Campbell v. Hussey – Oral Argument – November 15, 1961

Media for Campbell v. Hussey

Audio Transcription for Oral Argument – November 14, 1961 in Campbell v. Hussey

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Earl Warren:

— Campbell, Commissioner of Agriculture of the State of Georgia et al., Appellants, versus William Hussey, Jr., et al.

Mr. Durden, you may continue your argument.

Homer S. Durden, Jr.:

Thank you Mr Chief Justice.

William O. Douglas:

(Voice Overlap) you were saying just as we wrote yesterday that the presence of the blue ticket and the white ticket on a basket of tobacco meant that the basket sold for a lower price.

Homer S. Durden, Jr.:

That is correct sir.

William O. Douglas:

But they didn’t explain why that is true?

Homer S. Durden, Jr.:

Frankly sir, I don’t know unless we go back to the tobacco Act, Federal Tobacco Inspection Act in 1935, the Federal Act, where Congress stated that without uniform standards of classification and inspection, the evaluation of tobacco is susceptible to manipulation, control, and speculation and for that reason, it was necessary to have regulation by a single authority.

Otherwise, you have undue fluctuations in price which would impose an undue burden on interstate commerce for the sale of tobacco.

William O. Douglas:

But the Federal Act doesn’t regulate price, does it?

Homer S. Durden, Jr.:

Oh no.

But the — where you have dual regulation and we have for the Federal Act identifying tobacco in one amount and the Georgia Act identified in a different manner, the conflict is what led to what Congress said would happen undue fluctuations in price and I think that that Congress was — you might say looking in a crystal ball and see and that this would happen, it did happen just like you said it would.

Have I answered the question sir?

William O. Douglas:

Is this — any of this in the record?

Homer S. Durden, Jr.:

That was put in part of the Federal Act, sir.

Now, Mr. Cohn is going to handle the part of the case pertaining to the preemption by the Federal Government and in his brief and argument, he goes into the congressional record and to debate from the floor of Congress where these Congressmen expressed their feelings about the very point that you mentioned sir.

Charles E. Whittaker:

I can understand the difference in putting a blue tag and a white tag on, but why would that make any difference to the buyers of the big tobacco companies when they see the same constituencies and they know what the score is, why would they knock down 18 dollars a hundred on the same tobacco simply because it had a blue tag on it, rather than a white one?

Homer S. Durden, Jr.:

Again, I was speculating sir.

It’s not in the record.

We have no proof, but we have a condition in our tobacco growers where we have a huge number of growers with a small number of purchasers.

Those tobacco buyers know that where a man hauls his tobacco 400 or 500 miles to the market to sell it that he more or less has to take what they want to give him for it.

It would be prohibited for him to turn the sale down.

Charles E. Whittaker:

It does take it home.

Homer S. Durden, Jr.:

That’s right sir.

On the tobacco sales, the sale amount of tobacco is being sold, the floor man would put on the sheet the price and the purchaser’s name or seller.

If I follow to that sale and I was not satisfied with that price, I would turn that sale by turning right there.

When I tear that tag that means that I’m dissatisfied with the price.

I can then take my tobacco up and carry it by home.

But if I haul it 400 or 500 miles, I can’t.

It — it’d be prohibited.

So they realize that they get offer me whatever they want and I more or less got to take it unless I live locally where I can turn it and bring it back and resell it tomorrow.

Charles E. Whittaker:

But why couldn’t that happen whether the basket had a blue tag or a white tag?

Homer S. Durden, Jr.:

It could happen sir except for the fact that the blue tag is spotted as being — tobacco has been hauled a long distance and they know just like when I use to have to haul my tobacco a 100 to 150 miles to South Georgia, I — I would have to take a price a lot of times but I didn’t want because I couldn’t hold it back to my home and put it on market another time.

Hugo L. Black:

I guess there’s no doubt that the one or another as I gather you argument in that case, the buyers do not want to pay as much for the South Carolina Tobacco as they do for the other.

Homer S. Durden, Jr.:

They do sir.

They will, and they did assign —

Hugo L. Black:

No but as I gathered from what you said, I’m just trying to get —

Homer S. Durden, Jr.:

Yes sir.

Hugo L. Black:

— the exact import of, they will not pay you that because it has a blue tag, and a blue tag signifies to them that it’s coming from somewhere 400 or 500 miles and that has to be one of the Carolina.

Homer S. Durden, Jr.:

That’s right sir.

Hugo L. Black:

They won’t buy.

Now, may I ask you — because of your familiarity with tobacco, I have a recollection that — that tobacco grown in Connecticut, that suppose at least by Connecticut people, do you want to know the best tobacco in the world by purposes to which they used it?

Homer S. Durden, Jr.:

Yes.

Hugo L. Black:

I may be wrong to that state but I believe it is, it is Connecticut.

Homer S. Durden, Jr.:

Connecticut does grow tobacco, yes sir.

Hugo L. Black:

Now, what is required with references — against the regulation for them to stamp that, has made and grown in Connecticut?

Homer S. Durden, Jr.:

Oh, sir that is a different type of tobacco, we are —

Hugo L. Black:

I understand — I understand that.

Homer S. Durden, Jr.:

We’re — we’re dealing streaker or flue-cured tobacco.

Hugo L. Black:

I — I understand that.

But what I’m asking you is do you know whether the regulations permit them to label that as Connecticut Tobacco, on the basis that it is a different country?

Homer S. Durden, Jr.:

I don’t know, sir.

Hugo L. Black:

You don’t know?

Homer S. Durden, Jr.:

I don’t — I’m — (Voice Overlap) flue-cured tobacco now.

We have burley.

We have air-and-sun, fire-cured and various types of tobacco and in my section of the country we grew flue-cure tobacco only.

Hugo L. Black:

But I get — it’s frequently I see oranges (Inaudible) grown in (Inaudible) grown in California or grown in —

Homer S. Durden, Jr.:

Yes.

Hugo L. Black:

— Florida?

Do you know whether that is in line with the Government’s regulations or did they forget that?

Homer S. Durden, Jr.:

As long as it does not undue to burden interstate commerce, it’s — it’s perfectly alright.

Hugo L. Black:

Yeah, what I am talking about the Federal Government, does it forbid that?

Homer S. Durden, Jr.:

No.

Not that I know of.

So far as I know, there is nothing in federal statute, I — I could — could be mistaken in this, pertaining to citrus fruits, the appellant cited the cases Sligh versus Kirkwood which is a Florida case, ruled that of Florida statute, where Florida passed an act in making a criminal offense to shift from the state of Florida any citrus fruits one-fifth for human consumption and this Court in passing on that case, pointed out that they could do that, that to restrict their local in character and that the Federal Government had not acted to —

Felix Frankfurter:

That’s the point.

Homer S. Durden, Jr.:

On the —

Felix Frankfurter:

There’s no federal statute.

Homer S. Durden, Jr.:

No federal statute and of course for that particular statute did not restrict, identify or do anything to citrus fruits in California, citrus fruits in Texas or any other state.

Hugo L. Black:

In fact, it does refer to citrus fruits, doesn’t it?

Homer S. Durden, Jr.:

Sir?

Hugo L. Black:

They do have a statute which gives the same agency considerable regulatory power over citrus fruits?

Homer S. Durden, Jr.:

That was Florida, for citrus fruit grown in Florida.

Hugo L. Black:

I recall also getting some other states.

They advertise variant astringents that they grow in Sun Valley, some other states, Texas — pink grapefruit.

Homer S. Durden, Jr.:

Yes sir.

Hugo L. Black:

All I’m trying to get at is that the general custom if you know it.

Homer S. Durden, Jr.:

Well, we — we — we ship peaches from Georgia, Georgia peaches.

Hugo L. Black:

I recall that too.

Homer S. Durden, Jr.:

Georgia eggs.

As a matter of fact, we ship Georgia poultry, but so long as it does not unduly burden interstate commerce, that’s — that’s permissible.

Hugo L. Black:

(Voice Overlap) but the question is of course whether the collision as I understand it —

Homer S. Durden, Jr.:

That’s right.

Hugo L. Black:

(Voice Overlap) the federal statute.

Homer S. Durden, Jr.:

But if I put all my citrus fruit, anything that would place in embargo on citrus fruit from other states, I can’t do it.

Felix Frankfurter:

I see two different questions as Justice Black has pointed out namely the power of a State in the protection of health or even the protection of its local economy to make provisions protecting health and furthering the local economy and charged to be in conflict with the commerce clause.

Homer S. Durden, Jr.:

That’s right.

Felix Frankfurter:

That’s why I am intrigued, that’s a very different problem from —

Homer S. Durden, Jr.:

Exactly.

Felix Frankfurter:

— the one whether it’s a matter of construction, there is a collision.

Homer S. Durden, Jr.:

I see.

Felix Frankfurter:

And that’s our question here, isn’t it?

Homer S. Durden, Jr.:

Yes, sir.

We — we say that the Georgia Act was not local in character.

They placed an embargo on products brought in from Carolina.

Felix Frankfurter:

You would have a very different question if there were no Federal Tobacco Act.

Homer S. Durden, Jr.:

Exactly.

Felix Frankfurter:

And the same Georgia statute.

Homer S. Durden, Jr.:

Exactly.

Felix Frankfurter:

You probably wouldn’t be here.

Homer S. Durden, Jr.:

No, in fact, I would either.

But —

Earl Warren:

Mr. Durden, is there any — is there any issue in this case as to the relative merits of the — of this fruit type of tobacco that is grown in Georgia, and Alabama and the new so called New Belt on the one hand and that — and that grown in the Carolina’s or the other?

Homer S. Durden, Jr.:

Maybe I can explain it to you Mr. Chief Justice in this way.

The appellants had a Doctor Sean, I believe what’s his name, who is an agronomist from the Clinton Collage, he’s a tobacco specialist and he explained to the trail court, that farther up the Belt you get the different nicotine content that you’d find in tobacco as a general rule.

Now there is — there is no set rule.

In other words, I could plant ten hectares tobacco on my farm.

One side of my field, I’d have a light sandy lawn soil.

The other side, I have what we call a tipped and red pebble soil.

Well, the chemical characteristics and probably the nicotine content for the tobacco grown in the sandy lawn would be different from other.

There is no uniformity sir.

It’s for that reason that this tobacco is aged for about three years after it’s bought in the market.

Then as in this huge (Inaudible), then the chemist of the tobacco company, when they start of manufacture that into cigarette, they have to get in a sample of tobacco because you may have (Inaudible) tobacco just grown on 50 different falls.

And they take that tobacco and run that chemical analysis on the samples to see what must be added so that, they were getting uniformity of taste.

As you know, when you light up a cigarette, you smoke as one cigarette or one cigar, of course we’re not dealing with cigar tobacco, which you smoke one cigarette because it has a taste that you like.

And when you light that cigarette, you expect to have the same taste that the previous cigarette that same brand have, so they must have uniformity.

And in order to get that uniformity, they run this chemical test to see what must be added to that tobacco.

And they add licorice, now honey, and the other flavors that make a Camel cigarette taste like Lucky Strike or Phillip Morris to get that uniformity.

So, there is — there is nothing that you can say that is uniformed by tobacco.

It’s — you might say almost to carry an agent for this attitude — added ingredients.

And each brand of cigarette has a certain percentage of what we call the premium grade tobacco and it also had a certain percentage of your rough trash you might say.

Homer S. Durden, Jr.:

No one is monopolizing the — cream of the crop you might say, but they — they blend that.

It’s a blend is what it is.

Charles E. Whittaker:

There must have been some reason though when they auctioneer cane to the first row, in the first basket with that had a blue tag on it, there were no bids at all.

Maybe it’s not in the record; maybe it’s not important, I’m just curious.

Homer S. Durden, Jr.:

Maybe I can answer this question.

Hugo L. Black:

In answering that, would you state who hires the auctioneer?

Homer S. Durden, Jr.:

The Warehouse.

Hugo L. Black:

The particular warehouse —

Homer S. Durden, Jr.:

Yes sir.

Hugo L. Black:

— in the community, they have in (Inaudible)

Homer S. Durden, Jr.:

Well most of our warehouse sir, live in Carolina because they come that far with short seller state.

Hugo L. Black:

But do not represent particular consumers —

Homer S. Durden, Jr.:

Oh no —

Hugo L. Black:

— wholesale consumers (Voice Overlap)

Homer S. Durden, Jr.:

No, you may have one auctioneer that would work for two different warehousemen.

He — he is an employee by the warehousemen.

He gets a certain amount of each basket of tobacco he auctions on.

Your question sir, I don’t know and I — and I don’t have the proof of why that first basket of tobacco sold for $61 a hundred pound.

And then when it realized that every blue tag tobacco, they refused to buy it at any products.

As you recall yesterday, I made the statement, that as soon as that buyer realized that it was a blue tag tobacco and he turned to the warehousemen, “I can’t buy,” why, because it’s blue tag.”

The next buyer (Inaudible) order, too much moisture content the he said, “Yes that’s right” and it was at that point that we stopped the sale and had the Government grader to come back and regrade that part of tobacco.

And he regraded it, certified that it’s in good order and we tried to sell it and we couldn’t sell it.

Basket after basket after that, they refused to bid anything on blue tag tobacco.

Now, it has been stipulated that as much as $18 a 100 difference in the price of blue tag tobacco and the white tag tobacco.

On the first —

Charles E. Whittaker:

Now, that’s in price — that’s in price but not value.

Homer S. Durden, Jr.:

Right.

Also, the (Inaudible) grade of Carolina tobacco by the Government grade, sold for less and identical grade of Carolina — or Georgia tobacco until the blue tags are removed.

And the record will show that after the first two days, when we got a restraining order, when the Judge Collet signed a preliminary restraining order and the blue tags were removed that the Carolina tobacco sold right on par with the Georgia tobacco.

The price disparity disappeared.

Homer S. Durden, Jr.:

They can no longer pick it out.

I wish I had the evidence sir, to answer your question.

I don’t have it, but it is another case of where you have a huge number of producers with a small number of purchasers and it could very easily work into collusion, control, speculation and manipulation just as Congress said.

Now, we were selling to thousands of tobacco buyers.

I don’t think we’d be here today.

I’m not accusing the tobacco companies or anything, I’m guessing, it’s a must.

William J. Brennan, Jr.:

Tell me were any of these marketing facts involved of the adoption of the federal regulations (Inaudible) that makes the counsel more aggressive.

Do you think that you’re talking about now was — do they underlie some of the federal regulations, these facts of marketing tobacco?

Homer S. Durden, Jr.:

Yes sir, yes sir.

I think Mr. Cohn could possible go to that better.

I’d be glad going to if you would like but we —

William J. Brennan, Jr.:

No, no if you have answered yes then I willing to (Inaudible)

Homer S. Durden, Jr.:

That — that was surely congressional record that he has.

Earl Warren:

Mr. Durden, may I ask you just one more question?

Homer S. Durden, Jr.:

Yes sir.

Earl Warren:

Do these buyers have the competence to walk along the road that you told us about and — and from their observation while they re buying be able to determine this came from Georgia, this came from Alabama, this came from the Carolinas?

Homer S. Durden, Jr.:

No —

Earl Warren:

— is that within the field of their company?

Homer S. Durden, Jr.:

They cannot.

Earl Warren:

They cannot.

Homer S. Durden, Jr.:

And as a matter of fact sir, well Mr. Chief Justice, I see my time has expired —

Earl Warren:

(Voice Overlap)

Homer S. Durden, Jr.:

— may I answer the question?

Earl Warren:

Yes, you — you take a couple of minutes more.

Homer S. Durden, Jr.:

Thank you sir.

At the trial in this case before the three-judge federal court, I had my client go into warehouse and pull five samples of tobacco.

Two of those samples were taken from a pile of Carolina tobacco.

Three of those samples were taken from pile of Georgia tobacco that the government grader has said was the identical grade as far as the Government was concerned.

As I recall, they were grade B foil.

I could be wrong on that.

Homer S. Durden, Jr.:

Every witness, including the warehousemen that we represented, the specialist in Clinton College, the Mr. Nutz who was the representative for the Universal Tobacco Company, we would ask them to pick out which tobacco came in Carolina, which tobacco came from Georgia.

They could not do it.

Now, the reason they couldn’t do it so, most of this tobacco that we’ve grown, see the grown and gathered it in North Carolina and carried to South Georgia where it’s planted in plant beds in the early December.

Those have to be kept under can, tobacco (Inaudible) and all up along in March, these commercial plant growers sell their plants.

They own up five or six inches high.

In the fall the buyers of those plants transplants that tobacco.

I may buy a truck load of tobacco plants from that farmer, plant it on my farm, under the Georgia Act, that’s Type 14 tobacco.

From that same plant bed, grown from their identical seed, a man from North Carolina may plant — this type 13 or type 12 or type 11, according to where he happens to replant it, it is the same tobacco.

Tobacco is nothing but a weed.

Now, these experts are good.

They can come along on the sale and they can tell whether it’s the looks or the (Inaudible) or the tips.

You see, tobacco stock has some 20-24 leaves.

The lower leaves, we call the sun leaves and they can examine those.

The government graded can examine it and tell you right quick.

It’s a sun leaves.

Then we have our prime leaves which are the middle leaves and they can be — the difference from those can be told and then we have our tips which are usually much small.

So they know the tobacco.

It stands the reason at this cigarette company with a millions of dollars invested, they have to know tobacco.

And if there was any difference in the Georgia grown tobacco and the Carolina tobacco, they would pick it out, but they’re just not.

If there is no other question, my time has run out.

Thank you.

Earl Warren:

Mr. Cohn.

Sherman L. Cohn:

Mr. Chief Justice —

Felix Frankfurter:

I wonder if you could take two minutes of your time to state explicitly and with as much detail as it’s relevant just what the items of collision are between the Federal Act and its implementing regulations and the legislation which you say must fall because of the overriding authority of that body of federal law.

Sherman L. Cohn:

The Federal Act Your Honor has as its prime purpose and it is set out in the act, it is set out in the legislative history, the creation of a uniform, classification, standard system of tobacco.

Now, the Act itself says, “Uniform standards for classification and inspection of tobacco, Section 2.”

They repeat it.

The legislative history is build up with — with the controversy between the proponents of the Act who claim that uniform standards of classification were necessary and the opponents who said, “No, this is a local problem, leave it up to the States.”

Congress in adopting the Act, adopted the argument of the proponents, and in fact as I said, put it into the Act itself.

Now, the Secretary of Agriculture, under the authority granted him in the statute has established seven different classes of tobacco, the 27 different types, perhaps there’s as many as 200 different grades et cetera down the line.

Sherman L. Cohn:

He has also said, that the tobacco of the identical — the characteristics, the same quality, and length, and moisture and so on and so forth shall be type identically, no mater where it may have been grown by the accidents of geography.

In other words, the tobacco grown on one side in Savannah, the River, the tobacco grown on the other side, if it has the same characteristics physically, it will have the same type whether that’d be 14 or 13 or 12 or what have you.

Now, the State of Georgia — I mean, we continue one more point.

The Act also has as its purpose not just the establishment of classification and standards in vacuum, but the communication of those standards to the buyer and the seller in order to bring some order to the chaos that range at — ranged in the tobacco markets before 1935.

Legislative history is full of descriptions of the way this, as my friend said, “The thousands of the tobacco farmers were –” well the words — the one Congressman was subject to the wholesale of robbery by the few buyers and speculators mainly because the farmer did not know what type and grade of tobacco he had.

The buyers had their own systems.

The farmers might have a system and there was just mass confusion.

The Congress, as I said, wanted this information of the classification of a particular lot tobacco to communicate to the buyer and the seller.

It gave authority for this to the Secretary.

The Secretary set forth two requirements for the communication, one, that the type and the grade, now not just the grade but the type and the grade it says in the regulations, be on the warehouse ticket that is on the basket then secondly, that the auctioneer when he begins the auction of a lot of tobacco shall to publicly announce this information, so that the buyers and the sellers know what they are dealing with.

That is the federal statute.

The state —

Felix Frankfurter:

All that def — they’re carrying out those two definitions as the type and grade, that’s all pre-determined before the auction begins?

Sherman L. Cohn:

That is correct.

As I understand it, about an hour or so before the auction starts, one or more federal inspectors start to go down the road one-by-one.

There maybe one inspector to a small warehouse.

There maybe as many as three or five in a large warehouse and they inspect each basket of tobacco; they pull out different leaves from different — different areas within the basket to get what they consider, a represented its sample.

And then they make this determination, what is the type, what is the grade?

Now, I might point out at this point that if an interest deportee, either the farmer or somebody who buys a tobacco is unhappy about the — the typing and grading, he can ask the original inspector to re-inspect, to reclassify.

He can also call in that inspector’s supervisor who is — probably in the same warehouse if — if not his in the same locality to re-inspect.

And finally, there is an appeal, the procedure to the Tobacco Division of Agriculture Department and they have the field offices with some one designated to do it so that there would be a day or maybe two days to lay that, but as you say, this is all done before the — the actual auction.

At the time of the auction, this information is publicly announced.

Now, the Georgia has come in —

Earl Warren:

Before you get to that, may I ask you this question?

How — how many types and grades Mr. Cohn did you say that —

Sherman L. Cohn:

— there are —

Earl Warren:

— had been classified by the Secretary of Agriculture?

Sherman L. Cohn:

There are seven classes.

Earl Warren:

Seven classes.

Sherman L. Cohn:

There are 27 types —

Earl Warren:

27 types.

Sherman L. Cohn:

They are — well, I know in flue-cured, they are 168 different grades and somebody just told me that there are more in some other classes of tobacco.

Earl Warren:

Yes.

Sherman L. Cohn:

So I — there are — I will say upwards of 200 different grades.

Hugo L. Black:

(Voice Overlap) may I ask you this.

Sherman L. Cohn:

Yes.

Hugo L. Black:

— you said seven classes, how many types?

Sherman L. Cohn:

27 types, at the present time.

Now, may I point out that this is subject to change —

Earl Warren:

Yes.

Sherman L. Cohn:

— because as condition has been changed, the Secretary has amended his classifications from time to time.

I assume — I’m sure it is done through (Inaudible) proceedings where anybody who’s interested and come in and get his opinion as to what should be done.

At the moment, I am informed that the tobacco growers in Florida claimed they have entirely distinctive type and they wanted the CC from Georgia and have a type number 15 down there.

I understand this is under the consideration of agriculture now.

Earl Warren:

Now, may I pursue that just one —

Sherman L. Cohn:

Sure.

Earl Warren:

— one — one more step?

When the Secretary does this, he classifies all of the tobaccos in America.

Sherman L. Cohn:

That’s correct Your Honor.

Earl Warren:

And if the Georgia law is permitted to stand that would leave us with it with one more grade or classification then the Secretary of Agriculture has set up.

Sherman L. Cohn:

You will not only one more, but you would have a different one using the same terminology.

You would also have — you — all that Georgia has done here, and I want to point this out because I think it is very important.

All that Georgia has done here is to set up a definition for type number 14.

If they are permitted to do this, I see no legal distinction why they cannot come in and set up their own standard for 168 different grades for type 13, 12 and 11.

I — I don’t see why North Carolina can’t do the same thing etcetera and etcetera, going right back to where we start it from 1935.

Earl Warren:

Does the Secretary of Agriculture publish market reports in accordance with those classifications?

Sherman L. Cohn:

It does Your Honor.

In fact, there are price reports out, I believe every marketing day and their average is every week and there’s a monthly report and well, you know what the department will publish.

Earl Warren:

Yes and of course that would apply only to the classifications he had made.

Sherman L. Cohn:

That’s correct Your Honor.

Sherman L. Cohn:

That’s correct.

Felix Frankfurter:

Are — are all the differences indeed in the type and class of the differences in class, type, and grade, from seven to 27 to a hundred and something, are all those differences reflected in price?

Was it a choice of quality, a choice of preference within the same price grading, within the same price scheme?

Sherman L. Cohn:

I would say Your Honor, if I understand your question correctly —

Felix Frankfurter:

(Voice Overlap) whether does it — whether type class two, grade 30 —

Sherman L. Cohn:

Yes.

Felix Frankfurter:

— and so on, the differences between the grade and the classes, the types and the grade, are those differences functioned to the price?

Sherman L. Cohn:

Well, it — it may be in the sense that once the buyer and the seller knows what the type and grade is at a particular basket of tobacco.

Now, after all there are certainly impurely of grade, everybody agrees with that.

There is some controversy as to whether one type is better than another.

I — I refuse to get into that, but the — there are certainly impurely of grades.

There are grades that there are — there’s a tobacco that is water logged in which case it gets a certain grade or if it is too dry or if it’s tore or what you have you, this all goes into the grading system.

So, once the buyer and seller know what the type and grade of tobacco is, they have the basis to bargain.

They know what they are getting, and they know what they are selling.

Felix Frankfurter:

It may be — he may decide to buy one grade out of another, because of sheer profit just one person may prefer — one grade out to another although —

Sherman L. Cohn:

Well —

Felix Frankfurter:

— of course it’s the same or he may just make a preference of — as a preference.

Sherman L. Cohn:

Well as my —

Felix Frankfurter:

(Voice Overlap) grade relationship.

Sherman L. Cohn:

As my brother here pointed out, in a cigarette, you have a blend, you have and if the Lucky Strike, the people — pardon me, you have a large percentage of scrap that is your lowest grades.

Now, I would assume that there is a surging, a competitive supply, and the demand system on scrap.

If there is an enough scrap, the price of scrap will go up — because they have to have it.

Felix Frankfurter:

It’s only been from classification that the Secretary has made both as the class — as the class and as the type —

Sherman L. Cohn:

Type and grade.

Felix Frankfurter:

— and grade has some rational basis for the making, is that right?

Sherman L. Cohn:

That’s correct Your Honor.

Felix Frankfurter:

And that rational classification may even if it doesn’t but it may affect the buyer and the seller.

Sherman L. Cohn:

It is intended too by Congress.

That’s right.

And —

Felix Frankfurter:

And furthermore, it is intended to be uniformed throughout the country.

Sherman L. Cohn:

That’s correct.

John M. Harlan II:

And then what puzzles me is this.

According to the Secretary’s classification the type as far as this Court (Inaudible) to your brief, as that type of flue-cured tobacco come, may know in the Southern Flue-cured or New Belt, Georgia, Florida, and Alabama, produced consequently in the Southern Section of Georgia and in some extent in Florida and Alabama, isn’t?

How does the state definition differ?

Sherman L. Cohn:

If you read this Mr. Justice Harlan, in vacuum, then I would agree word-for-word, there is no substantial difference, but you can’t read it in vacuum.

It was not intended in vacuum, it is not applied in vacuum —

John M. Harlan II:

Alright, just to read (Voice Overlap)

Sherman L. Cohn:

I would now I like to draw your attention to page six.

Up near the top —

Earl Warren:

— of your brief?

Sherman L. Cohn:

Of the page, of my brief, where there is a definition of the term “types”.

And under that definition, this is about a third of the way — way down, it says, “Tobacco which has the same characteristics and corresponding qualities, colors and length shall be treated as one type, regardless of any factors of historical or a geographic nature which cannot be determined from an — an examination of the — the tobacco.”

Now, there was a purpose for putting that in.

The purpose was pointed out by the Secretary when he first promulgated these regulations.

The Secretary said that it is not possible without a considerable detail, to specify all of the sections in which a certain type is produced, or to include all the local names.

He went on that in the present classification, now this is the first time he promulgated these — these standards, in the present classification, it has been the purpose of the department to use a sufficient number of names to identify each type of tobacco, to supplement this information, the principal sections in which each type is produced are also shown.

In case, the local name of a type or the section in which it is produced is not covered under the description of the type, it does not follow that that the tobacco is of a different type.

The following rule will assist in determining the type in which any tobacco shall be placed and then he — he quoted that — the rule that I referred you to Your Honor.

Now, I set this out —

Hugo L. Black:

Would you — would you read that sentence.

Sherman L. Cohn:

— this is our —

Hugo L. Black:

— second batch.

Sherman L. Cohn:

On page 23 —

Hugo L. Black:

(Voice Overlap) you might read.

Sherman L. Cohn:

— in case, the local —

Felix Frankfurter:

Where is that?

Hugo L. Black:

23.

Sherman L. Cohn:

The 23 of my brief on top, the top line, in case, the local name of a type or the section in which it is produced is not covered under the description of the type, it does not follow that the tobacco is of a different type.

Hugo L. Black:

What disturbs me that is that here it is — seems that this covered under the description of the type because you regulate, which Mr. Justice Harlan and all the judges described that time is being grown in three states particularly.

Sherman L. Cohn:

But what this is saying Mr. Justice Black is that in the definition of Type 14, it would not be practical who list in every State in which it might possibly be grown.

Hugo L. Black:

That’s correct.

Sherman L. Cohn:

Instead they have —

Hugo L. Black:

— but he says that if in case it’s not done which indicates that he sometimes does it.

Sherman L. Cohn:

That’s right.

Hugo L. Black:

Does he do it for the reference with Connecticut tobacco?

Sherman L. Cohn:

That’s — that right.

So that, if you have —

Hugo L. Black:

Well, there’s nothing unusual about the saying of the types of consists of tobacco growing for the particular geographical areas.

Is it –?

— is there anything unusual (Voice Overlap)

Sherman L. Cohn:

But what this says is that the growing for that type is not necessarily limited to those geographic areas.

Hugo L. Black:

Unless — unless you read, it is produced, here is the local name and type that is not covered under the description in type, but it is covered here.

That’s what is bothering me.

May I ask you if you have been — do you classify, is there anything that shows your practice has been to classify Carolina tobacco as Type 14?

Sherman L. Cohn:

Well, that is shown in the regulation which I refer to Mr. Justice Harlan —

Hugo L. Black:

(Voice Overlap)

Sherman L. Cohn:

— it is printed directly under that — in that sentence which you — you and I just have been —

Hugo L. Black:

Yeah.

Sherman L. Cohn:

— talking about, where it says, any tobacco, just — just two lines down.

Hugo L. Black:

But you have — I — I — remember that, but if you have already given a definition to a type which limits it to particular area, why would this general statement effect that special rule?

Sherman L. Cohn:

Because Your Honor, it was intended that the special rule that you call, be only the — the naming of the principal places of production of that particular type.

If that particular type is grown elsewhere, and after all, you — you can’t tell from year — for year what a farmer might — might (Voice Overlap)

Hugo L. Black:

Well, one (Voice Overlap) was North Carolina and South Carolina tobaccos.

Sherman L. Cohn:

It has been that when the inspector examines a lot of tobacco, he examines it for both the type and grade, and he says that, “This is Type 14” even though and it has grown in South Carolina.

Hugo L. Black:

Now, where does the record show that had been the fact here despite — despite this regulation which points in my mind to the other direction?

Sherman L. Cohn:

The record is on page.

Let me see if I can find it quickly here.

Hugo L. Black:

You know pardon me.

The reason I’m asking this is that — I think it’s nothing less common designating certain types for the purpose to buy, coming from a particular State.

Sherman L. Cohn:

Your — Your Honor, may I make this clear —

Hugo L. Black:

Is there anything uncommon about that?

Sherman L. Cohn:

No that’s — there is nothing uncommon about — about designating any agriculture commodity from the State that it comes, but that’s not this case.

If Georgia —

Hugo L. Black:

That’s what — that’s what we have to decide.

Sherman L. Cohn:

— would here come in and say that we want all Georgia grown the tobacco, to have a label on it grown in Georgia, then we would have a different case.

Hugo L. Black:

But suppose you include as a type, the question here is actually that whether that is a collision, suppose you include as a type and just said specifically Type 14 shall include all tobacco grown in South — certain name, some kind of flue — what is it?

Sherman L. Cohn:

Flue-cured.

Hugo L. Black:

Flue-cured tobacco, grown in South Georgia and Alabama and Florida, you’ll include all that. That’s all it said.

Sherman L. Cohn:

That’s — that’s right sir.

Hugo L. Black:

Do you mean that it would be — it would conflict with that rule which you permit to identify as I suppose (Inaudible) where the only place have grown in those places that would somehow conflict constitutionally with your rule for the man — for the people who grow the tobacco in those States put on that grown in those States.

Sherman L. Cohn:

It would — conflict if they say if Georgia says that tobacco grown Georgia only or for in Alabama, they’re minor commodity, but if — if — if the Georgia comes in and says that tobacco sold in Georgia can be Type 14, only if it is grown in Georgia, Florida and Alabama, and not if it is this grown across the Savannah River.

What they have done to establish a different type —

Hugo L. Black:

I’m assuming — I am assuming in my question which is an argued of the point.

I don’t think it’s been argued precisely on it much.

I’m assuming that your regulation says that the Type 14 is the type of tobacco, flue-cured tobacco grown in Georgia, Alabama and Florida.

That’s all it said.

Sherman L. Cohn:

If –

Hugo L. Black:

Would you say that Georgia then would violate the constitution by a conflict with your regulation, if it said, “We want all on our tobacco grown in Georgia, Alabama and Florida.”

Sherman L. Cohn:

I would say Your Honor–

Hugo L. Black:

Even though — even though that was a 100% in harmony with what the Board had done.

Sherman L. Cohn:

I would say that we, it wouldn’t have a situation of conflict then but we would then have the problem of preemption and what the Georgia could act within this — this area.

Hugo L. Black:

Well, I — I don’t suppose you’d called it preemption if they will finally help you to identify a type.

Sherman L. Cohn:

Was it in the Varnville case that Mr. Justice Brandeis said it was — it was preemption, but that’s —

Hugo L. Black:

Suppose it (Voice Overlap)

Sherman L. Cohn:

But the — the thing is Your Honor to know that the federal regulation is not as you have stated.

Hugo L. Black:

Well, that’s — that’s the — that is impossible.

That’s — that’s not one problem —

Sherman L. Cohn:

I mean I think that’s not how it has been enforced (Voice Overlap)

Hugo L. Black:

(Voice Overlap) problem here which I was trying to find your view on assuming that it is, assuming if you specifically said as they argued and in your – (Inaudible) that you have limited Type 14 to tobacco grown on those three States, is it your position that we should hold a statute of Georgia unconstitutional which in addition to saying Type 14, says grown in Georgia, part of Alabama?

Sherman L. Cohn:

Here —

Hugo L. Black:

I know it is but — but I want to find out what’s your views.

Sherman L. Cohn:

I would say that the answer is yes sir —

John M. Harlan II:

But I put that —

Sherman L. Cohn:

— because they used Type 14.

If they would only use grown in Georgia, then we would have a different situation.

But the fact is they have used a phrase the Type 14, which has a specific meaning in the (Inaudible) and what they are doing, even if they are coincidently — even if they are assisting the Government and there are many cases — I mean the Santa Fe Elevator case (Inaudible) and many others, where this — this Court has said that where Congress has acted, the States cannot and assist.

John M. Harlan II:

Could I put — put that question for you a little bit.

Supposing Georgia had said, “We describe this tobacco in the very words of the federal regulation” according to page 8, but in addition, we want a blue tag to put on to make it easier to people to identify, would that come in to conflict with the federal regulation?

Sherman L. Cohn:

I would say there is no practical conflict.

John M. Harlan II:

No what?

Sherman L. Cohn:

There is no practical conflict, but there is this.

There is a different requirement on the warehousemen.

There is the fact that they are coming into an area on which Congress through its own and through the Secretary of Agriculture as the fully (Inaudible) I mean there’s no argument there.

The — the Townsend case was brought up yesterday as an — an example where the Congress under — of this Act did not preempt a field, but that was a different subject in Townsend.

But in this subject, the subject or classification and identification of the — of the tobacco who — and Congress through the Secretary of Agriculture has fully legislated and as this Court has stated many times that the State cannot come in even to the aid of Congress that they cannot make any additional or supplemental regulations.

The — the Napier case where — where the ICC through under the act of Congress prescribed certain matters as far as train, the local motive is concerned.

He said absolutely did nothing about a curtain on the — on the cab.

Felix Frankfurter:

Mr. Cohn, may I take you away from cases —

Sherman L. Cohn:

Sure, okay.

Felix Frankfurter:

(Voice Overlap) finding out exactly what is case is about?

And I like to pursue Justice Black’s questions.

Sherman L. Cohn:

Alright.

Felix Frankfurter:

So that you don’t make sub two things that are different namely, (1) that the state has added or subtracted or qualifed a requirement of federal law.

That’s one problem.

Sherman L. Cohn:

That’s right.

Felix Frankfurter:

And (2), a totally different problem even if the State had harmoniously supplemented the federal law may do so.

Now those are very different three — very different questions and what I want to know is that the clarity that has not yet been conveyed to me at least which this case is has Georgia done anything to the regulations, implementing the statute whereby it has made in-roads upon those regulations, either by adding or subtracting or making a differentiation in the practical enforcement of what the Secretary has done and was authorized to do.

Now, could you keep those two separate and then tell us what it is we have before us (Voice Overlap) —

Sherman L. Cohn:

Your Honor —

Felix Frankfurter:

Because you have the first class, it is definable.

You ought to be able to tell us exactly —

Sherman L. Cohn:

You have — before —

Felix Frankfurter:

— this is what the regulation said and Georgia is trying to take something away from it or add something to it.

Sherman L. Cohn:

You have before you both questions?

Felix Frankfurter:

Or added a time though don’t make (Voice Overlap)

Sherman L. Cohn:

Now, where is that, the question of conflict?

It is the position the Government that the geography does not make any difference in the typing of tobacco, that tobacco grown across the Savannah River in South Carolina, if it has the same characteristics as Type 14 (Voice Overlap) should have is Type 14 tobacco.

Felix Frankfurter:

(Voice Overlap) if I may cut in, has Georgia negated that in a slightness degree —

Sherman L. Cohn:

The answer is yes.

Felix Frankfurter:

— but Georgia denied whereas they’re typing 14 to stop then its ingredients and characteristics by the Secretary is not Type 14.

Sherman L. Cohn:

They have said that only tobacco grown in Georgia, Florida and Alabama can be Type 14.

Felix Frankfurter:

Well, if you’re right about that, you don’t have to worry about the second classification.

Sherman L. Cohn:

Well, that’s — that’s what I’m trying to argue.

William J. Brennan, Jr.:

Well now, before you leave it, here’s a language it seems just lay one of this long side or the other, what the federal regulation says this Type 14 is the fact of produce principally in, the Southern side of Georgia to some extent further than Alabama.

Sherman L. Cohn:

That’s right.

William J. Brennan, Jr.:

What the State regulation says is that Type 14 is that which is loosely or grown in the traditional loosely area which consist of the State of Georgia and part of Alabama.

Sherman L. Cohn:

That’s right.

Now, face of — on the face of — and may if I point out Your Honor that there is a — that his works cumbrously.

Felix Frankfurter:

Well, (Voice Overlap), why did you get the second (Inaudible)

Sherman L. Cohn:

Well, if you don’t agree with me on the first then we get to the second. [Attempt to Laughter]

But if I may point this out that the — the conflict works conversely also that the tobacco that is grown in Georgia, that the federal inspector would say that this is type 13 or 12 or 11, that the Georgia statute would say, “No, it’s grown in Georgia and therefore it’s, the 14.”

Felix Frankfurter:

Now, Mr. Cohn, to disagree with you, imply that the language is so confused or that Georgia determination either by an appropriate organ of the administration or in practice has negated on what you said, otherwise, you ought to be able to read and say, “Yes, this is an addition or a subtraction” whichever it maybe.

You seem to think this is a matter of controversy whether you’re right on your first proposition.

Sherman L. Cohn:

Well, my — my

Felix Frankfurter:

Why it could have been —

Sherman L. Cohn:

— opponents controvert it.

Felix Frankfurter:

I know.

I’m not talking about lawyer’s arguments.

I’m talking about the materials by which a court must judge.

Sherman L. Cohn:

Well, the —

Felix Frankfurter:

That ought to be susceptible of more or less easy determination.

Sherman L. Cohn:

In my mind Your Honor, it is.

Felix Frankfurter:

That is all —

Sherman L. Cohn:

In my mind, it’s a matter of reading the —

Felix Frankfurter:

Tell me what I should read in order to conclude that you’re right?

Sherman L. Cohn:

You read —

Felix Frankfurter:

Just tell me what I should read?

Sherman L. Cohn:

The definition of Type 14 in the federal —

Felix Frankfurter:

Where is that?

Just give me page —

Sherman L. Cohn:

Alright.

Earl Warren:

(Inaudible), page 8.

Sherman L. Cohn:

Page 8.

Earl Warren:

Alright.

Sherman L. Cohn:

The top of the page.

Earl Warren:

Alright (Voice Overlap)

Sherman L. Cohn:

Read that in light of the definition of types on 6 of my brief.

Earl Warren:

What else?

Sherman L. Cohn:

And read in the —

Potter Stewart:

The Georgia statute.

Sherman L. Cohn:

The Georgia statute, the Georgia — the definition of 14 which I will find for you in just a moment.

It’s in Section 1 for the statute back in the appendix that I know.

Felix Frankfurter:

Do the law court have any trouble in reading it the way you read it.

Hugo L. Black:

Page 9.

Sherman L. Cohn:

Pardon?

Felix Frankfurter:

Does District Court have any trouble in reading it they way you read it?

Sherman L. Cohn:

No sir.

No trouble whatsoever.

Felix Frankfurter:

Language must be singularly optative.

Felix Frankfurter:

We can quarrel whether — the Government says that two statutes are linguistically in conflict, they’re not in conflict.

That — that — that doesn’t require Solomon or just any of the desire, does it?

Sherman L. Cohn:

The Government says that it is a conflict Your Honor and — and we — we submit on that —

Felix Frankfurter:

I don’t care what the Government says.

Are the materials there to justify what it says?

Sherman L. Cohn:

In my opinion, yes Your Honor.

May I point out one more thing?

I know my time has expired.

Earl Warren:

Yes, you may (Voice Overlap)

Sherman L. Cohn:

That it maybe as Mr. Harrison has contended here that there is a reason to draw certain geographic lines because the nicotine content or chemical content or what have you.

I’m — I’m not arguing that.

I’m not a chemist.

I’m not an expert on that, but there is a re-course open to the Georgia interest.

If they wish that these factors to be taken into consideration in the federal standards, they can go to the Sector of Agriculture under the ruling and proceedings, present their evidence and ask for the classification that they contend should be made.

Hugo L. Black:

Isn’t the converse of that true?

Couldn’t the Secretary tomorrow, whatever we decide, describe — re-describe Type 14, as has been his practice to include South and North Carolina, and say principally grown in Alabama, North Alabama, Georgia, Florida, North and South Carolina?

Sherman L. Cohn:

Your Honor —

Hugo L. Black:

(Inaudible) wouldn’t it?

Sherman L. Cohn:

He believes he has done that —

Hugo L. Black:

I understand that.

Sherman L. Cohn:

— but he can — and make it the explicit if the — the Court rules, otherwise it’s not Georgia.

Hugo L. Black:

I mean do you think it would destroy the — I frankly have difficulty at this time in seeing that he hadn’t described it as — as grown in those three States.

Sherman L. Cohn:

Your Honor, you have —

Hugo L. Black:

I don’t understand why he wanted to put other definitions (Inaudible)

Sherman L. Cohn:

You have within the other definitions.

You have other types and other classes of tobacco that are grown elsewhere, that where — would also be grown in other States.

It is — why did you —

Hugo L. Black:

But why did he construe it by putting those names and leaving the impression that it was only grown in those places?

Sherman L. Cohn:

I can’t answer that Your Honor.

May I point out also that if what the Georgia interests are, they’re complaining about is that the inspectors have not been properly enforcing the federal regulations.

Sherman L. Cohn:

Now, that is one thing they can bring up in their jurisdictional statement in this — in this Court which they have not renewed in their — their brief.

But again, they have an appeal procedure open to them to the Secretary of Agriculture.

They are not right in our view in running to the State of Georgia to intercede itself between a tobacco —

Hugo L. Black:

How long has this case been (Voice Overlap)?

How long has this case been litigated?

Sherman L. Cohn:

Jul — well, you mean in this Court or?

Hugo L. Black:

Why hasn’t the Secretary of Agriculture, whoever handles this corrected this plainly ambiguous statement?

Sherman L. Cohn:

Well —

Hugo L. Black:

When you say it means one thing in the language indicates to me, it means another.

Why hasn’t he corrected it so?

Why bring it up here instead of there?

Sherman L. Cohn:

I do not know Your Honor.

I — I believe that — he believes that it’s not ambiguous.

That’s all I can say.

Hugo L. Black:

He believes there’s no ambiguity?

Sherman L. Cohn:

That’s right Your Honor.

Hugo L. Black:

Do you back (Inaudible)

Sherman L. Cohn:

I do sir.

Earl Warren:

Very well.

Mr. Groover, you may have five minutes.

Actually, Mr. Groover, that was time we’ve taken —

Denmark Groover, Jr.:

Thank you sir.

Mr. Chief Justice, Your Honors, let me say at the outset that if the federal inspector had classified the South Carolina and North Carolina tobacco as Type 14 and was dust-free and was precluded under the Georgia Act from having a white tag place their own, we have no case.

We cannot conflict with the Federal Government and with duly authorize the regulations all with the statute and we recognize it, but we say there is no conflict.

Let’s keep in mind that the very definition that is described to Type 14 tobacco and may I say at the outset I hope the Court will keep firmly in mind that there is a difference between type and between grades.

A type is a broad general classification with that, we have adopted a — the State of Georgia has adopted the federal government’s definition.

There is absolutely no effort on the part of the State of Georgia in its acts or otherwise, to tamper with, change or in anyway communicate grade.

William O. Douglas:

Grade is merely a subdivision type?

Denmark Groover, Jr.:

Grade is a subdivision of type Your Honor and grade as said by Mr. Durben is the place where the — where price is determined.

It’s just like the difference between a Kansas City State Prime and a St. Louis Missouri State Prime.

William O. Douglas:

But how can you say there’s not a conflict when the regulation says that Type 14 shall be made regardless of geographical or —

Denmark Groover, Jr.:

I’m saying Your Honor that that’s supposing the possibility of a conflict and we have here a record before this Court in which there is not one iota of evidence to — in the infirmity and indeed if the evidence is in the contrary that none of this tobacco that was brought down there, even on the 29.1096, the broad general classification would have or was classified as Type 14.

Felix Frankfurter:

Do you mean the Secretary couldn’t classify in the Type 14?

Denmark Groover, Jr.:

Yes sir.

He could classify there’s Type 14 Your Honor but he has not done so and — and the complainants themselves in their complaint said that there’re all be inspector.

The Secretary’s agent did was to grade the tobacco, not make any classifications.

Felix Frankfurter:

But then do you — and you would — do agree or do you agree I just have a slight to ask confliction and make confession that — but you suggested that there is a conflict between the regulation and Section 1 of your statute.

Denmark Groover, Jr.:

No sir.

I say, there is —

Felix Frankfurter:

Under the language, I’m not talking about what was done under the lines but that there is a collision between the Secretary who defines Type 14 both not exclusively, geographically but also characteristics of tobacco outside of those — that territory and the restrictive geographic provision of Section 1.

Denmark Groover, Jr.:

No sir, I do not make —

Felix Frankfurter:

(Voice Overlap)

Denmark Groover, Jr.:

— there is a conflict because he then proceeds himself to define it or based on geography alone.

Felix Frankfurter:

Now where is that?

Denmark Groover, Jr.:

That’s on the page 8 of the Government’s brief.

He says that Type 14 and incidentally, the general broad, general classification is CFR 29.1096.

This is 29.1100 which follow.

Type 14 is, and this is Secretary’s definition, that type of flue-cured tobacco commonly known as Southern Flue-cured or New Belt of Georgia, Florida and Alabama produced principally in the Southern section of Georgia and if I may interpolate, produced to some extent in Florida and Alabama.

Now, it seems to me that that absolutely excludes under the present pending definition.

Felix Frankfurter:

Well, no, principally to me means principally.

Denmark Groover, Jr.:

Yes, sir but if you don’t —

Felix Frankfurter:

And then if there’s minor situations where it also exists.

Denmark Groover, Jr.:

And if said — say included those minor situations, Florida and Alabama and since in this record, if Your Honor please, defendant’s exhibit one shows a map promulgated and it’s identified as the defendant’s exhibit one shows a map which outlines the various types and in this map it show — itself shows that which has been described as an official determination of the Secretary of Agriculture shows that the Type 14 is grown only in Georgia, Florida and Alabama.

Now, I do admit sir that there is the possibility that a man across the Savannah River, right across could grow Type 14 tobacco and that the Secretary on the 10.96 might subsequently could classify it as Type 14, but if this Court said in (Inaudible) against the United States, we’ve got a set of concrete facts here that Secretary has identified it as Georgia, Florida and Alabama.

The Secretary, and there’s no evidence here that there is any other possibility or if indeed that person is not now before this Court.

Felix Frankfurter:

Has the Secretary himself interpreted his definition of Type 14 to include tobacco grown outside of these three States?

Denmark Groover, Jr.:

Not so — according to his official publication, defendant’s exhibit one, which is a map shown in the area, not according to the witness.

Felix Frankfurter:

In what — in what type of Carolina tobacco fall?

Denmark Groover, Jr.:

They fall in 13, 12 and 11.

It goes up to the line.

Felix Frankfurter:

Do you mean that the record show that he himself has — has shoved, has pigeonhole Carolina tobacco into those other types.

Denmark Groover, Jr.:

Yes sir, yes sir.

Felix Frankfurter:

What — what, where is that?

Denmark Groover, Jr.:

That, Your Honor, the defendant’s exhibit one was not printed in record.

Felix Frankfurter:

And then how can we tell?

Denmark Groover, Jr.:

Well —

Felix Frankfurter:

There’s something so vital (Voice overlap) is not in the record.

Denmark Groover, Jr.:

No sir.

John M. Harlan II:

Is it in the files of the Court here?

Denmark Groover, Jr.:

Yes sir, which I have in my hand —

John M. Harlan II:

Just was not printed.

Denmark Groover, Jr.:

It was just not printed.

It was sent up, yes sir.

And also in page 125 of the record —

Earl Warren:

Mr. Groover, how does the Secretary treat the Carolina so called number 14, Type 14 tobacco in his marketing reports?

Denmark Groover, Jr.:

How does he treat it Your Honor?

Earl Warren:

Yes.

Denmark Groover, Jr.:

It is called type 13 or the type 12.

There is no Carolina type 14 tobacco under the Secretary‘s regulation.

Earl Warren:

And — and so he solely reports in his daily or weekly reports?

Denmark Groover, Jr.:

Now, that’s my understanding Your Honor.

I’m certain that’s true but I don’t —

Earl Warren:

Yes, but I —

Denmark Groover, Jr.:

— make some statement.

Hugo L. Black:

Is there evidence to the contrary?

Denmark Groover, Jr.:

No sir.

John M. Harlan II:

What was that page of the — point of the record that you referring too besides exhibit one?

Denmark Groover, Jr.:

Page 125 Your Honor.

It’s a testimony of an employee of the Department of Agriculture, Tobacco Division, in which she identified this Court’s record which was not printed and said that it’s an official publi — publication and then I interpret it is to be in the official determination.

John M. Harlan II:

Who is this gentleman?

Denmark Groover, Jr.:

This is the gentleman who works in the Tobacco Division of the Department of Agriculture Your Honor who sat in as the record reveals on the drawing of the Georgia Act and who incidentally after the passage of the Georgia Act as the record reveals had the Secretary put the last of Secretary was put in to effect in Florida exactly the same thing to put blue and white tags on tobacco grown in those areas.

On page – the very complaint here shows that we are dealing with a sub — that counsel or the Appellants, appellees and counsel to the Government are dealing with the proposition that possibly Georgia could at some future take be in conflict with the federal definition and if someone keep up and was excluded.

But, that ignores that well-established principle that when you — this Court is treating with an act of Congress on an act to the legislature that you will do everything possible to uphold that act and that you will not suppose or imagine a case that to give rise to a constitutional question.

Felix Frankfurter:

(Voice Overlap) May I ask you this?

Denmark Groover, Jr.:

Yes sir.

Felix Frankfurter:

To comment on — if you’re good enough to turn page 160 of the opinion, comment on Judge Jones’ sentence, the last sentence of the big, long paragraph, “The testimony of the defendant establishes that in fact, tobacco is having the same characteristics since our requirement in quality, colors and length maybe grown on both sides of the boundary line, between Georgia and South Carolina.

Denmark Groover, Jr.:

Yes sir.

Felix Frankfurter:

This is — after the Court below said that called attention to the fact that in dealing with the Secretary’s definition of characterization of Type 14, even thought it’s commonly known as produced principally.

Denmark Groover, Jr.:

That’s right.

Felix Frankfurter:

So therefore, that plainly is matter of English needs scope including other things within those product line and (Voice Overlap) phrases and as a matter of practice and as a matter of construction, that’s what the — how the Secretary construed it.

Denmark Groover, Jr.:

Well, and it went on to say and to some extent and includes and defined Flor — including Florida and Alabama and I assume that to some extent in — in the South Carolina, they had been in any view that have them in the regulation.

Hugo L. Black:

May I ask you in connection with the statement that’s been made several times by Mr. Justice Whittaker about the price.

Denmark Groover, Jr.:

Yes sir.

Hugo L. Black:

If there was any dispute of this statement made the representative of this argument, I think Georgia and Florida tobacco has had the reputation of being invest tobacco produced in the United States in the last five years.

I think that it’s worldwide.

Denmark Groover, Jr.:

No dispute and that’s right and if of course because that would give raise to the passage of this act.

We can of course be in conflict regardless of how (Inaudible) the act maybe but we say Your Honor, we have not in conflict because this plaintiff has brought this case here, is a warehouseman.

So far as this Court knows, so for as the world knows, there is not now in existence any human being on earth who does produce even though he might produce Type 14 tobacco outside of the States of Georgia, South Carolina and Florida and it seems to me that the only way that this Act can be said to be in conflict is based on the outside possibility that at some future date, someone may come in to exist into on to Federal regulation would have Type 14 and would then be precluded on the Georgia regulation.

That’s time enough for that person to complain as you said in the (Inaudible) against the United State.

Now, here’s what they say and here’s the real complaint, this is paragraph 12 of the complaint, which is on page 5 of the record and under which they come to this Court, this case gets to this Court, under the federal law just mentioned, official graders of the United States, official graders of the United States, Department of Agriculture grade each sheet of tobacco or pile of tobacco, immediately prior to it’s sale so that said official grade may be established.

This grade is the official grade of the United States.

Now, the grade, if Your Honors will turn page 39 of the Government’s brief and look at Section 511 (g), the grade of the tobacco is the thing that the Congress of the United States was interested in communicating to the purchasers for they say, and this is in the Act no and not the regulation, “Warehousemen shall provide space on warehouse tickets or other tags or labels used by them for showing the grade of the like covered, thereby as determined and authorized by the tobacco inspector.

The Secretary may prescribe by regulation the form in which sets the deep certification of grade shall be shown and may require that a copy of it.

Now, the Secretary has gone on and prescribed a regulation which includes type, grade and so forth but his employees have not put it on there.

No way on any of these blue tags that you have because they have designation that this is in fact Type 14 tobacco.

If it is — if the South Carolina tobacco was Type 14 under the federal definition and has so been classified by their inspectors, we would’ve been in violation of the constitution in trying to put a blue tag on.

Felix Frankfurter:

May I — may I properly draw the inference of what you’ve said Mr. Groover that assuming you’re right and that — that — and that there is no collision today and you’re entitled to be and you’re right so that we judge by what was and not what — by what will be, am I right in saying that the afternoon that our decision comes down reversing this case and sustaining use such that it should turn out to be, the Secretary may issue a new — promulgate a new regulation leaving no doubt on the matter and you have to stop at once?

Denmark Groover, Jr.:

Yes sir, he could — he could — he could say any tobacco anywhere.

Yes sir, he can — he can do it.

No question about that.

Denmark Groover, Jr.:

He’s got us by — to — got control of it.

But as the (Inaudible)

Felix Frankfurter:

But he couldn’t — he couldn’t —

Denmark Groover, Jr.:

But on (Voice Overlap)

Felix Frankfurter:

I don’t suppose you laid by and do nothing if he said something that is fully — that doesn’t contain the characteristics of your tobacco, your 14 shall be 14, could he?

I mean, they’ll limit him to — he can say (Voice Overlap)

Denmark Groover, Jr.:

That’s — well, that’s the right.

He’d have to –

Felix Frankfurter:

He can’t say —

Denmark Groover, Jr.:

He couldn’t exclude that.

Felix Frankfurter:

Considerably (Voice Overlap) tobacco as the best tobacco.

Denmark Groover, Jr.:

That’s right Your Honor and —

Hugo L. Black:

And that provides for judicial review, doesn’t it?

Denmark Groover, Jr.:

Oh yes, sir and there’s an appeal — what I mean is, he could change his regulation and say that suddenly including to some extending in Georgia, Florida, Alabama and South Carolina, then when we sought to enforce our Act against the South Carolina man, if that be (Inaudible), we would be in violation and our act must fall.

But there again Your Honor, that supposing the possibility of some unknown factor and dreaming up a constitutional question that may or may not —

Felix Frankfurter:

Mr. Justice Black asked you, when did this litigation arise and I’m not sure I’ve heard the answer, but what I would like to know from you is when this problem arise by the claim of the Secretary that his Type 14 precluded you from getting what value if you could by advertising, I don’t use the word by notifying people that this is — this is Georgia tobacco.

Denmark Groover, Jr.:

When did the Secretary —

Felix Frankfurter:

When did the Secretary take the position which he’s urging he here today?

Denmark Groover, Jr.:

When the Government — I mean, when this Court invited him to appear here —

Felix Frankfurter:

That would mean, but have you taken no position before this?

Denmark Groover, Jr.:

No sir.

The — the position of the Department of Agriculture as revealed by the record, I think we must imparted one its employees would not have been there testify was favorable to — this act and that there was no conflict in our definition.

The map itself shows it.

The record also demonstrates that the Secretary or somebody pursuant to a party from the Secretary put the same proposition in, in the State of Florida and only lifted it when the temporary injunction was issued against the —

Felix Frankfurter:

Do you mean the — do you mean the Department of Agriculture itself encouraged (Inaudible) to advertise 14 of the Florida product?

Denmark Groover, Jr.:

Yes, sir.

Yes sir.

Your Honor, may I take this to say why?

This Court as I don’t believe that we have given — been fair to — and telling you exactly what gave rise to this litigation, what’s the dollars and cents about this as Mr. Justice (Voice Overlap)

Felix Frankfurter:

Because it has something to do with all their concerns, does it?

Denmark Groover, Jr.:

Yes sir.

Maybe too many dollars and too few cents on some, but this — there are two things that Georgia was interested in — in protecting.

Type 14 as it revealed by page 115 of the record has special qualities, just like if a man goes to the grocery store and he wants some garlic salt instead of some onion salt, he will pay more for the garlic salt than he would for the onion.

It won’t fit in the recipe.

They — they buy this tobacco as Type 14 and they ship it all over the world, 24 million pounds, the previous year of South Carolina tobacco had come on out in the market to the extent that they occupy 17% of our total market and thus Georgia was loosing its identity.

Now, the second and a very important thing is if we sell out tobacco in Georgia, Florida and Alabama loose, that is in tangled leaf form.

The other, the market sell it in tied form, they have to type by the in so that the machine — the manufactures pick it up and can handle it manually.

Well with this tremendous influx of — of the loose leaf tobacco that would normally be so typed, coming in to our market, we were threatened with the loss and as testified by an employee of the Department of Agriculture, we will — we were threatened with a loss of our untied tobacco market.

Now, that meant this to us.

It meant first by our sense of pound if we could possibly type and second the record demonstrates beyond question that because of the show occurrences, we couldn’t typed our tobacco so it is we passed this Act, and who were the people that come here complaining?

It’s not the grower in South Carolina, the man who possibly could have full Type 14 tobacco.

I don’t know.

It’s not him but it’s the warehousemen who have built their tobacco warehouses based on being able to sell other than any product properly identified.

Now, it may well be Mr. Justice Whittaker that the reason the buyers wouldn’t pay on blue tag tobacco, the same price they would pay for it in — for the white tag is because they wanted to discourage this loose leaf influx too on account manufacturing culture but does not state of Georgia’s activity.

That maybe — it maybe the counsel for the warehousemen, and the Department have a case against them for conspiracy, but not to strike down an Act designed and passed to protect the vital industry, the largest single of cash crop in our home state, and not to be stricken down if this Court pleases on this acquisition that at some future date, possibly that could arise a conflict.

Now, on the only question of preemption, if you look at the act itself I think it would be different — it will be shown (Inaudible), shows that Congress did not intent to preempt it as to type and identification.

If I — well, let me shows the appointment of inspectors in cooperation with other people, other States with the States.

511 (m) shows cooperation, 511 (b) gives to the man, the Secretary the Power to designate a market or to fail to designate a market and certainly Congress would not had left undesignated markets and refuse the State to act and to protect though, 511 (g) shows that the ticket is only to show the grade.

Now, on page 18 and 19 of the Government brief, it’s demonstrated that beyond question that the — what the Federal Government is interested in is caliber not classification and that was what they were interested in and what they were interested in, identifying caliber B and grade and type B in classification when that — this act was passed, because Congressmen have for the majority says, “We won’t — it would be a service to have this tobacco graded according to United States standards of quality.

Tobacco Inspection will bring a more uniform class and spoke — of the advantages of having a standard grade and either the acquisition.

They talked in times of grading and the only communication contained in the act itself required to be given under the Federal Act is — that of a grade and Section 511 (i) (b) shows — shows that 511 (i) (c) that shows the Commission for somebody else to put another type card on here just as long as it didn’t say it’s an official in the United States Court.

It makes it a misdemeanor for any person not an authorized inspector under this chapter.

The issue is certificate or reports stating type, grade, size or condition of any a lot to be in accordance with standard United States, therefore which is of search color, which is of search color, size, arrangement or wording as to be mistaken for a certificate issued under this chapter.

Felix Frankfurter:

Is that the only reference to type?

Denmark Groover, Jr.:

Sir?

Felix Frankfurter:

Is that the only reference to type —

Denmark Groover, Jr.:

Yes —

Felix Frankfurter:

— statute.

Is that the only reference —

Denmark Groover, Jr.:

Yes sir, yes sir.

Denmark Groover, Jr.:

Well, no sir in the very beginning of the Agriculture back time, but — but they — it says this Your Honor, it says it would be a misdemeanor for him acquitted on there for a certificate issued under this chapter, represented to be a certificate under this chapter.

And unless, such certificate states him from the letters in its hearing that is not issued on the authority of the United States.

If I may finish this one sentence Your Honor —

Earl Warren:

You can do it.

Denmark Groover, Jr.:

— The State of Georgia has advertised to the world that we are identifying tobacco grown in Georgia, Florida and Alabama pursuant to its definition as Type 14 by the Federal Secretary of Agriculture.

Thank you.

Earl Warren:

Mr. Groover, it’s late in the argument to ask this question but I just want to be sure in my own mind, is it your — your position that the Secretary of Agriculture has not provided even in his regulations or in his administrative practices that this tobacco which comes from the Carolina’s is grade — is Type 14 tobacco?

Denmark Groover, Jr.:

He has not Your Honor and the record will so demonstrate.