Bibb v. Navajo Freight Lines Inc.

Argument of David Axelrod Mr. David Axelrod -- understanding of Mr. Wines' position in part of the oral argument -- I think Mr. Wines' position on the part of the State was that the statute here burdened interstate commerce but he did not concede, as I understand it that it was an undue burden on interstate commerce. I apologize. I perhaps misunderstood him. And part of my argument wasn't predicated on that proposition but I do want to set the record the straight. Yesterday, the question was asked as to whether or not the Interstate Commerce Commission had promulgated certain safety rules and regulations with respect to the kind of equipment that should be upon motor vehicles operating in interstate commerce. And I'd like to direct your attention, if I may please, to the parts and accessories provision of the safety rules and regulations of the Interstate Commerce Commission. And the specific question was the extent or the type of equipment which was regulated pursuant to these safety rules and regulations. The safety rules and regulations of the Interstate Commerce Commission which governed the movement of motor vehicles in interstate commerce cover generally the category of lighting devices, reflectors and electrical equipment and there follow a detailed explanation of the kind of electrical equipment and lighting devices which are required. There also follows a description of brakes with respect to their adequacy and detailed description with respect to that kind of regulation is also set forth. There follows also a discussion and a requirement concerning the windows, the glazing and the window construction of the vehicles. There follows a requirement with respect to the kind of fuel systems which are necessary. There follows a requirement with respect to coupling devices and towing methods. And then there is a subdivision which concerned itself with miscellaneous parts and accessories. And among them are these, tires, heaters, windshield wiper, defrosting device, mirrors, horns, speedometer, exhaust system, protection against shifting cargo, flags and so forth. Now, the Commission in connection with -- Justice Charles E. Whittaker Where can you find this? Mr. David Axelrod This is part 193, Justice Whittaker, of the Interstate Commerce Commission, Motor Carrier Safety Rules and Regulations promulgated pursuant to Section 204 of the Interstate Commerce Act. And that -- Justice William J. Brennan We don't have that referred to in the brief, do we? Mr. David Axelrod I do not and -- Justice William J. Brennan Do you mind -- Mr. David Axelrod I beg your pardon. Justice William J. Brennan Do you mind giving it to me again. I wasn't -- Mr. David Axelrod Yes. It is the Motor Carrier Safety Rules and Regulations pursuant to Section 204 of the Interstate Commerce Act. It is best located, if I may suggest, in 54 M. C. C. 337 which is the Interstate Commerce Commission investigation report which I referred to yesterday wherein the question of the mudflaps was taken under consideration by the Commission in 1952. And wherein that proceeding, the Commission determined that the question would be eliminated for the purpose of prescribing any uniformity with respect to mudflaps. And the proceeding was discontinued on that basis. In other words, the Commission there had before it, if it so desired, the opportunity to prescribe uniformly with respect to the mudflap requirement but decided not to do so. Justice Hugo L. Black Did -- Mr. David Axelrod There is no -- Justice Hugo L. Black Did it say why? Mr. David Axelrod It did not. It did not, Justice Black, but -- Justice Hugo L. Black Was that an order of any kind? Mr. David Axelrod It was an order. It was -- what -- what is known as an investigation proceeding. The safety rules and regulations from time to time are amended and changed as developments follow. This proceeding in 1952 was a proposal which had for its purpose the possibility of revising the safety rules and regulations. It was an interim step to determine whether or not in 1952, there should be any further revisions of the safety rules and regulations. Justice Felix Frankfurter Was there before the Commission a proposal to it, to provide for these mudflaps? Mr. David Axelrod The -- the report of the Commission is not clear with respect to it but undoubtedly, the subject of mudflaps was before the Commission because it determined at that time, in 1952, that there was no need to cover the subject matter. Justice Charles E. Whittaker It did specifically meant into mudflaps? Mr. David Axelrod Yes. I -- may I quote, Mr. Justice Whittaker. This is the report of the Commission. “The proposed rule on wheel flaps has been eliminated after a study of further evidence which has been submitted.” Justice Felix Frankfurter Well, I suppose you can tell by the appearances before the Commission. Were they noted in these reports? Mr. David Axelrod Yes they are, Mr. Justice Frankfurter. Justice Felix Frankfurter You could tell probably with your experience from the appearances where the proponent and opponent of such a proposal in fact submitted matters to the Commission? Mr. David Axelrod There was such submission. However, the information is sketchy. Now, in connection with the proceeding -- Justice Hugo L. Black You said proposed rule. Is the proposed rule printed? Mr. David Axelrod It is -- it was not printed with respect to the proceeding itself. Justice Hugo L. Black Does it state -- well, is it available so that we could see what the proposal was? Or does this report state what it was? Mr. David Axelrod To my recollection, it did not, Mr. Justice Black. Justice Felix Frankfurter Well, are you merely saying that the subject matter was canvassed before the Commission? Mr. David Axelrod Yes. I am saying that the subject matter was canvassed and the report doesn't give a clear indication of the exact mudflap which was under consideration pro and con. But I'm saying that the subject matter was canvassed. And may I point out further that in the same decision of the Commission, the same investigation proceedings, the Commission went on to further indicate that, and I quote from it please if I may, that it is not the purpose either to abrogate the present state or local laws or to preempt the safety field to the exclusion of future state or local laws. We believe that states and subdivisions should be allowed to enforce their laws and regulations relating to safety to the extent that compliance therewith by the person subject thereto would not preclude such persons from fully complying with the regulations prescribed here. In other words, the Commission went on to say that although it was prescribing rules and regulations with respect to parts and accessories, it did not wish to abrogate, if it could or I doubt that it could, but it did not wish to abrogate the right of the rule -- of the states to require safety rules not inconsistent with its own federal rule, with its own ICC rule. Now then -- Justice Felix Frankfurter But is it on ICC rule? Mr. David Axelrod Not on this subject matter. Justice Felix Frankfurter Well, then as I heard what you read, the Commission said explicitly that by their action, they did not need to supplant local rules? Mr. David Axelrod They say that in effect but they say it on a modified basis. And they say it to the extent that they do not wish to supplant local rules not inconsistent with their rules. They take the position that where they have covered the subject matter, they have preempted the feel. Justice Felix Frankfurter Well, have they -- but -- but they refused to deal with this subject matter. As I get your recital, the subject matter is cancelled. The Commission kept its hands off and explicitly said local rules shall continue. Mr. David Axelrod They refuse to deal with it, Mr. Justice Frankfurter. I think on the theory that there was no need to deal with it. Justice William J. Brennan Well, what you mean by that that there was no safety problem? Mr. David Axelrod That is correct. Justice William J. Brennan Well, I -- as you read that though, I rather have the im -- what was an implication in it that -- Mr. David Axelrod Well, the -- Justice William J. Brennan -- (Voice Overlap) safety hazards but they believe its regulations in the States. Mr. David Axelrod The -- the question was whether or not there was a need for a safety rule with respect to the subject matter, having in mind what I've indicated earlier in my argument that many of the States did not have any such rule whatsoever. The Commission therefore, as I see it, took the position that there was no need for a rule by it, in connection with the subject matter at this time. Justice William J. Brennan -- (Voice Overlap) we're to infer from that that there was no real safety hazard calling so far as regulation (Voice Overlap) -- Mr. David Axelrod That is -- that is correct. And we're -- I'm saying in this case -- Justice Felix Frankfurter Why would -- why will they explicitly allow this existing laws if ever there were laws to prevail? Mr. David Axelrod Because apparent -- Justice Felix Frankfurter As I read it -- as I interpret what you read, they refused to make a uniform rule for the nation. Mr. David Axelrod Because -- Justice Felix Frankfurter There are in existence local rules and they said for the present, we let those local rules prevail. Mr. David Axelrod That is correct. And I say that because apparently, the local rules existing then and the contour statute was not then in effect, were sufficient. Justice Felix Frankfurter -- (Voice Overlap) was not in effect? Mr. David Axelrod No, it was not. The contour statute was passed in 1955 and amended in 1957. And we're challenging the 1957 Act. The ICC report was in 1952. At that time, the States have a uniform rule with respect to the kind of a mudflap, it was the straight mudflap. And all States authorized the use of the straight mudflaps. So that at that time, the Commission knowing the rules in existence in the various States, took the position that there was no need to cover the subject matter. Justice Felix Frankfurter There was no conflict except -- Mr. David Axelrod There was -- Justice Felix Frankfurter -- the conflict between the States that have something all uniformed, those who have it and the States that have nothing. Mr. David Axelrod There was no conflict, Mr. Justice Frankfurter, none whatsoever. Justice Felix Frankfurter Except -- except between the States -- Mr. David Axelrod Yes. Justice Felix Frankfurter -- that had a requirement and the States that (Inaudible) Mr. David Axelrod That is correct. That is correct. Justice Charles E. Whittaker Mr. Axelrod, I do not understand. Maybe I'm (Inaudible) Mr. David Axelrod No, I do not, Mr. Justice Whittaker. I say this that we're not concerned here with any question of preemption of the field. We take no position that because the ICC had the power but didn't exercise it, that therefore, the State cannot exercise a safety rule. We don't -- we do not take the position that there is a question of preemption of a field here. Our entire position is that this statute is an undue and unreasonable burden on interstate commerce. And as we see it, that is the sole issue in this case. We're not arguing preemption. Justice Charles E. Whittaker May I ask you (Inaudible) Mr. David Axelrod It would be -- yes, it would be a much lesser -- we would say that it was not a violation because the State or Arkansas in its rules and regulations, promulgated the kind of a rule which was uniform to the 25 other States which had a similar rule. In other words, Arkansas, its requirement was for a straight mudflap. This was the same requirement which would allow a vehicle licensed and equipped in Arkansas to be legal in every other State but the State of Illinois under the contour mudflap statute. Justice Charles E. Whittaker Other States did not have any possible requirements as to the character of the mudflap. Mr. David Axelrod That is correct. Other States did -- Justice Charles E. Whittaker Arkansas (Inaudible) Mr. David Axelrod Arkansas did make such, yes. Justice Charles E. Whittaker And so as Illinois. Mr. David Axelrod And so did Illinois. But -- Justice Charles E. Whittaker (Voice Overlap) -- Mr. David Axelrod -- but Arkansas followed suit after Illinois. Illinois started the ball by its 57th Amendment. Arkansas followed afterward presumably on the theory that if Illinois was going to molest Arkansas vehicles, Arkansas would do the same to Illinois vehicles. And so, it began to develop into a sort of a -- of a feud between Arkansas and Illinois, Illinois being the proponent. Justice Charles E. Whittaker One thing more. You made (Inaudible) Mr. David Axelrod Yes. Justice Charles E. Whittaker Must be welded onto the vehicle. Mr. David Axelrod The -- Justice Charles E. Whittaker And that's -- even the vehicle was (Inaudible) three-judge court. Mr. David Axelrod Yes. Justice Charles E. Whittaker Is it really necessary that an Illinois statute require it to be welded? Can it not be folded or some other -- Mr. David Axelrod In order -- well, the statute doesn't say how they should be put on but the testimony in the record show that this kind of a flap can only be put on either on the basis of it being welded or if it would be bolted, it would have to be bolted on the basis of having somebody go to the inside of the vehicle in order to put the bolt on the vehicle for the purpose of affixing the flap. And so either way whether it's welded or bolted, the point is not whether they could be put on at the beginning. The point is whether or not the vehicle could be stopped at the state line of Illinois. And at that point, because of the owner requirement, could somebody put on a mudflap as a contoured kind at -- at the state line? And the point we argued and showed was that this was impossible and the three-judge court so found that it couldn't be done, it was impracticable, and we pointed out that it would be unsafe and -- unsafe and contrary to the rules because nobody could enter a trailer that was carrying explosives for the purpose of either opening the trailer and these trailers move under seal. They move close. They move pursuant to Government orders. And nobody could go into the inside of the trailer either to bolt or to weld this kind of a flap onto it. Justice Charles E. Whittaker Is there any case by this Court (Inaudible) a state statute in order to the use of the state highways? Mr. David Axelrod Mr. Justice Whittaker, this isn't a case relating to the use of the state highway. This is a case which relates to the right of a State to provide only a safety accessory. There is a vital distinction as we see it between the use of a state highway and an accessory to be placed upon a vehicle which uses the state highway. And that distinction is pointed out in Maurer versus -- in the Maurer case, Maurer v. Hamilton where the -- this Court pointed out the distinction between the right of the State to legislate with respect to size and width and weight. That means the right to use the state highway. And that right is predicated upon the reservation to the State in the Interstate Commerce Act in Section 225 specifically of a delegated and reserved right to the State to prescribe the weight, height and road condition. I'm trying to point out the distinction as I see it in connection with your question. Justice Hugo L. Black Would you mind -- I may -- I guess it's too much but mudflaps has been used great many times. Mr. David Axelrod Yes. Justice Hugo L. Black I've learned that it has to be welded. Could you describe it to me? Mr. David Axelrod Yes. Justice Hugo L. Black What does it made off? What -- Mr. David Axelrod Yes. Justice Hugo L. Black -- material? Mr. David Axelrod The Exhibits 1 and 3 in this record contain pictures of the contour mudflap and the straight mudflap. I'm sorry, but I presume those -- those exhibits -- they're pictorial exhibits, I beg your pardon. They may not be in front of you. But the contour mudflap is made of either a metal or a flexible material which is designed to contour the tire. It in effect shrouds the tire. Whereas, the straight mudflap is a mudflap which is affixed at the end of the trailer and is further removed from the tire wheel. So that perhaps -- if you seen some vehicles operating on a highway, you probably noticed that of the back of the trailer, there are mudflaps hanging down almost to the roadway. Justice Felix Frankfurter What are they made of? Mr. David Axelrod These are made of rubber material and they're flexible. And -- we point it out in -- in this connection.I think it might be interesting. In this record, the indication shows, the evidence is clear that these contour flaps, because they are required by the statute, the contours of the tire are so close to it that the result is a very, very great brake fade characteristic. In other words, it suffocates the heat. It doesn't allow the heat to dissipate. And we've shown in this record here where the result of the contour is to create a danger with respect to the efficiency of brake. And we have had engineers testify in this case. And the record so show that there result a brake fade. As a matter of fact -- Justice William J. Brennan (Inaudible) Mr. David Axelrod I beg your pardon. Justice William J. Brennan The patent of the device is contour -- Mr. David Axelrod That question is not on the record. My answer is yes to your question, Mr, Justice Brennan. Justice William J. Brennan -- (Voice Overlap) just some particular manufacturer who's selling it? Mr. David Axelrod The answer is yes though that is not in the record. Justice William J. Brennan -- (Voice Overlap) Illinois manufacturers? Mr. David Axelrod I beg your pardon. Justice William J. Brennan Illinois manufacturers? Mr. David Axelrod The witnesses who testified for the State of Illinois were the manufacturers and one was based in Indiana. One was based in, I think, Illinois but those where the people who testified in support of the case for the State in addition to this -- on the other testimony. The State put in reference of the fact that it was a wet weather State. I indicated that yesterday. They did it by simply showing a chart of the fact that so many days during the year in Illinois, it would rain or there would be snow. That plus the fact that somebody took the position, the manufacturer, that if this could be put on and not too long a period of time. That's what the extent characteristically of the kind of evidence which we have in this proceeding. Justice Tom C. Clark (Inaudible) Mr. David Axelrod The -- the straight? Justice Tom C. Clark The straight guard. Mr. David Axelrod The straight is not. And many -- many manufacturers are making the straight guard. Justice William J. Brennan Is this -- is this developed as the ICC indicated on the interest in going back into this investigation of it? Mr. David Axelrod We do not know. The last pronouncement was in 1952. It may or may not be that they were taken under consideration. But, we -- I would like to say this in response to your question. I would say that the State -- the Commission would not be interested for the reason that our record very carefully describes the dangers and the unsafe characteristics of the contour mudflap. We have safety engineers who said that they would not voluntarily put this kind of equipment on their vehicles unless they were forced to. And they pointed out that this was a thing which was dangerous, not just safe. In other words, they also pointed out simultaneously that wherever they could find anything else that was safe for their vehicles, and they were very proud of their safety records, they would put it on without respect to the question of cost.But here, they said, "Unless we are required to. We will not put them on.” Justice Felix Frankfurter May I ask, Mr. Axelrod, was that under the power to do a tribute to the Commission, it could outlaw this contour device if it thought it would be a hazard to safety as you claim it is instead of being a protection against hazard. But they outlaw it by saying we find that this uniform of this mudflap, it's all right if we find this as -- not only not all right but also creates a conflict and therefore we -- in the interest of uniformity practically adopt or allow instead of making a rule of our own or a prescription of our own, we allow any State that wants to have this flap uniformity but not anything else. Could they do that in your view? Mr. David Axelrod I would doubt of the right of the Commission to make a positive affirmation of that sort. We could be more in the nature of a court decree. Justice Felix Frankfurter Well they could -- they could -- I inferred from what you said. They could themselves provide for the flap -- for the flaps, couldn't they? Mr. David Axelrod Yes I -- Justice Felix Frankfurter When they say -- Mr. David Axelrod Yes they could. Justice Felix Frankfurter -- we provide for those by any State that wants to have them. I just think if they have power to prescribe it for 40 -- for 50 States, they could prescribe it -- leave it to the relation of the State. Mr. David Axelrod I think they would -- if they -- if they did it in the fashion that you indicate, they would be usurping the power of this Court or the power of a federal court under interstate commerce. I think that their power is one of a right to do it. But I don't think that as a corollary thereto, they would have the right to say that a specific kind was unsafe because, then we would be running to the question of whether or not the ICC's power could supersede the right of a state legislature. And I doubt whether the Commission would think that it had the power to say to a state legislature, “that which you have prescribed is unsafe.” I think that -- Justice Felix Frankfurter But -- but they've actually done that from the point of view of your argument. If they have allowed by (Inaudible) States to prescribe in lieu of their prescription, they may take account of different weather conditions for all I know, I'm ignorant about it, in a different State. Some States may not need this at all States -- dry States. Mr. David Axelrod That is correct. You mean the wet -- you mean the dry weather States? Justice Felix Frankfurter Why would it be? It also comes to that. Mr. David Axelrod Well, I don't think that they have the right to go that far. I think -- I don't think it follows as a necessary corollary. Chief Justice Earl Warren Well, what is the power if under statute -- the statute prescribes that the States may have safety devices not inconsistent with those of the -- Mr. David Axelrod Federal government. Chief Justice Earl Warren Federal? Of -- Mr. David Axelrod With those -- that is correct. Chief Justice Earl Warren -- the Commission. Now, if they -- if the States can't go beyond their regulations, why do you say it would -- it would be a usurpation of power for them to say what could and what could not be done by way of safety regulations? Mr. David Axelrod Well, I think, at that point, I think they would then be usurping of the legislative power of the State at that point. I don't think that their power -- their power would exceed -- would get to that point. Chief Justice Earl Warren Well, we generally thought it would be usurping the legislative power of the State for this Court to determine what was legislative permissible in -- in such fields, haven't we? Mr. David Axelrod No, Mr. Justice Warren. This Court has held that the power of a State with respect to safety is one that must be -- that must face the constitutional hurdle of undue burden on interstate commerce. This Court has held repeatedly that the reserve power of a State can be invalidated by the Commerce Clause, that the Clause is a bulwark of protection against the attempt on the part of the State to legislate with respect to burdening interstate commerce. Chief Justice Earl Warren Well, that true but -- Mr. David Axelrod And -- Chief Justice Earl Warren -- your answer to Mr. Justice Whittaker was that it never had interfered with the State in this field. Mr. David Axelrod That is correct but because of the fact that there was nothing at the time when it did not do that that had any question of conflict. In other words, in 1952, when the Commission spoke on the subject, there was no question. There was no conflict of questions. We're talking here in terms of a subject matter that requires uniformity if there is to be action. But if there isn't uniformity, then absent to any federal action. We take the position that the Commerce Clause stand. Justice Felix Frankfurter Would that really be your ultimate position -- Mr. David Axelrod That it -- Justice Felix Frankfurter -- not -- not that the Illinois provision is in conflict with anything that the ICC has done but that neither the ICC nor the Illinois legislature can authorize what may be found to be an undue burden on commerce. That's really your case. Mr. David Axelrod Our position is that the Illinois legislature cannot, not that the ICC could not. Our position is that beyond our legislature could not authorize a safety appliance which would unduly burden interstate commerce. Justice Felix Frankfurter You have said that this law insofar as it was restricted to local intrastate Illinois traffic. You're not challenging. You're not -- your case doesn't allow you to challenge it. You haven't got that kind of a case and your State Supreme Court has already sustained its restricted application to intrastate Illinois business. Mr. David Axelrod And the State Supreme Court has also pointed out in its decision sustaining the law that it did not concern itself with the burden question. And may I quote from the State Supreme Court in Rudolph versus Bibb, the State Supreme Court said, “No question is raised under the Commerce Clause of the federal constitution.” And further, the State Supreme Court, after the decision of the three-judge court in our case, acknowledged that fact and I referred to pages 36 and 37 of the appellant's brief where the State Supreme Court said, “It is difficult to see why the specified splash guard should be required on foreign vehicles passing through this State citing Navajo versus Bibb our three-judge court decision. Justice Felix Frankfurter Well, then the real question and the only question is whether this is -- since you're not here challenging this as violative of due process -- Mr. David Axelrod We are not. Justice Felix Frankfurter -- so the only -- the real question is, is this Southern-Pacific case? Mr. David Axelrod We rely on the Southern-Pacific and Morgan versus Virginia. On those two cases, the State relied to Maurer versus Hamilton and the Barnwell case. The State in its reply brief took the position that another case which it cited the Terminal Railroad Association brief was more applicable to our facts than the South -- Southern Pacific-Arizona case. I've distinguished that yesterday by pointing out that in the Terminal case which was the caboose case, there was no record there with respect to the cost on the burden question. But in the Terminal Railroad case, interestingly enough, there is a discussion of another case by way of a footnote known as the South Covington case. It was a case involving a -- an ordinance of the City of Covington which attempted to regulate the number of trains which would have to operate between Covington and -- Covington and Cincinnati. And the Court in that case held that statute was bad because it conflicted with Cincinnati. And therefore, because of the conflict question, a burden on interstate commerce was invited and struck that statute down. That case, we say supports our position and is in further support of Morgan and Southern Pacific. Justice Felix Frankfurter Now, do you introduce evidence to try to establish that in fact this would be an undue burden on commerce? Mr. David Axelrod Yes. Justice Felix Frankfurter Is that right? Mr. David Axelrod Yes. Justice Felix Frankfurter And the witnesses to that -- Mr. David Axelrod Many. Justice Felix Frankfurter -- do they give testimony and the State crossed-examined them? Mr. David Axelrod Yes. Justice Felix Frankfurter Now, did the State look at those in this record and when Mr. Wines comes to reply, I hope he'll also get himself with this question. Did the State resist the determination of that issue by witnesses? Mr. David Axelrod I will answer that no because they took the position that that issue was irrelevant. That the sole issue was the right of the state legislature to act and that the state legislative act carried with it a presumption of validity. And they generally took the position that that was not involved because as a matter of fact, much of the testimony of the plaintiffs in the lower court was admitted. The basis of the interstate commerce interchanged operations and the like. Justice Felix Frankfurter I'm turning to the question put to you by Justice Stewart yesterday. If the State said that issue is not before the Court because if this is a safety measure and would be found to be a safety measure and it may be found to be a safety measure on the presumption that the legislation itself carries then why didn't they say that that is not an issue and therefore they ought to meeting the issues. Mr. David Axelrod I don't know why they did or didn't -- Justice Felix Frankfurter No. I mean isn't that the fact if -- if Illinois said, “That is not an issue before, Your Honors.” At one point they were asked whether they weren't really suggesting that as to automobiles, the Southern Pacific case doesn't apply because railroads are different. Mr. David Axelrod We -- we ans -- Justice Felix Frankfurter And if that issue was not contested and if the issue which they did or goes against them, why doesn't Mr. Justice Stewart's question becomes pertinent in case we should disagree with the State namely that they then would have a right to canvass that issue. Mr. David Axelrod Well -- Justice Felix Frankfurter You said yesterday, you thought not. You thought that if -- if they had claimed that if by -- if it's presumptively effective measure, here we deem, nothing more to be said if they so much prevail. If that is rejected as -- even though the question of undue burden of interstate commerce as to which you did address yourself the witnesses. But as to what the State said, that's not an issue. Why does it not become an issue if the ground of their defense falls? Mr. David Axelrod We take the position that the question of safety before the Court was in issue and we put testimony in -- on that subject. Justice Felix Frankfurter But they quoted their argument and said we don't want to play that game. Mr. David Axelrod That's correct. But I don't think that they read Southern Pacific and Morgan versus Virginia properly. I don't think that the State in trying its case tried it properly under the facts in Morgan and Southern Pacific. We think we did. We think we've adhere to the principles annunciated in Morgan and Southern Pacific. The lower court thought so because it distinguished Morgan and Southern Pacific from Maurer and Barnwell in a very interesting discussion. And I think that the lower court accurately summarized the law applicable to the facts. We think it was a commendable opinion with respect to a dissertation upon the subject. Justice Felix Frankfurter If I may request a question. And I ought to be putting it clearly. You did but they didn't. They thought that they could rest on their claim that this is a safety measure justified or indicated by local police policy. Now, whether rightly or wrongly, they didn't go into the other issue, they didn't so it appear. And my question is what Justice Stewart's question yesterday was, are they therefore foretold from leading the issue if they choose? In case one should agree with you and say, yes on this record there is ostensible or prima facie of undue burden. Mr. David Axelrod I would think that they should be. It would be foreclosed. Justice Felix Frankfurter Why? Mr. David Axelrod Because of the fact that they have pitched their case on an erroneous concept of the law. On the concept of the law that this Court does not have the right to resolve, the conflicting question of State versus national interest. They take the position this Court doesn't have that right. We say this Court has -- Justice Felix Frankfurter Can we tell them that they're mistaken? And therefore, as they say, “All right, if you're not instructed that -- this although seemed to be a safety measure by Illinois in fact operates adversely to the Commerce Clause.” We so instruct them, why should they be cut off from proving that it doesn't operate adversely? Mr. David Axelrod Well, they attempted to prove by some evidence that it was a safety measure. They fell short of that proof. In fact, their proof fell fat -- flat on its face because the contrary was shown. So they attempted to justify it a little bit but they didn't go far enough. The statute went too far but their evidence didn't go far enough. And our point is, that they must have attempted to show a little bit that there was safety but -- Justice Felix Frankfurter Well I -- I think they did try. In addition to -- Mr. David Axelrod They tried but fail. Justice Felix Frankfurter Yes. But -- and still don't want -- to my understanding with the question, assume that's all true. They now want to prove that in fact it isn't a burden on interstate commerce. Mr. David Axelrod Well, I think they'd have their day in court, Mr. Justice Frankfurter. Justice Felix Frankfurter Well, were they -- it wasn't an issue? Mr. David Axelrod Well -- Justice Felix Frankfurter You -- you base your case on that claim. They said that is not the claim before the Court. It would be irrelevant. The claim that's before the Court is a safety measure and that it should be bound to be a safety measure at the end of the matter. The Court found it wasn't a safety measure. But the Court -- but they did not contest which they're capable of contesting. All right, it is your safety measure but it's a burden on commerce. And now they show -- why can't they now show it isn't a burden on commerce? Why should all this be left to argumentation? Mr. David Axelrod It isn't being left because our record demonstrates the -- Justice Felix Frankfurter But they did not avail themselves by court -- Mr. David Axelrod But I can -- Justice Felix Frankfurter They did not avail themselves (Voice Overlap) -- Mr. David Axelrod But I can try their case for them. We can't tell them how to try their case or put their proof in (Voice Overlap) -- Justice William J. Brennan They left holes in it. And it's your point is that they ought not to be allowed to amend it. Mr. David Axelrod They are not to be allowed to try the case twice after we've shown the error of their ways to them. Justice Potter Stewart Mr. Axelrod, this is a case according to your position, is it not, where the entire constitutional issue depends ultimately upon issues of fact. Mr. David Axelrod Yes. Justice Potter Stewart And in that respect, it's at least an unusual case and that most constitutional case (Voice Overlap) -- Mr. David Axelrod We say that the fact question is controlling and this Court has held that in all of these cases, there is no absolute rule. The question is when a fact, in each case and it is up to this Court to resolve the difference between the national and the local interest. And this Court has done so in the cases which we rely on. Justice Potter Stewart Well why if -- if your position is correct that the entire constitutional question depends upon resolutions of factual issues. Why in conformity with this Court many times repeated to you that it will not determine constitutional questions until or unless the necessity to do so arises, why wouldn't it be appropriate if this Court agree with you to remand this to the District Court to give the State a full opportunity to present its evidence on the facts and to give therefore that court a fuller opportunity that it is not add up to now to resolve the facts. Mr. David Axelrod The trial court never precluded from the -- the State from putting in any testimony. It was simply a voluntary position on the part of the State. They thought they were doing it the right way. Justice Potter Stewart Yes. Mr. David Axelrod But -- but nobody precluded them. No evidence was excluded by the Court. Now the State shows not to put the testimony in. The little they put in just wasn't sufficient. Justice Potter Stewart That's -- I understand. And so as a result, we have an unbalanced record factually. We do have factual findings -- Mr. David Axelrod Right. Justice Potter Stewart -- in the District Court. But a District Court, as you would agree I suppose, is certainly much better equipped than this Court to determine facts. Mr. David Axelrod Well, all this Court has to do, Mr. Justice Stewart, is to determine whether or not the District Court was correct in its application of the law to the facts which it found. It found the facts specifically. This Court, I submit, should look at the opinion of the three-judge court and determine whether or not its application to the law -- of the law to the facts was correct. We submit it was -- Justice William J. Brennan Where does this get you Mr. Axelrod if tomorrow -- then the Illinois reenacts the statute -- has an indicated a new statute. Mr. David Axelrod If this Court should hold it to be a burden, it could not enact such a statute. Justice Felix Frankfurter Mr. Axelrod I'd like to call your attention. Mr. David Axelrod It only takes the pronouncement of this Court. Justice Felix Frankfurter You're probably familiar with the two Hammond cases. The City of Hammond against Schappi Bus Line in 275 U.S. where the lower court issued an injunction against the State -- city ordinance on the ground that it was referred in interstate commerce was one of these motor cases. Mr. David Axelrod Bus cases. Justice Felix Frankfurter Bus cases. Mr. David Axelrod Bus case. Justice Felix Frankfurter And this Court said when you had a conflict between state law and the Constitution, we'd like to have more detailed enlightenment as to just how the -- this does burden and send it back on its own initiative because of the consideration to which Justice Stewart referred, namely, we don't declare things unconstitutional particularly against state action unless the decree has been -- reflect to fully canvassed fact situation. Mr. David Axelrod We have all of that. Plus, in this record -- Justice Felix Frankfurter You have on one side with the State for stupid reasons, if you will, or unimaginative reasons or wrong conception of law didn't contest this issue. Mr. David Axelrod Well, they -- Justice Felix Frankfurter And why should we declare something unconstitutional because the State took a narrow or shortsighted view on the advice of some counsel that this isn't an issue? Mr. David Axelrod Perhaps they couldn't contest the facts and that's why they didn't contest the facts. Justice Felix Frankfurter Well -- Mr. David Axelrod They had every right to deny them. If they wanted to, they could have. Now, they had every right to do so. Justice Felix Frankfurter I think that would have in good pleading a hundred years ago. Justice Tom C. Clark On the welding point, is that one of your main points? Mr. David Axelrod I beg your pardon. Justice Felix Frankfurter The welding point. Mr. David Axelrod No. That is not one of our main points. Justice Tom C. Clark On the burden? Mr. David Axelrod No. We have a series of points on the burden and they're all out -- Justice Tom C. Clark I'll just pass the welding instead, the statute require a welding? Mr. David Axelrod It does not, it doesn't say how. But the testimony shows how it could only be affixed. But we have a series of points on burden and there're a number of them. The larger point is the delays and the insurmountable objects that would be involved in connection with the attempt to move trailers by interchange from California to New York through Illinois where a carrier with a trailer in California would be required under the statute to have his California trailer start out with a contour-equipped trailer so that it could go through Illinois to get to the State of New York. That trailer carrying explosives, that trailer carrying perishables which is the lifeline of the truck business, is the kind of burden that would be involved in this case among other things. So, we have a whole series of facts upon which we rely for the purpose of burden. Justice Tom C. Clark That would be an issue when a State did not have a requirement at all and you entered a State that did have these requirements. Mr. David Axelrod It would have been except that the problem was never a practical or a real one with any of the States because all of the statutes were either uniformed or there were no statutes. And as a result of the fact that they were uniformed, all of the vehicles carried a straight flap which was good all over. Justice Tom C. Clark The States put in evidence on the welding points? Mr. David Axelrod They did and we did. And the Court found the facts in our favor as our witnesses testified to it. And there's a specific finding of fact number 24, a series of findings beginning with finding number 22 through 30 of the lower court opinion, Mr. Justice Clark, which specifically covers that subject matter. Justice Tom C. Clark Well, I don't know if you'll refer to that. I've looked at that up but it doesn't mention the -- I don't see it mentioning the welding. I thought that's one of your main points. Mr. David Axelrod Well, the welding -- the welding was simply the fact that gave rise to the finding but the Court in our case indicated here -- Justice Tom C. Clark 21 is the one you're referring to? Mr. David Axelrod I'm referring to finding -- yes, finding 21. That it would be impossible in those cases and impractical in others for plaintiffs to equip trailers obtained by interlining of the splash guard required by Illinois. Finding 25 refers to the danger. Justice Tom C. Clark 25? Thank you. Mr. David Axelrod Thank you. Chief Justice Earl Warren Mr. Wines.

Argument of William C. Wines Mr. William C. Wines May it please the Court. I want to thank Mr. Axelrod for correcting his misapprehension. As to my concession, I do concede that the major involved imposes some burden on interstate commerce. I do not concede that it is an undue burden or an unreasonable burden. On the contrary, we say that the burden is a reasonable one and is imposed in the interest of safety upon the public highways of the State of Illinois. Justice Hugo L. Black Assuming this case went back would you have any more proof to offer? Mr. William C. Wines I'm not sure -- I -- I -- I imaginably would, Your Honor. I did not try the case below. I took no part in the trial and I confined myself entirely to the record only as a deal. Justice Felix Frankfurter Your -- the State counsel did claim that the enactment of what purported to be -- what professes to be a safety measure forecloses any further consideration of -- Mr. William C. Wines He did, Your Honor. He did, Your Honor. Justice Felix Frankfurter That was his position? Mr. William C. Wines That was his position. Justice Hugo L. Black Was that his only position? Mr. William C. Wines No sir. It was (Voice Overlap). It was a steadfast. I beg Your Honor's pardon. Justice Hugo L. Black What about the answer? Did the answer put in the issue the question of reasonableness and safety, the safe -- in order for it be safe? I thought it did maybe -- Mr. William C. Wines The answer, Your Honor, does put -- I have it at page 21 of the transcript, does put an issue of factual allegations of the complaint. Justice Hugo L. Black Well does it -- Mr. William C. Wines But it says this -- Justice Hugo L. Black -- put in issue the factual allegations as to reasonableness and as to burden and as to the safety. Did the complaint deny the allegations that it was unsafe and it was unreasonable and an undue burden? Mr. William C. Wines I think the fair being of the answer is that it does put it in issue, Your Honor. If Your Honor will turn to page 25 of the transcript, they say they deny the allegations made in the paragraph 25 of the complaint in a very the same speculative contextual matters which are based on an imaginary conditions. And may deny -- they deny the factual allegations of the complaint. Yes, I think we'll have to say they do, Your Honor. Justice Felix Frankfurter But aren't -- if you look at page 259 (Inaudible) Well, is it you theory that a legislator of greater latitude in -- in imposing a burden on commerce as it concerns the operation of motor vehicles in contrast to a railroad. Mr. Houston - No, not exactly. Judge (Inaudible), your argument is pretty close to it doesn't it? Mr. Houston, it gets pretty close judge but we're having this distinction. Then he goes ahead and makes the distinction which is the very thing that Judge (Inaudible) question has indicated, doesn't he? Mr. William C. Wines That's right, Your Honor. Mr. Houston tried the case on the principal theory that the question of reasonableness was not lend for the District Court. And he objected -- Justice Felix Frankfurter Then it wasn't because the passage of the Act had foreclosed that question. Mr. William C. Wines Yes, I think that was his position. Justice Hugo L. Black Well, then why does he say that was the only -- I don't know, it maybe, but why does he say that was the only thing. I thought -- didn't he offer some evidence? Mr. William C. Wines Oh, yes. I didn't say that he said it was -- that -- that was the only question. Justice Hugo L. Black That was one of his grounds -- Mr. William C. Wines That was one of his grounds, Your Honor. Justice Hugo L. Black And do you think if the record compel that he said to show that the State did not attempt to repute the allegations of the -- Mr. William C. Wines They made no serious attempt to repute the allegation. They did call a witness who testified as to how these contour mudguards can be affixed. And he testified that they can be either welded or bolted. And they did call a state policeman who said that he had heard of no accidents as a result of contour mudguards. And they did put in testimony that contour mudguards tend to prevent debris from flying into the face of the following vehicle but they made no serious attempt to meet the charges that these mudguards -- Justice Hugo L. Black What are the kinds of attempt -- Mr. William C. Wines -- are inherently unsafe. Justice Hugo L. Black What other kind of attempt do you now anticipate that could be made other than that they made? Mr. William C. Wines I think there could be -- they -- they could -- they could have more studies and more testimony from the manufacturers as to matters of heat dissipation and the other factors come and gone. Justice Hugo L. Black Is it true that there's only one manufacturer here that this is permitted? Mr. William C. Wines I don't think the record shows that, Your Honor. Justice Hugo L. Black That was alleged wasn't it? It wasn't alleged that there was only one? I thought I saw -- Mr. William C. Wines I don't think so, Your Honor. Justice Hugo L. Black -- where the State neither admitted nor denied that there was only one, maybe identical. Mr. William C. Wines No, I don't think there's only -- there's only one, Your Honor. I know the State didn't admit that. Justice Hugo L. Black I thought it neither admitted nor denied. I thought that was what he said. Justice Potter Stewart I think if the allegation -- excuse me. Mr. William C. Wines I beg your pardon. Justice Potter Stewart What Mr. Justice Black is referring to is the allegation paragraph 24 of the complaint appearing on page 12 of the record saying there is but one type of mudflap or splash guard which can satisfy the requirements of the -- Mr. William C. Wines That -- that is correct. That allegation, I mean, it is correct that that allegation is made if there is but one type. The Act specifies a type of mudguard but the answer does put an issue that only one mudguard, one manufacturer of mudguard satisfies that. Chief Justice Earl Warren Suppose Mr. Wines, some place in the record the State did go into the question of a safety factor -- Mr. William C. Wines There is some testimony. Chief Justice Earl Warren -- and did show that there was not as much sideward splash. Mr. William C. Wines Yes, Your Honor. Yes, Your Honor. Chief Justice Earl Warren So they did meet the issue and -- Mr. William C. Wines They did introduce evidence on that. Chief Justice Earl Warren Then why didn't they go all the way if -- Mr. William C. Wines That, Your Honor, I don't know. I don't know it on the record. I don't know it off the record. I -- I didn't -- I didn't try the case. The assistant who did try it is no longer with the office. And on this appeal, I have confined myself entirely to the record (Voice Overlap) before this Court. Justice Hugo L. Black Are you able to make a statement to us representing the Attorney General that this case has not been -- the State's case has not been added to be presented and that you can improve the State's case with reference to the findings that had been made? Mr. William C. Wines I would like to confer with the Attorney General before I made that statement. Justice Felix Frankfurter May I add a qualification? Mr. William C. Wines Yes. Justice Felix Frankfurter And that if Justice Black would accept the amendment. As to issues, the case was not tried as adequately. It was scared to try it. It went back as to issues not actually contested for, not as to that it might deal with the same question that it is being (Inaudible) more contemplated. Mr. William C. Wines I would -- in fairness -- Justice Felix Frankfurter (Voice Overlap) -- Mr. William C. Wines -- the Court would require me to discuss that with the Attorney General. I am in charge of the State's Appeals Department and not on its Trial Department. And I have known only what's in the record in this case. Justice Hugo L. Black Well, I may say if you are the Attorney General who made that statement over your signature, one member of the Court, I will give a great weight in connection with whether you had -- the issue had been properly presented. Mr. William C. Wines I should like to confer with him at my very earliest opportunity. Chief Justice Earl Warren All right. You will. Mr. William C. Wines Mr. Axelrod has made apparent what the situation is with respect to the Interstate Commerce Commission. The text -- the diction that Mr. Axelrod read to Your Honors proclaims that Commission's intention to leave intact state regulations. And we submit that this regulation is a reasonable one so shown even on the present record for the reasons that I have urged. Justice Felix Frankfurter You're not implying though, you just said that -- that it may take fair attitude on the part of the Commission. It draws a challenge to a state law that in fact it does undue burden commerce. Mr. William C. Wines No. Justice Felix Frankfurter No? Mr. William C. Wines No. No, of course not. Unless Your Honors have some further questions that -- Justice Hugo L. Black Well, I'd like to ask you one more thing -- Mr. William C. Wines Yes. Justice Hugo L. Black -- just to see what your position is. Suppose it is true that Arkansas forbid the use of the kind of mudflap that your State does, and your State forbids the use of the other one and that it is a fact that Arkansas shipment coming up with (Inaudible) have to make changes in connection with the mudflap that would be dangerous. Would you say that was not to be an undue burden or would you? Mr. William C. Wines I would say that the evidence in this record shows that the contour type mudguard required by the Illinois law although not nearly as equivalent as the flat-type mudguard is a superior mudguard. There is no reason that I know of for requiring of flat -- a flat-type mudguard and -- although the question is not -- was not raised in this record, I say that the Arkansas regulation is an unreasonable regulation not because it permits but because it requires a flat-type when there is no reason for requiring. Justice Hugo L. Black What does yours require? Mr. William C. Wines We require the contour-type. Justice William J. Brennan Arkansas says that that's unreasonable. Justice Felix Frankfurter How many States also require the flat? 24 or 20? Mr. William C. Wines They require or permit it. I think nearly all of them permit it. Justice Felix Frankfurter Everybody except -- Justice William J. Brennan Illinois. Justice Felix Frankfurter -- Illinois, is that right? Mr. William C. Wines We think that's what the -- that's what the general assembly found and we think the evidence justifies that. Justice Felix Frankfurter So that Illinois can determine whether it -- whether it -- everybody else should have margin line with it. Mr. William C. Wines Only as to traffic entering Illinois. And these mudguards -- Justice Felix Frankfurter Entering and leaving. Mr. William C. Wines And -- Justice Felix Frankfurter Coming and going. Mr. William C. Wines That's right. We think that the measure embodies a reasonable exercise of Illinois' police power and we respectfully submit the judgment of the appeal probably should be affirmed. Chief Justice Earl Warren Mr. Wines, in view of the questions that we asked you, would you let us know as soon as possible -- Mr. William C. Wines I will. Chief Justice Earl Warren -- the position of the State is? Mr. William C. Wines The Attorney General is not in Illinois today but I hope to be able to get him by a telephone tomorrow or towards the end of the week. Chief Justice Earl Warren Yes. Thank you. Justice Hugo L. Black Mr. Axelrod, I evidently made a mistake in writing down the citation you gave, 52 M. C. C. 377.