Campbell v. Hussey

PETITIONER:Phil Campbell, Commissioner of Agriculture of Georgia and Georgia Farm Bureau Federation Inc.
RESPONDENT:William Hussey, Jr., et al.
LOCATION: U.S. District Court for the Southern District of Georgia

DOCKET NO.: 42
DECIDED BY: Warren Court (1958-1962)
LOWER COURT:

CITATION: 368 US 297 (1961)
ARGUED: Nov 14, 1961 / Nov 15, 1961
DECIDED: Dec 18, 1961

ADVOCATES:
Denmark Groover, Jr. – for the appellants
G. Hughel Harrison – for the appellants
Homer S. Durden, Jr. – for the appellees
Sherman L. Cohn – for the United States as amicus curiae, urging affirmance

Facts of the case

The Federal Tobacco Inspection Act provides uniform standards for classification and inspection of tobacco. The regulations under the Act require sellers to identify type 14 tobacco with a blue tag. The Georgia Tobacco Identification Act requires sellers to mark the same type of tobacco with a white tag. Several owners and operators of tobacco warehouses in Georgia sued in the U.S. District Court for the Southern District of Georgia to enjoin enforcement of the Georgia law. The three judge court granted the injunction. The U.S. Supreme Court heard this case on direct appeal.

Question

Is the identification provision in the Georgia Tobacco Identification Act precluded by the Federal Tobacco Inspection Act?

Earl Warren:

Number 42, Phil Campbell, Commissioner of Agriculture of the State of Georgia, et al., Appellant versus William Hussey, Jr. et al.

Mr. Harrison.

Mr. Harrison, you may continue.

G. Hughel Harrison:

Your Honor, may it please the Court.

The issue involved in this case is whether or not the State of Georgia is authorized to require the identification of flue-cured tobacco at the time that it has offered for sale in the Tobacco warehouses.

Your Honor, there are two statutes involved.

One is the Federal Tobacco Inspection Act and the other is a 1960 Act of the Georgia general assembly.

We have conceded and admit that in the event that the Federal Act has preempted the fees, then the Georgia Act cannot stand.

We submit that the controlling issue in this case is whether or not the Congress by the Federal Tobacco Inspection Act and the regulations issued thereon which relate to the establishment and promotion of the use of standards of tobacco and how they may be determined as precluded to State of Georgia from protecting a product of that State, and revealing and requiring the revealing of the truth of the product at the time it is offered for sale.

The purpose of the Georgia Act is stated and at least four times in the Act.

And that is, that it is to provide a positive means of identification.

It sets forth right in the title of the Act in Section 1 in defining its — the purpose, is found in Section 13 (a) and in Section 13 (e) of the Georgia Act.

Much has been said and will be argued before this Court as to the means and mechanics utilized by this Act in carrying out this stated purpose.

Insofar as those means relate to geographic areas production and the identification that is employed, it is submitted that these factors and mechanical mean are subservient to the basic issue and as to whether or not the State of Georgia is authorized to require or provide identification.

In that, once it is determined, that this authority exists then the means and methods employed and the results thereof are placed in their proper perspective.

Again, we submit, that the basic issue is the authority of the State of Georgia to require the identification.

The Federal Tobacco Inspection Act was enacted by the Congress in 1935.

In Currin versus Wallace, there was an attack upon the constitutionality of this Act.

By leave of the Court, I would like to read an excerpt from that case and that it refers to a previous case wherein this Act was under construction, again from the State of Georgia, wherein the warehousemen had complained of the Georgia statute fixing the maximum fees that the warehousemen could charge for their services in selling the tobacco.

And I quote, in Townsend versus Yeomans —

Earl Warren:

What are you reading — what are you reading from Mr. Harrison?

G. Hughel Harrison:

In Currin versus Wallace, sir.

Earl Warren:

I beg your pardon.

G. Hughel Harrison:

I have an excerpt from Currin versus —

Earl Warren:

What years — from what Court?

G. Hughel Harrison:

From this Court, U.S. Supreme Court, citation 306 U.S.1.

In Townsend versus Yeomans, 301 U.S. 441, we recently had under consideration the legislation of Georgia prescribing maximum charges for the services of Tobacco Warehousemen who conducted their business in a manner similar to that prevailing in North Carolina.

There, the warehousemen strongly insisted that they were engaged in interstate and foreign commerce as a tobacco sold on their floors was destined for interstate or foreign shipment, and hence that the State was without power to fix their fees.

They invoked the Federal Act in support of their contention, but we found nothing in the Federal Act which undertook to regulate the charges of warehousemen and hence we concluded that Congress had restricted its requirements and left the State free to deal with the matters not covered by the federal legislation and not inconsistent therewith.

The authority of Congress to enact the Tobacco Inspection Act was not questioned.

G. Hughel Harrison:

We do not question the authority here.

We submit that a reading of the cases shows that there was a limited purpose in the Congress enacting the Federal Tobacco Inspection Act, and that is that the Act was enacted so as to remove the contusion and the elimination of doubt and manipulation in the Tobacco Act throughout the use of this Act.

It is stated that is — it is to provide a uniform method for determining for standards and for the classification of tobacco.

In this connection, the lower court cited Section 3 of the Federal Act in support of its opinion that there should be scheme of federal regulations so pervasive as to leave no room for state action.

This section authorizes the Secretary of the U.S. Department of Agriculture to investigate the sorting, handling, condition, inspection and marketing of tobacco from time to time, and to establish standards for tobacco by which its type, grade, size, condition, or other characteristics may be determined which standards shall be the official standards of the United States, thereafter follow other provisions of this Section relative to the date that the standard shall become effective and authorizing amendments and modification thereto.

Section 5 of the Federal Act provides a manner by which the Secretary is authorized to designate those option markets where tobacco is bought and sold at option.

It specifically requires than no such market may be designated and subsequent to a referendum where it is required that at least two thirds of the growers’ voting favor the designation of the market.

This section also authorizes the Secretary to temporarily suspend the inspection and certification requirements at any designated market for the named reason.

This same Section provides that nothing contained in the Act shall be construed to prevent transactions in tobacco — at markets not designated by the Secretary or at designated markets where the inspection and certification requirements have been suspended.

The declaration of purpose contained in the Federal Act, which is Section 2, states the purposes of the Act and includes a statement that without uniform standards of classification and inspection, evaluation is subject to price manipulation and other evils submit that the Federal Tobacco Inspection Act is by its terms an authorization to the Secretary to perform named acts.

The determination of tobacco by grade is strict.

Authorization is given to the Secretary in broad language.

It is submitted by the — that the Act itself, the construction of the Act by this Court, show that the Act does not precludes state action.

Under the Federal Act, the Secretary had determined and defined four basic types of tobacco.

This is flue-cured tobacco, Your Honor.

Type 14 under the Federal Act is defined as follows: “That type of flue-cured tobacco, commonly known as Southern Flue-cure or New Belt of Georgia, Florida, and Alabama, produced principally in the southern section of Georgia and to some extent, in Florida and Alabama.”

One of the stipulation that was entered into by the parties and as part of the record in this case is as follows, it is stipulation number 4 on page 27 of the record, “And an official standard of the United States the Federal Government has, under the Federal Tobacco Inspection Act, designated types 11, 12, 13 and 14, known as flue-cured tobacco, and has designated as Type 14 tobacco only flue-cured tobacco grown in Georgia, Florida, and Alabama”.

We respectfully submit to the Court that the type of the production of Type 14 tobacco is in and of itself relatively new when compared to the production of tobacco in other years.

Of the four types, three of these types, contain language that give leeway that the principal area of production is in designated areas in the States of the Carolina’s and Virginia.

Now, the language employed in defining Type 14 goes to recognize that it is a relatively new area of production and we submit that under this definition, under the federal definition of Type 14, that it cannot be produced in any other area.

The record in this case, the testimony of the witnesses supports this statement.

William J. Brennan, Jr.:

Well, are there differences in characteristics depending on State where the Type 14 is grown?

G. Hughel Harrison:

Your Honor, we submit that the testimony in this record shows that you can take plants from one bed in Florida — plant bed in Florida or South Georgia and plant it in the different production areas and that you will have a resulting product that has distinct characteristics, its nicotine content would vary.

The aroma, the burning qualities, physical properties and chemical content, and while we’re there, Your Honor, the production of Type 14, the qualities of Type 14, as such that it is in demand not because of its superiority, not because any other grade is inferior, but because it has definite known characteristics that those in the marketplace in buying tobacco, desire to have that product when they can identify it as such.

William J. Brennan, Jr.:

You mean, when they can identify it, as what, as grown only in Georgia or grown in North Carolina or South Carolina or wherever?

G. Hughel Harrison:

As a definite type of tobacco, sir.

We have — a question of geography has been quite involved in this case.

We submit here that geography standing alone is not a controlling issue.

William J. Brennan, Jr.:

But what I want — what I — I know absolutely nothing about it or from where it is, but I gather that when the Federal Government says that this is Type 14 and permits them all to be legal and sold together, that this is on some basis of common characteristics of the tobacco without regard to where it’s grown, am I wrong about that?

G. Hughel Harrison:

There is an area of dispute there, Your Honor.

G. Hughel Harrison:

We take the position that the Federal Government under the Federal Tobacco Inspection Act has set up definite areas of production.

And the record in this case reveals that they will not recognize as true to type any tobacco produced outside the type — producing area.

Now as to the individual state, the Type 14, as I mentioned here, is produced in the three state area of Georgia, Florida, and Alabama with the principal area of production be in Georgia.

Now, Type 13 is defined as certain in areas of South Carolina, then we have Type 12 and 11 coming on up North into the Virginia area.

These areas are defined under the Federal Tobacco Inspection Act, and the testimony of Mr. Williams in this record shows that the Department will not recognize as true to type any tobacco produced outside of that area.

William J. Brennan, Jr.:

Well, the practical one thing — what’s the practical result in this fight?

As I understand it, what this warehouse complains though, if Type 14 were grown into whether it’s from Alabama, Georgia — or what’s the third State?

G. Hughel Harrison:

Florida.

William J. Brennan, Jr.:

Florida, it’s all lumped together and it’s just sold at whatever price you get for it.

But the under the operation of your state statute, you in effect segregate Georgia grown Type 14 from Florida and Alabama?

Is that right?

G. Hughel Harrison:

No, sir.

That is not true.

We do not — we separate —

William J. Brennan, Jr.:

No, I’m talking about the practical effect.

Don’t you put a different colored tag or something in?

G. Hughel Harrison:

No, sir.

We put a tag.

The Type 14 carried the white tag.

And again, Type 14, as under our statute, would include the tobacco produced in Georgia, Florida, and Alabama.

Now, this is one reason that I made the point that the basic issue is the authority of the State to require the identification.

We realized that we might not have utilized the best means possible in carrying out the identification.

Felix Frankfurter:

Now, what is it that the federal regulations require or forbid you from doing that you want to do?

G. Hughel Harrison:

Sir, we want the truth known of at — or the tobacco at the time it is offered for sale.

Felix Frankfurter:

No, just be specific.

G. Hughel Harrison:

We want the truth.

We want the type known, and we utilize this, this means of the colored tags.

Felix Frankfurter:

Do you mean you weren’t labeled or flagged Florida 14?

What is — what is it that you physically would do if you are allowed to do it and what — what is — and why does the Federal Government prevents you?

G. Hughel Harrison:

We, sir, would place on the marketplace a white tag upon of all that tobacco produced in the States of Georgia, Florida, and Alabama which is recognized as Type 14 under federal law.We would place upon —

Felix Frankfurter:

And what is it that the Federal Government — why — why can’t you do it?

G. Hughel Harrison:

Well, right now sir, our Act has been declared unconstitutional.

Felix Frankfurter:

Yes, I understand that —

G. Hughel Harrison:

(Voice Overlap)

Felix Frankfurter:

Why — what federal barrier is there for you doing that?

G. Hughel Harrison:

Sir, we say there is no federal barrier.

We say that if the toba — Federal Tobacco Inspection Act —

William J. Brennan, Jr.:

Yes, but the practical question I think the same one that I’m trying to get at Mr. Justice Frankfurter’s is this.

Am I wrong?

I was wrong obviously that all Type 14, without regard to where it’s from and sold at the Georgia warehouses has this special identification.

Now, this must be —

G. Hughel Harrison:

No.

William J. Brennan, Jr.:

— distinguish it from other types.

Is that it?

G. Hughel Harrison:

No, sir.

They distinguished it.

We placed, historically, that we have used the white basket tickets on the sheet of tobacco that is offered for sale.

Now, under the Georgia Act in question here, we would retain the white identification tag on Type 14 which is your three state areas.

We would place on other that Type 14 this blue card which would have in the area provided for the designation of type.

It would be blank where that demand, when it was brought in to the warehouse, when it was received for weighing in the warehouse, it would be, at that time, the producer would be required to submit his marketing card that then the warehouseman could place within that grade, the appropriate, the truth concerning the area of production under the federal stamp.

William J. Brennan, Jr.:

Well, this must — there must be a dollar and cents difference from this, so we wouldn’t have the case.

Now, what — what can you get at it?

Charles E. Whittaker:

Isn’t it true, Mr. Harrison, that there was actually, at times, an $18 or hundred difference in price on the tobaccos.

G. Hughel Harrison:

Much has been said about that, Your Honor.

Charles E. Whittaker:

Let me ask you this.

Isn’t it true that this regulation 29.1096 contains these language — this language, “A class is subdivided into types which are “Divisions of a class of tobacco having certain common characteristics and closely related grades, tobacco which has the same characteristics and corresponding qualities, color, and lengths shall be treated as one type, regardless of any factors of historical or geographical nature which cannot be determined by an examination of the tobacco.”

Is that right now?

G. Hughel Harrison:

That is — that is correct, sir.

Now — but that is the general statement which is followed by the specific statements defining the various type areas.

And we submit there that you have the 11, 12, and 13 define the principal areas of production, but then, when you get to the definition of Type 14 that — we say that there is certainly grounds for us to take the position that it can only be produced in the three state areas.

Charles E. Whittaker:

And thus — therefore, you were saying, as I understand it, that Type 14 tobacco cannot be grown in South Carolina, right across (Inaudible) or whatever — the Savannah River.

G. Hughel Harrison:

The Savannah River?

Charles E. Whittaker:

Savannah River.

G. Hughel Harrison:

Your Honor, that — I might answer you in this manner.

Drawing the — if — if we assume that the production area in Georgia were to come up immediately to the Savannah River and the production area in South Carolina came down to the north side of the Savannah River, it would be difficult to say that there — that you couldn’t grow on one side a tobacco of similar quality.

Charles E. Whittaker:

But you wouldn’t put your white tag on the tobacco grown in South Carolina even though it was precisely the same goods?

G. Hughel Harrison:

With — neither would Your Honor, neither would the Federal Government —

Charles E. Whittaker:

Yes.

G. Hughel Harrison:

— recognize that being true to type as to being Type 14 tobacco.

And they are making other point.

There is no —

Felix Frankfurter:

Before you go on from there, clear this up.

As I understood you to say quite clearly, quite unequivocally, that the Federal Government restricts the recognition of Type 14 to Georgia, Florida, and Alabama.

Is that right?

G. Hughel Harrison:

It’s part of this record, sir.

Felix Frankfurter:

Yes.

And you say you agree with that?

You don’t want Type 14 — you don’t what this white thing to be affixed to anything that doesn’t grow in those three states.

Is that right?

G. Hughel Harrison:

Your Honor, we’re seeking a means of identification at the marketplace and at the time of sale to show that product, the same as we — as you see that California identifies its origin.

Felix Frankfurter:

Don’t — don’t get me to — don’t get a pity fellow like into more agricultural products that you need to.

Just clear this up for me, as I understood you to say that you are — you would simply want to declare the truth, namely, that Type 14 comes from those three states and you also so that exactly what the requirement of the Federal Government is, it restricts growth.

Explain — tell me if I’m wrong, it restricts Type 14 growth to those — in those geographic areas, is that what you said?

G. Hughel Harrison:

Yes, sir.

I — I say that —

Felix Frankfurter:

Now, you adhere to that?

G. Hughel Harrison:

I say that you can only produce Type 14 flue-cured leaf tobacco in the States of Florida, Georgia, Alabama.

Felix Frankfurter:

According to federal regulations?

G. Hughel Harrison:

According to federal as well as the state.

Felix Frankfurter:

And all you want to do is to — to tag them as coming from those states, is that right?

G. Hughel Harrison:

We want to tag this tobacco, sir, to reveal its identity.

Felix Frankfurter:

Don’t — don’t get into generality.

Do you want Type 14 tobacco to be — to be restricted to tobacco coming from those three areas?

G. Hughel Harrison:

At the further, Your Honor, I will have to answer you that question.

Not avoiding your — I’m not avoiding you at all.

Felix Frankfurter:

But I’m not suggesting you are.

This is evidently vague — now, I don’t understand anything about it.

It’s very complicated.

G. Hughel Harrison:

It’s a question of revealing in effect, sir.

It is in — it is preserving the identity of a product that is produced in those three areas that has definite and distinct properties, and qualities.

It is to — designed to protect that market by requiring that any product that is brought into that state produced elsewhere must be labeled to show the truth as to its origin.

Felix Frankfurter:

But if — but if a stand makes the same requirement, namely that Type 14 can only come from those three sources, what is the difference between them?

G. Hughel Harrison:

Well, the difference, Your Honor, is that heretofore, but prior to the enactment of the 1960 Georgia statute that type was for all purposes — all practical purposes determined by the place of sale.

Now, there is a reason why the State of Georgia had to move in order to protect its product.

Historically, Type 14 is the only tobacco that is sold in loose-leaf or tangle-leaf form.

In other words, we can sell the tobacco in these three state areas, and north of the Savannah River, it must be tied in order to be sold, tied and hinged.

Now, many factors are involved, but here are some of the important ones.

Our tobacco produced — matures early.

We — the marketing season opens along the latter part of July of each year.

There is not the times or sufficient time in order to enable the producer in Georgia to tie his tobacco and get it on the market at — at this early marketing date.

Now, this marketing date they open up begin when the new area started in the production.

They move down in order to market it and permitted the marketing of this tobacco in this tangle-leaf form or loose-leaf form.

And then, while they were selling them, they could utilize their personnel, the trained warehouseman and other personnel in there to market this product.

This crop in Georgia, and then use the same personnel and move up the production area in an orderly manner.

Now, this — the amount of loose-leaf tobacco, which is your Type 14, was relatively fixed, and then we have began — they began the movement of other than type 14, the Carolina tobacco to be specific, which we say is — under the Type 13 — under the federal law is Type 13, 11, and 12.

They initially began to move the tobacco that could not be processed or tied to move this tobacco down into the State of Georgia and sell it.

Now, this amount of tobacco that was brought into the State remained fairly stable until we started to getting more mobility and for other reasons.

We don’t know.

We had a steady step-up of the tobaccos that were brought over into the State of Georgia to the point that we reached about 22 million pounds in 1959.

Felix Frankfurter:

That — wouldn’t that tobacco, if it came to South Carolina, it couldn’t be labeled Type 14, could it?

G. Hughel Harrison:

It was, in fact, labeled Type 14, Your Honor, because the warehouseman —

Felix Frankfurter:

In — in doing that, it disregarded or defied the federal regulation, didn’t it?

G. Hughel Harrison:

The type — the tobacco was sold in most instances by tag such as — with such a tag such as this.

It had the word Type 14 placed on it.

Felix Frankfurter:

So was that — was that or was that not in violation of any federal regulation?

G. Hughel Harrison:

This — this was in compliance with it, sir.

We say that it wasn’t —

Felix Frankfurter:

Stuff that came from South Carolina labeled Type 14, was that outside of the federal regulation requirement?

G. Hughel Harrison:

Which we say, sir — let me — may I answer you this way, that if — we say that when if the Type 13 moved into Georgia was sold under the label of Type 14, that it was in effect mislabeled, and that its — the truth concerning its identity was concealed.

Earl Warren:

Well, you say that, but what does the Federal Government say?

G. Hughel Harrison:

Well, they go back to say that the — all tobacco having a common characteristic should be treated as one type.

Felix Frankfurter:

Well then, you may (Voice overlap) —

G. Hughel Harrison:

You may have purchased —

Charles E. Whittaker:

— (Voice Overlap) regard to geographical origin?

G. Hughel Harrison:

Without regard to geographic origin.

Earl Warren:

Yes, yes.

Felix Frankfurter:

But then, you are saying in the answer you gave me, at least you may take — you gave me otherwise.

It must get out of my mind that Type 14 by virtue of federal law including regulation can only come from those three areas.

When you tell me that, you then tell me that the Federal Government authorizes the South Carolina stuff to labeled 14, I can’t reconcile the two.

G. Hughel Harrison:

That is exactly what happened, Your Honor.

This tobacco moves, prior to this Act, it moved into Georgia.

It was sold in loose-leaf form.

It was sold with this Type 14 on them, notwithstanding of fact that it was grown and tied-in — in the –another type area.

Felix Frankfurter:

What you’re saying is that you were enforcing the federal law and they wanted to violate it.

Is that right?

G. Hughel Harrison:

Sir, we —

Felix Frankfurter:

Let’s get down to it.

G. Hughel Harrison:

Sir, we say that we want it identified as to —

Felix Frankfurter:

(Inaudible)

G. Hughel Harrison:

— the type authorized by the federal law.

Felix Frankfurter:

(Voice Overlap) to identify —

Charles E. Whittaker:

Well, isn’t this really was — do you wanted to identify it as to origin, do you not?

G. Hughel Harrison:

We want to identify it, sir, as to type and its origin.

Here, what — when the Georgia — when Georgia enacted the statute, it was aware of it.

The general assembly of Georgia was aware of the federal classification as to type.

We purported or we attempt to adopt the federal definition of Type 14 into the Georgia Act to use it as a means or basis of identification.

Charles E. Whittaker:

But the Federal Government apparently in this regulation needs to identify the tobacco by its constituent, its characteristics, color and length “without regard to their origin,” is that right?

G. Hughel Harrison:

Yes, sir.

And we have in this record, in the record that is before the Court found.

We have established that there is a difference in the properties and in the characteristics of this tobacco, particularly, the alkaloids.

You start the alkaloids which is your nicotine.

You start down in the Florida, you are 1 to 1.5, and by the time we reached to Virginia, we’re up in 3.

Felix Frankfurter:

Let me ask you this question.

Suppose the Federal Government, suppose the Department of Agriculture, or the enforcing the authority of the — of the federal law explicitly, leaving no room for equivocation, allowed South Carolina tobacco having certain constituents to be identified, to use your word, as Type 14.

Would you have a case?

Have I made my question clear?

G. Hughel Harrison:

No, sir.

I —

Felix Frankfurter:

Suppose the Federal Government by an appropriate regulation, says tobacco having these constituents coming from Georgia, Florida, Alabama and — and South Carolina, and South Carolina, are to be deemed Type 14, and then the South Carolina stuff moves into Georgia, would you have a case?

G. Hughel Harrison:

I doubt seriously if I would, Your Honor.

Felix Frankfurter:

Well, then that’s what this case is.

G. Hughel Harrison:

Sir, we have — we say here that we have adopted the federal statute and gone one step further and that the federal statute provides a means by which these classes encloses the type and grade might be determined.

And we have gone further and said that at the time of sale, that tobacco must be identified as to its type.

Hugo L. Black:

May I ask you this.

G. Hughel Harrison:

Yes, Your Honor.

Hugo L. Black:

It seems to me that that was a simple thing that made it rather complicated, in the first place, where does this tobacco grew, in Alabama, in Florida, in Georgia —

G. Hughel Harrison:

This is —

Hugo L. Black:

North or southern part?

G. Hughel Harrison:

Your Honor, most of it is south of the Altamaha River.

It’s in the southern section of the state.

G. Hughel Harrison:

There’s five tobacco markets north of the Altamaha River.

Hugo L. Black:

In the summary of your argument, you present the case which if correct, as Justice Frankfurter have suggested, that you make a quite different case, the one where you don’t, that you sometimes state to be the case.

You said the State of Georgia has decided to identify tobaccos as to the type at the time of sale.

Georgia Act substantially adopts the federal definition of Type 14 tobaccos as grown on the State of Georgia, Florida, and Alabama.

Now, you argued then that because you have not changed the federal law, you have not defied the federal law, but you are simply acting in harmony with it to identify more clearly by saying it’s the area when they themselves have made that, the standards for Type 14, you say since you’re not in conflict with the federal law, it’s alright.

Isn’t that your argument?

G. Hughel Harrison:

Yes and —

Hugo L. Black:

Well now, that depends on your showing as I should make, first, that you are not that — the federal regulation does provide that Type 14 shall include tobacco which can only be grown in those three states.

G. Hughel Harrison:

Which I have submitted here, Your Honor, on page —

Hugo L. Black:

Now, you do not claim, do you, that if — if your — if the federal regulation has said that all tobacco of a type which includes those four states, that you have a right to defy that law in Georgia?

G. Hughel Harrison:

We haven’t asserted in their act.

Hugo L. Black:

You did not claim that?

G. Hughel Harrison:

No, sir.

Hugo L. Black:

That depends altogether from your bases — basis of your — your argument on whether you are right in saying that the federal regulation as to Type 14 defines a tobacco that can only be grown in those areas.

G. Hughel Harrison:

That is true, sir.

Hugo L. Black:

And if it is grown in those areas, you say you’re not in conflict with it because by reason of the fact that you just — have a — statement to — against the — where it was grown because that means Type 14.

Now, where is that regulation, the Federal Government if you say that’s only those three states’ tobacco?

G. Hughel Harrison:

That’s in 7 CFR 29-1100.

Hugo L. Black:

What page?

G. Hughel Harrison:

It’s on page 8 of the brief of the — of the Solicitor General.

Hugo L. Black:

Page 8.

G. Hughel Harrison:

Very beginning, sir.

Hugo L. Black:

Which one in there?

G. Hughel Harrison:

On page — on the very beginning, sir, of Type 14 on the first line.

It had the figures 11, 12, 13, and 14 and then says Type 14, the type involved in this case is defined by the Secretary as that type —

Hugo L. Black:

Now, do they deny that that is the federal regulation?

G. Hughel Harrison:

It was stipulated, sir.

The one with the stipulation is in here, and further —

Hugo L. Black:

Why did they say then that you are identifying that your law, that since they give that identification, is in conflict with federal law if you say they concede that?

G. Hughel Harrison:

Sir —

Hugo L. Black:

What is the argument that — that your action conflicts with theirs.

G. Hughel Harrison:

The attention of the lower court, sir, in spite this stipulation, held that the Georgia Act was in conflict with the Federal Act in the rules and regulations.

It said we were in direct conflict and that we identified it — tobacco based solely upon the geographic area of production.

Hugo L. Black:

That has violated the — it was in conflict to the federal law —

G. Hughel Harrison:

Right sir.

Hugo L. Black:

— to name the state.

G. Hughel Harrison:

They said we — it was in violation of the federal law for us to — they said in effect that we have established another classification.

That we engage in another typing area — typing scheme that was in conflict with the Federal Act.

Felix Frankfurter:

But of course, your statute maybe bad even if they did that — abstractly in harmony with the federal law, as it was said in — what was that case in Charleston or something or rather 237 U.S., state statute may be bad if it — if it conforms to or not merely conflicts with the federal statute, if the conformity itself in practical operation tries to give some advantage for the state.

I’m not saying this is the situation.

But in all events, you must first show the kind of — make a demonstration of Justice Black’s inquiry about.

G. Hughel Harrison:

Your Honor, I might make one other statement that the Act in question here, the identification provisions, for one — one portion of an Act that relates to tobacco warehouses, the appellees in this case complied with the provisions of the Act.

They complied with the licensing and bonding, they require — complied with the holding date requirement.

But they singled out here the identification provision.

We submit to the Court that the Georgia Act was authorized that we do have the right to identify the facts.

Hugo L. Black:

Has there been any case that you — excuse me — has there been any case that you cite where this Court has held where the regulations, agricultural regulations of any commodity can only apply to those produced in one state — that that state can or cannot have them labeled as coming from that state and other states on.

G. Hughel Harrison:

Sir, we would, in support of the proposition, we’ll use the Idaho potatoes, the California oranges, the Florida citrus, and cases of — like those.

William O. Douglas:

What do you say to the argument or the statement that the Solicitor — Solicitor General propose that during the period when two statutes were in operation, the Georgia’s and the Federal Government that the tobacco was classified as Type 14 by the Federal Government and given a different classification by the Georgia Government with the result that — it went — they went out to the market, to the buyers and to the sellers, precisely the same tobacco, under two different classification, is that correct?

G. Hughel Harrison:

We submit, Your Honor, that the record does not support any such statement.

The complaint in this case did not — was not based upon the fact that it would receive a different identification under the Georgia law that it would under federal law.

William O. Douglas:

Well, if it did, that would be the end of the matter, wouldn’t it?

G. Hughel Harrison:

We would — we would have to concede that that would be a more serious problem, but there is nothing here.

There’s no conflict shown in this record.

The disparity in price is we say as result of the identity being made known and its something that the buyers themselves did.

It’s nothing that we did.

We just identify to reveal the truth.

Felix Frankfurter:

And they did the rest?

G. Hughel Harrison:

May I — reserve —

Charles E. Whittaker:

Mr. Harrison, may I ask you a couple of very simple questions?

G. Hughel Harrison:

Yes, Your Honor.

Charles E. Whittaker:

If tobacco, otherwise of the length, color, the grade Type 14 came from South Carolina to this warehouse.

What kind of — what color tag would you put on it under the Georgia statute?

G. Hughel Harrison:

Under the Georgia statute, sir, we would say that it would be other than Type 14 —

Charles E. Whittaker:

No.

Would you put a white tag or a blue tag?

G. Hughel Harrison:

We put a blue one, but we would say we would do that because, sir, that under the federal, it would be Type 13.

Charles E. Whittaker:

Now, if the same tobacco precisely like it came from Georgia, what color tag would you put on?

G. Hughel Harrison:

It would be a white, sir.

Charles E. Whittaker:

Now, what’s the difference in price between the blue and the white?

Isn’t that where the disparity came down there?

G. Hughel Harrison:

We stipulated and we agreed that there was a disparity in price between the tobaccos.

We said though that the stip — the difference could very well — we didn’t know what the difference was, but we — we have to say that it was the buyers.

If they knew what they were buying, they were there to buy, as this record revealed, they were there to buy a definite type of tobacco because of its characteristics.

Charles E. Whittaker:

I understand that the record shows here or at least the judge’s opinion that about six seconds is spent per pile in this — in the bidding of sale.

And they determine whether they will pay $18 more or less per hundred pounds depending on the color of the tag, that’s on the bundle.

Is that right?

G. Hughel Harrison:

Well, we can’t say that it was because of the color of the tag, but the purpose, the of the — of the tag, Your Honor, was to put them on notice that it was not Type 14 tobacco and that he could examine it himself to determine what type it was.

I will reserve the remainder of my time.

Earl Warren:

You may submit Mr. Harrison.

Mr. Durden.

Homer S. Durden, Jr.:

Mr. Chief Justice, I came up here to argue as a lawyer, but I think may we all argue as tobacco farmers, it just so happens that all the counsel by appellees are tobacco farmers.

And the blue tags you have before you, were not sent up with the record although somewhere introduced in the trial of the case through an oversight, they were not made part of the record, and at the brief of counsel on both sides, we would use the blue tags and the white tags in the oral argument, and our aptitude maybe have the Court in seeing the difference.

It takes in its call on a blue tag over onto your right hand side grade on the blank line there.

Immediately before all tobacco is sold on the tobacco markets, official grader of United States Department of Agriculture grades this tobacco.

And he would write the grade to that particular pile of tobacco on that card, just for example, we might say that he puts down that B6F, which is one of the 168 grades.

This chart, the official schedule for loan by the — the U.S. standard grade, fresh to the farmers by the warehousemen and all, you’ll notice about halfway down, your left-hand column, B6F $46.

That is the loan value that the Government — the stabilization program will make the farmer in the event that the tobacco buyers don’t bid that much for it.

They will buy that tobacco on the government grade.

Of course, this stabilization program had to buy practically all the blue tag tobacco that was sold in Georgia for those two days operation.

If the Government agency is willing to take the tobacco under the loan value, based on the Government grade will cost the tobacco companies should be, because eventually, those companies turn around and buy that tobacco from the stabilization program and fill the demands.

Homer S. Durden, Jr.:

As to the price deferential, I think that was one of the questions that was (Inaudible) some of these gentlemen for $18 per hundred pounds difference.

We don’t know why it happened but it happened, maybe it raised it a lot to cover, but as it pointed out in the record on the Swainsboro market, the first day, the first 11 rows of tobacco that was sold were Georgia tobacco, white tag tobacco.

I have been following the market, selling tobacco from my father’s farm since 1928, and several years of (Inaudible) Georgia, that particular market opened as good as any market I’ve ever been on.

The first pile of blue tag tobacco that was sold in Swainsboro, Georgia that day was on the 11th row.

I stationed myself at that particular part of tobacco because we anticipated that there were going to be trouble, and my client had asked me to be present.

When the tobacco auctioneers come along, you probably seen the commercial to how they conduct the sale, when the auctioneer chant in his unknown tongue, the warehousemen opens a bid, these are the first men who makes bid, then the auctioneer takes up his bid and he turns the tobacco from R.J. Reynolds to Liggett & Myers American tobacco and trying to up that bid.

They spent about eight seconds on each pile of tobacco.

Each buyer has a little signal, stretch his ear, something like that that he and the auctioneer communicate with and a man walks along and write it on the ticket and he will write on the face of that ticket 44 cents per pound rattles, put it back on the pile of tobacco.

That first blue tag pile that was sold in Swainsboro that day was knocked off for $61 a pound, that’s a $61 a hundred.

That was then 4 or 5 cents of the highest price that was paid for — in a tobacco on that market practically during the whole season.

65, 66 and 67 were the very best prices often.

They moved on to the second pile of tobacco before the tobacco buyer realized what had happened that he had bought a pile of blue tag tobacco.

He stopped the sale, turned to the warehouseman and says, “I can’t buy it”.

Well, I was standing by the warehouseman and he asked why.

It’s in too high odor.

Felix Frankfurter:

Too high?

Homer S. Durden, Jr.:

Too high odor.

Now, odor is moisture content.

If you don’t have it wet enough, tobacco crackles, just like paper, just crumble like a dead leaf.

If you get it in too high odor and it’s very absorbent, it would mold and rotten.

So you must control the humidity right to — in a very, very narrow limit.

I got little bit confused out on the facts.

He turned to the warehousemen and said, “I can’t buy it”.

The warehouseman asked him why, “Because it’s blue tag tobacco”.

He says, “That’s right, blue tag”.

Then, another buyer points to him and says, “No, it’s in too high odor”, and that’s when he says “Yes, it is in too high odor”, but he did make a statement first, “If blue tag, I can’t buy it”.

The warehouseman turned to me and said, “What do I do?”

And I said, “Stop the sale.

Let’s get the Government grade it back here and have it re-grade it and see if it isn’t too high odor”.

That was done.

Homer S. Durden, Jr.:

The Government grade or re-graded it, okayed it, and says it is in good order, a good marketable tobacco, started the sale up, couldn’t get a bid on it where it had been $61 a hundred pounds, when the blue tag showed up on it, it worth nothing.

We want for the rest of that row.

I got in there with the buyers and the warehouseman, and we could not get a bid on another pile of blue tag tobacco for the rest of that row.

Felix Frankfurter:

What is the row?

Would you mind telling me what it is?

Homer S. Durden, Jr.:

Yes, a row is a tobacco warehouse sir, it’s a big barn-like structure and we put out tobacco and rows on the floor, say 200 baskets to a row, and they start at one in the warehouse, and they go down in this row, and then come over to the next row.

They’re simply was laid down on the floor.

There were some 30 or 40 baskets remained in that particular row that they had to bid on.

Earl Warren:

Where does this tobacco come from?

Homer S. Durden, Jr.:

It came from Carolina sir, I don’t know whether North or South Carolina.

Earl Warren:

It doesn’t make any difference?

Homer S. Durden, Jr.:

It was definitely out of Georgia, those were grown outside of Georgia.

Felix Frankfurter:

Would you mind also telling me, was the blue tag placed in the basket?

Homer S. Durden, Jr.:

Yes, it’s placed right on top of the tobacco.

Felix Frankfurter:

So that anybody could see it with a blue tag.

Homer S. Durden, Jr.:

Oh, yes.

What they’d do with those, we have little sticks that are split, and we stick this, keep this tag like that and just stick it on top of the pile of tobacco, and it stays and some of them don’t use the stick.

Felix Frankfurter:

The reason —

Homer S. Durden, Jr.:

Multiple —

Felix Frankfurter:

— I asked you is because you said he did bought it and then he said he can’t because it’s blue tag.

Homer S. Durden, Jr.:

He —

Felix Frankfurter:

He could see it.

Couldn’t he —

Homer S. Durden, Jr.:

He could see it, but what happened was its wrapped before the warehouseman, the auctioneer got to that pile of tobacco, they usually have a little boy that comes along and fix these tags up and he hands them to the auctioneer, and then passed down the line to the ticket man, so that during the confusion, all the — they don’t see it.

Felix Frankfurter:

They see it?

Homer S. Durden, Jr.:

They just see it and that slight of hand trick you might say.

And then when he did realize it’s blue tag, when it was thrown back on the pile of the tobacco —

Felix Frankfurter:

Then he saw it.

Homer S. Durden, Jr.:

He saw it, then he says, “I can’t buy it, its blue tag tobacco”.

Hugo L. Black:

Am I correct in understanding you that by saying you didn’t know why it would make that difference in the virtue of prices?

Homer S. Durden, Jr.:

I have my idea, sir, but I’d have to go out of the record and be just my own opinion.

I — I’d be glad —

William J. Brennan, Jr.:

If you do it so well as a tobacco farmer, tell us in complete ignorance why?

Why, if it’s outside the record?

Homer S. Durden, Jr.:

Very well, it’s in economic value, sir.

William J. Brennan, Jr.:

But I would suppose it had to.

Homer S. Durden, Jr.:

That’s exactly what it boils down to, sneaking on its value.

My friends will disagree with me.

We live in these five warehouse towns and what is known as the — the newest bell or the new bell.

Georgia is a new bell state.

We’ve arguing for our share of tobacco for my father many years of what it’s worth as a form of agriculture here in Washington, and in-charge of the tobacco division and the marketing division.

And I remember sitting in as a little high school boy in campuses where he would be arguing with these other states about we weren’t getting enough of our tobacco and they were arguing we were getting too much.

So this thing goes way back.

In South Georgia, down in our Whitman and Douglas and down in Austell, they had their markets before we get ours in Swainsboro and Statesboro, our five markets, north of Altamaha River can’t live on tobacco that’s grown in that territory.

We don’t have enough volume to survive in a competitive business like tobacco auction business.

50% of our tobacco is brought in from the Carolinas.

I’m strictly out of the record in saying this, and I’m surmising and I’ll probably stand corrected by my brother counsel.

But the North Carolinian and South Carolinian warehousemen hated to this North Carolinian and South Carolinian tobacco going to Georgia to be sold, and they want it stopped.

In turn, some of our South Georgia boys warehousemen didn’t care too much about whether we continue to operate or not because if we could not operate this Carolina tobacco, then we’d have to do it as I have done many times leave our farm and go and spend two nights sleeping on a pile of tobacco truck waiting to get it sold.

Where today, I can take it in this morning and get it sold that afternoon.

As I say gentlemen, I went out of the record on that, and I’m sure that the counsel will — take it — accept this, to what I have said.

Earl Warren:

We’ll recess now.