IDLEWILD LIQUOR CORP. v. EPSTEIN

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Argument of Charles H. Tuttle

Chief Justice Earl Warren: Number 138, Idlewild Bon Voyage Liquor Corporation, Petitioner, versus Martin C. Epstein et al. and Number 180, Idlewild Bon Voyage Liquor Corporation, versus Honorable Alexander Bicks et al.

Mr. Tuttle.

Mr. Charles H. Tuttle: Mr. Chief Justice, may it please the Court.

This case is here on certiorari to the Court of Appeals for the Second Circuit and also on applications for mandamus running separately to District Court Judges Bicks and Dimock and Cashin under circumstances, I will explain in a moment.

The heart of this case, Your Honors, is I think summed up in a single sentence in the opinion by Judge Dimock when the matter was before him and that sentence is, ?plaintiff slightly raises a serious legal question when it states that what New York is regarding as unlawful has been ruled by the United States to be a lawful Foreign Commerce.?

Now, there's no dispute as to the facts.

They're all stated in -- at the end of the complaint.

The only response from the defendants was a motion to dismiss for lack of sufficiency, lack of jurisdiction and lack of a substantial federal question.

The complaint invokes the original jurisdiction of the District Court under Section 1337 of the Code over cases arising under acts of Congress, regulating Foreign Commerce.

The complaint after stating the relation and -- of the plaintiff and its integration into the plan for Foreign Commerce, set forth in Sections 311 of the Tariff Act of 1930 and in Section 5301 of the Internal Revenue Code, goes on to state that the Attorney General of the State of New York had ruled that the business conducted by the plaintiff so integrated, was illegal and that the Liquor Authority of New York had in consequence informed the plaintiff that its business was illegal and had threatened it with civil injunction and with criminal prosecution under the Alcohol-Beverage Control Law of New York.

Now, the complaint contained in consequence, four prayers, one for injunctions, temporary and permanent, two, for a declaratory judgment, three, for a three-judge court and four, for a restraining order pending the convening of the three-judge court because of the immediate irreparable damage it was suffering in consequence of the promulgation and publicity of the Attorney General's opinion.

The plaintiff accompanied its complaint with motions for injunction and for a three-judge court and the restraining order.

Now, the motion by the defendant for a dismissal and the motion by the -- motions by the plaintiffs which I've just stated all came on before Judge Bicks whose opinion is at page 49 of the record.

In that opinion, he has summarized correctly the allegations of the complaint as to the nature of the plaintiff's business.

Your Honors will find them at page 49 and 50.

He stated in his opinion that the ?plaintiff complies with Section 311 of the Tariff Act of 1930 and with 5301 of the Internal Revenue Code and with all the regulations promulgated pursuant thereto,? nevertheless, Judge Bicks refused all motions.

He instead reserved jurisdiction pending rulings of a filed character by the state court in an action not then pending at all and not contemplated by the plaintiff as to the policy of the State Alcohol Beverage Control Law in this situation and he refused even a restraining order to protect the plaintiff pending the institution of an action that was not then yet -- then pending.

Notwithstanding, he refused the restraining order, notwithstanding, ?that plaintiff has not since, meaning since the promulgation of the Attorney General's opinion, been able to make purchases to meet its requirements and plaintiff faces the prospect of closing its doors with consequent substantial damage.?

Now, the complaint reinforced that statement by Judge Bicks with pointing to -- also to the fact that it's lease from the port authority at Idlewild Airport where its sole business is conducted, was cancellable by the port authority if -- if the plaintiff ceased doing business because the port authority had a percentage of the gross profits, and that said the complaint, the plaintiff was in consequence faced with the prospect of immediate bankruptcy.

Now, the practical effect, Your Honor, of Judge Bicks' decision so far as this plaintiff was concerned, was as the Court of Appeals later pointed out, a dismissal.

The plaintiff was out of court.

It was denied or relieved and it was just as if the -- Judge Bicks had in times dismissed the complaint and said, ?You come back to us after you've instituted and conducted a state court proceeding to final judgment in determination.

Now, then as soon as that decision by Judge Bicks came down, the port authority went right at it, I don't mean the port authority, the liquor authority went right at it.

They communicated with the interstate bonded truckers that brought the liquor from the Class VI United States Government bonded warehouses and told them that if they continue to bring any of the wines and liquors, they would be prosecuted and their licenses would be revoked by the liquor authority.

They also served a subpoena for all our books and records to be brought before the liquor authority and in addition they renewed their threats of civil and criminal prosecution against the plaintiff.

We therefore took an appeal ? oh!

No, we therefore, before appealing, bringing the appeal forward, we'd already appealed as soon as Judge Bicks came down with his decision.

We applied to Judge Dimock because of the absence of any three-judge court to make our application to, we applied to Judge Dimock, saying that the situation had now developed to a point where we must renew before him, all the motions we had on before Judge Bicks and we said that the reinforcement of the militancy of the liquor authority put us to the point where we were just out of business.

We had to stop.

Judge Bicks' opinion is at page 88 of the record and it amounts to a statement that he felt constrained out of comity to follow the said --

Justice Tom C. Clark: Judgee Dimock (Inaudible)

Mr. Charles H. Tuttle: Yes.

Yes, Judge Dimock's --

Justice Tom C. Clark: (Inaudible)

Mr. Charles H. Tuttle: Judge Bicks was the first judge.

Unknown Speaker: (Inaudible)

Mr. Charles H. Tuttle: Yes sir and Judge Dimock said that he felt constrained to follow the decision of Judge Bicks.

We thereupon brought on our appeal.

Judge Bicks -- Dimock did however, grant us a temporary restraining order pending the hearing of our appeal so that we were still in business when we were before the U.S. Court of Appeals and the Court of Appeals in its opinion will be found at page 103 of the record, stated that Judge Bicks and Judge Dimock had no jurisdiction whatever to make the dispositions which they made, that they had no jurisdiction to do anything except convene a three-judge court and that interpreting as they did to Stratton case in this, decided by this Court 282, the Court of Appeals had no jurisdiction and it consequently granted the defendant's motion to dismiss the appeal in toto without even thinking as this Court has in the Phillips case, the other cases cited just the other day and the Bailey decision by this Court, the orders of Bicks and -- Judge Bicks and Judge Dimock which the Court of Appeals had pronounced to be in excessive jurisdiction, without jurisdiction and therefore void.

Now, the opinion of the Court of Appeals wound up with this extraordinary statement.

This result leaves us in a somewhat anomalous position.

The results we reached are unhappy ones.

We are refusing access to our court to a party who we believe is entitled to relief.

Nevertheless, as I say, they did not even vacate the orders which they were pronouncing in their opinion to be void.

That opinion coming down we -- and to stay pending appeal being thereby vacated, we rushed in before Judge Cashin and we said now, ?Here is the opinion of the Court of Appeals declaring that these orders of the two proceeding district judges are void? because that's the consequence of being made without jurisdiction, we renew everything before you and his opinion will be found at Section 120 as extraordinary in this respect.

He said that everything that the U.S. Court of Appeals had said about the orders being without jurisdiction well, dictum and that consequently the orders that had been added according to the Court of Appeals without jurisdiction was still the law of the case and still in effect and out of comity he was obliged to go along with it.

That left us where the -- but one cause and that was to come to this Court and we got a stay from Mr. Justice Harlan pending the hearing of this appeal.

Now, a word as to our business, the complaint describes it fully and without contradiction.

Our sole business is conducted under the constant supervision and control of the U.S. Bureau of Customs acting as part of the Treasury Department in turn acting under the plan set forth in Section 311 of the Tariff Act and Section 5301 of the Code.

Its sole business is export of wines and liquors in the original package.

These bottles are all bought in the U.S. Class VI custom warehouse, government warehouses at the very starting point where they are manufactured as bottle for export from the U.S.A., that's on every bottle as it comes to us.

Now, it is brought in to us under these two federal statutes for re-warehousing, that's the word, re-warehousing on our leased premises in Idlewild.

By that, it's meant there is under direction of the Bureau of Customs, a huge portion of our space set forth and contained under lock and key.

We don't have any access to it.

These bottles so bought, go directly into that big safe, as it were, under the control of the U.S. Bureau of Customs who has the sole key to it.

The perspective passenger must be a passenger on a non-stop plane to a foreign country.

Nothing can be done if there's going to be a stop elsewhere in this country.

Now, that passenger lays down his money for such number of bottles as the foreign country will allow under reciprocal arrangements made with our government to be imported there duty free because these bottles go out from us tax free and duty free.

And they are largely for the use of the economy passengers who -- because of this plan, this federal plan for export and reciprocity with foreign nations so as to improve our trade abroad, enables the economy passenger to buy one, two or three bottles not more than that unless the foreign country would allow more to get in duty free there, for $3 instead of what otherwise he would have to buy somewhere else for $7.

Justice Potter Stewart: It's for consumption on road or for --

Mr. Charles H. Tuttle: No, I have just about to say.

Justice Potter Stewart: Sorry.

Mr. Charles H. Tuttle: This is a little narrative and I'm coming at last to the foreign country.

We don't put these on the plane.

The United States Customs Authority writes out the necessary export documents.

The warehouse in our premises is opened by them and with these documents the bottles are taken and delivered to the purser of the nonstop plane and those documents require that those bottles be new -- not delivered to the passenger until that plane has arrived in the foreign country and the passenger has been brought, he is now on foreign soil when the purser comes along and says, ?The label on the bottle is now fulfilled.

Export from the U.S.A. has been fully accomplished.

?Now, it so happens that this very Section 311 in the Gulf Oil case in 309 has been before this Court and state as being within the exclusive power of the United States not a preemptive question.

It's not a conflict question.

It's a -- exercise of federal jurisdiction in an area where alone the Federal Government has any jurisdiction and this Court said that the purpose was to enable the American manufacturers to compete both favorably with their foreign competitors without any substantial loss of revenue.

Now, at the conclusion of his opinion, Judge Bicks summarized these regulations and statutes very fairly and yet he doesn't give the force to them which the old summarization necessarily expresses.

He says, the treasury department has expressly approved these proceedings and has ruled that sale so consummated, constitute an exportation of merchandise within the meaning of Section 311 of the Tariff Act.

Now, I'm going to ask Your Honors to see how the Attorney General's opinion in this case pinpoints the issue.

You'll find that opinion on page 21 of the record and it makes five concessions which higher urge are of great materiality here in pinpointing the real issue.

First and I quote verbatim, ?First, this transaction is an export within the meaning of Section 311 of the Tariff Act.?

Justice William J. Brennan: At page 21?

Mr. Charles H. Tuttle: Page 21 sir, yes sir.

Justice William J. Brennan: (Inaudible)

Mr. Charles H. Tuttle: Well, I didn't mention the 21(a), yes sir I should've.

This transaction is an export within the meaning of Section 311 of the Tariff Act.

In other words, the Attorney General himself recognizes that this, this bottle dedicated for all time for export only in the place where the manufacture occurred under government control is for export only.

Second, he says, ?The liquor will remain under bond and under supervision of the Bureau of Custom at all times.?

I think from my description, you'll see how true that is.

Third, he says, ?Delivery is not made within the state, delivery is not made within the state? and it's not made to the passenger until he reaches his foreign destination.

Fourth, he -- the Attorney General concedes that this is not a sale for consumption on the premises and that means of course for consumption in the state.

Now, the reasoning of the Attorney General is very curious and I'm about to show you that is directly opposed to the ruling of the New York State Tax Department.

He says that the Alcohol Beverage Control Law of New York contains no provision for licensing a business such of ours which is connected in this way with Foreign Commerce.

And in as much as there being no possibility of a license because the statute doesn't authorize license, we are necessarily illegal because a sale and he calls this a sale in the State of New York, without a license is per se illegal subject to injunction and subject to criminal prosecution.

Now, I think where the Attorney General's assistant who wrote that opinion over looked the fact that the legislature do more about this than apparently the Attorney General did and did not make a provision for licensing business such of ours because the legislature realized that it was in Foreign Commerce and therefore not within the jurisdiction of the State of New York at all.

Now, the state tax department which, if this was a sale within the jurisdiction of the State of New York, would have not only the right but the duty to impose a tax, has ruled just the opposite and I quote, it says, you'll find it on page 26 of the record that from the tax jurisdiction of the State of New York on alcoholic wines and liquors there must be accepted sales in United States Customs bond which of course this is.

There must be accepted sales of wines and liquors where the merchandise is stored in Class VI warehouse under general regulations.

Well, our premises has this warehouse right in it to which we have no --

Justice Potter Stewart: Class VI -- what is a Class VI warehouse (Voice Overlap)?

Mr. Charles H. Tuttle: What's that?

Class VI warehouse is described Your Honors in Tariff -- in Section 311.

It's a warehouse which is solely under the control and supervision of the United States Government.

The liquor in its raw form is put together in these bottles there under Government control and then stored there under Government control to be withdrawn for export in the way I have described? and that (Voice Overlap) the same Class VI warehouse is a phrase in the Section 311.

Now, then that being so, I will read these exceptions again, you'll see that all three of them apply to us says the Tax Department.

One, it accepts sales in United States Customs Bonds, second, it say, it accepts sales of wines and liquors rather the merchandise is stored in Class VI warehouse under general regulations and it accepts wines and liquors when sold under such circumstances that this State, State of New York is without power to impose such a tax.

Well, here is a direct conflict between two departments of the state operating simultaneously.

Now, I -- I wish to submit that the underlying issues in this case as we see them I have I think become manufacturer from what I have stated.

First, our position is that plaintiff is a federally sanctioned and integrated implementation for a national purpose of a congressional regulatory plan for Foreign Commerce and trade reciprocity with a foreign government.

And that it follows that such plan and the implementations of it enacted by and authorized by the Congress are in an area of national jurisdiction in which New York has no jurisdiction.

But even if we in past decide from the -- the question that New York had no jurisdiction and assume for the sake of argument that there might be duality of jurisdiction, nevertheless, the purpose of the federal statue would be clearly preempted and therefore exclusive in that sense and that I say finally in conclusion on these statements of our positions of the District Court's act, all three of these judges, the last two simply following the trail of the first, in abstaining from all protection, denying everything until some state court adjudication of finality might be made in an action not even then existing was and I speak respectfully of the lower court, abdication of the -- its original jurisdiction conferred by Section 1937 of the Code, all the cases under acts of Congress regulating Foreign Commerce and I quote the words of the section.

And that section was enacted for the very purpose of conferring on the federal courts not only the right but the duty of vindicating the acts of Congress and the national purposes reflected therein vindicating from state conflict.

Justice Felix Frankfurter: Mr. Tuttle, unless I did not hear you, you have made no reference to the Twenty-first Amendment, is that not in your case at all?

Mr. Charles H. Tuttle: Surprisingly it is.

I say surprisingly because notwithstanding all the litigation that we had below, three federal district judges, a Court of Appeals divided two to one, an application by us here for these rights in this Court, a brief in opposition from my friend the Twenty-first Amendment was not mentioned.

It is sprung on us in the -- I'll use that term politely, it is sprung on us in their brief in this Court and I had intended to come to it Your Honor.

Justice Felix Frankfurter: Surprising -- I like your -- surprisingly it is, what I like is your it is?

Mr. Charles H. Tuttle: It is, it is, I recognize now in the case put there at their last moment.

Justice Felix Frankfurter: It was there but not dealt with.

Mr. Charles H. Tuttle: Yes, it was there but not recognized in any of the briefs or arguments until we got here.

Now then --

Justice Felix Frankfurter: That's a surprise, isn't it?

That's the surprising part of it.

Mr. Charles H. Tuttle: Yes, that is the surprising part of it and I draw some significance from the fact.

Justice Felix Frankfurter: I think it was a (Inaudible) impression, Mr. Tuttle.[Laughter]

Mr. Charles H. Tuttle: So, there are here of course, substantive issues and procedural issues.

Now, the substantive issues I think I have made entirely plain here, well, my undertaking to put them into sentence or two and the procedural issues are these.

I think we made a case.

Well, it was the preeminent duty of the federal court to protect us.

This was preeminently a federal case.

They -- this is not a case where the Supremacy Clause was merely invoked to protect some private rights which had no federal origin or creation.

Judge Bicks bases himself on the well-known Pullman decision but in all the cases that he cites and I say this without fear of contradiction, Foreign Commerce was in no way involved.

The rights that were involved were private rights rising under common law and the claim was that those rights were being invaded by a state court action in such ways as to constitute a violation of due process.

Well, that's a different situation because they are at least -- there was duality of jurisdiction and there were certainly no exclusive jurisdiction involved in the federal government nor was the question of preemption involved in the slightest way.

It was a pure case of discretion.

Now, so I say there was a fundamental error.

Now, at the start here, a misconception, an overlooking that we were in an area of Foreign Commerce and that what this Court was doing, the District Court was in effect saying, ?Nevertheless, the State of New York could cross this highway of Foreign Commerce built, controlled and operated by the federal government, the state could erect a sort of East Berlin Wall.

In other words, veto it.

I emphasize this wasn't a case of conflict between mere times.

This was a case where the Attorney General was saying we veto what the federal government had authorized and that's the reason why Judge Cashin said, ?This is the heart of the case.?

Justice Felix Frankfurter: Mr. Tuttle, it would help me if you would interrupt your sequence, your architectural order and tell me what it is you asked of this Court, what kind of a judgment do you want here?

Mr. Charles H. Tuttle: I would ask of this Court to --

Justice Felix Frankfurter: I don't mean to argue it.

I just want to know sort of what I'm looking.

Mr. Charles H. Tuttle: Yes sir.

I would ask of this Court that the Court direct Judge Bicks, and if necessary the other two judges so as to round out the mandamus, to accept exclusive federal jurisdiction and do one of two things, either convene a state court -- a three-judge court and grant a protection to us on a restraining order pending the convening or else, and I've been studying the daily case of two days ago by this Court, recognized that there can be no debate about the exclusiveness of jurisdiction in the national government for national purposes over a Foreign Commerce, and that consequently this referring it to the state court for some interpretation or finding out some policy about the Alcohol Beverage Control Law was referring the whole matter to a sovereignty which had no jurisdiction and consequently its courts would have no jurisdiction.

Justice Felix Frankfurter: You leave me a little in doubt whether to start a -- I'm referring from what you've said?

You started with the fact that the Court of Appeals must be reversed, is that right?

Mr. Charles H. Tuttle: Well, I'm asking a certiorari to the Court.

Now, my friend in his brief has described what has happened below as a morass of complexities.

Justice Felix Frankfurter: What do you want -- do you want -- are you suggesting that there must be a three-judge court?

Mr. Charles H. Tuttle: I am suggest -- I was coming here in the thought that there must be a three-judge court, but after I got here I read the opinion in the Bailey case and I saw, at least I thought I saw it, that the exclusiveness, the complete supremacy of the federal jurisdiction over Foreign Commerce was so undebatable, unlitigable that the District Court in ought to go ahead and decide the thing under 1337 itself, but I'll have to leave that to this Court.

You asked me what I was looking for, I propose two outs --

Justice Felix Frankfurter: May I say --

Mr. Charles H. Tuttle: -- either one is satisfactory to me.

Justice Felix Frankfurter: May I say in putting the burden on this Court, and leaving a day to show your usual (Inaudible)

Mr. Charles H. Tuttle: Well, Your Honor, I think it'd be little presumptuous for me to undertake, to interpret and --

Justice Felix Frankfurter: I didn't ask you to decide for us.

Mr. Charles H. Tuttle: The --

Justice Felix Frankfurter: I did seek some light, I did seek some light whether you think that this presents no question, no ground of unconstitutionality, therefore there's nothing for the three-judges to decide and therefore one judge should go ahead and do what -- whatever --

Mr. Charles H. Tuttle: The duty of a one judge would be to protect us against the assaults of the Attorney General of the liquor authority (Voice Overlap) --

Justice Felix Frankfurter: But in any event you are asking in effect an injunction against state authority --

Mr. Charles H. Tuttle: Yes sir.

Justice Felix Frankfurter: -- are you not?

Mr. Charles H. Tuttle: Yes sir.

Justice Felix Frankfurter: Therefore, normally that would require on the ground of what they're doing, has no constitutional basis (Voice Overlap) --

Mr. Charles H. Tuttle: Normally --

Justice Felix Frankfurter: -- therefore normally you would need three judges.

Mr. Charles H. Tuttle: Normally, I would with the reservation however, that is of this Court feels as I feel that there is no debate about the sole authority of the federal government and this Court has held that time and time again that the doctrine of the Bailey case is applicable.

Justice Hugo L. Black: May I ask you this?

Mr. Charles H. Tuttle: Yes sir.

Justice Hugo L. Black: When you say this Court has held it time and time again, I'm interested in the question that Mr. Justice Frankfurter asked you before, had it held it that a question of Twenty-first Amendment was raised?

Mr. Charles H. Tuttle: Well, I will -- I will go directly to --

Justice Hugo L. Black: That's very essentially (Voice Overlap) --

Mr. Charles H. Tuttle: Yes sir.

Yes sir, and I -- may I approach it in the way of discussing two surprises that I find and they are related together and I think I -- the second one which is the Twenty-first Amendment must be considered along with the first one.

Justice William J. Brennan: (Inaudible) alternative -- reject rather the alternative suggestive of the state's brief namely that we grant the writ and direct the constitutional three-judge court stay any further state proceedings pending reference to the state courts of the question interpretation (Voice Overlap) --

Mr. Charles H. Tuttle: I do reject.

Justice William J. Brennan: Your objection I gather is you don't like the reference from the state court?

Mr. Charles H. Tuttle: No, it isn't that I don't like the reference of the state court.

The ground is that if this Court should do that, this Court would be recognizing a duality of jurisdiction which doesn't exist.

Justice Felix Frankfurter: But the reason why you will answer, as you only said promptly, Justice Black's last question is that insofar as the Twenty-first Amendment comes in to operation, it may come into operation not merely the reference of a substantive constitutional issue, but if the Twenty-first Amendment has got that it may bear on whether or not an appropriate court may abstain by reference.

The two are involved, aren't they?

If there is something to the Twenty-first Amendment problem then I don't think that they will stay out of hand, abstention is precluded.

Mr. Charles H. Tuttle: The premises of that would have cause be that the Twenty-first Amendment can have at least some debatable application (Voice Overlap) --

Justice Felix Frankfurter: (Voice Overlap)

Mr. Charles H. Tuttle: -- I will address myself to that.

Justice William J. Brennan: Well, if this much is so though isn't it Mr. Tuttle.

No -- there's no decision yet under the Twenty-first Amendment from this Court which you can rely on us foreclosing that question, isn't it?

Justice Felix Frankfurter: Yes.

Mr. Charles H. Tuttle: Oh yes.

Justice William J. Brennan: (Inaudible)

Mr. Charles H. Tuttle: I got them in my brief in reply.

I immediately rushed to see what this Court have said about the Twenty-first Amendment in relation to Foreign Commerce.

Now, that's a different proposition in relation to Foreign Commerce.

I know what some of the decisions have been with reference to interstate commerce, but I'm now talking about Foreign Commerce.

May I approach this, this way?

In the first place, Your Honors will find on the brief of my friend this proposal, page 8, 38 and 40.

I think that the force, perhaps I am over complementing my brief, but I think the force of what we had put together here impressed to the Attorney General and that they felt they have to have an out somehow or rather and you'll find it as expressed as an alternative for this Court and says, here's a practical solution to rescue the case from a morass of procedural and jurisdictional complexity.

Now, that practical solution is this and I read it verbatim, it's on page 9.

Justice Potter Stewart: Of what, their brief?

Mr. Charles H. Tuttle: Their brief, yes sir, page 9.

It is suggested that this Court enter an order as follows grant the petitioner for mandamus, now that's what they've been fighting us out up to the present moment.

Second, remand the case to the single judge district court with instructions to cause the convening of a statutory three-judge District Court.

That's what they thought a step by step in all the lower courts.

Next, direct the statutory court which of course doesn't exist yet, to retain jurisdiction but stay further proceedings pending the disposition of the related question of state law by the state courts thereby, asking this Court in advance to decide against us an appeal which if the statutory court had -- have stayed in favor of the state court, we would've take it to this Court.

So here, we have a direction to a court that doesn't exist to decide a contention against us before we even have a chance to appeal to this Court.

Justice Potter Stewart: As a practical matter, purely as a practical matter.

I don't understand why conceptually you're all against this, but as a practical matter for your protection, what's so wrong with this from your point of view?

Mr. Charles H. Tuttle: Well, in the first place, it involves us in an extended litigation all the way to the Court of Appeals from the State of New York with all of the expense and the delays and furthermore there is a provision in the Alcohol Beverage Control Law quoted in my brief that no stay can be granted in any action with reference to that statute for more than 30 days.

Justice Potter Stewart: The federal court could stay anything it wants for as long as it wanted, isn't it?

Mr. Charles H. Tuttle: Well, that the federal court could stay its hand but how could it stay if the state court action --

Justice William J. Brennan: Oh no, would stay --

Mr. Charles H. Tuttle: -- with the limit of 30 days?

Justice William J. Brennan: Wouldn't it stay with the application of any of the New York Liquor Laws against your client --

Mr. Charles H. Tuttle: Yes, I think it could do that but I'm pointing out that any assumption that there is an adequate remedy in the state statute itself in collisions.

Now then, what strikes me as a fundamental in this proposal is that it's asking this Court to make an order which it has never made before in connection with Foreign Commerce to recognize a duality of jurisdiction, and if you do that, you're overruling a lot of decisions which are on my brief.

Chief Justice Earl Warren: We'll recess now Mr. --

Mr. Charles H. Tuttle: Yes sir.