/audio/cases/1958/94_19590331-argument-2.mp3 ./1958-xml/94_19590331-argument-2.xml David Axelrod Charles E. Whittaker William J. Brennan Hugo L. Black Felix Frankfurter Tom C. Clark Earl Warren Potter Stewart William C. Wines Bibb v. Navajo Freight Lines Inc.
Argument of David Axelrod -- understanding of Mr. Wines' position in part of the oral argument -- I think Mr. Wines' position on the part of the State was that the statute here burdened interstate commerce but he did not concede, as I understand it that it was an undue burden on interstate commerce. I apologize. I perhaps misunderstood him. And part of my argument wasn't predicated on that proposition but I do want to set the record the straight. Yesterday, the question was asked as to whether or not the Interstate Commerce Commission had promulgated certain safety rules and regulations with respect to the kind of equipment that should be upon motor vehicles operating in interstate commerce. And I'd like to direct your attention, if I may please, to the parts and accessories provision of the safety rules and regulations of the Interstate Commerce Commission. And the specific question was the extent or the type of equipment which was regulated pursuant to these safety rules and regulations. The safety rules and regulations of the Interstate Commerce Commission which governed the movement of motor vehicles in interstate commerce cover generally the category of lighting devices, reflectors and electrical equipment and there follow a detailed explanation of the kind of electrical equipment and lighting devices which are required. There also follows a description of brakes with respect to their adequacy and detailed description with respect to that kind of regulation is also set forth. There follows also a discussion and a requirement concerning the windows, the glazing and the window construction of the vehicles. There follows a requirement with respect to the kind of fuel systems which are necessary. There follows a requirement with respect to coupling devices and towing methods. And then there is a subdivision which concerned itself with miscellaneous parts and accessories. And among them are these, tires, heaters, windshield wiper, defrosting device, mirrors, horns, speedometer, exhaust system, protection against shifting cargo, flags and so forth. Now, the Commission in connection with -- Where can you find this? This is part 193, Justice Whittaker, of the Interstate Commerce Commission, Motor Carrier Safety Rules and Regulations promulgated pursuant to Section 204 of the Interstate Commerce Act. And that -- We don't have that referred to in the brief, do we? I do not and -- Do you mind -- I beg your pardon. Do you mind giving it to me again. I wasn't -- Yes. It is the Motor Carrier Safety Rules and Regulations pursuant to Section 204 of the Interstate Commerce Act. It is best located, if I may suggest, in 54 M. C. C. 337 which is the Interstate Commerce Commission investigation report which I referred to yesterday wherein the question of the mudflaps was taken under consideration by the Commission in 1952. And wherein that proceeding, the Commission determined that the question would be eliminated for the purpose of prescribing any uniformity with respect to mudflaps. And the proceeding was discontinued on that basis. In other words, the Commission there had before it, if it so desired, the opportunity to prescribe uniformly with respect to the mudflap requirement but decided not to do so. Did -- There is no -- Did it say why? It did not. It did not, Justice Black, but -- Was that an order of any kind? It was an order. It was -- what -- what is known as an investigation proceeding. The safety rules and regulations from time to time are amended and changed as developments follow. This proceeding in 1952 was a proposal which had for its purpose the possibility of revising the safety rules and regulations. It was an interim step to determine whether or not in 1952, there should be any further revisions of the safety rules and regulations. Was there before the Commission a proposal to it, to provide for these mudflaps? The -- the report of the Commission is not clear with respect to it but undoubtedly, the subject of mudflaps was before the Commission because it determined at that time, in 1952, that there was no need to cover the subject matter. It did specifically meant into mudflaps? Yes. I -- may I quote, Mr. Justice Whittaker. This is the report of the Commission. “The proposed rule on wheel flaps has been eliminated after a study of further evidence which has been submitted.” Well, I suppose you can tell by the appearances before the Commission. Were they noted in these reports? Yes they are, Mr. Justice Frankfurter. You could tell probably with your experience from the appearances where the proponent and opponent of such a proposal in fact submitted matters to the Commission? There was such submission. However, the information is sketchy. Now, in connection with the proceeding -- You said proposed rule. Is the proposed rule printed? It is -- it was not printed with respect to the proceeding itself. Does it state -- well, is it available so that we could see what the proposal was? Or does this report state what it was? To my recollection, it did not, Mr. Justice Black. Well, are you merely saying that the subject matter was canvassed before the Commission? Yes. I am saying that the subject matter was canvassed and the report doesn't give a clear indication of the exact mudflap which was under consideration pro and con. But I'm saying that the subject matter was canvassed. And may I point out further that in the same decision of the Commission, the same investigation proceedings, the Commission went on to further indicate that, and I quote from it please if I may, that it is not the purpose either to abrogate the present state or local laws or to preempt the safety field to the exclusion of future state or local laws. We believe that states and subdivisions should be allowed to enforce their laws and regulations relating to safety to the extent that compliance therewith by the person subject thereto would not preclude such persons from fully complying with the regulations prescribed here. In other words, the Commission went on to say that although it was prescribing rules and regulations with respect to parts and accessories, it did not wish to abrogate, if it could or I doubt that it could, but it did not wish to abrogate the right of the rule -- of the states to require safety rules not inconsistent with its own federal rule, with its own ICC rule. Now then -- But is it on ICC rule? Not on this subject matter. Well, then as I heard what you read, the Commission said explicitly that by their action, they did not need to supplant local rules? They say that in effect but they say it on a modified basis. And they say it to the extent that they do not wish to supplant local rules not inconsistent with their rules. They take the position that where they have covered the subject matter, they have preempted the feel. Well, have they -- but -- but they refused to deal with this subject matter. As I get your recital, the subject matter is cancelled. The Commission kept its hands off and explicitly said local rules shall continue. They refuse to deal with it, Mr. Justice Frankfurter. I think on the theory that there was no need to deal with it. Well, what you mean by that that there was no safety problem? That is correct. Well, I -- as you read that though, I rather have the im -- what was an implication in it that -- Well, the -- -- (Voice Overlap) safety hazards but they believe its regulations in the States. The -- the question was whether or not there was a need for a safety rule with respect to the subject matter, having in mind what I've indicated earlier in my argument that many of the States did not have any such rule whatsoever. The Commission therefore, as I see it, took the position that there was no need for a rule by it, in connection with the subject matter at this time. -- (Voice Overlap) we're to infer from that that there was no real safety hazard calling so far as regulation (Voice Overlap) -- That is -- that is correct. And we're -- I'm saying in this case -- Why would -- why will they explicitly allow this existing laws if ever there were laws to prevail? Because apparent -- As I read it -- as I interpret what you read, they refused to make a uniform rule for the nation. Because -- There are in existence local rules and they said for the present, we let those local rules prevail. That is correct. And I say that because apparently, the local rules existing then and the contour statute was not then in effect, were sufficient. -- (Voice Overlap) was not in effect? No, it was not. The contour statute was passed in 1955 and amended in 1957. And we're challenging the 1957 Act. The ICC report was in 1952. At that time, the States have a uniform rule with respect to the kind of a mudflap, it was the straight mudflap. And all States authorized the use of the straight mudflaps. So that at that time, the Commission knowing the rules in existence in the various States, took the position that there was no need to cover the subject matter. There was no conflict except -- There was -- -- the conflict between the States that have something all uniformed, those who have it and the States that have nothing. There was no conflict, Mr. Justice Frankfurter, none whatsoever. Except -- except between the States -- Yes. -- that had a requirement and the States that (Inaudible) That is correct. That is correct. Mr. Axelrod, I do not understand. Maybe I'm (Inaudible) No, I do not, Mr. Justice Whittaker. I say this that we're not concerned here with any question of preemption of the field. We take no position that because the ICC had the power but didn't exercise it, that therefore, the State cannot exercise a safety rule. We don't -- we do not take the position that there is a question of preemption of a field here. Our entire position is that this statute is an undue and unreasonable burden on interstate commerce. And as we see it, that is the sole issue in this case. We're not arguing preemption. May I ask you (Inaudible) It would be -- yes, it would be a much lesser -- we would say that it was not a violation because the State or Arkansas in its rules and regulations, promulgated the kind of a rule which was uniform to the 25 other States which had a similar rule. In other words, Arkansas, its requirement was for a straight mudflap. This was the same requirement which would allow a vehicle licensed and equipped in Arkansas to be legal in every other State but the State of Illinois under the contour mudflap statute. Other States did not have any possible requirements as to the character of the mudflap. That is correct. Other States did -- Arkansas (Inaudible) Arkansas did make such, yes. And so as Illinois. And so did Illinois. But -- (Voice Overlap) -- -- but Arkansas followed suit after Illinois. Illinois started the ball by its 57th Amendment. Arkansas followed afterward presumably on the theory that if Illinois was going to molest Arkansas vehicles, Arkansas would do the same to Illinois vehicles. And so, it began to develop into a sort of a -- of a feud between Arkansas and Illinois, Illinois being the proponent. One thing more. You made (Inaudible) Yes. Must be welded onto the vehicle. The -- And that's -- even the vehicle was (Inaudible) three-judge court. Yes. Is it really necessary that an Illinois statute require it to be welded? Can it not be folded or some other -- In order -- well, the statute doesn't say how they should be put on but the testimony in the record show that this kind of a flap can only be put on either on the basis of it being welded or if it would be bolted, it would have to be bolted on the basis of having somebody go to the inside of the vehicle in order to put the bolt on the vehicle for the purpose of affixing the flap. And so either way whether it's welded or bolted, the point is not whether they could be put on at the beginning. The point is whether or not the vehicle could be stopped at the state line of Illinois. And at that point, because of the owner requirement, could somebody put on a mudflap as a contoured kind at -- at the state line? And the point we argued and showed was that this was impossible and the three-judge court so found that it couldn't be done, it was impracticable, and we pointed out that it would be unsafe and -- unsafe and contrary to the rules because nobody could enter a trailer that was carrying explosives for the purpose of either opening the trailer and these trailers move under seal. They move close. They move pursuant to Government orders. And nobody could go into the inside of the trailer either to bolt or to weld this kind of a flap onto it. Is there any case by this Court (Inaudible) a state statute in order to the use of the state highways? Mr. Justice Whittaker, this isn't a case relating to the use of the state highway. This is a case which relates to the right of a State to provide only a safety accessory. There is a vital distinction as we see it between the use of a state highway and an accessory to be placed upon a vehicle which uses the state highway. And that distinction is pointed out in Maurer versus -- in the Maurer case, Maurer v. Hamilton where the -- this Court pointed out the distinction between the right of the State to legislate with respect to size and width and weight. That means the right to use the state highway. And that right is predicated upon the reservation to the State in the Interstate Commerce Act in Section 225 specifically of a delegated and reserved right to the State to prescribe the weight, height and road condition. I'm trying to point out the distinction as I see it in connection with your question. Would you mind -- I may -- I guess it's too much but mudflaps has been used great many times. Yes. I've learned that it has to be welded. Could you describe it to me? Yes. What does it made off? What -- Yes. -- material? The Exhibits 1 and 3 in this record contain pictures of the contour mudflap and the straight mudflap. I'm sorry, but I presume those -- those exhibits -- they're pictorial exhibits, I beg your pardon. They may not be in front of you. But the contour mudflap is made of either a metal or a flexible material which is designed to contour the tire. It in effect shrouds the tire. Whereas, the straight mudflap is a mudflap which is affixed at the end of the trailer and is further removed from the tire wheel. So that perhaps -- if you seen some vehicles operating on a highway, you probably noticed that of the back of the trailer, there are mudflaps hanging down almost to the roadway. What are they made of? These are made of rubber material and they're flexible. And -- we point it out in -- in this connection.I think it might be interesting. In this record, the indication shows, the evidence is clear that these contour flaps, because they are required by the statute, the contours of the tire are so close to it that the result is a very, very great brake fade characteristic. In other words, it suffocates the heat. It doesn't allow the heat to dissipate. And we've shown in this record here where the result of the contour is to create a danger with respect to the efficiency of brake. And we have had engineers testify in this case. And the record so show that there result a brake fade. As a matter of fact -- (Inaudible) I beg your pardon. The patent of the device is contour -- That question is not on the record. My answer is yes to your question, Mr, Justice Brennan. -- (Voice Overlap) just some particular manufacturer who's selling it? The answer is yes though that is not in the record. -- (Voice Overlap) Illinois manufacturers? I beg your pardon. Illinois manufacturers? The witnesses who testified for the State of Illinois were the manufacturers and one was based in Indiana. One was based in, I think, Illinois but those where the people who testified in support of the case for the State in addition to this -- on the other testimony. The State put in reference of the fact that it was a wet weather State. I indicated that yesterday. They did it by simply showing a chart of the fact that so many days during the year in Illinois, it would rain or there would be snow. That plus the fact that somebody took the position, the manufacturer, that if this could be put on and not too long a period of time. That's what the extent characteristically of the kind of evidence which we have in this proceeding. (Inaudible) The -- the straight? The straight guard. The straight is not. And many -- many manufacturers are making the straight guard. Is this -- is this developed as the ICC indicated on the interest in going back into this investigation of it? We do not know. The last pronouncement was in 1952. It may or may not be that they were taken under consideration. But, we -- I would like to say this in response to your question. I would say that the State -- the Commission would not be interested for the reason that our record very carefully describes the dangers and the unsafe characteristics of the contour mudflap. We have safety engineers who said that they would not voluntarily put this kind of equipment on their vehicles unless they were forced to. And they pointed out that this was a thing which was dangerous, not just safe. In other words, they also pointed out simultaneously that wherever they could find anything else that was safe for their vehicles, and they were very proud of their safety records, they would put it on without respect to the question of cost.But here, they said, "Unless we are required to. We will not put them on.” May I ask, Mr. Axelrod, was that under the power to do a tribute to the Commission, it could outlaw this contour device if it thought it would be a hazard to safety as you claim it is instead of being a protection against hazard. But they outlaw it by saying we find that this uniform of this mudflap, it's all right if we find this as -- not only not all right but also creates a conflict and therefore we -- in the interest of uniformity practically adopt or allow instead of making a rule of our own or a prescription of our own, we allow any State that wants to have this flap uniformity but not anything else. Could they do that in your view? I would doubt of the right of the Commission to make a positive affirmation of that sort. We could be more in the nature of a court decree. Well they could -- they could -- I inferred from what you said. They could themselves provide for the flap -- for the flaps, couldn't they? Yes I -- When they say -- Yes they could. -- we provide for those by any State that wants to have them. I just think if they have power to prescribe it for 40 -- for 50 States, they could prescribe it -- leave it to the relation of the State. I think they would -- if they -- if they did it in the fashion that you indicate, they would be usurping the power of this Court or the power of a federal court under interstate commerce. I think that their power is one of a right to do it. But I don't think that as a corollary thereto, they would have the right to say that a specific kind was unsafe because, then we would be running to the question of whether or not the ICC's power could supersede the right of a state legislature. And I doubt whether the Commission would think that it had the power to say to a state legislature, “that which you have prescribed is unsafe.” I think that -- But -- but they've actually done that from the point of view of your argument. If they have allowed by (Inaudible) States to prescribe in lieu of their prescription, they may take account of different weather conditions for all I know, I'm ignorant about it, in a different State. Some States may not need this at all States -- dry States. That is correct. You mean the wet -- you mean the dry weather States? Why would it be? It also comes to that. Well, I don't think that they have the right to go that far. I think -- I don't think it follows as a necessary corollary. Well, what is the power if under statute -- the statute prescribes that the States may have safety devices not inconsistent with those of the -- Federal government. Federal? Of -- With those -- that is correct. -- the Commission. Now, if they -- if the States can't go beyond their regulations, why do you say it would -- it would be a usurpation of power for them to say what could and what could not be done by way of safety regulations? Well, I think, at that point, I think they would then be usurping of the legislative power of the State at that point. I don't think that their power -- their power would exceed -- would get to that point. Well, we generally thought it would be usurping the legislative power of the State for this Court to determine what was legislative permissible in -- in such fields, haven't we? No, Mr. Justice Warren. This Court has held that the power of a State with respect to safety is one that must be -- that must face the constitutional hurdle of undue burden on interstate commerce. This Court has held repeatedly that the reserve power of a State can be invalidated by the Commerce Clause, that the Clause is a bulwark of protection against the attempt on the part of the State to legislate with respect to burdening interstate commerce. Well, that true but -- And -- -- your answer to Mr. Justice Whittaker was that it never had interfered with the State in this field. That is correct but because of the fact that there was nothing at the time when it did not do that that had any question of conflict. In other words, in 1952, when the Commission spoke on the subject, there was no question. There was no conflict of questions. We're talking here in terms of a subject matter that requires uniformity if there is to be action. But if there isn't uniformity, then absent to any federal action. We take the position that the Commerce Clause stand. Would that really be your ultimate position -- That it -- -- not -- not that the Illinois provision is in conflict with anything that the ICC has done but that neither the ICC nor the Illinois legislature can authorize what may be found to be an undue burden on commerce. That's really your case. Our position is that the Illinois legislature cannot, not that the ICC could not. Our position is that beyond our legislature could not authorize a safety appliance which would unduly burden interstate commerce. You have said that this law insofar as it was restricted to local intrastate Illinois traffic. You're not challenging. You're not -- your case doesn't allow you to challenge it. You haven't got that kind of a case and your State Supreme Court has already sustained its restricted application to intrastate Illinois business. And the State Supreme Court has also pointed out in its decision sustaining the law that it did not concern itself with the burden question. And may I quote from the State Supreme Court in Rudolph versus Bibb, the State Supreme Court said, “No question is raised under the Commerce Clause of the federal constitution.” And further, the State Supreme Court, after the decision of the three-judge court in our case, acknowledged that fact and I referred to pages 36 and 37 of the appellant's brief where the State Supreme Court said, “It is difficult to see why the specified splash guard should be required on foreign vehicles passing through this State citing Navajo versus Bibb our three-judge court decision. Well, then the real question and the only question is whether this is -- since you're not here challenging this as violative of due process -- We are not. -- so the only -- the real question is, is this Southern-Pacific case? We rely on the Southern-Pacific and Morgan versus Virginia. On those two cases, the State relied to Maurer versus Hamilton and the Barnwell case. The State in its reply brief took the position that another case which it cited the Terminal Railroad Association brief was more applicable to our facts than the South -- Southern Pacific-Arizona case. I've distinguished that yesterday by pointing out that in the Terminal case which was the caboose case, there was no record there with respect to the cost on the burden question. But in the Terminal Railroad case, interestingly enough, there is a discussion of another case by way of a footnote known as the South Covington case. It was a case involving a -- an ordinance of the City of Covington which attempted to regulate the number of trains which would have to operate between Covington and -- Covington and Cincinnati. And the Court in that case held that statute was bad because it conflicted with Cincinnati. And therefore, because of the conflict question, a burden on interstate commerce was invited and struck that statute down. That case, we say supports our position and is in further support of Morgan and Southern Pacific. Now, do you introduce evidence to try to establish that in fact this would be an undue burden on commerce? Yes. Is that right? Yes. And the witnesses to that -- Many. -- do they give testimony and the State crossed-examined them? Yes. Now, did the State look at those in this record and when Mr. Wines comes to reply, I hope he'll also get himself with this question. Did the State resist the determination of that issue by witnesses? I will answer that no because they took the position that that issue was irrelevant. That the sole issue was the right of the state legislature to act and that the state legislative act carried with it a presumption of validity. And they generally took the position that that was not involved because as a matter of fact, much of the testimony of the plaintiffs in the lower court was admitted. The basis of the interstate commerce interchanged operations and the like. I'm turning to the question put to you by Justice Stewart yesterday. If the State said that issue is not before the Court because if this is a safety measure and would be found to be a safety measure and it may be found to be a safety measure on the presumption that the legislation itself carries then why didn't they say that that is not an issue and therefore they ought to meeting the issues. I don't know why they did or didn't -- No. I mean isn't that the fact if -- if Illinois said, “That is not an issue before, Your Honors.” At one point they were asked whether they weren't really suggesting that as to automobiles, the Southern Pacific case doesn't apply because railroads are different. We -- we ans -- And if that issue was not contested and if the issue which they did or goes against them, why doesn't Mr. Justice Stewart's question becomes pertinent in case we should disagree with the State namely that they then would have a right to canvass that issue. Well -- You said yesterday, you thought not. You thought that if -- if they had claimed that if by -- if it's presumptively effective measure, here we deem, nothing more to be said if they so much prevail. If that is rejected as -- even though the question of undue burden of interstate commerce as to which you did address yourself the witnesses. But as to what the State said, that's not an issue. Why does it not become an issue if the ground of their defense falls? We take the position that the question of safety before the Court was in issue and we put testimony in -- on that subject. But they quoted their argument and said we don't want to play that game. That's correct. But I don't think that they read Southern Pacific and Morgan versus Virginia properly. I don't think that the State in trying its case tried it properly under the facts in Morgan and Southern Pacific. We think we did. We think we've adhere to the principles annunciated in Morgan and Southern Pacific. The lower court thought so because it distinguished Morgan and Southern Pacific from Maurer and Barnwell in a very interesting discussion. And I think that the lower court accurately summarized the law applicable to the facts. We think it was a commendable opinion with respect to a dissertation upon the subject. If I may request a question. And I ought to be putting it clearly. You did but they didn't. They thought that they could rest on their claim that this is a safety measure justified or indicated by local police policy. Now, whether rightly or wrongly, they didn't go into the other issue, they didn't so it appear. And my question is what Justice Stewart's question yesterday was, are they therefore foretold from leading the issue if they choose? In case one should agree with you and say, yes on this record there is ostensible or prima facie of undue burden. I would think that they should be. It would be foreclosed. Why? Because of the fact that they have pitched their case on an erroneous concept of the law. On the concept of the law that this Court does not have the right to resolve, the conflicting question of State versus national interest. They take the position this Court doesn't have that right. We say this Court has -- Can we tell them that they're mistaken? And therefore, as they say, “All right, if you're not instructed that -- this although seemed to be a safety measure by Illinois in fact operates adversely to the Commerce Clause.” We so instruct them, why should they be cut off from proving that it doesn't operate adversely? Well, they attempted to prove by some evidence that it was a safety measure. They fell short of that proof. In fact, their proof fell fat -- flat on its face because the contrary was shown. So they attempted to justify it a little bit but they didn't go far enough. The statute went too far but their evidence didn't go far enough. And our point is, that they must have attempted to show a little bit that there was safety but -- Well I -- I think they did try. In addition to -- They tried but fail. Yes. But -- and still don't want -- to my understanding with the question, assume that's all true. They now want to prove that in fact it isn't a burden on interstate commerce. Well, I think they'd have their day in court, Mr. Justice Frankfurter. Well, were they -- it wasn't an issue? Well -- You -- you base your case on that claim. They said that is not the claim before the Court. It would be irrelevant. The claim that's before the Court is a safety measure and that it should be bound to be a safety measure at the end of the matter. The Court found it wasn't a safety measure. But the Court -- but they did not contest which they're capable of contesting. All right, it is your safety measure but it's a burden on commerce. And now they show -- why can't they now show it isn't a burden on commerce? Why should all this be left to argumentation? It isn't being left because our record demonstrates the -- But they did not avail themselves by court -- But I can -- They did not avail themselves (Voice Overlap) -- But I can try their case for them. We can't tell them how to try their case or put their proof in (Voice Overlap) -- They left holes in it. And it's your point is that they ought not to be allowed to amend it. They are not to be allowed to try the case twice after we've shown the error of their ways to them. Mr. Axelrod, this is a case according to your position, is it not, where the entire constitutional issue depends ultimately upon issues of fact. Yes. And in that respect, it's at least an unusual case and that most constitutional case (Voice Overlap) -- We say that the fact question is controlling and this Court has held that in all of these cases, there is no absolute rule. The question is when a fact, in each case and it is up to this Court to resolve the difference between the national and the local interest. And this Court has done so in the cases which we rely on. Well why if -- if your position is correct that the entire constitutional question depends upon resolutions of factual issues. Why in conformity with this Court many times repeated to you that it will not determine constitutional questions until or unless the necessity to do so arises, why wouldn't it be appropriate if this Court agree with you to remand this to the District Court to give the State a full opportunity to present its evidence on the facts and to give therefore that court a fuller opportunity that it is not add up to now to resolve the facts. The trial court never precluded from the -- the State from putting in any testimony. It was simply a voluntary position on the part of the State. They thought they were doing it the right way. Yes. But -- but nobody precluded them. No evidence was excluded by the Court. Now the State shows not to put the testimony in. The little they put in just wasn't sufficient. That's -- I understand. And so as a result, we have an unbalanced record factually. We do have factual findings -- Right. -- in the District Court. But a District Court, as you would agree I suppose, is certainly much better equipped than this Court to determine facts. Well, all this Court has to do, Mr. Justice Stewart, is to determine whether or not the District Court was correct in its application of the law to the facts which it found. It found the facts specifically. This Court, I submit, should look at the opinion of the three-judge court and determine whether or not its application to the law -- of the law to the facts was correct. We submit it was -- Where does this get you Mr. Axelrod if tomorrow -- then the Illinois reenacts the statute -- has an indicated a new statute. If this Court should hold it to be a burden, it could not enact such a statute. Mr. Axelrod I'd like to call your attention. It only takes the pronouncement of this Court. You're probably familiar with the two Hammond cases. The City of Hammond against Schappi Bus Line in 275 U.S. where the lower court issued an injunction against the State -- city ordinance on the ground that it was referred in interstate commerce was one of these motor cases. Bus cases. Bus cases. Bus case. And this Court said when you had a conflict between state law and the Constitution, we'd like to have more detailed enlightenment as to just how the -- this does burden and send it back on its own initiative because of the consideration to which Justice Stewart referred, namely, we don't declare things unconstitutional particularly against state action unless the decree has been -- reflect to fully canvassed fact situation. We have all of that. Plus, in this record -- You have on one side with the State for stupid reasons, if you will, or unimaginative reasons or wrong conception of law didn't contest this issue. Well, they -- And why should we declare something unconstitutional because the State took a narrow or shortsighted view on the advice of some counsel that this isn't an issue? Perhaps they couldn't contest the facts and that's why they didn't contest the facts. Well -- They had every right to deny them. If they wanted to, they could have. Now, they had every right to do so. I think that would have in good pleading a hundred years ago. On the welding point, is that one of your main points? I beg your pardon. The welding point. No. That is not one of our main points. On the burden? No. We have a series of points on the burden and they're all out -- I'll just pass the welding instead, the statute require a welding? It does not, it doesn't say how. But the testimony shows how it could only be affixed. But we have a series of points on burden and there're a number of them. The larger point is the delays and the insurmountable objects that would be involved in connection with the attempt to move trailers by interchange from California to New York through Illinois where a carrier with a trailer in California would be required under the statute to have his California trailer start out with a contour-equipped trailer so that it could go through Illinois to get to the State of New York. That trailer carrying explosives, that trailer carrying perishables which is the lifeline of the truck business, is the kind of burden that would be involved in this case among other things. So, we have a whole series of facts upon which we rely for the purpose of burden. That would be an issue when a State did not have a requirement at all and you entered a State that did have these requirements. It would have been except that the problem was never a practical or a real one with any of the States because all of the statutes were either uniformed or there were no statutes. And as a result of the fact that they were uniformed, all of the vehicles carried a straight flap which was good all over. The States put in evidence on the welding points? They did and we did. And the Court found the facts in our favor as our witnesses testified to it. And there's a specific finding of fact number 24, a series of findings beginning with finding number 22 through 30 of the lower court opinion, Mr. Justice Clark, which specifically covers that subject matter. Well, I don't know if you'll refer to that. I've looked at that up but it doesn't mention the -- I don't see it mentioning the welding. I thought that's one of your main points. Well, the welding -- the welding was simply the fact that gave rise to the finding but the Court in our case indicated here -- 21 is the one you're referring to? I'm referring to finding -- yes, finding 21. That it would be impossible in those cases and impractical in others for plaintiffs to equip trailers obtained by interlining of the splash guard required by Illinois. Finding 25 refers to the danger. 25? Thank you. Thank you. Mr. Wines.
Argument of William C. Wines May it please the Court. I want to thank Mr. Axelrod for correcting his misapprehension. As to my concession, I do concede that the major involved imposes some burden on interstate commerce. I do not concede that it is an undue burden or an unreasonable burden. On the contrary, we say that the burden is a reasonable one and is imposed in the interest of safety upon the public highways of the State of Illinois. Assuming this case went back would you have any more proof to offer? I'm not sure -- I -- I -- I imaginably would, Your Honor. I did not try the case below. I took no part in the trial and I confined myself entirely to the record only as a deal. Your -- the State counsel did claim that the enactment of what purported to be -- what professes to be a safety measure forecloses any further consideration of -- He did, Your Honor. He did, Your Honor. That was his position? That was his position. Was that his only position? No sir. It was (Voice Overlap). It was a steadfast. I beg Your Honor's pardon. What about the answer? Did the answer put in the issue the question of reasonableness and safety, the safe -- in order for it be safe? I thought it did maybe -- The answer, Your Honor, does put -- I have it at page 21 of the transcript, does put an issue of factual allegations of the complaint. Well does it -- But it says this -- -- put in issue the factual allegations as to reasonableness and as to burden and as to the safety. Did the complaint deny the allegations that it was unsafe and it was unreasonable and an undue burden? I think the fair being of the answer is that it does put it in issue, Your Honor. If Your Honor will turn to page 25 of the transcript, they say they deny the allegations made in the paragraph 25 of the complaint in a very the same speculative contextual matters which are based on an imaginary conditions. And may deny -- they deny the factual allegations of the complaint. Yes, I think we'll have to say they do, Your Honor. But aren't -- if you look at page 259 (Inaudible) Well, is it you theory that a legislator of greater latitude in -- in imposing a burden on commerce as it concerns the operation of motor vehicles in contrast to a railroad. Mr. Houston - No, not exactly. Judge (Inaudible), your argument is pretty close to it doesn't it? Mr. Houston, it gets pretty close judge but we're having this distinction. Then he goes ahead and makes the distinction which is the very thing that Judge (Inaudible) question has indicated, doesn't he? That's right, Your Honor. Mr. Houston tried the case on the principal theory that the question of reasonableness was not lend for the District Court. And he objected -- Then it wasn't because the passage of the Act had foreclosed that question. Yes, I think that was his position. Well, then why does he say that was the only -- I don't know, it maybe, but why does he say that was the only thing. I thought -- didn't he offer some evidence? Oh, yes. I didn't say that he said it was -- that -- that was the only question. That was one of his grounds -- That was one of his grounds, Your Honor. And do you think if the record compel that he said to show that the State did not attempt to repute the allegations of the -- They made no serious attempt to repute the allegation. They did call a witness who testified as to how these contour mudguards can be affixed. And he testified that they can be either welded or bolted. And they did call a state policeman who said that he had heard of no accidents as a result of contour mudguards. And they did put in testimony that contour mudguards tend to prevent debris from flying into the face of the following vehicle but they made no serious attempt to meet the charges that these mudguards -- What are the kinds of attempt -- -- are inherently unsafe. What other kind of attempt do you now anticipate that could be made other than that they made? I think there could be -- they -- they could -- they could have more studies and more testimony from the manufacturers as to matters of heat dissipation and the other factors come and gone. Is it true that there's only one manufacturer here that this is permitted? I don't think the record shows that, Your Honor. That was alleged wasn't it? It wasn't alleged that there was only one? I thought I saw -- I don't think so, Your Honor. -- where the State neither admitted nor denied that there was only one, maybe identical. No, I don't think there's only -- there's only one, Your Honor. I know the State didn't admit that. I thought it neither admitted nor denied. I thought that was what he said. I think if the allegation -- excuse me. I beg your pardon. What Mr. Justice Black is referring to is the allegation paragraph 24 of the complaint appearing on page 12 of the record saying there is but one type of mudflap or splash guard which can satisfy the requirements of the -- That -- that is correct. That allegation, I mean, it is correct that that allegation is made if there is but one type. The Act specifies a type of mudguard but the answer does put an issue that only one mudguard, one manufacturer of mudguard satisfies that. Suppose Mr. Wines, some place in the record the State did go into the question of a safety factor -- There is some testimony. -- and did show that there was not as much sideward splash. Yes, Your Honor. Yes, Your Honor. So they did meet the issue and -- They did introduce evidence on that. Then why didn't they go all the way if -- That, Your Honor, I don't know. I don't know it on the record. I don't know it off the record. I -- I didn't -- I didn't try the case. The assistant who did try it is no longer with the office. And on this appeal, I have confined myself entirely to the record (Voice Overlap) before this Court. Are you able to make a statement to us representing the Attorney General that this case has not been -- the State's case has not been added to be presented and that you can improve the State's case with reference to the findings that had been made? I would like to confer with the Attorney General before I made that statement. May I add a qualification? Yes. And that if Justice Black would accept the amendment. As to issues, the case was not tried as adequately. It was scared to try it. It went back as to issues not actually contested for, not as to that it might deal with the same question that it is being (Inaudible) more contemplated. I would -- in fairness -- (Voice Overlap) -- -- the Court would require me to discuss that with the Attorney General. I am in charge of the State's Appeals Department and not on its Trial Department. And I have known only what's in the record in this case. Well, I may say if you are the Attorney General who made that statement over your signature, one member of the Court, I will give a great weight in connection with whether you had -- the issue had been properly presented. I should like to confer with him at my very earliest opportunity. All right. You will. Mr. Axelrod has made apparent what the situation is with respect to the Interstate Commerce Commission. The text -- the diction that Mr. Axelrod read to Your Honors proclaims that Commission's intention to leave intact state regulations. And we submit that this regulation is a reasonable one so shown even on the present record for the reasons that I have urged. You're not implying though, you just said that -- that it may take fair attitude on the part of the Commission. It draws a challenge to a state law that in fact it does undue burden commerce. No. No? No. No, of course not. Unless Your Honors have some further questions that -- Well, I'd like to ask you one more thing -- Yes. -- just to see what your position is. Suppose it is true that Arkansas forbid the use of the kind of mudflap that your State does, and your State forbids the use of the other one and that it is a fact that Arkansas shipment coming up with (Inaudible) have to make changes in connection with the mudflap that would be dangerous. Would you say that was not to be an undue burden or would you? I would say that the evidence in this record shows that the contour type mudguard required by the Illinois law although not nearly as equivalent as the flat-type mudguard is a superior mudguard. There is no reason that I know of for requiring of flat -- a flat-type mudguard and -- although the question is not -- was not raised in this record, I say that the Arkansas regulation is an unreasonable regulation not because it permits but because it requires a flat-type when there is no reason for requiring. What does yours require? We require the contour-type. Arkansas says that that's unreasonable. How many States also require the flat? 24 or 20? They require or permit it. I think nearly all of them permit it. Everybody except -- Illinois. -- Illinois, is that right? We think that's what the -- that's what the general assembly found and we think the evidence justifies that. So that Illinois can determine whether it -- whether it -- everybody else should have margin line with it. Only as to traffic entering Illinois. And these mudguards -- Entering and leaving. And -- Coming and going. That's right. We think that the measure embodies a reasonable exercise of Illinois' police power and we respectfully submit the judgment of the appeal probably should be affirmed. Mr. Wines, in view of the questions that we asked you, would you let us know as soon as possible -- I will. -- the position of the State is? The Attorney General is not in Illinois today but I hope to be able to get him by a telephone tomorrow or towards the end of the week. Yes. Thank you. Mr. Axelrod, I evidently made a mistake in writing down the citation you gave, 52 M. C. C. 377.
Rebuttal of David Axelrod 54 M. C. C. 54. 54. I'm sorry. 54-377. I'm sorry, Your Honor. (Inaudible) Well, I'm -- I'm told it was 337. 337. That's right. It is 54-337. That's right. That is correct. Yes. I'm sorry.