FLORIDA LIME GROWERS v. JACOBSEN

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Argument of Isaac E. Ferguson

Chief Justice Earl Warren: Number 49, Florida Lime and Avocado Growers, Incorporated, et al., Appellants, versus Jacobsen, Director of the Department of Agriculture of the State of California.

Mr. Ferguson, you may proceed.

Mr. Isaac E. Ferguson: May it please the Court.

This case was heard below by a three-judge District Court on the motion of the defendants to dismiss the complaint.

The Court granted the motion and dismissed the complaint for alleged want of jurisdiction.

The Court held that the record fails to show the existence of a justiciable controversy between the parties within the meaning, scope of the judicial power conferred on the federal courts by the United States Constitution.

The appellants are Florida corporations engaged in the interstate marketing of avocados grown in the southern part of Florida.

They complained that their marketing operations are restricted and handicapped by application of a statute of California prohibiting sale in that State of avocados of less than 8% oil content regardless of quality or maturity by any other standards and that the California statute, as applied to their marketing of avocados, is repugnant to the Constitution of the United States.

The appellants invoked three provisions of the Constitution, the Commerce Clause, because the challenged state statute is an unwarranted, impermissible interference with interstate commerce, the Equal Protection Clause of the Fourteenth Amendment, because application of the statute to appellants' avocados results in arbitrary discrimination against appellants in favor of the growers and handlers of avocados grown in California and the Supremacy Clause, because appellants' avocados are marketed under federal regulation and in compliance with the standards of quality and maturity thereby imposed, that is, the Agricultural Marketing Agreement Act of 1937 and the program adopted thereunder by the Secretary of Agriculture, with specific relation to the avocados grown in South Florida and because application of the California statute to these avocados overrides and defeats the policy and program of the Federal Government.

Chief Justice Earl Warren: Did the federal regulations, Mr. Ferguson, affects the -- the oil content in the --

Mr. Isaac E. Ferguson: Well, the -- the -- your -- your question relates to the regulations.

Chief Justice Earl Warren: Regulations.

Mr. Isaac E. Ferguson: To the regulations.

Chief Justice Earl Warren: Yes.

Mr. Isaac E. Ferguson: The statute itself --

Chief Justice Earl Warren: In other words, California says it must have 8%.

Mr. Isaac E. Ferguson: But --

Chief Justice Earl Warren: Is there any comparable regulation on the same -- on the same subject matter in the Federal Government?

Mr. Isaac E. Ferguson: That is the essence of the whole program in this -- in this particular instance.

A marketing agreement may have various other purposes but this marketing agreement as for its main purpose, the fixing of standards of quality and maturity.

They do not include any requirement of oil content --

Chief Justice Earl Warren: Yes.

Mr. Isaac E. Ferguson: -- with respect to these Florida avocados.

The standard is stated --

Chief Justice Earl Warren: Yes.

Mr. Isaac E. Ferguson: -- in the complaint -- in brief.

It has to do with the fixing of the time for picking of the avocados in coordination with the attainment of certain size and weight at a given date when the picking is permitted.

That has been the practice under this program since it was adopted June 11, 1954.

And I -- I say again, Your Honor, in this instance, that is the -- almost the entire purpose of the program because it was adopted for the reason that there was no satisfactory standard in effect in Florida.

But since 1954, there has been a standard, as I have stated, and it does not include oil content because as we set forth, oil content is not valid scientifically as a test of maturity of the Florida avocados.

Our first task to the jurisdiction of this Court granted that the record discloses the existence of a justiciable controversy within the judicial power of the federal courts.

Hearing by a three-judge court was mandatory because the complaint seeks a declaratory judgment and injunction restraining further enforcement against appellants by the officers of California of the statute of that State upon the ground of constitutionality at 28 U.S.C. 2281.

The judge of the District Court, upon consideration of the complaint, convened a three-judge court.

The Court heard and determined the matter in the manner that I have stated.

The case thus heard and determined.

Judicial -- the Judicial Code provides for direct appeal to this Court as a matter of course.

No question was raised in the District Court about the propriety of a hearing by a three-judge court.

This Court, however, appellee Jacobsen, I'm going to say incidentally, Your Honor, somewhere between the filing of motion to dismiss and the filing of this brief we've lost two of the appellees.

And the motion to dismiss was made by three appellees but the brief is by the appellee Jacobsen.

And he argues that the hearing in the District Court should have been held by a single judge only instead of a three-judge court convened pursuant to Section 2281.

Therefore, there is no right of appeal under Section 1253.

The reason stated for this contention is that the complaint questions, the validity of the state statute, as applied to appellants, not only under the Commerce Clause and the Equal Protection Provision of the Constitution but also on the ground of a conflict with an Act of Congress regulating interstate commerce and a marketing agreement in effect thereunder.

This is said not to constitute a claim of unconstitutionality.

And it is urged that because of the inclusion of this claim, the appeal should have gone to the Court of Appeals instead of this Court.

Your Honors, the appellants do not dispute the proposition that if a case does not call for a hearing by a three-judge District Court under 28 U.S.C. 2281 and even if it is heard by such a court, there is no right of direct appeal to this Court under Section 1253.

Therefore, the decisions to this effect cited in appellees' brief are passed without comment.

Only three of the cases referred to by appellees say anything about a conflict between a state law and an Act of Congress.

Lemke versus Farmers Grain Company, 258 U.S., and In re Buder, 271 U.S. and Parker versus Brown, 317 U.S. Lemke versus Farmers Grain Company was heard by a single District Judge and the appeal in the first instance went to the Circuit Court of Appeals.

The complaint in that case was two-fold.

That the North Dakota Grain Grading and Inspection Act of 1919 violated the Commerce Clause of the Constitution, also that it was in conflict with the Federal Grain Standards Act of 1916.

The question was whether the Court of Appeals properly exercised jurisdiction on the appeal from the judgment of the District Court.

And this Court held that in one phase of the case, the constitutionality of the state statute was not involved, only consideration and construction of both the state and federal statutes and their applications to the fact is found.

In the companion case of Lemke versus Homer Farmers Elevator Co., 258 U.S. 65 on a complaint of exactly the same kind, a three-judge District Court granted an injunction restraining the enforcement of the state statute and on direct appeal to this Court, the judgment of the District Court was affirmed.

In re Buder came to this Court on application for mandamus to direct the District Judge who heard the case to allow a direct appeal to this Court as was the practice then in effect.

The litigation arose from a tax levied against the National Bank and its stockholders under a Missouri statute, the constitutional validity of which was not questioned.

However, in -- in 1923, Congress made a new enactment relating to the power of the States to tax national banks and prescribed choice of one of three methods for such taxation.

The bank contented that the State was required to make an election by a new legislation of one of the three permissible methods to tax national banks and had as yet failed to take such action.

And that meanwhile, the state law under which the challenged tax levy was made had become inoperative.

Thus, the issue was whether or not the state law was still enforced, not a question of constitutionality.

Accordingly, a leave to file the petition for mandamus was denied.

Reference to In re Buder was made in the opinion in Query versus United States, 316 U.S. 486.

An action by the United States against the South Carolina Tax Commission to enjoin enforcement of a state statute imposing a license tax for the privilege of selling certain articles as attempted to be applied to the sale of such articles as the United States Army -- Army and Post Exchanges located in South Carolina.

A three-judge District Court granted an injunction, but decided also that the case was properly one for a single judge whereupon the appeal of the tax officers was taken to the Circuit Court of Appeals which affirmed the judgment.

Certiorari was granted by this Court.

The judgment was vacated.

And the cause was remanded to the District Court to enter a new judgment from which a direct appeal could be taken to this Court.

Quoting from the Court's opinion, "If no more than a question of construction of a federal statute had been involved," referring to the Act of Congress giving consent for imposition of certain kinds of state taxes within federal areas, "there would have been no necessity for a three-judge court pursuant to Section 266," citing In re Buder.

The Court went on to say that the complaint was of unconstitutionality of the state law as applied to complainant and that the relief order was predicated upon the same ground.

That the unconstitutionality arose from interference with an activity of the United States.

That the relief purported an injunction against enforcement of a state statute on the ground of unconstitutionality could only have been properly granted by a three-judge District Court, and that appeal did not lie to the Circuit Court of Appeals.

Regulation of the marketing of Florida avocados is now an activity of the Federal Government.

And a state statute interfering with that activity is unconstitutional by virtue of the Supremacy Clause of the Constitution.

At page 23 of appellants' brief, in a long footnote, it is observed that in Parker versus Brown, 317 U.S. 341, the constitutionality of the California Agricultural Prorate Law enacted in 1933 --

Justice John M. Harlan: What page?

Mr. Isaac E. Ferguson: -- 23.

Justice John M. Harlan: Of your brief?

Mr. Isaac E. Ferguson: No, it's the appellees' brief.

Chief Justice Earl Warren: Oh, appellees' brief.

Yes.

Mr. Isaac E. Ferguson: The -- the footnote beginning on that page.

Now, this -- this pertains to a marketing act of like nature with the Federal Marketing Act that was adopted by California in 1933 and it was challenged in that case under the Commerce Clause also as in conflict with the Sherman Act and the Federal Agricultural Marketing Agreement Act of 1937.

That's the jurisdictional situation in that case and the present case is precisely the same.

The appellee urges in the fact that this Court would not have entertained the direct appeal from this judgment of the three-judge court in Parker versus Brown if questions had been raised about this Court's jurisdiction of the appeal, that the question of jurisdiction was passed sub silentio.

From my reading of many decisions of this Court, it would be indeed a rare phenomenon for this Court to pass the question of its own jurisdiction sub silentio.

It did not do so in Parker versus Brown.

I reported in 62 Supreme Court 946 gave the usual preliminary consideration to the question of its jurisdiction and noted probable jurisdiction.

The claim of conflict of the challenged state law with the Sherman Act and the Marketing Agreement Act of 1937 far from deterring exercise of jurisdiction by this Court was apparently deemed a primary interest where on May 11, 1942, the Court made the following order, this cause is restored to the docket for reargument on October 12 next.

In their briefs and on the oral argument, counsel for the parties are requested to discuss the questions whether the state statute involved is rendered invalid by the action of Congress in passing the Sherman Antitrust Act, the Agricultural Adjustment Act as amended or any other Act of Congress.

The Agricultural Marketing Agreement Act of 1937 is in the main merely a reenactment of valid sections of the Agricultural Adjustment Act of 1933.

On the merits, this Court said in Parker versus Brown.

We may assume also that a stabilization program adopted under the Agricultural Act would supersede the State Act.

But the Federal Act becomes effective only if a program is ordered by the Secretary.

The case at bar, the Federal Act has become effective by adoption of a program specifically applicable to the marketing of Florida avocados.

The prayer of the appellants is that the California statute complained of, this case should not be permitted to support this program.

I mention but one more illustrative case on the question of this Court's jurisdiction.

In AFL versus Watson, 327 U.S. 582, Florida's right to work constitutional amendment was complained of under the various sections of the Constitution also as in conflict with the National Labor Relations Act.

The case was heard by a three-judge District Court.

It came here on direct appeal from that Court so that the jurisdictional situation is against same as in this case.

This Court held that the District Court had jurisdiction of the case.

This is suit arising on an Act of Congress regulating commerce and -- and put aside the other alleged grounds of jurisdiction.

It was held further however that exercise of the Court's jurisdiction would be held in offense pending determination by the state courts whether the constitutional amendment was self-executing or required enforcement legislation.

And if legislation was required, to see if in fact it invaded the field of federal regulation.

I come now to the contention that there's no justiciable controversy between the parties.

Justice Felix Frankfurter: Well, have you -- have you finished your discussion of our jurisdiction?

Mr. Isaac E. Ferguson: Supplementing the brief, yes, sir.

Justice Felix Frankfurter: You haven't said anything about the Lemke case is relevant in this problem.

Mr. Isaac E. Ferguson: The Lemke case?

Justice Felix Frankfurter: Yes.

Mr. Isaac E. Ferguson: I say that the ground of the holding in the Lemke case was that in one aspect of the case, there was about only a question of construction of the two statutes and not a question of the constitutionality, the federal and the state, not a question of the constitutional validity of the state statute.

Justice Felix Frankfurter: Suppose -- yes -- suppose a statute violated the Commerce Clause just as you're attacking the statute.

Mr. Isaac E. Ferguson: That is true.

But as --

Justice Felix Frankfurter: But the whole point -- the whole point of the decision of the Supreme Court, this Court, and I should like to point out that they were sitting on that Court at least three justices who had special competence in the field of jurisdiction.

Justice Brennan, Justice Day and Brandeis, the whole point was that there was a constitutional question, a clear constitutional question.

There was also a claim that under the Supremacy Clause, the North Dakota grain statute would appeal to the federal grain statute.

But before you got to that, you have to consider both the federal statute as a matter of statutory construction and construe the North Dakota statute.

And that case hold that any holdings can be clear and unequivocal that unless there is an exclusively constitutional question, you can't come here directly.

That's what that case -- that you can go rather to the Court of Appeals and can't come here directly.

You must go through the Court of Appeals.

Isn't that true?

Am I wrong about this?

Mr. Isaac E. Ferguson: May I say this first, Your Honor.

There have been many, many cases decided since the Lemke case and as I have pointed out there are cases where over and over again, the case comes here on direct appeal from the three-judge court where there is joinder of the claim of violation of specific clauses of the Constitution and -- and interference or a violation in conflict with the federal statute.

Justice Felix Frankfurter: Have you enumerated these many, many cases?

Mr. Isaac E. Ferguson: Oh, I have cited.

Justice Felix Frankfurter: Where -- where are they in your brief?

Mr. Isaac E. Ferguson: I -- I have cited these because this is a point --

Justice Felix Frankfurter: In Parker against Brown, when you say that this Court, with all your reading of the cases, practically never decide the question of jurisdiction sub silentio.

It often does so and passed on itself from the day with Chief Justice Marshall.

He overruled the case in which they did decide jurisdiction sub silentio and said so.

That it was decided sub silentio and therefore wasn't given attention and therefore they reexamined it and found they were wrong.

Mr. Isaac E. Ferguson: I have cited the two orders of this Court which show that in that case, it was not passed sub silentio.

Justice Felix Frankfurter: You mean in Parker and Brown?

Mr. Isaac E. Ferguson: Yes, Your Honor.

Justice Felix Frankfurter: Was it discussed?

Mr. Isaac E. Ferguson: It -- it was heard, it was considered.

Justice Felix Frankfurter: You mean the jurisdictional question?

Mr. Isaac E. Ferguson: Yes, Your Honor.

I have cited the two --

Justice Felix Frankfurter: You read -- you read the question we put on the -- in putting the case down for rehearing and unless my ears betray me, that (Voice Overlap) --

Mr. Isaac E. Ferguson: I read it first.

Justice Felix Frankfurter: What?

Mr. Isaac E. Ferguson: I read first the ruling of probable jurisdiction.

Justice Felix Frankfurter: Yes, I know but that isn't discussion.

Mr. Isaac E. Ferguson: Well, that would means --

Justice Felix Frankfurter: That is not consideration.

Mr. Isaac E. Ferguson: -- that they --

Justice Felix Frankfurter: That is not consideration.

That is in the multitude of cases that come before the Court with more than once.

We will not focus our attention on the jurisdictional question.

Mr. Isaac E. Ferguson: I -- I take it, Your Honor, that indicates that the rules of the Court were observed, that the jurisdictional statement was filed, and that some answers were made to it, and that the matter had the consideration of the Court.

Justice Felix Frankfurter: That's what you must -- you must, I think, contend that the Lemke case has been overruled.

Mr. Isaac E. Ferguson: Well, not if I take the language of the Court itself.

This Court said that in one phase of the case, there was no constitutional question.

Justice Felix Frankfurter: Well, that's true here.

In one phase of the case, there is no constitutional question in the sense that you must construe the California statute before you reach the Supremacy Clause.

Mr. Isaac E. Ferguson: Well, if it were a question of construction.

But there is no question of construction.

Justice Felix Frankfurter: Well, you say then.

Mr. Isaac E. Ferguson: Well, I --

Justice Felix Frankfurter: But before we ever invalidate a state statute on the ground of preemption, we must construe what the scope of the state statute is or take the state court's view it or construe the scope of the federal question or the implementing regulation that the Chief Justice's question is indigent.

The -- the Marketing Act doesn't deal at all with oil content as such, that's corrected either.

Is that correct?

Mr. Isaac E. Ferguson: No, because it adopts a different standard.

Justice Felix Frankfurter: I understand that but you must construe whether the fact that the Marketing Agreement doesn't deal at all with oil content whether that's the plan's entirely the right of the State to deal with it.

We must construe what the scope of that is before we get to your constitutional question.

Mr. Isaac E. Ferguson: I beg Your Honor's pardon, but I would state it otherwise.

I would say that you have a federal law that takes over the regulation and establishes standards that no state law can overturn that federal law.

Justice Felix Frankfurter: I don't disagree with you at all.

But that general proposition doesn't deal with the problem that we have in this case or had in Lemke case, namely, before you decide that the state statute has overruled it and has overturned it, you must construe both the state statute and the federal statute.

Mr. Isaac E. Ferguson: I would say, Your Honor, I -- I --

Justice Felix Frankfurter: I'm not saying you're wrong.

All I'm saying is that Lemke is flat the other way and you must contend that that case must be overruled and should be overruled explicitly if that's -- if it has been overruled.

Mr. Isaac E. Ferguson: If that is the Court's opinion, I would not disagree with it, but --

Justice Felix Frankfurter: I -- I can't speak for the Court.

Mr. Isaac E. Ferguson: -- I would say that the Court in that case and in its subsequent expressions indicated that there was one phase of that case that the Court of Appeals could consider.

Justice Felix Frankfurter: And that's true here, as I've said three times.

It's true here that before you get to the Supremacy Clause, you must get to the construction, the scope, the meaning, the applicability, call it what you will, of the California law and the Federal Act of 1937 if it's 1937.

Mr. Isaac E. Ferguson: I -- I would say that when you have a case and it is determined that the case was properly one for a hearing by a three-judge District Court under Section 2281, then you also have a case that is appealable directly to this Court under Section 1253.

There were other reasons.

Justice Felix Frankfurter: I am saying no more than -- that Lemke decides the contrary.

Mr. Isaac E. Ferguson: Lemke, Your Honor, was heard by a one judge court.

Justice Felix Frankfurter: No, it wasn't.

It was decided and heard by three judges upon filing its bill complainant move for a temporary injunction which application was heard before three federal judges.

Mr. Isaac E. Ferguson: That I -- is in the companion case --

Justice Felix Frankfurter: No, Lemke --

Mr. Isaac E. Ferguson: -- Lemke versus Homer's --

Justice Felix Frankfurter: That's for the Lemke case.

Mr. Isaac E. Ferguson: May I beg to have Your Honor's citation of the case?

Justice Felix Frankfurter: 258 U.S. at page 52.

Mr. Isaac E. Ferguson: And at -- at page --

Justice Felix Frankfurter: That's page 52.

That's the page on which the sentence appears which I quoted.

The initial page is 50.

Mr. Isaac E. Ferguson: Then follows page -- at 265 where an injunction -- by the way, also in the Lemke case, there was no application for injunction.

Justice Felix Frankfurter: Yes, there was.

The Court denied this motion.

A motion to dismiss was filed.

The Court denied it.

The motion granted a temporary injunction.

Justice William O. Douglas: I think your -- what your concern about is a the three-judge court acted on temporary injunction where a single judge acted on permanent injunction in view of the state of the statute as it was at the time (Voice Overlap) --

Mr. Isaac E. Ferguson: That's right, it was -- that is right, Your Honor.

Justice Felix Frankfurter: But I don't see how that's -- in this remotest way affect this problem because under the 266, the defense was you have to have three judges to grant a temporary injunction.

And that the statute that Mr. Justice Douglas says was later amended so as to require also three judges to grant a permanent injunction.

Mr. Isaac E. Ferguson: Your Honor, I'm -- I'm content to rest --

Justice Felix Frankfurter: Don't take your time.

I think (Voice Overlap) --

Mr. Isaac E. Ferguson: No, I would like to --

Justice Felix Frankfurter: -- problem.

And you don't want (Voice Overlap) --

Mr. Isaac E. Ferguson: I -- I appreciate the questions the Your Honors put in.

And I'm willing to submit it on this basis.

The Court deems that the Lemke case should be overruled well and good.

And if not, then the Court must overrule scores of decisions in which unconstitutionality has been grounded upon conflict with federal regulation.

Justice Felix Frankfurter: I don't think there are such scores of cases if you let me say so and to the extent that there are, they weren't considered.

That does not constitute a Lemke case and for myself, I would not overrule it because I don't think I would overrule a procedural decision that I stood all this time untouched except when -- when the Court has inevitable human institution hasn't heeded that decision.

Mr. Isaac E. Ferguson: Well, I -- I say again that the Court in its own language said that in that phase of the case, no question of constitutionality was involved.

Now, if that --

Justice Felix Frankfurter: Go on.

Mr. Isaac E. Ferguson: -- statement is inaccurate, it's not my statement, it is rather of the Court.

Our case is akin to the recent decision in Public Utilities Commission of California against United States, 355 U.S. 534, which a state law empowering the Utilities Commission to decide under what conditions a common carrier will be permitted to transport property at reduced rates as against federal statutes and regulations related to government procurement of property or services.

A three-judge District Court granted injunction.

The case came here on direct appeal and the decision was affirmed.

That case, an activity of the United States, as I stated in -- in AFL versus Watson is overruled, overwritten by a state regulation.

It wasn't a question of how this regulation would work in practice although some of the judges of this Court thought that they ought to wait and see how it would work.

But the -- the essence of the opinion was that the very existence of that statute was under the terms with the Government's operations.

That's what we have in this case.

There is no room for a construction hearing.

If there are no further questions on the subject of this Court's jurisdiction of the appeal, I take the interrelated questions which frankly I assume for the reason or the form of the order in this case and if there's not a justiciable controversy, there's none for any court or in this Court.

So I come to that question.

Now the decision of the District Court that there's no present controversy turns on, on one fact that in past instances, when avocados shipped by appellants to California have been barred from sale in that State because it failed to pass the 8% oil test, appellants have availed themselves of leave to reship the avocados to some other State instead of submitting them to destruction as a public nuisance in the manner provided by Section 785 of the Agricultural Code of California.

According to the opinion of the District Court, only in an abatement proceeding under Section 785 could a threatened justiciable controversy arise with respect to a shipment of California -- to California of Florida avocados of less than 8% oil content.

Somehow, the question of constitutionality of California's 8% oil content law an application to Florida-grown avocados would have to erase and passed upon in the state court proceeding the kind provided in Section 785 for abatement of perishable fruit.

There are two short answers to the holding of the District Court.

First that the proceeding provided by Section 785 relates only to conformity or nonconformity of the fruit or other products granted as a public business.

And second, if an issue of constitutionality of the standardization provision would be raised in such a summary proceeding, it would be a judicial issue and not an administrative issue.

And the result of the District Court's ruling would be to compel the appellants to try such judicial issue in a state court notwithstanding the Act of Congress granting recourse to a federal court for trial of such issue.

On the facts alleged in appellants' complaint, now followed by evidentiary matter and depositions and in answers to interrogatories and on the decisions of this Court cited in division two of appellants' brief, it is submitted that the decision of the District Court is erroneous and that there exists a present and substantial controversy between the parties regarding the constitutional validity of California's 8% oil content requirement as applied to the Florida avocados handled by appellants.

In appellees' brief at page 12, it is said, "Appellants make no claim of personal wrongdoing against appellee regarding past shipments to California and these transactions are closed."

If this means that appellants are not suing the Director of Agriculture for damages in this action, that is true.

But there is indeed a claim of personal wrongdoing against appellee regarding the past shipment of appellees' avocados to California apart from sale in that State by appellee and its subordinates, that because of the utility of a legal remedy for such a wrongdoing, appellants are seeking equitable relief.

And at page 12 of appellees' brief, it has said also that appellants have not in any time violated the California law.

The -- the standardization provision of the California Code relating to avocados is Section 792, which is page 6 of the appendix to appellants' brief.

One of the enforcement provisions is Section 784.

This Section states what acts are unlawful if the fruit or other product is nonconforming.

There are 10 verbs in Section 784 specifying the acts prohibited with respect to nonconforming products, namely, to prepare, pack, place, deliver for shipment, deliver for sale, load, ship, transport, cost to be transported for sale.

The complaint and deposition showed that appellants have made shipments of avocados to California only when pretesting indicated probability that the avocados would pass the California 8% oil test.

But these were almost all avocados of but one variety out of the many varieties of the fruit grown in Florida, and that even these limited shipments could not be ventured until late in the marketing season.

But that despite all cautions, there were 12 specific instances in which the appellants shipped to California avocados, there are found to be of less than 8% oil content.

When the avocados reached the point of destination in California and where they're tested for oil content found to be nonconforming, they were tagged as nonconforming by the enforcing officer and held under official control for further proceedings.

At the moment the avocados were so tagged, they were condemned as a public nuisance subject to prompt for abatement as provided in Section 785 of the Agricultural Code unless reconditioned.

Justice Charles E. Whittaker: How do you recondition (Inaudible)

Mr. Isaac E. Ferguson: It's beyond my imagination, Your Honor.

In the first place, you can't raise the oil content of a load of avocados.

And you can't, in any visual way, pick out those that have less than 8% oil content.

Justice Charles E. Whittaker: (Inaudible)

Mr. Isaac E. Ferguson: There is no way of knowing to make such a judgment by external cares.

Justice Charles E. Whittaker: (Inaudible) would be destroyed.

Mr. Isaac E. Ferguson: That's exactly what I argue.

Chief Justice Earl Warren: Had they ever had any -- any procedure for doing it?

Have they ever tried to recondition them as the term is used?

Mr. Isaac E. Ferguson: You mean the appellants here?

They put --

Chief Justice Earl Warren: Yes.

When -- when the State has challenged them and you spoke of 12 instances where they --

Mr. Isaac E. Ferguson: Yes.

Chief Justice Earl Warren: -- have been challenged.

Now, I wonder if any of those, there -- there has been any so-called reconditioning the process engaged in --

Mr. Isaac E. Ferguson: It was not found --

Chief Justice Earl Warren: -- abatement.

Mr. Isaac E. Ferguson: -- to be practical.

No practical --

Chief Justice Earl Warren: Yes.

Yes.

Mr. Isaac E. Ferguson: -- way.

Chief Justice Earl Warren: Well, it just hadn't been done.

Mr. Isaac E. Ferguson: No.

I -- I called your attention, Your Honor, to the fact that this provision for reconditioning --

Chief Justice Earl Warren: Yes.

Mr. Isaac E. Ferguson: -- is not in the statute with specific relation to avocados.

Chief Justice Earl Warren: Yes.

Mr. Isaac E. Ferguson: It's in the statute in relation to all products as to which there are standardization provisions.

And there's -- in many instances, there might be reconditioning, a very prompt reconditioning.

Chief Justice Earl Warren: They're repacking in some --

Mr. Isaac E. Ferguson: Yes.

Chief Justice Earl Warren: -- in some --

Mr. Isaac E. Ferguson: It might be the container.

Chief Justice Earl Warren: -- might (Voice Overlap) --

Mr. Isaac E. Ferguson: It might the method of packaging.

Chief Justice Earl Warren: Yes.

Mr. Isaac E. Ferguson: And it might be external climate issues.

Chief Justice Earl Warren: Yes.

Yes.

Mr. Isaac E. Ferguson: But --

Chief Justice Earl Warren: But not in avocados, it couldn't be done per se.

Mr. Isaac E. Ferguson: I know of no way, Your Honor, that it could be done.

Moreover, it -- it wouldn't meet the fundamental proposition that we're only talking about those that were expected to meet the 8 -- 8% oil test while there are varieties of Florida avocados of high grade, which make no more than 2% oil content.

You can eat them here.

[Laughs]

You cannot get them in California.

By a grace of a regulation made by the Director of Agriculture, it was permissible to send the load of nonconforming avocados to an out-of-state destination under a written authorization by the enforcing officer and under official surveillance to the point of exit from the State.

When a load of avocados goes from Florida to California because their tag is nonconforming, the sender has done all but one of the acts forbidden by Section 784 of the Agricultural Code.

He has placed the nonconforming avocados within the State, caused them to be transported and delivered from them for sale.

It is at this point that control of the fruit is taken over by the enforcing officer.

Only the final act is not done, consummation of sale in California.

Reshipment of the condemned avocados to an out-of-state destination in the hope of salvage does not undo what has happened in California.

Neither the acts of appellants and they are kept to consummate sale of the fruit in California nor the acts of the California officers in applying to appellants' avocados the provisions of the challenged statute.

Appellants cite the decision in Evers versus Dwyer, 358 U.S. 202 in support of jurisdiction both the District Court and this Court in the present case.

In appellees' brief at page 27, it has said, “The plaintiff in Evers versus Dwyer, a Negro, immediately violated the Memphis segregation ordinance at the moment he seated himself in the front portion of the public bus.

At this point, the justiciable controversy came into existence.

The facts which were formed the basis of the litigation were fixed and would never be more concrete.

If the plaintiff had been arrested, put to trial for a violation of an ordinance or statute, there might have been an issue as to the precise act by which the offense was committed.

But the controversy with which this Court was concerned was not that of guilt or innocence of the bus passenger in the particular occurrence.

The matter with which this Court was concerned was the constitutional validity of the Tennessee statute requiring segregated seating arrangements according to race in public buses.

In the incident that prompted the plaintiff to file his action for declaratory judgment and injunction in the federal court, the facts noted were that when plaintiff seated himself at the front of the vehicle, the driver told him to move to the rear and that this was required by law because of his color.

And that following the plaintiff's refusal to comply, two police officers boarded the bus and ordered the plaintiff to go to the back of bus or get off or be arrested.

And that thereupon, the plaintiff left the bus.What gave rise to the justiciable controversy regarding the constitutionality of the Tennessee statute was not simply the fact that the plaintiff sat down in the front part of the bus, but that the driver of the bus and the police officers clearly manifested the intention of the persons in charge with the bus to enforce the State's segregation statute in a manner denying to plaintiff and the class of persons in whose behalf he sued use of the public buses without discrimination and humiliation because of racial origin.

The crux of the Court's holding is in this sentence.

A resident of a municipality who cannot use transportation facilities therein without being subjected by statute to special disabilities necessarily has, we think, a substantial, immediate and real interest in the validity of the statute which imposes the disability.

Fundamental principle, the jurisdictional situation, the case at bar is the same.

Appellants who are engaged in nationwide marketing of Florida avocados, under the agents of the Federal Constitution, complained that they are subjected to commercial handicap and discrimination by a California statute barring sale in that State of avocados with less than 8% oil content.

And it is submitted no sacrificial offering of a load of avocados is needed to prove that appellee and his subordinates have for years enforced California's oil content requirement against avocados coming from Florida and will continue to enforce this requirement so long as the statute remains in force, unless stayed by declaration or writ of court.

In this case, in contrast with Public Commission of Utah versus Wycoff Company, 344 U.S., there is absolute certainty of the matter in which the challenged state regulation applies to the marketing of Florida avocados.

The prohibition against sale in California of avocados with less than oil -- 8% oil content is unqualified and without exception regardless of place of origin, quality, maturity or federal regulation.

There is contrast in this respect between the avocado section of the California code and other sections of the same code.

For example, the standardization provisions relating to containers of fruits, nuts and vegetables are expressly declared inapplicable to shipments from outside the State in containers established as standard by the applicable laws or regulations of the United States at Section 788.

The standardization provisions says as to apples, it was revised in 1957, are declared inapplicable to apples shipped into California from other States if accompanied by an official certificate stating that such apples have met the maturity requirements of the state of origin, Section 827.7.

Other standardization provisions of the Code give effect to inherent differences between varieties of the fruit are -- are differences arising from growing conditions, different regions of the State making one standard for this geographical division as a different standard for the other geographically division.

Also some of the standards allow a 5% or 10% tolerance.

The 8% oil requirement for avocados is quite unique and it start rigidity thus emphasizing the arbitrary disregard of applicable horticultural factors.

I shall respond to one other point in appellees' brief.

It's argued aside from the question whether or not there is a justiciable controversy, I hope the Court will not have much trouble with that word as I have many, that appellants have not shown danger of great and irreparable injury, therefore, are not entitled to the equitable relief right in their complaint.

I quote from page 33 of the appellees' brief, “It is significant that appellants have never applied for interlocutory relief during the two years that have elapsed since they filed their complaint.

This a further indication that appellants are not suffering the kind of immediate injury which will prompt a federal court to exercise its equitable powers in the suit to enjoin public officers from the enforcement of the state law.”

The appellants' complaint was filed November 13, 1957.

And actually, the complaint was filed by the defendants on December 6, 1957.

Depositions of various witnesses accounting for 335 pages of the printed record were taken in Miami, Florida January 1958.

Interrogatories were served by both the plaintiffs and the defendants.

On February 24, 1958, appellants filed a motion appearing on page 29 of the record requesting the Court to set the action for trial at the early convenience of the Court and stating the reasons for this request.

Paragraphs 5 and 6 of this motion showed that all depositions intended to be taken have been taken.

And that other discovery procedure could be completed within a time limited by the Court.

Paragraph 4, I quote, “The next marketing season for the avocados handled by plaintiffs commences about July 1, 1958.

Therefore, the action is of emergency nature.”

And then the concluding paragraph, number 7, “This request to set the action for trial is made in lieu of an application by plaintiffs for an interlocutory injunction since the hearing of such application may be obviated by plenary trial of the action and entry of a final decree.”

This motion was still pending April 18, 1958 when the three-judge court first came into session.

There was then also pending the motion of the defendants to dismiss the complaint.

The latter motion was heard and taken under advice consequently the motion to set the case for early trial received no attention.

Eight months passed before the Court announced the ruling which accounts for this appeal, eight months during which the appellants could do nothing further in the case.

The further statement on page 33 of appellees' brief is quite ironic, that if a justiciable controversy exist, appellants could have sought declaratory relief in the Superior Court of the State of California and that under this remedy, appellants would be entitled to an expeditious hearing of their case.

The implication seems to be that speedier justice is obtainable in the Superior Court of California and in the District Court of United States for the Northern District of California.Be that as it may, I submit to Your Honors that the appellants have not been lacking in diligence in seeking the equitable relief for which they pray in their complaint.

I submit also that there is a point in showing that the record of this case without need of an added sacrifice, that appellants at the present continuing in substantial interest in the question of the validity of the California statute of which they complained.

Thank you, Your Honors.

Chief Justice Earl Warren: Mr. Fourt, you may proceed.

Argument of John Fourt

Mr. John Fourt: Mr. Chief Justice and Honorable Associate Justices.

This case involves an exotic fruit, avocado.

The appellee has not had an opportunity to present this case on the merits, this posture of the case being ruled on in a matter of a motion to dismiss.

I should like to briefly describe what the case is about and what the contentions are of the parties.

Avocados are a fruit which you use for food.

Avocados are grown both in Florida and California.

They're utilized by the housewife mainly in green salads.

The housewife purchased an avocado in the store when it's hard.

In room temperature at home, it softens.

It is very difficult for the housewife to tell of the maturity of the avocado from the time she buys it.

The avocado is hard.

Touch does not indicate maturity.

Appearance does not indicate maturity.

The oil content of an avocado increases as the avocado matures.

California, since 1925, has required that all avocados sold in the State contain a minimum of 8% oil content.

The purpose is to protect the consumer of California.

The device of ensuring a minimum oil content is a guarantee of maturity, we believe, is a reasonable device to ensure that protection.

Chief Justice Earl Warren: Has there been inspection of California avocados to accomplish that result?

Mr. John Fourt: I do not understand the question.

This -- this testing program has continued since 1925.

Chief Justice Earl Warren: Yes.

Well, I say there -- has there been a -- a testing program going along -- I -- as I -- as I understand that most of the avocados that are used out in California are -- are raised in California.

Mr. John Fourt: Yes, that is correct.

Chief Justice Earl Warren: Have those California avocados been tested since 1925 as a matter of procedure to -- to see that they are -- contain 8% or more of --

Mr. John Fourt: Yes, that is correct.

Chief Justice Earl Warren: They -- they do?

Mr. John Fourt: Yes.

This requirement applies to all avocados sold in California irregardless of origin even avocados from Cuba or Hawaii.

The appellants' contentions are that the California statute constitutes a discriminatory trade barrier that of the California statute conflicts with a controlling federal statute.

On the merits, appellee contends that the California statute is not discriminatory, that if the opportunity presents itself we will show that over 95% of the Florida avocados by volume will comply with the California statute.

That Florida avocados have been successfully reconditioned upon inspection in California and as reconditions have met the California statute.

Justice John M. Harlan: (Inaudible)

Mr. John Fourt: Avocados upon arrival in California can be divided by size, that is size 12, 14, 16 and 18.

The -- this practice experience that is the smaller size avocados that fail to meet the inspection.

First, the shipper-handler removes the lower -- the smaller size avocados from a lot.

That eliminates that problem.

Further, they make oil test on avocados in the containers in the lot and they will find a variation in the lot that is some logs of avocados will comply and others will not.

They take an adequate sample of logs and log, say, one avocado, 14 will pass generally and the rest of the avocados and the log will pass.

The avocados then that did not pass are reshipped.

Those that will pass will be marketed freely in California.

Justice Charles E. Whittaker: (Inaudible) not to pay or reconditioned but they are culled.

Mr. John Fourt: That is correct.

The term "recondition" in the California Agricultural Code means to bring in to compliance regardless of the commodity, regardless of the defects.

It may be rotten, it may be oil content, anything to bring in compliance, you recondition it.

Justice Charles E. Whittaker: And throughout (Inaudible)

Mr. John Fourt: That -- that is correct.

Justice William J. Brennan: Did you say the -- the similar process apply to home grown avocados?

Mr. John Fourt: Identical -- identical process.

Justice William J. Brennan: And do -- percentage wise, do more than pass than imported ones?

Mr. John Fourt: The record show that 96% of the avocados shipped by appellants to California have complied with California law.

The California ambers do not have that in the record.

Justice Felix Frankfurter: Is there a suggestion of discriminatory treatment of the home market?

I mean in the pleading, is one of the claims on the basis of which an injunction is sought is equal -- probably suggested that they treat discriminatorily, favorably the home market as against the Florida market?

Mr. John Fourt: That is the claim of the appellants.

Justice Felix Frankfurter: Well, does it explicitly said that the inspectors and so on shut their eyes to California?

Mr. John Fourt: No.

Justice Felix Frankfurter: I just want to know whether that's -- that's in the --

Mr. John Fourt: No.

Justice Felix Frankfurter: -- allegation.

Mr. John Fourt: No.

The appellants specifically take the position they do not contest the inspection procedure in California.

Chief Justice Earl Warren: They do not what?

Mr. John Fourt: Contest the inspection procedure in California.

Chief Justice Earl Warren: Oh, I see.

Justice Felix Frankfurter: And they do not contest the operation.

Does that mean they do not contest the operation of the inspection procedure?

Mr. John Fourt: They contest the application of the oil test, the 8% oil test.

They do not contest the determination as to whether the Florida avocados comply with this law.

Justice Felix Frankfurter: But is there a suggestion that the oil test is not applied to California when in fact it is applied to Florida?

Mr. John Fourt: None.

Justice Felix Frankfurter: That's what I mean by the equal problem.

Mr. John Fourt: The threshold question before this Court is whether this Court has appellate jurisdiction to hear the case.

The appellate jurisdiction depends on whether a three-judge court was necessarily contained in this case.

A three-judge court was convened.

We do not believe it was necessarily convened.

Appellants have joined a claim of unconstitutionality of the state statute where they claim that the state statute conflicts with a controlling federal statute.

The issue or the claim that a state statute is superseded by a controlling federal statute does not raise a constitutional question.

Justice Felix Frankfurter: It may.

It may raise a constitutional question.

Mr. John Fourt: It may but not necessarily so.

Justice Felix Frankfurter: Yes.

Mr. John Fourt: Now, that was the square holding of the -- of this Court in Lemke versus Farmers Grain Company and --

Justice Charles E. Whittaker: Would you mind telling us that claim?

Mr. John Fourt: The claim that the state statute conflicts with a controlling federal statute does not necessarily raise a constitutional question.

Justice Charles E. Whittaker: By the law.

Mr. John Fourt: That is correct.

The -- as explained by Justice Day, the Court was to construe the federal statute, construe the state statute and compare the two.

The language of Section 28, United States Code 2281, does not answer the problem here presented, that is does the three-judge procedure in the District Court necessarily apply where a constitutional claim is joined with a non-constitutional claim?

The language states that the attack should be on the ground of the unconstitutionality of such statute.

If such a ground exists, in and by itself, there can be no question.

Our position going to the essence of our case if that -- if other issues are joined that one, the case -- the injection of the non-constitutional case goes beyond the language of the statute.

That the injection of the other issues would produce an anomalous result, third, that this statute was designed to protect the States from the -- the precipitous action of a single judge federal court was not designed as a statute of broad social policy such as the Workmen's Compensation statute, that the language is ambiguous, the statute is ambiguous.

It needs construction that -- allowing the joinder of the constitutional and non-constitutional issues would broaden the statute beyond the language and broaden it to produce anomalous result.

Now, here is the anomalous result.

If a non-constitutional issue is joined with a constitutional issue, the District Court is based -- is faced with the rule, basic rule that if at all possible, a constitutional issue will be avoided.

So in this case, the three-judge court, if at all possible would based its decision on the conflict between state and federal law, we then have -- would have a anomalous situation of a three-judge court convened to hear a constitutional issue but deciding it on a non-constitutional issue.

Justice Charles E. Whittaker: And in that case, you would go to what court?

Mr. John Fourt: To the District Court of Appeals.

Justice Charles E. Whittaker: To the Court of Appeals.

Mr. John Fourt: Yes, to the Court of Appeals, yes.

That is correct.

Justice Charles E. Whittaker: (Inaudible) decided the case on the other Court of Appeals, namely, (Inaudible) constitutionality of the state statute if it would come here (Inaudible).

Mr. John Fourt: That is not --

Justice Charles E. Whittaker: (Inaudible)

Mr. John Fourt: That is not our position.

Our position is that this is a technical statute covering a special limited situation.

If the plaintiff, in framing his complaint, takes the case out of the statute, the single judge may hear both the constitutional and the non-constitutional issues.

This Court has always nearly construed the statute so that it does not cover all attacks on state statutes even though an injunction is sought against the state officer.

Justice Charles E. Whittaker: (Inaudible) a question of constitutionality of state statute.

Mr. John Fourt: Nothing.

The statute is ambiguous and therefore it requires construction.

Our position is that that construction should be narrowed because of the limited purpose of the statute to protect the States against the one judge superior court in granting an injunction on the grounds of unconstitutionality.

Conceivably, the Court may disagree with us.

But in doing so, it will increase the burden of the District Courts because they let to convene three judges, one of whom must be a member of the Court of Appeals.

And secondly, the obligatory burden of this Court would be increased.

Now, those questions do not relate to construction, they relate to the type of construction given by the statute which we believe should be narrowed.

Justice Charles E. Whittaker: How can that be avoided?

(Inaudible) the unconstitutionality of the state statute, a three-judge (Inaudible) three-judge court could possibly convene, is that right?

Mr. John Fourt: This Court has not construed the case in -- in different situations.

For example, a state statute maybe attacked as unconstitutional.

If the defendant is a municipal officer and the issue is local, the Court has held that the three-judge procedure does not apply.

Basically, the three-judge procedure does not relate to the jurisdiction of the District Court.

The District Court obviously can decide all the issues before it assuming a substantial federal question.

The question is here.

Must a one-judge federal court or a three-judge federal court decide a case of a constitutional together with non-constitutional issue?

Justice Charles E. Whittaker: And if one (Inaudible) is the unconstitutionality of the state statute -- three-judge court.

Mr. John Fourt: We do not hold that position.

Justice Felix Frankfurter: Well, I am not sure (Inaudible) Justice Whittaker was if merely it was -- if the sole issue of the constitutional question, then there must be a three-judge court.

Mr. John Fourt: Yes, that is correct.

Justice Felix Frankfurter: If you say that if -- if a non-constitutional question whether -- and in Parker and Brown of the (Inaudible) but if -- if there's a non-constitutional question which initially calls for a statutory construction as to the scope of the local statute and or the scope of the federal statute then you say since local matters may determine the issue, local judges (Inaudible) go to the Court of Appeals (Inaudible)

That is your position.

Mr. John Fourt: That -- that is our position.

Justice Charles E. Whittaker: Now, what -- and that you claim that make such charge but also makes an independent charge that the state statute is unconstitutional for violation of the Commerce Clause (Inaudible) a three-judge court (Inaudible)

Mr. John Fourt: If I understand the question not only if -- if the complaint raised only a constitutional question, then a three --

Justice Charles E. Whittaker: (Inaudible)

Mr. John Fourt: No, then it would taken without the statute.

Justice Felix Frankfurter: We have (Inaudible)

Justice Charles E. Whittaker: Then a single judge court could declare a state statute to be unconstitutional?

Mr. John Fourt: That is correct.

For example, in the Wycoff case, this Court by -- by necessary implication held that a -- a case attacking a state statute on grounds of unconstitutionality but asking only for declaratory relief would be heard, properly heard by a one judge court.

Justice Felix Frankfurter: But we haven't -- we haven't decided, have we, Mr. Fourt?

This Court has not yet decided, what the answer as to Justice Whittaker's question.

Mr. John Fourt: That is correct.

Justice Felix Frankfurter: We have not yet decided.

We have decided in Lemke.

And that's what Lemke decided that when there is, as they set forth and as the opinions of the -- of the Court of Appeals' opinion makes clear and just to say that one, an attack under the Commerce Clause, that too along, there'd be no problem.

Mr. John Fourt: That is correct.

Justice Felix Frankfurter: Two, in conflict with the federal Grain Inspection Act, then they held that it's (Inaudible) come of him, you can go to the -- you should go to the Court of Appeals.

Mr. John Fourt: That is correct.

Justice Felix Frankfurter: And the point is emphasizing that case by the concurring opinion of Mr. Justice Brandeis was joined by two others.

The Court, throughout the statute, is unconstitutional.

Mr. Justice Brandeis sort of concurring opinion not invalidating the statute but merely saying that some provisions of the statute leaving the rest of the statute are in conflict, is that right?

Mr. John Fourt: That is correct.

To our knowledge, no subsequent case has brought in to question that holding of Lemke.

Justice Charles E. Whittaker: How could Congress be much more plain than it has been in 2281 saying that no injunction against any state statute shall be granted by any District Court or judge thereof upon the ground of unconstitutionality of such statute unless the application therefore is heard and determined by a District Court of three judges?

Mr. John Fourt: In analogous statutes dealing with the obligatory jurisdiction of this Court, for example, 28 U.S.C. 1254 and 1257, the Court -- the Congress has used the words “attack on a state statute as repugnant to the Constitution, treaties or laws of the United States.”

Congress has recognized the difference between an attack on a state statute on the grounds of some constitutionalities and an attack on a state statute on the grounds that it -- it conflicts with the controlling federal law and both of these -- one statute pertains to a direct appeal to this Court from the Court of Appeals, the other statute, using the same language, refers to a direct appeal to this Court from the highest state court.

Justice Felix Frankfurter: As I remember it, the earlier statute of this Court obligatory jurisdiction gave a direct review from the District Court.

This is before the three-judge regarding this (Inaudible) gave a direct review to this Court from the judgment of a District Court when there was a declaration -- adjudication of unconstitutionality.

And this Court said that that would mean that every constitutional question can be brought and come here only if it's exclusively (Inaudible) if it found it was (Inaudible) then you go to the Court of Appeals.

Mr. John Fourt: That is correct.

Justice Felix Frankfurter: But I think -- I think you want to elaborate what you said earlier that this was a question of construction and bearing on the construction in answer to Justice Whittaker's question, wouldn't you call on the legislative history of this statute?

That this concerned with Congress didn't have this kind of problem before it.

It had outright invalidation of state statute and that's all that was involved.

And that's why this statute was passed.

Mr. John Fourt: That is correct.

The debates in the Senate where the precise language involved here was added to Section 7 to the Act creating the commerce court disclosed that the Senators were alarmed at what they called hair-trigger injunctions granted by a single judge District Courts.

One senator said that such an injunction almost created a riot in his State and another senator observed that at the -- that in his State, a federal single judge federal court had issued injunction 12 minutes after the governor had signed the -- the statute, the bill into effect.

Now, from that debate, it's obvious that this language was intended to cover a special situation that is the invalidating of a state statute on the grounds of its unconstitutionality by one judge.

And that issue was the only issue considered by Congress.

That debate shows what Congress had in mind.

It does not answer the question as to how broad this procedure covers.

Justice Felix Frankfurter: It is fair to say, it is fair to say that under your view, a single judge may invalidate the state statute if he finally reaches the constitutionality of the state statute after having passed on the questions of statutory construction.

Mr. John Fourt: That is correct.

Justice Felix Frankfurter: (Voice Overlap) to say, isn't it?

Mr. John Fourt: That -- that is correct.

Justice Charles E. Whittaker: Now -- that might be.

But suppose he does not hold on the question of statutory construction against the petitioner or the plaintiff, but he does on the question, the other second question of unconstitutionality of state statute, now, then, where does the appeal go?

Mr. John Fourt: To the Court of Appeals.

Justice Charles E. Whittaker: Although all that's involved is a holding denying a -- an injunction against the operation of the state statute.

Mr. John Fourt: That is correct.

This statute does not -- the three-judge procedure statute does not relate to the jurisdiction of the federal court but to the manner of exercise of that jurisdiction.

Justice Hugo L. Black: Where -- have you cited those -- the congressional statement that you just made to us?

Mr. John Fourt: We have the references to the congressional record.

It's cited in our brief, Your Honor.

Justice Hugo L. Black: But you have not quoted that --

Mr. John Fourt: No.

Justice Hugo L. Black: -- opinion?

Mr. John Fourt: Now, there is one doctrine which is more difficult to me and that is the doctrine of ancillary jurisdiction.

We do not believe this doctrine applicable to a case such is involved this statute where the question is not the exercise of the jurisdiction of the federal court but the manner which it was exercised.

Ancillary jurisdiction is a necessary doctrine in the Article 3 in order that a federal court may hear an entire case.

Therefore, if a Federal District Court has before it a substantial federal issue, it may hear all local or state issues.

They completely dispose of the case.

However, in this case, we conceive that the Federal District Court sitting of one judge may dispose of all the issues.

Therefore, the question is not the application of the doctrine of ancillary jurisdiction.

However, this Court in a case attacking a state statute both on the grounds that it violated the Federal Constitution and the State Constitution held that under the doctrine of ancillary jurisdiction that the three-judge court should consider the questions.

That case is Louisville & Nashville Railway Co. versus Garrett in 231 U.S. 298.

The case can be distinguished on the facts but it's surely inconsistent with our position, our answer is that --

Justice Hugo L. Black: Do you -- that's not cited in your brief, isn't it?

Mr. John Fourt: No.

No, Your Honor.

Justice Hugo L. Black: What was it?

Mr. John Fourt: Yes.

Justice Hugo L. Black: 2 what?

Mr. John Fourt: Yes.

231 U.S. 298.

Discussion --

Justice Charles E. Whittaker: 298?

Mr. John Fourt: Yes.

231 U.S. 298, pages 303, 304.

And that case was the -- the holding of that case that the three-judge court would -- would hear both local state questions and the federal constitutional questions was followed without discussion by the Court in Sterling versus Constantin, 282 U.S. 378.

Now, in answer to those cases, I just -- a -- look at the briefs disclosed that counsel did not discuss this jurisdictional point although the Court certainly did in the earlier cases that we distinguished them on the grounds that this does not involved the jurisdiction of the federal -- of the District Court but merely the manner of its exercise.

Justice Hugo L. Black: Merely what?

Mr. John Fourt: Merely the manner of its exercise, that is the Court, where they're sitting in one judge or three judges will dispose of all the issues before it.

Justice Charles E. Whittaker: Is that quite correct, Mr. Fourt, when Congress has the right to fix the jurisdiction of the inferior federal courts and it has by 2281 said that no federal court shall enjoin the -- the -- shall -- yes, determine the unconstitutionality of the state statute except by a court of three judges?

Section 2281 Title 28.

Justice Hugo L. Black: Is that the Johnson Act?

Mr. John Fourt: Yes.

Justice Charles E. Whittaker: Now, doesn't that fix the jurisdiction and make the matter jurisdictional?

Mr. John Fourt: We do not believe so because --

Justice Charles E. Whittaker: Oh, why not now?

Mr. John Fourt: If the -- the question is whether this statute applies.

Now, if it applies to a given situation where -- if the statute applies, then the Court is correct that the three-judge statute hears everything that is all issues raised.

We believe that -- that where the issues are joined is without the statute and then a single judge may hear all the issues.

Now, it is not jurisdictional because in either event, the Federal District Court will hear all of the issues.

It is merely will one judge hear the issues, will three judge hears -- hear the issues.

Justice Charles E. Whittaker: But only one type of court has power under the statute, namely, a three-judge court.

Justice Felix Frankfurter: But isn't that the question?

That's the whole question.

Mr. John Fourt: That is precisely the question before the Court.

Justice Charles E. Whittaker: Well, I'm just reading the words as they appear in the statutes.

Justice Felix Frankfurter: You can't read jurisdictional words literally.

This Court has again and again construed words that literally mean one thing and in the light of the basis on which it was passed mean a quite difference.

Mr. John Fourt: It is our position.

Unknown Speaker: (Inaudible)

Justice Hugo L. Black: Which side did you take that?

Justice Felix Frankfurter: [Laughs]

Mr. John Fourt: We can only note that the question is open before the Court, reasonable minds may differ.

[Laughter]

The appellants here, of course, are entitled to their day in Court regarding whether a case or controversy exists.

If the appellee is correct and this Court lacks appellate jurisdiction, we suggest that it may be appropriate for the Court to reverse the decision whereas the judgment of the District Court with instructions that the Court enter a new judgment from which the appellants may take an appeal to the Court of Appeals.

Justice Charles E. Whittaker: Now, may I ask you this?

Enter a new judgment period or enter new judgment to attack?

Mr. John Fourt: Enter a new judgment identical with the existing judgment, dismissing the case but from which the appellants then may take a timely appeal to the Court of Appeals.

Justice William J. Brennan: The municipal court, I'm sure they have the time in which they may take an appeal.

Mr. John Fourt: Yes.

Justice William J. Brennan: (Voice Overlap) --

Mr. John Fourt: Yes.

The appellants here have not taken an appeal to the Court of Appeals.

And this Court in previous cases of this nature --

Justice Felix Frankfurter: (Voice Overlap) several times.

Mr. John Fourt: Yes.

This Court in previous cases has not denied the appellant who made the mistake appealing to the wrong court, his day in court.

Justice Charles E. Whittaker: Then must we ask one last question and I swear this is it.

[Laughter]

That's (Inaudible) in the Court of Appeals -- words in the Court of Appeals of the Ninth Circuit.

They say there's no merit to the local (Inaudible) but there is as to the claim of unconstitutionality of the state statute because of (Inaudible) under the Commerce Clause.

Now, a one judge court makes such judgment, can that stand under this section 22 that we're talking about here?

Justice Hugo L. Black: (Inaudible)

Mr. John Fourt: Yes.

Justice Charles E. Whittaker: 2281?

Mr. John Fourt: Yes.

That is our position.

In a case of this nature, the rule would be opposite if only a constitutional issue was raised or if only part one or two constitutional issues are raised.

Justice Charles E. Whittaker: That's my point.

That -- all that's left in the Court of Appeals is the constitutional issue.

They affirm one judge court.

Can they do that?

Mr. John Fourt: Yes.

That is our position they can.

The District Court -- the three-judge District Court dismissed the judgment, dismissed the appellants' case on the grounds that no case or controversy existed between the parties.

Realistically, the appellants' grievance here is with the California statute.

For example, their statute, their complaint alleges plaintiffs have been deterred from making shipments of Florida avocados to California because of the California statute.

That's Record 13.

There is no claim made that the appellee has committed a personal wrong or trespass against the appellant.

What has he done?

The record on page 441 gives the answer.

The appellants' agents in California were given a courtesy informational notice of violation.

The -- there's no evidence in the record that any of the appellants' lots had been seized.

The appellants, their California agents were informed.

We have inspected the lot.

It does not comply with California law.

It is subject to abatement under California law.

You must either recondition or transship.

If you do nothing, then it is subject to proceedings taken in the state courts to abate the -- the lot as a nuisance.

So far as the record shows, the appellant, at no time, have violated California law.

The mere possession of a noncomplying lot of fruit in California is not a violation of California law.

It would be a violation of law to sell commodities, fruit which do not comply with California minimum standards, quality standards.

It would be a violation of law if the California authorities seize the lot and then the lot is sold.Neither of those circumstances appear here.

The appellants, upon receiving this informational notice, voluntarily transshipped the lot to neighboring Western markets.

Justice William J. Brennan: What -- what's that argument (Inaudible)

Mr. John Fourt: The appellants' grievance is with the California statute.

Justice William J. Brennan: (Inaudible)

Mr. John Fourt: No, I'm now discussing the existence of case or controversy, Mr. Justice Brennan.

If the appellants wish to sue the appellee in the Federal District Court, they must find a personal wrong or a trespass.

If not, then the action against the appellee state officer is representative only and in fact is their suit against the State of California.

This action then is barred by the Eleventh Amendment, so held by this Court in Ex parte Young.

Justice Hugo L. Black: If whatnot, I didn't quite get that argument.

Why would -- why --

Mr. John Fourt: The --

Justice William J. Brennan: How did Ex parte Young denied them the right?

Mr. John Fourt: The -- in -- the appellants' grievance must be with the appellee not with the state statute.

In the absence of a personal wrong by appellee towards appellants such as a trespass, some damage, interference with their marketers, this then is merely a represented -- an action against appellee in his representative capacity as a state officer.

In fact then, it is a suit against the State of California which cannot be maintained under the Eleventh Amendment.

The dispute between appellant and appellee must be based on wrongful conduct by appellee, not merely the existence of the state statute.

This Court held in the Mitchell case that the mere existence of a statute does not constitute a sufficient threat to constitute a suit against that officer.

There must be personal wrongdoing.

Justice Felix Frankfurter: Is -- are there are no allegations in the bill -- are there no allegations in the bill from which one can, by a reasonable intendment, bind that these appellants' complaints that they are shippers of avocados in Florida, they have been shipping them, that they want to ship them in the future and they will be subject to what they claim as an unconstitutional statute.

Are there no such allegations in the bill?

Mr. John Fourt: We do not find such allegations.

The allegations which approach this area described by Mr. Justice Frankfurter are plaintiffs are now constantly receiving offers to purchase Florida avocados from dealers in California but cannot avail themselves of such offers without prohibitive risk of loss if the defendants are permitted to continue to enforce Section 792 of the Agricultural Code.

Justice Felix Frankfurter: Well, why isn't that (Inaudible)

Mr. John Fourt: Permitted to continue to enforce is that a seizure of any of their lot, is that a threat of arrest?

Is this a threat of prosecution in California?

Justice Felix Frankfurter: But there's no allegations saying that they will -- state officials will enforce the law?

Mr. John Fourt: No such allegation, Your Honor.

That was --

Justice William J. Brennan: Let's see if I get this.

(Inaudible)

Mr. John Fourt: The appellants must show that appellee has committed a personal wrong.

Justice William J. Brennan: (Inaudible) under this statute?

Seizure?

Mr. John Fourt: Seizure, of course, would do it.

Justice William J. Brennan: Arrest?

Mr. John Fourt: Arrest, yes.

Justice William J. Brennan: How about the calling (Inaudible)

Mr. John Fourt: The calling is voluntary by the appellants.

A threat of arrest, a threat of prosecution would be sufficient.

Justice William J. Brennan: A -- a threat?

Mr. John Fourt: Yes.

Justice William J. Brennan: A threat or seizure.

Mr. John Fourt: That is correct.

None of those -- yes?

Justice Hugo L. Black: Did they say the calling was voluntary?

Mr. John Fourt: There are -- so far as the allegations of the appellants' complaint here all lots shipped to California and which failed to comply with California were reshipped out of the State.

So far as this record is concerned, the -- there was no reconditioning occurred by appellants.

Justice Hugo L. Black: Do you say -- do they claim that they have been subject to having their fruit wrongfully reshipped from the State?

Mr. John Fourt: No.

No such claim was made.

Justice Hugo L. Black: So why did they claim they reshipped it voluntarily?

Because they wanted to?

Mr. John Fourt: Their claim is that they received an informational notice of non-compliance which is --

Unknown Speaker: (Voice Overlap) --

Mr. John Fourt: -- oh, from the state officers.

It's shown on -- on page 441.

Justice Hugo L. Black: (Voice Overlap) to take a risk, they shipped it out of the State, is that it?

Mr. John Fourt: That is correct.

But it was completely a hypothetical and contingent risk.

Justice Hugo L. Black: Well, why would hypothetical and contingent if they knew that their fruit was going to be taken and examined might be seized, they -- rather than go -- have that done, they ship it out of the State.

Mr. John Fourt: The Honorable Justice in using the word “might” has stricken the heart of this thing.

The state officers might have done a number of things.

Justice Hugo L. Black: What was it the state officers notified and they had it submitted then?

Mr. John Fourt: No.

No, that is not correct.

Justice Hugo L. Black: What was it they notified and you said they give information or what kind of notice?

Mr. John Fourt: Yes.

The notice which is plaintiffs' Exhibit 22 on page 441 of the record which says, “Standardization violation notice.

The below described lot including the containers thereof is a public nuisance unless reconditioned or otherwise brought into compliance.

The transportation or sale of such lot is illegal.”

Justice Hugo L. Black: Well, what -- what kind of request would you want?

Justice William J. Brennan: That might be the fact.

Justice Hugo L. Black: I -- I don't understand that.

Mr. John Fourt: As long as the lot remains where it is.

Justice Hugo L. Black: Well, certainly.

Mr. John Fourt: No, no, no violation occurs.

Justice Hugo L. Black: As long as they let it stay there, why they can't sell it.

Mr. John Fourt: That is correct.

That -- that is quite correct.

Justice Hugo L. Black: Right.

Print this transcript Transcript: 

Argument of John Fourt

Chief Justice Earl Warren: Number 49, Florida Lime & Avocado Growers, Inc., Appellants versus Jacobsen, Director of the Department of Agriculture of California.

Mr. Fourt, you may continue.

Mr. John Fourt: Mr. Chief Justice and Honorable Associate Justices.

At the time of adjournment, we were discussing the precise acts or conduct of appellee with regard the appellant.

Specifically was the notice which is given by the appellee to the appellants upon the ascertainment that certain avocados do not comply with the state statute.

Plaintiff's exhibit 22 shows this type of notice.

1874 lots of avocados were inspected and 361 were found to be out of compliance.

Our position is that this notice is informational.

The results of the oil tests were given and the appellants were informed that they could recondition the non-complying avocados, that is cull them out.

Yes?

Justice Charles E. Whittaker: (Inaudible)

Mr. John Fourt: Yes.

It's a record on 441 that the appellants could transship the non-complying avocados out of the State or that the avocados could be diverted to non-human food uses.

Two things then were present, appellant was informed that certain logs of avocados failed to comply with state law and the statute was substantially described to the appellant.

He was given notice of the contents of the state statute.

This then did not constitute the type of action required to show a trespass or personal misconduct by the appellee.

Nothing then existed except the statute itself plus the announcement by appellee that he stood ready to perform his duty.

The court below held --

Justice Hugo L. Black: So this was a violation notice, wasn't it?

Marked violation notice?

Mr. John Fourt: That is correct.

Justice Hugo L. Black: What he had then was a notice that he had violated the law and he didn't do something, I assume that nothing that he does here, wasn't it?

Mr. John Fourt: That is correct.

What would be done if he did nothing?

Would be that abetting proceedings would be filed forthwith in a Superior Court of the State of California.

Now--

Justice Charles E. Whittaker: Now, suppose the law is invalid and violates the Federal Constitution, would you say that -- that they made under those circumstances wouldn't -- couldn't be utilized on the basis of our suit against the officer?

Mr. John Fourt: Our position is that something further would have to occur before a case or controversy would arise.

Justice Hugo L. Black: I suppose he let him come and get it?

Mr. John Fourt: That if -- I take it that -- I further step the lot would be seized by the State.

Justice Hugo L. Black: And he supposed they had seized it?

Mr. John Fourt: Yes.

Here's a controversy would immediately arise at that point and actual interference with the appellant's operation would occur at that moment.

A threat of arrest would create such a controversy.

Justice Charles E. Whittaker: What about a stretch to take his property and unless he abides by law that we are assumed unconstitutional?

Mr. John Fourt: Notwithstanding that the appellee would have no protection under state law at that time.

Nevertheless, appellee has done nothing to prevent the appellant from doing anything he wishes to.

If the appellant does anything more, something may happen.

But at that moment, nothing has happened.

That moment, this notice was given to him.

Justice Charles E. Whittaker: Well, this is for -- (Inaudible) notice to him that his possessions are both unlawful acts?

Mr. John Fourt: That he is being warned that this lot constitutes a public nuisance and it's subject to -- for abatement proceedings in the Superior Court.

At that moment, as we construe California law, he is not subject to arrest.

Not subject to an action for civil penalties, not subject to an action for injunction to prevent if moving the lot.

At that moment, nothing has happened.

He is not in violation of law, he is subject to proceedings to be inaugurated by the enforcement officer.

Justice Hugo L. Black: Well, this notice doesn't tell not on the country those on that -- that mere possession is an unlawful act, does it?

Mr. John Fourt: That is correct.

But that is not the appellees' action.

That is the action of the statute.

He is describing informing the appellants what the statute provides.

Justice Charles E. Whittaker: But he had no constitutional basis under that statute, then, is he not personally offending?

Mr. John Fourt: He is offending the statute, may it please the Court, not the appellees' actions or orders.

Now, it may be that this is enough to constitute a case of controversy, but we do not believe it does at that moment.

Justice Charles E. Whittaker: I thought you were arguing that.

There was no -- this was therefore effective statute, an enactment of the State without extent?

Mr. John Fourt: That is correct.

That until something more is given, some more action is taken by the appellee, that then there is no personal grievance between the parties before the Court and that this is representational action against the appellee as a representative of the State of California in this violation of the Eleventh Amendment.

Chief Justice Earl Warren: Well, Mr. Fourt, didn't you actually start the process of enforcement in this statute against the -- the appellant in motion when you served this notice upon him?

Mr. John Fourt: That is correct.

Chief Justice Earl Warren: Definitely, that was the first step in the procedure of abatement, and he may -- it may be that he would have to take some other step or do something or not do something before you would take a second one but you did actually start the abatement proceeding in motion, did you not, when you served this prerequisite order on him?

Mr. John Fourt: That is correct.

Perhaps even more so, we commenced the enforcement procedure when the avocados were inspected.

Then, the next step was giving of the notice.

The next step if the appellants had not transshipped would have been abatement procedures or some other enforcement action.

Chief Justice Earl Warren: But I suppose, this notice is a prerequisite to the -- the judicial proceeding of abatement, is it not?

Mr. John Fourt: No, it is not.

Chief Justice Earl Warren: Could you do it without that?

Mr. John Fourt: Yes.

Chief Justice Earl Warren: Why do State do it?

Mr. John Fourt: As a convenience to the industry, the industry, both appellants and the California handlers, desire to comply with California law that they just get into unnecessary difficulty if they can't easily and conveniently abide with the law.

This is a courtesy notice to them.

From our viewpoint, it is necessary because of limited enforcement in them.

Justice Hugo L. Black: Your notice, it seems to me, be this, if you don't sign this paper for you to require with provisions with the California law as, they say is unconstitutional, something they have to, isn't that right?

Mr. John Fourt: That the --

Justice Hugo L. Black: Or is it?

Is it or not?

Mr. John Fourt: We do not interpret this provision.

Ordinarily, the person in possession of the lot is a truck driver or the handler for example --

Justice Hugo L. Black: But he had to take it out of the State I guess is subjected to this law, didn't he?

Mr. John Fourt: Oh, yes.

That is correct.

But this signature provision is to make sure that the person in possession, not necessarily the owner of the lot, acknowledged that he received the notice.

Justice Hugo L. Black: But it also said, I hereby agree to comply with the provisions of the California Agricultural Code.

Mr. John Fourt: That is correct.

If the truck driver will do so, then that solves the problem as far as the California enforcement authorities are concerned.

Justice Hugo L. Black: What you have then is, isn't it, the abatement of a salesman, which is probably there in the violation of the law and he doesn't take it out of the State.

You're going after to him, and in the process, you're going after that property?

Mr. John Fourt: That is correct.

Justice Hugo L. Black: Why in that case a controversy?

I don't think it was that (Inaudible)?

Mr. John Fourt: We view the same facts slightly differently.

We believe this had been a restatement of statute -- the California statute and we are merely informing the appellants of the content of that statute.

Now, the Court views it as a definite threat that this will occur by the appellee and we just need to --

Justice Hugo L. Black: Do you think it -- don't you think it would have occurred?

Mr. John Fourt: It is hypothetical, what would have occurred.

Justice Hugo L. Black: Well, what the -- why did you give them the notice for then?

Mr. John Fourt: In order to suggest to him that he cull the fruit or divert it out of State.

Justice Felix Frankfurter: What are the sanctions for your act?

What is -- what are the consequences of disobedience?

Mr. John Fourt: A misdemeanor criminal prosecution and action for a civil penalties where the civil penalty maybe $100 to $500 for each violation, an action for injunction to prevent future violations, seizure of the lot together with abatement proceedings filed in the state court.

Justice Felix Frankfurter: And the assumption of your argument is that the appellant is not just divided in thinking that one of those proceedings, at least one, would be started against him.

Isn't that the assumption of your argument?

Mr. John Fourt: No, we assume, he will believe that and we -- that -- so that is a fact.

Justice Felix Frankfurter: And that is not -- then that is reasonably and hypothetically?

Mr. John Fourt: That is correct.

The point is that that representation is made by the statute not by the appellee.

Justice Felix Frankfurter: Well, but it may not assume that the law enforcing authorities of California neither enforce the law?

Mr. John Fourt: That is correct.

Justice Felix Frankfurter: Then, where is the -- what's the line, what's the gap?

Mr. John Fourt: The Court should not assume that the California officers will enforce an unconstitutional law.

They are under obligation to comply with federal law as well as state law.

Justice Felix Frankfurter: And you think the local district attorney or city solicitor or whatever it's called or the person who brings (Inaudible) proceeding will establish that as a law, and our decisions decide the statute is unconstitutional and therefore would not enforce it?

Mr. John Fourt: He should if he --

Justice Felix Frankfurter: They're not expecting -- they're not expecting a little too much?

Mr. John Fourt: Well, that is indeed expecting a high degree of duty.

Chief Justice Earl Warren: But you would have been -- then you have benn enforcing since the 1920s, haven't you?

Mr. John Fourt: Yes.

Since 1925.

Chief Justice Earl Warren: Is there any reason to believe that in this particular case, the state wouldn't enforce it, where they have been enforcing it for almost 40 years?

Mr. John Fourt: No, no.

Except to point out that as to these appellants, they did not commence marketing avocados in California since -- until 1954.

So that, only in 1954, 1955, 1956 and 1957, has the California officials encountered a problem of avocados imported into the State from Florida.

Justice Felix Frankfurter: Is there a suggestion that California law enforcement authorities would be more lenient to Floridian rather than California?

Mr. John Fourt: No, perhaps, my answer to Justice Brennan yesterday might lead to that inference.

The reason that this appellants have a -- or more successful of marketing avocados in California than the California handlers is because as appellants state in their complaint, they have made extreme efforts to comply with California law.

And that perhaps undoubtedly is not true of the California handlers.

Our position is the statute is neutral.

Justice William J. Brennan: You don't think the quality of the avocados has anything to do with it?

Mr. John Fourt: No, your Honor.

Justice William O. Douglas: But Mr. Fourt, is there any authorities who noticed the said statute?

Mr. John Fourt: None.

Justice William O. Douglas: And if the statute is unconstitutional, then is there any lawful authority to record it.

Mr. John Fourt: In the absence of statute, as we construe the order -- or this notice, the notice would be valid, that is unlawful.

That is the notice of itself imposes no sanction on the appellants, the notice of itself does not interfere with the appellants' marketing of avocados in California.

Justice William O. Douglas: What authority in that statute would you have (Inaudible) the handler of the -- with possession of these avocados (Inaudible)?

Mr. John Fourt: That fact was present by virtue of the statute standing on the books, if in lieu of this notice, we could just seize the avocados or file some type of litigation against the appellants to punish them for doing something in violation of state law.

Justice Potter Stewart: Well, this notice is hard, and on there, it calls your attention to the fact of the statutes on the books, isn't it, this notice is a result of a finding that a specific shipment violates that statute.

Mr. John Fourt: That is correct.

Our position is that that is also informational and that the appellants are notified which avocados comply with state law and which avocados do not.

Justice Potter Stewart: And you also told that they don't get rid under freedom of the trade, but they're going to be prosecuted.

Mr. John Fourt: That is correct.

The Action --

Chief Justice Earl Warren: Is this your main argument Mr. Fourt?

Do you -- do you want to be in the position always as a result of this case, so that you can say that when you -- when you send people notices of this kind, that you are not enforcing the Act of California or -- or is it your main argument that -- that the Act is constitutional?

Is this a make way argument or -- or what?

Are you interested in the constitutionality of the act or -- or in this particular procedure, so that you can proceed at least this far at all times with people?

Mr. John Fourt: Yes, it is the latter argument that -- that insofar as the record in this case is concerned, there is no case that counters his submission to justify a court inquiring the constitutionality of the statute.

Chief Justice Earl Warren: So, you would want him either to be arrested, but you would want his property actually seized as a matter of -- of procedure before, before he can get any relief at all?

Mr. John Fourt: That is correct for a threat, an actual threat.

A statement by an officer of that such would occur, personally that is that the officer would do so.

Justice Charles E. Whittaker: Do you mean (Inaudible)?

Mr. John Fourt: A direct threat saying, “Do this or you would be arrested or do this or I will seize the lot.”

Now, it may well be that the --

Chief Justice Earl Warren: Isn't the notice tantamount to that?

Mr. John Fourt: It may well be.

If so then, a case of controversy exists.

Justice Charles E. Whittaker: (Inaudible) or sale of those lots will be illegal?

Mr. John Fourt: That is correct.

As --

Justice Charles E. Whittaker: It is unlawful for him to move them.

Mr. John Fourt: That is correct.

He can't do anything with the avocados except recondition or -- or try to put them out of the State.

Justice Charles E. Whittaker: But we've already observed that (Inaudible).

Mr. John Fourt: Or to -- or to point out to -- to colander, that is correct.

Justice Charles E. Whittaker: (Inaudible)

Mr. John Fourt: Yes.

Turning to one further matter which is before the Court.

The appellants maintain that the appellees' maintained that the appellant's case is not within the equity jurisdiction of the District Court.

This was our principal ground for our motion to dismiss in the District Court.

Before a federal -- a federal chancellor will interfere with the enforcement of state laws, the plaintiff must show irreparable injury both great and immediate.

Spielman Motors Company versus Dodge, 295 in the United States reports.

This Court has held that this requirement is a strict test.

American Federation of Labor versus Watson in 327 of the United States.

The policy behind this strict test was best stated by Justice Cardozo in Hawks versus Hamill in 288 of the United States report.

Only a case of manifest oppression will justify a federal court in laying such a check upon administrative officers acting (Inaudible) in a conscientious endeavor to fill their duty to the State.

A prudent soft restraint is called for such time if State and national functions are to be maintained in stable equilibrium.

Reluctance there has been to use the processing of federal courts in restraint of state officials, though the rights asserted by the complainants are strictly federal in origin.

This argument regarding equity jurisdiction assumes that the District Court has jurisdiction to dispose of the entire case, has the jurisdiction to rule on the merits.

It questions whether the District Court in the exercise of a sound discretion sitting in equity should issue an injunction restraining the state officers in enforcing this case.

What are the appellants' operations here?

The appellants handle and sell limes, mangoes, tomatoes, potatoes growing out in Florida.

The appellants market these various products throughout the United States.

No claim is made that the entire volume of avocados available to the appellants, it can not be disposed off.

The picture presented by appellants even when State is favorably to them shows that in one of their markets, California, appellants said they market a substantial volume of one of their products, avocados; they hesitate to increase the volume of this fruit because it may not meet the California standard.

No present irreparable injury appears.

This appears mainly as far as substantial hold is concerned that it looks to the future.

At most, all that the appellants desire here is to rearrange their present distribution of sales.

The direct appeal is to show that the appellants at any time had been charged with a crime or a judicial action has been brought against them.

We believe that these facts are now at least to the facts in Spielman Motor Sales Company which involved a retail sales dealer, automobile dealer in New York.

And the state law to which he was objecting control the manner in which he operates his business, that is, granting discounts and full disclosure to the purchases of automobiles.

This Court pointed out that he was not put out of business by the statute and that he -- there was no serious interference with his business.

Therefore, that the District Court, although it passed on the constitutional validity of the state statute, in the effect, abused his discretion in not passing on its equitable jurisdiction first.

To state a case in equity in a case of this action, appellants must show that the interference by the state statute is indeed serious.

If the Court finds that this interference is not a sufficient gravity to justify the extraordinary remedy of an injunction, then, we suggest that the Court may wish to remand the case to the District Court with a request that the District Court consider its appellant's -- its equitable jurisdiction to see if appellant's case does state a case in equity.

However, we feel that on this case which on the record is complete here that the lack of equity is so strong that the Court as it did in Spielman may wish to reverse with instructions to dismiss on the --- for the grounds of lack of equity.

Chief Justice Earl Warren: Mr. Ferguson.

Argument of Isaac E. Ferguson

Mr. Isaac E. Ferguson: In the moment that I have left u an reverting it to the question of the jurisdiction of the appeal, the argument seems to boil down to one point.

Appellants claim that the California statute, as applied to them, conflicts with the federal market agreement and the regulations adopted thereunder for the marketing of Florida avocados.

Appellee contends that this is not a claim of unconstitutionality.

I remind the Court in particular of the series of cases recently decided in which various state enactments relating to labor relations have been held by this Court to be unconstitutional and invalid, because of conflict with the National Labor Relations Act as impinging upon the Federal Regulation.

Most of these cases have come to this Court on appeal from state courts, which yesterday I mentioned one that came here on appeal from a three-judge District Court, American Federation of Labor versus Watson and the jurisdiction of the District Court was upheld and the jurisdiction was entertained of the appeal, which in that respect, is exactly the situation in this case.

Justice Charles E. Whittaker: (Inaudible)

Mr. Isaac E. Ferguson: Yes, Your Honor. Exactly, exactly.

Justice Charles E. Whittaker: The Marketing Act points (Inaudible) constitutional question here that the State statute is unconstitutional (Inaudible).

Mr. Isaac E. Ferguson: As applied to the avocados which are marketed under the federal regulation that was void in the state act in that application.

Justice Hugo L. Black: Which provision of the Constitution?

Mr. Isaac E. Ferguson: The Supremacy Clause.

Justice Hugo L. Black: You are referring to the one -- does the Constitution say, does the Constitution as the law say that should be the supreme law of the land?

Mr. Isaac E. Ferguson: Yes Your Honor.

Justice Hugo L. Black: And that's what we --

Mr. Isaac E. Ferguson: We're talking about a law in the regulation of interstate commerce, the validity of which is -- and upheld and unquestioned.

When that law is enforced, no state law can overwrite it, as in this case is done by the California statute.

Justice Charles E. Whittaker: (Inaudible)

Mr. Isaac E. Ferguson: It's absolutely mandatory.

Justice William O. Douglas: Do you have any in charge for this violation of state law?

Is there any in charge to this violation of state laws in your state constitution?

Mr. Isaac E. Ferguson: No, Your Honor.

No, the grounds are the Federal Constitution.

Justice William O. Douglas: No State --

Mr. Isaac E. Ferguson: It is the Federal Constitution that maintains free trade among the states.

And as this Court has had occasion to say many times, that is one of the most important reasons for the adoption of the Federal Constitution.

So that this case, even though it relates to exotic fruit as my friend has said, it relates also to one the most vital functions of the Federal Constitution.

Thank you.