Florida Lime and Avocado Growers, Inc. v. Jacobsen – Oral Argument – December 09, 1959

Media for Florida Lime and Avocado Growers, Inc. v. Jacobsen

Audio Transcription for Oral Argument – December 10, 1959 in Florida Lime and Avocado Growers, Inc. v. Jacobsen

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Earl Warren:

Number 49, Florida Lime and Avocado Growers, Incorporated, et al., Appellants, versus Jacobsen, Director of the Department of Agriculture of the State of California.

Mr. Ferguson, you may proceed.

Isaac E. Ferguson:

May it please the Court.

This case was heard below by a three-judge District Court on the motion of the defendants to dismiss the complaint.

The Court granted the motion and dismissed the complaint for alleged want of jurisdiction.

The Court held that the record fails to show the existence of a justiciable controversy between the parties within the meaning, scope of the judicial power conferred on the federal courts by the United States Constitution.

The appellants are Florida corporations engaged in the interstate marketing of avocados grown in the southern part of Florida.

They complained that their marketing operations are restricted and handicapped by application of a statute of California prohibiting sale in that State of avocados of less than 8% oil content regardless of quality or maturity by any other standards and that the California statute, as applied to their marketing of avocados, is repugnant to the Constitution of the United States.

The appellants invoked three provisions of the Constitution, the Commerce Clause, because the challenged state statute is an unwarranted, impermissible interference with interstate commerce, the Equal Protection Clause of the Fourteenth Amendment, because application of the statute to appellants’ avocados results in arbitrary discrimination against appellants in favor of the growers and handlers of avocados grown in California and the Supremacy Clause, because appellants’ avocados are marketed under federal regulation and in compliance with the standards of quality and maturity thereby imposed, that is, the Agricultural Marketing Agreement Act of 1937 and the program adopted thereunder by the Secretary of Agriculture, with specific relation to the avocados grown in South Florida and because application of the California statute to these avocados overrides and defeats the policy and program of the Federal Government.

Earl Warren:

Did the federal regulations, Mr. Ferguson, affects the — the oil content in the —

Isaac E. Ferguson:

Well, the — the — your — your question relates to the regulations.

Earl Warren:

Regulations.

Isaac E. Ferguson:

To the regulations.

Earl Warren:

Yes.

Isaac E. Ferguson:

The statute itself —

Earl Warren:

In other words, California says it must have 8%.

Isaac E. Ferguson:

But —

Earl Warren:

Is there any comparable regulation on the same — on the same subject matter in the Federal Government?

Isaac E. Ferguson:

That is the essence of the whole program in this — in this particular instance.

A marketing agreement may have various other purposes but this marketing agreement as for its main purpose, the fixing of standards of quality and maturity.

They do not include any requirement of oil content —

Earl Warren:

Yes.

Isaac E. Ferguson:

— with respect to these Florida avocados.

The standard is stated —

Earl Warren:

Yes.

Isaac E. Ferguson:

— in the complaint — in brief.

It has to do with the fixing of the time for picking of the avocados in coordination with the attainment of certain size and weight at a given date when the picking is permitted.

That has been the practice under this program since it was adopted June 11, 1954.

And I — I say again, Your Honor, in this instance, that is the — almost the entire purpose of the program because it was adopted for the reason that there was no satisfactory standard in effect in Florida.

But since 1954, there has been a standard, as I have stated, and it does not include oil content because as we set forth, oil content is not valid scientifically as a test of maturity of the Florida avocados.

Isaac E. Ferguson:

Our first task to the jurisdiction of this Court granted that the record discloses the existence of a justiciable controversy within the judicial power of the federal courts.

Hearing by a three-judge court was mandatory because the complaint seeks a declaratory judgment and injunction restraining further enforcement against appellants by the officers of California of the statute of that State upon the ground of constitutionality at 28 U.S.C. 2281.

The judge of the District Court, upon consideration of the complaint, convened a three-judge court.

The Court heard and determined the matter in the manner that I have stated.

The case thus heard and determined.

Judicial — the Judicial Code provides for direct appeal to this Court as a matter of course.

No question was raised in the District Court about the propriety of a hearing by a three-judge court.

This Court, however, appellee Jacobsen, I’m going to say incidentally, Your Honor, somewhere between the filing of motion to dismiss and the filing of this brief we’ve lost two of the appellees.

And the motion to dismiss was made by three appellees but the brief is by the appellee Jacobsen.

And he argues that the hearing in the District Court should have been held by a single judge only instead of a three-judge court convened pursuant to Section 2281.

Therefore, there is no right of appeal under Section 1253.

The reason stated for this contention is that the complaint questions, the validity of the state statute, as applied to appellants, not only under the Commerce Clause and the Equal Protection Provision of the Constitution but also on the ground of a conflict with an Act of Congress regulating interstate commerce and a marketing agreement in effect thereunder.

This is said not to constitute a claim of unconstitutionality.

And it is urged that because of the inclusion of this claim, the appeal should have gone to the Court of Appeals instead of this Court.

Your Honors, the appellants do not dispute the proposition that if a case does not call for a hearing by a three-judge District Court under 28 U.S.C. 2281 and even if it is heard by such a court, there is no right of direct appeal to this Court under Section 1253.

Therefore, the decisions to this effect cited in appellees’ brief are passed without comment.

Only three of the cases referred to by appellees say anything about a conflict between a state law and an Act of Congress.

Lemke versus Farmers Grain Company, 258 U.S., and In re Buder, 271 U.S. and Parker versus Brown, 317 U.S. Lemke versus Farmers Grain Company was heard by a single District Judge and the appeal in the first instance went to the Circuit Court of Appeals.

The complaint in that case was two-fold.

That the North Dakota Grain Grading and Inspection Act of 1919 violated the Commerce Clause of the Constitution, also that it was in conflict with the Federal Grain Standards Act of 1916.

The question was whether the Court of Appeals properly exercised jurisdiction on the appeal from the judgment of the District Court.

And this Court held that in one phase of the case, the constitutionality of the state statute was not involved, only consideration and construction of both the state and federal statutes and their applications to the fact is found.

In the companion case of Lemke versus Homer Farmers Elevator Co., 258 U.S. 65 on a complaint of exactly the same kind, a three-judge District Court granted an injunction restraining the enforcement of the state statute and on direct appeal to this Court, the judgment of the District Court was affirmed.

In re Buder came to this Court on application for mandamus to direct the District Judge who heard the case to allow a direct appeal to this Court as was the practice then in effect.

The litigation arose from a tax levied against the National Bank and its stockholders under a Missouri statute, the constitutional validity of which was not questioned.

However, in — in 1923, Congress made a new enactment relating to the power of the States to tax national banks and prescribed choice of one of three methods for such taxation.

The bank contented that the State was required to make an election by a new legislation of one of the three permissible methods to tax national banks and had as yet failed to take such action.

And that meanwhile, the state law under which the challenged tax levy was made had become inoperative.

Thus, the issue was whether or not the state law was still enforced, not a question of constitutionality.

Accordingly, a leave to file the petition for mandamus was denied.

Isaac E. Ferguson:

Reference to In re Buder was made in the opinion in Query versus United States, 316 U.S. 486.

An action by the United States against the South Carolina Tax Commission to enjoin enforcement of a state statute imposing a license tax for the privilege of selling certain articles as attempted to be applied to the sale of such articles as the United States Army — Army and Post Exchanges located in South Carolina.

A three-judge District Court granted an injunction, but decided also that the case was properly one for a single judge whereupon the appeal of the tax officers was taken to the Circuit Court of Appeals which affirmed the judgment.

Certiorari was granted by this Court.

The judgment was vacated.

And the cause was remanded to the District Court to enter a new judgment from which a direct appeal could be taken to this Court.

Quoting from the Court’s opinion, “If no more than a question of construction of a federal statute had been involved,” referring to the Act of Congress giving consent for imposition of certain kinds of state taxes within federal areas, “there would have been no necessity for a three-judge court pursuant to Section 266,” citing In re Buder.

The Court went on to say that the complaint was of unconstitutionality of the state law as applied to complainant and that the relief order was predicated upon the same ground.

That the unconstitutionality arose from interference with an activity of the United States.

That the relief purported an injunction against enforcement of a state statute on the ground of unconstitutionality could only have been properly granted by a three-judge District Court, and that appeal did not lie to the Circuit Court of Appeals.

Regulation of the marketing of Florida avocados is now an activity of the Federal Government.

And a state statute interfering with that activity is unconstitutional by virtue of the Supremacy Clause of the Constitution.

At page 23 of appellants’ brief, in a long footnote, it is observed that in Parker versus Brown, 317 U.S. 341, the constitutionality of the California Agricultural Prorate Law enacted in 1933 —

What page?

Isaac E. Ferguson:

— 23.

Of your brief?

Isaac E. Ferguson:

No, it’s the appellees’ brief.

Earl Warren:

Oh, appellees’ brief.

Yes.

Isaac E. Ferguson:

The — the footnote beginning on that page.

Now, this — this pertains to a marketing act of like nature with the Federal Marketing Act that was adopted by California in 1933 and it was challenged in that case under the Commerce Clause also as in conflict with the Sherman Act and the Federal Agricultural Marketing Agreement Act of 1937.

That’s the jurisdictional situation in that case and the present case is precisely the same.

The appellee urges in the fact that this Court would not have entertained the direct appeal from this judgment of the three-judge court in Parker versus Brown if questions had been raised about this Court’s jurisdiction of the appeal, that the question of jurisdiction was passed sub silentio.

From my reading of many decisions of this Court, it would be indeed a rare phenomenon for this Court to pass the question of its own jurisdiction sub silentio.

It did not do so in Parker versus Brown.

I reported in 62 Supreme Court 946 gave the usual preliminary consideration to the question of its jurisdiction and noted probable jurisdiction.

The claim of conflict of the challenged state law with the Sherman Act and the Marketing Agreement Act of 1937 far from deterring exercise of jurisdiction by this Court was apparently deemed a primary interest where on May 11, 1942, the Court made the following order, this cause is restored to the docket for reargument on October 12 next.

In their briefs and on the oral argument, counsel for the parties are requested to discuss the questions whether the state statute involved is rendered invalid by the action of Congress in passing the Sherman Antitrust Act, the Agricultural Adjustment Act as amended or any other Act of Congress.

The Agricultural Marketing Agreement Act of 1937 is in the main merely a reenactment of valid sections of the Agricultural Adjustment Act of 1933.

On the merits, this Court said in Parker versus Brown.

Isaac E. Ferguson:

We may assume also that a stabilization program adopted under the Agricultural Act would supersede the State Act.

But the Federal Act becomes effective only if a program is ordered by the Secretary.

The case at bar, the Federal Act has become effective by adoption of a program specifically applicable to the marketing of Florida avocados.

The prayer of the appellants is that the California statute complained of, this case should not be permitted to support this program.

I mention but one more illustrative case on the question of this Court’s jurisdiction.

In AFL versus Watson, 327 U.S. 582, Florida’s right to work constitutional amendment was complained of under the various sections of the Constitution also as in conflict with the National Labor Relations Act.

The case was heard by a three-judge District Court.

It came here on direct appeal from that Court so that the jurisdictional situation is against same as in this case.

This Court held that the District Court had jurisdiction of the case.

This is suit arising on an Act of Congress regulating commerce and — and put aside the other alleged grounds of jurisdiction.

It was held further however that exercise of the Court’s jurisdiction would be held in offense pending determination by the state courts whether the constitutional amendment was self-executing or required enforcement legislation.

And if legislation was required, to see if in fact it invaded the field of federal regulation.

I come now to the contention that there’s no justiciable controversy between the parties.

Felix Frankfurter:

Well, have you — have you finished your discussion of our jurisdiction?

Isaac E. Ferguson:

Supplementing the brief, yes, sir.

Felix Frankfurter:

You haven’t said anything about the Lemke case is relevant in this problem.

Isaac E. Ferguson:

The Lemke case?

Felix Frankfurter:

Yes.

Isaac E. Ferguson:

I say that the ground of the holding in the Lemke case was that in one aspect of the case, there was about only a question of construction of the two statutes and not a question of the constitutionality, the federal and the state, not a question of the constitutional validity of the state statute.

Felix Frankfurter:

Suppose — yes — suppose a statute violated the Commerce Clause just as you’re attacking the statute.

Isaac E. Ferguson:

That is true.

But as —

Felix Frankfurter:

But the whole point — the whole point of the decision of the Supreme Court, this Court, and I should like to point out that they were sitting on that Court at least three justices who had special competence in the field of jurisdiction.

Justice Brennan, Justice Day and Brandeis, the whole point was that there was a constitutional question, a clear constitutional question.

There was also a claim that under the Supremacy Clause, the North Dakota grain statute would appeal to the federal grain statute.

But before you got to that, you have to consider both the federal statute as a matter of statutory construction and construe the North Dakota statute.

And that case hold that any holdings can be clear and unequivocal that unless there is an exclusively constitutional question, you can’t come here directly.

That’s what that case — that you can go rather to the Court of Appeals and can’t come here directly.

You must go through the Court of Appeals.

Isn’t that true?

Felix Frankfurter:

Am I wrong about this?

Isaac E. Ferguson:

May I say this first, Your Honor.

There have been many, many cases decided since the Lemke case and as I have pointed out there are cases where over and over again, the case comes here on direct appeal from the three-judge court where there is joinder of the claim of violation of specific clauses of the Constitution and — and interference or a violation in conflict with the federal statute.

Felix Frankfurter:

Have you enumerated these many, many cases?

Isaac E. Ferguson:

Oh, I have cited.

Felix Frankfurter:

Where — where are they in your brief?

Isaac E. Ferguson:

I — I have cited these because this is a point —

Felix Frankfurter:

In Parker against Brown, when you say that this Court, with all your reading of the cases, practically never decide the question of jurisdiction sub silentio.

It often does so and passed on itself from the day with Chief Justice Marshall.

He overruled the case in which they did decide jurisdiction sub silentio and said so.

That it was decided sub silentio and therefore wasn’t given attention and therefore they reexamined it and found they were wrong.

Isaac E. Ferguson:

I have cited the two orders of this Court which show that in that case, it was not passed sub silentio.

Felix Frankfurter:

You mean in Parker and Brown?

Isaac E. Ferguson:

Yes, Your Honor.

Felix Frankfurter:

Was it discussed?

Isaac E. Ferguson:

It — it was heard, it was considered.

Felix Frankfurter:

You mean the jurisdictional question?

Isaac E. Ferguson:

Yes, Your Honor.

I have cited the two —

Felix Frankfurter:

You read — you read the question we put on the — in putting the case down for rehearing and unless my ears betray me, that (Voice Overlap) —

Isaac E. Ferguson:

I read it first.

Felix Frankfurter:

What?

Isaac E. Ferguson:

I read first the ruling of probable jurisdiction.

Felix Frankfurter:

Yes, I know but that isn’t discussion.

Isaac E. Ferguson:

Well, that would means —

Felix Frankfurter:

That is not consideration.

Isaac E. Ferguson:

— that they —

Felix Frankfurter:

That is not consideration.

That is in the multitude of cases that come before the Court with more than once.

We will not focus our attention on the jurisdictional question.

Isaac E. Ferguson:

I — I take it, Your Honor, that indicates that the rules of the Court were observed, that the jurisdictional statement was filed, and that some answers were made to it, and that the matter had the consideration of the Court.

Felix Frankfurter:

That’s what you must — you must, I think, contend that the Lemke case has been overruled.

Isaac E. Ferguson:

Well, not if I take the language of the Court itself.

This Court said that in one phase of the case, there was no constitutional question.

Felix Frankfurter:

Well, that’s true here.

In one phase of the case, there is no constitutional question in the sense that you must construe the California statute before you reach the Supremacy Clause.

Isaac E. Ferguson:

Well, if it were a question of construction.

But there is no question of construction.

Felix Frankfurter:

Well, you say then.

Isaac E. Ferguson:

Well, I —

Felix Frankfurter:

But before we ever invalidate a state statute on the ground of preemption, we must construe what the scope of the state statute is or take the state court’s view it or construe the scope of the federal question or the implementing regulation that the Chief Justice’s question is indigent.

The — the Marketing Act doesn’t deal at all with oil content as such, that’s corrected either.

Is that correct?

Isaac E. Ferguson:

No, because it adopts a different standard.

Felix Frankfurter:

I understand that but you must construe whether the fact that the Marketing Agreement doesn’t deal at all with oil content whether that’s the plan’s entirely the right of the State to deal with it.

We must construe what the scope of that is before we get to your constitutional question.

Isaac E. Ferguson:

I beg Your Honor’s pardon, but I would state it otherwise.

I would say that you have a federal law that takes over the regulation and establishes standards that no state law can overturn that federal law.

Felix Frankfurter:

I don’t disagree with you at all.

But that general proposition doesn’t deal with the problem that we have in this case or had in Lemke case, namely, before you decide that the state statute has overruled it and has overturned it, you must construe both the state statute and the federal statute.

Isaac E. Ferguson:

I would say, Your Honor, I — I —

Felix Frankfurter:

I’m not saying you’re wrong.

All I’m saying is that Lemke is flat the other way and you must contend that that case must be overruled and should be overruled explicitly if that’s — if it has been overruled.

Isaac E. Ferguson:

If that is the Court’s opinion, I would not disagree with it, but —

Felix Frankfurter:

I — I can’t speak for the Court.

Isaac E. Ferguson:

— I would say that the Court in that case and in its subsequent expressions indicated that there was one phase of that case that the Court of Appeals could consider.

Felix Frankfurter:

And that’s true here, as I’ve said three times.

It’s true here that before you get to the Supremacy Clause, you must get to the construction, the scope, the meaning, the applicability, call it what you will, of the California law and the Federal Act of 1937 if it’s 1937.

Isaac E. Ferguson:

I — I would say that when you have a case and it is determined that the case was properly one for a hearing by a three-judge District Court under Section 2281, then you also have a case that is appealable directly to this Court under Section 1253.

There were other reasons.

Felix Frankfurter:

I am saying no more than — that Lemke decides the contrary.

Isaac E. Ferguson:

Lemke, Your Honor, was heard by a one judge court.

Felix Frankfurter:

No, it wasn’t.

It was decided and heard by three judges upon filing its bill complainant move for a temporary injunction which application was heard before three federal judges.

Isaac E. Ferguson:

That I — is in the companion case —

Felix Frankfurter:

No, Lemke —

Isaac E. Ferguson:

— Lemke versus Homer’s —

Felix Frankfurter:

That’s for the Lemke case.

Isaac E. Ferguson:

May I beg to have Your Honor’s citation of the case?

Felix Frankfurter:

258 U.S. at page 52.

Isaac E. Ferguson:

And at — at page —

Felix Frankfurter:

That’s page 52.

That’s the page on which the sentence appears which I quoted.

The initial page is 50.

Isaac E. Ferguson:

Then follows page — at 265 where an injunction — by the way, also in the Lemke case, there was no application for injunction.

Felix Frankfurter:

Yes, there was.

The Court denied this motion.

A motion to dismiss was filed.

The Court denied it.

The motion granted a temporary injunction.

William O. Douglas:

I think your — what your concern about is a the three-judge court acted on temporary injunction where a single judge acted on permanent injunction in view of the state of the statute as it was at the time (Voice Overlap) —

Isaac E. Ferguson:

That’s right, it was — that is right, Your Honor.

Felix Frankfurter:

But I don’t see how that’s — in this remotest way affect this problem because under the 266, the defense was you have to have three judges to grant a temporary injunction.

And that the statute that Mr. Justice Douglas says was later amended so as to require also three judges to grant a permanent injunction.

Isaac E. Ferguson:

Your Honor, I’m — I’m content to rest —

Felix Frankfurter:

Don’t take your time.

I think (Voice Overlap) —

Isaac E. Ferguson:

No, I would like to —

Felix Frankfurter:

— problem.

And you don’t want (Voice Overlap) —

Isaac E. Ferguson:

I — I appreciate the questions the Your Honors put in.

And I’m willing to submit it on this basis.

The Court deems that the Lemke case should be overruled well and good.

And if not, then the Court must overrule scores of decisions in which unconstitutionality has been grounded upon conflict with federal regulation.

Felix Frankfurter:

I don’t think there are such scores of cases if you let me say so and to the extent that there are, they weren’t considered.

That does not constitute a Lemke case and for myself, I would not overrule it because I don’t think I would overrule a procedural decision that I stood all this time untouched except when — when the Court has inevitable human institution hasn’t heeded that decision.

Isaac E. Ferguson:

Well, I — I say again that the Court in its own language said that in that phase of the case, no question of constitutionality was involved.

Now, if that —

Felix Frankfurter:

Go on.

Isaac E. Ferguson:

— statement is inaccurate, it’s not my statement, it is rather of the Court.

Our case is akin to the recent decision in Public Utilities Commission of California against United States, 355 U.S. 534, which a state law empowering the Utilities Commission to decide under what conditions a common carrier will be permitted to transport property at reduced rates as against federal statutes and regulations related to government procurement of property or services.

A three-judge District Court granted injunction.

The case came here on direct appeal and the decision was affirmed.

That case, an activity of the United States, as I stated in — in AFL versus Watson is overruled, overwritten by a state regulation.

It wasn’t a question of how this regulation would work in practice although some of the judges of this Court thought that they ought to wait and see how it would work.

But the — the essence of the opinion was that the very existence of that statute was under the terms with the Government’s operations.

That’s what we have in this case.

There is no room for a construction hearing.

If there are no further questions on the subject of this Court’s jurisdiction of the appeal, I take the interrelated questions which frankly I assume for the reason or the form of the order in this case and if there’s not a justiciable controversy, there’s none for any court or in this Court.

So I come to that question.

Now the decision of the District Court that there’s no present controversy turns on, on one fact that in past instances, when avocados shipped by appellants to California have been barred from sale in that State because it failed to pass the 8% oil test, appellants have availed themselves of leave to reship the avocados to some other State instead of submitting them to destruction as a public nuisance in the manner provided by Section 785 of the Agricultural Code of California.

According to the opinion of the District Court, only in an abatement proceeding under Section 785 could a threatened justiciable controversy arise with respect to a shipment of California — to California of Florida avocados of less than 8% oil content.

Somehow, the question of constitutionality of California’s 8% oil content law an application to Florida-grown avocados would have to erase and passed upon in the state court proceeding the kind provided in Section 785 for abatement of perishable fruit.

There are two short answers to the holding of the District Court.

First that the proceeding provided by Section 785 relates only to conformity or nonconformity of the fruit or other products granted as a public business.

And second, if an issue of constitutionality of the standardization provision would be raised in such a summary proceeding, it would be a judicial issue and not an administrative issue.

And the result of the District Court’s ruling would be to compel the appellants to try such judicial issue in a state court notwithstanding the Act of Congress granting recourse to a federal court for trial of such issue.

On the facts alleged in appellants’ complaint, now followed by evidentiary matter and depositions and in answers to interrogatories and on the decisions of this Court cited in division two of appellants’ brief, it is submitted that the decision of the District Court is erroneous and that there exists a present and substantial controversy between the parties regarding the constitutional validity of California’s 8% oil content requirement as applied to the Florida avocados handled by appellants.

In appellees’ brief at page 12, it is said, “Appellants make no claim of personal wrongdoing against appellee regarding past shipments to California and these transactions are closed.”

If this means that appellants are not suing the Director of Agriculture for damages in this action, that is true.

Isaac E. Ferguson:

But there is indeed a claim of personal wrongdoing against appellee regarding the past shipment of appellees’ avocados to California apart from sale in that State by appellee and its subordinates, that because of the utility of a legal remedy for such a wrongdoing, appellants are seeking equitable relief.

And at page 12 of appellees’ brief, it has said also that appellants have not in any time violated the California law.

The — the standardization provision of the California Code relating to avocados is Section 792, which is page 6 of the appendix to appellants’ brief.

One of the enforcement provisions is Section 784.

This Section states what acts are unlawful if the fruit or other product is nonconforming.

There are 10 verbs in Section 784 specifying the acts prohibited with respect to nonconforming products, namely, to prepare, pack, place, deliver for shipment, deliver for sale, load, ship, transport, cost to be transported for sale.

The complaint and deposition showed that appellants have made shipments of avocados to California only when pretesting indicated probability that the avocados would pass the California 8% oil test.

But these were almost all avocados of but one variety out of the many varieties of the fruit grown in Florida, and that even these limited shipments could not be ventured until late in the marketing season.

But that despite all cautions, there were 12 specific instances in which the appellants shipped to California avocados, there are found to be of less than 8% oil content.

When the avocados reached the point of destination in California and where they’re tested for oil content found to be nonconforming, they were tagged as nonconforming by the enforcing officer and held under official control for further proceedings.

At the moment the avocados were so tagged, they were condemned as a public nuisance subject to prompt for abatement as provided in Section 785 of the Agricultural Code unless reconditioned.

Charles E. Whittaker:

How do you recondition (Inaudible)

Isaac E. Ferguson:

It’s beyond my imagination, Your Honor.

In the first place, you can’t raise the oil content of a load of avocados.

And you can’t, in any visual way, pick out those that have less than 8% oil content.

Charles E. Whittaker:

(Inaudible)

Isaac E. Ferguson:

There is no way of knowing to make such a judgment by external cares.

Charles E. Whittaker:

(Inaudible) would be destroyed.

Isaac E. Ferguson:

That’s exactly what I argue.

Earl Warren:

Had they ever had any — any procedure for doing it?

Have they ever tried to recondition them as the term is used?

Isaac E. Ferguson:

You mean the appellants here?

They put —

Earl Warren:

Yes.

When — when the State has challenged them and you spoke of 12 instances where they —

Isaac E. Ferguson:

Yes.

Earl Warren:

— have been challenged.

Now, I wonder if any of those, there — there has been any so-called reconditioning the process engaged in —

Isaac E. Ferguson:

It was not found —

Earl Warren:

— abatement.

Isaac E. Ferguson:

— to be practical.

No practical —

Earl Warren:

Yes.

Isaac E. Ferguson:

— way.

Earl Warren:

Well, it just hadn’t been done.

Isaac E. Ferguson:

No.

I — I called your attention, Your Honor, to the fact that this provision for reconditioning —

Earl Warren:

Yes.

Isaac E. Ferguson:

— is not in the statute with specific relation to avocados.

Earl Warren:

Yes.

Isaac E. Ferguson:

It’s in the statute in relation to all products as to which there are standardization provisions.

And there’s — in many instances, there might be reconditioning, a very prompt reconditioning.

Earl Warren:

They’re repacking in some —

Isaac E. Ferguson:

Yes.

Earl Warren:

— in some —

Isaac E. Ferguson:

It might be the container.

Earl Warren:

— might (Voice Overlap) —

Isaac E. Ferguson:

It might the method of packaging.

Earl Warren:

Yes.

Isaac E. Ferguson:

And it might be external climate issues.

Earl Warren:

Yes.

Isaac E. Ferguson:

But —

Earl Warren:

But not in avocados, it couldn’t be done per se.

Isaac E. Ferguson:

I know of no way, Your Honor, that it could be done.

Moreover, it — it wouldn’t meet the fundamental proposition that we’re only talking about those that were expected to meet the 8 — 8% oil test while there are varieties of Florida avocados of high grade, which make no more than 2% oil content.

You can eat them here.

[Laughs]

You cannot get them in California.

By a grace of a regulation made by the Director of Agriculture, it was permissible to send the load of nonconforming avocados to an out-of-state destination under a written authorization by the enforcing officer and under official surveillance to the point of exit from the State.

When a load of avocados goes from Florida to California because their tag is nonconforming, the sender has done all but one of the acts forbidden by Section 784 of the Agricultural Code.

Isaac E. Ferguson:

He has placed the nonconforming avocados within the State, caused them to be transported and delivered from them for sale.

It is at this point that control of the fruit is taken over by the enforcing officer.

Only the final act is not done, consummation of sale in California.

Reshipment of the condemned avocados to an out-of-state destination in the hope of salvage does not undo what has happened in California.

Neither the acts of appellants and they are kept to consummate sale of the fruit in California nor the acts of the California officers in applying to appellants’ avocados the provisions of the challenged statute.

Appellants cite the decision in Evers versus Dwyer, 358 U.S. 202 in support of jurisdiction both the District Court and this Court in the present case.

In appellees’ brief at page 27, it has said, “The plaintiff in Evers versus Dwyer, a Negro, immediately violated the Memphis segregation ordinance at the moment he seated himself in the front portion of the public bus.

At this point, the justiciable controversy came into existence.

The facts which were formed the basis of the litigation were fixed and would never be more concrete.

If the plaintiff had been arrested, put to trial for a violation of an ordinance or statute, there might have been an issue as to the precise act by which the offense was committed.

But the controversy with which this Court was concerned was not that of guilt or innocence of the bus passenger in the particular occurrence.

The matter with which this Court was concerned was the constitutional validity of the Tennessee statute requiring segregated seating arrangements according to race in public buses.

In the incident that prompted the plaintiff to file his action for declaratory judgment and injunction in the federal court, the facts noted were that when plaintiff seated himself at the front of the vehicle, the driver told him to move to the rear and that this was required by law because of his color.

And that following the plaintiff’s refusal to comply, two police officers boarded the bus and ordered the plaintiff to go to the back of bus or get off or be arrested.

And that thereupon, the plaintiff left the bus.What gave rise to the justiciable controversy regarding the constitutionality of the Tennessee statute was not simply the fact that the plaintiff sat down in the front part of the bus, but that the driver of the bus and the police officers clearly manifested the intention of the persons in charge with the bus to enforce the State’s segregation statute in a manner denying to plaintiff and the class of persons in whose behalf he sued use of the public buses without discrimination and humiliation because of racial origin.

The crux of the Court’s holding is in this sentence.

A resident of a municipality who cannot use transportation facilities therein without being subjected by statute to special disabilities necessarily has, we think, a substantial, immediate and real interest in the validity of the statute which imposes the disability.

Fundamental principle, the jurisdictional situation, the case at bar is the same.

Appellants who are engaged in nationwide marketing of Florida avocados, under the agents of the Federal Constitution, complained that they are subjected to commercial handicap and discrimination by a California statute barring sale in that State of avocados with less than 8% oil content.

And it is submitted no sacrificial offering of a load of avocados is needed to prove that appellee and his subordinates have for years enforced California’s oil content requirement against avocados coming from Florida and will continue to enforce this requirement so long as the statute remains in force, unless stayed by declaration or writ of court.

In this case, in contrast with Public Commission of Utah versus Wycoff Company, 344 U.S., there is absolute certainty of the matter in which the challenged state regulation applies to the marketing of Florida avocados.

The prohibition against sale in California of avocados with less than oil — 8% oil content is unqualified and without exception regardless of place of origin, quality, maturity or federal regulation.

There is contrast in this respect between the avocado section of the California code and other sections of the same code.

For example, the standardization provisions relating to containers of fruits, nuts and vegetables are expressly declared inapplicable to shipments from outside the State in containers established as standard by the applicable laws or regulations of the United States at Section 788.

The standardization provisions says as to apples, it was revised in 1957, are declared inapplicable to apples shipped into California from other States if accompanied by an official certificate stating that such apples have met the maturity requirements of the state of origin, Section 827.7.

Other standardization provisions of the Code give effect to inherent differences between varieties of the fruit are — are differences arising from growing conditions, different regions of the State making one standard for this geographical division as a different standard for the other geographically division.

Also some of the standards allow a 5% or 10% tolerance.

The 8% oil requirement for avocados is quite unique and it start rigidity thus emphasizing the arbitrary disregard of applicable horticultural factors.

I shall respond to one other point in appellees’ brief.

It’s argued aside from the question whether or not there is a justiciable controversy, I hope the Court will not have much trouble with that word as I have many, that appellants have not shown danger of great and irreparable injury, therefore, are not entitled to the equitable relief right in their complaint.

Isaac E. Ferguson:

I quote from page 33 of the appellees’ brief, “It is significant that appellants have never applied for interlocutory relief during the two years that have elapsed since they filed their complaint.

This a further indication that appellants are not suffering the kind of immediate injury which will prompt a federal court to exercise its equitable powers in the suit to enjoin public officers from the enforcement of the state law.”

The appellants’ complaint was filed November 13, 1957.

And actually, the complaint was filed by the defendants on December 6, 1957.

Depositions of various witnesses accounting for 335 pages of the printed record were taken in Miami, Florida January 1958.

Interrogatories were served by both the plaintiffs and the defendants.

On February 24, 1958, appellants filed a motion appearing on page 29 of the record requesting the Court to set the action for trial at the early convenience of the Court and stating the reasons for this request.

Paragraphs 5 and 6 of this motion showed that all depositions intended to be taken have been taken.

And that other discovery procedure could be completed within a time limited by the Court.

Paragraph 4, I quote, “The next marketing season for the avocados handled by plaintiffs commences about July 1, 1958.

Therefore, the action is of emergency nature.”

And then the concluding paragraph, number 7, “This request to set the action for trial is made in lieu of an application by plaintiffs for an interlocutory injunction since the hearing of such application may be obviated by plenary trial of the action and entry of a final decree.”

This motion was still pending April 18, 1958 when the three-judge court first came into session.

There was then also pending the motion of the defendants to dismiss the complaint.

The latter motion was heard and taken under advice consequently the motion to set the case for early trial received no attention.

Eight months passed before the Court announced the ruling which accounts for this appeal, eight months during which the appellants could do nothing further in the case.

The further statement on page 33 of appellees’ brief is quite ironic, that if a justiciable controversy exist, appellants could have sought declaratory relief in the Superior Court of the State of California and that under this remedy, appellants would be entitled to an expeditious hearing of their case.

The implication seems to be that speedier justice is obtainable in the Superior Court of California and in the District Court of United States for the Northern District of California.Be that as it may, I submit to Your Honors that the appellants have not been lacking in diligence in seeking the equitable relief for which they pray in their complaint.

I submit also that there is a point in showing that the record of this case without need of an added sacrifice, that appellants at the present continuing in substantial interest in the question of the validity of the California statute of which they complained.

Thank you, Your Honors.

Earl Warren:

Mr. Fourt, you may proceed.

John Fourt:

Mr. Chief Justice and Honorable Associate Justices.

This case involves an exotic fruit, avocado.

The appellee has not had an opportunity to present this case on the merits, this posture of the case being ruled on in a matter of a motion to dismiss.

I should like to briefly describe what the case is about and what the contentions are of the parties.

Avocados are a fruit which you use for food.

Avocados are grown both in Florida and California.

They’re utilized by the housewife mainly in green salads.

The housewife purchased an avocado in the store when it’s hard.

In room temperature at home, it softens.

John Fourt:

It is very difficult for the housewife to tell of the maturity of the avocado from the time she buys it.

The avocado is hard.

Touch does not indicate maturity.

Appearance does not indicate maturity.

The oil content of an avocado increases as the avocado matures.

California, since 1925, has required that all avocados sold in the State contain a minimum of 8% oil content.

The purpose is to protect the consumer of California.

The device of ensuring a minimum oil content is a guarantee of maturity, we believe, is a reasonable device to ensure that protection.

Earl Warren:

Has there been inspection of California avocados to accomplish that result?

John Fourt:

I do not understand the question.

This — this testing program has continued since 1925.

Earl Warren:

Yes.

Well, I say there — has there been a — a testing program going along — I — as I — as I understand that most of the avocados that are used out in California are — are raised in California.

John Fourt:

Yes, that is correct.

Earl Warren:

Have those California avocados been tested since 1925 as a matter of procedure to — to see that they are — contain 8% or more of —

John Fourt:

Yes, that is correct.

Earl Warren:

They — they do?

John Fourt:

Yes.

This requirement applies to all avocados sold in California irregardless of origin even avocados from Cuba or Hawaii.

The appellants’ contentions are that the California statute constitutes a discriminatory trade barrier that of the California statute conflicts with a controlling federal statute.

On the merits, appellee contends that the California statute is not discriminatory, that if the opportunity presents itself we will show that over 95% of the Florida avocados by volume will comply with the California statute.

That Florida avocados have been successfully reconditioned upon inspection in California and as reconditions have met the California statute.

(Inaudible)

John Fourt:

Avocados upon arrival in California can be divided by size, that is size 12, 14, 16 and 18.

The — this practice experience that is the smaller size avocados that fail to meet the inspection.

First, the shipper-handler removes the lower — the smaller size avocados from a lot.

That eliminates that problem.

Further, they make oil test on avocados in the containers in the lot and they will find a variation in the lot that is some logs of avocados will comply and others will not.

They take an adequate sample of logs and log, say, one avocado, 14 will pass generally and the rest of the avocados and the log will pass.

The avocados then that did not pass are reshipped.

John Fourt:

Those that will pass will be marketed freely in California.

Charles E. Whittaker:

(Inaudible) not to pay or reconditioned but they are culled.

John Fourt:

That is correct.

The term “recondition” in the California Agricultural Code means to bring in to compliance regardless of the commodity, regardless of the defects.

It may be rotten, it may be oil content, anything to bring in compliance, you recondition it.

Charles E. Whittaker:

And throughout (Inaudible)

John Fourt:

That — that is correct.

William J. Brennan, Jr.:

Did you say the — the similar process apply to home grown avocados?

John Fourt:

Identical — identical process.

William J. Brennan, Jr.:

And do — percentage wise, do more than pass than imported ones?

John Fourt:

The record show that 96% of the avocados shipped by appellants to California have complied with California law.

The California ambers do not have that in the record.

Felix Frankfurter:

Is there a suggestion of discriminatory treatment of the home market?

I mean in the pleading, is one of the claims on the basis of which an injunction is sought is equal — probably suggested that they treat discriminatorily, favorably the home market as against the Florida market?

John Fourt:

That is the claim of the appellants.

Felix Frankfurter:

Well, does it explicitly said that the inspectors and so on shut their eyes to California?

John Fourt:

No.

Felix Frankfurter:

I just want to know whether that’s — that’s in the —

John Fourt:

No.

Felix Frankfurter:

— allegation.

John Fourt:

No.

The appellants specifically take the position they do not contest the inspection procedure in California.

Earl Warren:

They do not what?

John Fourt:

Contest the inspection procedure in California.

Earl Warren:

Oh, I see.

Felix Frankfurter:

And they do not contest the operation.

Does that mean they do not contest the operation of the inspection procedure?

John Fourt:

They contest the application of the oil test, the 8% oil test.

They do not contest the determination as to whether the Florida avocados comply with this law.

Felix Frankfurter:

But is there a suggestion that the oil test is not applied to California when in fact it is applied to Florida?

John Fourt:

None.

Felix Frankfurter:

That’s what I mean by the equal problem.

John Fourt:

The threshold question before this Court is whether this Court has appellate jurisdiction to hear the case.

The appellate jurisdiction depends on whether a three-judge court was necessarily contained in this case.

A three-judge court was convened.

We do not believe it was necessarily convened.

Appellants have joined a claim of unconstitutionality of the state statute where they claim that the state statute conflicts with a controlling federal statute.

The issue or the claim that a state statute is superseded by a controlling federal statute does not raise a constitutional question.

Felix Frankfurter:

It may.

It may raise a constitutional question.

John Fourt:

It may but not necessarily so.

Felix Frankfurter:

Yes.

John Fourt:

Now, that was the square holding of the — of this Court in Lemke versus Farmers Grain Company and —

Charles E. Whittaker:

Would you mind telling us that claim?

John Fourt:

The claim that the state statute conflicts with a controlling federal statute does not necessarily raise a constitutional question.

Charles E. Whittaker:

By the law.

John Fourt:

That is correct.

The — as explained by Justice Day, the Court was to construe the federal statute, construe the state statute and compare the two.

The language of Section 28, United States Code 2281, does not answer the problem here presented, that is does the three-judge procedure in the District Court necessarily apply where a constitutional claim is joined with a non-constitutional claim?

The language states that the attack should be on the ground of the unconstitutionality of such statute.

If such a ground exists, in and by itself, there can be no question.

Our position going to the essence of our case if that — if other issues are joined that one, the case — the injection of the non-constitutional case goes beyond the language of the statute.

That the injection of the other issues would produce an anomalous result, third, that this statute was designed to protect the States from the — the precipitous action of a single judge federal court was not designed as a statute of broad social policy such as the Workmen’s Compensation statute, that the language is ambiguous, the statute is ambiguous.

It needs construction that — allowing the joinder of the constitutional and non-constitutional issues would broaden the statute beyond the language and broaden it to produce anomalous result.

Now, here is the anomalous result.

If a non-constitutional issue is joined with a constitutional issue, the District Court is based — is faced with the rule, basic rule that if at all possible, a constitutional issue will be avoided.

So in this case, the three-judge court, if at all possible would based its decision on the conflict between state and federal law, we then have — would have a anomalous situation of a three-judge court convened to hear a constitutional issue but deciding it on a non-constitutional issue.

Charles E. Whittaker:

And in that case, you would go to what court?

John Fourt:

To the District Court of Appeals.

Charles E. Whittaker:

To the Court of Appeals.

John Fourt:

Yes, to the Court of Appeals, yes.

That is correct.

Charles E. Whittaker:

(Inaudible) decided the case on the other Court of Appeals, namely, (Inaudible) constitutionality of the state statute if it would come here (Inaudible).

John Fourt:

That is not —

Charles E. Whittaker:

(Inaudible)

John Fourt:

That is not our position.

Our position is that this is a technical statute covering a special limited situation.

If the plaintiff, in framing his complaint, takes the case out of the statute, the single judge may hear both the constitutional and the non-constitutional issues.

This Court has always nearly construed the statute so that it does not cover all attacks on state statutes even though an injunction is sought against the state officer.

Charles E. Whittaker:

(Inaudible) a question of constitutionality of state statute.

John Fourt:

Nothing.

The statute is ambiguous and therefore it requires construction.

Our position is that that construction should be narrowed because of the limited purpose of the statute to protect the States against the one judge superior court in granting an injunction on the grounds of unconstitutionality.

Conceivably, the Court may disagree with us.

But in doing so, it will increase the burden of the District Courts because they let to convene three judges, one of whom must be a member of the Court of Appeals.

And secondly, the obligatory burden of this Court would be increased.

Now, those questions do not relate to construction, they relate to the type of construction given by the statute which we believe should be narrowed.

Charles E. Whittaker:

How can that be avoided?

(Inaudible) the unconstitutionality of the state statute, a three-judge (Inaudible) three-judge court could possibly convene, is that right?

John Fourt:

This Court has not construed the case in — in different situations.

For example, a state statute maybe attacked as unconstitutional.

If the defendant is a municipal officer and the issue is local, the Court has held that the three-judge procedure does not apply.

Basically, the three-judge procedure does not relate to the jurisdiction of the District Court.

The District Court obviously can decide all the issues before it assuming a substantial federal question.

The question is here.

Must a one-judge federal court or a three-judge federal court decide a case of a constitutional together with non-constitutional issue?

Charles E. Whittaker:

And if one (Inaudible) is the unconstitutionality of the state statute — three-judge court.

John Fourt:

We do not hold that position.

Felix Frankfurter:

Well, I am not sure (Inaudible) Justice Whittaker was if merely it was — if the sole issue of the constitutional question, then there must be a three-judge court.

John Fourt:

Yes, that is correct.

Felix Frankfurter:

If you say that if — if a non-constitutional question whether — and in Parker and Brown of the (Inaudible) but if — if there’s a non-constitutional question which initially calls for a statutory construction as to the scope of the local statute and or the scope of the federal statute then you say since local matters may determine the issue, local judges (Inaudible) go to the Court of Appeals (Inaudible)

That is your position.

John Fourt:

That — that is our position.

Charles E. Whittaker:

Now, what — and that you claim that make such charge but also makes an independent charge that the state statute is unconstitutional for violation of the Commerce Clause (Inaudible) a three-judge court (Inaudible)

John Fourt:

If I understand the question not only if — if the complaint raised only a constitutional question, then a three —

Charles E. Whittaker:

(Inaudible)

John Fourt:

No, then it would taken without the statute.

Felix Frankfurter:

We have (Inaudible)

Charles E. Whittaker:

Then a single judge court could declare a state statute to be unconstitutional?

John Fourt:

That is correct.

For example, in the Wycoff case, this Court by — by necessary implication held that a — a case attacking a state statute on grounds of unconstitutionality but asking only for declaratory relief would be heard, properly heard by a one judge court.

Felix Frankfurter:

But we haven’t — we haven’t decided, have we, Mr. Fourt?

This Court has not yet decided, what the answer as to Justice Whittaker’s question.

John Fourt:

That is correct.

Felix Frankfurter:

We have not yet decided.

We have decided in Lemke.

And that’s what Lemke decided that when there is, as they set forth and as the opinions of the — of the Court of Appeals’ opinion makes clear and just to say that one, an attack under the Commerce Clause, that too along, there’d be no problem.

John Fourt:

That is correct.

Felix Frankfurter:

Two, in conflict with the federal Grain Inspection Act, then they held that it’s (Inaudible) come of him, you can go to the — you should go to the Court of Appeals.

John Fourt:

That is correct.

Felix Frankfurter:

And the point is emphasizing that case by the concurring opinion of Mr. Justice Brandeis was joined by two others.

The Court, throughout the statute, is unconstitutional.

Mr. Justice Brandeis sort of concurring opinion not invalidating the statute but merely saying that some provisions of the statute leaving the rest of the statute are in conflict, is that right?

John Fourt:

That is correct.

To our knowledge, no subsequent case has brought in to question that holding of Lemke.

Charles E. Whittaker:

How could Congress be much more plain than it has been in 2281 saying that no injunction against any state statute shall be granted by any District Court or judge thereof upon the ground of unconstitutionality of such statute unless the application therefore is heard and determined by a District Court of three judges?

John Fourt:

In analogous statutes dealing with the obligatory jurisdiction of this Court, for example, 28 U.S.C. 1254 and 1257, the Court — the Congress has used the words “attack on a state statute as repugnant to the Constitution, treaties or laws of the United States.”

Congress has recognized the difference between an attack on a state statute on the grounds of some constitutionalities and an attack on a state statute on the grounds that it — it conflicts with the controlling federal law and both of these — one statute pertains to a direct appeal to this Court from the Court of Appeals, the other statute, using the same language, refers to a direct appeal to this Court from the highest state court.

Felix Frankfurter:

As I remember it, the earlier statute of this Court obligatory jurisdiction gave a direct review from the District Court.

This is before the three-judge regarding this (Inaudible) gave a direct review to this Court from the judgment of a District Court when there was a declaration — adjudication of unconstitutionality.

Felix Frankfurter:

And this Court said that that would mean that every constitutional question can be brought and come here only if it’s exclusively (Inaudible) if it found it was (Inaudible) then you go to the Court of Appeals.

John Fourt:

That is correct.

Felix Frankfurter:

But I think — I think you want to elaborate what you said earlier that this was a question of construction and bearing on the construction in answer to Justice Whittaker’s question, wouldn’t you call on the legislative history of this statute?

That this concerned with Congress didn’t have this kind of problem before it.

It had outright invalidation of state statute and that’s all that was involved.

And that’s why this statute was passed.

John Fourt:

That is correct.

The debates in the Senate where the precise language involved here was added to Section 7 to the Act creating the commerce court disclosed that the Senators were alarmed at what they called hair-trigger injunctions granted by a single judge District Courts.

One senator said that such an injunction almost created a riot in his State and another senator observed that at the — that in his State, a federal single judge federal court had issued injunction 12 minutes after the governor had signed the — the statute, the bill into effect.

Now, from that debate, it’s obvious that this language was intended to cover a special situation that is the invalidating of a state statute on the grounds of its unconstitutionality by one judge.

And that issue was the only issue considered by Congress.

That debate shows what Congress had in mind.

It does not answer the question as to how broad this procedure covers.

Felix Frankfurter:

It is fair to say, it is fair to say that under your view, a single judge may invalidate the state statute if he finally reaches the constitutionality of the state statute after having passed on the questions of statutory construction.

John Fourt:

That is correct.

Felix Frankfurter:

(Voice Overlap) to say, isn’t it?

John Fourt:

That — that is correct.

Charles E. Whittaker:

Now — that might be.

But suppose he does not hold on the question of statutory construction against the petitioner or the plaintiff, but he does on the question, the other second question of unconstitutionality of state statute, now, then, where does the appeal go?

John Fourt:

To the Court of Appeals.

Charles E. Whittaker:

Although all that’s involved is a holding denying a — an injunction against the operation of the state statute.

John Fourt:

That is correct.

This statute does not — the three-judge procedure statute does not relate to the jurisdiction of the federal court but to the manner of exercise of that jurisdiction.

Hugo L. Black:

Where — have you cited those — the congressional statement that you just made to us?

John Fourt:

We have the references to the congressional record.

It’s cited in our brief, Your Honor.

Hugo L. Black:

But you have not quoted that —

John Fourt:

No.

Hugo L. Black:

— opinion?

John Fourt:

Now, there is one doctrine which is more difficult to me and that is the doctrine of ancillary jurisdiction.

John Fourt:

We do not believe this doctrine applicable to a case such is involved this statute where the question is not the exercise of the jurisdiction of the federal court but the manner which it was exercised.

Ancillary jurisdiction is a necessary doctrine in the Article 3 in order that a federal court may hear an entire case.

Therefore, if a Federal District Court has before it a substantial federal issue, it may hear all local or state issues.

They completely dispose of the case.

However, in this case, we conceive that the Federal District Court sitting of one judge may dispose of all the issues.

Therefore, the question is not the application of the doctrine of ancillary jurisdiction.

However, this Court in a case attacking a state statute both on the grounds that it violated the Federal Constitution and the State Constitution held that under the doctrine of ancillary jurisdiction that the three-judge court should consider the questions.

That case is Louisville & Nashville Railway Co. versus Garrett in 231 U.S. 298.

The case can be distinguished on the facts but it’s surely inconsistent with our position, our answer is that —

Hugo L. Black:

Do you — that’s not cited in your brief, isn’t it?

John Fourt:

No.

No, Your Honor.

Hugo L. Black:

What was it?

John Fourt:

Yes.

Hugo L. Black:

2 what?

John Fourt:

Yes.

231 U.S. 298.

Discussion —

Charles E. Whittaker:

298?

John Fourt:

Yes.

231 U.S. 298, pages 303, 304.

And that case was the — the holding of that case that the three-judge court would — would hear both local state questions and the federal constitutional questions was followed without discussion by the Court in Sterling versus Constantin, 282 U.S. 378.

Now, in answer to those cases, I just — a — look at the briefs disclosed that counsel did not discuss this jurisdictional point although the Court certainly did in the earlier cases that we distinguished them on the grounds that this does not involved the jurisdiction of the federal — of the District Court but merely the manner of its exercise.

Hugo L. Black:

Merely what?

John Fourt:

Merely the manner of its exercise, that is the Court, where they’re sitting in one judge or three judges will dispose of all the issues before it.

Charles E. Whittaker:

Is that quite correct, Mr. Fourt, when Congress has the right to fix the jurisdiction of the inferior federal courts and it has by 2281 said that no federal court shall enjoin the — the — shall — yes, determine the unconstitutionality of the state statute except by a court of three judges?

Section 2281 Title 28.

Hugo L. Black:

Is that the Johnson Act?

John Fourt:

Yes.

Charles E. Whittaker:

Now, doesn’t that fix the jurisdiction and make the matter jurisdictional?

John Fourt:

We do not believe so because —

Charles E. Whittaker:

Oh, why not now?

John Fourt:

If the — the question is whether this statute applies.

Now, if it applies to a given situation where — if the statute applies, then the Court is correct that the three-judge statute hears everything that is all issues raised.

We believe that — that where the issues are joined is without the statute and then a single judge may hear all the issues.

Now, it is not jurisdictional because in either event, the Federal District Court will hear all of the issues.

It is merely will one judge hear the issues, will three judge hears — hear the issues.

Charles E. Whittaker:

But only one type of court has power under the statute, namely, a three-judge court.

Felix Frankfurter:

But isn’t that the question?

That’s the whole question.

John Fourt:

That is precisely the question before the Court.

Charles E. Whittaker:

Well, I’m just reading the words as they appear in the statutes.

Felix Frankfurter:

You can’t read jurisdictional words literally.

This Court has again and again construed words that literally mean one thing and in the light of the basis on which it was passed mean a quite difference.

John Fourt:

It is our position.

(Inaudible)

Hugo L. Black:

Which side did you take that?

Felix Frankfurter:

[Laughs]

John Fourt:

We can only note that the question is open before the Court, reasonable minds may differ.

[Laughter]

The appellants here, of course, are entitled to their day in Court regarding whether a case or controversy exists.

If the appellee is correct and this Court lacks appellate jurisdiction, we suggest that it may be appropriate for the Court to reverse the decision whereas the judgment of the District Court with instructions that the Court enter a new judgment from which the appellants may take an appeal to the Court of Appeals.

Charles E. Whittaker:

Now, may I ask you this?

Enter a new judgment period or enter new judgment to attack?

John Fourt:

Enter a new judgment identical with the existing judgment, dismissing the case but from which the appellants then may take a timely appeal to the Court of Appeals.

William J. Brennan, Jr.:

The municipal court, I’m sure they have the time in which they may take an appeal.

John Fourt:

Yes.

William J. Brennan, Jr.:

(Voice Overlap) —

John Fourt:

Yes.

The appellants here have not taken an appeal to the Court of Appeals.

John Fourt:

And this Court in previous cases of this nature —

Felix Frankfurter:

(Voice Overlap) several times.

John Fourt:

Yes.

This Court in previous cases has not denied the appellant who made the mistake appealing to the wrong court, his day in court.

Charles E. Whittaker:

Then must we ask one last question and I swear this is it.

[Laughter]

That’s (Inaudible) in the Court of Appeals — words in the Court of Appeals of the Ninth Circuit.

They say there’s no merit to the local (Inaudible) but there is as to the claim of unconstitutionality of the state statute because of (Inaudible) under the Commerce Clause.

Now, a one judge court makes such judgment, can that stand under this section 22 that we’re talking about here?

Hugo L. Black:

(Inaudible)

John Fourt:

Yes.

Charles E. Whittaker:

2281?

John Fourt:

Yes.

That is our position.

In a case of this nature, the rule would be opposite if only a constitutional issue was raised or if only part one or two constitutional issues are raised.

Charles E. Whittaker:

That’s my point.

That — all that’s left in the Court of Appeals is the constitutional issue.

They affirm one judge court.

Can they do that?

John Fourt:

Yes.

That is our position they can.

The District Court — the three-judge District Court dismissed the judgment, dismissed the appellants’ case on the grounds that no case or controversy existed between the parties.

Realistically, the appellants’ grievance here is with the California statute.

For example, their statute, their complaint alleges plaintiffs have been deterred from making shipments of Florida avocados to California because of the California statute.

That’s Record 13.

There is no claim made that the appellee has committed a personal wrong or trespass against the appellant.

What has he done?

The record on page 441 gives the answer.

The appellants’ agents in California were given a courtesy informational notice of violation.

The — there’s no evidence in the record that any of the appellants’ lots had been seized.

John Fourt:

The appellants, their California agents were informed.

We have inspected the lot.

It does not comply with California law.

It is subject to abatement under California law.

You must either recondition or transship.

If you do nothing, then it is subject to proceedings taken in the state courts to abate the — the lot as a nuisance.

So far as the record shows, the appellant, at no time, have violated California law.

The mere possession of a noncomplying lot of fruit in California is not a violation of California law.

It would be a violation of law to sell commodities, fruit which do not comply with California minimum standards, quality standards.

It would be a violation of law if the California authorities seize the lot and then the lot is sold.Neither of those circumstances appear here.

The appellants, upon receiving this informational notice, voluntarily transshipped the lot to neighboring Western markets.

William J. Brennan, Jr.:

What — what’s that argument (Inaudible)

John Fourt:

The appellants’ grievance is with the California statute.

William J. Brennan, Jr.:

(Inaudible)

John Fourt:

No, I’m now discussing the existence of case or controversy, Mr. Justice Brennan.

If the appellants wish to sue the appellee in the Federal District Court, they must find a personal wrong or a trespass.

If not, then the action against the appellee state officer is representative only and in fact is their suit against the State of California.

This action then is barred by the Eleventh Amendment, so held by this Court in Ex parte Young.

Hugo L. Black:

If whatnot, I didn’t quite get that argument.

Why would — why —

John Fourt:

The —

William J. Brennan, Jr.:

How did Ex parte Young denied them the right?

John Fourt:

The — in — the appellants’ grievance must be with the appellee not with the state statute.

In the absence of a personal wrong by appellee towards appellants such as a trespass, some damage, interference with their marketers, this then is merely a represented — an action against appellee in his representative capacity as a state officer.

In fact then, it is a suit against the State of California which cannot be maintained under the Eleventh Amendment.

The dispute between appellant and appellee must be based on wrongful conduct by appellee, not merely the existence of the state statute.

This Court held in the Mitchell case that the mere existence of a statute does not constitute a sufficient threat to constitute a suit against that officer.

There must be personal wrongdoing.

Felix Frankfurter:

Is — are there are no allegations in the bill — are there no allegations in the bill from which one can, by a reasonable intendment, bind that these appellants’ complaints that they are shippers of avocados in Florida, they have been shipping them, that they want to ship them in the future and they will be subject to what they claim as an unconstitutional statute.

Are there no such allegations in the bill?

John Fourt:

We do not find such allegations.

The allegations which approach this area described by Mr. Justice Frankfurter are plaintiffs are now constantly receiving offers to purchase Florida avocados from dealers in California but cannot avail themselves of such offers without prohibitive risk of loss if the defendants are permitted to continue to enforce Section 792 of the Agricultural Code.

Felix Frankfurter:

Well, why isn’t that (Inaudible)

John Fourt:

Permitted to continue to enforce is that a seizure of any of their lot, is that a threat of arrest?

Is this a threat of prosecution in California?

Felix Frankfurter:

But there’s no allegations saying that they will — state officials will enforce the law?

John Fourt:

No such allegation, Your Honor.

That was —

William J. Brennan, Jr.:

Let’s see if I get this.

(Inaudible)

John Fourt:

The appellants must show that appellee has committed a personal wrong.

William J. Brennan, Jr.:

(Inaudible) under this statute?

Seizure?

John Fourt:

Seizure, of course, would do it.

William J. Brennan, Jr.:

Arrest?

John Fourt:

Arrest, yes.

William J. Brennan, Jr.:

How about the calling (Inaudible)

John Fourt:

The calling is voluntary by the appellants.

A threat of arrest, a threat of prosecution would be sufficient.

William J. Brennan, Jr.:

A — a threat?

John Fourt:

Yes.

William J. Brennan, Jr.:

A threat or seizure.

John Fourt:

That is correct.

None of those — yes?

Hugo L. Black:

Did they say the calling was voluntary?

John Fourt:

There are — so far as the allegations of the appellants’ complaint here all lots shipped to California and which failed to comply with California were reshipped out of the State.

So far as this record is concerned, the — there was no reconditioning occurred by appellants.

Hugo L. Black:

Do you say — do they claim that they have been subject to having their fruit wrongfully reshipped from the State?

John Fourt:

No.

No such claim was made.

Hugo L. Black:

So why did they claim they reshipped it voluntarily?

Because they wanted to?

John Fourt:

Their claim is that they received an informational notice of non-compliance which is —

(Voice Overlap) —

John Fourt:

— oh, from the state officers.

It’s shown on — on page 441.

Hugo L. Black:

(Voice Overlap) to take a risk, they shipped it out of the State, is that it?

John Fourt:

That is correct.

But it was completely a hypothetical and contingent risk.

Hugo L. Black:

Well, why would hypothetical and contingent if they knew that their fruit was going to be taken and examined might be seized, they — rather than go — have that done, they ship it out of the State.

John Fourt:

The Honorable Justice in using the word “might” has stricken the heart of this thing.

The state officers might have done a number of things.

Hugo L. Black:

What was it the state officers notified and they had it submitted then?

John Fourt:

No.

No, that is not correct.

Hugo L. Black:

What was it they notified and you said they give information or what kind of notice?

John Fourt:

Yes.

The notice which is plaintiffs’ Exhibit 22 on page 441 of the record which says, “Standardization violation notice.

The below described lot including the containers thereof is a public nuisance unless reconditioned or otherwise brought into compliance.

The transportation or sale of such lot is illegal.”

Hugo L. Black:

Well, what — what kind of request would you want?

William J. Brennan, Jr.:

That might be the fact.

Hugo L. Black:

I — I don’t understand that.

John Fourt:

As long as the lot remains where it is.

Hugo L. Black:

Well, certainly.

John Fourt:

No, no, no violation occurs.

Hugo L. Black:

As long as they let it stay there, why they can’t sell it.

John Fourt:

That is correct.

That — that is quite correct.

Hugo L. Black:

Right.