BIBB v. NAVAJO FREIGHT LINES INC.

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Argument of William C. Wines

Chief Justice Earl Warren: Number 94, Joseph D. Bibb, Director of the Department of Public Safety of the State of Illinois, et al., Appellants, versus Navajo Freight Lines, Incorporated, et al.

Mr. Wines.

Mr. William C. Wines: May it please the Court.

Your Honors, the United States District Court for the Southern District of Illinois with a three-judge bench has held unconstitutional and enjoined the enforcement of an Illinois statute requiring the equipment of trucks and trailers travelling over Illinois highways with contour type mudguards meeting specifications enacted by the statute.

The Court held only that the requirements of the statute imposed an unreasonable burden upon interstate commerce and enjoined the effect of the act with respect to that commerce.

In two other cases cited in the brief, Rudolph Express Company case and a later case, the Supreme Court of Illinois has held the instant measure reasonable and not violative of due process on the ground of its unreasonable character.

Your Honors have noted probable jurisdiction and the cause is here on direct appeal from the District Court for the Southern District of Illinois.

The District Court has summarized the requirements of the statute and with the Chief Justice's permission, I should like to quote that summary since its precise terms are important and I am reading from page 6 of appellant's brief which quotes the language of the District Court.

Specifications, the Court says, require that the splash guards, one, contour under the wheel, two, cover the top 90 degrees of the rear 180 degrees with an exception of vehicles of less than five inches counts from requiring a contour within 10 inches of the body.

So they extend down within 10 inches of the ground that they have a lip or plunge of two inches upon the outside and retain general parallel condition under all operating conditions remotely required by the statute not more than six inches from the truck when fully loaded.

The District Court premised its conclusion of unreasonable violation -- unreasonable burdening of interstate commerce upon that Court's finding that no other State has a similar requirement that Arkansas has a recent administrative regulation requiring a flap or -- or apron type mudguard which is in conflict with the Illinois type of mudguard upon a finding that it would unreasonably burden interstate commerce to equip entering vehicles with this mudguard when they're not required in other States and upon a declaration that -- based on conflicting evidence we say that there is some danger that this contour type of mudguard is likely to fall off and create a hazard to oncoming traffic in other lanes.

It is the respectful but honest position of the Attorney General that the major -- major stricken down by the District Court embodies and enacts a reasonable exercise of Illinois' police power over her highways and with respect to vehicles moving within her borders.

The District Court's opinion does not, in the findings, do not make mention of the evidence which I believe I can say is undisputed in the record that a contour splash guard that is the type required by the Illinois law unlike a flap or apron type mudguard will throw debris down instead of out.

There is a testimony in the record that the contour type of mudguard provided by the Illinois statute does cause debris to be thrown down.

The evidence shows that to plan an appreciating vehicle is equipped with inadequate mudguards, those mudguards don't prevent debris from flying into the -- a windshield of a following vehicle and that the driver of the following vehicle tends to lose control of this car.

It tends to go off the road and accidents ensue.

Now, it's significant that counsel for the plaintiffs don't cite a single decision of this Court and our own research indicate that they can't cite a decision of this Court in which this Court has ever stricken down a state law fixing the requirements for vehicles traveling upon state constructed highways.

I mean automotive vehicles.

The three leading cases sustaining such regulation --

Justice Potter Stewart: Mr. Wines, excuse me.

Before you get to your --

Mr. William C. Wines: Yes.

Justice Potter Stewart: -- these cases going back to the facts, you referred to what evidence there was in the record --

Mr. William C. Wines: Yes.

Justice Potter Stewart: -- in support of your position that these contour type mudguards were superior to the flap type and --

Mr. William C. Wines: Yes.

Justice Potter Stewart: -- so on.

The -- the District Court, the three-judge District Court made on an expressed finding, did it not, that it was conclusively shown that the contour of mudflap possesses no advantages over the conventional (Voice Overlap) --

Mr. William C. Wines: Yes, they did, Your Honor.

They made such a finding.

Justice Potter Stewart: And in that connection, my question is this, I think I know the answer but perhaps -- perhaps not.

Does Rule 52 (a) of the Federal Rules of Civil Procedure govern this kind of a case, three-judge District Court with a direct appeal here?

Mr. William C. Wines: I think that Your Honor --

Justice Potter Stewart: So far as findings of fact --

Mr. William C. Wines: I -- I think that Your Honors should take the District Court's findings of fact as being entitled to great weight but I don't think that they must be given conclusive validity --

Justice Potter Stewart: Well --

Mr. William C. Wines: -- because if Your Honors find --

Justice Potter Stewart: Excuse me.

Go ahead.

Mr. William C. Wines: -- find on the consideration of the entire record as we submit that you should, that there is an advantage to this mudguard then the legislative determination should prevail.

This case is a little different, Your Honors from the ordinary case that comes to this Court with findings of fact because it also comes to this Court with at least implicit declarations of fact by a states legislature.

Justice Potter Stewart: Well, it's that difference that prompted my question.

Mr. William C. Wines: Yes, Your Honor.

Justice Potter Stewart: The normal application of Rule 52 (a) as we both know is an appeal to the Court of Appeals from findings of fact to the dis -- of a single district judge where there are normally no implicit findings of a state legislative body involved and I wondered if for that reason or for any other reason inherit in the particular procedure involved here of a direct appeal to this Court from a three member District Court.

There was any question as to the applicability of Rule 52 (a) which -- which forbids a reviewing court to set aside findings of fact unless they are clearly erroneous.

Mr. William C. Wines: Well, I would like to answer Your Honor's question in this way if I may.

What are called findings of fact in this case?

In reality embodies -- embodiments of judgment as to reasonableness.

There are no "who has the lighter questions" in this case of which I am aware.

There is no question of the credibility of witnesses.

I don't understand that anybody is accused of perjury.

Justice Potter Stewart: It's the evaluation of expert testimony, is it not?

Mr. William C. Wines: Expert and lay testimony against the judgment of Illinois' general assembly.

Now, the interesting area of focus prompted by Your Honor's suggestion is this as this Court has many times declared.

It isn't enough that a measure be fairly debatable if it's within the arena of debate as to its reasonableness.

It's a matter for the state legislature in the case of a state act or Congress in the act in case of a federal act.

So that the real question is whether there is any basis on which the lower court must say that the Illinois legislature acted so unreasonably that there it will be stricken down and I think that that means that Rule 52 (a) does not have the same scope in this type of case that it would in -- say a suit for specific performance or a tax case or some case where there weren't a question of the reasonableness of a sovereign legislature.

I don't want to minimize the District Court's findings of fact in this case.

I didn't mean to -- the District Court did find that this measure is likely to cause accidents and that it imposes an unreasonable burden on interstate commerce.

The loss -- these facts are undisputed.

The law applies not only to tractor -- trucks but to trailers that are attest to tractors and many times a tractor will start out with one trailer and the trailer will be shifted around to another tractor just as freight cars are shunted from one line to another in interstate commerce so that there is -- there is no doubt to the burden imposed upon these trailers and trucks that come in a substantial one but our evidence shows, I think I can say without dispute, that this type of mudguard can be installed by a man having no previous experience in about an hour and it can be installed for about, I believe certain hours.

Chief Justice Earl Warren: Do all your Illinois trucks -- are they equipped with these --

Mr. William C. Wines: There is an exception for trucks traveling holy within the municipality where there isn't the -- the danger but this is not to aim discriminatorily at interstate commerce.

No, Your Honor.

Yes, Illinois -- Illinois trucking industry, in general, is required to comply with this law and it has assailed the law as unreasonable in the Supreme Court of Illinois that's twice held that measured to be reasonable exercise of the police power and not violative of due process.

Chief Justice Earl Warren: How long does it been in existence?

Mr. William C. Wines: Well -- now, Your Honor, it was first passed in 1955.

In 1957, it was amended in ways that aren't challenged by the plaintiffs or relied upon by the defendant.

Generally, they ameliorate its provisions a little bit but both the 1955 and the 1957 version of the enactment have been sustained by the Supreme Court of Illinois as against the contention that it denies due process.

Justice Charles E. Whittaker: (Inaudible)

Mr. William C. Wines: Yes, yes, Your Honor.

Now, the cases that we cite are not numerous, we've cite these Court's pleading decisions in the field of the regulation of motor vehicles by state legislatures or other authorities.

The first case on which we rely is South Carolina Highway Department against Barnwell Brothers in 303 United States.

In that case, the District -- three-judge District Court held invalid the provisions of the South Carolina statute that prohibited the use on state highways of motor trucks and semi-trailer motor trucks whose width exceeds 90 inches and whose weight including loads exceeds 20,000 pounds.

The District Court held that that was an unreasonable burden on the interstate commerce.

This Court reversed.

In Maurer against Hamilton, 309 U.S., this Court sustained a Pennsylvania regulation briefly summarized in the language of this Court as "prohibiting the operation over its highways of any more vehicles carrying any other vehicle over the head of the operator of such vehicle."

This Court held that the measure was a reasonable exercise of the State's police power.

And in the case of Sproles against Binford in 286 United States, this Court upheld as to interstate commerce, a provision of the motor vehicle of after Texas prohibiting the operation on any highway of a vehicle to define exceeding stated limitations of size or any vehicle not constructed or equipped as required and also the transportation of load exceeding the dimensions in which prescribed.

We think the --

Justice John M. Harlan: Were there comparable findings in the Barnwell case for the District Court?

Mr. William C. Wines: I would say they were, Your Honor.

There -- there was a finding of unreasonableness.

Justice John M. Harlan: Was there a finding of hazard?

The Court here went almost -- almost to that extent, did it, saying that these were dangerous to (Voice Overlap) --

Mr. William C. Wines: Yes.

Justice John M. Harlan: -- utilize on the highway.

Mr. William C. Wines: Yes, I meant to call Your Honor's attention to that.

I think I did in opening my statement that they said that these were likely to become detached and create hazard.

Now --

Justice Felix Frankfurter: May I ask you Mr. Wines.

What witnesses gave rise to the District Court's finding?

I mean what type of witness --

Mr. William C. Wines: Well --

Justice Felix Frankfurter: Did you put to the States a -- a testimony of each witnesses (Inaudible)

Mr. William C. Wines: We called a state --

Justice Felix Frankfurter: Would you tell us, if you'd be good enough, tell us what witnesses were called to show that this is absolutely pointless?

There's no remote justification to make these requirements.

Mr. William C. Wines: Most of them, I would say, were interested persons in the trucking industry.

Employees of the trucking companies and Illinois called a state policeman and a witness who has installed these mudguards.

Justice Felix Frankfurter: When -- when the plaintiff, the appellee for witnesses to show the ruthlessness of this (Inaudible) requirement if the State object in the testimony and it's irrelevant?

Mr. William C. Wines: Yes, the assistant then handling the case made an objection.

Justice Felix Frankfurter: On what grounds?

The finding of the enactment is conclusive?

Mr. William C. Wines: The -- the assistant -- I didn't handle this case in the trial court, if Your Honor please.

Justice Felix Frankfurter: (Inaudible) a man may read the record.

Mr. William C. Wines: And the -- the assistant who handle this case in the trial court took the position that the question of reasonableness was conclusively one for the legislature and not for the Court.

Justice Felix Frankfurter: And that must be your position here that --

Mr. William C. Wines: No.

Justice Felix Frankfurter: Isn't it?

Mr. William C. Wines: No, it is not.

We say --

Justice Felix Frankfurter: If it's open -- if it's open to consider the relevance of the testimony, then we got this finding.

Mr. William C. Wines: But we say, if Your Honor please, that when all of the testimony is considered and the pronouncements of the District Court are conceded, this Court should hold that the question is one or within the ambit of the discretionary power of the legislature of Illinois.

Justice Felix Frankfurter: Now, let me translate that.

Does that mean that considering the weight of which the legislation is held, carried itself --

Mr. William C. Wines: Yes.

Justice Felix Frankfurter: -- the testimony of non-reasonableness or unreasonableness, creates into unimportant, is that it, the weight of the evidence?

Or do you say that the party of the legislature is conclusive?

I don't see why you don't turn to the issue that it's immaterial with a lot of witnesses said on the subject when the legislature is (Inaudible)

Mr. William C. Wines: Well, we do that, Your Honor.

We do say this that -- that the question is one for the legislature.

And that there --

Justice Felix Frankfurter: It's not in the realm of evidence, is that what you're saying?

That really, it's not in the realm of ordinary (Inaudible) ordinary conscience in the Court.

Do you say that?

Mr. William C. Wines: That point is made.

Justice Felix Frankfurter: (Voice Overlap) should beyond the hypothesis of (Voice Overlap) --

Mr. William C. Wines: I know you -- I know you don't, Your Honor.

That point is made in the record and in the brief, but we also say that if you do consider it, you should come to the conclusion that the matter is when we didn't -- the -- the discretion of the legislature.

Justice Felix Frankfurter: That is in terms of the rule, clearly erroneous finding, is that it?

Mr. William C. Wines: That's right.

Justice Felix Frankfurter: Because to me there's a great deal of difference in saying that being the record as I call upon the judges, I conclude -- I must conclude the District Court have no business to (Inaudible) to place the scale the way it did or that I don't care what the evidence was the legislature of Illinois is controlling.

Mr. William C. Wines: There is a great difference, Your Honor.

It's one that I perceive of course but I say no matter which approach is used, we are to prevail.

Justice Felix Frankfurter: -- (Voice Overlap) on the first ground, you say the evidence is defined as clearly erroneous --

Mr. William C. Wines: Yes.

Justice Felix Frankfurter: -- in view of the evidence on the one hand and the strong presumption of (Voice Overlap) --

Mr. William C. Wines: Yes, that's right.

That's right.

Justice Felix Frankfurter: (Inaudible) this is not clearly out of facts to justiciable controversy.

Mr. William C. Wines: That's -- that's right.

That's correct.

Justice Potter Stewart: Aren't you really, Mr. Wines, asking us to imply a -- by analogy Rule 52 (a) to the findings of the legislature that we shouldn't set them aside unless they're clearly erroneous --

Mr. William C. Wines: Well, I --

Justice Potter Stewart: -- unless the evidence wasn't that clearly erroneous.

Mr. William C. Wines: That is a -- that is a figurative way of expressing.

It no doubt suggests the result that we're requesting but we don't maintain that the rule has any --

Justice Potter Stewart: Not of -- not of its own terms (Voice Overlap) --

Mr. William C. Wines: -- any -- any application to the legislature.

Justice Potter Stewart: But you're asking us to apply that kind of a test.

Mr. William C. Wines: That's right, Your Honor.

That's correct, Your Honor.

Justice Potter Stewart: And unless the evidence before the District Court show that those findings were clearly erroneous why they should -- those legislative findings explicit and implicit should -- should prevail, is that your point?

Mr. William C. Wines: That's right.

Justice Potter Stewart: One of your positions (Inaudible).

Mr. William C. Wines: Now, if Your Honors please, the appellees are unable to cite any cases where this Court has invalidated a state law or regulation applying to trucks or motor vehicles moving on highways constructed by the State at its expense.

Their chief reliance is on the Southern Pacific Railroad Company case in which Your Honors did invalidate a car -- a requirement limiting the length of freight trains.

We say that that case is distinguishable on many grounds for one thing after the violation of the statute by the railroad.

The Interstate Commerce Commission had promulgated a regulation invalidating all such state statutes and while this Court was careful to point out that the regulation didn't apply because it wasn't enforced at the time of the violation.

It was highly persuasive.

In the second place, it wasn't a highway that the State had built in its own expense and we say that if railroad cases are to be invoked, far more nearly in point is the terminal railroad case against the Brotherhood of Railroad Trainmen in which this Court by unanimous opinion held valid a regulation of the Illinois Commerce Commission requiring the railroad to put cabooses on trains although these cabooses moved over to Mississippi River over bridges, the ids and other bridges in the Mississippi River and there was no practically feasible method of detaching the caboose at the margins of the State so that the effect of the order was to require them to translate -- to transport the cabooses into the City of St. Louis and from the City of St. Louis back into Illinois and this Court unanimously held that that was not an unreasonable burden on interstate commerce.

Now, if the Court please, we say that the matter was one for the judgment of the legislature unless there was clear demonstration that the legislatures -- a determination was so errantly unreasonable.

Justice Felix Frankfurter: But not on that point, Mr. Wines, whether it does or doesn't burden commerce for the legislature of Illinois with all might, can affect the wisdom and (Inaudible)

Mr. William C. Wines: I beg Your Honor's pardon?

Justice Felix Frankfurter: I say that the determination by the state legislature of Illinois that this does not burden commerce.

That certainly doesn't carry the weight, if it carried any weight, the determination of a particular construction is necessary to say.

Are you suggesting that -- that's slightly a question of whether this is a desirable gadget or whatever you call it?

Mr. William C. Wines: No, Your Honor.

Justice Felix Frankfurter: The burden problem, I don't know if that comes with any particular validity or legitimacy because Illinois passed the statute.

Mr. William C. Wines: Well, this Court has --

Justice Felix Frankfurter: (Voice Overlap) on the way of meeting things in the end.

Mr. William C. Wines: There is.

I -- I've already conceded that the burden on interstate commerce in this case is a substantial one.

It would --

Justice Felix Frankfurter: Then -- then what is with the Southern Pacific?

Mr. William C. Wines: We say that the legislative determination that the safety, the preservation of life embodies -- and property on Illinois highways, embodies a reasonable exercise of the police power and does not unduly burden interstate commerce.

Justice Felix Frankfurter: (Inaudible) I can go with you when you say what Illinois judges are necessary to the safety within its border that whether the burden of -- of its judgment, are -- to my point of view, is sufficient or remote (Inaudible) measured.

I don't think you can also make it carry that thereby, it shows that it is in commerce (Inaudible), isn't that answer a little more than --

Mr. William C. Wines: I was going to come to the point that the appellants make.

They say that if there is to be regulation of the type of mudguards to be use on trucks, it should be uniform and should be either enacted directly by Congress or Congress should authorize a promulgation of regulations by the Interstate Commerce Commission or some of the commission.

We say that in this case, until Congress acts, the States may require reasonable equipment.

Now there is in this case a matter of the Arkansas regulation.

There was no evidence, whatever introduced, to show the reason for the Arkansas regulation which requires a flap type of mudguard and if it's necessary to comply with different types of mudguards and different types -- in different States that compliance can be affected at the States' borders.

It's a respectful submission of the Attorney General of Illinois that the District Court erred in striking down this Act with respect to interstate commerce.

Justice Potter Stewart: Does the record show, Mr. Wines that -- that this Illinois type mudguard would conform to the laws of all the States except Arkansas?

Mr. William C. Wines: I would say so far as -- I would -- I say it's assumed -- it was assumed by the District Court that it would.

I don't think there is a detailed check of every regulation in every state.

But the case has been argued on -- all the way through on the assumption that -- that it would.

Justice Potter Stewart: That it would and also on the further assumption that it would violate the regulation of Arkansas.

Mr. William C. Wines: That's right.

Justice Potter Stewart: Is that it?

Mr. William C. Wines: Yes.

Justice Potter Stewart: And --

Mr. William C. Wines: I'd like to reserve my time to reply.

Justice Felix Frankfurter: What did you say was the difference between the Southern Pacific --

Mr. William C. Wines: I say this in the first place.

The Southern Pacific case was not dealing with roads built by a state.

Justice Felix Frankfurter: Did Illinois get no contribution from the federal government?

Mr. William C. Wines: Oh, I think we do but we build those roads ourselves and primarily we say -- a state has greater power over their own roads than she does over railroads.

Justice Felix Frankfurter: In the -- in the -- what was it?

Equality against somebody.

Justice Brandeis made an important point as I recall it -- drew an important point when the very considerable appropriations of federal moneys to state built road.

When you say, you fill in yourselves, does that mean you pay for them yourselves in order to (Voice Overlap) --

Mr. William C. Wines: Not entirely, no.

Not entirely, no.

Justice Felix Frankfurter: (Inaudible) charged them?(Voice Overlap) --

Mr. William C. Wines: We have charged them and we -- and we design them.

We --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. William C. Wines: -- we construct them.

Justice Felix Frankfurter: -- federal road.

I mean federally completed road, does it?

Mr. William C. Wines: That's right.

Justice Felix Frankfurter: So what's -- what's the point of that argument?

Mr. William C. Wines: We say that when the state builds a street or a road --

Justice Felix Frankfurter: But the State only (Inaudible)

Mr. William C. Wines: Well, we say partly -- we say it builds it with partly state funds and partly federal funds that adheres more control over that highway than it does over a railroad that is subject to the jurisdiction of the Interstate Commerce Commission.

Justice Felix Frankfurter: That means that it could burden interstate commerce although it couldn't burden it if it didn't pay --

Mr. William C. Wines: No.

It can --

Justice Felix Frankfurter: (Inaudible)

Mr. William C. Wines: There's -- there's a reasonable -- it can impose any burden on either a railroad or a public highway that is not unreasonable but the test of reasonableness is not the same with respect of the two types of highways.

Justice Felix Frankfurter: If that's unreasonable then you don't need to rely on that argument (Inaudible) on that argument.

If it's not unreasonable then it comes within what we call the state police power.

Mr. William C. Wines: I don't quite think -- I think the test of reasonableness is different, Your Honor.

Justice Felix Frankfurter: If it hardly puts up the money then it's going to be more unreasonable?

Mr. William C. Wines: I think so.

Justice William O. Douglas: Has the Interstate Commerce Commission have any regulations?

Mr. William C. Wines: No, no.

If -- if there were any, they would displace --

Justice William O. Douglas: I know but -- have non-regulating this -- the equipment of interstate trucks?

Mr. William C. Wines: No, no.

Justice William O. Douglas: I suppose they all have interstate licenses or --

Mr. William C. Wines: Well, they -- they have licenses for revenue, yes.

Justice William O. Douglas: Under the Motor Carrier Act?

Mr. William C. Wines: Yes.

Yes.

All of these plaintiffs operate under the Motor Carrier Act which has not -- and there are -- there are no regulations.

Justice William O. Douglas: But could do ICC tomorrow formulate regulation?

Or does it require legislation?

Mr. William C. Wines: I'm inclined to -- I don't know, Your Honor.

To tell -- to tell you the truth, I don't know.

And I'm inclined to think they could.

Justice Felix Frankfurter: They could.

Mr. William C. Wines: I'm inclined to think so.

Justice Felix Frankfurter: Well, I didn't say it didn't apply (Inaudible)

Mr. William C. Wines: We don't think so.

We discussed that in our brief and the only cases that have reached this Court where that argument has been made as to motor trucks have not sustained.

I'd like to reserve some time for reply.

Chief Justice Earl Warren: Mr. Axelrod.

Argument of David Axelrod

Mr. David Axelrod: May it please the Court.

Illinois and 25 other States in regard to this subject matter, prior to 1955 and beginning with 1955 covered the field of this particular kind of equipment with what is known as a straight mudflap requirement.

In 1955, Illinois, for the first time, changed its mudflap requirement to that of a contour type of mudflap requirement.

Illinois today is the only State in the union which stands out with a contour type mudflap requirement.

The States adjoining Illinois today including Illinois, India -- including Indiana, Missouri, Kentucky and Iowa have no mudflap requirements whatsoever.

The State of Wisconsin adjoining Illinois on the North had a mudflap requirement and it is of the so-called straight or conventional type which was enacted by 25 other States in 1951.

The balance of the States, including the District of Columbia, has no kind of mudflap requirement whatsoever.

Well, that's therefore with the position that States surrounding Illinois except Wisconsin have no requirement whatsoever.

Wisconsin has the straight mudflap.

Illinois for the first time in 1955 and subsequently in 1957 developed the specific kind of mudflap called the contour kind.

The --

Justice Potter Stewart: What does Arkansas have on your --

Mr. David Axelrod: Arkansas has the straight mudflap requirement which was a regulation passed by the Arkansas Commission in 1957 and which resulted in connection with this particular case with an arrest by Illinois of a vehicle carrying the contour -- carrying the straight mudflap requirement of Arkansas into Illinois.

That is an Arkansas equipped vehicle with a straight mudflap which was the requirement for Arkansas was arrested in Illinois because it didn't have the contour.

Conversely, had an Illinois contour flap vehicle come to Arkansas under the Arkansas statute, it would have been illegal in the State of Arkansas and so we have a clear conflict of the Arkansas and Illinois requirements in this respect.

Justice William J. Brennan: Well, does the Arkansas requirement differ from the requirement of the 25 States you mentioned?

Mr. David Axelrod: The Arkansas requirement is the same as all other States.

Illinois standing alone in this contour feature.

Justice William J. Brennan: Well, what I'm -- do I -- am I to infer to suggest that the same thing might happen that a truck using --

Mr. David Axelrod: The same thing might happen --

Justice William J. Brennan: -- using an Illinois contour guard might run a foul to the laws of 25 States --

Mr. David Axelrod: Exactly, Mr. Justice Brennan.

This crazy quote pattern could develop in all 48 States.

Justice Potter Stewart: Well, as of now -- excuse me.

Mr. David Axelrod: Yes.

Justice Potter Stewart: Just -- you clarify me if I'm mistaken.

As of now, it's true, is it not that Arkansas alone among the 25 straight mudflap States has an interpretative regulation of some kind expressly holding this Illinois type not in conformity with Arkansas law.

Mr. David Axelrod: That is correct.

Justice Potter Stewart: So far it appears, this special contour Illinois type, would be not violative of the other 24 States which simply proscribe a mudflap, is that true as --

Mr. David Axelrod: That would be correct.

Justice Potter Stewart: -- as of now (Voice Overlap) --

Mr. David Axelrod: That would be correct.

That would be correct, yes.

Except with the possible exception of two States of Idaho and Oregon which have a little bit of a question mark in the record there as to whether or not their statute prescribed what they call a fender guard.

Now there's a little bit of a haze in the record on that question.

We feel that perhaps the answer would be that the Illinois contour might not pass the fender guard requirement of Idaho and Oregon but I won't put a positive yes to that -- for that question, Your Honor.

Justice William J. Brennan: (Inaudible) if it's wrong for Illinois to prescribe the contour, why is it also wrong for Arkansas to prescribe straight --

Mr. David Axelrod: I'm not suggesting that Arkansas is right.

I'm suggesting that the problem created by the fact that Illinois has taken upon itself to require a particular piece of equipment with such specificness that nothing else can be used in connection with this particular purpose by a state, presents to this Court the question of conflict as between Arkansas and Illinois which now arises in this record and which can and will arise under any subsequent holding by this Court if this Court should hold the Illinois statute a valid one.

We say that this focuses the question of conflict and we say that we're in an area where uniformity is required or else there'd be no regulation as it stands today.

And a question was asked to Mr. Wines a few minutes ago with respect to the position of the ICC on this subject matter.

The ICC does have the power to prescribe a uniform mudflap if it wants to in my opinion.

However, it did enter upon an investigation of the subject matter for the purpose of determining whether or not such should be done.

And in its report, in 54 M.C.C. 337 indicated as follows, “The proposed rule on wheel flaps has been eliminated after a study of further evidence which has been submitted".

Now they dealt with whether or not there was a need for a mudflap or a wheel flap and did so and decided that from the standpoint of the ICC, there was no need for such a requirement.

Justice Felix Frankfurter: What's that (Inaudible)

Mr. David Axelrod: Justice Frankfurter, I don't have at the moment.

I believe it was 1952.

I think it was April 1952.

Justice Potter Stewart: Is there any indication of what evidence was submitted?

It occurs to me only the part of the evidence submitted was the fact that 25 States had acted in this area.

Mr. David Axelrod: There is no indication in the ICC report as to what evidence was submitted.

Justice Potter Stewart: -- (Voice Overlap) ICC that was -- that was doing the job.

Mr. David Axelrod: I beg your pardon.

Justice Potter Stewart: And it may speculatively had been the (Voice Overlap) --

Mr. David Axelrod: That's our position.

Justice Potter Stewart: -- to the (Voice Overlap) --

Mr. David Axelrod: That is our position.

Justice Potter Stewart: -- that the States were doing the job (Voice Overlap) --

Mr. David Axelrod: That is our position.

And we say further in this particular respect that we're not arguing here with the right of the State to pass some safety legislation.

We say that there is a place for state safety legislation but we say that the State can go too far in its attempt to state safety regulation and where it goes too far and burdens as Mr. Wines very agreeably concedes this does and then the state statute must fall.

That's our position in this -- in this case exactly.

Justice Potter Stewart: Well, I still have difficulty with the -- well, I consider the very penetrating question that Mr. Justice Brennan asked you, certainly there is a conflict between Arkansas and Illinois.

But -- I suppose nobody would suggest that this Court is qualified, there is all the conflict as to which has a better mudflap.

Mr. David Axelrod: We're not asking this Court to resolve that conflict.

We're asking this Court to strike down an Illinois statute which creates a conflict.

And we say that it is the --

Justice Potter Stewart: Well, it doesn't -- isn't it equally -- the Arkansas statute creates the conflict?

Mr. David Axelrod: No, it's the Illinois statute which creates the conflict because the Illinois statute undertakes with specificity to describe only a particular kind of a piece of equipment that can be used.

And in Kelly versus Washington, this Court held that where a state attempted to design specifically the structure of a tug or a vessel that it went too far because if Washington could do it, California could do it, Oregon could do it and the result would be the burden on interstate commerce which we say is the only issue on this proceeding.

Justice Felix Frankfurter: Does Arkansas give leeway or does much to conform --

Mr. David Axelrod: Arkansas gives no leeway, Mr. Justice Frankfurter and I have --

Justice Felix Frankfurter: -- (Voice Overlap) coming in with an automobile not having these flaps --

Mr. David Axelrod: Arkansas --

Justice Felix Frankfurter: -- (Voice Overlap) Arkansas would be in the same token.

Mr. David Axelrod: Arkansas gives no leeway.

As a matter of fact, Arkansas is specific in requiring the straight mudflap as Illinois is in requiring the contour mudflap.

So we -- we present the conflict question just squarely as it can be.

Justice William J. Brennan: Well, Mr. Axelrod (Voice Overlap) --

Mr. David Axelrod: I beg your pardon.

Justice William J. Brennan: What concerns me is I think you relied, don't you, on your brief as I recall it as you have, I gather already in your argument on what's been done in 25 other States as demonstrating, am I --

Mr. David Axelrod: We do not --

Justice William J. Brennan: -- wrong about this?

Mr. David Axelrod: We do not.

We do not rely on that.

I'm pointing that out simply as his -- history or as background.

I do not rely on it.

Mr. David Axelrod: We rely --

Justice William J. Brennan: We can -- we can forget what 25 States and Arkansas have done.

Mr. David Axelrod: You can to the extent of this decision and of this proceeding.

Yes, Your Honor, you can.

I was pointing it out by way of historical background and information to the Court.

Justice William J. Brennan: And -- and --

Mr. David Axelrod: And it's in our complaint.

Justice William J. Brennan: You suggest that -- you suggest that based on the concession that Mr. Wines has made, namely, that this is a serious burden on interstate commerce.

Is that sufficient for us to affirm the lower courts?

Mr. David Axelrod: Yes, I do based upon the concession that this represent and undue an unreasonable burden and based upon the findings of fact by the three-judge court which go even further than representing it to be undue and -- and obstructive.

As a matter of fact, the three-judge court and its opinion --

Chief Justice Earl Warren: Mr. Axelrod, did -- did Mr. Wines concede that it was an undue burden on interstate commerce?

Mr. David Axelrod: I -- I --

Chief Justice Earl Warren: -- (Voice Overlap) what he said was --

Unknown Speaker: Heavy burden.

Chief Justice Earl Warren: -- a rather heavy burden.

Mr. David Axelrod: Well, I don't know what is the differences between undue or heavy but if he hasn't conceded it to be undue, it's our position here that this statute on -- is an undue burden and it is obstructive of interstate commerce.

As a matter of fact, the three-judge court found it to be an insurmountable burden and found that the statute not only obstructed commerce but as between Arkansas and Illinois obliterated commerce.

Now, you can't go much further than that from the standpoint of indicating the undue burden or the obstruction to commerce then -- the District Court in our case.

But in --

Justice Hugo L. Black: How is this mudflap -- how was this mudflap passed it on the government?

Mr. David Axelrod: Well, the mudflap, the contour mudflap is --

Justice Hugo L. Black: The what?

Mr. David Axelrod: -- the contour -- the contour, the Illinois contour mudflap.

Justice Hugo L. Black: Is that a special brand or just --

Mr. David Axelrod: It's a special brand, Your Honor.

It's a special brand of mudflap.

Justice Hugo L. Black: Manufactured by one company?

Mr. David Axelrod: By several companies ostensively, but --

Justice Hugo L. Black: What is the other?

Is it a special brand too?

Mr. David Axelrod: The other is not a special brand.

The other is what we call a straight or a conventional mudflap which is manufactured by any number of companies.

Justice Hugo L. Black: How was it put on?

Mr. David Axelrod: The contour mudflap has to be welded to the trailer and --

Justice Hugo L. Black: You mean that's the --

Mr. David Axelrod: This is the Illinois statute.

Justice Hugo L. Black: Illinois.

Mr. David Axelrod: The Illinois mudflap has to be welded to a trailer.

And one of our problems in this case and we showed it in the evidence was that as suggested by Mr. Wines, the trailer is ought to be stop to the state line according to the State and the contour mudflap ought to be put on because of the Illinois requirement.

We point out in the evidence that because this contour mudflap has to be welded under the trailer and because we with our trailers are carrying explosives for example in interstate commerce that it's a physical impossibility and would be contrary to the explosive rules and regulations for anyone to touch that trailer by a welding process and that the difficulty was not just that but it was a question of danger and safety.

So we have instead of an attempt that safety feature to the contour flap, we have unsafe advantages that would -- would be created by this very kind of mechanism.

As a matter of fact, the three-judge court opinion in our case repeatedly points out that not only does this appliance have no safety value to it at all over and above the straight mudflap which is what every one of these vehicles now carry and which is the kind that is good in all of the States.

But as a matter of fact, it is shown that this introduce new hazards on the highway, create new dangers.

And these are specific findings of fact which are contained in a three-judge court opinion accompanied by its findings of fact.

Justice Hugo L. Black: Have you cited in your brief the authority of the interstate commerce?

Where -- where is it?

Mr. David Axelrod: The authority of --

Justice Hugo L. Black: -- (Voice Overlap) authority that they have to regulate it.

Mr. David Axelrod: The authority of Interstate Commerce Commission, Mr. Justice Black is in Section 204 of the Interstate Commerce Act.

It is not cited in our brief.

However, the reference to Section 204 in the Interstate Commerce Act is disclosed in connection with this Court's decision in Maurer versus Hamilton where the question there and Mr. Wines adverts to Maurer versus Hamilton, the question there and the State relies on Maurer versus Hamilton was whether or not the State of Pennsylvania there have the right to prescribe a prohibition against the carrying of a passenger car in a trailer over the cab of the driver.

And this Court held in that case, the State did have the right in that instance to enact such legislation on the specific ground that the question of weight and width of a motor vehicle was a question which was specifically reserved unto the State by Section 225 of the Interstate Commerce Act and this is the basis and this is the justification for this Court's holding in Maurer versus Hamilton that the problem of road regulation was one which is peculiarly within the province of a state because there in Maurer versus Hamilton the State was dealing with a local condition, a local problem.

But more than that in Maurer versus Hamilton, if that wasn't enough, and I think it was enough to point out in that case that here was a specific reservations of the State.

In Maurer versus Hamilton, there was a very, very extensive record, an extensive record with respect to the need for that kind of safety in the State of Pennsylvania.

There is no, no testimony in our case with respect to the need for this kind of contour mudflap within the State of Illinois.

Justice Felix Frankfurter: I have -- I have Justice Black's curiosity of wanting to hear or see with my eyes the exact substantive power granted to the Commission which it could exercise tomorrow or next week and which it has withheld exercises as against Maurer against Hamilton where there was an expressed reservation to deal with this subject matter in the State.

Mr. David Axelrod: Mr. Justice Frankfurter, I have the -- I have with me the --

Justice Felix Frankfurter: You probably have it in your mind, what is it?

Mr. David Axelrod: Well, it's the -- it's the reference of Section --

Justice Felix Frankfurter: Yes, you gave me Section 2 but what's the (Inaudible)

What does it say?

Mr. David Axelrod: Section 225 of the ICC Act allows the Interstate Commerce Commission to investigate into the matter of the need for sizes and weights of motor vehicles and to report back that need to the Congress.

And it gives no authority to prescribe any state regulations with respect -- it gives no authority to the ICC to prescribe any regulation covering sizes and weights.

In other words, Section 225 says that the Commission may investigate and shall investigate --

Justice Felix Frankfurter: -- (Voice Overlap) state.

Mr. David Axelrod: I beg your pardon?

Justice Felix Frankfurter: It was left with the State.

Mr. David Axelrod: Exactly.

Justice Felix Frankfurter: That was the basis of our decision.

Mr. David Axelrod: That is correct.

Justice Felix Frankfurter: Now, what I want to know is here.

You indicated that the State -- that the ICC does have power to make a uniform provisions for the country.

What is the basis?

Mr. David Axelrod: The basis of that is Section 204 of the Interstate Commerce Act which allows the Commission to establish reasonable regulations with respect to safety of operation and equipment.

And that's the quote from Section 204.

Now, under that Section, the ICC here, regulated with respect to the number of lights on vehicles, regulated with respect to the kind of -- regulated with respect to breaks on vehicles but they don't say what kind of a break shall be put on it.

It doesn't say it shall be one kind of break versus another kind.

They say a break for the purpose of accomplishing a breaking purpose.

That is for the purpose of being able to stop the vehicle.

In this case, our position is that the Illinois legislature went too far because they told us what kind of a contour flap we were required to have on our vehicles and they run contrary to the position of this Court in Kelley versus Washington and they developed this question of conflict and they developed as a result of this question of undue burden on interstate commerce.

Justice Felix Frankfurter: I supposed the record have showed that the casualty on your Illinois road was three times as high as the casualty on comfortable roads leading in and out of great metropolitan center.

And that on the basis of such experience non-action by the ICC, the Illinois legislature then made a provision and the casualties were due to whatever specific or dominant cause.

And the legislature then made a mandatory -- mandatory enactment requiring certain safeguards which in the fair judgment of the legislature would reduce that carnage.

No other state had it.

The Interstate Commerce Commission hasn't enacted.

I take your word that it could.

What would you say to that situation?

Mr. David Axelrod: I would say that if that was the record in our case, we might be in trouble before this Court.

I say, however, that that is not the record in this case and that's where this case is deficient from the standpoint of a record with respect to the contention of the State.

Now, in this case the only testimony which the State put in was the fact, number one, that Illinois was a wet weather state, number two, that this contour guard precluded some splash or spray.

We attempt to indicate in our testimony and we did and the District Court found that the splash and spray prevented by the contour guard was not defective as the splash and spray which we were able to cope with on the basis of our straight or conventional guards.

The State took the position that that was not an issue because --

Justice Felix Frankfurter: Are you arguing this that there -- there must be -- since commerce is -- is involved concededly.

This affects trucks coming in and out of the State if the commerce is involved that in order to counteract (Inaudible) burden, meaning doing something you have to do before Illinois requires it while surrounding States don't or may not.

In order to counteract burden, I'm not talking due or undue, you show that the State has a localize interest in the protection of its life of the safeguarding of living which overbears whatever maybe the consequences either of inconvenience of a cause upon -- upon the commerce.

Mr. David Axelrod: Well, this Court has in this area resolved the questions on the basis of way and resolving the conflict as between the State and the national interest.

And for example in the case of Terminal Railroad Association -- Terminal Railroad Association versus the Brotherhood which is the caboose case which Mr. Wines relies upon as being his case.

This Court pointed out that in the caboose case there, there was no evidence with respect to cause in the record there as to how it would affect or burden interstate commerce.

And so in the Terminal Railroad Association case, this Court because there.

The burden question was not carried by the attackers of the law.

This Court has found the law was good based upon the affirmative position and evidence of the State.

The same was true with respect to Barnwell -- in the Barnwell case.

Again, South Carolina prescribed the weight and length limits of South Carolina.

And this Court found there that was an extensive record developed as to the need for the regulations in South Carolina because, there, South Carolina had cope with the problem and earlier had prescribed higher weight loss and found they were unsafe but that isn't this case.

In our case, not only do we have no finding that the con -- that the straight mudflap which we now have and which we use is unsafe or not safe but we have a contrary finding that the contour mudflap is more dangerous than the straight conventional mudflap which we use and which we require and which would be reinstated if the contour mudflap law was not doubt because --

Justice Potter Stewart: Do you think -- you think this Court is as bound by those findings of the three-judge District Court as would be a -- a Court of Appeals by findings of a single district judge and an ordinary contract to tort action under Rule 52 (a) of the federal rule?

Mr. David Axelrod: I think so because I don't think this is a question where we do anything except to allow the State to legislate in an area.

I think that there is a presumption of validity so to speak that goes with a state statute at the outset.

But that presumption of validity wouldn't involve a specific -- a specific findings of facts such as we have in this case and the presumption of validity of the state statute, I think here is dissipated immediately when it runs smack into the principle of the Commerce Clause because I think Commerce Clause is a hurdle which any state statute must overcome before it can be declared good and where an attack is made on such a state statute under the Commerce Clause and where we have demonstrated --

Justice William J. Brennan: Now, where does the burden lie?

Mr. David Axelrod: I beg your pardon?

Justice William J. Brennan: Where does the burden lie?

You have to prove the burden as the State have to prove its reason?

Mr. David Axelrod: It would appear that both facts ought to be proved in this respect.

I think that the first inquiry when one of these statutes is assailed is whether or not the statute contributes to safety.

If it does contribute to safety, then I think there's a second question to be decided, whether or not the State has gone too far and in its safety program has run contrary to the burden clause.

Now with respect to burden, I think it would be the obligation of the plaintiffs attacking the law such as we to show burden and I think we have demonstratively proved the question of undue burden in this case.

We -- we've done I think much greater with all due respect than in Southern Pacific versus Arizona and much greater than in Morgan versus Virginia upon which we rely also.

But even if we didn't prove our burden and I think we have, I think the State lawfully failed to prove what it should have proved namely that there was some safety need for this kind of an appliance.

Justice Potter Stewart: Well --

Mr. David Axelrod: That is --

Justice Potter Stewart: -- excuse me.

Mr. David Axelrod: -- completely lacking here.

Justice Potter Stewart: It's lacking because the State took the position of the District Court, did it not, that this was all irrelevant to the --

Mr. David Axelrod: That's correct.

Justice Potter Stewart: -- legislative findings were conclusive or at least -- or at least presumptively reasonable?

Mr. David Axelrod: Well, the State --

Justice Potter Stewart: And --

Mr. David Axelrod: -- took the position in the trial of the case, Mr. Justice Stewart, that it didn't make any difference because it was simply a question of legislative judgment and they took the position actually that all of this was irrelevant that so long as Illinois spoke that was sanctity.

Justice Felix Frankfurter: Suppose --

Justice Potter Stewart: Result --

Unknown Speaker: Excuse me?

Justice Felix Frankfurter: Pardon me.

Justice Potter Stewart: As a result, the -- the State elected not really to put in a case on that issue, isn't that right?

Mr. David Axelrod: I think that's right.

Justice Potter Stewart: And wouldn't -- would it follow from that that -- that we agreed with you as to what the State should have done and that we scream at it to the District Court?

Mr. David Axelrod: No, I don't think so.

I don't think so.

I think that two things happened here.

First, that we carried our burden of showing that this unduly burdened interstate commerce.

But in addition to that I think the State fell down in its burden so to speak of attempting to show that this was a safety piece of equipment.

Justice William O. Douglas: What findings has the Commissioner -- Commission may deploy equipment (Voice Overlap) --

Unknown Speaker: 204.

Mr. David Axelrod: With respect to 204 equipment, they have required certain lights.

For example, they have specified that the vehicle should carry breaks which shall be -- which shall be of breaking qualities and there are a whole series of requirements with respect to that time, Mr. Justice Douglas.

I have those here and I can --

Justice William O. Douglas: I don't see them -- that it's cited your brief.

Mr. David Axelrod: They are not, sir.

They are not, Your Honor.

Justice William O. Douglas: Could you give us those citations?

Mr. David Axelrod: Yes, I do have them.

I -- I'm only -- at the moment, I --

Chief Justice Earl Warren: Would you submit them to us for the morning --

Mr. David Axelrod: Yes, I'll be very happy.

Justice Felix Frankfurter: May I ask you this question?

Suppose this statute had been restricted, have been confined by Illinois to trucks doing exclusively local business, what would be your position?

Mr. David Axelrod: Intrastate?

Justice Felix Frankfurter: Intrastate.

Mr. David Axelrod: We wouldn't be here, Your Honor.

Justice Felix Frankfurter: You wouldn't be here.

Mr. David Axelrod: We wouldn't be here because all of these carriers are exclusively interstate carrier.

Justice Felix Frankfurter: I understand they are.

But -- but would that be on the basis that then the determination through the enactment of the legislation is -- by the legislatives conclusive as to its safety relevance?

Mr. David Axelrod: That would be the case because there, the -- then the question would then be one of due process under the state constitution.

This is not --

Justice Felix Frankfurter: Well, on the federal -- suppose the State --

Mr. David Axelrod: And -- and the Federal Constitution.

Justice Felix Frankfurter: Suppose the state legislatures said they should -- they should have a rather fancy balloons floating in front --

Mr. David Axelrod: [Laughs]

Justice Felix Frankfurter: -- you'll be here to say that that has no relation to anything, wouldn't you?

Mr. David Axelrod: The answer of that question, if I may, would be simply this.

The State Supreme Court of Illinois has in the two cases, Warren and Rudolph versus Bibb, held the statute under the state due process question and under the federal due process question to be a reasonable exercise of state police power.

But this is not our question here.

Justice Felix Frankfurter: As to local -- as to intrastate business.

Mr. David Axelrod: That is -- that is correct.

Justice Felix Frankfurter: And you say that as to that, howsoever, find of the judgment of the legislature maybe on that question, when it comes to its effect upon -- into the national interest, it can't be valued.

Mr. David Axelrod: That's correct.

Chief Justice Earl Warren: We'll recess now.

Print this transcript Transcript: 

Argument of David Axelrod

Mr. 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 --

Justice Charles E. Whittaker: Where can you find this?

Mr. David Axelrod: 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 --

Justice William J. Brennan: We don't have that referred to in the brief, do we?

Mr. David Axelrod: I do not and --

Justice William J. Brennan: Do you mind --

Mr. David Axelrod: I beg your pardon.

Justice William J. Brennan: Do you mind giving it to me again.

I wasn't --

Mr. David Axelrod: 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.

Justice Hugo L. Black: Did --

Mr. David Axelrod: There is no --

Justice Hugo L. Black: Did it say why?

Mr. David Axelrod: It did not.

It did not, Justice Black, but --

Justice Hugo L. Black: Was that an order of any kind?

Mr. David Axelrod: 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.

Justice Felix Frankfurter: Was there before the Commission a proposal to it, to provide for these mudflaps?

Mr. David Axelrod: 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.

Justice Charles E. Whittaker: It did specifically meant into mudflaps?

Mr. David Axelrod: 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.”

Justice Felix Frankfurter: Well, I suppose you can tell by the appearances before the Commission.

Were they noted in these reports?

Mr. David Axelrod: Yes they are, Mr. Justice Frankfurter.

Justice Felix 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?

Mr. David Axelrod: There was such submission.

However, the information is sketchy.

Now, in connection with the proceeding --

Justice Hugo L. Black: You said proposed rule.

Is the proposed rule printed?

Mr. David Axelrod: It is -- it was not printed with respect to the proceeding itself.

Justice Hugo L. Black: Does it state -- well, is it available so that we could see what the proposal was?

Or does this report state what it was?

Mr. David Axelrod: To my recollection, it did not, Mr. Justice Black.

Justice Felix Frankfurter: Well, are you merely saying that the subject matter was canvassed before the Commission?

Mr. David Axelrod: 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 --

Justice Felix Frankfurter: But is it on ICC rule?

Mr. David Axelrod: Not on this subject matter.

Justice Felix Frankfurter: Well, then as I heard what you read, the Commission said explicitly that by their action, they did not need to supplant local rules?

Mr. David Axelrod: 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.

Justice Felix Frankfurter: 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.

Mr. David Axelrod: They refuse to deal with it, Mr. Justice Frankfurter.

I think on the theory that there was no need to deal with it.

Justice William J. Brennan: Well, what you mean by that that there was no safety problem?

Mr. David Axelrod: That is correct.

Justice William J. Brennan: Well, I -- as you read that though, I rather have the im -- what was an implication in it that --

Mr. David Axelrod: Well, the --

Justice William J. Brennan: -- (Voice Overlap) safety hazards but they believe its regulations in the States.

Mr. David Axelrod: 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.

Justice William J. Brennan: -- (Voice Overlap) we're to infer from that that there was no real safety hazard calling so far as regulation (Voice Overlap) --

Mr. David Axelrod: That is -- that is correct.

And we're -- I'm saying in this case --

Justice Felix Frankfurter: Why would -- why will they explicitly allow this existing laws if ever there were laws to prevail?

Mr. David Axelrod: Because apparent --

Justice Felix Frankfurter: As I read it -- as I interpret what you read, they refused to make a uniform rule for the nation.

Mr. David Axelrod: Because --

Justice Felix Frankfurter: There are in existence local rules and they said for the present, we let those local rules prevail.

Mr. David Axelrod: 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.

Justice Felix Frankfurter: -- (Voice Overlap) was not in effect?

Mr. David Axelrod: 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.

Justice Felix Frankfurter: There was no conflict except --

Mr. David Axelrod: There was --

Justice Felix Frankfurter: -- the conflict between the States that have something all uniformed, those who have it and the States that have nothing.

Mr. David Axelrod: There was no conflict, Mr. Justice Frankfurter, none whatsoever.

Justice Felix Frankfurter: Except -- except between the States --

Mr. David Axelrod: Yes.

Justice Felix Frankfurter: -- that had a requirement and the States that (Inaudible)

Mr. David Axelrod: That is correct.

That is correct.

Justice Charles E. Whittaker: Mr. Axelrod, I do not understand.

Maybe I'm (Inaudible)

Mr. David Axelrod: 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.

Justice Charles E. Whittaker: May I ask you (Inaudible)

Mr. David Axelrod: 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.

Justice Charles E. Whittaker: Other States did not have any possible requirements as to the character of the mudflap.

Mr. David Axelrod: That is correct.

Other States did --

Justice Charles E. Whittaker: Arkansas (Inaudible)

Mr. David Axelrod: Arkansas did make such, yes.

Justice Charles E. Whittaker: And so as Illinois.

Mr. David Axelrod: And so did Illinois.

But --

Justice Charles E. Whittaker: (Voice Overlap) --

Mr. David Axelrod: -- 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.

Justice Charles E. Whittaker: One thing more.

You made (Inaudible)

Mr. David Axelrod: Yes.

Justice Charles E. Whittaker: Must be welded onto the vehicle.

Mr. David Axelrod: The --

Justice Charles E. Whittaker: And that's -- even the vehicle was (Inaudible) three-judge court.

Mr. David Axelrod: Yes.

Justice Charles E. Whittaker: Is it really necessary that an Illinois statute require it to be welded?

Can it not be folded or some other --

Mr. David Axelrod: 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.

Justice Charles E. Whittaker: Is there any case by this Court (Inaudible) a state statute in order to the use of the state highways?

Mr. David Axelrod: 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.

Justice Hugo L. Black: Would you mind -- I may -- I guess it's too much but mudflaps has been used great many times.

Mr. David Axelrod: Yes.

Justice Hugo L. Black: I've learned that it has to be welded.

Could you describe it to me?

Mr. David Axelrod: Yes.

Justice Hugo L. Black: What does it made off?

What --

Mr. David Axelrod: Yes.

Justice Hugo L. Black: -- material?

Mr. David Axelrod: 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.

Justice Felix Frankfurter: What are they made of?

Mr. David Axelrod: 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 --

Justice William J. Brennan: (Inaudible)

Mr. David Axelrod: I beg your pardon.

Justice William J. Brennan: The patent of the device is contour --

Mr. David Axelrod: That question is not on the record.

My answer is yes to your question, Mr, Justice Brennan.

Justice William J. Brennan: -- (Voice Overlap) just some particular manufacturer who's selling it?

Mr. David Axelrod: The answer is yes though that is not in the record.

Justice William J. Brennan: -- (Voice Overlap) Illinois manufacturers?

Mr. David Axelrod: I beg your pardon.

Justice William J. Brennan: Illinois manufacturers?

Mr. David Axelrod: 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.

Justice Tom C. Clark: (Inaudible)

Mr. David Axelrod: The -- the straight?

Justice Tom C. Clark: The straight guard.

Mr. David Axelrod: The straight is not.

And many -- many manufacturers are making the straight guard.

Justice William J. Brennan: Is this -- is this developed as the ICC indicated on the interest in going back into this investigation of it?

Mr. David Axelrod: 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.”

Justice Felix Frankfurter: 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?

Mr. David Axelrod: 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.

Justice Felix Frankfurter: Well they could -- they could -- I inferred from what you said.

They could themselves provide for the flap -- for the flaps, couldn't they?

Mr. David Axelrod: Yes I --

Justice Felix Frankfurter: When they say --

Mr. David Axelrod: Yes they could.

Justice Felix Frankfurter: -- 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.

Mr. David Axelrod: 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 --

Justice Felix Frankfurter: 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.

Mr. David Axelrod: That is correct.

You mean the wet -- you mean the dry weather States?

Justice Felix Frankfurter: Why would it be?

It also comes to that.

Mr. David Axelrod: 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.

Chief Justice Earl Warren: Well, what is the power if under statute -- the statute prescribes that the States may have safety devices not inconsistent with those of the --

Mr. David Axelrod: Federal government.

Chief Justice Earl Warren: Federal?

Of --

Mr. David Axelrod: With those -- that is correct.

Chief Justice Earl Warren: -- 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?

Mr. David Axelrod: 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.

Chief Justice Earl Warren: 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?

Mr. David Axelrod: 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.

Chief Justice Earl Warren: Well, that true but --

Mr. David Axelrod: And --

Chief Justice Earl Warren: -- your answer to Mr. Justice Whittaker was that it never had interfered with the State in this field.

Mr. David Axelrod: 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.

Justice Felix Frankfurter: Would that really be your ultimate position --

Mr. David Axelrod: That it --

Justice Felix Frankfurter: -- 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.

Mr. David Axelrod: 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.

Justice Felix Frankfurter: 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.

Mr. David Axelrod: 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.

Justice Felix Frankfurter: 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 --

Mr. David Axelrod: We are not.

Justice Felix Frankfurter: -- so the only -- the real question is, is this Southern-Pacific case?

Mr. David Axelrod: 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.

Justice Felix Frankfurter: Now, do you introduce evidence to try to establish that in fact this would be an undue burden on commerce?

Mr. David Axelrod: Yes.

Justice Felix Frankfurter: Is that right?

Mr. David Axelrod: Yes.

Justice Felix Frankfurter: And the witnesses to that --

Mr. David Axelrod: Many.

Justice Felix Frankfurter: -- do they give testimony and the State crossed-examined them?

Mr. David Axelrod: Yes.

Justice Felix Frankfurter: 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?

Mr. David Axelrod: 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.

Justice Felix Frankfurter: 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.

Mr. David Axelrod: I don't know why they did or didn't --

Justice Felix Frankfurter: 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.

Mr. David Axelrod: We -- we ans --

Justice Felix Frankfurter: 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.

Mr. David Axelrod: Well --

Justice Felix Frankfurter: 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?

Mr. David Axelrod: We take the position that the question of safety before the Court was in issue and we put testimony in -- on that subject.

Justice Felix Frankfurter: But they quoted their argument and said we don't want to play that game.

Mr. David Axelrod: 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.

Justice Felix Frankfurter: 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.

Mr. David Axelrod: I would think that they should be.

It would be foreclosed.

Justice Felix Frankfurter: Why?

Mr. David Axelrod: 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 --

Justice Felix Frankfurter: 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?

Mr. David Axelrod: 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 --

Justice Felix Frankfurter: Well I -- I think they did try.

In addition to --

Mr. David Axelrod: They tried but fail.

Justice Felix Frankfurter: 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.

Mr. David Axelrod: Well, I think they'd have their day in court, Mr. Justice Frankfurter.

Justice Felix Frankfurter: Well, were they -- it wasn't an issue?

Mr. David Axelrod: Well --

Justice Felix Frankfurter: 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?

Mr. David Axelrod: It isn't being left because our record demonstrates the --

Justice Felix Frankfurter: But they did not avail themselves by court --

Mr. David Axelrod: But I can --

Justice Felix Frankfurter: They did not avail themselves (Voice Overlap) --

Mr. David Axelrod: 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) --

Justice William J. Brennan: They left holes in it.

And it's your point is that they ought not to be allowed to amend it.

Mr. David Axelrod: They are not to be allowed to try the case twice after we've shown the error of their ways to them.

Justice Potter Stewart: Mr. Axelrod, this is a case according to your position, is it not, where the entire constitutional issue depends ultimately upon issues of fact.

Mr. David Axelrod: Yes.

Justice Potter Stewart: And in that respect, it's at least an unusual case and that most constitutional case (Voice Overlap) --

Mr. David Axelrod: 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.

Justice Potter Stewart: 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.

Mr. David Axelrod: 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.

Justice Potter Stewart: Yes.

Mr. David Axelrod: 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.

Justice Potter Stewart: That's -- I understand.

And so as a result, we have an unbalanced record factually.

We do have factual findings --

Mr. David Axelrod: Right.

Justice Potter Stewart: -- 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.

Mr. David Axelrod: 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 --

Justice William J. Brennan: Where does this get you Mr. Axelrod if tomorrow -- then the Illinois reenacts the statute -- has an indicated a new statute.

Mr. David Axelrod: If this Court should hold it to be a burden, it could not enact such a statute.

Justice Felix Frankfurter: Mr. Axelrod I'd like to call your attention.

Mr. David Axelrod: It only takes the pronouncement of this Court.

Justice Felix Frankfurter: 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.

Mr. David Axelrod: Bus cases.

Justice Felix Frankfurter: Bus cases.

Mr. David Axelrod: Bus case.

Justice Felix Frankfurter: 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.

Mr. David Axelrod: We have all of that.

Plus, in this record --

Justice Felix Frankfurter: 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.

Mr. David Axelrod: Well, they --

Justice Felix Frankfurter: 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?

Mr. David Axelrod: Perhaps they couldn't contest the facts and that's why they didn't contest the facts.

Justice Felix Frankfurter: Well --

Mr. David Axelrod: They had every right to deny them.

If they wanted to, they could have.

Now, they had every right to do so.

Justice Felix Frankfurter: I think that would have in good pleading a hundred years ago.

Justice Tom C. Clark: On the welding point, is that one of your main points?

Mr. David Axelrod: I beg your pardon.

Justice Felix Frankfurter: The welding point.

Mr. David Axelrod: No.

That is not one of our main points.

Justice Tom C. Clark: On the burden?

Mr. David Axelrod: No.

We have a series of points on the burden and they're all out --

Justice Tom C. Clark: I'll just pass the welding instead, the statute require a welding?

Mr. David Axelrod: 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.

Justice Tom C. Clark: 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.

Mr. David Axelrod: 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.

Justice Tom C. Clark: The States put in evidence on the welding points?

Mr. David Axelrod: 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.

Justice Tom C. Clark: 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.

Mr. David Axelrod: Well, the welding -- the welding was simply the fact that gave rise to the finding but the Court in our case indicated here --

Justice Tom C. Clark: 21 is the one you're referring to?

Mr. David Axelrod: 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.

Justice Tom C. Clark: 25?

Thank you.

Mr. David Axelrod: Thank you.

Chief Justice Earl Warren: Mr. Wines.

Argument of William C. Wines

Mr. 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.

Justice Hugo L. Black: Assuming this case went back would you have any more proof to offer?

Mr. William C. Wines: 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.

Justice Felix Frankfurter: 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 --

Mr. William C. Wines: He did, Your Honor.

He did, Your Honor.

Justice Felix Frankfurter: That was his position?

Mr. William C. Wines: That was his position.

Justice Hugo L. Black: Was that his only position?

Mr. William C. Wines: No sir.

It was (Voice Overlap).

It was a steadfast.

I beg Your Honor's pardon.

Justice Hugo L. Black: 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 --

Mr. William C. Wines: 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.

Justice Hugo L. Black: Well does it --

Mr. William C. Wines: But it says this --

Justice Hugo L. Black: -- 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?

Mr. William C. Wines: 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.

Justice Felix Frankfurter: 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?

Mr. William C. Wines: 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 --

Justice Felix Frankfurter: Then it wasn't because the passage of the Act had foreclosed that question.

Mr. William C. Wines: Yes, I think that was his position.

Justice Hugo L. Black: 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?

Mr. William C. Wines: Oh, yes.

I didn't say that he said it was -- that -- that was the only question.

Justice Hugo L. Black: That was one of his grounds --

Mr. William C. Wines: That was one of his grounds, Your Honor.

Justice Hugo L. Black: 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 --

Mr. William C. Wines: 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 --

Justice Hugo L. Black: What are the kinds of attempt --

Mr. William C. Wines: -- are inherently unsafe.

Justice Hugo L. Black: What other kind of attempt do you now anticipate that could be made other than that they made?

Mr. William C. Wines: 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.

Justice Hugo L. Black: Is it true that there's only one manufacturer here that this is permitted?

Mr. William C. Wines: I don't think the record shows that, Your Honor.

Justice Hugo L. Black: That was alleged wasn't it?

It wasn't alleged that there was only one?

I thought I saw --

Mr. William C. Wines: I don't think so, Your Honor.

Justice Hugo L. Black: -- where the State neither admitted nor denied that there was only one, maybe identical.

Mr. William C. Wines: No, I don't think there's only -- there's only one, Your Honor.

I know the State didn't admit that.

Justice Hugo L. Black: I thought it neither admitted nor denied.

I thought that was what he said.

Justice Potter Stewart: I think if the allegation -- excuse me.

Mr. William C. Wines: I beg your pardon.

Justice Potter Stewart: 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 --

Mr. William C. Wines: 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.

Chief Justice Earl Warren: Suppose Mr. Wines, some place in the record the State did go into the question of a safety factor --

Mr. William C. Wines: There is some testimony.

Chief Justice Earl Warren: -- and did show that there was not as much sideward splash.

Mr. William C. Wines: Yes, Your Honor.

Yes, Your Honor.

Chief Justice Earl Warren: So they did meet the issue and --

Mr. William C. Wines: They did introduce evidence on that.

Chief Justice Earl Warren: Then why didn't they go all the way if --

Mr. William C. Wines: 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.

Justice Hugo L. Black: 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?

Mr. William C. Wines: I would like to confer with the Attorney General before I made that statement.

Justice Felix Frankfurter: May I add a qualification?

Mr. William C. Wines: Yes.

Justice Felix Frankfurter: 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.

Mr. William C. Wines: I would -- in fairness --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. William C. Wines: -- 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.

Justice Hugo L. Black: 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.

Mr. William C. Wines: I should like to confer with him at my very earliest opportunity.

Chief Justice Earl Warren: All right.

You will.

Mr. William C. Wines: 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.

Justice Felix Frankfurter: 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.

Mr. William C. Wines: No.

Justice Felix Frankfurter: No?

Mr. William C. Wines: No.

No, of course not.

Unless Your Honors have some further questions that --

Justice Hugo L. Black: Well, I'd like to ask you one more thing --

Mr. William C. Wines: Yes.

Justice Hugo L. Black: -- 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?

Mr. William C. Wines: 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.

Justice Hugo L. Black: What does yours require?

Mr. William C. Wines: We require the contour-type.

Justice William J. Brennan: Arkansas says that that's unreasonable.

Justice Felix Frankfurter: How many States also require the flat? 24 or 20?

Mr. William C. Wines: They require or permit it.

I think nearly all of them permit it.

Justice Felix Frankfurter: Everybody except --

Justice William J. Brennan: Illinois.

Justice Felix Frankfurter: -- Illinois, is that right?

Mr. William C. Wines: We think that's what the -- that's what the general assembly found and we think the evidence justifies that.

Justice Felix Frankfurter: So that Illinois can determine whether it -- whether it -- everybody else should have margin line with it.

Mr. William C. Wines: Only as to traffic entering Illinois.

And these mudguards --

Justice Felix Frankfurter: Entering and leaving.

Mr. William C. Wines: And --

Justice Felix Frankfurter: Coming and going.

Mr. William C. Wines: 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.

Chief Justice Earl Warren: Mr. Wines, in view of the questions that we asked you, would you let us know as soon as possible --

Mr. William C. Wines: I will.

Chief Justice Earl Warren: -- the position of the State is?

Mr. William C. Wines: 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.

Chief Justice Earl Warren: Yes.

Thank you.

Justice Hugo L. Black: Mr. Axelrod, I evidently made a mistake in writing down the citation you gave, 52 M. C. C. 377.

Rebuttal of David Axelrod

Mr. David Axelrod: 54 M. C. C. 54.

Justice Hugo L. Black: 54.

Mr. David Axelrod: I'm sorry.

Justice Hugo L. Black: 54-377.

Mr. David Axelrod: I'm sorry, Your Honor.

(Inaudible)

Justice Hugo L. Black: Well, I'm -- I'm told it was 337.

Justice Felix Frankfurter: 337.

That's right.

Mr. David Axelrod: It is 54-337.

Justice Hugo L. Black: That's right.

That is correct.

Mr. David Axelrod: Yes.

I'm sorry.