A & P TEA CO. v. COTTRELL

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Argument of Walter W. Christy

Mr. Walter W. Christy: Mr. Chief Justice and may it please the Court.

The instant case presents a challenge to the -- to a Mississippi statute governing the sale of milk in Mississippi by out-of-state processors and brand producers.

My client, the Great Atlantic and Pacific Tea Company operates a processing, milk processing plant in the State of Louisiana at which it processes milk for its stores in Louisiana and Mississippi.

A & P also operates approximately 38 stores in the State of Mississippi.

A & P sought a permit from Mississippi, a certification from Mississippi for the right to sell its milk at its stores in Mississippi.

The permit was refused on the basis that the statute in question requires that a certificate be attached to the application, certifying that the State, in this case Louisiana, would give reciprocity to Mississippi’s inspections of its milk.

Basically, the statute says Your Honors that Mississippi will allow an out-of-state processor to sell its milk in Mississippi, if that company -- if the state, which inspects that company’s milk has standards and procedures that are substantially equivalent to those of Mississippi and if the milk receives at least a 90% rating under the public -- under an inspection administered by a Public Health Service certified officer.

It further provides, and this is the portion of the statute which we claim to be unconstitutional, that the milk would be accepted only if the sending State gives reciprocity to Mississippi’s inspections and accepts its standards, also.

Justice Byron R. White: Are you attacking the entire Mississippi regulation or just Section 11 of it?

Mr. Walter W. Christy: Well Your Honor, just Section 11 is the -- is the only section that deals with out-of-state processors, which is -- well, in answer to your question, only Section 11 and only part of Section 11, the part that requires that the processor obtain a reciprocity agreement from the State in which its plant is located.

Unknow Speaker : I think the rest of it is not for, it said it is (Voice Overlapping) even in the record or in your brief of anything.

It is just Section 11?

Mr. Walter W. Christy: It is a very confined issue, Your Honors.

We feel that the statute in question is -- is a clearly a burden on Interstate Commerce and should be stricken for that reason.

After the permit was denied, A & P filed suit in Mississippi in single judge court and asked for a temporary restraining order, this was denied.

The company was given leave to amend and ask for a three-judge court.

The outcome of this eventually was that the three-judge court denied relief and this appeal followed.

Your Honors, Mississippi defends its statute by claiming that its reciprocity requirement is health-related and is not economic in nature and it seeks to avoid the rulings, the vast number of rulings by this Court striking down similar statutes governing regulation of milk, sale of milk, in which economic purposes were found.

We feel that logic shows that the statue, or at least the reciprocity provision can only be economic in nature.

Mississippi says, “Well, if we get reciprocity from Louisiana, then we will accept their milk even though their standards are lower, if they will accept our milk.”

Well, if they accept it on the basis of --

Chief Justice Warren E. Burger: (Voice Overlap) conditions on getting into Mississippi, they must meet certain standards?

Mr. Walter W. Christy: There is no question in this case.

It has been stipulated that but for the reciprocity agreement, A & P's milk would be acceptable and that Louisiana standards are substantially equivalent to Mississippi’s.

Unknow Speaker : And you do not contest those provisions?

Mr. Walter W. Christy: No sir, only the reciprocity provision.

My point I was making was that the reciprocity has nothing to do with wholesomeness, because if -- if the reciprocity statement is signed and submitted then a permit is given and they will accept milk of a less wholesome nature.

Now, their --

Unknow Speaker : (Inaudible) nothing but a rule of administrative (Inaudible)

Mr. Walter W. Christy: I suggest Your Honor that the statue in question is -- is an economic measure passed by Mississippi to ensure that its processors have an available market before it lets in foreign competition.

Also, I think the record reflects that one of the purposes of the statute was so that Mississippi would not have to expend the cost of -- for out-of-sate inspections.

Mr. Cottrell, the defendant testified to that effect.

Further, along this line, Your Honors --

Justice Byron R. White: But, you would not insist that if they wanted to inspect that they would have to pay the cost, you would pay the cost?

Mr. Walter W. Christy: That was the basis -- well, I do not think that question is before the Court.

I realize that that could be -- it could be an alternative --

Justice Byron R. White: No one has ever suggested that it would burden Interstate Commerce to -- for -- for the state to spread the cost of inspection among those whom it inspects?

Mr. Walter W. Christy: I was going to point Your Honor that the Dixie Dairy --

Justice Byron R. White: If they are outside the State?

Mr. Walter W. Christy: The Dixie Dairy Case, which is cited by Mississippi and was also relied on by the three-judge court to deny the relief, this was a three-judge court in the Seventh Circuit, which held that the City of Chicago had the right to require out-of-state inspections of Indiana milk and that this was not a burden.

Well You Honors, the -- that case was overruled by the Seventh Circuit and remanded to the District Court and the District Court has since ruled that Chicago’s requirement of its own inspections is a burden on Interstate Commerce and as much as Indiana’s inspections are sufficient to ensure wholesome milk.

So, what I am saying is if that is, and that is now before the Seventh Circuit --

Justice Byron R. White: You do not need to take on that on here?

Mr. Walter W. Christy: I do not believe that this case requires that.

I think that the cases that this Court has decided in the area of milk, regulation of milk by the states, make clear that a -- a State cannot interact an economic barrier against foreign competition, in consequence of its own local producers.

Furthermore, if -- if -- and we recognize that milk in these cases, have recognized that the regulation of milk is not the State’s interest and it is a matter of local concern, but if there are -- if there is a regulation that burdens commerce and there are alternative means available, which will be less of a burden, then the regulation must fall.

The Dean’s milk case mentioned that.

There is no question here that if the reciprocity requirement is not economically related -- is not related to the health, then they do not need it, there is no -- there is no reason for it.

The statute could stand without that requirement and Mississippi would get just as wholesome milk as it would with it and along these lines the -- the record reflects that four dairies in the Louisiana, four processors in Louisiana are at this time and have been exporting milk to Mississippi without a reciprocity agreement.

Now, Mississippi has been unable to explain why they allow four processors to do this, but they would not allow A & P to do it and this goes to the second part of our argument, that bearing on the equal protection claim, but I think it illustrates also that the reciprocity has absolutely nothing to do with wholesomeness of milk.

Your Honor, Mississippi also claims that their statute survives a constitutional attack because they have -- they have safety valves built in there.

The safety valve they claim is that their -- the statute provides that the -- the governing authority can inspect the milk and see if meets domestic standards.

So that if we do not have a reciprocity agreement, we can still get into Mississippi with our milk by meeting their domestic standards, but -- and a footnote in their brief, they admit that they have no means set-up for any type of inspection at all.

So, we submit that if the statute does allow for -- for my client to get in with an out-of-state inspection, it is being applied in an unconstitutional manner because no basis or no -- no procedures has been established to -- to allow this.

Mississippi's, I think the brief indicates that the main thrust of their argument is that Mississippi is not to blame, but Louisiana is to blame.

Do not -- do not come to us and ask to get your milk in.

Go to Louisiana and make them give you a reciprocity agreement.

Well, Your Honors, A & P is not Louisiana.

We cannot force Louisiana to enact legislation.

Unknow Speaker : Between whom is the agreement (Inaudible)?

Mr. Walter W. Christy: It is a statement, when -- when you apply for a certification, the Health Officer from Mississippi sends you a form stating the requirements.

One of the requirements is a form attached to that, which has a place to fill in the name of the other state's governing authority, health authority and they have to sign it, stating --

Unknow Speaker : That authority has to sign it?

Mr. Walter W. Christy: That authority has to sign it and of course Louisiana --

Unknow Speaker : There is no other way of complying with the requirement?

Mr. Walter W. Christy: There has been none and Louisiana’s position --

Unknow Speaker : (Inaudible) place of the requirement?

Mr. Walter W. Christy: No sir.

Unknow Speaker : You simply have to get to Louisiana’s authorities to sign that form?

Mr. Walter W. Christy: Yes sir.

Unknow Speaker : In the form that is printed by Mississippi?

Mr. Walter W. Christy: And this we have been able to do, but Louisiana's position is, we do not -- we are not going to sign a reciprocity agreement.

We will let any body’s milk come into our state if it meets our standards and Louisiana does conduct out-of-state inspections.

Justice Lewis F. Powell: Louisiana does not have a reciprocity agreement with any other state, does it?

Mr. Walter W. Christy: No sir.

Justice Lewis F. Powell: And there is no statutory authorization for it?

Mr. Walter W. Christy: There is, I believe the -- the regulations under which Louisiana operates, give the -- give the authorities, the discretion to enter into a reciprocity agreement if they want to, but they have never done this.

Justice Lewis F. Powell: Does the record shows why not, if they have the authority to do it?

Mr. Walter W. Christy: The record contains copies of all the -- the various statutes and regulations, but I do not believe there is any explanation of why they have never entered into it.

We have -- well Your Honors, there is a -- there is a letter from the Chief Health Officer in the Louisiana, explaining the position of Louisiana and that is basically what I said that we do not believe reciprocity is necessary, we let any body’s milk come in if it meets our standards and that -- that has been their position and that is as far as they would go, but Mississippi would not accept this and refuses to issue the permit.

As I mentioned, we believe, although our principal argument is aimed at the Commerce Clause question that the record reflects that A & P has been denied equal protection of the law. Mississippi responses to this by saying, “Well, you have never brought out the regulations under which these four dairies were allowed to continue to do business in -- in Mississippi without reciprocity.”

I believe the record shows the only regulation in effect is Section 11 and if Mississippi applies Section 11 by allowing four processors to do business without reciprocity, while not allowing A & P to do business without a reciprocity, then I believe that is a clear denial of equal protection as the statute is applied.

Justice Potter Stewart: The justification, as I understood at least on the part of the Sate is that these four others are permitted to do business under -- by virtue of a Grandfather Provision, they were doing business at the time this--

Mr. Walter W. Christy: That is what I understand --

Justice Potter Stewart: Or it came into effect that you presumably were not --

Mr. Walter W. Christy: And -- and the State and the claim is made that we should have attacked the Grandfather Provision.

Well, frankly nobody seems know -- nobody knows about any Grand -- the record does not contain or mention of any provision as been none brought into any body’s attention and -- and frankly I do not know of what Grandfather Provision Counsel is referring to.

I do not believe the counsel does.

We are talking about Section 11 and if there is sec -- another law that says these dairies can come in without complying with the law, it was never brought to any body’s attention.

Justice Potter Stewart: Is it a fact that these dairies were doing business in the Sate at the time of the enactment of the law and that you were not?

Mr. Walter W. Christy: Yes, that is correct.

They -- they were doing business before 1967 and A & P began operations about 1972.

I might add that A & P is sustaining a considerable loss of revenue as a result of Mississippi’s recalcitrance of adjusting the cost of buying milk in Mississippi for it stores, as opposed to the price, the cost that it could process the milk for itself have been estimated approximately $195,000 a year and of course, this is not the only damage they are suffering.

I would like to save a little time for rebuttal, Your Honor.

Thank you.

Argument of Heber Ladner Jr.

Mr. Heber Ladner Jr.: Mr. Chief Justice and may it please --

Mr. Chief Justice and may it please the Court.

I am Heber Ladner Jr., Special Counsel for Dr. Cottrell in this matter.

Section 11 of our regulation is a part of the solution and not a part of the problem to the interchange of milk between the several states.

In the first place, this regulation has created wide ranging commerce.

It has brought in milk from 16 diaries in 9 States.

It has worked, in short, under the Commerce Clause.

Second, unlike the Baldwin versus Seelig line of cases in this Court, this regulation does not favor local producers.

It ensures merely parity of local producers.

That is to say, the reciprocity provision does have teeth, but it allows Mississippi producers to have access to the markets from which imported milk comes.

Justice Byron R. White: You do not suggest that this milk does not need the health standards?

Mr. Heber Ladner Jr.: I am saying that once a Certificate of Reciprocity is not forthcoming, substantial compliance with Section 11 is impossible and that an out-of-state producer is then, thrown back upon --

Justice Byron R. White: You do not say that milk is a -- not need -- does not need health standards?

Mr. Heber Ladner Jr.: We do say that it fails to meet health standards.

Justice Byron R. White: Because of the reciprocity provision?

Mr. Heber Ladner Jr.: Well, because of the standards applicable to domestic producers.

Absent reciprocity and everything Section 11 entailed, then an out-of-state producer is thrown back upon the domestic standards, much as the State of Louisiana says it utilizes domestic standards, but Mississippi did -- does not at present conduct out-of-state inspections because it adopted Section 11 to obviate that responsibility.

In other words, we say our -- our constitutional responsibility was fulfilled by agreeing to let out-of-state milk come in upon a reduced standard of sanitation, if by the same token Mississippi milk can -- can move.

Now, that is result of the regulation.

The methodology of the regulation is to simply exchange standards of inspection.

We say that there is a health-related purpose in one state agreeing that a sister State conducts credible health investigations.

Unknow Speaker : Is it possible that Louisiana standards maybe higher than Mississippi’s, is it not?

Mr. Heber Ladner Jr.: Your Honor, on this record I would think not.

We made the assertion in our brief and the trial court made the assertion much as finding the fact that Mississippi standards exceed Louisiana’s and I find that unchallenged in the appellant’s brief.

We say that we -- the regulation serves a health-related purpose because it gains out-of-state assistance in inspecting milk and it ascertains a reasonably reliable interstate standard.

Justice William H. Rehnquist: But, is the position Mississippi here so much different than that of the City of Madison in the Dean Milk Case?

There are two Madisons that were not just not going to make out-of-state inspections.

Now, you have an addition to that policy, a reciprocity provision, but you pretty well have to defend the reciprocity provision, do not you?

Mr. Heber Ladner Jr.: Yes, Mr. Justice Rehnquist we do, but we say that we -- we are not isolating ourselves, because of the fact that the Section 11 Reciprocity Policy has worked, is produced.

We are in a strange position of having complied with the -- the Commerce Clause of the Constitution and in the same breath we charge with -- with not complying with it.

We have used one of those reasonably non-discriminatory alternatives.

We decided we did not want make out-of-state inspections and so instead we adopted a policy of reciprocity.

It is compulsory, but it does work.

Now, I think this Court's cases on the Interstate Commerce Clause focus upon the whole thrust of Interstate Commerce and not just one State vis-à-vis another.

Justice William H. Rehnquist: Is -- but is the only goal of the Interstate Commerce Clause to make sure that Mississippi has enough milk coming into suit its needs or is it not also to give the Louisiana producers a right to send milk into the Mississippi if there are no health objections to it?

Mr. Heber Ladner Jr.: We think it is somewhat broader than just giving Louisiana processors the right to come in.

It is a substantial, but incidental burden on the Louisiana processors who -- who were not in compliance with Section 11, but we think the Interstate Commerce Clause is -- is broader than just Mississippi processors’ right or Louisiana processors’ right.

Justice William H. Rehnquist: But it -- it is not just a minor burden on them.

They simply cannot do anything as I understand, Louisiana processors that want to ship milk in the Mississippi?

Mr. Heber Ladner Jr.: Well, we say to that the Sate of Louisiana has the power to execute a reciprocity agreement.

Justice William H. Rehnquist: But as your -- as your opponent points out A & P is not the State of Louisiana?

Mr. Heber Ladner Jr.: That is correct, but we -- we think that there is presently some litigation in Louisiana State Courts that has come up since this case, we frankly question why Louisiana was not sued first?

Why us?

In other words, there is a duty on the part of Louisiana official to enter into reciprocity agreement.

It is in the original record, it is paragraph 5 B1 of the Louisiana regulations.

Justice Byron R. White: Who do you sure -- who do you sue in the Louisiana, the legislature?

Mr. Heber Ladner Jr.: The Sate Health Officer for failing to carry out his duty under paragraph 5 B1.

Unknow Speaker : How do you work out this duty on the part of Louisiana to reciprocate?

Mr. Heber Ladner Jr.: Well, I say that the State -- the Louisiana regulation reads as follows: the State Health Officer …

Unknow Speaker : What page are you on?

Mr. Heber Ladner Jr.: I am on page 8 of my brief.

Unknow Speaker : Thank you.

Mr. Heber Ladner Jr.: “The State Health Officer may accept the certificate of inspection of a duly authorized government representative, agent or agency of such other State, wherein such products are produced.”

Justice Byron R. White: Why should not -- why should not a Mississippi producer sue the Louisiana, he has the same constitutional rights to free flow of products among the states?

Mr. Heber Ladner Jr.: Perhaps, one should, one has not.

Mr. Swagman, a well known, perhaps nationally known -- I think Mr. Swagman helped bust the fair trade law several years ago and he is at it again on the milk regulations and he has obtained an injunction in the Louisiana Sate Court.

He and a Mississippi producer is co-planing it, having enjoined the Louisiana from easing to accept this --

Justice Byron R. White: If Loui -- if Loui -- if Mississippi's health standards and the product -- and the production of milk in Mississippi are comparable to Louisiana’s, Louisiana probably cannot keep them out, can they?

Mr. Heber Ladner Jr.: Well, that covet rule that Mississippi milk could not be kept out, but significantly under the proviso that Mississippi milk must meet Louisiana standards to come in.

Justice Byron R. White: You do not object to that?

Mr. Heber Ladner Jr.: No, I do not.

I would say that would be the result of this case of Section 11, when enjoined.

I think we would be thrown back to where we were before.

There has been no challenge in this case that our health regulations for domestic producers are arbitrary or capricious or violate the Commerce Clause and of course, there might be some question as to how far Section 11 falls or what parts of it fall, but we would say it would be a sort of a status quo situation if our reciprocity provisions were enjoined.

In effect, you would have, almost admittedly you would have A & P's products, which do not meet our domestic standards, are simply up against our domestic standards, so Section 11 is productive.

Justice William H. Rehnquist: Well, you could turn -- you could turn them down on the basis of their failure to meet your domestic standards then, could you not?

Mr. Heber Ladner Jr.: Yes, Your Honor we could, we could.

Unknow Speaker : Well, why do not you?

Mr. Heber Ladner Jr.: Well, I could not speak for the administrative officials I represent, but that possibility could be confronted later, but we say this -- this regulation is wiser and more productive for interstate commerce through all of the Sates, than having these picket union problems of how many square feet of floor space is in the milk parlor or what the temperature of the milk is, when it goes to the cooling trucks.

We had opted this regulation to try to avoid those hurdles and it is -- but again, to get back to Justice Rehnquist's inquiry what -- what is the thrust of the Commerce Clause in a case of this import.

You just look at the two parties or that you look at all commerce coming through and we think there is -- there is authority in -- in this Court’s books in Polar Ice Cream versus Andrew’s, Florida case, wherein the local processors were required to buy all of the output of local producers at a certain price and Florida came to this Court and argued that well, in effect we have competition on the distributor level, milk comes from all over.

This Court in the footnote analyzed that contingent and said, well, Florida of all the southeastern states has the least volume of interstate movement in milk at the distributor level.

Well, we have a high volume.

Proof shows that this regulation has produced of high volume of interstate trade in milk, is not the kind of historic Commerce Clause case, where a State is favoring local its producers or its local economy.

All this regulation does is obtain the imparity.

It says in effect Mississippi produced milk under substantially equivalent regulations can go wherever milk can come to Mississippi from and that is -- and that is the result under Section 11.

Second, I will explain some ways in which this reciprocity regulation is health-related, but it -- it also has other legitimate state interests behind it.

As I have said before it achieves parity for local producers and there is an economic justification for the -- for the regulation in that it holds down the price of milk.

Regulation --

Chief Justice Warren E. Burger: When you say it achieves parity, you mean for the Mississippi producers, processors and producers?

Mr. Heber Ladner Jr.: Yes, Your Honor.

Chief Justice Warren E. Burger: Is -- in your view is that a permissible factor under the Commerce Clause?

Mr. Heber Ladner Jr.: I think it is, Your Honor.

I think this Court’s cases outlaw only favoritism, but not parity.

There is an aspect in which Mississippi processors are -- are disadvantaged, under our Section 11, that is their standard for sanitation and health and other inspection requirements are higher than those of the State of Louisiana.

I do not know whether that results in increased production costs, but at least Louisiana would be bringing in milk under Section 11, if the State complied at a relaxed standard.

Now, why does not Louisiana comply?

We think it is relevant to this case, a Court of equity look at all of the facts in this case, including the fact that Louisiana stubbornly refuses to enter into reciprocity with -- with any state.

They have the power to do so.

We have -- we have wondered why a lawsuit has not been filed against the State of Louisiana and then -- the last was one, while this case was brought up on appeal.

The regulation of Health and Sanitation --

Unknow Speaker : Mr. Ladner, what would be the basis of that lawsuit?

Why does Louisiana have a duty to reciprocate?

Mr. Heber Ladner Jr.: Well, Your Honor, I -- I spoke about duties earlier and I was -- I was leading myself several steps down the way.

They have a discretionary duty under this statute to enter into reciprocity agreements.

We think that it cannot be said that the statute is there for no good purpose.

They have the discretion.

They cannot exercise the discretion capriciously or in a fashion that it is at war with the Commerce Clause and we say they are.

They are failing to accept out-of-state milk, not just from Mississippi, but from every where.

Unknow Speaker : Well, are not they a sovereign State?

Mr. Heber Ladner Jr.: Well, I suppose that as much as that concept has meaning, they are, but I am just simply saying that they are exceeding the bounds of their discretion in not considering reciprocity when that position disadvantages out-of-state producers for Commerce Clause reasons.

They are acting unconstitutionally, acting beyond the bounds of their discretion under the Commerce Clause.

Louisiana has the trade bearing in this case and Mississippi has the solution, yet Mississippi is sued in this case and we are here worrying about whether a regulation in effect works and produces the widest possible scope of commerce.

Unknow Speaker : Mississippi does not have a solution either?

Mr. Heber Ladner Jr.: Well, they would have the solution if Louisiana would cooperate, nine other states have and we seen no --

Justice Byron R. White: I think Mr. Swagman should have won his case in Louisiana, based on the constitution?

Mr. Heber Ladner Jr.: I think that he probably should have, Your Honor.

Justice Byron R. White: Because Louisiana must under the constitution accept clean milk from other states?

Mr. Heber Ladner Jr.: With the distinction that Louisiana is not enjoying a --

Justice Byron R. White: Well, I know, but --

Mr. Heber Ladner Jr.: (Voice overlap) milk from all over --

Justice Byron R. White: That would be the grounds that Swagman would win on, is it not?

Mr. Heber Ladner Jr.: Yes sir, it would.

Justice Byron R. White: And, Mississippi is subject to that same requirement?

Mr. Heber Ladner Jr.: That is correct, but once again, he won a peric victory.

Justice Byron R. White: (Inaudible)

Mr. Heber Ladner Jr.: I will take it the interstate Commerce Clause is a constitutional reciprocity.

Justice William H. Rehnquist: What if Louisiana’s position is that the milk approved by Mississippi inspectors is just not sufficiently healthy compared to what we demand in Louisiana, therefore, we are not going to let it in?

Mr. Heber Ladner Jr.: Well, that was their position and the Court said that -- the State Court in Louisiana said that in order for Mississippi milk to come in.

It must meet Louisiana’s health requirements.

Justice William H. Rehnquist: Now, that is certainly not a violation to the Commerce Clause, is it?

Mr. Heber Ladner Jr.: That is correct, that is correct nor would it be a violation of the Commerce Clause for Mississippi to exact those same standards from Louisiana, absent Section 11, so A&P could win the battle and loose the war if it just succeeded in having this Court enjoin Section 11, because the record contains indications that Mississippi standards exceed those of the State of Louisiana and of course no one has spoken about the cost of out-of-state inspections necessary to verify the quality of Louisiana milk, that might bring about a price differential, in its own way.

So --

Unknow Speaker : (Inaudible)

Mr. Heber Ladner Jr.: That is correct Your Honor.

It is presently having milk processed by Mississippi producers under its own label.

In marketing they are at a less advantageous profit ratio than it would like.

I have a hard time -- even though I see a substantial burden with respect to Mississippi bound Louisiana Commerce in this case, I do not see any discrimination of constitutional import.

There is certainly no intentional discrimination and such discrimination as result, it will be called disparity of results discrimination is produced by the action of the State of Louisiana, that is what did it had to loose by signing a reciprocal agreement with Mississippi that was valuable or that could be reconciled with the interstate Commerce Clause, we say nothing.

Now, as I say, once this Baldwin versus Seelig line of cases is analyzed, the result would simply be that we are not favoring domestic commerce with respect to all other out-of-state commerce.

Now, on the matter to conclude, the matter of the equal protection claim; jurisdictionally we say it is not here.

There is just simply been no amendment to the complaint to reflect a practice or procedure by the State of Mississippi in allowing Grandfather Clause access.

This was simply an after thought in the case.

The counsel for A&P at one point determined that some dairies from the State of Louisiana were coming in, so he decided that was an equal protection violation, because others could come in, but he could not.

Well, how is A&P to be advantaged if this Court should enjoin Mississippi from carrying out its Grandfather policies?

In effect, that would just disadvantage A&P’s competitors without helping itself, but jurisdictionally --

Unknow Speaker : Well, is that the point, to put them all in an equal basis?

Mr. Heber Ladner Jr.: Well, I cite Golden versus Zwickler for the authority that as a standing matter you do not have standing merely to disadvantage your competitors if you cannot obtain any beneficial relief yourself, but this controversy about the equal protection belongs in the Court of Appeals, that is what I am saying.

Louisiana makes a statement, in its jurisdictional statement that Mississippi has adapted this Grandfather Clause policy ultra varies without any statutory authority.

Well, that in itself implicitly concedes that you do not have an injunction of a state wide import.

What you have is sort of a quasi declaratory judgment.

As a jurisdictional matter, the controversy is just simply -- the equal protection controversy is simply not here --

Unknow Speaker : Can you explain why Mississippi permits the Grandfather operation?

Mr. Heber Ladner Jr.: Well, that was a matter that --

Unknow Speaker : Are the reasons just as applicable to those other producers as they are to A&P?

Mr. Heber Ladner Jr.: Well, Your Honor, once again I am supposing because it was not developed in the record in this case, but once poses that when Section 11 was adopted, there were predecessor regulations of some sort, under which these companies in Louisiana qualified and I had never -- I do not get the constitutional implications, even from an equal protection standpoint of the Grandfather Clause treatment.

In other words, there were rational reasons at the time for these dairies in Louisiana to come in and at the time Section 11 was adopted, it applied only looking forward and not backward.

Now, access by this Grandfather Clause dairies is in one or two instances that I know of, merely local access.

That is another reason why the regulations allowing Grandfather Clause treatment on a state wide statute of state wide import.

In other words, some of the dairies in Louisiana had access to merely three counties, of the coastal counties in the State of Mississippi adjacent to New Orleans, but it is largely undeveloped on this record and we say it is merely an after thought that its -- jurisdictionally is not proper in this Court and cannot be raised, except in the Court of Appeals.

Thank you for your attention.

Chief Justice Warren E. Burger: Very well, Mr. Ladner.

You have anything further Mr. Christy?

Rebuttal of Walter W. Christy

Mr. Walter W. Christy: Just briefly, Your Honor.

As to the last matter raised, I think the record will show that the information as to the four other dairies -- processors came out during the testimony at the initial hearing.

A&P had no prior knowledge of this.

The matter or the issue as to equal protection was raised before the three-judge court.

It was briefed by the parties and the three-judge court, specifically ruled on the issue.

It is in their opinion.

They reasoned that they could not enjoin Mississippi in that practice because if they did, it might prevent Mississippi from later requiring reciprocity from the full processors.

I do not exactly understand the reasoning, but they did rule on it.

I would just like to make a final point.

Counsel perhaps inadvertently, I am sure it was inadvertently, but he made the statement -- Louisiana makes a statement, in his jurisdictional statement, we are no Louisiana, we are A&P and I think the whole case, as far as the defendant, appellee is concerned is that we are to be treated as though we are Louisiana.

We are simply a processor in Louisiana trying to sell our milk in Mississippi and we feel the barriers erected by Mississippi to doing this are an unconstitutional burden on interstate commerce and they should be stricken and we should be allowed a means of bringing our milk in.

This is what the constitution requires and it is not sufficient, I submit to say, “Well, we are the good guys.

We have the reciprocity and that is all we have to do.

”That is not all he has to do and I submit that although their goals maybe laudable, the effect of the law is to lock us out and we submit that the law should be stricken.

Thank you.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.