Warren E. Burger: We'll hear arguments next in Number 70-188, Wright against the City of Emporia. Mr. Tucker, you may proceed.
Samuel W. Tucker: Mr. Chief Justice and may it please the Court. This case was commenced on March 15, 1965 before the City of Emporia came into being. The litigation was litigation against the County School Board of Greensville County to require desegregation of public schools which it operated has a biracial school -- school system for the entire county including what then was the Town of Emporia. At that time, all of the county's white children attended the schools located in Emporia. There were two such schools, one, the Emporia Elementary School, one, the Greensville County High School. Both of which located in the Town of Emporia was at that time, and they were the only schools which white children in the county attended. The -- in other words, children who live in the county cross the line to attend -- white children who live in the county cross the line to attend schools in the city. Some of the Negro children, the elementary children who live in the city cross the lines to attend schools at the county, all of the Negro high school children who live in the city cross the line to attend schools at the county. That's one school system. As far as the school system is concern, there were no political lines.
Potter Stewart: The -- there was a Negro school in the city also.
Samuel W. Tucker: There was one Negro school in the city which had been the old high school or the training school doubling this high school and other school and there-- there's a -- as far as the high school is concerned, it was replaced by new school. In 1953, I believe, it was built about a mile north of the town.
Potter Stewart: What part of Virginia is this county (Voice Overlap) --
Samuel W. Tucker: Greensville County is on this North Carolina line. It's just about 10 to 20 miles of -- north Haley Place County which was just being spoken about.
Harry A. Blackmun: So, it's fairly close to Scotland Neck?
Samuel W. Tucker: It's quite close to Scotland Neck, yes. After four years of litigation, we prevailed upon the District Court to require a plan that would prompt us realistically to -- to desegregate the schools. The essence of the plan was one that was proposed by the plaintiffs and that was to assign certain grades to certain schools and assign children other who lived in the city or in the county to the grade served in that particular school. Specifically of interest here, all the children in grades one, two and three were assigned to the Emporia Elementary School in Emporia, that then the traditional white elementary school.And all the children in grades 10, 11 and 12 were assigned to the Greensville County High School in Emporia that hadn't been the -- the traditional white school. And all of the children in those intermediate grades were assigned to the previously all-black schools in accordance to the grades that those schools had served. Now, immediately after the District Court gave approval to this plan, the City of Emporia decided it would take over the two traditionally white schools and operate them as a separate school system. And the Court of Appeals has held, reversing the District Court that this should have been permitted. And if --
Potter Stewart: And if you said it -- say it -- it was a town and it --
Samuel W. Tucker: Well --
Potter Stewart: -- became a city --
Samuel W. Tucker: Became a city while this case was pending.
Potter Stewart: Right. And the -- this --
Samuel W. Tucker: Which I don't --
Potter Stewart: Now, that didn't happen automatically just when it reached a certain size (Voice Overlap) --
Samuel W. Tucker: Well, if they had the (Inaudible).
Potter Stewart: It took action by the --
Samuel W. Tucker: But in --
Potter Stewart: -- by the --
Samuel W. Tucker: -- in the local court to show that reaches a population of 5000.
Potter Stewart: They had to have this population of 5000 but wouldn't they --
Samuel W. Tucker: It really doesn't make a lot of difference because as a town, they could've operated the separate school system if they had wanted to.
Potter Stewart: Well, they could.
Samuel W. Tucker: They could have. There are towns of Virginia that have separate school systems. Now, we say that --
Potter Stewart: Well, but under Virginia law, when a -- when a municipality becomes a city, then it -- then -- then governmentally, it changes, then it's no longer a part of the county.
Samuel W. Tucker: It's not a -- it's in -- politically independent of the county, that is true.
Potter Stewart: Right. And when it's a town, it's not politically independent.
Samuel W. Tucker: It's not politically independent, that's correct. Now, we think that Court of Appeals reached its judgment through a certain unfortunate distortions of the evidence. So, we have held to discuss the evidence at quite some length because we wouldn't like the same thing to happen here. And first, we'll start with sort of an overview of the county and the -- and the area. The longest is a small county, only 312 or so square miles. Along the straight line distance were being measured from east to west or whether you measure it from north to south is a -- north to south would be about 25 miles. The county average is about 12 to 13 miles in -- in that. This shaded area here schematically into some of the county is Emporia. And the Meherrin River puts the west-east across and then right through the middle of Emporia and on and over. So, in the literal sense, it turns out that all roads sort of lead to Emporia and the only bridges across that river are at -- are at Emporia. The bridge that the local people used to use is the connecting link between North Main Street and South Main Street Emporia. Another significant fact is which minimizes this question of transportation and so forth, every school in the system of the -- the high school is built for the Negro high school is located both here at the elementary school, one here over, one over here. All of them within a -- a radius of two and a half miles from -- from some point in Emporia. No school is more than two or three miles over town. So, the distance travelled or the difference in distances and this problem are minimal. And between 1965 when this litigation was commenced, in 1969 when complete desegregation was ordered, the black majority of pupils had decreased by 223, from 2700 to 2477. And white minority had decreased by 518, from 1800 to 1282. This is the talk about the school system about 3750 pupils roughly. As to that effortless litigation had been two years and going, July 1, 1967, Emporia obtained its conversion to a second class of status. And we don't make a big point about the testimony that their purpose was to get a big -- better break of the sales tax proceeds. But we do submit that whatever the underlying motivation for the transition, the transition was made subject to the right, the power and the duty of District Court to dispose of this case. And to accomplish the desegregation of the schools in the county including those that were situated in Emporia. Now, as the law required, the -- the Emporia City Council appointed members to a newly formed Emporia School Board. And that School Board function only in two respects. It joined in signing the April 10, 1968 contract between Emporia and Greensville County of which the county was going to continue to provide certain essential services brought out this year in courthouse and even -- and specifically the public schools and the city agreed that they would pay a share calculated on a percentage basis for those services. On the -- on the other function performed by the School Board until desegregation was ordered, was that the School Board met -- I'm -- I'm not sure if it was annually or -- or once a year, joined with the County School Board so that they could legally hire a superintendant of the schools. Otherwise, the schools went on, the County School Board ran the schools' business as usual. As a matter of fact, there was no complaint, no question at all on the part of the city school officials of the City Council numbers as to the resistance that the county school was putting up to this lawsuit to desegregate the schools. And, even after the New Kent case, they now properly filed motion for relief in light of the New Kent, the County School Board was successful by one way or another by proposing plans that obviously would not work a series or everything that they successfully held of inevitable for a full year. Until the District Court considering that the County Board had repeatedly failed and virtually refused to propose an adequate desegregation plan as to the plaintiffs would prepare a plan which we did in the sense that that's a plan that's in operation in -- in the schools right now. And when the Court announced that it would adopt that plan and that also being made in June of 1969. But the taste of a hard-worked victory didn't last very long because suddenly, final result hadn't been another ball game. On July 23rd, when the County School Board sought to have the Court make amendments to the plan that the plaintiffs had offered, they would desire -- considered administratively desirable and they were not objected to by the plaintiffs.And the Court taking that matter on advisement was advised that the -- by the County School Board that they may have to come back to submit another plan if the city children withdrew from the school system. And that remark the literate plaintiff's counsel to their counter attack that was then being developed by the City of Emporia. We found that on July 7, the count -- City Council had sent a letter to the County Board of Supervisors and the County School Board and their legal adviser which the letter is printed in the appendix at page 56. The letter takes note of the federal court's decision, desegregate. And the second paragraph of the complaint and we'll quote, “The directive plan becomes even more unpalatable when the school records reflects those students of a city who attend to combine school system are not contributing to the imbalance which apparently led the Court to order school class relocations, bussing, et cetera.” The county was by then better requested to transfer to the city the title to all school property sighted within the city. And in return, the county was promised that upon payment of tuition, the county students might attend the city schools on a first come, first serve basis. And we think it obvious that they were referring to the white students of the county. As if the -- if they had been anticipating the black students of the county also attending the schools had been no real purpose for their separating the schools. This is just one of the many evidences in this record justifying the District Court's finding that Emporia's decision to secede from the county was racially motivated. From the beginning, the city's concern was with the 1880 black county children, two-third -- three-fourths I believe, were the plaintiff class who as the city officials sought, calls a racial imbalance which had required the desegregation order. On July 14, 1969, the minutes of that time the appendix at page 62 and we think that they are the essence of the plaintiff's case here. On July 14th, the City Council admit publicly on a special session. They leave -- those minutes leave no doubt as to the purpose of the assembly was to the motivation as though -- of those who addressed the assembly including the council meetings -- the council members. Merely announced and we quote, “The purpose of the meeting is to take action on the establishment of a city school system to try and save a school system for the City of Emporia and Greensville County.” He further -- later said that the City of Emporia and Greensville County are as one. We could work together to save our school system. And cases came on to trial, the things that -- well, we had to say about the officials of Greensville County were -- were less complimentary and we get the idea that Greensville County and Emporia had been waging along -- long drawn out war. By the time they're making this decision that at the time that they're under -- really under the impact of the federal court order, the city and the county wanted -- we can cooperate and still see if our school system and carry on business as we always have. Mr. Langford to show the racial interest in -- in their decision of the racial effect in that decision, chairman of the city school board gave a plan based on Judge Merritt's ruling and percentages of Negroes at each school for the first seven grades if Judge Merritt's order would -- would be allowed to go into effect. You cannot read the minutes of the meeting without seeing that the thing about which the city was unhappy was the fact that the District Court order was going to require actual desegregation of the public schools of Greensville County. At the foot of page 65 and -- for me to say minutes, you'll see that Mr. Langford, Chairman of the School Board, told the Council that approximately 500 county children could attend city schools if the city obtained the buildings it wanted. They have only 728 white children -- white county children in the system. Now, a separate system offered the only way to continue to insulate these children from that mass -- of what we consider mass of 1888 black children who lived in the county. And that was what was to be accomplished at all cost even, and we get for the minutes, even if it required moving into temporary buildings and using makeshift equipment as amount of the separation. Now, at the interlocutory hearing, hearing on interlocutory injunction some three weeks later, the man responses and city attorney's leading question testified that the primary motive, and seeking to separate was to provide a substantially superior education. And once relate that the December plenary hearing, the City School Board exhibited an elaborately expensive budget which the School Board saw for the first time and adopted at a meeting held 15 days prior to the trial in which the city council saw for the first time and adopted the meaning two -- two nights later. But in July, the decision to secede was made, the whole mark quality was a more palatable percentage of black children. And the physical thinking reflected in the July meeting was the expression of the mayor that city system wouldn't cost anymore than they were paying being with the county. And that they could take county students in on a tuition basis. Nothing else in that meeting, only questions of adolescence sense was expressed. That was I think in -- in July when the City School Board was instructed to take immediate steps to establish a school division from the City of Emporia, and the city attorney was instructed to take immediate steps to effect the legal separation in terms of the equity of -- of the -- which the city and county had in the jointly owned -- in the jointly owned property. July 31st, the City School Board published a notice to parents that they should -- city parents that they should register in the city schools and in -- but that notice invited the county parents to register their children on the first come -- no transportation tuition basis. The city attorney wasn't quite so prompt in executing his direct there because it went until October of 1969 that he filed a suit to have the state court invalidate the contract if the contract was indeed invalid. And for some reason, the Court of Appeals was in the impression that the sequence of events happened at first in June of 1969, the city attorney advised the council that the contract was void. And the city then filed action in the state courts to have the contract invalidated. And then the parents were then notified that the city children would attend city schools has been -- the plaintiffs followed the supplemental complaint seeking an injunction, but things didn't happen in that sequence. The notification to the parents was dated July 31st. The supplemental complaint was filed August 1st. The hearing on the motion for the interlocutory injunction was August 8th and sometime after that hearing, the Council doubt this was advised that the contract might be successfully attacked. In the Court now on October 1st, the -- a suit for -- for that purpose was filed in the state court. Now, there are erroneous empiric questions the Court of Appeals seems to have stemmed with the testimony of Mr. Langford, Chairman of the City School Board who was asked by the city attorney, “When did you obtain a lawyer who advised you that the contract was illegal and violative of the Constitution?” And his answer was in June. But on cross examination, we devote that the advice was a matter -- something to him as an individual, he was not a member of the Council. The chairman of the school board was not giving at a meeting of the School Board of the City Council or any other group. And when we read -- read the testimony that was being heard at the August interlocutory hearing, we find that the -- that the School Board people and the City Council people looked upon this contract as a formidable obstacle. As a matter of fact, we went back to the minutes of that July meeting in which the city attorney was present. This followed the contract as being something that might be of a void by mutual consent or by annexation that makes you a territory from the county. The contract had a provision had a provision that it would be terminated if the city did take an annexation.
William H. Rehnquist: Mr. Tucker?
Samuel W. Tucker: Yes, sir?
William H. Rehnquist: You're saying that the Court of Appeals was operating under a misapprehension here. Did the District Court's findings support the position you're now sitting here?
Samuel W. Tucker: District Court's findings support of the position. It gave the date on which the -- the city filed its lawsuit this October.
William H. Rehnquist: Was there -- was there an express finding as to motivation by the District Court?
Samuel W. Tucker: The District Court found that the -- he found the order is mixed. He says that the -- that the -- raised and motivated, he gave them credit for their protestations that they wanted to develop a better school system but he could not close his eyes to the fact that the thing that -- that triggered the entire thing was his order. I think that's a fair statement of it, Mr. Justice Rehnquist. But, in another and perhaps more important aspect, the Fourth Circuit majority misstated the facts of the case. The Circuit Court sought to ascertain the primary purpose of the city by looking to the projections of the numbers and percentages of the black and white students will be attending the two systems. The city's witness had predicted a 48% black and a 52% white ratio in the city-operated high school, in a similar but in greater ratio in the city-operated elementary schools. But these predictions link the facts. The anticipated return of 10% of the school population from the private school would increase the white percentage of the high school to 56%. This -- there is some talk in the testimony about annexation and they could annex outline areas of the county and -- and increase the white population of the county immeasurably. Well, how -- the figure isn't given and this is the part that's not accurate work. And then as -- face the reality of why he's, they didn't take in account that the children who lived in the county wouldn't manage to live with relatives in the -- in the city or with friends or people who had moved out -- who could afford to move from the county into the City or into the newly -- the part of the city to be annexed in order to -- that their children could attend the public schools.
Warren E. Burger: Mr. Tucker, are you --
Samuel W. Tucker: Yes, Mr. Chief Justice.
Warren E. Burger: I'm not clear whether you're now taking issue with the allocation of students entirely within Emporia or whether you're talking about the indict on the whole school district as it were or was before Emporia was carved out?
Samuel W. Tucker: Well, I think there's a little difficulty to keep the two separate because one -- one bears on the other anyhow.
Warren E. Burger: Yes, but I -- I -- your -- your last remarks that in the figures you were giving. That is, do you challenge the end result within Emporia as an improper allocation just as to Emporia laying aside the impact on the district or county as a whole?
Samuel W. Tucker: I might -- I -- I find it difficult to really think that the figures and vicinities make no difference but, when I look at the entire picture of whatever happens in Emporia to increase the white majority is -- wanted to increase the black majority in the counties. And it doesn't take a lot of imagination that -- to see that the county schools would become for all intensive purposes or remain for the intensive purposes of the black schools. Well, if they -- few shifts, annexation or adjustments or tuition basis or a county children attend the city schools on tuition basis that the white children would remain out of the school sighted in the county just as they have remained of those schools during the freedom of choice and during (Inaudible).
Warren E. Burger: Well, are you suggesting a reverse flight that is a county flight into the city --
Samuel W. Tucker: I am suggesting that.
Warren E. Burger: -- of white pupils.
Samuel W. Tucker: That -- that's what would -- would happen and I think the -- I think that's fairly what the -- what the Council meant when it was trying to negotiate with the city, whit -- with this county.
Warren E. Burger: Well, I want (Voice Overlap) --
Samuel W. Tucker: But to get the buildings and promising the county children they come in on a tuition basis and so forth.
Warren E. Burger: Forgive me again so I have it clear in my mind what is the composition of the Emporia schools?
Samuel W. Tucker: I -- I --
Warren E. Burger: Just within Emporia, what is the breakdown?
Samuel W. Tucker: At present of what the --
Warren E. Burger: At the -- at --
Samuel W. Tucker: -- of what the Emporia proposed.
Warren E. Burger: -- at the present and what -- what was before it.
Samuel W. Tucker: At the present, the -- the plan that the plaintiffs proposed and the -- and the District Court approved is in operation and it has been in operation for two and a half years. So that the grades one, two and three of children from all over the area attended the Emporia Elementary School and grades 10, 11 and 12 from children all over the area, both county and city had presently attend the high school and had been doing so for two and half years. It happens that we got the injunction entirely and the District Court gave the injunction to protect this order and the order went into effect and -- and --
Warren E. Burger: And what are those figures at present in Emporia -- within the City of Emporia?
Samuel W. Tucker: I -- as I said that -- that these at the present, the best figures that we have is that the city had 543 white children and 580 Negro children. The county had 728 white children and 1888 Negro children.
Warren E. Burger: What's the figure again? 700?
Samuel W. Tucker: 728 white, 1888 black.
Potter Stewart: But Mr. Tucker, as the situation is now, the two schools in the City of Emporia are serving first grades one, two and three for the whole county (Voice Overlap) --
Samuel W. Tucker: That's correct.
Potter Stewart: And what's the percentage of Negro and what's the percentage of white people in that primary school, do you know?
Samuel W. Tucker: As the record -- though our -- our updated figures which is --
Potter Stewart: Well, whatever -- whatever the judging --
Samuel W. Tucker: But the record will show --
Potter Stewart: -- that you will not be exact of course.
Samuel W. Tucker: The record would show on page 28, 297 of the appendix. In the Emporia Elementary School, that's 30.1% white and 69.9% Negro. And the senior high school, that's in the city --
Potter Stewart: Would be about the same?
Samuel W. Tucker: 44.9% white and 55.1% Negro.
Potter Stewart: Because some good many children don't go through high school?
Samuel W. Tucker: That -- that's quite a bit of -- we'd like to suggest that the method that the circuit used to -- divine purpose from projection was -- was not a valid method that the only -- the best way we know what people's purpose are -- as what they say the -- the purpose is at the time they're making the decision. And the time that they're making decision was when we -- when we read this -- read the minutes. At that time, I'll read what they were doing and saying at that time, the purpose is all too clear and that was to get from out, from under the District Court's order. We also would like to suggest that the circuit formed a rule of -- ascertain the dominant purpose. But we think it here, did not -- it applied that rule rather than remand to the District Court for him to have, made the assessment in the light of that rule. We think that in any aspect of this case, the -- the judgment of the Court of Appeals should be reversed by any one of six reasons. One, any validity could possibly attach to the Fourth Circuit's requirement of a balancing of benign purpose against the constitutional imperative. Then, this -- we're going to read new rule as we said, the case should have been remanded to the District Court who made the initial judgment and the balancing. We suggest that the proposed balancing test is invalid. That the Constitution commands that the school systems be desegregated and it makes no exception to permit that command to be subordinated to notions of quality, education, anything else also benign. And what we have here was a system they could point to the beautiful school system they have for Emporia. They omit the fact that the three force of the plaintiff class is going to be automatically cut other than beautiful system. And I don't think that the Constitution allows us to balance the rights of those children against the proposed benign purposes. We think that -- as was said, that we think the Fourth Circuit here, in -- in trying ascertain or ignoring the motivations and purposes as expressed with as the fact was going on rather than try to ascertain them from some projections. We think that the District Court --
Warren E. Burger: We'll --
Samuel W. Tucker: -- was correct --
Warren E. Burger: -- we'll continue there after lunch, Mr. Tucker. Mr. Tucker, you may continue.
Samuel W. Tucker: We would to submit -- I'll save the rest of our counter rebuttal.
Warren E. Burger: Very well. Mr. Warriner.
D. Dortch Warriner: Mr. Chief Justice, may it please the Court. I think at the outset, it might be well to remark that the facts is found by the District Court and by the Court of Appeals, should be looked to for a determination of what are the underlying facts in this case rather than to the suspicions expressed by counsel at the bar. And in this connection, I would point to page 318 of the joint appendix where the Court of Appeals says, “Notably, there was no finding of discriminatory purpose.” And instead, the quote note -- Court noted its satisfaction that the city would if permitted, operate its own system on a unitary basis. Obviously, the case must be as it appears rather than as one might think it might have been. We have listened here this morning to the Scotland Neck case along with the Court, and that if we may express an opinion, it is a strong case. We believe because of certain differences of substance at the case which Emporia has before you is an even stronger case. In the Emporia case, there are no new laws involved. There is no Chapter 31 (c). The City of Emporia is not in existence because the State interposed anything as they did in Scotland Neck. Emporia is in existence not because of any special act of the general assembly of Virginia, but is in existence instead because it has followed the unique pattern of independent cities which has existed in our common law for at least 100 years. When the town of Emporia in the summer of 1967, became a city, automatically, it became a school district. No additional act of legislation, no additional group of people having to get together or decide anything. Automatically, under Section 133 of the Constitution of Virginia, the City of Emporia became a separate school district. It became a separate governmental entity for all purposes other than those related to the Circuit Court of the -- in the circuit of which it's a part, that is the Sheriff, Commonwealth's Attorney and Clerk of the Court.
Warren E. Burger: When you say it automatically became a school district, could the -- had any option about it?
D. Dortch Warriner: There are some provisions in the state statutes of Virginia and under Section 133 of the Constitution of Virginia which with the consent of two governing bodies, two independent governing bodies such as two cities or city in an adjoining county, there may be a joint school board in which both the city and the county as the case might be, would have a representation. They could then operate a joint school district. Absent consent from both governing bodies, there is no provision under Virginia law for a joint school district. And in this case, as the evidence shows, the County of Greensville which would be the logical adjoining county refused flatly to consent to any joint school system.
Byron R. White: But they -- I take it that under Virginia law, a school district like the Emporia became -- could contract with the adjoining county without joining with it in a joint school board, could contract for educational services to city children.
D. Dortch Warriner: Yes, sir. The contract provision is contained in Section 20, item 99 of the Code if I cited correctly. And the contract provision specifically provides that even in the event of a contract, that the city must have a representation on a joint school board. That would be a representation from each magisterial district of the county --
Byron R. White: So -- so --
D. Dortch Warriner: -- representation from --
Byron R. White: -- so, you make Emporia since 1965 and then acting in conflict with that statute?
D. Dortch Warriner: 1967 was when Emporia became a city.
Byron R. White: Alright.Constitute --
D. Dortch Warriner: And at that -- yes. At that time, the City of Emporia elected its school board as required by law, and as the fact show, considered very seriously and in-depth the determination of forming its own school system.
Byron R. White: Yes.
D. Dortch Warriner: Because of problems that existed at that time largely having to do with the availability of school buildings. The city then moved to the next choice and that is the joint school board. This -- the county refused and so the city in April of 1968 after having become a city on -- in August of 1967, was presented with an ultimatum from the county saying, “If you don't sign this particular contract which the county had drawn, without change and do it by the 30th of April, your children will be expelled from our schools.” And, under those circumstances, a contract was entered into which in the opinion of counsel was a void and illegal contract under the Constitution of Virginia.
Byron R. White: Now, is that -- that contract has been the subject for litigation in the Virginia Court?
D. Dortch Warriner: It is presently before the Supreme Court of Appeals of Virginia.
Byron R. White: And there's no decision?
D. Dortch Warriner: No decision.
Byron R. White: What would be --
D. Dortch Warriner: It has not been argued, the briefs had been filed.
Byron R. White: What was the decision of the lower court?
D. Dortch Warriner: The lower court said that contracts of this, I'll try to quote, “Contracts of this type are unconstitutional. But, since a necessity existed at the time that the contract was entered into, the Court will not hold it unconstitutional.” This was the opinion of the lower court which left us in quite a contrary -- contrary as you can imagine.
William H. Rehnquist: Mr. Warriner, am I wrong in thinking that the Town of Emporia when it reached the population level did have an option as whether to elect to become a city or not?
D. Dortch Warriner: That is correct. Once a town has passed the 5000 point in population, it may elect to become a city by merely filing a census with the Court, the Court then is in order saying it is now a city. And this became an imperative thing for the towns of over 5000 in Virginia to do in 1967 because of the enactment in that year, the state sales tax which returned to the point of sale, that is the source, one cent out of every dollar spent. And so long as the town of Emporia which was the market area was a town, and then the money was being returned to the county which was not a market area. Since it became a city, then the one cent was returned to the city. And that was why the haste to proceed immediately to become a city --
Byron R. White: But was there --
D. Dortch Warriner: -- when that law became effective.
Byron R. White: Was there any allegations in this case or any findings by the District Court that the decision to become a city had anything to do with the school to join?
D. Dortch Warriner: No allegation, no claim and no finding. And this is again a -- a somewhat different I think from Scotland Neck in which there were some allegations to that effect. Also, Scotland Neck is still a part of Halifax County. The City of Emporia is not a part of the County of Greensville. It is not a part of it for any purpose. Not the purpose of the basic school levy or the purpose of that superimposed school or for any other purpose other than as I mentioned in connection with the Circuit Court. Another --
Potter Stewart: The Circuit Court covers or can cover in Virginia more than one county?
D. Dortch Warriner: It does. In our particular case, it covers six counties --
Potter Stewart: Right.
D. Dortch Warriner: -- and two cities. Another, I think difference which made way in their balance was the fact that in the City of Emporia with its separate distinct school system. There will be no schools with a white majority. All the schools will be with a black majority. Actually, I think for purposes of argument, we generally think of it as being 50:50 but that at the time of 1969, the ratio would have been 52% black, 48% white and I think the Chief Justice asked what the present figures were and they would be if -- and care to have them 55% black and 45% white if the school were in existence at the present time.
Potter Stewart: I -- I don't -- I'm not sure I get that.
D. Dortch Warriner: The city school system would be 55% black and 45% white as of this school year.
Potter Stewart: If what you wanted to prevail should prevail.
D. Dortch Warriner: That's correct.
Potter Stewart: And it would have prevailed, it would be 55% black 45% white in all through or --
D. Dortch Warriner: All through the city school system because you see, we would have the simplest type of unitary system. We would have one elementary school building into which all elementary children would go. We would have one high school building into which all high school children would go. We would have for all practical purposes the most perfect integration of schools that one could seek anywhere.
Potter Stewart: So, except insofar as it might be affected by drop outs in the higher grades in the high school, that percentage would pretty well carry through from grade one through grade 12?
D. Dortch Warriner: That is correct. And we also envision and is an evidence, a special program in hope to forbid drop outs. An enhancement program, aims specifically at the mentioned drop outs.
Warren E. Burger: When did the District Court plan going to effect?
D. Dortch Warriner: The District Court plan was to go into effect in the fall of 1969. It was decided in June of 1969 effective that fall.
Warren E. Burger: You've said “was to.” Did it or did it not go into effect?
D. Dortch Warriner: Did it go into effect? Oh, yes, sir.
Warren E. Burger: Yes. Well, that -- that's why your phrase “was to go into effect” mislead me for a moment.
D. Dortch Warriner: I'm sorry.
Warren E. Burger: It -- it went into effect and the Court of Appeals did not stay the order?
D. Dortch Warriner: That's correct. And the schools at the present time, just simply are not racially identifiable. For the past three years, the majority of blacks in all of the schools of the county has been roughly two-to-three-to-one. And that's -- would be in schools that might be characterized as formally all white. They're all now with a black majority and they will be with the black majority after the city is permitted to proceed with its unitary school plan.
Warren E. Burger: Now, you said that if the School Board, the Emporia City plan had gone into effect, it would've been 55:45?
D. Dortch Warriner: As of this school year.
Warren E. Burger: Now, what is in fact now -- let me get that difference clearly in mind?
D. Dortch Warriner: In fact, now, the ratio is 66% black, 34% white.
Warren E. Burger: That's because of the going outside the city into the county?
D. Dortch Warriner: That's -- yes. That's because the entire system of Greensville County with the City of Emporia combined would give you a ratio of 66 black to 34 white. If the city were proceeding in its own system, it would be -- the city would be 55% black, 45% white like a remaining county, would be a change from 66% combined to 71% if it were by itself. And the city -- the county would have 29% white to go by itself.
Thurgood Marshall: Mr. Warriner, when are these buildings going to be built? You said, it's going to be one high school and one elementary school. Are they in existence now?
D. Dortch Warriner: Yes, Your Honor.
Thurgood Marshall: They are in existence.
D. Dortch Warriner: Yes, Your Honor.
Thurgood Marshall: And are there any other schools?
D. Dortch Warriner: Within the city?
Thurgood Marshall: Yes, sir.
D. Dortch Warriner: There is a school on -- at Greensville County training school which is located on the edge of the city, the north eastern edge of the city.
Thurgood Marshall: Were you under that?
D. Dortch Warriner: We do not desire, the county needs it and would use it. In our suit, what we call the equity suit which is our suit to allocate to the city that which it is entitled to have upon the transition from a town to a city, we have asked that for an event which we need it and no more. And we need to meet the needs of the school children in the city, an elementary school building and a high school building.
Thurgood Marshall: How many county children are going to be in the city schools?
D. Dortch Warriner: None.
Thurgood Marshall: None.
D. Dortch Warriner: None. No, sir.
Thurgood Marshall: Then not -- not possible to the transfer?
D. Dortch Warriner: No, sir. Not unless the District Court says so. And on that --
Potter Stewart: And no city children in the county schools?
D. Dortch Warriner: None. None, sir.
Byron R. White: Under Virginia law, if a city in the surrounding county had this joint arrangement, this joint school board as the law permits, how does the city under the law then paid for its education?
D. Dortch Warriner: It -- it presents a problem because --
Byron R. White: They don't become subject to a county taxation?
D. Dortch Warriner: No. Now, each body then -- each governmental body has to raise its proportionate share which is generally a contractual share of the combined budget, and the problem exist because one body or the other may want to spend more or less than the other.
Byron R. White: Who under --
D. Dortch Warriner: And we don't have -- excuse me.
Byron R. White: Under the law -- the representation that the city would have to have on the Board as it specified?
D. Dortch Warriner: Yes, Your Honor. One for each award and there happen to be four awards in the City of Emporia but there's no reason why we couldn't have more awards than that or less awards than that which again leads to awkwardness in the --
Byron R. White: So, you --
D. Dortch Warriner: -- in their ruling.
Byron R. White: -- what kind of a ruling had voting control of the joint board?
D. Dortch Warriner: I would suspect in all fairness that the county should have voting control of the joint board because its population is roughly two-to-one that of the city.
Byron R. White: Did the county give a reason for rejecting the proposal?
D. Dortch Warriner: No, Your Honor, they did not.
Byron R. White: Well, anyway, it's not in the record.
D. Dortch Warriner: It's not in the record and so far as I know, they didn't give a reason. They just said they weren't going to do it which is not contrary to the usual cause of affairs between the City of Emporia and the County of Greensville, it's part of the pattern. And it's part of the reason we're here, and as a matter of fact, it's -- it's the overwhelming reason if they're here. This case is not the usual zoning case with which you have dealt before as you can readily see. The zoning case involves one government which is dividing itself up into attendance zones. That's not the case here. We're talking about two governments. The -- the populace of one having no voice whatever in the operations of the other. And since the stay of the Court -- the District Court's order, and as a matter of fact, since 1967, the children of the City of Emporia had been educated in the school system over which their parents who are taxpayers and their City Council and their City School Board has had not one item or (Inaudible) of control. This of course is contrary to the whole American idea of how government ought to be one.
Byron R. White: Did the District Court purport to make -- issue any opinion on the legality of the contract arrangements?
D. Dortch Warriner: No, it did not, Your Honor. That is a state court matter and it's under the state law that it's illegal. However, I think that certainly, that's a federal question with all --
Byron R. White: On the District Court's order, what is the arrangement between a city and county? Were they specified?
D. Dortch Warriner: No, Your Honor. It's exactly as -- as I've just stated it. Our children go to a school system over which we have no control.
Byron R. White: Well, but how about the money?
D. Dortch Warriner: We have to pay -- the order said that we should pay out “proportionate or proper share.” And we are now paying a share which we unilaterally determined to be appropriate and proper and that is we took the local effort and divided it by the total number of children in the school system and we're paying on a per capita basis. This involves problems of careful expenditures which are difficult to rule out and certainly, we don't owe anything for capital expenditures. But this is the most anomalous situation that we're in under the present situation and it gives ample justification of what we are seeking to do. No governing body, no people would want the most important aspect of local government to be completely out of their control as it is in -- in the City of Montgomery.
Byron R. White: Is the plan has been in operation at all?
D. Dortch Warriner: Since June the 25th of 1969 when it was entered by the District Court.
Byron R. White: As a county that appropriating funds to implement the plan?
D. Dortch Warriner: The city has been appropriating funds?
Byron R. White: Well, the county?
D. Dortch Warriner: Oh, yes.
Byron R. White: I mean, for transportation? Listed in the District Court quite involve some bussing, did it?
D. Dortch Warriner: Well, it involves bussing of city children out into the county to county schools and the City has had to pay its proportionate share of that.
Byron R. White: And -- and readily, City Councils have minutes that they were careful, a county wouldn't seriously implement the plan.
D. Dortch Warriner: That is correct.
Byron R. White: But they are?
D. Dortch Warriner: If Your Honor please, there's a difference between carrying out the mechanics of a plan and carrying out the spirit of a plan. And it is our position then and our position now that the spirit and the will which must go into a unitary system of education to work is lacking, and if it is not lacking in the city. The city may have delayed long in trying to pick up the beat of the drum but they picked it up and they went to march. And I -- I respectfully submit that we should be seeking in obtaining the help of our adversaries here at the bar rather than their obstruction because we have sought and seek now to implement a realistic, workable unitary system. We know that it can work and it will work if given the altitude --
Thurgood Marshall: As I understand, did you tell me that no county stood in obeying the system?
D. Dortch Warriner: That's correct, Your Honor.
Thurgood Marshall: Well, on -- one of the dissenting opinions says that you have a transfer plan?
D. Dortch Warriner: If Your Honor please --
Thurgood Marshall: That -- is that an error?
D. Dortch Warriner: That is in error. We do not have a transfer plan. May I explain that a bit? At the time that we first proposed operating our independent school system, as a part of our hope of persuading the county to do that which it ought to do and that is turned over to us, the school buildings which rightfully should be ours, we included on a first come, first serve, no transportation basis on tuition, the opportunity for anyone who wanted to attend a city school system to attend it. The District Court expressed doubt about the validity of that. We said very well and if there is any question about it, if that shows any casting of doubt upon our good faith, we freely and willingly give it up, and we have. I think that we have to view this case conceptually by going back to the basics. What constitutional right has been violated? Now, no constitutional right admittedly was violated at the time the Town of Emporia became a city in 1967. And so, if a right has been violated, it had to be violated as a result of having a separate school system flowing from the city status. And you look at the school system and you see that there is a completely and wholly unitary system in the City of Emporia. You look if you will at the county school system and you see a complete and wholly unitary school system in the county.Nothing artificial in either case, nothing forced, nothing temporarily expedient in order to obtain some particular boundaries. But the natural consequences of non-state action result in two separate school units, each having within it a unitary system, each with no predominance of one race over the other, but each representing the community which it intended to serve. Now, if -- if there is a constitutional right involved, it must be a constitutional right to a specified ratio because we're not damaging any other right. That must be a right to a specified ratio in some geographic area. We submit that Swann didn't say that, Green didn't say that, and Spencer against Kugler decided by this Court in January did not say that. Where there is no showing of state action which produced a ratio pattern in a community and certainly inside of South Virginia based no racial pattern. There is a -- it is a completely intermixed community. No one in Emporia lives over three blocks from someone of a different race.He just -- it's just that way. So, not only is no state action creating a racial pattern, it doesn't exist just as in Kugler. Just as in Kugler, the boundary lines of the City of Emporia were not drawn in an attempt to gerrymander in or out anyone. And when I mentioned that, I'm reminded of the fact that enclosing counsel for the plaintiffs mentioned something about 75% of the children being included out. 25% of his plans are included in a substantially better system which is the uncontradicted evidence in this case. And certainly, they are entitled to rights where a unitary school system can bring about a better school system, then it ought to be implemented too often. I feel assure you have the arguments before you that the unitary school system is going to bring about a poorer school system. This is just an opposite of that argument and it is a sincere argument. And it is an argument which is not contradicted in the evidence. As a matter of fact, the evidence is conclusive to the effect found by the District Court.
Byron R. White: Let's assume that is a part of the District Court's plan, the Court had -- had ordered, I'm not suggesting it had the power to or not suggesting it didn't but suppose it had ordered that the county make available to the city a proportionate share based on students, a proportionate share or representation on the County School Board, and that the money that the city was going to contribute, let's assume was passed in terms of anybody's judgment, would you still be here?
D. Dortch Warriner: Yes, Your Honor. I think that the -- the record which we have presented to you is abundantly clear that the problem of having a separate -- the desire to have a separate school system for the City of Emporia just as every other city in -- in Virginia has, has been one of the long standing. The dissatisfaction with the arrangement that we've had with the county is one that is ingrained. The ameliorative influence that you have suggested of having representation on the Board proportionate would not cure the problems that existed --
Byron R. White: Well, it may not have cured it but you offered to do it once.
D. Dortch Warriner: Yes --
Byron R. White: You wanted to do it once that was rejected?
D. Dortch Warriner: It -- it was offered -- we offered to do it, if Your Honor please, because --
Byron R. White: Why -- why wouldn't of that argument? What was -- what if the -- if the county had come back and limited and the District Court proceeded and said, “Now, we accept your offer.” Why wouldn't you have accepted it then?
D. Dortch Warriner: Well, we first say it's been withdrawn. But second, we'd say we've got something better. We've got our -- we've got what we think is --
Byron R. White: And what was -- has changed your mind?
D. Dortch Warriner: The experience that we've had with the county has changed our mind and the case of Green, the (Inaudible) has changed our minds. I say that without blanching at it at all because a county could operate a reasonably good school system under the circumstances that existed prior to Green. They had no will to implement Green. They had no desire to implement Green and this is what the evidence shows. I'm not stating my view, the evidence shows that, apathy with respect to Green. The evidence shows that they, post-Green, didn't increase their budget even and have to take care of inflation. And yet, the needs that arise, post-Green, a far and greater than the pre-Green leaves.
Byron R. White: What's the composition of the County School Board?
D. Dortch Warriner: Insofar as race is concerned?
Byron R. White: Yes. Number and race.
D. Dortch Warriner: There are four people on this County -- County School Board, three of them are white and one of them is black.
Byron R. White: And what's the population of the county?
D. Dortch Warriner: Population of the county is above 9000.
Byron R. White: Divided between blacks --
D. Dortch Warriner: Roughly, 50:50. I think that I'm correct in saying it's four. Any -- any event, it's the four or five and one of them was black. I think it's four. If there is anything in the decision of Swann with respect to the problem of flexibility, that problem being met by flexibility that the school boards have plenary power provided, there is no invidious discrimination. Then, this is a case to imply -- to apply the language of Swann. This is a case where a city has undertaken its obligation under Brown and has asked and fought for the right through the courts to provide a realistic unitary school system to --
Byron R. White: But do you say that the -- do you say then that the desire to maintain a racial balance in the school acceptable to the white population is not a factor in this case as in -- as it is said to be in the Scotland Neck?
D. Dortch Warriner: If it is a factor in this case, it's a most muted one. We have an area that is already a municipality --
Byron R. White: Well, what did the Court of Appeals say about that?
D. Dortch Warriner: They didn't make any observation on that that I can recall.
Byron R. White: And how about the District Court?
D. Dortch Warriner: Nor did the District Court. There was discussion of the fact that a good school system would help make a viable growing community which would include growth, white and black. But, so far as I can recall, neither the District Court nor the Court of Appeals addressed itself to white flight and insofar as I can recall, neither did our evidence. However, I think it's obvious that the better the school system, the more people will stay in it, white and black.
Potter Stewart: Are there private schools or --
D. Dortch Warriner: We have managed to keep them out of our county and city up to now. I hope we can always do that. Thank you, Your Honor.
Warren E. Burger: Thank you, Mr. Warriner. Mr. Tucker.
Samuel W. Tucker: Thank you --
Warren E. Burger: Mr. Tucker, let ask you one question. Suppose in 1965, was that when this litigation of your --
Samuel W. Tucker: That's right.
Warren E. Burger: -- case started? Suppose in 1965, Emporia had reached this 5000 population point.
Samuel W. Tucker: I think it had.
Warren E. Burger: Or it had the other -- well, it makes it easier. And Emporia said, “We're tired of waiting for these people out in the county to catch up with what the court so required in compliance with the constitution and we want to run a purely unitary system and they withdrew, and they'd run a unitary system with percentages which now prevailed, what have just been described to us, and they'd been doing it ever since. This -- I think the District Court will have the power to say, “Yes, that's fine. That you were ahead of these people all these time but now you've got to be put into the whole -- the county system.”
Samuel W. Tucker: Well, if Your Honor please, I live there. And if Emporia had 1965 decided, and made in a such decision, you could've knocked me over with a feather.
Warren E. Burger: Well, but suppose they had --
Samuel W. Tucker: But suppose they had --
Warren E. Burger: -- hypothetical question, would the District Court now have the power to do what it did?
Samuel W. Tucker: I think it probably would have had the power. If anything like I believe is -- would happen in Emporia that -- had Emporia -- or had Emporia, you're saying, created a unitary, nonracial school system as early as 1965, would the District Court have had power to eliminate the lines and expand the school system to -- to -- I think it could have if the necessities would've required it. If, as a result of that or even without result, if it had meant that the children in the county were attending what in effect were racially segregated schools because that -- if it -- if it meant that the children of the county were attending racial identifiable schools were being denied equal protection of laws, I think the District Court could take -- could use the command of the Fourteenth Amendment to the State, not to a city, not to a county, to provide equal education opportunities for all the children in the State where as far as that is practical. So, I -- I wouldn't have in a whole lot of problem if -- if the evidence demonstrated the necessity for that -- for the District Court to have erased the lines and -- and required one school system. Because after all, the -- that doctrine of federalism does not recognize the State's (Inaudible) to base the command to the State, not to denying the first within its jurisdiction of the State the equal protection of the laws. And that is the basis for this entire line of litigation now.
Byron R. White: Do you agree that -- that neither the District Court nor the Court of Appeals found that race was a factor in the --
Samuel W. Tucker: The District Court found that the -- that the Emporia's plan of proposal was racially motivated. He says on page -- well, now, he -- he said that the -- the motives were mixed and he does not discount the racial motivation.
Byron R. White: And the Court of Appeals --
Samuel W. Tucker: On page 307 -- 307 of the appendix, right in the middle of the page, “The Court finds that in a sense, race was a factor into this city's decision to secede.”
Byron R. White: But the Court of Appeals said the record does not intend for -- Emporia chose to become a city in order to prevent or diminish integration.
Samuel W. Tucker: The Court of Appeals furnished the Board and the District Court's finding that race was a factor.
Byron R. White: But that was -- is the decision to become a city. The real question is, what (Voice Overlap) --
Samuel W. Tucker: Or the decision, this is to become a city, I -- I think it's Immaterial to our consideration here.
Byron R. White: You don't say that --
Samuel W. Tucker: In our decision to secede from the school system --
Byron R. White: Yes, alright.
Samuel W. Tucker: -- is the thing that the District Court was addressing -- which found race as been a motivating factor. And I don't think it's a -- I don't think that conclusion is unavoidable. We just look at the minutes of July 14, 1969 when they made the decision and look at the effort and look at the things that they did, even the resolution of the City School Board asking the State Board to create them a separate school division points to, every plea of it points to the District Court orders the things which they were unhappy. The -- the being unhappy about the poverty of the school system came as a matter -- after the application for an injunction as a matter of preparation for trial. The question was asked whether we have a private school but Mr. Warriner correctly added an -- answered that we don't have private schools in the County of Greensville. But in the neighboring County of Brunswick, there is a private school wherein a considerable number of white children do attend the private school there. And as a matter of fact, that's -- I think that's in the record, the testimony of the mayor some -- somewhere later first to the -- people who had -- who had gone to the private school in the neighboring County of Brunswick. You get only across, out of which would be about 20 miles away from Emporia.
Harry A. Blackmun: Mr. Turner -- Mr. Tucker, your reference to the District Court's finding on page 307A, you have a couple words out and I wanted to ask you what they meant. The Court finds that in a sense, race was a factor in the city's decision to secede, what do you think the judge meant when he said, “in a sense”?
Samuel W. Tucker: Well, my -- well, it's difficult for me to say what Judge Meritt meant. I can say the evidence he's looking at and I think the evidence he is looking at was the fact that the people took into consideration when they made the decision to secede, they took into consideration as -- as shown by their minutes, the percentages of blacks that will be in the schools under Judge Meritt decision. The chairman of the school board came to the council meeting armed with that information, the testimonies went by the superintendent's office to get it. So, you could carry that information to the council -- to the council meeting at which the formal decision to secede was made.
Byron R. White: Mr. Langford, the Chairman of the School Board --
Samuel W. Tucker: That's correct.
Byron R. White: -- testified that part of the -- part of the desire was to have a quality school system that would hold the -- hold the residents -- the white residents in the public schools rather than deciding to go to private schools.
Samuel W. Tucker: I recall that and this is the testimony, sir. But again, I go back to letter of July 14 and I find two references to quality education and I get that the whole market quality there was the palatable racial mix in the schools. I mean, I -- I -- that -- that's the impression I get from reading the minutes of -- of July 14 where they made the decision as what they were concerned about. They weren't concerned in spending money then because their only question of money was the mayor's suggestion that we can operate city schools as -- as -- cheaply. It was much money as we're paying the county and we can take county students in on a tuition basis. And I can't omit the fact even though now, the city can protest that no county's children will come into -- come into the city. When they decided to secede, their purpose was to let children come in on a county basis and that can not be denied. And there was -- I have mentioned in my original argument that the town could have had a separate school system even when it was a town. The statute for that is printed in the -- in our brief, I would like to -- also to call attention the -- on page -- appendix 4 of the petitioner's brief, Section 2299 which governs when city contracts with -- with county to furnish facilities. But there is a statutory provision in a -- provided and the city -- and the statute provides the city representation on the school board. And while we're at that, I might even point out that the present school board does have one black member who -- if my recollection is correct, have been appointed there sometime after the Court's decision to desegregate schools, and I point out also that the evidence shows that two of the members of the -- of the School Board live in the City of Emporia. So, there was that -- that sort of open warfare between Emporia and -- and its neighbors in Greensville County. There has been a quite a bit of cooperation even to the point as we can in -- that taking into position before the District Court will in -- in our injunctive proceedings to protect the District Court's order. Yes, Mr. Chief Justice?
Warren E. Burger: Thank you, Mr. Tucker.
Samuel W. Tucker: Thank you.
Warren E. Burger: Thank you, gentlemen. The case is submitted.


Earl Warren: Number 408 and 424.
David G. Macdonald: I'm Mr. Macdonald, may it please the Court.
Earl Warren: Mr. Macdonald.
David G. Macdonald: I speak for Pan-Atlantic Steamship Corporation, appellant, in case Number 408. Our position is the same as that as the Interstate Commerce Commission in case Number 424, which is then, consolidated this case Number 408 for argument. I have attempted to divide my argument with Mr. Murray who will represent the Interstate Commerce Commission so as to avoid repetitions since the issue in both cases is the same. This is an appeal from a decision by the United States District Court of Massachusetts, setting as a three-judge court on a problem arising from an order of the Interstate Commerce Commission. There is one issue present, an issue of statutory construction and that issue is whether or not the third sentence of Section 9 (b) of the Administrative Procedure Act authorized or required the Commission to extend beyond 180 days, a temporary authority which it had previously issued under Section 311 (a) of the Interstate Commerce Act. At page 4 of our brief, which is the quite brief, it has the name Pan-Atlantic, is set forth the two statutes, which you were asked to construe in these proceeding. At the middle of the page, page 3, I should have said instead of page 4, is the text of Section 311 (a), which is a provision by which the Interstate Commerce Commission is authorized to permit a temporary operation which we call a license or temporary license in these proceeding, to meet an immediate and urgent need for which there is no other water carrier service available. There is a limitation in the last sentence there that the Commission shall not grant such an authority for aggregate of more than 180 days. Substantially, an enactment of that provision, Congress passed the Administrative Procedure Act, which as this Court has held was an attempt to codify the various procedural due process requirements of administrative agencies. One of the provisions of that Act was Section (9) (b) which deals with licensing activities. This is a licensing activity. The temporary authority, which Pan-Atlantic was granted, is a temporary license to conduct an Intercoastal Steamship operation between the Atlantic and Pacific Coast. The third sentence of (9) (b) says that, “In the case of a temporary license, when certain jurisdictional facts are present, the license shall not expire if there is a pending renewal or new application, which has been timely filed in accordance with agency rules.” The issue here is whether or not in the phase -- in phase of the apparent conflict between these two provisions, the 180-day limitation of Section 311 (a) that the temporary authority has granted should not be for aggregate of more than 180 days. And then, in Section (9) (b) which says, that ”When there is such a temporary license, it shall not expire if there is impending, a new or renewal application for an activity of a continuing nature.”
Hugo L. Black: Did the Commission extend beyond 180 days on its own motion or through application?
David G. Macdonald: The request was made that the Commission extend the temporary authority in this -- in this form. As you'll notice, Section (9) (b) doesn't give the Commission licensing power. It acts directly on the license itself. A request was made to the Commission to make the jurisdictional findings, which have to be made under (9) (b), which are -- that there was an application pending if this was an activity of a continuing nature. And thereupon, to give in effect public notice that the -- in fact, Section (9) (b) did have effect and was acting to extend the temporary authority. Such request was made and the Commission did issue a second order, and as the second order, that's an issue here.
William O. Douglas: Where does that appear in the record?
David G. Macdonald: The -- in the record, its Transcript 9 is the Commission's order of May 18th, which granted to Pan-Atlantic a 180-day authority to operate intercoastal. At Transcript 14, is the order of the Interstate Commerce Commission, dated October 28, 1955, which extended that temporary authority, the first temporary authority until such time as the then pending application for permanent authority would be decided.
William J. Brennan, Jr.: Was that an ex parte extension?
David G. Macdonald: The entire proceeding is ex parte in the sense that you use the word, I believe, Your Honor. Section 3 (11) (a) is an emergency procedure, which was added to the Act. I might say this, this provision is somewhere to the one in the Motor Carrier Act which is passed in 1935. The similar provision in the Motor Carrier Act was added by the Commission's request sometime after 1935. And when the Water Carrier Act was passed in 1940, it was included in that section.
William J. Brennan, Jr.: Well, what was before the Commission on the original --
David G. Macdonald: On the original application, there was an application to the Commission accompanied by supporting statements of the users, the proposed users to this service, which served to establish that there was an urgent and immediate need for which no other carrier service was available.
William J. Brennan, Jr.: And the Commission controverted in anyway?
David G. Macdonald: The Commission gave notice to the competitive carriers. They filed their approach as an objections. The Commission then reached this decision. There was no hearing held.
William J. Brennan, Jr.: What about on the second order, are the same thing done?
David G. Macdonald: The same thing, the -- the appellees in each instance filed a document with the Commission opposing the action.
William J. Brennan, Jr.: So, it's done only on papers, I get it.
David G. Macdonald: That is correct. The reason for is set forth in the legislative history which we have set forth at some length in our brief and I will advert to that later when Mr. Murray return.