City of Chicago v. Atchison, Topeka & Santa Fe Railway Company – Oral Argument, Part 1: Parmelee Transportation Company v. Atchison, Topeka & Santa Fe Railway Company – March 06, 1958 (104)

Media for City of Chicago v. Atchison, Topeka & Santa Fe Railway Company

Audio Transcription for Oral Argument, Part 1: City of Chicago v. Atchison, Topeka & Santa Fe Railway Company – March 05, 1958 (103) in City of Chicago v. Atchison, Topeka & Santa Fe Railway Company
Audio Transcription for Oral Argument, Part 2: City of Chicago v. Atchison, Topeka & Santa Fe Railway Company – March 06, 1958 (103) in City of Chicago v. Atchison, Topeka & Santa Fe Railway Company
Audio Transcription for Oral Argument, Part 2: Parmelee Transportation Company v. Atchison, Topeka & Santa Fe Railway Company – March 06, 1958 (104) in City of Chicago v. Atchison, Topeka & Santa Fe Railway Company

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Earl Warren:

Number 189, Milton Knapp versus Mitchell D. Schweitzer et al.

I — I beg your pardon.

Yes, I beg your pardon.

I — I skipped.

Once again, Number 104, Parmelee Transportation Company versus Atchison, Topeka and Santa Fe Railway.

I beg your —

Philip B. Kurland:

Mr. Chief Justice.

Earl Warren:

I beg your pardon.

Philip B. Kurland:

May it please the Court.

I currently appear here in the role of the devil’s advocate after what both parties have been saying about Parmelee.

The appeal in petition for certiorari in Number 104, throw out of the judgment which was rendered by the Court of Appeals of the Seventh Circuit.

Earl Warren:

Is this — is this going to take an hour to recite after what we’ve gone through?

Philip B. Kurland:

Your Honor, I must say that our position is very different from the cities and I can say that it need not take any time at all if the Court’s position is that there’s no contest between the — between Parmelee and the City.

I would merely suggest that if the case is moot, the Court ought to vacate the judgments below and for the reason of mootness.

William O. Douglas:

Mootness is part of that?

Philip B. Kurland:

Well, this bring the — one of the questions that the Court has asked us to appear on.

The problem is whether Parmelee has standing to maintain its position in this Court.

Now, if Your Honor’s question goes to whether the statute affects Parmelee or not that is not an issue in this case.

We appear not against the City but on the side of the City.

We have conceded that our operations which include both interterminal operations and transportation of passengers from the terminals to other points within the area defined by the — the municipal ordinance are subject to the City’s licensing power.

Felix Frankfurter:

What was your position?

What kind of authority if you were a party in the lower court?

Philip B. Kurland:

We appeared — we intervened as a party.

Our intervention was granted as permissive intervention although we sought it as intervention as of right.

We contend that our interest as a competitor of Transfer would be adversely affected by any judgment which might be secured by Transfer in this action.

In short, our position is that we have standing under the doctrine of the Frost case.

Please the Court.

I will —

Felix Frankfurter:

Are you going to argue that or leave it on the brief?

Philip B. Kurland:

I will argue it if the Court preferred to argue it.

Audio Transcription for Oral Argument, Part 2: City of Chicago v. Atchison, Topeka & Santa Fe Railway Company – March 06, 1958 (103) in City of Chicago v. Atchison, Topeka & Santa Fe Railway Company
Audio Transcription for Oral Argument, Part 2: Parmelee Transportation Company v. Atchison, Topeka & Santa Fe Railway Company – March 06, 1958 (104) in City of Chicago v. Atchison, Topeka & Santa Fe Railway Company

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Philip B. Kurland:

If the Court prefers — prefers to leave it to the brief, I will be glad to do so.

Felix Frankfurter:

Well, it’s your judgment to control.

I’m just wondering whether you think it’s — it’s a seriously (Inaudible) question as it is and I for once should like to hear.

If you think the Frost case controlled it economically.

Philip B. Kurland:

No, I think the Frost case does control it.

There is one other question about the appealability of this case and this is a question whether an appeal rely under Section 1254 (2) from a judgment of a Court of Appeals holding a state statute unconstitutional.

That is whether this is a final judgment for purposes of the appeal.

My position maybe stated fairly shortly.

We contend first that 1254 (2) ought not to and it was not intended to impose a final judgment requirement.

This Court has held, I will concede, on two points that a final judgment requirement is in the statute.

We set forth in our brief the fact that the Court did so without the benefit of argument of counsel.

If it so, first in the Slaker case, shortly after the adoption of the 1925 Judiciary Act.

And again, in the South Carolina Electric and Gas Company case relying on the Slaker case, that the Slaker case statement of a requirement for finality was a dictum because as Mr. Justice McReynolds said in rendering the opinion for the Court, the petition — the petition in the court below contained three counts, none of which questioned the validity of a state statute.

He then went on to state in his opinion that the appeal must be one from a final judgment.

But again in reaching that conclusion, he relied on two cases.

The first of which was an appeal from the Philippines Supreme Court in which the statute specifically made a requirement of finality.

Now, the second was Collins against Miller which was a direct appeal from the — from a District Court of United States with the statute also that made a specific requirement of finality.

Now, the statute in question was adopted on the — it was — the section question was inserted in the Florida Senate when the 1925 Act was there.

It was adopted from the provision authorizing appeal to this Court from state courts holding a federal statute unconstitutional.

That provision specifically made a requirement of finality.Despite that, the — and with this in front of them, the Congress adopted all the — adopted all the remainder of the language but did not include within this statute any specifications of finality.

There is so far as this Court’s jurisdiction is concerned as you know no other provision in this — in the code which requires a final judgment in terms of the Court — review of the Courts of Appeals whether that review is by way of appeal or by way of certiorari.

We suggest that there may be a good reason for that distinction and one of those is that the Court of Appeals does not get jurisdiction in the case until a final judgment has been entered by a District Court.

I would submit that the type of question which is brought up under 1254 (2) is one of great importance.

It involves the relationships of the state and federal government and will not present an issue to the Court until a United States Court of Appeals has first held a state statute unconstitutional that the reason behind this statute is the same as the reason behind the statute authorizing this Court to take jurisdiction by direct appeal in cases where the Federal Government, a statute of Federal Government is held unconstitutional in the Court of Appeals plus the additional factor with delicacy of the relationships between the two jurisdictions.

And I would suggest that reading the intent of Congress, reading the purpose behind the Act and recognizing that this case is a comparatively few in number so that they will not likely to be a burden to the Court or that if they were, the Court could dispose them as they did in Slaker in the event of a frivolous appeal by assessing a penalty or by the usual method which it has adopted from time to time and that is by dismissing or rather in this event affirming per curiam.

I would like to suggest in a minute or two that remains that even if the — your final judgment requirement is in Section 1254 (2) of the statute, we meet that final judgment requirement in this case.

The Court has stated a test whether a judgment is final is whether the — the judgment below had terminated the litigation.

So, if this Court were to affirm, nothing more it needs to be done on the remand and that’s exactly the situation that this Court finds that this case is in

Both parties have agreed.

Both parties to this litigation that this judgment disposes of — the judgment of the Court of Appeals, disposes all the issues between the parties that on remand, nothing would be left to be done in the event of affirmance or indeed in the event of a reversal, except to enter the judgment of the Court.

Audio Transcription for Oral Argument, Part 2: City of Chicago v. Atchison, Topeka & Santa Fe Railway Company – March 06, 1958 (103) in City of Chicago v. Atchison, Topeka & Santa Fe Railway Company
Audio Transcription for Oral Argument, Part 2: Parmelee Transportation Company v. Atchison, Topeka & Santa Fe Railway Company – March 06, 1958 (104) in City of Chicago v. Atchison, Topeka & Santa Fe Railway Company

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Philip B. Kurland:

That being so, we submit that we meet the test which this Court has from time to time suggested as stating the requirement of finality.

If I may then in the — with respect to the contested issues in the case or perhaps before I get to the contested issues, I should say that the — there are certain concessions of both parties in this lawsuit which eliminate contest.

The — should I stop at this point, Your Honor or —

Earl Warren:

When the red light comes, Mr. Kurland.

Philip B. Kurland:

The appellant has conceded that the City of Chicago has no power to impose economic regulations on the carrier — carriage in question that as we do not claim for the City of Chicago, the authority to make the determination as to whether or not additional competition is or is not desirable.

Earl Warren:

Now, we’ll recess Mr. —