/audio/cases/1958/94_19590330-argument-1.mp3 ./1958-xml/94_19590330-argument-1.xml Earl Warren William C. Wines Potter Stewart Charles E. Whittaker John M. Harlan There were 2 matches for "Mr. Justice Harlan". Felix Frankfurter William O. Douglas David Axelrod William J. Brennan Unknown Speaker Hugo L. Black Bibb v. Navajo Freight Lines Inc.
Argument of William C. Wines Number 94, Joseph D. Bibb, Director of the Department of Public Safety of the State of Illinois, et al., Appellants, versus Navajo Freight Lines, Incorporated, et al. Mr. Wines. May it please the Court. Your Honors, the United States District Court for the Southern District of Illinois with a three-judge bench has held unconstitutional and enjoined the enforcement of an Illinois statute requiring the equipment of trucks and trailers travelling over Illinois highways with contour type mudguards meeting specifications enacted by the statute. The Court held only that the requirements of the statute imposed an unreasonable burden upon interstate commerce and enjoined the effect of the act with respect to that commerce. In two other cases cited in the brief, Rudolph Express Company case and a later case, the Supreme Court of Illinois has held the instant measure reasonable and not violative of due process on the ground of its unreasonable character. Your Honors have noted probable jurisdiction and the cause is here on direct appeal from the District Court for the Southern District of Illinois. The District Court has summarized the requirements of the statute and with the Chief Justice's permission, I should like to quote that summary since its precise terms are important and I am reading from page 6 of appellant's brief which quotes the language of the District Court. Specifications, the Court says, require that the splash guards, one, contour under the wheel, two, cover the top 90 degrees of the rear 180 degrees with an exception of vehicles of less than five inches counts from requiring a contour within 10 inches of the body. So they extend down within 10 inches of the ground that they have a lip or plunge of two inches upon the outside and retain general parallel condition under all operating conditions remotely required by the statute not more than six inches from the truck when fully loaded. The District Court premised its conclusion of unreasonable violation -- unreasonable burdening of interstate commerce upon that Court's finding that no other State has a similar requirement that Arkansas has a recent administrative regulation requiring a flap or -- or apron type mudguard which is in conflict with the Illinois type of mudguard upon a finding that it would unreasonably burden interstate commerce to equip entering vehicles with this mudguard when they're not required in other States and upon a declaration that -- based on conflicting evidence we say that there is some danger that this contour type of mudguard is likely to fall off and create a hazard to oncoming traffic in other lanes. It is the respectful but honest position of the Attorney General that the major -- major stricken down by the District Court embodies and enacts a reasonable exercise of Illinois' police power over her highways and with respect to vehicles moving within her borders. The District Court's opinion does not, in the findings, do not make mention of the evidence which I believe I can say is undisputed in the record that a contour splash guard that is the type required by the Illinois law unlike a flap or apron type mudguard will throw debris down instead of out. There is a testimony in the record that the contour type of mudguard provided by the Illinois statute does cause debris to be thrown down. The evidence shows that to plan an appreciating vehicle is equipped with inadequate mudguards, those mudguards don't prevent debris from flying into the -- a windshield of a following vehicle and that the driver of the following vehicle tends to lose control of this car. It tends to go off the road and accidents ensue. Now, it's significant that counsel for the plaintiffs don't cite a single decision of this Court and our own research indicate that they can't cite a decision of this Court in which this Court has ever stricken down a state law fixing the requirements for vehicles traveling upon state constructed highways. I mean automotive vehicles. The three leading cases sustaining such regulation -- Mr. Wines, excuse me. Before you get to your -- Yes. -- these cases going back to the facts, you referred to what evidence there was in the record -- Yes. -- in support of your position that these contour type mudguards were superior to the flap type and -- Yes. -- so on. The -- the District Court, the three-judge District Court made on an expressed finding, did it not, that it was conclusively shown that the contour of mudflap possesses no advantages over the conventional (Voice Overlap) -- Yes, they did, Your Honor. They made such a finding. And in that connection, my question is this, I think I know the answer but perhaps -- perhaps not. Does Rule 52 (a) of the Federal Rules of Civil Procedure govern this kind of a case, three-judge District Court with a direct appeal here? I think that Your Honor -- So far as findings of fact -- I -- I think that Your Honors should take the District Court's findings of fact as being entitled to great weight but I don't think that they must be given conclusive validity -- Well -- -- because if Your Honors find -- Excuse me. Go ahead. -- find on the consideration of the entire record as we submit that you should, that there is an advantage to this mudguard then the legislative determination should prevail. This case is a little different, Your Honors from the ordinary case that comes to this Court with findings of fact because it also comes to this Court with at least implicit declarations of fact by a states legislature. Well, it's that difference that prompted my question. Yes, Your Honor. The normal application of Rule 52 (a) as we both know is an appeal to the Court of Appeals from findings of fact to the dis -- of a single district judge where there are normally no implicit findings of a state legislative body involved and I wondered if for that reason or for any other reason inherit in the particular procedure involved here of a direct appeal to this Court from a three member District Court. There was any question as to the applicability of Rule 52 (a) which -- which forbids a reviewing court to set aside findings of fact unless they are clearly erroneous. Well, I would like to answer Your Honor's question in this way if I may. What are called findings of fact in this case? In reality embodies -- embodiments of judgment as to reasonableness. There are no "who has the lighter questions" in this case of which I am aware. There is no question of the credibility of witnesses. I don't understand that anybody is accused of perjury. It's the evaluation of expert testimony, is it not? Expert and lay testimony against the judgment of Illinois' general assembly. Now, the interesting area of focus prompted by Your Honor's suggestion is this as this Court has many times declared. It isn't enough that a measure be fairly debatable if it's within the arena of debate as to its reasonableness. It's a matter for the state legislature in the case of a state act or Congress in the act in case of a federal act. So that the real question is whether there is any basis on which the lower court must say that the Illinois legislature acted so unreasonably that there it will be stricken down and I think that that means that Rule 52 (a) does not have the same scope in this type of case that it would in -- say a suit for specific performance or a tax case or some case where there weren't a question of the reasonableness of a sovereign legislature. I don't want to minimize the District Court's findings of fact in this case. I didn't mean to -- the District Court did find that this measure is likely to cause accidents and that it imposes an unreasonable burden on interstate commerce. The loss -- these facts are undisputed. The law applies not only to tractor -- trucks but to trailers that are attest to tractors and many times a tractor will start out with one trailer and the trailer will be shifted around to another tractor just as freight cars are shunted from one line to another in interstate commerce so that there is -- there is no doubt to the burden imposed upon these trailers and trucks that come in a substantial one but our evidence shows, I think I can say without dispute, that this type of mudguard can be installed by a man having no previous experience in about an hour and it can be installed for about, I believe certain hours. Do all your Illinois trucks -- are they equipped with these -- There is an exception for trucks traveling holy within the municipality where there isn't the -- the danger but this is not to aim discriminatorily at interstate commerce. No, Your Honor. Yes, Illinois -- Illinois trucking industry, in general, is required to comply with this law and it has assailed the law as unreasonable in the Supreme Court of Illinois that's twice held that measured to be reasonable exercise of the police power and not violative of due process. How long does it been in existence? Well -- now, Your Honor, it was first passed in 1955. In 1957, it was amended in ways that aren't challenged by the plaintiffs or relied upon by the defendant. Generally, they ameliorate its provisions a little bit but both the 1955 and the 1957 version of the enactment have been sustained by the Supreme Court of Illinois as against the contention that it denies due process. (Inaudible) Yes, yes, Your Honor. Now, the cases that we cite are not numerous, we've cite these Court's pleading decisions in the field of the regulation of motor vehicles by state legislatures or other authorities. The first case on which we rely is South Carolina Highway Department against Barnwell Brothers in 303 United States. In that case, the District -- three-judge District Court held invalid the provisions of the South Carolina statute that prohibited the use on state highways of motor trucks and semi-trailer motor trucks whose width exceeds 90 inches and whose weight including loads exceeds 20,000 pounds. The District Court held that that was an unreasonable burden on the interstate commerce. This Court reversed. In Maurer against Hamilton, 309 U.S., this Court sustained a Pennsylvania regulation briefly summarized in the language of this Court as "prohibiting the operation over its highways of any more vehicles carrying any other vehicle over the head of the operator of such vehicle." This Court held that the measure was a reasonable exercise of the State's police power. And in the case of Sproles against Binford in 286 United States, this Court upheld as to interstate commerce, a provision of the motor vehicle of after Texas prohibiting the operation on any highway of a vehicle to define exceeding stated limitations of size or any vehicle not constructed or equipped as required and also the transportation of load exceeding the dimensions in which prescribed. We think the -- Were there comparable findings in the Barnwell case for the District Court? I would say they were, Your Honor. There -- there was a finding of unreasonableness. Was there a finding of hazard? The Court here went almost -- almost to that extent, did it, saying that these were dangerous to (Voice Overlap) -- Yes. -- utilize on the highway. Yes, I meant to call Your Honor's attention to that. I think I did in opening my statement that they said that these were likely to become detached and create hazard. Now -- May I ask you Mr. Wines. What witnesses gave rise to the District Court's finding? I mean what type of witness -- Well -- Did you put to the States a -- a testimony of each witnesses (Inaudible) We called a state -- Would you tell us, if you'd be good enough, tell us what witnesses were called to show that this is absolutely pointless? There's no remote justification to make these requirements. Most of them, I would say, were interested persons in the trucking industry. Employees of the trucking companies and Illinois called a state policeman and a witness who has installed these mudguards. When -- when the plaintiff, the appellee for witnesses to show the ruthlessness of this (Inaudible) requirement if the State object in the testimony and it's irrelevant? Yes, the assistant then handling the case made an objection. On what grounds? The finding of the enactment is conclusive? The -- the assistant -- I didn't handle this case in the trial court, if Your Honor please. (Inaudible) a man may read the record. And the -- the assistant who handle this case in the trial court took the position that the question of reasonableness was conclusively one for the legislature and not for the Court. And that must be your position here that -- No. Isn't it? No, it is not. We say -- If it's open -- if it's open to consider the relevance of the testimony, then we got this finding. But we say, if Your Honor please, that when all of the testimony is considered and the pronouncements of the District Court are conceded, this Court should hold that the question is one or within the ambit of the discretionary power of the legislature of Illinois. Now, let me translate that. Does that mean that considering the weight of which the legislation is held, carried itself -- Yes. -- the testimony of non-reasonableness or unreasonableness, creates into unimportant, is that it, the weight of the evidence? Or do you say that the party of the legislature is conclusive? I don't see why you don't turn to the issue that it's immaterial with a lot of witnesses said on the subject when the legislature is (Inaudible) Well, we do that, Your Honor. We do say this that -- that the question is one for the legislature. And that there -- It's not in the realm of evidence, is that what you're saying? That really, it's not in the realm of ordinary (Inaudible) ordinary conscience in the Court. Do you say that? That point is made. (Voice Overlap) should beyond the hypothesis of (Voice Overlap) -- I know you -- I know you don't, Your Honor. That point is made in the record and in the brief, but we also say that if you do consider it, you should come to the conclusion that the matter is when we didn't -- the -- the discretion of the legislature. That is in terms of the rule, clearly erroneous finding, is that it? That's right. Because to me there's a great deal of difference in saying that being the record as I call upon the judges, I conclude -- I must conclude the District Court have no business to (Inaudible) to place the scale the way it did or that I don't care what the evidence was the legislature of Illinois is controlling. There is a great difference, Your Honor. It's one that I perceive of course but I say no matter which approach is used, we are to prevail. -- (Voice Overlap) on the first ground, you say the evidence is defined as clearly erroneous -- Yes. -- in view of the evidence on the one hand and the strong presumption of (Voice Overlap) -- Yes, that's right. That's right. (Inaudible) this is not clearly out of facts to justiciable controversy. That's -- that's right. That's correct. Aren't you really, Mr. Wines, asking us to imply a -- by analogy Rule 52 (a) to the findings of the legislature that we shouldn't set them aside unless they're clearly erroneous -- Well, I -- -- unless the evidence wasn't that clearly erroneous. That is a -- that is a figurative way of expressing. It no doubt suggests the result that we're requesting but we don't maintain that the rule has any -- Not of -- not of its own terms (Voice Overlap) -- -- any -- any application to the legislature. But you're asking us to apply that kind of a test. That's right, Your Honor. That's correct, Your Honor. And unless the evidence before the District Court show that those findings were clearly erroneous why they should -- those legislative findings explicit and implicit should -- should prevail, is that your point? That's right. One of your positions (Inaudible). Now, if Your Honors please, the appellees are unable to cite any cases where this Court has invalidated a state law or regulation applying to trucks or motor vehicles moving on highways constructed by the State at its expense. Their chief reliance is on the Southern Pacific Railroad Company case in which Your Honors did invalidate a car -- a requirement limiting the length of freight trains. We say that that case is distinguishable on many grounds for one thing after the violation of the statute by the railroad. The Interstate Commerce Commission had promulgated a regulation invalidating all such state statutes and while this Court was careful to point out that the regulation didn't apply because it wasn't enforced at the time of the violation. It was highly persuasive. In the second place, it wasn't a highway that the State had built in its own expense and we say that if railroad cases are to be invoked, far more nearly in point is the terminal railroad case against the Brotherhood of Railroad Trainmen in which this Court by unanimous opinion held valid a regulation of the Illinois Commerce Commission requiring the railroad to put cabooses on trains although these cabooses moved over to Mississippi River over bridges, the ids and other bridges in the Mississippi River and there was no practically feasible method of detaching the caboose at the margins of the State so that the effect of the order was to require them to translate -- to transport the cabooses into the City of St. Louis and from the City of St. Louis back into Illinois and this Court unanimously held that that was not an unreasonable burden on interstate commerce. Now, if the Court please, we say that the matter was one for the judgment of the legislature unless there was clear demonstration that the legislatures -- a determination was so errantly unreasonable. But not on that point, Mr. Wines, whether it does or doesn't burden commerce for the legislature of Illinois with all might, can affect the wisdom and (Inaudible) I beg Your Honor's pardon? I say that the determination by the state legislature of Illinois that this does not burden commerce. That certainly doesn't carry the weight, if it carried any weight, the determination of a particular construction is necessary to say. Are you suggesting that -- that's slightly a question of whether this is a desirable gadget or whatever you call it? No, Your Honor. The burden problem, I don't know if that comes with any particular validity or legitimacy because Illinois passed the statute. Well, this Court has -- (Voice Overlap) on the way of meeting things in the end. There is. I -- I've already conceded that the burden on interstate commerce in this case is a substantial one. It would -- Then -- then what is with the Southern Pacific? We say that the legislative determination that the safety, the preservation of life embodies -- and property on Illinois highways, embodies a reasonable exercise of the police power and does not unduly burden interstate commerce. (Inaudible) I can go with you when you say what Illinois judges are necessary to the safety within its border that whether the burden of -- of its judgment, are -- to my point of view, is sufficient or remote (Inaudible) measured. I don't think you can also make it carry that thereby, it shows that it is in commerce (Inaudible), isn't that answer a little more than -- I was going to come to the point that the appellants make. They say that if there is to be regulation of the type of mudguards to be use on trucks, it should be uniform and should be either enacted directly by Congress or Congress should authorize a promulgation of regulations by the Interstate Commerce Commission or some of the commission. We say that in this case, until Congress acts, the States may require reasonable equipment. Now there is in this case a matter of the Arkansas regulation. There was no evidence, whatever introduced, to show the reason for the Arkansas regulation which requires a flap type of mudguard and if it's necessary to comply with different types of mudguards and different types -- in different States that compliance can be affected at the States' borders. It's a respectful submission of the Attorney General of Illinois that the District Court erred in striking down this Act with respect to interstate commerce. Does the record show, Mr. Wines that -- that this Illinois type mudguard would conform to the laws of all the States except Arkansas? I would say so far as -- I would -- I say it's assumed -- it was assumed by the District Court that it would. I don't think there is a detailed check of every regulation in every state. But the case has been argued on -- all the way through on the assumption that -- that it would. That it would and also on the further assumption that it would violate the regulation of Arkansas. That's right. Is that it? Yes. And -- I'd like to reserve my time to reply. What did you say was the difference between the Southern Pacific -- I say this in the first place. The Southern Pacific case was not dealing with roads built by a state. Did Illinois get no contribution from the federal government? Oh, I think we do but we build those roads ourselves and primarily we say -- a state has greater power over their own roads than she does over railroads. In the -- in the -- what was it? Equality against somebody. Justice Brandeis made an important point as I recall it -- drew an important point when the very considerable appropriations of federal moneys to state built road. When you say, you fill in yourselves, does that mean you pay for them yourselves in order to (Voice Overlap) -- Not entirely, no. Not entirely, no. (Inaudible) charged them?(Voice Overlap) -- We have charged them and we -- and we design them. We -- (Voice Overlap) -- -- we construct them. -- federal road. I mean federally completed road, does it? That's right. So what's -- what's the point of that argument? We say that when the state builds a street or a road -- But the State only (Inaudible) Well, we say partly -- we say it builds it with partly state funds and partly federal funds that adheres more control over that highway than it does over a railroad that is subject to the jurisdiction of the Interstate Commerce Commission. That means that it could burden interstate commerce although it couldn't burden it if it didn't pay -- No. It can -- (Inaudible) There's -- there's a reasonable -- it can impose any burden on either a railroad or a public highway that is not unreasonable but the test of reasonableness is not the same with respect of the two types of highways. If that's unreasonable then you don't need to rely on that argument (Inaudible) on that argument. If it's not unreasonable then it comes within what we call the state police power. I don't quite think -- I think the test of reasonableness is different, Your Honor. If it hardly puts up the money then it's going to be more unreasonable? I think so. Has the Interstate Commerce Commission have any regulations? No, no. If -- if there were any, they would displace -- I know but -- have non-regulating this -- the equipment of interstate trucks? No, no. I suppose they all have interstate licenses or -- Well, they -- they have licenses for revenue, yes. Under the Motor Carrier Act? Yes. Yes. All of these plaintiffs operate under the Motor Carrier Act which has not -- and there are -- there are no regulations. But could do ICC tomorrow formulate regulation? Or does it require legislation? I'm inclined to -- I don't know, Your Honor. To tell -- to tell you the truth, I don't know. And I'm inclined to think they could. They could. I'm inclined to think so. Well, I didn't say it didn't apply (Inaudible) We don't think so. We discussed that in our brief and the only cases that have reached this Court where that argument has been made as to motor trucks have not sustained. I'd like to reserve some time for reply. Mr. Axelrod.
Argument of David Axelrod May it please the Court. Illinois and 25 other States in regard to this subject matter, prior to 1955 and beginning with 1955 covered the field of this particular kind of equipment with what is known as a straight mudflap requirement. In 1955, Illinois, for the first time, changed its mudflap requirement to that of a contour type of mudflap requirement. Illinois today is the only State in the union which stands out with a contour type mudflap requirement. The States adjoining Illinois today including Illinois, India -- including Indiana, Missouri, Kentucky and Iowa have no mudflap requirements whatsoever. The State of Wisconsin adjoining Illinois on the North had a mudflap requirement and it is of the so-called straight or conventional type which was enacted by 25 other States in 1951. The balance of the States, including the District of Columbia, has no kind of mudflap requirement whatsoever. Well, that's therefore with the position that States surrounding Illinois except Wisconsin have no requirement whatsoever. Wisconsin has the straight mudflap. Illinois for the first time in 1955 and subsequently in 1957 developed the specific kind of mudflap called the contour kind. The -- What does Arkansas have on your -- Arkansas has the straight mudflap requirement which was a regulation passed by the Arkansas Commission in 1957 and which resulted in connection with this particular case with an arrest by Illinois of a vehicle carrying the contour -- carrying the straight mudflap requirement of Arkansas into Illinois. That is an Arkansas equipped vehicle with a straight mudflap which was the requirement for Arkansas was arrested in Illinois because it didn't have the contour. Conversely, had an Illinois contour flap vehicle come to Arkansas under the Arkansas statute, it would have been illegal in the State of Arkansas and so we have a clear conflict of the Arkansas and Illinois requirements in this respect. Well, does the Arkansas requirement differ from the requirement of the 25 States you mentioned? The Arkansas requirement is the same as all other States. Illinois standing alone in this contour feature. Well, what I'm -- do I -- am I to infer to suggest that the same thing might happen that a truck using -- The same thing might happen -- -- using an Illinois contour guard might run a foul to the laws of 25 States -- Exactly, Mr. Justice Brennan. This crazy quote pattern could develop in all 48 States. Well, as of now -- excuse me. Yes. Just -- you clarify me if I'm mistaken. As of now, it's true, is it not that Arkansas alone among the 25 straight mudflap States has an interpretative regulation of some kind expressly holding this Illinois type not in conformity with Arkansas law. That is correct. So far it appears, this special contour Illinois type, would be not violative of the other 24 States which simply proscribe a mudflap, is that true as -- That would be correct. -- as of now (Voice Overlap) -- That would be correct. That would be correct, yes. Except with the possible exception of two States of Idaho and Oregon which have a little bit of a question mark in the record there as to whether or not their statute prescribed what they call a fender guard. Now there's a little bit of a haze in the record on that question. We feel that perhaps the answer would be that the Illinois contour might not pass the fender guard requirement of Idaho and Oregon but I won't put a positive yes to that -- for that question, Your Honor. (Inaudible) if it's wrong for Illinois to prescribe the contour, why is it also wrong for Arkansas to prescribe straight -- I'm not suggesting that Arkansas is right. I'm suggesting that the problem created by the fact that Illinois has taken upon itself to require a particular piece of equipment with such specificness that nothing else can be used in connection with this particular purpose by a state, presents to this Court the question of conflict as between Arkansas and Illinois which now arises in this record and which can and will arise under any subsequent holding by this Court if this Court should hold the Illinois statute a valid one. We say that this focuses the question of conflict and we say that we're in an area where uniformity is required or else there'd be no regulation as it stands today. And a question was asked to Mr. Wines a few minutes ago with respect to the position of the ICC on this subject matter. The ICC does have the power to prescribe a uniform mudflap if it wants to in my opinion. However, it did enter upon an investigation of the subject matter for the purpose of determining whether or not such should be done. And in its report, in 54 M.C.C. 337 indicated as follows, “The proposed rule on wheel flaps has been eliminated after a study of further evidence which has been submitted". Now they dealt with whether or not there was a need for a mudflap or a wheel flap and did so and decided that from the standpoint of the ICC, there was no need for such a requirement. What's that (Inaudible) Justice Frankfurter, I don't have at the moment. I believe it was 1952. I think it was April 1952. Is there any indication of what evidence was submitted? It occurs to me only the part of the evidence submitted was the fact that 25 States had acted in this area. There is no indication in the ICC report as to what evidence was submitted. -- (Voice Overlap) ICC that was -- that was doing the job. I beg your pardon. And it may speculatively had been the (Voice Overlap) -- That's our position. -- to the (Voice Overlap) -- That is our position. -- that the States were doing the job (Voice Overlap) -- That is our position. And we say further in this particular respect that we're not arguing here with the right of the State to pass some safety legislation. We say that there is a place for state safety legislation but we say that the State can go too far in its attempt to state safety regulation and where it goes too far and burdens as Mr. Wines very agreeably concedes this does and then the state statute must fall. That's our position in this -- in this case exactly. Well, I still have difficulty with the -- well, I consider the very penetrating question that Mr. Justice Brennan asked you, certainly there is a conflict between Arkansas and Illinois. But -- I suppose nobody would suggest that this Court is qualified, there is all the conflict as to which has a better mudflap. We're not asking this Court to resolve that conflict. We're asking this Court to strike down an Illinois statute which creates a conflict. And we say that it is the -- Well, it doesn't -- isn't it equally -- the Arkansas statute creates the conflict? No, it's the Illinois statute which creates the conflict because the Illinois statute undertakes with specificity to describe only a particular kind of a piece of equipment that can be used. And in Kelly versus Washington, this Court held that where a state attempted to design specifically the structure of a tug or a vessel that it went too far because if Washington could do it, California could do it, Oregon could do it and the result would be the burden on interstate commerce which we say is the only issue on this proceeding. Does Arkansas give leeway or does much to conform -- Arkansas gives no leeway, Mr. Justice Frankfurter and I have -- -- (Voice Overlap) coming in with an automobile not having these flaps -- Arkansas -- -- (Voice Overlap) Arkansas would be in the same token. Arkansas gives no leeway. As a matter of fact, Arkansas is specific in requiring the straight mudflap as Illinois is in requiring the contour mudflap. So we -- we present the conflict question just squarely as it can be. Well, Mr. Axelrod (Voice Overlap) -- I beg your pardon. What concerns me is I think you relied, don't you, on your brief as I recall it as you have, I gather already in your argument on what's been done in 25 other States as demonstrating, am I -- We do not -- -- wrong about this? We do not. We do not rely on that. I'm pointing that out simply as his -- history or as background. I do not rely on it. We rely -- We can -- we can forget what 25 States and Arkansas have done. You can to the extent of this decision and of this proceeding. Yes, Your Honor, you can. I was pointing it out by way of historical background and information to the Court. And -- and -- And it's in our complaint. You suggest that -- you suggest that based on the concession that Mr. Wines has made, namely, that this is a serious burden on interstate commerce. Is that sufficient for us to affirm the lower courts? Yes, I do based upon the concession that this represent and undue an unreasonable burden and based upon the findings of fact by the three-judge court which go even further than representing it to be undue and -- and obstructive. As a matter of fact, the three-judge court and its opinion -- Mr. Axelrod, did -- did Mr. Wines concede that it was an undue burden on interstate commerce? I -- I -- -- (Voice Overlap) what he said was -- Heavy burden. -- a rather heavy burden. Well, I don't know what is the differences between undue or heavy but if he hasn't conceded it to be undue, it's our position here that this statute on -- is an undue burden and it is obstructive of interstate commerce. As a matter of fact, the three-judge court found it to be an insurmountable burden and found that the statute not only obstructed commerce but as between Arkansas and Illinois obliterated commerce. Now, you can't go much further than that from the standpoint of indicating the undue burden or the obstruction to commerce then -- the District Court in our case. But in -- How is this mudflap -- how was this mudflap passed it on the government? Well, the mudflap, the contour mudflap is -- The what? -- the contour -- the contour, the Illinois contour mudflap. Is that a special brand or just -- It's a special brand, Your Honor. It's a special brand of mudflap. Manufactured by one company? By several companies ostensively, but -- What is the other? Is it a special brand too? The other is not a special brand. The other is what we call a straight or a conventional mudflap which is manufactured by any number of companies. How was it put on? The contour mudflap has to be welded to the trailer and -- You mean that's the -- This is the Illinois statute. Illinois. The Illinois mudflap has to be welded to a trailer. And one of our problems in this case and we showed it in the evidence was that as suggested by Mr. Wines, the trailer is ought to be stop to the state line according to the State and the contour mudflap ought to be put on because of the Illinois requirement. We point out in the evidence that because this contour mudflap has to be welded under the trailer and because we with our trailers are carrying explosives for example in interstate commerce that it's a physical impossibility and would be contrary to the explosive rules and regulations for anyone to touch that trailer by a welding process and that the difficulty was not just that but it was a question of danger and safety. So we have instead of an attempt that safety feature to the contour flap, we have unsafe advantages that would -- would be created by this very kind of mechanism. As a matter of fact, the three-judge court opinion in our case repeatedly points out that not only does this appliance have no safety value to it at all over and above the straight mudflap which is what every one of these vehicles now carry and which is the kind that is good in all of the States. But as a matter of fact, it is shown that this introduce new hazards on the highway, create new dangers. And these are specific findings of fact which are contained in a three-judge court opinion accompanied by its findings of fact. Have you cited in your brief the authority of the interstate commerce? Where -- where is it? The authority of -- -- (Voice Overlap) authority that they have to regulate it. The authority of Interstate Commerce Commission, Mr. Justice Black is in Section 204 of the Interstate Commerce Act. It is not cited in our brief. However, the reference to Section 204 in the Interstate Commerce Act is disclosed in connection with this Court's decision in Maurer versus Hamilton where the question there and Mr. Wines adverts to Maurer versus Hamilton, the question there and the State relies on Maurer versus Hamilton was whether or not the State of Pennsylvania there have the right to prescribe a prohibition against the carrying of a passenger car in a trailer over the cab of the driver. And this Court held in that case, the State did have the right in that instance to enact such legislation on the specific ground that the question of weight and width of a motor vehicle was a question which was specifically reserved unto the State by Section 225 of the Interstate Commerce Act and this is the basis and this is the justification for this Court's holding in Maurer versus Hamilton that the problem of road regulation was one which is peculiarly within the province of a state because there in Maurer versus Hamilton the State was dealing with a local condition, a local problem. But more than that in Maurer versus Hamilton, if that wasn't enough, and I think it was enough to point out in that case that here was a specific reservations of the State. In Maurer versus Hamilton, there was a very, very extensive record, an extensive record with respect to the need for that kind of safety in the State of Pennsylvania. There is no, no testimony in our case with respect to the need for this kind of contour mudflap within the State of Illinois. I have -- I have Justice Black's curiosity of wanting to hear or see with my eyes the exact substantive power granted to the Commission which it could exercise tomorrow or next week and which it has withheld exercises as against Maurer against Hamilton where there was an expressed reservation to deal with this subject matter in the State. Mr. Justice Frankfurter, I have the -- I have with me the -- You probably have it in your mind, what is it? Well, it's the -- it's the reference of Section -- Yes, you gave me Section 2 but what's the (Inaudible) What does it say? Section 225 of the ICC Act allows the Interstate Commerce Commission to investigate into the matter of the need for sizes and weights of motor vehicles and to report back that need to the Congress. And it gives no authority to prescribe any state regulations with respect -- it gives no authority to the ICC to prescribe any regulation covering sizes and weights. In other words, Section 225 says that the Commission may investigate and shall investigate -- -- (Voice Overlap) state. I beg your pardon? It was left with the State. Exactly. That was the basis of our decision. That is correct. Now, what I want to know is here. You indicated that the State -- that the ICC does have power to make a uniform provisions for the country. What is the basis? The basis of that is Section 204 of the Interstate Commerce Act which allows the Commission to establish reasonable regulations with respect to safety of operation and equipment. And that's the quote from Section 204. Now, under that Section, the ICC here, regulated with respect to the number of lights on vehicles, regulated with respect to the kind of -- regulated with respect to breaks on vehicles but they don't say what kind of a break shall be put on it. It doesn't say it shall be one kind of break versus another kind. They say a break for the purpose of accomplishing a breaking purpose. That is for the purpose of being able to stop the vehicle. In this case, our position is that the Illinois legislature went too far because they told us what kind of a contour flap we were required to have on our vehicles and they run contrary to the position of this Court in Kelley versus Washington and they developed this question of conflict and they developed as a result of this question of undue burden on interstate commerce. I supposed the record have showed that the casualty on your Illinois road was three times as high as the casualty on comfortable roads leading in and out of great metropolitan center. And that on the basis of such experience non-action by the ICC, the Illinois legislature then made a provision and the casualties were due to whatever specific or dominant cause. And the legislature then made a mandatory -- mandatory enactment requiring certain safeguards which in the fair judgment of the legislature would reduce that carnage. No other state had it. The Interstate Commerce Commission hasn't enacted. I take your word that it could. What would you say to that situation? I would say that if that was the record in our case, we might be in trouble before this Court. I say, however, that that is not the record in this case and that's where this case is deficient from the standpoint of a record with respect to the contention of the State. Now, in this case the only testimony which the State put in was the fact, number one, that Illinois was a wet weather state, number two, that this contour guard precluded some splash or spray. We attempt to indicate in our testimony and we did and the District Court found that the splash and spray prevented by the contour guard was not defective as the splash and spray which we were able to cope with on the basis of our straight or conventional guards. The State took the position that that was not an issue because -- Are you arguing this that there -- there must be -- since commerce is -- is involved concededly. This affects trucks coming in and out of the State if the commerce is involved that in order to counteract (Inaudible) burden, meaning doing something you have to do before Illinois requires it while surrounding States don't or may not. In order to counteract burden, I'm not talking due or undue, you show that the State has a localize interest in the protection of its life of the safeguarding of living which overbears whatever maybe the consequences either of inconvenience of a cause upon -- upon the commerce. Well, this Court has in this area resolved the questions on the basis of way and resolving the conflict as between the State and the national interest. And for example in the case of Terminal Railroad Association -- Terminal Railroad Association versus the Brotherhood which is the caboose case which Mr. Wines relies upon as being his case. This Court pointed out that in the caboose case there, there was no evidence with respect to cause in the record there as to how it would affect or burden interstate commerce. And so in the Terminal Railroad Association case, this Court because there. The burden question was not carried by the attackers of the law. This Court has found the law was good based upon the affirmative position and evidence of the State. The same was true with respect to Barnwell -- in the Barnwell case. Again, South Carolina prescribed the weight and length limits of South Carolina. And this Court found there that was an extensive record developed as to the need for the regulations in South Carolina because, there, South Carolina had cope with the problem and earlier had prescribed higher weight loss and found they were unsafe but that isn't this case. In our case, not only do we have no finding that the con -- that the straight mudflap which we now have and which we use is unsafe or not safe but we have a contrary finding that the contour mudflap is more dangerous than the straight conventional mudflap which we use and which we require and which would be reinstated if the contour mudflap law was not doubt because -- Do you think -- you think this Court is as bound by those findings of the three-judge District Court as would be a -- a Court of Appeals by findings of a single district judge and an ordinary contract to tort action under Rule 52 (a) of the federal rule? I think so because I don't think this is a question where we do anything except to allow the State to legislate in an area. I think that there is a presumption of validity so to speak that goes with a state statute at the outset. But that presumption of validity wouldn't involve a specific -- a specific findings of facts such as we have in this case and the presumption of validity of the state statute, I think here is dissipated immediately when it runs smack into the principle of the Commerce Clause because I think Commerce Clause is a hurdle which any state statute must overcome before it can be declared good and where an attack is made on such a state statute under the Commerce Clause and where we have demonstrated -- Now, where does the burden lie? I beg your pardon? Where does the burden lie? You have to prove the burden as the State have to prove its reason? It would appear that both facts ought to be proved in this respect. I think that the first inquiry when one of these statutes is assailed is whether or not the statute contributes to safety. If it does contribute to safety, then I think there's a second question to be decided, whether or not the State has gone too far and in its safety program has run contrary to the burden clause. Now with respect to burden, I think it would be the obligation of the plaintiffs attacking the law such as we to show burden and I think we have demonstratively proved the question of undue burden in this case. We -- we've done I think much greater with all due respect than in Southern Pacific versus Arizona and much greater than in Morgan versus Virginia upon which we rely also. But even if we didn't prove our burden and I think we have, I think the State lawfully failed to prove what it should have proved namely that there was some safety need for this kind of an appliance. Well -- That is -- -- excuse me. -- completely lacking here. It's lacking because the State took the position of the District Court, did it not, that this was all irrelevant to the -- That's correct. -- legislative findings were conclusive or at least -- or at least presumptively reasonable? Well, the State -- And -- -- took the position in the trial of the case, Mr. Justice Stewart, that it didn't make any difference because it was simply a question of legislative judgment and they took the position actually that all of this was irrelevant that so long as Illinois spoke that was sanctity. Suppose -- Result -- Excuse me? Pardon me. As a result, the -- the State elected not really to put in a case on that issue, isn't that right? I think that's right. And wouldn't -- would it follow from that that -- that we agreed with you as to what the State should have done and that we scream at it to the District Court? No, I don't think so. I don't think so. I think that two things happened here. First, that we carried our burden of showing that this unduly burdened interstate commerce. But in addition to that I think the State fell down in its burden so to speak of attempting to show that this was a safety piece of equipment. What findings has the Commissioner -- Commission may deploy equipment (Voice Overlap) -- 204. With respect to 204 equipment, they have required certain lights. For example, they have specified that the vehicle should carry breaks which shall be -- which shall be of breaking qualities and there are a whole series of requirements with respect to that time, Mr. Justice Douglas. I have those here and I can -- I don't see them -- that it's cited your brief. They are not, sir. They are not, Your Honor. Could you give us those citations? Yes, I do have them. I -- I'm only -- at the moment, I -- Would you submit them to us for the morning -- Yes, I'll be very happy. May I ask you this question? Suppose this statute had been restricted, have been confined by Illinois to trucks doing exclusively local business, what would be your position? Intrastate? Intrastate. We wouldn't be here, Your Honor. You wouldn't be here. We wouldn't be here because all of these carriers are exclusively interstate carrier. I understand they are. But -- but would that be on the basis that then the determination through the enactment of the legislation is -- by the legislatives conclusive as to its safety relevance? That would be the case because there, the -- then the question would then be one of due process under the state constitution. This is not -- Well, on the federal -- suppose the State -- And -- and the Federal Constitution. Suppose the state legislatures said they should -- they should have a rather fancy balloons floating in front -- [Laughs] -- you'll be here to say that that has no relation to anything, wouldn't you? The answer of that question, if I may, would be simply this. The State Supreme Court of Illinois has in the two cases, Warren and Rudolph versus Bibb, held the statute under the state due process question and under the federal due process question to be a reasonable exercise of state police power. But this is not our question here. As to local -- as to intrastate business. That is -- that is correct. And you say that as to that, howsoever, find of the judgment of the legislature maybe on that question, when it comes to its effect upon -- into the national interest, it can't be valued. That's correct. We'll recess now.