RAYMOND MOTOR TRANSPORTATION, INC. v. RICE

Transcript: 

Argument of Albert Harriman

Chief Justice Warren E. Burger: Mr. Justice Brennan is unavoidably detained for a short period, but he will continue to participate in this case on the basis of the records, the recording of the oral argument and so forth.

You may continue counsel.

Mr. Albert Harriman: Mr. Chief Justice and May it please the Court.

At this time I would like to complete the argument on the equal protection phase of this case and get on to the second question which involves the allegations of a burden on interstate commerce.

In addition to the exceptions discussed yesterday, the appellants' complaint of two others, one is that grants a longer load privileges to the hauling of pulpwood, pulpwood is produced on Wisconsin farms and this exception benefits farmers.

They also complained of a twin trailer allowance in 55-foot lengths for hauling of milk from the point of production to the point of first processing. This also benefits farmers.

None of these exceptions which are just mentioned or those we discussed yesterday, favors intrastate commerce at the expense of interstate commerce.

None of these isolates local industry from foreign competition.

These are reasonable classifications.

They are designed to promote a proper police power public purpose.

Justice William H. Rehnquist: Could an Illinois milk producer get an exemption under the milk exemption to bring milk into Wisconsin?

Mr. Albert Harriman: No, I do not think so.

Justice William H. Rehnquist: The regulation on its face does not seem to prohibit, doe it?

Mr. Albert Harriman: Well, I do not know quite how to answer that.

I think it is designed to let the Wisconsin farmers ship their milk to the point of first processing.

I was not aware that it would be available for an other State farmer.

Justice William H. Rehnquist: Is there anything in the record about how the Highway Commission whereby grants or permits has construed it?

Mr. Albert Harriman: I would think not because it is very new.

It happened really after this case was heard.

It is very new.

Justice William H. Rehnquist: Oh! This exemption was created after the case was heard?

Mr. Albert Harriman: That is my recollection, yes.

Unknown Speaker: Mr. Harriman, yesterday, during the argument, Mr. Lederer told us that, as I understand him at least that no twin trailer combination of any length could be operated in your state without a permit and yet I notice in the District Court's opinion, it is stated that Section 348.08 concerns vehicle trains and provides that except by permit, no vehicle shall draw more than one other vehicle where the overall length of the combination exceeds 55 feet which would imply to me at least that a double trailer of 55 feet or less could be operated?

Mr. Albert Harriman: No, I do not think so because the 55-foot limitation in the statute applies only to two vehicle unit, a tractor and the trailer.

It is limited to two vehicles.

Unknown Speaker: A semi so called.

Mr. Albert Harriman: Yes, semi, as the illustration on it.

Unknown Speaker: So that no double trailer of any length can be operated as a general rule without a permit.

Mr. Albert Harriman: That is my understanding.

Unknown Speaker: Is that a safety purpose or a shorter than 55-foot --

Mr. Albert Harriman: I think it has been considered to be a safety purpose.

The --

Unknown Speaker: And that I just do not understand that --

Mr. Albert Harriman: Well, I suppose its history, the older case can say the whole thing.

The Sproles case arose out of Texas.

The Court said that a State may prohibit trains if it chooses to.

It assumed that there in length and in configuration of trains, and of course I am talking about railroad trains, that there was an element of the danger.

Unknown Speaker: So if what you say is correct and certainly your brother on the other side agrees with you, the District Court really wrote its opinion under a misapprehension, did it not, when it said that a twin trailer of 55 feet or less could be operated without permit?

Mr. Albert Harriman: I did not realize that it is said that and --

Unknown Speaker: I have just read what it says.

Mr. Albert Harriman: I am sorry.

Unknown Speaker: And provides that except by permit no vehicle shall draw more than one other vehicle where the overall length of the combination exceeds 55 feet.

In fact, your law provides that twin trailers of any length are prohibited.

Mr. Albert Harriman: Yes, that is true.

Unknown Speaker: So, that the District Court misapprehended the law, the State Law.

Mr. Albert Harriman: Apparently this provision regarding these new trucks, I believe was not called to the attention of District Court.

I believe this is something that occurred after the decision.

Chief Justice Warren E. Burger: Let's assume that is true that the District Court was under a misapprehension, what do you think what impact does that have on this case?

Mr. Albert Harriman: I do not see any impact on the case.

I do not understand that, that was the motivation behind their decision.

We point out that the police power may be exercised to promote agriculture and industry, that it is not an improper thing to do.

Upon what is argued that if you make a special exception for others, you must do it for all or at least you may do it for us, the plaintiffs in this case.

This is similar argument that if you regulate one abuse, you must regulate other similar abuses.

This Court has rejected that analysis in Sproles v. Binford.

They said the legislature does not have to regulate all or none and is not bound to cover the whole field.

Then in Railway Express v. New York in more recent case, equal protection does not require that all evils of the same type be eradicated or none at all.

With the Court's approval I would like to proceed to the burden on the interstate commerce aspect of this case.

We hope to have a little time to discuss that we --

Justice Thurgood Marshall: We must get our facts straight on the burden when these trucks come through with the two trailers, they have to unhook when they hit the Wisconsin line?

Mr. Albert Harriman: Yes.

Justice Thurgood Marshall: And then when they leave they hook up again?

Mr. Albert Harriman: Yes.

Justice Thurgood Marshall: And that does not interfere with interstate commerce?

Mr. Albert Harriman: No, we do not contend that it does not.

It obviously is a burden, but we think that it is a permissible one, but it obviously is a burden, no question of it.

This Court has announced two different tests in deciding interstate commerce questions.

The first one is the rational basis test, announced in South Carolina v. Barnwell and which this Court applies to highway safety cases.

It is also announced another test we call the balancing test, it appears to have appeared first in the Long Train case in Arizona, Southern Pacific v. Arizona and more recently stated in Pike v. Bruce Church.

The rational basis test has been applied in safety cases and the balancing test in other cases.

The question before this Court is whether the balancing test should be extended and applied to highway safety cases.

The older cases clearly pointed out that size and weight are elements of safety and may be taken into account by legislatures in regulating highways.

The leading case in 1938, South Carolina v. Barnwell said that regulation of the use of State highways is peculiarly of local concern and the Court has never reiterated from this statement.

It also said such regulations are inseparable from a substantial effect in the interstate commerce, and there they announced the test, this rational basis test whether the legislature in adopting the regulations has acted within its province and whether the means shows are reasonably adopted to the insight.

They went onto point out that the State may impose nondiscriminatory restrictions as safety measures and said the Court does not sit as a legislature and that the reasonableness and wisdom are not for the Court.

The court does not substitute its judgment even where interstate commerce is involved and it said the Court looks to see whether the legislative choice is without rational basis, that is statement of the rational basis test.

Unknown Speaker: Mr. Harriman, I am frank to say that I understood by this long list of exemptions that Wisconsin has do not always exempt conducts and like create just as much safety hazard on Wisconsin roads as the nonexempt?

Mr. Albert Harriman: I think comparing anyone truck in anyone spot, at anyone time, I think the answer would have to be yes.

The hauling from plant to plant that we have like in American Motors, is a limited trip, we discussed it yesterday, it is 45 miles.

These milk hauls, I do not know just what these milk hauls or where they go, but they go from the farm to the plant where the milk is hauled, delivered for processing.

Pulpwood is hauled usually from a farm or field or would somewhere to one of our paper mills and of course these car carriers run over the State, and obviously their length is as dangerous or non dangerous, depending on which side of this case you take, as perhaps any other vehicle, but I think it is a justified police power exception because automobiles are very long and you can only get a few on a trailer.

The extra 10 feet makes it possible for them to haul an extra two vehicles and of course the State v. Barnwell takes a position that it is better to have only that many long trucks running then to have a much larger number of long trucks running.

Chief Justice Warren E. Burger: Do you suggest that the State can be more tolerant on the safety factors with respect to local industries than interstate haulers?

Mr. Albert Harriman: Yes, if it is based upon a proper police power purpose, but I do not think that many of these are more tolerant on the locals than they are on interstate haulers.

The hauling of these automobiles is one and they like shipping from Milwaukee to Kenosha on this plant to plant, that is something by its very nature an intrastate commerce.

That kind of a thing could not be applied to interstate commerce by its very nature.

Justice William H. Rehnquist: Do any of the exemptions apply so as to favor intrastate common carriers over interstate common carriers?

Mr. Albert Harriman: Well, without to and I have realize you are asking me for examples, without thinking of a specific example, I would have to say no.

I do not think they apply in such a way as to discriminate against out of State carriage.

Unknown Speaker: You mean in the case that none of the exemptions are the goods hauled by haul for hire?

Mr. Albert Harriman: Oh! I am sorry, haul for hire.

I do not understand that our law discriminates between a for hire hauler and what we call a private carrier.

Unknown Speaker: Oh! I know, but there is any of the milk carried for hire or any of the logs carried for hire?

Mr. Albert Harriman: Oh! I am sure that milk is carried for hire.

Justice William H. Rehnquist: An interstate carrier could carry that as well as an intrastate carrier, could it not?

Mr. Albert Harriman: Yes, and some of those shipments would be interstate because they would go from the farm across the State line.

The --

Justice Thurgood Marshall: Is there anything in the record to show that any local options were denied or is it not a fact that all he had to do is to go and say, I am a local resident of Wisconsin and I would like an exception?

Mr. Albert Harriman: Well, I do not think he can do that.

It would have to fit it into --

Justice Thurgood Marshall: Does there anything in the record say you cannot?

Mr. Albert Harriman: Well, I think that the record shows that the we have a series of statutory, exemptions.

Justice Thurgood Marshall: And you have a whole series of exceptions.

Mr. Albert Harriman: And you have to fit into those -

Justice Thurgood Marshall: You have whole series of exceptions.

Mr. Albert Harriman: Yes and you would have to fit into those and if you did not--

Justice Thurgood Marshall: And if trucks that are large as the ones that are being excluded?

Mr. Albert Harriman: Yes, yes the policy of the State is to have no trucks over 55 feet, but there are, there are these exceptions --

Justice Thurgood Marshall: Unless they are local.

Mr. Albert Harriman: No, in do not think unless their the local.

The hauling of automobiles is the best example that they do not have to be local and --

Justice Thurgood Marshall: Although you do have a local one right there, American Motors?

Mr. Albert Harriman: Well that one yeah, that by it is very nature local, yes as two plants were located in the State.

Justice Thurgood Marshall: What evidence if I may give the first one, did you put it in about safety?

State put -

Mr. Albert Harriman: The evidence that the State have, well we had two witnesses, that is there are two witnesses.

A man by name of Robertson testified as to a study he had made for, I believe it is the Insurance Institute of Highway Safety, comparing collisions between vehicles and comparing particularly larger vehicles colliding with small vehicles, and counting the severity of the damage in the number of deaths and in which vehicle the deaths occurred and things of that kind.

That was the evidence we have put in.

The other evidence was the testimony of our Highway Commission Chairman which I alluded to yesterday.

We testified to the reasons behind Wisconsin attitude that he knew because he had been in the Legislature and he talked to --

Justice Thurgood Marshall: And his testimony was the citizens of Wisconsin did not like these big trucks?

Mr. Albert Harriman: That pretty well summarizes this.

Justice Thurgood Marshall: Well, did any of letters say, we do not like out of State big truck?

Mr. Albert Harriman: I do not know if that happened.

It is the bigness that scares.

Justice Thurgood Marshall: That is what what they were (Inaudible).

Mr. Albert Harriman: Yeah, sure.

Justice Thurgood Marshall: And that is the only evidence the state put up?

Mr. Albert Harriman: Well, yes that is true.

Justice Thurgood Marshall: To allow you to say that the State was interested in safety?

Mr. Albert Harriman: Yes, but --

Justice Thurgood Marshall: You are putting no evidence to contradict all these government --

Mr. Albert Harriman: That is true.

Justice Thurgood Marshall: You are putting no evidence to contradict that?

Mr. Albert Harriman: That is true.

The evidence if we had it, would have been in the mind of the legislators as to why they acted this way and the best we could do was to offer Mr. Huber's testimony who had been there.

Unknown Speaker: Could I ask --

Mr. Albert Harriman: Yes.

Unknown Speaker: You may have covered this and I missed it.

Did you say you agreed or you did not agree with the standard expressed by the Court in the Pike case?

Mr. Albert Harriman: Well, I agree with it, but I do not believe that it is applicable to highway safety cases.

Unknown Speaker: Do you think that just in safety cases it is a much looser step, the rational --

Mr. Albert Harriman: Well, in safety it is looser Pike said so.

Pike makes the point of saying, but this is not like safety cases and referred to the Long Train case.

Now, in the Long Train case, they were announcing, this Court was announcing that those restrictions were too much on the burden on commerce.

Unknown Speaker: Oh! Yes if they have put them aside, they may have put them aside as not judging them, but using instead a different standard?

Mr. Albert Harriman: Yes, yes.

In the Long Train case they did some balancing and there they specifically said, we point out --

Unknown Speaker: Well, Pike is not a non balancing standard?

Mr. Albert Harriman: I am sorry Pike was not a non balancing.

That is right Pike was a balancing standard, so was the Long Train case and in the Long Train case, this Court specifically said that this is very different from the highway safety situation, so each of these balancing cases has in effect distinguished the highway safety matters.

In Railway Express Agency case this Court said that as to the burden on interstate commerce great leeway is allowed to local authorities, we are talking about highways now, even though the regulation materially interferes with interstate commerce.

I have mentioned the Long Train case, and how they distinguish to Barnwell.

Justice William H. Rehnquist: The Court has certainly made some distinction, has it not, between trains where the train operates over tracks owned by the Railroad Company and highways where the trucks operate over highways owned by the State in effect?

Mr. Albert Harriman: I do not recall that distinction being made in the cases.

The point was that the highway safety is more pertinent to State regulation than train safety.

That is the way I read the Long Train case.

Justice William H. Rehnquist: Well, you think that then is the distinction between Arizona v. Southern Pacific in Barnwell?

Mr. Albert Harriman: Yes.

The Bibb case was one involving an Illinois regulation regarding mudflaps and it was very restrictive because only Illinois required it and Arkansas prohibited it and other States would accept either one.

The Court there said that if there were only the cost of this thing we would not strike down the law.

We would apply Sproles, Barnwell and Maurer.

They also said the same thing if we had to resolve the safety issues, but they said here the burden is too great because of this problem of interlining.

Interlining is the problem, is the function of transferring trailers between carriers.

They said here the burden is too great because of interlining.

There is the Full Crew law case that we have cited where the Court said they would not attempt to balance, and then the Pike case where they did develop this balancing test and said that it will be upheld, the statute would be upheld unless the burden is clearly excessive in relation to the local benefits, but they said we are not here dealing with the State legislation in the field of safety where the propriety of local regulation has long been recognized and that is when they cited the Long Train case.

Unknown Speaker: Did not cite Barnwell, did they?

Mr. Albert Harriman: I believe not.

For that proposition they cited just the Long Train case.

I believe they did not cite Barnwell and the problem of interlining which was so pertinent in the Bibb case, we say is not much of a problem here in these twin trailers.

We say that the Wisconsin Law does not prevent interlining.

Trailers can be hauled singly.

This makes it more expensive, but it does not make the problem of have to change fender guards.

Unknown Speaker: As a matter of physical, mechanical fact can each one of these double trailers be hitched down to a semi and --

Mr. Albert Harriman: Hitched singly, yes.

Unknown Speaker: There is no difference in the coupling (Voice Overlap)

Mr. Albert Harriman: They are interchangeable, they are the same unit, yeah.

We say that Bibb stands as an authority.

Justice Thurgood Marshall: So you have to put a --

When you do put it on, you have put a flywheel on the back or the --

Mr. Albert Harriman: All you have to do just take off the rear dolly and that the rear trailer will fit on the, it is called the fifth wheel, it is flat diskettes on the back of a semi of the truck or tractor.

Justice Thurgood Marshall: In the back of a tractor?

Mr. Albert Harriman: Yeah, they fit.

Bibb's --

Justice Thurgood Marshall: (Voice Overlap) onto back of the first trailer, you have to put another dolly on it, do you not?

Mr. Albert Harriman: No, but to hook up two trailers yes.

Justice Thurgood Marshall: Yes.

Mr. Albert Harriman: Yes, there is a dolly.

Chief Justice Warren E. Burger: Do you have anything further Mr. Lederer?

Argument of John H. Lederer

Mr. John H. Lederer: May it please the Court.

In answer to your question Mr. Justice Stewart on interchanging these vehicles, it is true that each of the vans of a twin trailer can be hauled separately by a twin trailer tractor, but a twin trailer tractor is a different piece of equipment than a semi trailer tractor.

A twin trailer cannot be interchanged with a semi trailer tractor and similarly a semi trailer van cannot be placed on a twin trailer tractor.

Thus Wisconsin by forcing use of semi trailers in the State of Wisconsin and through the State of Wisconsin interferes with interchanging of equipment, because the Wisconsin equipment is not compatible with the equipment used in the other states.

The equipment which is the industry standard for general commodity carriers.

I think it is pertinent in this case that the State Highway Commission where the authors of the administrative regulation which bans the twin trailers of any length or prevents permits for being issued for them, the Chairman of the Commission was asked whether he had any opinion as to the safety of these vehicles.

He stated that he was not prepared to comment on that and would choose not to comment on it.

No Wisconsin highway official has testified that twin trailers are unsafe.

Indeed the only Wisconsin highway official who had an opinion as to their safety, Mr. James Carn (ph) who was the Motor Vehicle Commissioner of the State, testified that he had reviewed the record, not the record in this case, but he had reviewed various reports and surveys in preparing to testify before a public hearing and he had concluded that twin trailers were safe.

No one in this entire record has stated that twin trailers are unsafe, no one.

The consistent opinion of the experts, the consistent opinion of State officials who had experience with these vehicles is that they are safe.

I think this factor removes this case from other cases.

The Court is not called upon the second guess the State legislature.

Here the State legislature or the Highway Commission more properly has made a decision apparently on no data, but it is done as it permitted in anachronism to exist in the State.

They are unable to justify the burden that they have imposed on interstate commerce by anything other than the supposition that it might serve safety and that supposition has been destroyed by the evidence in this case.

Only if there is an irrebuttable presumption, a presumption where it does not matter what the facts are, an irrebuttable presumption that vehicle size is tied to safety to I think that the State of Wisconsin should prevail in this case because that is the sole thing that they have going for them.

The presumption and the assumption which seems a reasonable one the surface that larger vehicles are less safe vehicles, that is not the case here.

I thank the Court.

Justice William H. Rehnquist: Mr. Lederer on discriminatory aspect of your claim, do you think that your client as a carrier can raise a claim of discrimination as between Wisconsin manufacturers and out of State manufacturers, if the treatment between interstate carriers and intrastate carriers is even handed?

Mr. John H. Lederer: I believe they can in regard to the inter plant permits because those permits apply not just to the manufacturer but to the manufacturer or its carrier, but there is no difference in the application that I know of to the carriers themselves.

In other words, if we were to assume that American Motors or perhaps as Cardwell Boat Company which runs boats from one side of Wisconsin to the other, desired to hire an out of State manufacturer or out of State carrier to carry its boats, presumably it could, but that would seem unlikely given the situation.

Justice William H. Rehnquist: But you do not contend there is discrimination as to in manufacturers' right to hire an interstate carrier as opposed to an intrastate carrier for that purpose, do you?

Mr. John H. Lederer: No, I do not think there is discrimination there.

I think the discrimination that exist here is the fact that Wisconsin has exempted so many of its own industries, those that are of importance to the State from the regulation while continuing to apply the regulation to industries not important to the State.

Justice William H. Rehnquist: Can you as a carrier object to discrimination against an industry if there is no discrimination between the carriers?

Mr. John H. Lederer: Yes, I think we can.

Justice William H. Rehnquist: What is your authority for that?

Mr. John H. Lederer: I do not --

Unknown Speaker: Has not the rule then does discrimination against interstate carriers.

Is not that the distinction between intrastate commerce and interstate commerce?

Mr. John H. Lederer: Yes, I think the --

Unknown Speaker: If an interstate carrier, if a carrier that engages in interstate commerce hires out to do some intrastate commerce, it is still engaging in intrastate commerce at that time, does it?

I mean if you hired out to carry to do the inter plant carrying you would still be an intrastate commerce I suppose for that purpose?

Mr. John H. Lederer: That would be correct and that would as I suppose provide a basis for discrimination between interstate carriers and intrastate carriers in the sense that many of the exemptions that Wisconsin gives, it gives only to operations within the state.

Certainly that is true in regard to the inter plant permits.

I thank the Court.

Chief Justice Warren E. Burger: Thank you gentleman.

The case is submitted.

Transcript: 

Argument of John H. Lederer

Chief Justice Warren E. Burger: We will hear arguments next in 76-558 Raymond Motor against Rice.

Wait a few minutes Mr. Lederer.

I might say in the meantime, if I observe that both you and your friend are from Madison, if you want to get back to Madison tonight, you will have to truncate your argument otherwise, you will stay overnight and we will finish with you in the morning.

Mr. John H. Lederer: Very well, Your Honor.

Chief Justice Warren E. Burger: I think you may proceed Lederer.

Mr. John H. Lederer: Mr. Chief Justice and may it please the Court.

This is a Commerce Clause case.

Appellants, Raymond Motor Transportation Company and Consolidated Freightways are interstate general commodity carriers who utilize twin trailer type vehicles in their operations.

A twin trailer vehicle is a type of truck that consist of a truck tractor to the rear which is attached to 27 foot van riding on the rear of the truck tractor on a arrangement called a Fifth wheel, a turntable type arrangement.

To the rear of this 27 foot van, there is attached a dolly which has a second turntable type arrangement on it and a second 27 foot van.

Twin trailer offer significant operating advantages to general commodity carriers.

Because of the ability to separate the individual vans that make up a twin trailer and make them into new combinations, general commodity carriers are able to substitute the interchanging of vans for the unloading, sorting and reloading of cargo which is necessary when conventional 55 foot semi trailers are used.

Because a twin trailer can be operated as a single unit, that is a single van with a single tractor.

Twin trailers can be used for downtown delivery and pickups, where normally if a general commodity carrier we are using semi-trailer in this operation, you would have to unload the semi-trailer, reload the cargo into a straight truck, a short normal truck without a semi-trailer to operate in a downtown area.

Justice Thurgood Marshall: But do you have them and to regulate do you need to operate throughout the city.

The Double trailer?

Mr. John H. Lederer: That is correct, what happens is the --

Justice Thurgood Marshall: What do the cars do, just ramp on the curbs is it that?

Mr. John H. Lederer: No sir, these trucks are no wider and would not be significantly longer --

Justice Thurgood Marshall: But, they are longer.

Mr. John H. Lederer: No sir, not when they are operated in a Downtown city.

The rear trailer of the twin trailer is removed, what you have then is a short unit.

Justice Thurgood Marshall: I thought you said you said, you had both of them going through that.

Mr. John H. Lederer: No sir, just one.

Justice Thurgood Marshall: Well, I then will not stay with it? [Laughter]

Mr. John H. Lederer: But by being able to use that one unit, carriers are able to use the same equipment that they use for long distance operations in a downtown city.

They do not have to purchase and use a different type of equipment.

Justice William H. Rehnquist: But where is the transition made?

You are not saying that your 65 foot rear rig runs only on the interstate side.

Mr. John H. Lederer: Substantially, no -- not only, no.

The general commodity carriers have terminals.

Where these units would be broken down where cargo would be loaded into them, unloaded so forth, these terminal are normally located quite near the interstate highways.

In the case of Wisconsin where we have requested permission from the state to use the interstate highways, Raymond Motor Transportation has no terminals in the state.

Made no request other than the interstate highways and Consolidate has two terminals, one is located approximately one mile from the interstate highway in Milwaukee.

The other is located approximately four miles from the interstate highway in Madison.

Both are down for four lane divided highways.

They requested the authority to operate from the interstate to those terminals.

But that would be the extend of their operations in the state as a 65 foot twin trailer.

Justice William H. Rehnquist: So, if the extent of your claim is to operate your 65 foot rig as such only on four lane limited access highways?

Mr. John H. Lederer: Only on specific interstate highways in the State of Wisconsin plus the very limited one mile and four mile additional operation from the interstate highway to the terminal.

Justice William H. Rehnquist: Well, but then it is more than my question.

When you say the one mile and the four mile, it is not just strictly confined to interstate --

Mr. John H. Lederer: That is correct.

That is correct.

It is in the case of Raymond.

Unknown Speaker: It has incidentally -- do many states have this bar?

Mr. John H. Lederer: There are approximately 12 states plus Wisconsin which ban twin trailers.

All of the states which ban twin trailers with the exception of Wisconsin are located on the eastern sea board.

Unknown Speaker: I though I have seen many of rigs like this, on highways in this area.

Mr. John H. Lederer: There is -- in the Appendix, there is a map which shows which states permit them and which do not.

Justice Thurgood Marshall: Not you, not State of New York had something that we hear of (ph).

Mr. John H. Lederer: New York permits twin trailer on the throughways in New York, Massachusetts also permits them on the turnpikes in Massachusetts.

Unknown Speaker: Mr. Lederer while you are interrupted, is there an exception in the State of Wisconsin from Tomah (ph) West to La Crosse into the Twin Cities?

Are you --

Mr. John H. Lederer: I am familiar with that area, there is not an exception.

Unknown Speaker: I had the other impression from reading the paper I must have been --

Mr. John H. Lederer: There is not.

Wisconsin does have a number of exemptions to its general vehicle limits.

Wide exemptions, wide number, the only exemption for twin trailer usage in the State of Wisconsin is a permit which is granted to a Wisconsin manufacturer of these vehicles.

Unknown Speaker: I understand that.

All right.

Unknown Speaker: So, there is no exemption for specified highways that you know of specifically from Tomah west.

Mr. John H. Lederer: There is no existing exemption.

The legal issues in this case are two.

The first question is whether Wisconsin's ban constitutes an undo burden on interstate commerce.

Which cannot be justified by legitimate local purpose.

The second question is whether or not Wisconsin's entire regulatory scheme is discriminatory.

Both those questions in large part depend on a single factual issue, whether or not twin trailers are safe or are unsafe.

If in fact twin trailers are safe as a conventional semi-trailer units which Wisconsin permits on its highways, then there is no legitimate local purpose served by the Wisconsin ban.

If in fact, twin trailers are safe, then the state cannot justify it's discrimination against this type of vehicle and against interstate commerce which uses this type of vehicle on the basis of safety and in our opinion, no criterion would exists that would permit them to do the discrimination that they do.

Justice William H. Rehnquist: Do you recognize any considerations other than safety.

How about just aesthetic ones that you just do not care to be if you are driving a car in the midst of 65 foot long trucks.

Mr. John H. Lederer: The state was required by the District Court in a pre-trial conference to amend its answer to state in that answer all justifications that the state had for its ban on twin trailers.

The state responded that its sole justification was safety.

Justice William H. Rehnquist: And you feel its bound by that at this point?

Mr. John H. Lederer: I feel the state is bound by that.

I think, there could be other reasons that might be imagined, most of those were raised in this case or at least were considered for instance Road Ware.

The state conceded in its answer that twin trailers do not cause increased road ware and some irrelevant after that concession testimony came into the record that they do not increase road ware.

I suppose it would be possible to think of other reasons, but I think safety certainly would be the only local purpose that would have a substantial enough reason that it could justify what is a very great burden on interstate commerce.

Justice Thurgood Marshall: Mr. Lederer, getting you are into a personal matter, when you go down these highways like with all the rain we have had last few days and you pass by a trailer truck with a single one, you have a pretty hard time at that rain coming up off the road, this just doubles it.

Mr. John H. Lederer: It does not your Honor.

Justice Thurgood Marshall: Why not?

Mr. John H. Lederer: There is a technical explanation, the-- I suppose the short answer is that there is 20% less splash and spray with the twin trailer than with the semi-trailer.

The principle reason for that is the splash and spray which you see coming at your vehicle, a large part of it originates from the tandem drive axles of a semi, there are two axles that are located quite close to each other, the wheels are rotating and spraying water at each other where they hit, break up and spread out in mist that is common with trucks, that is located both at the tractor and at the rear of the semi-trailer, with the twin trailer there are no tandem axles.

Justice Thurgood Marshall: Virginia passes a rule and (Inaudible) be glad to think of that.

Mr. John H. Lederer: I think one of the things that is very interesting on that particular point and the District Court raised that point in its discussion of safety, there is extensive testimony on the record in fact of eleven vehicle types which were tested, in test, they were under government supervision of eleven vehicle types, the twin trailer was the vehicle that put out the least splash and spray, it put out its splash and spray in a pattern that was lower and not as wide as other vehicles and the vehicles that put out the most splash and spray.

Justice Thurgood Marshall: Is this on the sides?

Mr. John H. Lederer: That is on the sides, that is on the sides and behind.

They measured the density of the splash and spray coming out from the vehicle and from behind the vehicle.

Chief Justice Warren E. Burger: Now are you asking us, the nine of us, as you did the three judges on the District Court to second to guess the state of Wisconsin on all these technical matters.

Mr. John H. Lederer: I suppose in a sense it could be phrased a second guessing of the State.

But I don't think it is truly.

Chief Justice Warren E. Burger: So, let us change it then, make it work. Reviewing the action of the State.

Mr. John H. Lederer: The State advanced as the sole reason for its justification safety.

I think certainly the burden then fell on a appellate, plaintiff at that time to produce evidence to show that twin trailers are safe.

Chief Justice Warren E. Burger: And you did not persuade the District Court?

Mr. John H. Lederer: We did not persuade the District Court because the District Court applied a legal presumption from prior decisions of this court in the 1920s and the 1930s to the effect that longer vehicles or larger vehicles, the vehicle size is inherently tied to safety.

That presumption I think is completely rebutted by the evidence in this case.

It is a difficult presumption to rebutt because it has the asemblance of reasonableness to it.

I think people automatically assume that larger truck will per se be a less safe truck.

The type of trucks that we are talking about here though are a substantially, physically different piece of equipment than the semi-trailer truck that you are used to.

I say used to because they are the most common trucks that you see on the highways around here.

Justice Potter Stewart: Mr. Lederer you have mentioned earlier that there is somewhere here, a map showing what States have this and what do not.

I remember that from reading these briefs sometime ago, but I can not find them out.

Mr. John H. Lederer: I believe it is at page 278 of the Appendix, Your Honor.

Justice Potter Stewart: Thank you very much.

Chief Justice Warren E. Burger: Now you have been speaking of just one aspect of the safety, what about the problem of passing?

It does passing on the road, if anyone wants to violate the law sufficiently to pass one of these trucks, introduce a greater element of risk, encountered--

Mr. John H. Lederer: It is not.

Chief Justice Warren E. Burger: High speed traffic.

Mr. John H. Lederer: Or if, it is not the opinion of numerous experts, these were both professional engineers and civil engineers plus State officials from the States of Minnesota, Kansas and other States who had experience with twin trailers.

Uniformly testified that the additional length cause no passing problems we are dealing with an interstate Highway our four lane divided highway where all the traffic is going in the same direction there is no fear that a car is going to come down in the same lane in which you are passing --

Justice William H. Rehnquist: Yeah but even if you are passing in the left of two lanes both go in the same direction don't lots of people prefer not to be right along side the vehicle in the other lane.

You rather either be behind him or ahead of him.

Mr. John H. Lederer: That is true.

Justice William H. Rehnquist: So to the extent that you spent time passing him, there is a certain safety hazard.

Mr. John H. Lederer: I don't believe --

Justice William H. Rehnquist: What if, if your car has a blow off while you are passing a truck, you are in worse shape than if you have a blow off with no other traffic around. Don't you think?

Mr. John H. Lederer: That would be true at the time of trial when Wisconsin permitted 55 foot trucks, the difference in time was two-thirds of second if you assume a ten mile passing--

Justice William H. Rehnquist: That may not be much but it is some time --

Mr. John H. Lederer: At the present time, Wisconsin has changed its law now it permits 59 foot trucks say you are talking about a matter of four-tenth of a second.

Justice William H. Rehnquist: Well how long does it takes to pass altogether?

Mr. John H. Lederer: It would be approximately six, I am not sure, Your Honor.

Justice Thurgood Marshall: What about Jackknife?

Mr. John H. Lederer: These trucks are far or less likely to jackknife than a semi-trailer.

Justice Thurgood Marshall: And the tests show that?

Mr. John H. Lederer: The test show that, they are quite conclusive on that respect, its one of -- quite a few respects where these twin trailers are not only as safe as the conventional semi-trailer but are substantially safer.

Justice Byron R. White: Well if things are so clear and things would be so much more efficient and convenient for shippers and (Inaudible) and every body else.

What do you ascribe Wisconsin's stubbornness?

Mr. John H. Lederer: I think you have a situation where the original statute of the state passed --

Justice Byron R. White: You just think that they just do not understand the evidence or --

Mr. John H. Lederer: No, I do not think that is the case at all.

I think you have two things.

One you have a statute which has been in existence for a long period of time.

The weight limits go back long -- length limits go back long before twin trailers.

But you have had a total absence of domestic political pressure in the State to make the change.

That is the result of several factors.

The first of those is the way general commodity rates are set.

They are set on a regional basis.

A Wisconsin shipper does not pay a substantially higher rate because the commodity carrier has more expensive transportation into, out of and through Wisconsin that rate is set on the basis of Wisconsin, Illinois, Indiana, Ohio and a number of other States.

So he bares no direct cost burden, certainly not a substantial one, because of the inefficiencies which Wisconsin Statute creates that is --

Justice Byron R. White: I would think it would be enough to convince Wisconsin, if you make more profit from your operations in Wisconsin, Wisconsin will get more taxes out of you.

Mr. John H. Lederer: I suppose they would, I think --

Justice Byron R. White: Well, I would think that would be enough for a reason for them to allow you to be more efficient.

Mr. John H. Lederer: I think there is a second factor there and that is that the type of vehicle which we are talking about here, excuse me I am sorry, there is a second factor in why there is no domestic political pressure and that is because of Wisconsin's entire regulatory scheme.

It originally had a statute which was fairly simple.

Over the years every time a domestic political group or domestic interest group, something of importance to Wisconsin's economy, has had problems with the length statute or the width statute or the weight statute, they have been able to get an exemption.

Justice Byron R. White: Is there some opposition to Wisconsin to any change based -- out of competitive factors.

Mr. John H. Lederer: Yes, there is.

I think it is certainly not in the record, but local carriers and Wisconsin presently operate with the semi-trailer equipment to the extent that a carrier outside of Wisconsin operates with twin trailer equipment.

It is far or less likely that he is going to attempt to expand its root structure into Wisconsin and compete with the local Wisconsin carrier.

Chief Justice Warren E. Burger: You do not want us to try to evaluate factors like that.

Do you?

Mr. John H. Lederer: No, I don't think that this court should.

Chief Justice Warren E. Burger: Even if we knew how to?

Mr. John H. Lederer: I think the simple question here and it is relatively a simple issue.

There is a substantial burden on interstate commerce.

There is no dispute or serious dispute in the record as to the nature of that burden and as to the substance of it, it is a severe burden.

If it is to be justified it has to be justified on the basis of safety and the record in this case is a very exhaustive and comprehensive record which shows in its entirety, that twin trailers are as safe or safer as the conventional semi-trailers which the State permits.

Justice Thurgood Marshall: Record also show that on either the single or the double trailer, if you have got two pounds of pressure wrong in one tyre by accident you are going to have something to happen.

Mr. John H. Lederer: The record does not show that.

Justice Thurgood Marshall: But you know it is true.

They have to keep those tyres absolutely perfect.

Mr. John H. Lederer: One of the --

Justice Thurgood Marshall: In air, and if you have a careless driver with one – that is one amount of damage or lack of safety, but if you got a careless man with two, you double the carelessness.

Mr. John H. Lederer: I think that question, I do not know the answer to the specific question about tyre pressures, but I think that general question is answered in the record.

The United States Department of Transportation conducted studies to determine what the actual accident experience with twin trailers compared to conventional semi-trailers was, they went to a number of commodity carriers who use both types of equipment and survey their operations over a five year period.

What the summary, the bottom line of that I suppose was the twin trailer suffered approximately two-thirds or three-quarters of the total number of accidents per mile of operations that the conventional semi-trailers did.

Justice Thurgood Marshall: Let us take the one that is absolutely clear, but if you have a drunken driver and he has two, then he could be damaging than one.

Mr. John H. Lederer: If he makes no attempt to maneuver the vehicle and no attempt to stop the vehicle the answer is yes.

Justice Thurgood Marshall: And he is drunk?

Mr. John H. Lederer: If he is drunk and he makes no stop or maneuver, the answer is yes, if he is drunk or not drunk--

Justice Thurgood Marshall: If he is drunk and he does try to stop or maneuver he will do twice as much damage.

Mr. John H. Lederer: No sir.

If he is --

Justice Thurgood Marshall: You lost me some place.

Mr. John H. Lederer: These vehicles -- he does not have twice as much truck in terms of weight, he does not have twice as much truck in terms of length.

You are talking about total difference in length of 10 feet.

This combination; 65 foot longer than 55.

He has slightly more and he has --

Justice Thurgood Marshall: He has slightly more danger.

Mr. John H. Lederer: No sir.

He has slightly more length, he has slightly more weight but he has --

Justice Thurgood Marshall: Slightly more danger.

Mr. John H. Lederer: No sir, I do not -- he has a truck which can maneuver better and can stop better.

Justice Thurgood Marshall: That is right and if he is a drunken driver and he has two, the first one will reckon, other one would just go on his (Inaudible).

Justice Lewis F. Powell: Do I understand you to say that a 65 foot truck and stop in a shorter distance than and quicker than a 55 foot one.

Mr. John H. Lederer: Yes sir, that is correct.

The 65 foot twin trailer.

The reason there are about five different reasons, why this is true.

One is because they simply have better breaks.

They have a type of break that uses as a valve which is called a fast air transmission valve, which results in almost simultaneous application of the breaks.

It has a better tyre foot print.

There is more because of better axle loads, better weight distribution.

Justice Lewis F. Powell: Are you comparing with a 55 foot twin-trailer truck?

Mr. John H. Lederer: Excuse me sir.

Justice Lewis F. Powell: Are you comparing the 65 with --

Mr. John H. Lederer: No, to a 55 foot semi-trailer.

The type of vehicle which is permitted in Wisconsin and every other State in this country.

A 65 foot twin trailer compared to 55 foot conventional semi-trailer.

Justice Lewis F. Powell: What is the status on the Wisconsin law of the 55 foot twin trailer.

Mr. John H. Lederer: It is prohibited by exactly the same administrative regulation which prohibits a 65 foot twin trailer.

That administrative regulation prohibits twin trailers of any length.

From one foot to a hundred feet.

Wisconsin by statute empowered the Highway Commission to grant permits for twin trailers up to 100 feet in length.

A trailer trains is the phrase which Wisconsin uses.

The highway commission passed an administrative regulation which said it would grant those permits only for vehicles used for municipal rough use and only for vehicles in transit from manufacture to dealer or for repair.

In regard to the breaking of the 55 foot semi-trailer and the 65 foot twin trailer, those test are in the record and a point of fact, those test show that the 65 foot twin trailer when more heavily laden then the 55 foot, then a semi-trailer type vehicle; I don't that it was a 55 foot but a semi-trailer type vehicle.

The twin trailer was able to stop in a shorter length of road.

That was true both on ice and snow and on a dry pavement.

Unknown Speaker: Mr. Lederer, are you going to get a little more deeply into the exemptions as distinguish the safety features of the case.

Mr. John H. Lederer: Yes, your Honor.

I think the exemptions are important and part because of the question which Mr. Justice White raised, which is why there is no domestic political pressure in Wisconsin, to permit this type of vehicle.

Wisconsin, over the years, has responded to its local interest wherever the Wisconsin vehicle limits, have constricted or restrained or created problems for Wisconsin Industry, Wisconsin has granted them a permit to use a longer vehicle.

They have -- over the years, this has become -- the exemptions almost swallow the rules.

I believe in, over a three year period, where there was a record in this case, is still number of exemptions granted, Wisconsin granted over 40,000 exemptions which were general or annual exemptions that is not a single trip exemption, but an exemption that would apply to a vehicle for an entire year and would be unrestricted as to mileage or use.

Over a three year period, there would have been over 40000 of those.

Unknown Speaker: Aren't they categorized, at least under the regulation?

Mr. John H. Lederer: There are numerous types, probably one of the largest usage is auto transporters, car carriers.

They are permitted to run 65 foot long trucks in Wisconsin, Wisconsin of course is the home state of American Motors.

We have large General Motors plant in our State.

There are a variety of different trucks, which are permitted to run in 65 foot lengths or longer under the industrial inter plant permit section.

This statute grants the highway commission, the authority to give to a Wisconsin manufacturer.

Unknown Speaker: Any plant in the State can have an inter plant exemption?

Mr. John H. Lederer: Thats right --

Unknown Speaker: Plus, what if you only have one plan, can you get an exemption to the state line?

Mr. John H. Lederer: You can.

From the plant to the state line.

Not the reverse.

Unknown Speaker: But no one and also for importation.

Mr. John H. Lederer: Not for importation.

Unknown Speaker: What if the plant wants some raw materials?

Mr. John H. Lederer: Then presumably it cannot obtain an industrial inter plant permit.

Unknown Speaker: So, you could not consolidate, you could not deliver to a plant that could in 65 foot trailers all over the plant could export in 65 foot trailers.

Mr. John H. Lederer: That is right.

Assuming that we could get an industrial inter plant permit-- plant could export, we could not deliver, that is correct.

Unknown Speaker: But, you mean, In there own equipment?

Mr. John H. Lederer: In there own equipment, they could only export, they could not import.

Unknown Speaker: Well, how about, may the people they hire to carry their goods out, have 65 foot trailers.

Mr. John H. Lederer: To carry their goods out, yes.

They may always use 65 foot trucks whether with general commodity carriers.

Their own hired carriers or whatever, for export.

They cannot for import.

Unknown Speaker: If you are hauling for a plant with a permit, you could use 65 foot trailers to carry their goods out.

Mr. John H. Lederer: Well, presumably under the terms of the statute we could.

In actuality we cannot gain a permit under an industrial inter plant --

Unknown Speaker: I know, but the plant can.

The plant can.

Mr. John H. Lederer: It is questionable, I do not know whether the highway commission would grant it.

The Wisconsin regulatory scheme on the scheme of exemptions is discriminatory.

But, it is not discriminatory on it's face.

Wisconsin in general with the exemption of the industry inter plant permits, that does not make its exemptions applicable solely to Wisconsin Industries.

Instead what Wisconsin has done, is taken those industries important to the State, whether it be milk production, pulp wood, automobile manufacturing, agricultural machinery and has granted to those industries an exemption.

An out of state agricultural machinery manufacturer could use the exemption too.

But by tailoring its exemptions to Wisconsin's needs, what has resulted is a discrimination affect and not on the face.

I would appreciate if I could reserve the rest of my time for rebuttal.

Chief Justice Warren E. Burger: Mr. Harriman.

Argument of Albert Harriman

Mr. Albert Harriman: Mr. Chief Justice and may it please the Court.

Very briefly I am going to get back to the subject of safety.

But, the safety aspect, is I think obviously the one that has chiefly concerned Wisconsin's residents.

And it is not a scientific concern based upon lots and lots of scientific tests such as we have in this case.

The reaction of the general public, the general driver who writes to his legislature and says, I am afraid of these, do not let them into our state.

Now, we have the testimony of the Chairman of our State Highway Commission.

His testimony is set forth in the Appendix at the end of our brief.

He explained, that he had been in the legislature and he had seen these letters and he was aware of the public's reaction and fright over them and then as Chairman of the Highway Commission, he said, that out here we do as the legislature directs and we know that the legislature has failed to pass several laws allowing these longer trailers, trucks, vehicles.

And consequently, we know what we are expected to do out here.

And I asked him from his own experience and his statement was, as I reflect upon the kinds of letters, I am not reading all the words, in the days when I was still in the legislature, there concern meaning the constituents, seem to center around a commingling of vehicles.

That is -- well, I am sorry, I will not interpret.

In this case 10 feet longer in the case of trucks and the ability to be able to pass to such a vehicle, caused a great deal of concern among the people at that time.

Now, that is the reason that the law has not been changed in our state, the people have told the legislatures, they do not want it to change and they are afraid of these vehicles.

I say, no one claims that this is based on any scientific studies.

This is people driving on the highway, worried about what they see and afraid of big trucks.

That is, as I understand it.

That is the basis for, for the fact that our law has not been changed.

Unknown Speaker: Are they similarly afraid of the big trucks from Wisconsin plants?

Mr. Albert Harriman: They have not, as far as I know they have not told the legislatures that.

Unknown Speaker: It is alright as long as it is a Wisconsin manufacturer.

Mr. Albert Harriman: I do not know if they are aware, that there are, some of the -- I mean generally aware that there are some of these other other big trucks.

Chief Justice Warren E. Burger: I suppose that has less impact because it is not as pervasive throughout the State, is that true?

Mr. Albert Harriman: Well, that is what I am thinking and I will get into this a little further.

One of the principle uses of longer vehicles is made by American Motors, hauling car bodies from Milwaukee to their assembly plant at Kenosha.

I understand that its about 45 miles and they do haul lots and lots of car bodies and they are big long vehicle.

Now, that as far as I know is the only place they haul these car bodies, just on that one route, 45 miles long.

Justice Potter Stewart: And how long are those trucks overall.

Mr. Albert Harriman: I think they are over 65 feet.

Justice Potter Stewart: Over 65.

Mr. Albert Harriman: Yeah, they are fairly long I think -- as I remember about -- they need not all be the same, about 70.

Justice Potter Stewart: Maximum though of, close to 70 feet.

Mr. Albert Harriman: I think close to 70, yes and although the number of miles per year, is probably, relatively high.

The dispersal throughout the state --

Justice Potter Stewart: It is a 45 mile run, or it is a 90 mile round-trip.

Mr. Albert Harriman: 45 mile run in -- its own people.

Justice Byron R. White: What do they do when they are assembled?

Do they ship them up by truck?

Mr. Albert Harriman: Yes, I am sure they do.

Justice Byron R. White: On long trailers.

Mr. Albert Harriman: Well, yes then they go out on this vehicle that is displayed in the Appendix of page 276 and I wanted to describe that, that is 65 feet long and that is a truck with a super structure on it.

With a vehicle -- and this is the load now, mounted over the cab and two behind the cab.

Now, that is all the truck part.

Then there is a trailer and the trailer is pulled by this truck and the trailer has four cars on it and for a total --

Justice Byron R. White: Six.

Mr. Albert Harriman: I believe it is seven, because there are three on the truck and four on the trailer, the picture is taken from a height, but I believe you can see down under there.

So, that by sticking one up over the cab and by obtaining a 65 foot length, they are able to hold seven vehicles.

Justice Byron R. White: It is still a pretty big vehicle.

Mr. Albert Harriman: Yes, yes.

Unknown Speaker: Pretty scary too.

Mr. Albert Harriman: You think so.

Unknown Speaker: Every time I go pass one of them I surely get scared.

Mr. Albert Harriman: Well, I do not feel too comfortable going by them either.

Now, these long -- these particular car carriers are used or available for use by any car carrying company.

Hauling for any manufacturer to any place in the state all the way through or just part way through.

It is not an exemption granted to locals or to a local industry or to benefit a local industry.

It is granted to benefit the whole automobile manufacturing industry from Detroit, to the consumer who buys the car to drive and all the people in between.

Justice William H. Rehnquist: Well, if Pontiac is sending cars from Michigan to Seattle can it get permit to have one of these kind of car carriers go through Wisconsin --

Mr. Albert Harriman: Yes.

Yes, there is no problem with this particular type of vehicle.

Justice Thurgood Marshall: Is there any thing wrong with that picture, comparing the two sizes?

Mr. Albert Harriman: As far as I know it is accurate.

As I understand they are 65 feet.

Justice Thurgood Marshall: It is unbelievable these are one's good and one's bad.

Mr. Albert Harriman: The difference is that one has a limited use and it is granted -- obviously granted to assist the automobile industry, but not just to Wisconsin's industry and they are allowed to run throughout state and --

Justice Thurgood Marshall: It is the question about the automobile industry as compared to the media industry or the --

Mr. Albert Harriman: I suspect that the reason for pressure, see if you took another --

Justice Thurgood Marshall: They had the bigger lobby.

Mr. Albert Harriman: I do not think a bigger lobby if you took a ten feet off of there you will have to take two cars off not that those cars are ten feet long, but you still would not have space enough left enough for those two cars.

Now, why this special exemption was given to the automobile industry, I do not know.

I do not know that we have any way of telling how or why, it was granted.

But, the fact is that it is somewhat different than granting authority to run all trucks long as many as truckers might we wish to run throughout the State.

It is only one kind of big truck and it is given to the whole industry not just to Wisconsin Industry and I guess, that is all about I can say about it, that particular type of vehicle.

Unknown Speaker: Of course, I suppose you cannot say that with respect to the exemption granted from the Wisconsin plant to State line can you --

Mr. Albert Harriman: No, the exemption granted from Wisconsin plant to the to State line there again, we have no way of knowing what was on the mind of legislature to motivate that.

The only thing I can think of is, that our sister States near by us allow these longer vehicles and if we have a manufacturer and the one that is pointed out in the book is a boat company up near the Green Bay, sporting boats, small boats.

They have authority to operate a longer vehicle to haul these boats and they have authority to run in State line.

Chief Justice Warren E. Burger: We will probably resume there in the morning since you gentlemen decided you wanted to stay overnight.