No vehicle may be driven upon a highway of this state at a speed which is greater than reasonable," et cetera, and it goes on and it makes a number of what I would consider to be possibly separate and distinct traffic offenses, one of which is failure to reduce speed.
John Paul Stevens: Yes.
James S. Veldman: And I think Mr. Justice Underwood commented in his dissenting opinion on this very subject, that it was impossible to know which of the number of possible violations committed under this or other sections might have been the basic proof in the involuntary manslaughter.
Thurgood Marshall: Was all of this argued before the lower court, the fact that this was not double jeopardy and the fact that under Illinois law this was not -- was all of this argued?
James S. Veldman: No, actually, Your Honor, it wasn't. The --
Thurgood Marshall: Well, you had an opportunity to argue it, didn't you?
James S. Veldman: The way the case came, if Your Honor will note appendix B of the petition for certiorari, the way that the cause came to the Supreme Court of Illinois, the Appellate Court of Illinois for the First District had decided that they had not said much or anything about the double jeopardy question involved in the case. They had simply based it on an Illinois statute. Mr. Justice Dooley and the majority of the Illinois Supreme Court in their opinion said we find an even more compelling rationale in the Fifth Amendment of the United States Constitution. This forum, the forum before this Honorable Court is really the first time in which a full-fledged argument on the double jeopardy aspects of this case has been made, as I see it.
Thurgood Marshall: Is this the first time there was an opportunity to argue it?
James S. Veldman: No, and I believe the --
Thurgood Marshall: You are not saying that you didn't have an opportunity, are you?
James S. Veldman: Well, I don't think that -- I'm sorry, I don't think I follow Your Honor's question. I beg your pardon.
Thurgood Marshall: All you are entitled to is an opportunity to present your argument, that is all you have a right to?
James S. Veldman: Yes.
Thurgood Marshall: You don't have a right to ask somebody else to do your arguing for you?
James S. Veldman: No, you do not, Your Honor, but the point is I think that --
Thurgood Marshall: I shouldn't think the State of Illinois would need any help.
Warren E. Burger: Did you make all these arguments to the Illinois Supreme Court?
James S. Veldman: No, we did not because --
Warren E. Burger: Were you arguing just the state law question?
James S. Veldman: Basically the people's brief which is in the Supreme Court of Illinois, which I might point I did not either write or argue -- dealt basically with the state law question which came up from the Appellate Court. We have the procedure in Illinois of leave to appeal, and one's petition for leave to appeal is normally limited to those questions in the Appellate Court which are considered error by the petitioner. So we were somewhat limited in what we could argue before the Supreme Court of Illinois. And the briefs for respondent in the Supreme Court of Illinois really did not bring out the double jeopardy question which under Illinois court procedure, again, limited the people in that we were compelled basically to keep our answer within the bounds raised by the party appellee there.
William H. Rehnquist: You say that the Illinois Appellate Court relied on the Illinois statute barring prosecutions analogous to double jeopardy?
James S. Veldman: The so-called compulsory joinder statute in Illinois. The Appellate Court opinion I think can be pretty much condensed down to the fact that this prosecution violated sections 3-3 and 3-4 of chapter 38 of the Illinois Revised Statutes in that all of these offenses could have and should have been joined before a single court for trial. The Supreme Court of Illinois totally departed from that rationale.
William H. Rehnquist: Has there ever been an adjudication on the merits of either of these two charges?
James S. Veldman: Of these two charges, an adjudication on the merits?
William H. Rehnquist: Yes.
James S. Veldman: Yes. There has been an adjudication of the merits, although we don't have a transcript so we don't know what took place. But Mr. Vitale has been found guilty and he did not plead guilty. He was found guilty in the traffic proceeding and was fined in the sum of $15. And I can only assume that there was there some sort of trial and adjudication, although we do not have a transcript before us.
John Paul Stevens: Mr. Veldman, it occurs to me that as a matter of Illinois law, we do have an opinion of the intermediate, the Appellate Court to the effect that these two offenses are the same offense within the meaning of the Illinois Criminal Code. That holding was not reviewed by the Illinois Supreme Court which apparently went on federal grounds. But the highest court of the state which has spoken to the issue has told us that as a matter of Illinois law we have the same offense, isn't that true?
James S. Veldman: The highest court that has spoken on the issue, yes.
John Paul Stevens: And aren't we bound by the teaching of the highest court of Illinois that tells us anything about a state law issue?
James S. Veldman: You do not have a final determination of that issue by the highest reviewing court.
John Paul Stevens: But it is unreversed at least.
James S. Veldman: Yes, it is unreversed in the sense that it is untouched.
John Paul Stevens: In other words, the Illinois Supreme Court may have merely said yes and, oh, by the way, it also violates the federal Constitution.
James S. Veldman: No, but they did not say that, Your Honor. They specifically, in answer to our petition for certiorari 78-2, when this Honorable Court sent the case back, the Supreme Court of Illinois specified that its opinion was based on the Firth Amendment, so they declined to decide the issue, and I can understand that because the committee comments appended to section 3-3 and 3-4 -- and those committee comments in Illinois are proper source of legislative intent -- indicate that what those sections were basically meant to cover was an instance involving multiple prosecutions under a single act or a series of acts which were not covered or barred by the concept of double jeopardy in the Fifth Amendment, and it may have very well been that finding, as they did, that the Fifth Amendment barred the prosecution, that the Supreme Court of Illinois thought it superfluous to discuss the Illinois statute under those conditions.
Warren E. Burger: Suppose, Mr. Veldman, hypothetically -- this is a further hypothetical -- you could persuade us that there was some basis for reversing the Supreme Court of Illinois on their federal holding, would there be anything to prevent that court when the case was remanded from in effect adopting the Court of Appeals opinion and putting it on state grounds and therefore impervious to any challenge?
James S. Veldman: I think that having determined that in the basis of its opinion was purely federal constitutional grounds, that the Supreme Court of Illinois would be precluded from so doing. I should think that --
Warren E. Burger: How could anyone preclude them from saying, as Mr. Justice Stevens just suggested, the inverse of what you suggested, as a matter of fact, that if the is the attitude of the Supreme Court of the United States, all right, we will decide it on state grounds and then decide it just the way the Court of Appeals did.
James S. Veldman: Well, I suppose that in theory there is nothing to prevent them from doing it, but I think that in actuality the proper remedy -- and I think that if I were before the Supreme Court of Illinois, I would argue that the proper remedy, having decided it on federal constitutional grounds and been then reversed, would be to return the case to the Unified Circuit Court of Cook County for further proceedings under this indictment, and the question there, I think we would then have perhaps the question of the applicability of the statute but I think it would be raised properly in the trial court. I think it would ill-behoove the Supreme Court of Illinois to say, well, we decided our opinion was on one rationale but since they won't buy that we will just go 180 degrees the other way, and I cannot conceive, being somewhat familiar with the Justices on the Supreme Court of Illinois, that they would do that.
Byron R. White: They wouldn't be going the other way, they would just be reaching the same result.
James S. Veldman: Well, they would be reaching the same result but they would be reaching the same result on a completely different rationale.
Byron R. White: That is all right but they would be going on state grounds whereas now they have decided it on federal.
James S. Veldman: But they have said, Your Honor, in answer --
Byron R. White: At least if we disagreed with them, we would have told them that they were wrong on the federal ground and leave it to them to decide it on state grounds.
James S. Veldman: Yes, if nothing else. And as I have said, their specific answer to the inquiry of this Court under the petition for certiorari, the original petition for certiorari in this case was, the question presented to the Supreme Court of Illinois was have you decided this case on state grounds, federal grounds or both, and the answer was federal grounds alone.
William H. Rehnquist: But that doesn't prevent them, if we tell them they were wrong on federal grounds, when it goes back to them, saying, all right, we were wrong on the federal grounds, we will now address the state grounds.
James S. Veldman: Yes, I suppose they could do that. They could --
John Paul Stevens: You certainly took the state grounds to them, didn't you? You must have.
James S. Veldman: Yes, we did.
John Paul Stevens: That is about the only ground you took to them.
James S. Veldman: And they ignored it. They in fact ignored it.
John Paul Stevens: Mr. Veldman, is that really quite correct? At page A3 of the petition, after reviewing the proceeding in the Appellate Court, they conclude that that court had concluded that the Appellate Court concluded that the acts in both the offense of failure to reduce speed and the offense of involuntary manslaughter were identical with the exception in the manslaughter offense a death was involved. Then they said it follows from that that under the Illinois statute 3(b), since the prosecutor knew about both at the same time, as a matter of state law dismissal was required. Then they said after that there is an even more compelling reason for dismissal giving this hypothesis, that is that the double jeopardy clause of the Federal Constitution also requires dismissal. Now, what is the federal error in that analysis?
James S. Veldman: The federal error in the analysis of the state statute?
John Paul Stevens: What federal error did the Illinois Supreme Court commit, given the identity of the offenses which the Appellate Court had found and which the Supreme Court of Illinois did not disagree with but merely said we need not rely on the state statute that requires dismissal when identical offenses are involved, we can rely on the federal Constitution that requires dismissal when identical offenses are involved. What is the federal error that that court committed?
James S. Veldman: I think the error which was committed by that court was first in its interpretation of the double jeopardy clause, and secondly in finding that under Illinois law those offenses are the same offense.
John Paul Stevens: Well, the latter theory is a state law question. What was its erroneous interpretation of the double jeopardy clause?
James S. Veldman: But I don't think -- let me put it this way. I don't think -- I see my time is expired, but I would like to answer Your Honor's question if I may. I don't think that you can quite divorce the two things in the way that Mr. Justice Dooley wrote his opinion. He seems to interpret the Illinois statutes but on federal constitutional grounds, and I think that one cannot divorce the two things. And I think the federal --
Potter Stewart: What do you mean by that? How can you --
James S. Veldman: For example, he defines --
Potter Stewart: -- err on state statutory law on federal constitutional grounds?
James S. Veldman: He says --
Potter Stewart: If as a matter of state law first degree murder includes manslaughter, say, how is that affected one way or the other by the federal Constitution?
James S. Veldman: Because unless I misread the position taken by Mr. Justice Dooley and the majority of the Supreme Court of Illinois, their position was that the offenses were the same offense for double jeopardy purposes but then the statute barred them. It would have barred them in Illinois too had they --
Potter Stewart: Now, he is saying it is a lesser included offense that is a matter of Illinois law.
James S. Veldman: Yes.
Potter Stewart: Therefore under Brown v. Ohio we know that they are the same offence for the meeting in the constitution.
James S. Veldman: For the Blockbuger test.
Potter Stewart: The Blockburger original test was not a double jeopardy case. It was just a matter of statutory construction.
James S. Veldman: But what I am saying here is that I think that as you not believe that this court can be bound by what is a total erroneous interpretation of what is a lesser included offense because if this court is so bound then in fact the Illinois supreme court by determining an Illinois question would be detecting the applicapabilty of Brown v. Ohio in this court --
Potter Stewart: And so -- legislature. And so could the legislature of any state, that's one of the results of Briton against Maryland.
James S. Veldman: Is that state legislator?
Byron R. White: Yes.
James S. Veldman: The state legislators can define offences as lesser included offences. I would say up to a point, may I say that, may I just say this I think one reaches a point and please bear with me I hope my thinking is clear one reaches at point where the lesser included offences doctrine can be so extended as to violate for example due process because one could have a conviction upon a charge never made against the criminal defendant if in fact lesser included offences given to broad and interpretation. And I don't think that this Court --
Potter Stewart: What would be an example of that?
James S. Veldman: An example of that --
Warren E. Burger: Are you responding to the question now or are you continuing your --
James S. Veldman: I was attempting to respond. I realize my time is run, Your Honor. Do you wish me to conclude?
Warren E. Burger: Respond to the question. Respond to the question, please.
James S. Veldman: Thank you. All right. An example of that might -- I am trying to think very quickly of one example --
Potter Stewart: Well, I just wondered what sort of thing you had in mind, that's all.
James S. Veldman: For example, one could have -- one could be convicted of murder. Take an extreme example. Suppose someone were charged with murder and then were convicted of armed robbery on the evidence presented and the legislature said, well, armed robbery may be a lesser included offense of murder, and this Court -- now, that is reduxio absurda, I grant you, it would never be that extreme. But in much less extreme cases it might very well be --
Byron R. White: Like this one?(Laughter)
James S. Veldman: I hope that this Honorable Court will not so hold. Unless the Justices have any further questions of me, as I said, I realize my time is expired.
Warren E. Burger: Mr. Dirksen.
Lawrence G. Dirksen: Mr. Chief Justice, and may it please the Court. My name is Lawrence Dirksen, and I represent the respondent, John Vitale. Your Honors, I believe, to clarify some of the questions that first came out, I can probably fill the Court in a little bit on the history of this case because this is the first time that double jeopardy really has ever become an issue. This case has been all over and every conceivable argument that could have been made against John Vitale by the State of Illinois has been made. Originally, they challenged us on jurisdiction. Just to take a step backwards John Vitale was tried on the minor traffic violation. His uncle represented him on that matter. He was tried in the suburban court not too far outside of Chicago. From the conversation I had with his uncle, there was a full trial. Not only did the witnesses testify against John Vitale, John Vitale testified himself, which is neither here nor there. But if I had been representing him, I certainly would not have allowed him to take the stand, but he did testify, so it was a full trial. As I see this case, I have absolutely no argument -- in fact, I entirely agree with Judge Dooley's opinion. But really what we would be talking about here would be multiple trials if the state would prevail on this final argument because as I say, they had gone from jurisdiction originally. That didn't work. They said we can do one thing in the traffic court and we can do something else in the juvenile. Well, John Vitale is no longer a juvenile, but in those days they thought that they could prosecute him on traffic here and perhaps on the manslaughter over in the juvenile court. The fact of the matter is that they couldn't do it as an adult. I raised that question in the Circuit Court, I raise it in the Appellate Court, and I asked the state in front of the Illinois Supreme Court.
Warren E. Burger: You raised that on state grounds?
Lawrence G. Dirksen: Your Honor, my original motion was to dismiss the petition for adjudication of delinquency and it was based on statutory and/or constitutional grounds of double jeopardy which had compulsory joinder statutes --
Warren E. Burger: Federal double jeopardy?
Lawrence G. Dirksen: Pardon?
Warren E. Burger: Federal or state?
Lawrence G. Dirksen: It was a joint motion, yes. I won both ways. The Circuit Court ruled on the compulsory joinder statutes that the matter should have been joined in one trial, one proceeding. The Appellate Court said the same thing and they further reiterated that --
John Paul Stevens: Could I ask you a question about the argument in the Illinois Appellate Court. I gather you did represent --
Lawrence G. Dirksen: Yes, Your Honor, I represented him since the juvenile court.
John Paul Stevens: Did the state argue that even on the assumption that the offenses are identical, one being included within the other, nevertheless the Illinois state compulsory joinder statute is not applicable because it doesn't apply to juvenile proceedings or doesn't apply to traffic offenses or something of that character?
Lawrence G. Dirksen: No, I think it was very clear, there was never a question that it did not apply to juveniles. The state argued that but the court --
John Paul Stevens: The state argued that it did not apply then?
Lawrence G. Dirksen: Right.
John Paul Stevens: And so is it possible that what the Supreme Court of Illinois was saying is, well, we have identical offenses here, we don't have to decide whether the state compulsory joinder statute applies because in any event when you've got the same offenses you've got the protection under the federal Constitution.
Lawrence G. Dirksen: I believe that is correct, Your Honor. A juvenile issue was entirely dismissed because I think we all recognize, and everybody did in the courts, the nine judges from the State of Illinois thus far, that juveniles have all the same rights as adults and that is what I was saying when I back-tracked, the state abandoned that argument. They said, okay, forget about the juvenile question.
Byron R. White: How are we to understand the remand and the answer that the court gave? Did they say they decided the case solely on double jeopardy grounds?
Lawrence G. Dirksen: I didn't read it that way, Your Honor. I read it the way Mr. Justice Stevens said.
Byron R. White: Well, what did they say?
Lawrence G. Dirksen: They said that Appellate Court held under the compulsory joinder statute that the state --
Byron R. White: I know, but what did the state say in answer to our remand?
Lawrence G. Dirksen: Oh, they sent us back to you and said solely on federal constitutional grounds.
Byron R. White: Well, are we supposed to go behind that or not? The said solely on --
Lawrence G. Dirksen: Well, Mr. Justice Dooley who wrote the opinion died.
Byron R. White: Well, they are clearly given, given identity of offenses which they found, then as a matter of federal constitutional law there is double jeopardy. That is solely constitutional grounds.
Lawrence G. Dirksen: Your Honor, there is no question they are right.
Warren E. Burger: Of course, you agree that we can't examine the basis of the state holding.
Lawrence G. Dirksen: I absolutely do, Your Honor.
Byron R. White: Is Mr. Justice Dooley, now deceased, the former Jim Dooley, the noted personal injury lawyer?
Lawrence G. Dirksen: Yes, he is, Your Honor, and I believe this was the last opinion that he wrote. Your Honors, I think it is important for the Court to note that there is not much for me to elaborate on on Justice Dooley's opinion. I simply agree with it.
John Paul Stevens: If you are right, there isn't anything more to say, is there?
Lawrence G. Dirksen: And if there are no further questions, then I will conclude my argument.
Harry A. Blackmun: May I just ask this question.
Lawrence G. Dirksen: Certainly.
Harry A. Blackmun: Is speed a necessary element in a manslaughter conviction?
Lawrence G. Dirksen: It wouldn't necessarily have to be, Your Honor.
Harry A. Blackmun: It would not?
Lawrence G. Dirksen: It would not have to be in every case.
William H. Rehnquist: You could have a drunk driving down the street at four miles an hour, couldn't you or --
Lawrence G. Dirksen: Correct.
Harry A. Blackmun: Or you could have a car trying to leave a parking space that backed up at one mile an hour and crushed somebody behind it.
Lawrence G. Dirksen: Certainly you would, Your Honor. I think maybe I should say something about the case because I have know it that long.
Harry A. Blackmun: Doesn't that suggest that speed is not an element?
Lawrence G. Dirksen: You see, here we are not talking about the amount of speed, we are talking about the fact that he failed to reduce it, the fact that he failed to reduce speed resulted in a collision with a person, and the death of that person resulted in another charge or two other charges being filed against that same man, those charges being involuntary manslaughter.
Harry A. Blackmun: Suppose you had a mechanic underneath an automobile and one got in it and drove off without looking, he would drive off, how could he reduce it below zero?
Potter Stewart: Well, he could reduce it to zero couldn't he?
Lawrence G. Dirksen: He could, Your Honor, and I think --
Potter Stewart: From five miles an hour he could reduce it to zero and then he wouldn't have had a collision.
Lawrence G. Dirksen: I say I simply think the state in this case, they simply erred and they are coming before this Court and saying would you please rectify our error because we don't want to set a bad precedent in Illinois. This wouldn't happen in an adult case. It would not have happened if the state had kept its eye on things. After all, this young man was charged on November 20, 1974, with a traffic offense. He was tried a month later. They had plenty of time. The juvenile officer in South Holland necessarily had to go to the juvenile court, which is loaded with states attorneys, get the necessary petitions to file for an adjudication of delinquency, he obviously had those in his -- I mean this is supposition, but he had to have them at least the next day after the trial because we are talking about a trial that John Vitale went through, and now the state is saying we want another trial because he only had a $15 fine.
William H. Rehnquist: Well, you are not saying under no circumstances under federal jeopardy could he be tried for two totally separate offenses, are you?
Lawrence G. Dirksen: No, Your Honor. I don't have the argument with the offenses, I have the argument with the multiple trials. There can be separate offenses tried in a single proceeding, but I don't think you can take one act and charge a number of offenses out of that act and then have separate and successive prosecutions except in extremely limited circumstances.
William H. Rehnquist: How about the statement in Ash v. Swinson that you could bring a person to trial for killing six different poker players if he had not been acquitted in the first trial?
Lawrence G. Dirksen: Well, I agree completely with the holding in Ash v. Swanson because, as I understand that case, it was simply a question of identity and --
William H. Rehnquist: There was an acquittal in Ash.
Lawrence G. Dirksen: I know, but I mean double jeopardy applies whether there is an acquittal or a conviction.
William H. Rehnquist: But it doesn't necessarily mean that you can't try a man for two different offenses.
Lawrence G. Dirksen: In extremely limited circumstances. If they --
Potter Stewart: Well, that is a view that has been expressed by some members of this Court, but never adopted by the Court.
Lawrence G. Dirksen: I realize that, Your Honor.
Potter Stewart: Your case is Brown v. Ohio which was a court opinion.
Lawrence G. Dirksen: Yes, sir.
Potter Stewart: If I were you, I would suggest you stay right there.
Lawrence G. Dirksen: I will stay right there. I said I --
Byron R. White: I think what you are really saying is that Mr. Vitale is mighty lucky a young man to have been charged with a traffic offense --
Lawrence G. Dirksen: Your Honor --
Byron R. White: -- when he ran down and killed two young children in a guarded school patrol crossing.
Lawrence G. Dirksen: Your Honor, hard cases make bad law. I feel very bad. In fact, I happen to know one of the parents of the children who was killed, a police officer in South Holland. It is extremely unfortunate, but I cannot, because those are the factual circumstances, take any different position than any other lawyer could as far as my client's rights are concerned. The state knew what they were supposed to do. They have certain requirements that are placed on them.
John Paul Stevens: Would you be here, would you be making this argument except for the state statute, the compulsory joinder rule? Well, let's suppose that there had been no state rule at all and there had been those same prosecutions in the Supreme Court of Illinois who said this was double jeopardy.
Lawrence G. Dirksen: Without compulsory joinder statutes?
John Paul Stevens: No compulsory joinder statute.
Lawrence G. Dirksen: Would I still be here?
John Paul Stevens: Would you be arguing that the -- would you be supporting the Supreme Court of Illinois' result on --
Lawrence G. Dirksen: Yes, sir, I would.
John Paul Stevens: Because you think it is a matter of federal double jeopardy irregardless of state law, this is not double jeopardy?
Lawrence G. Dirksen: No, I do think it is double jeopardy in --
John Paul Stevens: You think it is double jeopardy. But you would say that there is a one transaction test, or don't you?
Lawrence G. Dirksen: No, Your Honor, I don't think we need to go that far. I am very aware of Mr. Justice Brennan's and Mr. Justice Marshall's transaction test. I don't think we even need go that far. I agree with them but I don't think we need to go that far because we are not talking about one transaction, we are talking about one act. There was an act of an accident, that accident resulted in a traffic charge and two deaths. And as I pointed out in my brief, if you can take that one act, you could create not only the offense of failing to reduce speed to avoid an accident, you could also create involuntary manslaughter, you could create reckless homicide, you could create reckless conduct, reckless driving, failing --
William H. Rehnquist: You are asking them for a principle that has never been enunciated by this Court if for one act you can only be charged once. Certainly, Brown v. Ohio doesn't say that.
Lawrence G. Dirksen: No, I'm not saying that, Your Honor.
Byron R. White: You at least say you must abandon the offense test.
Lawrence G. Dirksen: Your Honor, all I am saying --
Byron R. White: You suggest that even if the offenses are different, and even if to prove the one you don't need to prove something that is involved in the other --
Lawrence G. Dirksen: No, I say you could prosecute those offenses but you have to do it in one trial. You can't take one after the other.
Byron R. White: I know you do, but that has not been the rule --
Lawrence G. Dirksen: No, that is what I started with, Your Honor, in our own compulsory joinder statute.
Byron R. White: I know, but I want to know, aside from your compulsory joinder statute.
Lawrence G. Dirksen: I still think all charges that arise out of one act, the separate offenses can be tried but they have to be tried together.
William H. Rehnquist: What case do you rely on from this Court for that proposition? Hopefully this one?
Warren E. Burger: You are standing on the Illinois law when you make that argument, aren't you?
Lawrence G. Dirksen: Well, our compulsory joinder statute does provide that, so that is a good place to start. I mean, it --
Harry A. Blackmun: It is a good place to finish, too.
Potter Stewart: It is a good idea to abandon also, because that is a matter of your state law. That has never been held here as a matter of constitutional double jeopardy law.
Lawrence G. Dirksen: Judge, I am not going to --
Potter Stewart: Or the other hand, Brown v. Ohio was decided by this Court under the double jeopardy provision as applied to the states for the Fourteenth Amendment and that involved lesser included offenses, and I would think that your argument would be based squarely on that case.
Lawrence G. Dirksen: Your Honor, I couldn't more agree with you. I am simply stating my position philosophically, but I do agree with the decision of Justice Dooley.
Potter Stewart: State that on the way home on the airplane.
Lawrence G. Dirksen: All right.
Byron R. White: Mr. Dirksen, can I ask you, under the failing to reduce speed statute in Illinois, I notice your client was only fined $15. What was the maximum penalty under that statute?
Lawrence G. Dirksen: Your Honor, it was a Class C misdemeanor, it could have carried up to a $500 fine and 30 days in jail.
Harry A. Blackmun: Thirty days.
Lawrence G. Dirksen: Yes. If there are no further questions, I thank the Court.
Warren E. Burger: I hear none, counsel. Thank you, gentlemen. The case is submitted.


Earl Warren: Number 102, United States of America and Interstate Commerce Commission versus Contract Steel Carriers.
Charles F. Barber: May it please the Court.
Earl Warren: Mr. Barber.
Charles F. Barber: This case is here on appeal from a three-judge District Court sitting in the Northern District of Indiana. The case arises under the Motor Carrier Act. It confirms the distinction between common carriers and contract carriers. Those terms are used in the Act. This is the distinction this Court has noted that Congress has preserved throughout the Act and upon which the economic regulation of the motor carrier industry is based. The nub of the distinction is this. A common carrier is one which undertakes to serve or hold itself out to serve the public generally. A contract carrier, on the other hand, are carriers for hire that operate under individual contracts and agreements and are not common carriers. The two types of carriers are mutually exclusive and embrace all carriers, all motor carriers for hire. Appellee in this case held a contract carrier permit. It was found by the Commission to have conducted operations as a common carrier unauthorized by its permit. We have two issues in this case. First, whether the Commission's finding is supported by the evidence, and second, whether the remedial order entered by the Commission is void for vagueness. The so-called specialization test discussed in the brief is in our view a part of the second question. It goes to the specificity of the order. The facts are these. Appellee was issued a contract carrier permit in 1940 on proof that he operated a highly specialized carrier service for three shippers. The service that he offered was this. He had 10 trucks and trailers. They were equipped to carry extra length steel reinforcing bars. The motor carrier report filed by the Commission in the permit case says that the bars were up to 90-feet in length. Such bars were used in highway, culvert and bridge construction. They require delivery in many cases far off established highways. The drivers were trained to follow the engineer's survey marks and to deliver their loads of steel often in the absence of any of the consignees' representatives by locating the engineering mark in the field and leaving the steel bars there. By the spring of 1951, the proof showed, appellee had listed with the Commission 13 contracts. Eleven of these were with Kansas City shippers. Only one was with an Illinois Steel Company, none was with an Iowa shipper. As you look at the names of the companies, you see they are steel companies and construction companies by and large. At this point, in 1951, appellee underwent a burst of expansion. Less than a year later, in March 1952, it had 69 contracts including eight with Illinois Steel Company and 47 with Iowa Shippers. As you rundown the list of companies with which he had contracts, they include a range of light engineering companies. Maytag is one, Furnace Company, a good many familiar names among them. It's no wonder that a group of small common carriers engaged in the business of hauling livestock from Chicago or from Iowa farms to the Chicago area and depending for their return load on steel products, which they had been certificated to carry by the Commission, became alarmed and brought this complaint. What did the proof show? How did appellee accomplish this extraordinary expansion in a short period?
Stanley Reed: Did it require a special equipment to carry these -- these bars?
Charles F. Barber: As -- to carry the 90-foot --
Stanley Reed: What -- what makes me ask a question, I have to realize that in -- in the scope that I -- I thought it was a special equipment that you spoke of here to change the cars if -- with a lot of them. That's one aspect of it, doesn't it?
Charles F. Barber: Well, that -- that goes to an important aspect of the proof in this case. When the original permit was issued, appellee showed that he had 10 trucks. Each of which could carry these oversized steel bars up to 90-feet in length. The substance of the complaint in this case is that he had departed from that sort of business and was now engaged in quite a different type of business. All be it within the scope of his permit. I might explain that. His permit was founded on the special requirements of these oversized bars used in bridges, culverts and highways. In -- when he was making a delivery, he, of course, carried other steel products use in highway constructions, tapes and clamps. There are number of things that he listed in his proof. His permit covered -- steel products and steel articles and other products used and useful in highway construction except sand gravel and several other things. Now then, later on at the period of his complaint, he was using the other things to transport the -- the part of his permits which applied to other than steel bars.
Stanley Reed: For Maytag.
Charles F. Barber: To -- for Maytag, for the Furnace Company and so on. Well, the question comes down to a good deal to holding-out. This advertisement at page 90 of the record was inserted in the Chicago Motor Traffic Directory. This is a telephone book for shippers in the Chicago area, Steel Transportation Company, that was appellee's name at the time of the hearing. Iowa Division, serving all points in Iowa, daily dependable service, flat beds, condulets, vents, all standard equipment in further elaboration on your question, Mr. Justice Reed. At the other end of the market, the proof shows that he appointed a divisional manager whose office was at Des Moines and who actively solicited accounts in Iowa. He was extraordinarily successful. The proof show that this man working in Iowa was able to sign up every steel receiver of consequence in the Des Moines area, a total of 16 contracts. Moreover, appellee behaved in other ways like a common carrier. There's a true bill in evidence, on page 93 of the record, showing an interchange of shipment with a common carrier. There is a lease in evidence of a truck and the testimony in the record shows that this truck is a livestock truck which transported bulls to Chicago moving in the other direction. The --
William O. Douglas: (Voice Overlap) Suppose it often showed the original applications for contract carriers (Inaudible)
Charles F. Barber: Oh, I -- I assume it would, yes, sir.
William O. Douglas: (Inaudible)
Charles F. Barber: You have 16, you say, sir?
William O. Douglas: Yes.
Charles F. Barber: Well, 16 contracts, I should think, is -- is closer to the line. This man had 69, 69 contracts with a variety of shippers in the (Inaudible)
William O. Douglas: Well --
Charles F. Barber: It is where you have it to --
William O. Douglas: I thought all of the shippers (Inaudible)
Charles F. Barber: Yes, sir, that is all he was certificated to carry or -- it is (Inaudible) Company.
William O. Douglas: These facts -- all facts, cattle, is that exempt?
Charles F. Barber: Well, cattle are exempt from the requirements of the Motor Carrier Act and so anyone can haul cattle.
William O. Douglas: (Inaudible)
Charles F. Barber: I made that comment not say it hold it against him as you say, but to point out that the trucks which were leased to him were not specialized equipment in anyway. They were standard livestock trucks like common carriers, motor carriers generally use in their business.
William O. Douglas: (Inaudible)
Charles F. Barber: Yes, sir.Yes, sir.
William O. Douglas: (Inaudible)
Charles F. Barber: Well, it's the -- it's a central issue that the Commission is interested in. We are very concerned that the court below dealt with the specialization test as it did. In this case, we think on the issue of whether or not this carrier had held itself out to serve the public. We have about as clear a case as you could imagine, a full page advertisement in the Chicago directory, widespread solicitation of Iowa steel receivers and a burst of expansion of business in a very short period, showing in easy interchange of contracts as well as a -- a holding-out to accept any business he could get. So, on the holding-out issue, on the question of whether the Commission finding that he operated as common carriers supported by the evidence, I think, we have a -- with all due respect to the court below, an open-and-shut case on the question of whether or not the order is sufficiently definite to stand the test which have been applied by this Court to such cases. We must look to the reasonableness of the criteria to which the order refers and those criteria are the specialization tests as it has been elaborated by the Commission. So, I think, the specialization test comes up in the second branch of the case rather than the first.
Earl Warren: Where does the certificate printed?
Charles F. Barber: It's at page 2 of the record. I'll read --
Hugo L. Black: (Voice Overlap) is -- is it your idea that if one violates the law that way, clearly, that the license that you take on to waive on this because of the previous violations, is that involved here?
Charles F. Barber: That is not involved in this -- here. A motion was made for -- that the Commission on the basis of the record in this case institute what is called a revocation proceeding, to determine -- issue an order requiring this carrier to show cause why his permit should not be revoked under the provisions of the Motor Carrier Act. The Commission, the examiner said that that motion was not within the scope of the hearing and it was not renewed before the Commission. So, to answer your question, that is not involved in this case. It is a possible remedy which the Commission has in the case of aggravated violations of the law.
Speaker: I'm not quite clear --
Charles F. Barber: Yes.
Speaker: -- of what you said last. As I understand it, your position is irrespective whether the specialization was a proper test or not. We are holding-out here is whether the Commission is right irrespective of whether I can give the wrong reason if I didn't understand it.
Charles F. Barber: It is -- was -- yes, sir. It was right in finding that there has been a violation.
Speaker: Now, did you say that when it comes to the enforceability of the order, the vagrancy, the order of specialization test is the one?
Charles F. Barber: Very much so, yes, sir. The order required appellee to cease and desist from the operations as a common carrier by motor vehicle which it is found in said report now to be conducting without appropriate authority by the Commission.
Felix Frankfurter: Is that the whole order? Is that the order?
Charles F. Barber: That is the order with (Inaudible) introductory paragraph and so on, yes, sir.
Felix Frankfurter: Is that's the order then -- then why does this have to turn on these common carriers?
Charles F. Barber: Well, the --
Felix Frankfurter: (Inaudible)
Charles F. Barber: I -- I'm not sure I have your question, sir.
Felix Frankfurter: Please read again about the order.
Charles F. Barber: The order which is appended to a report which reviews the facts.
Felix Frankfurter: What page is that?
Charles F. Barber: It says the order is at page 18 of the record which reviews the facts, reviews the operations which appellee was found to be conducting. It sets forth the need for it to reform its operations to bring itself into compliance with the law. Sets forth the criteria which the Commission has used in such cases. Those criteria are summed up in specialization test. Then, the order says, is require --
Felix Frankfurter: The specialization test relates to the contract carriers.
Charles F. Barber: Yes, sir.
Felix Frankfurter: And the order -- that's in my point, the order indicate that the Commission, as -- as you say it, hasn't opened in such cases as to the common carriers.
Charles F. Barber: Yes, sir.
Felix Frankfurter: Then, why are we doing -- well, how can we not sustain the order? Why should we not sustain the order to go into this -- would -- for decision on what does or doesn't constitute a contract carrier?
Charles F. Barber: Well, you -- you have a very valid question that we maybe anticipating the issue which will come up when this carrier comes into the Commission, it says, “This is what I have done to comply with the order and which a hearing, if he request it, will be held and a determination of the Commission is entered.” So, our discussion of these criteria may in a sense be premature but they go to the form of the order. It's like the usual case in antitrust decree. You had it in the United Shoe decree which was before you shortly ago. In that case, Judge Wyzanski directed United Shoe to come in with a plan to accomplish the termination of certain leases. Now, if that had been contested, you could have say, “Well, why should we discuss now what is the appropriate thing for United Shoe to do.” If United Shoe is not satisfied with the action that the District Court takes on the plan which it submits, of course, it can bring out that later adjudication for review by the Court.
Felix Frankfurter: I think you're -- you're analogizing what seems to me a very simple situation.
Felix Frankfurter: Yes.
Charles F. Barber: -- or rather complicated. The Commission had given through this, this carrier, the common carrier operating without a license.
Felix Frankfurter: Yes.
Charles F. Barber: As do yourself in conformity, you come in and get license to the common carriers.
Felix Frankfurter: No, sir. No, sir, that is not -- that -- that's where we got across purposes.
Felix Frankfurter: All right. Now, I don't understand it. But why is nothing (Voice Overlap) --
Charles F. Barber: This -- this proceeding is a complaint proceeding. This carrier has not come in for a common carrier or if it --
Felix Frankfurter: But -- but the second paragraph would be also on page 18.
Charles F. Barber: Yes.
Felix Frankfurter: I'm addressing -- leaving -- addressing out that was --
Charles F. Barber: Yes.
Felix Frankfurter: -- to the precise order which has been invalidated --
Charles F. Barber: Yes.
Felix Frankfurter: -- with this judgment if you're asking review.
Charles F. Barber: Yes.
Felix Frankfurter: Now, the question before this Court, the question before the lower court was the validity of this order.
Charles F. Barber: Yes.
Felix Frankfurter: And therefore, I don't agree with the order. What I read is that the machine has found that this was a common carrier not having a common carrier license. And you should get it out of there that -- is that right or am I wrong?
Charles F. Barber: Well, when they order to cease and desist from operating as a common carrier and I see what you're looking to until such authority has been obtained. Well, now, I assume that appellee's assumption would be that if he came in for common carrier permit or certificate, he could not get one. Why? Because a number of common carriers have been certificated to carry this traffic from Chicago to Iowa. He would have to show public convenience and necessity. And as we all know in an industry which is well-developed, it is not easy for a carrier to show public convenience and necessity for traffic that is well-taken care of by existing common carriers. So, his problem under this order, if he decides not to come in for a common carrier, a certificate which, of course, is an alternative open to him, his problem will be to reform his operations so that they meet the test of a contract carrier. If, for example, he -- his modus operandi becomes as it was when he got his contract carrier permit, there is no question about what the Commission would enter an order finding him in compliance with the Act.
William O. Douglas: And that was the deduction of number of -- of contracts?
Charles F. Barber: It is a question of degree. If a carrier serves a very few shippers, so that he operates virtually as a part of the shipper's organization, an example is the contract carrier who carries for A.N.P. Then, the Commission finds him entitled to contract carrier status. It's a special individualized service. On the other hand, if a carrier has highly specialized equipment, the Commission finds that it meets this requirement of the Act for individual contracts and agreements. Appellee qualified under both of those tests. Now, as you increase the number of carriers in order to qualify as a contract carrier, the Commission requires a higher degree of specialization in service. One of the largest contract carriers in terms of number of customers is a carrier which has a service in metropolitan areas of moving checks from banks to the clearing house and clearing house to the banks. They have bonded employees. They have keys into their customers' establishments. You've seen the vaults that sit-out in access to the street. And the Commission has permitted them to operate as contract carriers despite the fact that they have many customers.
Felix Frankfurter: Mr. Barber.
Charles F. Barber: Yes.
Felix Frankfurter: I'm rather ready for deciding what I don't have to decide.
Charles F. Barber: Yes, sir.
Felix Frankfurter: Maybe as a goodness of the case that I say that, within the alibi that appellant has that alibi. As I understand it, the Commission starts out with the proposition that the distinction between contract and common carriers is a basis.
Charles F. Barber: Yes, sir.
Felix Frankfurter: It can't be both.
Charles F. Barber: Yes.
Felix Frankfurter: The Commission here approved this is a common carrier not having a common carrier license.
Charles F. Barber: Yes.
Felix Frankfurter: Why isn't that the only question before me whether this common carrier, if I -- if I -- if as I agree with you, assuming I agree with you --
Charles F. Barber: Yes.
Charles F. Barber: -- that this is an -- this is an open-and-shut case of common carrier. Why do I have to bother about the suggestion of contract carriers?
Charles F. Barber: The appellee will say, “The Commission has issued an order. If I don't comply with that order, I can be taken to court and assess penalties of $100 for each day that I am not in compliance.” He says, “I don't know how to comply with that order. The Commission didn't tell me to cancel 10 contracts or 12 contracts or 15 contracts.”
Felix Frankfurter: The Commission has told him not only as approvance -- made an administrative adjudication that he is a common carrier. And if I do get a common carrier license, that's what the plaintiff, I'd like to ask.
Charles F. Barber: Well, I think appellee will bear me out in saying that if you approach the case that way, you're -- [Laughs] you're paying short trip to his very earnest urgings that he can't get a common carrier permit --
Felix Frankfurter: Are you --
Charles F. Barber: -- or maybe he can't get a common carrier --
Felix Frankfurter: I don't know anything about that. Why would I make judicial knowledge of that?
Charles F. Barber: But he says, “What I have to do under this order is to get within my contract permit.”
Felix Frankfurter: No, you --
Charles F. Barber: That's my order for today. If I get --
Felix Frankfurter: That isn't the order at all. If he doesn't want to become a common carrier, then he get some other difficulties or opportunities ahead of him. The Commission said, “You're a common carrier, get a licence.” Now, he can challenge the correctness of that, the foundation of that order and say he's not a common carrier. But he can't say very well, “I'm a common carrier, but I want to become a contract carrier and will the Court please tell me what is necessary to bring myself in conformity with an order which the Commission has made.”
Charles F. Barber: Well, I'll --
Felix Frankfurter: All right, (Inaudible) --
Charles F. Barber: [Laughs] I don't want to be arguing his case.
Felix Frankfurter: No, but you have to argue --
Charles F. Barber: I think --
Felix Frankfurter: -- your case.
Charles F. Barber: -- we --
Felix Frankfurter: Your case is that you're arguing what's to be valid as to contract carrier is and I say that's not an issue.
Charles F. Barber: Sir, let me state what we are arguing. We are arguing that this order which requires appellee to cease operations which it has found in the report of the Commission to be unauthorized by its permit, his order to cease those operations.
Felix Frankfurter: But is that opinion --
Charles F. Barber: No.
Felix Frankfurter: -- one more phrase, Mr. Barber, that in order to cease operating as a common carrier.
Charles F. Barber: Or get a permit --
Felix Frankfurter: Or get a permit --
Charles F. Barber: -- or get a certificate so that he --
Felix Frankfurter: Therefore, that order is valid if he'd be a common carrier.
Charles F. Barber: I welcome any suggestion that will lead this Court to reverse the decision below. I would only add a footnote to it and that is that the criteria of the Commission which are set forth in its report are reasonable and sensible criteria.
Felix Frankfurter: Well, the criteria for the (Voice Overlap) --
Charles F. Barber: Criteria for distinguishing between contract and common carriers. I think Your Honors have said in regulatory cases that the order entered by the agency must be sufficiently definite to apprise the appellee of what's required.
Felix Frankfurter: And all of it --
Charles F. Barber: We think --
Felix Frankfurter: And all -- and all of it (Voice Overlap) --
Charles F. Barber: It has --
Felix Frankfurter: I put it to you, in all candid, about my intelligence in (Inaudible) is, I can't imagine an order more definite than this one.
Charles F. Barber: Well, sir, that's a -- a statement which I can --
Felix Frankfurter: Well, he's -- well, he's one of the common carrier and he has to get a license. What's indefinite about it?
Charles F. Barber: Well, if Your Honor -- suppose (Voice Overlap) --
Felix Frankfurter: It's definitely a challenge --
Charles F. Barber: Yes.
Felix Frankfurter: -- if that is in my case.
Charles F. Barber: If -- if Your Honor --
Felix Frankfurter: (Voice Overlap) let's -- it may be -- it may be without foundation. It may not be a common carrier and in your problem (Inaudible)
Charles F. Barber: I would hope in approaching the case and that way if you do that you not toward the reasonableness of the criteria of the Commission set forth in the report.
Felix Frankfurter: Well, if -- has the Commission -- has the Commission in this report laid down, indicated any criteria or criterion for determining what is a common carriers except the old one going back of (Inaudible) namely, holding out generally, has it?
Charles F. Barber: Well, yes, yes.
Felix Frankfurter: You mean in determining what is a common carrier?
Charles F. Barber: Well, we -- we have two mutually exclusive definitions. The common carrier definition as it appeared in the law originally, spoke of carriers who undertake motor transportation by motor carrier. And contract carriers were carriers who undertake carriage for hire under individual contracts. Now, the administrative problem was fitting the pattern of operations of motor carriers for hire into those two categories. The Commission obtained a great deal of light from the common law cases which imposed obligations of common carriage on carriers which hold themselves out. I -- those were the word -- words of art at common law. Those were not the words in the original definition of common carriers.
Felix Frankfurter: So there was no definition, is there?
Charles F. Barber: Yes, there was a definition.
Felix Frankfurter: What was the definition?
Charles F. Barber: The definition --
Felix Frankfurter: In the statute?
Charles F. Barber: In the statute.
Felix Frankfurter: What is the definition?
Charles F. Barber: The definition in the statute as it was originally enacted, the amended version is at page 2 of our brief. Read, “The term common carrier by motor vehicle means any person who or which undertakes whether directly or by a lease or by any other arrangement to transport by motor vehicle and interstate of foreign commerce and so on.”
Felix Frankfurter: Is there any difference in the commerce?
Charles F. Barber: Well, I don't know whether it's any different or not. But I --
Felix Frankfurter: Those words are found in (Inaudible) of the cases or -- or before there's a -- a common fact that allow the motor carriers.
Charles F. Barber: I -- I contest with you on this for this reason. The court below said, “The common law task of common carriage was perfectly clear and definite. Therefore, the Commission could not look at the words of the statute in order to develop a practicable test in which to handle the borderline cases.” And there are very few borderline cases. A recent estimate by the Contract Carrier Conference is that there are fewer than 20 contract carriers with more than 15 customers. That's only in those very few cases where the Commission is led to find the holding-out by the pattern of operations.
Felix Frankfurter: What you're now --
Charles F. Barber: Now --
Felix Frankfurter: -- saying to me is that I must change my view and it has to change my view of what is a common carrier under the Motor Carriers Act, is that it?
Charles F. Barber: No, sir. You don't have to change your view. I only ask that you --
Felix Frankfurter: Well, I'm suggesting I shouldn't.
Charles F. Barber: -- that you do not use it as a reason for preventing the Commission from doing the reasonable, sensible thing with its eye on its regulatory purpose to these few contract carriers which you might think -- or these few carriers which may or may not meet a strict common law test. I'm not sure whether they do.
Felix Frankfurter: And now that you suggest, of course, whether a particular situation, reach the common law test on that situation to have a right or view whether the fact or within the pattern. That's a different question. You spoke with an assurance which I had to break to you, waive as make it but this is an open-and-shut case. It is a common carrier.
Charles F. Barber: That he had operated as a common carrier.
Felix Frankfurter: And that's what a common --
Charles F. Barber: Yes.
Felix Frankfurter: -- carrier is and I don't know what's inside --
Charles F. Barber: Yes, he held himself up.
Felix Frankfurter: -- his own mind if he operates as a common carrier. Indeed, whoever wants his facilities can have them (Inaudible) the facilities --
Charles F. Barber: Yes.
Felix Frankfurter: -- as a common carrier unless if the statute has a special meaning. The statute doesn't have a special meaning.
Charles F. Barber: Yes.
Felix Frankfurter: And what you say is view of complicated circumstances --
Charles F. Barber: Yes.
Felix Frankfurter: -- which may grind the position one way or the other in finding whether it's a common carrier. And I say that's none of my business, provided it isn't wholly wanting in evidence that consider.
Charles F. Barber: Well, let me reply by saying, in this case, I don't have any difficulty either under the common law test. I am led to caution only because a distinguished Circuit Judge and two District Judges thought that when he looked to the common law test, he was required before we can reach a different conclusion in this case.
Felix Frankfurter: And that's why you said --
Charles F. Barber: That's why I'm led --
Felix Frankfurter: (Voice Overlap) -- is open-and-shut.
Charles F. Barber: That's why I led to caution.
Felix Frankfurter: (Inaudible)
Earl Warren: Mr. Burchmore.
Robert N. Burchmore: Mr. Chief Justice, Your Honors, may it please the Court. The Court has observed that the order in this case ordered the appellee to cease operating as a common carrier. If there had been evidence that the appellee was operating as a common carrier, the order could not be successfully obtained, but the Commission acted without evidence. The Commission substituted for evidence a theory as to what constitutes a contract carrier and it held in its report that if you are not a contract carrier according to the Commission's theory of contract carriage, you, therefore, automatically become a common carrier ergo the order issues.
Felix Frankfurter: Are you suggesting that if I read this record, as I have not done, if I read it conscientiously, I would have to find that this carrier is not a common law common carrier, is that your position?
Robert N. Burchmore: That is my position and it has not operated at any time as a common law common carrier or as a common carrier as defined by Congress in the statute.
Hugo L. Black: Now, what you say is on -- on the record, it's an open-and-shut case or just the other way from what's the requirement of this?
Robert N. Burchmore: I do, most assuredly.
Felix Frankfurter: That's what makes the law vis-à-vis?
Robert N. Burchmore: Four years ago, I left my office to attend a hearing in this proceeding which was held by the Commission in Chicago upon the complaint of some competitors of the client, the appellee, from whom he had attracted some of their trucking business. Rather than compete in the marketplace of carriage, his competitors chose to attack the appellee before the Interstate Commerce Commission and alleged that he was violating the law. The Commission set the case for hearing and the hearing lasted long enough to make a 60-page record. It started with the examiner's usual announcement of what the Commission had set for hearing and this is, you will see from the record, was followed by the complainant searching the hearing room for some officer or a person from the defendant appellee and he could question as to his operations. There being none in the room, they proceeded to testify, practitioner himself offering the testimony that a large number of contracts had appeared in the Commission's files as having been entered into by this defendant appellee here. There was not a word of evidence as to what the contracts contain. They were not offered in evidence, although they were on file before the Commission and the Commission never took the trouble to examine them. All that was really laid before the Commission in that hearing was the quantity of business that was being done. We were doing too much business. I'll come back to that because the statutory definitions of carriers is not -- does not hinge upon quantitative elements. It hinges upon qualitative elements not how much business a carrier does but what kind of business it does and in what manner it does it. Beyond the matter of how many contracts had been entered into, there were these other elements which I, with all respect to the Commission, termed trivia, namely, a bill of lading which showed that one shipment that had been carried under a contract properly on file with the Commission in accordance with its regulations had been “interchanged” with another carrier. In other words, the appellee had not carried the shipment from its first origin to final destination but had picked up the shipment from another carrier to take it to destination for its contracting party. Now, I should not labor a trivial matter but just by way of illustration, let me describe to the Court that in transportation parlance, and as the Commission well knows, interchange is a term of art having to do with a movement of goods where one carrier transports them partway and turns them over to another to be transported the rest of the way. And there are myriad of arrangements of combination or joint-through rates which is not necessary to go into here. Ordinarily speaking, the Commission has said, “Contract carriers do not interchange shipments with common carriers.” That is true and we have not interchanged shipments. But it being necessities of commerce that people who employ contract carriers be able to have the facility of moving their goods by their contract carrier and fence beyond when the goods need to move beyond. The Commission, in a formal proceeding, held that it is entirely proper for a contract carrier to carry for one of its contracting parties a shipment and then at the end of the line of that contract carrier, to act as the agent of his contracting party for the purpose of placing the goods in the hands of some other carrier, common or contract, to move beyond. So the physical movement of the goods is permitted and it is done in that way. There was no evidence at this hearing as to how the so-called interchange was performed in this case. But the reason I call it trivia is because no matter how it was performed, it was merely a matter of forum and not of substance. If we made the mistake of using the wrong papers, that was all the mistake we made. We could have accomplished the same result by using different forms of papers. Now, at the conclusion of the hearing --
William O. Douglas: What about the ads in the papers?
Robert N. Burchmore: The ad in the paper was another item. That was a -- a listing in the Chicago motor traffic directory which blazoned across the page that we were a carrier and we hauled steel between Chicago and Iowa and we offered daily service. There was no evidence as to whether that paper in which that circular was printed was circulated to the public generally. All the record show is this, that it was put in the hands of Chicago shippers. We may as well not have any question about it from the beginning of this case. This carrier did go out after business. He went out and negotiated new contracts. He wanted to increase his business and he did increase his business. We think that a contract carrier has the right to do that and this Section 903 of the Act specifically says that nothing shall prevent the right of a carrier to add to his or its contracts or substitute contracts as the -- as the demands of the public and the requirements in his business dictate. But in any event, that ad or listing did not hold out an indiscriminate service to the public generally to take the business of all commerce. It's simply dated boldly that we are in business and we do hold traffic. Now, if pursuant to that ad and there is no -- nothing in the record to show that this happened, if it had happened that a shipper saw that and approached the carrier, the carrier still would be wholly within his rights and acting properly if he negotiated with the shipper, the terms on the possibilities and the methods of entering into a contract and performing as a contract carrier or not performing it.
Stanley Reed: I understand that all of her contracts must be a part of Interstate Commerce Commission.
Robert N. Burchmore: That is correct. That's required by regulation.
Stanley Reed: Each -- each contract would be making the file.
Robert N. Burchmore: Each contract that was made was filed.
Stanley Reed: You're not sure whether these were contracts for singles shipments or whether they were contracts of running over volumes.
Robert N. Burchmore: The record doesn't show anything about the contracts except that they were on file with the Commission. The Commission didn't bother to look at them although we invited them to.
Stanley Reed: We -- we don't know what the contracts were.
Robert N. Burchmore: No, the record does not show.
Felix Frankfurter: Mr. Burchmore, you suggested a minute ago that (Inaudible) there's no doubt about it you went wholly out of that (Inaudible) of your phrase.
Robert N. Burchmore: Yes, sir.
Felix Frankfurter: But that's all the common carrier does, involving a none -- such as the world and you tell me what it is to and I'll take it.
Robert N. Burchmore: We did not --
Felix Frankfurter: Well, a common -- a common carrier doesn't say, “I'm a common carrier.” That's a conclusion of law. That's not an assumption.
Robert N. Burchmore: I should not --
Felix Frankfurter: As I read -- as I read the report of the Commission as I've just read it, here is an announcement that involved courts in Iowa, it wasn't contested that that was the (Inaudible) I don't know how all carriers been more flagrant, meaning by flagrant, more -- more candidly and more flagrantly to say, “Anybody who wants my services should come to me and -- and I'll give it.”
Robert N. Burchmore: Well, I didn't --
Felix Frankfurter: For all the common carrier and that -- that's makes a man a common carrier.
Robert N. Burchmore: That would make a man a common carrier but this man did not do that. He did not say to the whole world, “All who want my services, come and I will give it.” He's --
Felix Frankfurter: Everybody in Iowa could come, serving all points in Iowa.
Robert N. Burchmore: That is correct but not serving all people in Iowa or not holding himself out to serve all people in Iowa. If they came to him, he might and he might not take them on.
Felix Frankfurter: That depends whether this ad doesn't make things, isn't a holding of it. That turns on the -- the legal (Inaudible) of what this transaction was.
Robert N. Burchmore: The ad -- the ad certainly is ambiguous in that -- in that sense and at the time of the hearing, at the cause of the hearing, counsel for the appellee, who had not known of this ad, announced the examiner that on the advise of counsel, the carrier would hereafter make his motor carrier listings specifically show that he was a contract carrier and that was done. In its report, the Commission waives the ad for whatever its effect may have upon status. The Commission wasn't concerned with holding-out. The Commission was concerned with whether or not there were too many contracts and too little specialization because that is what it requires of a contract carrier. It departed from the test of common carriage and did not decide the case on the basis of that test.
Felix Frankfurter: The statement of the interveners account was not evidences and has had no effect upon all evaluation of the evidence of the record.
Robert N. Burchmore: That is not the statement to which I'm referring, Your Honor.
Felix Frankfurter: Yes, I know, but I am referring to that statement because if the appellant looks at an ad in the paper because I've heard all points in Iowa for myself and just for myself. I cannot imagine a clear or holding of the common carriers in that.
Robert N. Burchmore: But when the Commission made that statement, it was not referring to -- to my statement as counsel regarding the ad. It was referring to the statement of complainant's counsel to the effect that they couldn't make a case without having representative of the carrier present and asking the Commission to hold an investigation. The Commission did not hold the investigation and said in its report when we said that that constituted an admission that they could not make a prima facie case that such a statement did not constitute such an admission. Now, there's -- there is a statement in the Commission's report with respect to the ad and -- and that is --
Hugo L. Black: What page is that?
Robert N. Burchmore: The Commission's report starts on page 7 of the record and the -- the statement to which I have reference is -- begins on page 12 at the bottom of the page. Before reading that statement, I should point out that at the time of the Commission's report of its examiner, we took exceptions to the report. And regarding these matters as trivia, we filed an affidavit showing that none of the items which the examiner had criticized were being continued. And among those items was the matter of this ad which we said would not be done anymore and hadn't been done since prior to the hearing. It is with reference to those statements that the Commission here says, at the bottom of page 12 of the record, statements one and seven of the analysis of affidavit are not relevant to the issues. And here is the crucial statement, “And we can accept statements two, three and four and six as covering matters which have been accomplished for such effect as they may have upon defendant's carrier status.” Now, there's --
Felix Frankfurter: Let me -- let me read you on page 15 of the Commission, although the fact here are meager in some respects to reveal a pattern with extraordinary expansion in the period of approximately eight months and its easy to turn over of context thereafter. He believed that there is ample evidence to show that this expansion was brought about to some extent, I believe, by indiscriminate solicitation and advertising among other things, meaning subsequent to the cancellation of 13 contracts, some of which had been referred by others. The number of contracts is being enormous in the circumstances here present. Ultimate test to be applied in -- in the nature of the holding-out to the public on the part of the carrier and with the freight case to which this is on. This is all language that seems to me all echoes of all common laws just as our common carriers.
Robert N. Burchmore: Yes, it does, Your Honor. And the appellee admitted at the outset that that ad was bad because it was subject to misinterpretation and it said that it wanted to discontinue it that it had been done without the advise of counsel and unwittingly and the Commission accepted that statement for such effect that it had upon status. In addition, the Commission waived everything except the number of contracts. The statement that has just been read by the Court is a pertinent statement part of the Commission's views about the case, but you have to read this report as a whole. And when you read it as a whole, beginning with page 1 and again on page 3 and again on page 7 all the way through the report, the thing that is talked about is the number of contracts not how they were obtained. It is the amount of business that is being done and the Commission expressly applied, explicitly applied, as the test of status in this case, its so-called specialization test. This Court said in the Chenery cases that you can only go upon what the Commission has said was the basis for its decision. The Commission here said, the basis for its decision was the specialization test. If it -- if the basis wasn't -- was not a holding-out and the Commission said it was not, then you -- then this Court, under the Chenery case, can only accept what the Commission said.
Hugo L. Black: Did -- did the Commission criticize your specialization?
Robert N. Burchmore: The Commission said as to the matter of specialization that the record was meager and the evidence was scanty but that there was no evidence in the record showing any sufficient specialization. And that since there was no specialization, the number of contracts must be held to a minimum.
Stanley Reed: I -- perhaps, I don't understand what specialization is. Specialization, does that mean the things that you were authorized to carry by your contract by --
Robert N. Burchmore: Despite --
Stanley Reed: -- by your license?
Robert N. Burchmore: No, it does not go to the commodities. It goes to the service, equipment, training of employees and that sort of thing. The specialization test is a dual test, an alternative test which on the one hand allows the alternative of only a few contracts. That is if you transport some material like iron and steel, for example, it doesn't require any special equipment. You can only have a few contracts. But if you do perform some special service on the other hand like swing up the poles of the destination or some other -- have some special equipment like a tank truck, then you can have more contracts. The Commission has even authorized the contract carrier which had a thousand contracts.
Stanley Reed: Well, I can understand specialization in trucks that carry automobiles or -- or tanks that carry gasoline of that (Inaudible) specialization. Do you think there is something besides that?
Robert N. Burchmore: No, that is the kind of specialization they are talking about, but the --
Stanley Reed: What the specialization they gave you was to carry -- not -- not only the short and long steel bars but also carry steel equipment of different kinds as I --
Robert N. Burchmore: They --
Stanley Reed: -- as I understand you.
Robert N. Burchmore: They gave us no specialization. What my Brother has said --
Stanley Reed: (Voice Overlap) for anything except those long bars, would you?
Robert N. Burchmore: We don't -- I don't think that's special equipment. The long bars just takes a long flat that is all and the -- the --
Stanley Reed: I thought they were so long they had to be --
Robert N. Burchmore: They have a pole trailer where -- where the pole extends four-and-a-half to length in the trailer for the long poles. But the point is whatever may have been shown about special nature of services, what the Commission did when it granted the permit was to grant a permit to do -- perform service that had no specialization in it. They authorized as the record shows transportation of steel articles and materials used or useful in highway construction projects and the like.
William O. Douglas: (Inaudible) and of that specialization in --
Robert N. Burchmore: There is no chart --
William O. Douglas: -- of the 69 contracts?
Robert N. Burchmore: No, there's no allegation or charge anywhere here that we went outside the scope of our certificate. We held to the commodities we were entitled to carry. We held to the territorial scope.
Jusitce Burton: Did the --
Robert N. Burchmore: So --
Jusitce Burton: Did the District Court find that you were not acting as a common carrier?
Robert N. Burchmore: The District Court found that the -- that the Commission's conclusion that we were acting as a common carrier was based upon test that was not -- that was contrary to the statute. The Court made no independent finding as to whether or not the appellee operated as a common carrier.
Speaker: Supposing, Mr. Burchmore, that we should come to a conclusion that there was enough evidence here. Suppose that the Commission order could be upheld on the theory of degree to be the proper cases, so you know. What should we do with the case?
Robert N. Burchmore: If you found evidence here to sustain a conclusion that this was a common carrier, I think you still would have to affirm the court below because under the Chenery cases, this Court will not sustain a Commission order upon a ground different than the Commission itself adopted. You do not do in this Court with the Commission as you do with the lower court. If the court below decided the case in the right way for the wrong reason, you will affirm the Court. You will not do that for the Commission.
Felix Frankfurter: I'm holding sympathetically a general proposition and you notice to imply it, I wouldn't have to find on reading the Commission's report and I think you would agree. I would have to sign. I'm reading the Commission's report that they said, the criterion or what constitutes a common carrier is big length of business in these areas.
Robert N. Burchmore: When you --
Felix Frankfurter: Is that right? Wouldn't I have to find that?
Robert N. Burchmore: You -- I think you will have to find it and with all respect, Your Honor, I think when you read the report, you cannot escape so find. The Commission here changed the statute to read quantitatively instead of qualitatively.
Felix Frankfurter: Say now, you -- both the one -- both sides are equally clear in opposite directions, aren't they?
Robert N. Burchmore: Well, what exist in the minds of counsel might be different from what comes out of the advocate, [Laughs].
Felix Frankfurter: Well now, what have you most derived?
Hugo L. Black: I assume that you (Voice Overlap) --
William O. Douglas: (Voice Overlap) Justice Harlan's question.
Hugo L. Black: I think I meant to answer the question by saying that even if there were evidence here that -- that they had been at one time in operation as a common carrier, you would have to affirm the court below because the Commission did not decide the case upon that basis. The Commission explicitly waived the evidence in favor of deciding the case on the basis of its theory of contract carrier. It said, “You're a common carrier because you're not sufficiently specialized or don't have few enough contracts to be a contractor.”
Sherman Minton: Well, they did consider these other things along with that proposition, didn't they, in determining whether or not you were acting as a common carrier?
Hugo L. Black: I don't think they did when they -- I don't see how you can say they did when they say that we accept these matters for such effect as they have upon status. Now, that raises --
Felix Frankfurter: You have to have contracts.
Stanley Reed: What -- what did that mean?
Felix Frankfurter: To my mind, that means that -- that they have nothing further to do with the case that we are now deciding the case upon the specialization test, the number of contracts and the lack of specialization. And I may say further that if that is the case, the court below, Judge Lindley and District Judges Parkinson and Sweigert, earnestly attempted to find out what the Commission had said here. And if those three judges were unable to find out from the Commission's report, then the Commission's findings are inadequate.
Felix Frankfurter: Your --