Florida Lime & Avocado Growers, Inc. v. Paul

PETITIONER:Florida Lime & Avocado Growers, Inc.
RESPONDENT:Paul
LOCATION:Clauson’s Inn

DOCKET NO.: 45
DECIDED BY: Warren Court (1962-1965)
LOWER COURT:

CITATION: 373 US 132 (1963)
ARGUED: Jan 08, 1963
DECIDED: May 13, 1963

Facts of the case

Question

Audio Transcription for Oral Argument – January 08, 1963 in Florida Lime & Avocado Growers, Inc. v. Paul

Isaac E. Ferguson:

May it please Your Honors.

This case is here for the second time on direct appeal from the judgment of a three-judge District Court.

The previous appeal was from a judgment dismissing appellants’ complaint for lack of jurisdiction.

That judgment was reversed by this Court because it was remanded to the District Court to try the case on the merits for other proceedings not inconsistent with the opinion of this Court.

The present appeal is from the judgment after trial on the merits, denying the relief prayed in appellants’ complaint.

I remind the Court that the appellants are growers, handlers of avocados produced in South Florida, and that the avocados marketed by appellants are sold without restriction in all states of the union except California, the only other state in which avocados are produced commercially.

I remind the Court further that all of the avocados grown in the Florida production area are marketed in interstate commerce or directly affect interstate commerce.

And that since June 11, 1954, all marketing of the Florida avocados has been governed by a marketing order made by the Secretary of Agriculture of the United States pursuant to the authority vested in him by the Agricultural Marketing Agreement Act of 1937.

The essence of the marketing order is the establishment and enforcement of standards of maturity and quality as the condition precedent to the marketing of the Florida avocados.

The complaint of the appellants is that notwithstanding compliance with the maturity and quality regulations imposed under the federal marketing order, an near embargo against the marketing of the Florida avocados in California is enforced by prohibiting sale of the avocados in that state, unless they contained 8% or more of oil or fat as required by Section 792 of the Agricultural Code of California.

[Inaudible]

Isaac E. Ferguson:

Oh, yes Your Honor.

Yes, indeed.

It follows the complaint in the first volume and begins — Page 50.

This 8% oil requirement is foreign to the nature of the avocados grown in Florida, also foreign to the maturity and quality regulations under the federal marketing order.

Such embargo, appellants contend, flaunts the Commerce Clause and the Equal Protection Clause of the United States Constitution, at the same time thwarts and undermines the effectiveness of the regulation of the marketing of this fruit under the federal law.

On the previous appeal in this case, it was held by this Court, first, that a three-judge District Court was properly convened to hear the case since the complaint seeks to enjoin enforcement of a state statute in application to the marketing of the avocados handled by appellants on substantial grounds of federal unconstitutionality.

Second, the direct appeal to this Court from the judgment of the District Court was proper notwithstanding the joinder of a claim that enforcement of the state statute in the manner complained of is a violation of an Act of Congress regulating interstate commerce.

Third, that it was not incumbent upon appellants prior to consideration of their complaint in accord of the United States to apply for the desired relief in an action in the California Courts.

Fourth, that appellants are entitled to have determined in this federal court action on the merits the rights asserted under the Constitution of the United States, also under the Marketing Agreement Act of 1937 enacted by Congress pursuant to the authority granted by the Commerce Clause of the Constitution.

It said in the opinion of the District Court that but for the direction of this Court to hear and adjudicase — adjudicate the case on the merits, the District Court might either have declined to exercise equitable jurisdiction in the case or it might have withheld exercise of jurisdiction to await state court adjudication of the controversy.

I respectfully submit that this statement of the District Court is quite immaterial.

That it is of no moment how the District Court might otherwise have disposed of the case if not constrained by the decisions of this Court.

I submit likewise that the reargument by appellees in the form of cross-appeal of issues decided by this Court on the former appeal calls for no consideration on the present appeal.

On the merits, I submit, the record is devoid of any support for the judgment of the District Court.

The essential elements of appellants’ case are virtually uncontested.

The most striking circumstance of this case is that nowhere in the evidence is there the least suggestion of fault in the Florida avocados.

No suggestion of unhealtfulness, unpalatability, or inferiority of quality in any respect.

The challenged California statute says in effect that all avocados with less than 8% of oil are immature, but no witness says that this is true of the avocados grown in Florida which come to market with less than 8% of oil content.

On the other hand, it is affirmatively established by the extensive and an impugned scientific research that some varieties of Florida avocados attain maturity and are ready to be marketed with oil content as low as 2% or 3%, while other varieties which may ultimately attain 8% oil content, do so only in minor volume and late in the marketing season for these avocados and even then without the requisite consistency for affecting — effective marketing in face of the 8% oil barrier.

Isaac E. Ferguson:

The main — the evidence regarding the marketing of the Florida avocados covers the period since June 11, 1954 when the Federal Florida Avocado order went into effect.

No question is raised by the appellees as to the validity of the Act of Congress pursuant to which the marketing order was made.

However, an abortive attempt was made by the appellees to show that the regulations issued under the marketing order and the methods of administration thereof have failed to comply with the requirements of the Marketing Agreement Act.

Oral testimony was taken and a great many exhibits for identification in furtherance of this defense, but upon the trial of the case, the defense was withdrawn.

Nevertheless, it is reasserted in the brief by the appellees in this Court.

It set forth in answer in appellants’ reply brief.

The reason for adoption of the Florida Avocado Marketing Agreement was the need to establish and enforce satisfactory standards of maturity and quality for the marketing of this fruit in place of the ineffective self-regulation then prevailing in the industry.

Since 1954 by the regulations promulgated by the Secretary of Agriculture from season to season, standards of maturity and quality have been established and have governed all marketing of the avocados produced in the South Florida area.

No shipment of Florida avocados is permitted without a certificate of compliance with these regulations.

A certificate issued after inspection of the fruit by the Joint Inspection Service of the United States Department of Agriculture and the Florida Department of Agriculture.

In California alone, on arrival of a shipment of avocados from Florida, the federal certification of the fruit as of requisite maturity and quality is disregarded and instead the 8% oil test is applied.

Under the federal regulations, oil or fat content does not enter into determination of the maturity or quality of the Florida avocados.

By a decade of scientific research, the years 1951 to 1955 by Dr. Roy W. Harkness at a subtropical experiment station of the University of Florida, Homestead, Florida and in years from 194 — 1954 onward by Dr. Paul L. Harding, and his staff of assistants at the United States Horticultural Field Station at Orlando, Florida, also at the agricultural marketing station of the United States Department of Agriculture at Miami, Florida, it has been irreputably established that oil content is not a scientifically valid determinant of either the maturity or quality of the Florida avocados.

That there is no consistent relationship between the oil content of the fruit and the maturity or palatability, that some varieties of the Florida avocados attain maturity and maximal quality with a little as 2%, 3% or 4% of oil, that of the other varieties, although some may ultimately attain as much or more than 8% of oil.

This occurs only late in the marketing season for these varieties that only inconsistently and well past the time when they have attained maturity and are ready to be marketed.

It has also been determined by checkup on the marketing of the Florida avocados from year to year since 1954, that maturity and palatability of these avocados is assured by prescribing permissible shipping dates for each variety of the fruit in each season in correlation with attainment by the fruit of specified minimum weight or diameter.

Accordingly, under the federal marketing order, the Secretary of Agriculture has in each season since 1954 issued maturity regulations establishing permissible picking dates for each of some 40 varieties of the Florida avocados, dates when avocados of the designated variety may be picked and shipped if then of the specified minimum weight or diameter.

Both Dr. Harkness and Dr. Harding were examined as witnesses in this case, and the record on appeal exhibits the nature sent, the results of their studies of the maturation and palatability of the Florida avocados.

No —

[Inaudible]

Isaac E. Ferguson:

The District Court in making that finding disregarded entirely the testimony, the only testimony in the case regarding the Florida avocados, disregarded all of the testimony of these witnesses, leaving no testimony in the record of this case to support any such finding in relation to the Florida avocados.

[Inaudible]

Isaac E. Ferguson:

None whatever.

[Inaudible]

Isaac E. Ferguson:

I say, no counter testimony was introduced on the subject nor the testimony of Dr. Harkness, Dr. Harding impeached in any respect.

Of course a finding without a vestige of support in evidence — this is no way binding of this Court.

There could be no finding in this case regarding the validity of this standard of 8% oil content in relation to the Florida avocados of the numerous varieties that is not consonant with the testimony of Dr. Harkness and Dr. Harding.

There is no other testimony.

There is shown in several ways in the record of this case the inapplicability of the oil standard to this as proof.

Many thousands of oil tests were made in the research project conducted by Dr. Harkness and then in subsequent years by the staff of the Department of Agriculture.

Isaac E. Ferguson:

They established, first, affirmatively that these avocados do come to maturity with less than 8% oil content, in fact many of them with less than a half of that oil content.

That the other varieties, if they ever attain 8% oil content, do so only five, six, seven, or eight weeks after they are mature in accordance with the standards established under the federal regulation.

Your Honor, I’m answering your question at this time in a sense out of order because the argument to which I am now directing myself is the fact that standards have been established under federal law, that these are the standards prescribing the condition for the marketing of this fruit in all 50 states of the union.

[Inaudible]

Isaac E. Ferguson:

This is the only regulation applicable to these avocados.

There is no prior regulation that is preempted because Florida had no standard.

Florida has adopted as its own standards fixed under federal law by a general statute.

[Inaudible]

Isaac E. Ferguson:

Go ahead.

Arthur J. Goldberg:

[Inaudible]

Isaac E. Ferguson:

No, that’s alright. I —

Arthur J. Goldberg:

[Inaudible]

Isaac E. Ferguson:

I’ll do it right now, Your Honor.

Dr. Appleman said that he was not making any study of maturity of avocados, but his contact was as a chemist making — doing certain research work in which he used two varieties of California avocados as subject material.

The varieties called the Fuerte and Hass which incidentally account for the overwhelming share of the whole California crops.

These are of very high oil content.

As to Florida avocados, Dr. Appleman said candidly, I know nothing at all about Florida avocados.

In fact, he did not claim knowledge of any varieties of California avocados other than the Fuerte and the Hass.

He simply was permitted to say without any support whatever that in his opinion, the 8% oil standard was the best available at this time and of course on his own test to me — testimony, that could’ve been applicable only to the California avocados.

[Inaudible]

Isaac E. Ferguson:

Yes, Your Honor.

[Inaudible]

Isaac E. Ferguson:

The — from the standpoint of conflict since the standards, complete standards that is established under federal law, the entire California standards in substitution or interposition would be in conflict.

But the only question that has ever arisen, the only basis upon which Florida avocados have been rejected for sale in California is by the oil test.

That is on page 87 of the brief, the appendix with the caption “oil content.”

[Inaudible]

Isaac E. Ferguson:

Have Your Honor found it?

[Inaudible]

Isaac E. Ferguson:

87.

[Inaudible]

Isaac E. Ferguson:

The lower part of the page.

[Inaudible]

Isaac E. Ferguson:

The federal statute vests authority in the Secretary of Agriculture to establish standards of maturity and quality.

[Inaudible]

Isaac E. Ferguson:

This is on page 89.

[Inaudible]

Isaac E. Ferguson:

The Clause 3 of 7 U.S.C.A., Section 602.

[Inaudible]

Isaac E. Ferguson:

Through the exercise —

[Inaudible]

Isaac E. Ferguson:

The federal regulation?

I say it is — does not use oil content or any other chemical test as a basis because research has proved conclusively that it is not a valid test and after years of study, and by experience, it has been established instead that a test that will assure proper maturity and quality of the Florida avocados is to establish each season taking into account the growing conditions in that season, from the past experience generally, the dates upon which avocados of the particular variety, it’s a standard for each variety not a — and across the board standard, the dates when the avocados of that particular variety attain a certain size, certain weight, or diameter, it’s all interchangeable.

Not —

Byron R. White:

[Inaudible]

Isaac E. Ferguson:

The — the procedural provisions may not —

Byron R. White:

[Inaudible]

Isaac E. Ferguson:

Oh, yes.

It is — the marketing order in the brief, no.

It’s an exhibit of the complaint beginning at page 15 of the record.

Then the particular regulations, there are a vast number and I have many references to the federal register because they are made over again each season and in particular the maturity regulations are made season by season and may be amended during the season in conformity with any change in the growth conditions.

So that I could only answer that by giving you which I have done in the record of this case, all of these references to the federal register.

Byron R. White:

[Inaudible]

Isaac E. Ferguson:

Yes Your Honor.

Byron R. White:

[Inaudible]

Isaac E. Ferguson:

Well —

Byron R. White:

[Inaudible]

Isaac E. Ferguson:

Florida avocados from this particular production area, other sections of the Act —

Byron R. White:

[Inaudible]

Isaac E. Ferguson:

That’s right.

Byron R. White:

[Inaudible]

Isaac E. Ferguson:

The statute, as Your Honor of course knows, calls for marketing agreements with respect to a particular commodity in a particular production area and in fact, makes it the smallest possible, the smallest practicable area and this is the production area in Florida and this is the only standard applicable.

Byron R. White:

[Inaudible]

Isaac E. Ferguson:

Yes, Your Honor.

I say that —

Byron R. White:

[Inaudible]

Isaac E. Ferguson:

It certainly is, Your Honor.

Hugo L. Black:

[Inaudible] although going a long way didn’t go far enough to bar a certain type of regulation on the state, that doesn’t [Inaudible] it seems as many other.

But you say here that this absolutely bars the state in fixing the content of oil.

Isaac E. Ferguson:

That’s right using that as the standard in substitution for the standard established under federal law.

Hugo L. Black:

That — you mean that there isn’t that procedure?

Isaac E. Ferguson:

Oh, yes it’s entirely different as of —

Hugo L. Black:

— as a substitute, the question of whether this bars the business, wasn’t that your position?

Isaac E. Ferguson:

Oh, yes, I certainly argue that it does bar it.

Hugo L. Black:

That’s right.

Isaac E. Ferguson:

Under the Commerce Clause and the Supremacy Clause of the United States Constitution.

Byron R. White:

[Inaudible]

Isaac E. Ferguson:

Yes, Your Honor.

Byron R. White:

[Inaudible]

Isaac E. Ferguson:

That is correct.

Byron R. White:

[Inaudible]

Isaac E. Ferguson:

That is right.

Only, it’s a correct way.

Byron R. White:

[Inaudible]

Isaac E. Ferguson:

On its correct way.

It has — it has unquestionable and undisputed scientific support in the California standard if applied to the Florida avocados has not.

Byron R. White:

Even if it was wrong or [Inaudible]

Isaac E. Ferguson:

Even if the federal — as far as — as far as we invoke the existence of regulation under federal law, under a valid Act of Congress and a valid order made pursuant thereto, I would say exactly what Your Honor has said.

But —

Hugo L. Black:

That bars you not — haven’t — the federal didn’t bar you in evidence as you refer, up to date [Inaudible] the relevance of this particular statute.

Suppose your expert said one thing and said another, and you are right in saying that the Federal Government regulated this function as it had certain phrases of the labor law, your argument is that that took it out of the power of the states.

Isaac E. Ferguson:

Yes, Your Honor and I —

Hugo L. Black:

— with reference to — by oil content.

Isaac E. Ferguson:

That is right.

But I show affirmatively that oil content is not part of the federal regulations to show they are incompatible, in conflict.

In other words if it were merely a repetition, if the state standard were merely a repetition then it might be argued that there’s no conflict.

So it shows affirmatively by overwhelming evidence and undisputed evidence that they are radically and fundamentally different so that there is conflict.

And as a matter of fact, the Florida avocados could not get out of the state unless they complied with the federal regulations then the situation would be that they would be validated, certified under federal law and 49 other states could say, “No, we don’t like that test.

We’ll try a different way.”

Hugo L. Black:

Is there any claim here that some fact here as stated that your Florida avocados are [Inaudible] tainted California avocados?

Isaac E. Ferguson:

They — that they do what?

I didn’t get the (Voice Overlap).

Hugo L. Black:

[Inaudible]

Isaac E. Ferguson:

They tainte —

Hugo L. Black:

(Voice Overlap) are dangerous crops, that they might communicate diseases or bugs that comes out of it, is that — is there any claim of that kind?

Isaac E. Ferguson:

That would certainly be a harsh criticism of the Secretary of Agriculture of the United States.

Hugo L. Black:

Is there any claim then?

Isaac E. Ferguson:

No sir.

There isn’t a word in the record of this case about any taint in the Florida avocados.

All that appears is that some of them do no have 8% oil content.

Hugo L. Black:

Is there any claim that they are bad for the health if it have less oil as (Voice Overlap)?

Isaac E. Ferguson:

No.

There is a fact — a claim made on the other side which is ironically, and this is part of Dr. Appleman’s testimony to show that the fat in avocados is not of the type which creates cholesterol.

Now, I am no expert on this but if he says that that — apologizes for that fat and he says —

Hugo L. Black:

He is proving that that — their avocados won’t make you fat, or inflicts some other (Voice Overlap).

Isaac E. Ferguson:

And it’s not dangerous fat, not dangerous to the heart.

So that the 20% or 30% California avocados need that apology, but the Florida avocados with their low oil content do not need any such apology.

That is all there is in this case and the word health isn’t mentioned and of course, it would be a strange situation if the Federal Government in making standards of maturity, quality did not take into account the welfare of the consumers just as much as the — any state establishing such standards.

The real effect of the thing is that the Californians are told, “If you want to eat avocados, you have to eat avocados with high oil content.”

You can’t choose to take the avocados with low oil content even though they are mature and of good quality by standards established under federal law after thorough research and after years of practical experience.

Hugo L. Black:

I understand you —

Isaac E. Ferguson:

Oh, it’s not that the —

Hugo L. Black:

I understand it from you that it eliminates of any possible consideration in the case the claim on the part of California by reason of the fact that California raises avocados, importation of these particular avocados bars in view of a particular peculiar envy to the crop in California.

Isaac E. Ferguson:

Not to the consumers —

Hugo L. Black:

But I’m —

Isaac E. Ferguson:

But they — they don’t want —

Hugo L. Black:

I’m not talking about economically.

Isaac E. Ferguson:

They don’t want the competition.

That is true.

Hugo L. Black:

Well, that’s —

Isaac E. Ferguson:

And that the Commerce Clause does not permit.

Hugo L. Black:

But there’s no claim that it does have — they have avocados farmed in a — than the grown avocados in yards.

Isaac E. Ferguson:

Yes, it gives them a competitive —

Hugo L. Black:

I’m talking — I’m not talking about economic.

I’m talking about interests here.

Isaac E. Ferguson:

Oh, no.

No.

The avocados of the varieties grown in Florida do not grow in California and vice versa.

They are of different ancestry and they are a different character.

Hugo L. Black:

Not one of these standards of the law that is based on the idea of those argued, enter into the state and you find the [Inaudible] bringing certain fruits from other states because it’s dangerous for their fruit.

Isaac E. Ferguson:

No.

Hugo L. Black:

Isn’t that the case?

Isaac E. Ferguson:

There is no blight at all.

It’s simply that they’re not fatty enough.

Actually, these avocados as it was brought out on the farmer field, when they are rejected in California, are permitted to leave the state and they are marketed in the neighboring states, in Arizona, in Utah, in Oregon, in Washington.

They — an ironical element of this case is that the biggest handler of California avocado is taking an active part from this case through its counsel and that organization, Calavo Growers of California served as the selling agent for the leading handler in Florida, one of the appellants in this case sold those avocados all over the country and never paid any attention to oil content and resold them in the neighboring states when they were rejected in California.

There has never any question about —

Hugo L. Black:

Did Florida enacted in its law here claiming oil content of the California should be barred?

Isaac E. Ferguson:

No, no.

There’s been no retaliatory legislation but that is just what the Commerce Clause is to prevent.

Now —

Potter Stewart:

Has there ever been a federal marketing agreement with respect to California grown avocados?

Isaac E. Ferguson:

Not – no, no.

They — they have no marketing agreement —

Potter Stewart:

Never had one.

Isaac E. Ferguson:

— either state or federal that has to do with the maturity or quality.

They presently have some agreement that has to do with joined together to promote the marketing and that is the only one, that is the state regulation as far as this old — this old standard, it’s quite old —

Potter Stewart:

It goes back to 1920’s, isn’t it or the —

Isaac E. Ferguson:

1925, I think in its 1925 and probably 1933 in its present form and there is — that of course was done directly in the Act and in the Act is of a rigid nature (Voice Overlap) —

Potter Stewart:

In the state — in the state law, in the legislation.

Isaac E. Ferguson:

In the state — yes.

That has never been changed because they found that it worked quite satisfactory to keep out Florida avocados.

There is —

Potter Stewart:

Well, now there is testimony in the record as Mr. Justice Goldberg pointed out that with respect to that variety of avocados which are grown in California, there is a correlation, there is expert testimony that there is a correlation between percentage of oil and maturity, isn’t it correct?

Isaac E. Ferguson:

I prefer —

Potter Stewart:

But as you say there —

Isaac E. Ferguson:

I prefer not to answer that question because I don’t want to argue the California law in application to California avocados because that’s not my case.

Potter Stewart:

No, I was simply asking as a matter of information whether or not there is expert testimony —

Isaac E. Ferguson:

As a matter of (Voice Overlap) —

Potter Stewart:

— in the record to that effect.

Isaac E. Ferguson:

A further answer to the question about Dr. Appleman, I elicited in cross-examination that to his knowledge, research work was being in California at the Citrus Experiment Station at Riverside by the scientists there which is in challenge of the oil content as a standard even for the California avocados.

And Dr. Veen, Dr. Sinclair who are doing that work were not called as witnesses in this case by the state although they are in a sense state employees, instead Dr. Appleman was called who knew of this work and hadn’t even read the writings of these scientists.

But I say again, Your Honor, I —

Potter Stewart:

But the answer is yes.

Isaac E. Ferguson:

I don’t want to try the —

Potter Stewart:

I just want to be sure that I understand it that the —

Isaac E. Ferguson:

And I would go — I would have to go outside the record to answer your question —

Potter Stewart:

Oh!

I thought on page — whatever it was, 657 I think, in the record starting at 647, Dr. Appleman’s testimony, not outside the record, but in the record that he testifies there, I can’t find at the moment but somewhere in those pages that there is a correlation on page 648, Justice Goldberg tells me a correlation between oil content and maturity with respect to California grown avocados and I don’t see if that’s true.

I don’t think — I just want to know if I —

Isaac E. Ferguson:

Would be irrelevant to the present case.

Potter Stewart:

To your argument I should think.

Isaac E. Ferguson:

And to the present case, yes.

Potter Stewart:

Because there is no such — all the testimony with respect to Florida — the varieties of avocados grown in Florida is that there is no such correlation.

Isaac E. Ferguson:

No.

And that is —

Potter Stewart:

Isn’t that correct?

Isaac E. Ferguson:

And Your Honors would see how thorough that study has been.

I would like to diverge probably marketing order, the contention that the California standard cannot validly be substituted for the federal standard to say that there is another aspect to the case that even independently of the congressional enactment and the establishment of federal regulation thereunder that the restriction of sale of the Florida avocados in California in violation of the Commerce Clause and the Equal Protection Clause of the United States Constitution.

175 years ago, the authors of our National Constitution then Clause 3 of Section 8, Article 1 of that very document, first thing in Congress, plenary power to regulate commerce among the several states, the provision accounting in large part for the making and adoption of the Constitution.

There by as construed by this Court, there was established at one stroke a common market of all the states, a market rid of all barriers against the free flow of commerce from state to state, a market to be kept immune from all such barriers.

Great many cases have come to this Court wherein state or municipal action claimed to be valid within the — of the local police power, has been challenged under the Commerce Clause because of direct or indirect interference with interstate commerce.

And the rulings of these cases have turned upon consideration of the precise nature of the challenged local action and the precise effect of such action upon interstate commerce, if any.

The result of these cases if generalization may be ventured is that the police power of the state and of the municipal governments, no matter how broadly defined has not been permitted to override the national interest by arbitrary and burdensome infringement upon the freedom of interstate commerce envisaged by the Commerce Clause of the United States Constitution.

In the case at bar, an agricultural standard a — standardization law of California when applied to avocados grown in Florida and shipped in interstate commerce results in nearly total exclusion of sale of this fruit in California.

At best, sporadic sales late in the season, no opportunity to market when the avocados are ready for marketing under the federal regulation, no ability to promise deliveries at the state that interposed that would be desired by a chain of supermarkets, so at most these shipments that have been made to California are of that limited and sporadic character.

It is argued that this standardization law protects potential California consumers from purchase of immature avocados.

Truth is, however, that the California 8% oil requirement when applied through the avocado shipped from Florida denies to the people of California opportunity to buy the avocados which are of their nature of low oil content, but are nonetheless mature and wholesome and of excellent quality.

Arthur J. Goldberg:

Mr. Ferguson, in that California law [Inaudible]?

Isaac E. Ferguson:

Yes.

Arthur J. Goldberg:

Now, that point [Inaudible] —

Isaac E. Ferguson:

No, Your Honor.

Arthur J. Goldberg:

— of Florida avocados [Inaudible].

Isaac E. Ferguson:

Well, I have no way of urging that because the legislatures are best at are — Act are long gone and it would make no difference.

It’s the practical effect and no matter what was the basis motive then or the basis for judgment, the test now is according to present day horticultural science and present day experience.

As it was recently stated I think in Mr. Justice Clark’s opinion with citations in Baker versus Carr and I have cited some of the same cases.

Arthur J. Goldberg:

That does not make the fact that [Inaudible]

Isaac E. Ferguson:

Yes, sure.

Arthur J. Goldberg:

[Inaudible]

Isaac E. Ferguson:

Well, in that —

Arthur J. Goldberg:

[Inaudible]

Isaac E. Ferguson:

They have done so and they’re hanging on to it because it protects them against competition.

Arthur J. Goldberg:

But that could be in the federal competition.

Isaac E. Ferguson:

Could they?

Oh!

Yes, they have federal marketing agreements in California and large scale for other commodities but not avocados.

This thing has remained just set all these years for a very obvious reason.

Arthur J. Goldberg:

[Inaudible]

Isaac E. Ferguson:

Oh, that would be a matter for judgment then that would ultimately be made by the Secretary of Agriculture according to the advice he would receive from persons in the industry, from scientists who have made the study of the subject.

It would be his judgment and whether he would take oil for California avocados, I have no way of answering that except to say I doubt it, but again, I’m back in California, you see.

But they couldn’t do that of themselves.

Every one of these regulations is submitted and it’s done by a Committee, the word self-help, you must look at the other man’s brief that play upon that —

Arthur J. Goldberg:

[Inaudible]

Isaac E. Ferguson:

That’s right.

Arthur J. Goldberg:

[Inaudible]

Isaac E. Ferguson:

Anything, yes, that’s right.

Arthur J. Goldberg:

[Inaudible]

Isaac E. Ferguson:

Well, that is in its nature a recommendation and that these meetings of the Committee, there are present representatives of the Secretary of Agriculture.

Then they are submitted to the Secretary of Agriculture with a basis, with the statement of the basis for the recommendations.

Then having in mind that that ground here that the — most the people in Florida want to get away from any marketing that would hurt the industry, it’s quite manifest that this Committee, even if it had final say, would be — undermine the industry, destroying the industry if they didn’t make adequate regulations and see that they are enforced.

Arthur J. Goldberg:

The question — questions literally is perfectly [Inaudible] with the Marketing Act [Inaudible] in the marketing of Florida avocados [Inaudible] and its applicability in federal law, it would be applicable, wouldn’t it?

Isaac E. Ferguson:

Florida might well have adopted standards.

It didn’t do so.

That’s why the Federal Government came in.

The Marketing Agreement Act had advantages which Florida could not give because as Your Honor knows, the Marketing Agreement Act avoided violation of the Sherman Act.

It was the kind of joint action that might have been challenged under the Antitrust Act.

It also had other possibilities which Florida could not have given.

That’s why the growers and the handlers who wanted to see that no harm came to the industry by anybody offering undesirable fruit and hurting the reputation of Florida fruit, petitioned the Secretary of Agriculture to make this agreement and after the procedure, it calls over the Act in an extensive hearing, it was found desirable and necessary in the general interest of the Marketing Agreement Act which is to promote the welfare of agriculture.

I think in a mixed way of arguing the situation because of the Marketing Agreement Act from the regulation there under and the general question of violation of Commerce Clause and the Equal Protection Clause, I say this is the only result here of this regulation so far as the Florida avocados is concerned, is invidious discrimination.

It keeps out avocados that are helpful, no way deleterious, but you can’t get in because they happen to be varieties which are of low oil content as are probably most of the avocados produced in the whole world, South America and Cuba and elsewhere.

So that —

[Inaudible]

Isaac E. Ferguson:

I was figuring out the light, Your Honor, but I see it’s —

Earl Warren:

You have five minutes.

Isaac E. Ferguson:

Yes, five minutes altogether?

Earl Warren:

Yes.

Isaac E. Ferguson:

Then I think I’ll conserve the five minutes.

I thank Your Honors.

Earl Warren:

Mr. Fourt.

John Fourt:

If the Court please before proceeding to the problems of federalism which are involved in this case, it’s necessary that we make comment on the state of the evidence.

As by way of example, counsel referred that to the evidence that the California statute was ultimate — practically a total embargo on the shipments Florida avocados to California.

There is no such evidence, no such proof in evidence.

What happened at the trial was that handlers produced but one witness, a Mr. Harding who was in-charge of the federal research program.

Their main proof was in the form of depositions.

These depositions and exhibits take 297 pages of federal record.

These depositions were taken pursuant to a writ of stipulation which is part of the original record on file that all objections, except the form of the question are to be reserved until the time of trial.

And that the parties then may enter their exceptions to the depositions as if the witnesses were personally on the stand.

Now, these depositions were taken before a notary public who does not have authority to hear objections, therefore counsel as a matter of practice, the taking of depositions allows wide latitude for questioning in order to allow — for discovery.

State officers then at the trial were entitled then upon objection to have them read at length at the trial, handlers at the trial.

Now, the handlers are the handlers that Mr. Justice Goldberg referred to are the two Florida appellants.

I refer to the parties as the handlers who are the appellants and state officers who are appellees.

Well, handlers at the trial did not offer to read the depositions and exhibits into the record as is normally done instead they offered them in mass, and state officers promptly objected and asked that they be read at length.

The District Court reserved ruling on the admissibility of these depositions and in a post trial written order after the parties had filed briefs in which both sides discussed the evidentiary objections to the depositions, the District Court expressly excluded the depositions from evidence.

John M. Harlan:

In toto?

John Fourt:

Sir?

John M. Harlan:

All of the depositions?

John Fourt:

Yes, in toto.

297 pages of it, the depositions —

John M. Harlan:

What theory, what ground?

John Fourt:

The Court gave no ground in its written order.

John M. Harlan:

[Inaudible]

John Fourt:

Well, the point here is twofold.

We think that first, if handlers wish to contest of this exclusion of depositions that they should have posted in one of the questions presented in their jurisdictional statement which they have not done.

And secondly, that in this mass of 297 pages, we are confident that much of it is inadmissible and that it is not incumbent upon the District Court or in this Court to go through each page and separate the admissible from the inadmissible.

Therefore, it was reasonable for the District Court to exclude all the depositions.

Now handlers, both in the trial court and in this Court, assert that the depositions and exhibits were in evidence at the time of the trial because state officers in our previous motions to dismiss had made reference to them.

Now, in a motion to dismiss in the trial court it’s proper for the District Court to look at the depositions to ascertain its jurisdiction.

This Court so held in Land versus Dollar, but the party filing a motion, such a motion to dismiss, does not waive their objections to the introduction of the depositions and evidence at a later time.

They are making a concession provisionally for the purposes of the motion only and this is the ruling in the Sixth and Seventh Circuits on motions for summary judgment and motion for — motions for judgment in the pleading.

So —

Hugo L. Black:

What page does the objection of the evidence appear?

John Fourt:

Yes.

That would be on page 782.

[Inaudible]

John Fourt:

Yes.

Finding paragraph 3 on page 782, plaintiff’s exhibits for identification one through 26 are not admitted into evidence but have been considered by the Court as an offer of proof by plaintiffs.

Arthur J. Goldberg:

[Inaudible]

John Fourt:

The — yes, I have to answer your question in several parts.

[Inaudible]

John Fourt:

Right.

The — because the trial court reserved ruling on the admissibility of the depositions, the trial court did look at the contents of the depositions in writing the memorandum opinion.

Then they instructed the winning party which was the state officers to prepare findings and the findings as we have gone through in detail of our brief are supported by the evidence in the record and do not relate to the excluded depositions so that there is evidence supporting each of the findings.

Although the trial court in its — although in writing — reaching its decision did consider the depositions and simply found them unconvincing.

Arthur J. Goldberg:

[Inaudible] the trial court excluded the memorandum?

The trial court damaged relationship [Inaudible]

John Fourt:

Yes.

At the trial, state officers faced the problem of having depositions which made good evidence or may not and so we made an extensive offer of proof in the trial court that if the depositions were admitted and particularly the lengthy portion was related to oil test, then state officers has rebuttal testimony that we wanted to put in and our offer of proof is in the record.

Now, the offer of proof is material because the — as part of our offer of proof will show that the oil test techniques used make the Florida tests on the avocados fail substantially to extract all of the oil out of the avocados and that by making test with the proper equipment, a smashing action instead of a cutting action making test on Florida avocados, we first test with their method and then our method and our results are substantially higher, greater oil contents than their results.

Now, we would suffer material prejudice then if the Court is going to look at the depositions because we have not had an opportunity to rebut that testimony in the trial court.

And indeed the District Court, both in its memorandum decision and in its findings and judgment expressly reserved to two state officers the right to introduce rebutting testimony added through the trial.

Yes sir.

Byron R. White:

[Inaudible]

John Fourt:

Yes, that is correct.

Byron R. White:

[Inaudible]

John Fourt:

Well, on the merits, there will be — yes.

Byron R. White:

[Inaudible]

John Fourt:

Yes, but we would — there’s two types of problems here.

All of their evidence regarding their business activities in California was excluded, and all of their evidence regarding the scientific tests on the oil content of avocados was excluded, and on the narrow issue of the oil content of Florida avocados we would suffer prejudice when —

Byron R. White:

[Inaudible]

John Fourt:

Yes, the —

Byron R. White:

[Inaudible]

John Fourt:

Yes, that’s quite right.

Byron R. White:

[Inaudible]

John Fourt:

I think in fairness that on the equity issue, the Court will look at the depositions to see what their proof would have been.

But on the —

Byron R. White:

[Inaudible]

John Fourt:

Yes, that is correct.

Byron R. White:

But you don’t mind that there’s no equity, that there is no probable equity.

John Fourt:

Yes.

Byron R. White:

[Inaudible]

John Fourt:

Yes, that is correct.

However, it is our position that even if you do look at the depositions, they do not help them on the equity issue.

Byron R. White:

[Inaudible]

John Fourt:

Yes.

Byron R. White:

[Inaudible]

John Fourt:

Yes.

Byron R. White:

[Inaudible]

John Fourt:

Right.

Byron R. White:

[Inaudible]

John Fourt:

Yes, that is correct.

Byron R. White:

[Inaudible]

John Fourt:

Yes.

The — yes, there’s no proof of any shipments, yes.

Byron R. White:

[Inaudible]

John Fourt:

Yes.

But now directing my attention to that point, we would say that even if the depositions are looked to, that there is no convincing effort of irreparable energy [Inaudible] —

[Inaudible]

John Fourt:

Yes, right, no showing that irreparable injury great and immediate.

Potter Stewart:

Are the depositions here on the record?

John Fourt:

Yes.

The depositions are in the record.

Potter Stewart:

Where are they?

Are they all in one of these files?

John Fourt:

Yes.

The depositions – yes, the depositions commence at page 146 of the record and go through to page 445.

Potter Stewart:

146 to 445.

John Fourt:

Yes.

Potter Stewart:

Thank you.

Hugo L. Black:

I don’t quite follow you.

As I read this, [Inaudible] I would think the Court have said, “Well, I’m just considering you and passing on one other statute although I’m not going to repeat it [Inaudible] and I’m passing on it on the basis that they made this offer of proof and I’m considering that that is the fact.

That’s what it sounds like to me.

I don’t understand just why it doesn’t mean that?

John Fourt:

Yes, the difference is between the Court of — this Court as in the Appellate Court.

Looking at the — this offer of proof, the depositions to see if the evidence supports the findings and we think that it may not do so.

But had the handlers here raised the point that material prejudice has occurred because the evidence was excluded from evidence, then the court have — could have looked at the depositions for that purpose.

Hugo L. Black:

I presume they thought it was [Inaudible].

They didn’t pass away the objections though they’re just taking with [Inaudible] nevertheless I’ll decide against you.

John Fourt:

Yes.

That is correct.

Byron R. White:

Mr. Fourt, the court [Inaudible]

John Fourt:

Yes, the state officers renewed their objections at the completion of the handlers’ case and at the end of the trial.

John Fourt:

Now, here’s the comment of counsel for the handlers.

Perhaps at this time I may — I —

Hugo L. Black:

What page?

John Fourt:

Yes, I’m sorry, sir, page 646, at the bottom of the page; “Perhaps at this time, I may make a suggestion which may help to expedite the hearing and that is regard to the depositions, testimony, and exhibits.

My suggestion is that all questions of relevancy and materiality of this evidence in the Exhibits 1 to 22 inclusive can better be considered by the Court in the arguments of the case.

And if this includes questions of admissibility, they can be argued to the Court.”

Now, we suggest that in the face of state officers’ continual objection, we want it be read in the record that this would be invited error there.

John M. Harlan:

[Inaudible]

John Fourt:

It’s been our experience that the depositions are read at length before the Court or before a master and that appropriate objections are made.

John M. Harlan:

[Inaudible]

John Fourt:

Yes.

The state officers were the parties objecting to this procedure but we really can’t complain because we’re the prevailing party.

[Inaudible]

John Fourt:

Yes.

[Inaudible]

John Fourt:

Yes, and objections were filed by the handlers to the trial court.

[Inaudible]

John Fourt:

It was submitted on written memorandum to the Court and both —

[Inaudible]

John Fourt:

Yes.

Hugo L. Black:

[Inaudible]

John Fourt:

Yes.

Hugo L. Black:

And suppose it was passed on those arguments at the time you made this, where are those subsequent arguments again to admissibility?

John Fourt:

Yes.

The — that would be in the form of a — part of the defendant’s brief.

[Inaudible]

John Fourt:

Yes.

Commencing on page 700 and going through pages 722 and then at the — there are several exhibits which are found at pages 748 to 756.

[Inaudible]

John Fourt:

Yes that is when a tender of evidence is made and an objection is made, the ruling of the Court is to admit or reject the evident — the offer of proof from evidence.

[Inaudible]

John Fourt:

That is our position.

[Inaudible]

John Fourt:

Yes.

That is the ruling we desire of the Court.

That is correct.

[Inaudible]

John Fourt:

Yes.

That is correct.

[Inaudible]

John Fourt:

Yes.

Potter Stewart:

Was there any other — was an offer made to read the depositions instead of just —

John Fourt:

No.

Potter Stewart:

— as there is in those exhibits.

John Fourt:

No.

The only thing that happened was that they were just offered according in toto in mass.

Potter Stewart:

And the idea of reading them was never discussed or —

John Fourt:

The state officers objected and requested that they be read.

Potter Stewart:

And the –-

John Fourt:

And the Court declined to do so stating that they would reserve passing on the question of their admissibility.

Potter Stewart:

But the — did the handlers indicate an unwillingness to read them?

John Fourt:

Yes, that is correct.

Their argument in the trial court was they were already in evidence.

Potter Stewart:

Already in —

John Fourt:

Yes.

Potter Stewart:

How?

[Inaudible]

John Fourt:

The —

[Inaudible]

John Fourt:

Well, yes, well the two — there’s two separate questions here.

John Fourt:

Yes.

Their argument in the trial court was that because we had referred — state officer had referred to these depositions in our motion to dismiss on — for lack of jurisdiction that that action you’re referring to the depositions caused them to be placed into evidence.

Potter Stewart:

I see.

John Fourt:

And our argument is that that motion was — did not place them in evidence, not waived our right to object at a later trial.

[Inaudible]

John Fourt:

The order appearing on page 782?

[Inaudible]

John Fourt:

Yes, sir.

There were — three separate — yes sir.

[Inaudible]

John Fourt:

Yes, sir.

From the language of the memorandum of opinion wherein the District Court said that that it would consider the depositions and exhibits arguendo but it — that it would reserve ruling on their admissibility, but that it had — the trial reserve ruling their admissibility and that if it was necessary to be admitted into evidence then we’d be given an additional hearing.

[Inaudible]

John Fourt:

Because of the prejudice to state officers that we have not had an opportunity to put in our rebutting evidence.

Hugo L. Black:

But that wouldn’t have been the reason that this case —

John Fourt:

No.

Hugo L. Black:

— could have been granted [Inaudible]

John Fourt:

Oh, granted.

Hugo L. Black:

To decide on your favor on the theory that there’d been no evidence involved.

John Fourt:

Oh, granted.

[Inaudible]

John Fourt:

Just as an alternative to our argument — to one of our two arguments in the equity case.

Now, we do not defend the United States District Court in its action in not reading the depositions.

We were objecting all the way through it.

Our posture is though that we can’t complain because we were the prevailing party.

Now, if the Court decides to remand for trial, then that would certainly be equitable and a fair way to dispose off the problems here.

[Inaudible]

John Fourt:

Yes, sir.

The three judges did not — apparently, did not desire to — have to seat while the depositions were read into the record.

[Inaudible]

John Fourt:

You cannot consider them for the point as to whether the findings are supportive of the evidence because the depositions are not in evidence.

[Inaudible]

John Fourt:

Yes.

The Court certainly could say that this procedure of not reading them in was error in — into the —

Hugo L. Black:

[Inaudible]

John Fourt:

No, but — yes, but we — prejudice if you look at them we’re convinced without our being able to produce rebutting evidence.

Hugo L. Black:

You mean by no equity that they hadn’t suspiciously shown that they would be irreparably injured by evidence that Florida avocados need to be barred by State of California.

Is that your question, as I take it is?

John Fourt:

Well, we do not think that —

Hugo L. Black:

[Inaudible]

John Fourt:

Those are not these facts.

Hugo L. Black:

Would that be a good reason to send back the case to review the law and [Inaudible] that these particular persons, or this particular person have suspiciously shown that the individuals who are going to irreparably injured by what had already been served?

John Fourt:

We think that is good judicial procedure, this Court should not do so on evidence not admitted — on proof not admitted into evidence in the record in the court below.

Byron R. White:

[Inaudible]

John Fourt:

Yes, sir.

Byron R. White:

[Inaudible]

John Fourt:

Yes, sir.

The — in — one of the — discussing the offer of proof now, one of the handlers has not shown that there was any monetary loss at all.

He’d had to make one reshipment out of the statement, but no monetary loss.

Byron R. White:

Suppose there’s one, wouldn’t that be pretty bad if you shipped things into a state, you haven’t stopped them, hold them up?

John Fourt:

I think that it —

Byron R. White:

And then you would — not only you, you hadn’t shipped those out that you might be [Inaudible] good enough not to lose much money on that, you’d have the same thing over here immediately after.

John Fourt:

Yes, but there are other parties at interest here and that is the consumers of California.

Their offer of proof shows that for — 96% of their avocados did pass our inspection standard and were marketed.

And —

Byron R. White:

[Inaudible]

John Fourt:

I — the record does not indicate and I have no information.

Byron R. White:

[Inaudible]

John Fourt:

Yes.

Now, on those facts, the inference could be drawn that they’ve abandoned business operations in California.

Byron R. White:

[Inaudible]

John Fourt:

Yes.

Yes, I concede that two inferences could be drawn.

Arthur J. Goldberg:

Then what is the reason —

John Fourt:

Sir?

Arthur J. Goldberg:

— according [Inaudible]

John Fourt:

Yes, sir.

At the time the memorandum was written, they could have raised the question on this appeal that the District Court committed error in excluding those depositions.

Now, for that purpose nor did he determine whether the exclusion was prejudicial.

The deposition and exhibits are certainly part — properly part of the record.

Hugo L. Black:

I suppose you really don’t have time to discuss the evidence —

John Fourt:

Let me —

Hugo L. Black:

[Inaudible]

John Fourt:

Yes, sir.

Turning to the preemption issue, I think I’m going to stick with my order but speed up.

The avocados are grown commercially in California and Florida.

Now, avocados are picked for commercial marketing in a hard inedible state and it cannot be told from looking an avocado whether it’s mature enough.

Now, if the avocado which is picked is immature, then it shrivels and it becomes inedible.

On the other hand, if at the time it was picked, it was mature, then in the period of four or five days at room temperature, then it will soften into a normal fruit.

Now, the problem arises in the avocado industry because the nature sets the end of the shipping season for the avocado grower.

The fruit becomes overripe right on the tree and drops, so the only control the grower has is at the beginning of the season.

Now, the beginning of the season, the price is high and so there’s a temptation for growers to ship their avocados early even though the avocados may be immature.

Now, for this reason, California, very early, sought a way of protecting the California consumer from the deceptive marketing of avocados which were immature.

And it was observed that as the avocado matures the oil content increases.

And it is a practical matter in avocados that had 8% oil content would mature into a soft edible fruit and avocado that had less than 8% oil content would not so mature.

Hugo L. Black:

Do any of the California avocados have as little as 8%?

John Fourt:

There are varieties which —

Hugo L. Black:

And —

John Fourt:

Well — well, of course all of the avocados start at zero and go up, yes.

Hugo L. Black:

I mean, when they get a — what — what you’re talking about mature, are there another avocados that below this 8%?

John Fourt:

Well, yes.

Virtually, all varieties are put on the market immediately as soon as they hit 8% oil, oil content.

Hugo L. Black:

Is there any difference between the oil content of avocados supplied in California?

John Fourt:

Yes.

The — there are three types of varieties of Florida avocados, the Guatemalan and hybrid varieties.

Dr. Harding testified that these varieties reached up to 20% as high as 20% in oil content during the period of their commercial maturity, during their shipping season.

Hugo L. Black:

Where are they from?

John Fourt:

Yes.

And these varieties during the 1959, 1960 year constituted 88% of Florida production and these varieties are increasing in importance, in — this percentage is increasing year by year.

Now, there is also a West Indian variety of Florida avocados which — in which the — some varieties are very low in oil content.

Other varieties during their shipping season would be both below and above the 8% oil content standard.

Now, the point is that the hybrid and Guatemalan varieties, the District Court [Inaudible] can be shipped to California because at — during the shipping season, they go way above 8% oil up to 20%.

Now, the Guatemalan varieties are highly perishable, more perishable than the Florida Guatemalan and hybrid varieties.

The experts testified at the trial that the — because of this perishability and something the industry calls short shelf life, that when the West Indian variety goes into a grocery store, it ripens extremely fast, particularly, after long transportation and these experts testified that by reason of this perishability, it would not be commercially feasible to transport them across United States to California.

Now, for this reason, the District Court found that the application of the California statute to West Indian varieties was hypothetical.

Now, it should be pointed out that in a — really handlers case on the Commerce Clause, Burnham Commerce then, means that they wish the California statute invalidated on a hypothetical situation, that is the West Indian varieties so that then they may market their Guatemalan and hybrid varieties in California free of the California requirement.

Hugo L. Black:

You mean brought about Guatemalan avocados grown in Guatemala?

John Fourt:

The Guatemalan variety, it’s a variety that’s traced from Guatemala but it’s grown in Florida.

Hugo L. Black:

So this is aimed by the [Inaudible] that type of avocado grown in Florida?

John Fourt:

No.

The Guatemalan and hybrid varieties —

Hugo L. Black:

Well then, that variety?

John Fourt:

Yes.

Now, those varieties, during their period of commercial marketability, reach as high as 20% in oil content.

Now, for that reason then, the inference is that they can reach and be marketed in California at the — which requires an 8% oil content standard.

And that those varieties, the West Indian varieties of Florida avocados which would have difficulty meeting the 8% oil contents here couldn’t be shipped there anyway because of commercial impracticability.

And the reason that they’re not shipped there has nothing to do with our 8% oil content standard.

Hugo L. Black:

The evidence by Dr. Appleman has indicated did it not, that he didn’t know about Florida avocados?

John Fourt:

Yes, that is correct.

Yes, his testimony referred to California avocados.

John Fourt:

Now, the inference there is that for the California varieties, the 8% oil standard differentiated with — and kept out immature avocados, and that the — those 88% of Florida volume, Guatemalan and hybrid varieties, that goes high as 20% could also meet the California standard.

[Inaudible]

John Fourt:

Yes, that is correct.

[Inaudible]

John Fourt:

Yes, now.

Yes.

Those — no, those were lulas.

[Inaudible]

John Fourt:

Yes.

Well, the — lula is a subvariety.

It so happened that those — that particular type was a lula which is a — called a hybrid. It’s one of the hybrid type avocados.

[Inaudible]

John Fourt:

They reach as high as 20%.

Well yes.

The problem there is that if you take any avocado and you pick it early enough, it won’t have 8% oil content.

So the problem is to keep it on the tree until it reaches 8% oil content.

Now, the California packing houses make oil tests at the packing house and therefore they do not offer for market the avocados unless they knew it’s going to reach 8% oil.

[Inaudible]

John Fourt:

Yes.

So — yes.

There is nothing in the record to support those statements.

That’s our position neither in the offer of proof nor in the evidence.

Hugo L. Black:

Did you have any evidence to show that they didn’t have — they didn’t reach the qualifications by the federal standard?

John Fourt:

Well, the problem posed by your question —

Hugo L. Black:

The question is more or the federal standard requires [Inaudible].

Is there anything in your view of any evidence suppose — you — that these have been turned down did not meet federal standards?

John Fourt:

No, sir.

No, no proof of that kind.

The federal —

Hugo L. Black:

Is it your idea that if they did meet federal standards, they have a right to come in then?

John Fourt:

No, sir.

Hugo L. Black:

Do you say that even if they met the federal standard, they didn’t have the right to come in.

John Fourt:

Unless they complied with the California statute, that is good.

Hugo L. Black:

In other words, that you had a right to make the standards different from the federal standard.

John Fourt:

Yes, sir.

That is right.

And —

Hugo L. Black:

That’s your argument on the merits.

John Fourt:

Yes.

And the reason is because the congressional intent in the Federal Marketing Act was for a different objective than the California statute.

Now, on the preemption point, the legal issue presented is whether there exists an irreconcilable conflict between the Federal Marketing Act of 1937 and with the marketing regulations.

Now, the —

Hugo L. Black:

May I ask you what part of the objective of Congress doesn’t make a standard finding that the state couldn’t require high standard and go its way and say which it says to be minimum?

John Fourt:

Yes sir.

The legislative objection — objectives of the Federal Marketing Act was to allow agricultural industries through self-help regulation to regulate the flow of agricultural commodities to market so as to increase the parity prices, price will return to those growers.

Now, concededly within the scope of that purpose and the scope of the delegation of authority, the federal regulations are supreme.

William J. Brennan, Jr.:

[Inaudible]

John Fourt:

The —

William J. Brennan, Jr.:

[Inaudible]

John Fourt:

Yes.

William J. Brennan, Jr.:

[Inaudible]

John Fourt:

Yes, yes.

That is our position.

William J. Brennan, Jr.:

Now, you tell me that there’s no important than that because you [Inaudible]

John Fourt:

Yes, yes.

The — yes.

The problem here is one that that the regulations are characterized differently by the parties.

Now, the basic federal regulation is called a marketing order and it is drafted by the industry.

The industry holds an election as to whether adopt it and then it is issued.

Now —

Hugo L. Black:

Issues what?

John Fourt:

Then the Secretary of Agriculture issues the marketing order.

Hugo L. Black:

Did he approve it?

John Fourt:

Yes.

That is correct.

Hugo L. Black:

He approves it and issues an order.

John Fourt:

Yes.

That is correct.

Hugo L. Black:

That is this kind of an order?

John Fourt:

That’s right.

Now —

Hugo L. Black:

Then he enforced it.

John Fourt:

That is correct.

He enforced it in the sense of a lawsuit in case of violations, but the administration of the Marketing Act is in the hands of the local administrative committee and —

Byron R. White:

These were all the [Inaudible]

John Fourt:

Right.

Byron R. White:

[Inaudible]

John Fourt:

Well primarily under the Articles of Marketing Act of 1937 which refers to especially commodities and milk.

Now —

Hugo L. Black:

But then, do you think that that is [Inaudible]?

John Fourt:

Yes.

Hugo L. Black:

[Inaudible]

John Fourt:

Yes, that is right.

Now, the basic regulation then is the marketing order but there is no regulations itself in the sense of anybody have to do anything in the marketing order.

All it does is just authorizes further types of regulations and describes the types of regulations that can be issued under it and it’s of course, the type of regulations which the industry agrees may be imposed on itself.

Hugo L. Black:

And he did impose it.

John Fourt:

Yes.

Now —

Hugo L. Black:

And one of them was that he can make a standard and do what he says.

John Fourt:

Yes.

John Fourt:

That is correct.

Hugo L. Black:

And yet you think California [Inaudible]?

I just don’t quite understand the basis of your argument.

Well, actually the information has been put up —

John Fourt:

Yes.

Hugo L. Black:

— but I’d like to get it clear, what is your position.

John Fourt:

Right.

Now, the type of regulation or the thing that happens which makes — puts a teeth into the Florida marketing system is something called — a regulation called limitation of shipments and the limitation of shipment order which respondents call regulates the flow of avocados to market and it states on its face that you may have — you have — are limited to the larger sizes of avocados first and then the lower — smaller sizes.

John M. Harlan:

Where is that in the record?

John Fourt:

It is not in the record but the Court may take judicial notice.

It’s 27 Federal Register 5135.

I just happen to pick this one because it’s the 1962 limitation of shipments.

Hugo L. Black:

[Inaudible]

John Fourt:

I’m sorry, 27 Federal Register, 5135.

Hugo L. Black:

[Inaudible]

John Fourt:

Yes.

Hugo L. Black:

[Inaudible]

John Fourt:

Yes.

Now —

Hugo L. Black:

But can average — the state can change that if it wants to?

John Fourt:

We believe so because these regulations —

Hugo L. Black:

[Inaudible]

John Fourt:

Sir?

Hugo L. Black:

[Inaudible] as a federal regulation.

John Fourt:

The purpose of — in the Marketing Act in the marketing order and in the orders limiting shipments of records is to improve prices to the growers in Florida and in controlling the flow of avocados to market.

This enhances or stabilizes marketing conditions.

Now, marketing conditions then control this flow of shipment.

Now, it’s true that the industry, that the — these four handlers and five growers may very well consider maturity of — the maturity of the fruit but it will certainly also consider the supply and demand factors.

As a matter of fact, the marketing order requires that the — this in — and called them administrative committees that the administrative committee make estimates of the supply of avocados available for marketing and the demand of avocados in the market and it’s these types of factors then which cause this industry committee to make recommendations regarding what kind of flow of (Voice Overlap) to the market.

John M. Harlan:

What you are saying is in effect that the federal regulation concern economics?

John Fourt:

Yes, sir.

John M. Harlan:

And the state regulation concerns protecting the public against deception, is that the nub of it?

John Fourt:

That is correct.

And that the —

John M. Harlan:

Now, what do you find in the federal marketing order that the order in the statute, the federal statute that bears one way or the other, one way or the other upon whether federal regulation was intended to preclude states from acting in the field of protecting their own consumers?

John Fourt:

We find it in the legislative history of the Agricultural Marketing Act which indicated that the states were to be left free to impose their own regulations.

John M. Harlan:

Where do you find that?

John Fourt:

The — it’s cited in our brief and it’s also the references in the Congressional Record 79, Congressional Record 9480 and it’s in our brief, the legislative history of the Agricultural Marketing Act of 1937.

John M. Harlan:

What was that?

John Fourt:

The Federal Marketing Act was, as you just has stated, economic in effect designed to be controlled by the local industry and administered at the local level.

Now, for example, if the local grower feels that the shipping limitation is too restrictive, he may go to the administrative committee and obtain an exemption.

He doesn’t have to go to the Secretary of Agriculture and these powers of exemption are in the hands of this local administrative committee.

Well, we want to give an example of the type of situations we think would exemplify our argument.

If for example, avocados left Flor — the Florida marketing area and they were of sufficient size to meet the federal regulation but they arrived in California coated with a deadly spray, we believe that California, under its police power would be entitled to inspect those avocados for that deadly spray.

Now, to be sure, our statute which is intended to protect the consumer from receiving immature avocados is not so dramatic.

But we think that that there’s no intention of Congress to prevent the state from exercising this type of protection for its consumers.

Now, on the other hand —

Potter Stewart:

Is there any — is there any evidence or is the argument made that the California avocados are superior to the Florida avocados and that the introduction of the California of the Florida avocados would downgrade the popularity by or there’d be a plummeting off or anything like that?

John Fourt:

No such contention.

Florida avocados are welcome to California.

Potter Stewart:

Well, it seems you opened some questions.

John Fourt:

Well, yes.

I suppose it is.

The parties differ on that but — as a matter of fact, the record will show that the — there is a period of time perhaps when the low point of the California production in which if the Florida avocados can meet our standard, be very welcome, typically welcomed in California.

Byron R. White:

[Inaudible]

John Fourt:

Yes.

Because of the different objectives of the federal regulation and the state regulation that the federal regulation is entitled — has intended to enhance the returns to the growers of Florida.

Byron R. White:

[Inaudible]

John Fourt:

Yes.

Yes, if Congress had enacted a statute which was intended to protect the consumer of avocados then we think that preemption might well occur.

Byron R. White:

[Inaudible]

John Fourt:

Yes, yes.

I need more information.

I want — I need to know if the objective was to protect the grower back home, increase his returns or if the objective was to protect the consumer.

If the objective was to protect the consumer, I would say, yes, preemption —

[Inaudible]

John Fourt:

Yes.

[Inaudible]

John Fourt:

Yes, that is correct.

That would be —

John Fourt:

That is correct.

That would be [Inaudible]

John Fourt:

Yes.

[Inaudible]

John Fourt:

No.

[Inaudible]

John Fourt:

Yes, sir.

I would agree if you —

[Inaudible]

John Fourt:

We think it’s open to question here whether these orders called limitation of shipments deal with maturity.

The — literally when you read them they deal with the flow of avocados to market and indeed the several issues of the federal register show that these regulations were changed through the year.

[Inaudible]

John Fourt:

Yes.

But they’re talking about — I believe what they intended there was to mean the correlation of the supply of agricultural commodity market with the demand for that commodity.

[Inaudible]

John Fourt:

Yes, that’s quite right.

[Inaudible]

John Fourt:

Yes, that is correct.

I unders — I think though that that notwithstanding that they deal with these things that you look to the congressional objective of the statute.

We have different objectives here.

John Fourt:

One is economic for the enhancement of the industry.

Indeed the regulations are controlled by the industry.

Now —

Arthur J. Goldberg:

(Voice Overlap) you are saying that because the Department of Agriculture is saying that, isn’t it so?

John Fourt:

Yes, sir.

Arthur J. Goldberg:

Do you suppose in the record, the decision is Department of Agriculture [Inaudible]

John Fourt:

Yes, sir.

Arthur J. Goldberg:

And your argument [Inaudible] that the Department of Agriculture [Inaudible]

John Fourt:

Yes, that is quite correct.

Arthur J. Goldberg:

And you are to say that [Inaudible] with state regulatory scheme which is based upon other considerations?

John Fourt:

That is correct.

Now if, as we pointed out here, the program is managed — administered at local level by the Florida avocado industry, the program can be terminated by a majority vote or a majority who’s growing a — over half of the volume at any time the marketing program displeases them.

If the local group there in Florida does not want a shipping regulation such as was argued here, they need not make a recommendation and there would be no regulation.

Now, it seems possible that if a local industry group wished to strike down a state law that they did not like, that the technique for them to do would be to form a marketing order and issue some kind of a regulation controlling the flow of their commodity in market.

Now, it maybe a high regulation or low regulation presumably to maximize returns, it would be a low regulation and if the position of handlers is correct here, any regulation by the Secretary of Agriculture, the recommendation of this local committee would preempt the field of regulations.

And not necessarily then would there be any protection for the consumer and we do not imagine that Congress had intended that this type of self-help regulation would be utilized to strike down state statutes which are otherwise within the state police power.

In the closing —

Arthur J. Goldberg:

Is there a word about the more fundamental point that investigates commerce under Interstate Commerce Clause as to whether a state does exclude an agricultural commodity which is not unhealthy by any evidence from this record, which is produced by a state, which is palatable and by only stringent character that all rights [Inaudible] or impairs the interstate commerce under this record?

John Fourt:

On this record —

Arthur J. Goldberg:

Not the marketing regulation.

Let’s talk about the fundamental constitutional issue of whether a great common market as the United States, one state then exclude an agricultural product of another state which is not unhealthy and which is a product, which has [Inaudible] appears palatable crop.

That’s the fundamental point.

John Fourt:

Yes, Mr. Justice Goldberg.

If the factual situation were as you say that avocados were completely excluded, we’d say yes, that is —

Arthur J. Goldberg:

Take the West Indian —

John Fourt:

West Indian varieties, yes.

Arthur J. Goldberg:

Yes, just take that.

That is a type of avocado which matures without 8% oil content.

It is not a bad product.

It is not unhealthy.

Arthur J. Goldberg:

The only argument I’ve heard you make is that it’s not feasible to shipment because of storage.

Suppose the grower decides that they want to ship it by airplane so it can get to California quickly.

Does the Constitution permit California to exclude that product from California?

John Fourt:

First, that are — it’s not the facts here.

Secondly, that would pose a different question.

Arthur J. Goldberg:

Why is it in effect different?

John Fourt:

Yes, because —

Arthur J. Goldberg:

The record shows that the West Indian avocados are good avocados and matures without any 8% oil content, but it is palatable and some people like it or maybe even prefer it than the avocado with higher oil content.

Now, the only fact that the — is in the record is the fact that you said earlier that because they have a short life, they may not be feasible practically to shipment.

Am I misstating the record?

John Fourt:

No, I think that’s correct, but if our state laws intended to protect consumers of such light moment that the Court is going to strike them down on a hypothetical situation.

Let’s wait until they do ship them out by airplane.

It’s unlikely and therefore we think the Court should reach that question when it comes up.

Arthur J. Goldberg:

What would your position be if the short life of the West Indian avocados were not present, let’s assume the [Inaudible]?

John Fourt:

Yes.

Again, a different question would be presented.

We do not know on this record what the oil content is of these West Indian varieties.

There is a vague intimations that they have low oil content and that at such low oil contents, they’re mature, but this record is unsatisfactory and on this record, the situation is hypothetical.

Arthur J. Goldberg:

And this [Inaudible]?

John Fourt:

Yes.

Both because of that and because of the testimony of the one witness was very unsatisfactory and found not to be convincing by the District Court.

Hugo L. Black:

[Inaudible]

John Fourt:

We do not — on this record, we do not know whether the West Indian varieties would be mature at less than 8%.

If that were shown to be the fact, then a different question, a more serious question would be presented.

Hugo L. Black:

Suppose they’re not, how [Inaudible]?

John Fourt:

Yes.

If the West Indian varieties are mature.

Hugo L. Black:

And that – [Inaudible].

John Fourt:

In —

Hugo L. Black:

On the outside, is that what you’re going to say?

John Fourt:

The purple and black in Florida is a very large fruit.

Yes, and those are Western —

Hugo L. Black:

[Inaudible]

John Fourt:

Yes, those are West Indian varieties.

If the answer is that if the — those varieties were mature, then obviously the consumer is protected —

Hugo L. Black:

(Voice Overlap)

John Fourt:

Sir?

Hugo L. Black:

[Inaudible]

John Fourt:

Yes.

No.

Byron R. White:

[Inaudible]

John Fourt:

We think that this is a possibility because it is controlled by the local industry.

Byron R. White:

And the — they have [Inaudible]

John Fourt:

Granted that they need — that might be the case but —

Byron R. White:

[Inaudible]

John Fourt:

I think this is the danger.

The state law is fixed.

It cannot be amended except by the legislature.

These regulations can be amended in 48 hours notice by the recommendation of the local committee and it’s been said that there’s nothing that ripens on avocados like an F.O.B. cash ready.

In closing, we would like to point out that there has been no intervention in this case and no objection made by the Secretary of Agriculture that the California statute has in any way frustrated the objectives of the California — of the Federal Marketing Act of 1936 — 1937.

Thank you.

Earl Warren:

Mr. Ferguson.

[Inaudible]

Isaac E. Ferguson:

Yes, I did sign it.

Yes.

[Inaudible]

Isaac E. Ferguson:

There — oh, yes indeed.

Yes indeed.

If the federal law states certain conditions for funds how — in that, the case where the —

[Inaudible]

Isaac E. Ferguson:

Oh yes, that’s right.

That’s right.

[Inaudible]

Isaac E. Ferguson:

Well there is — oh yes, there is —

[Inaudible]

Isaac E. Ferguson:

That’s right and here it is absolutely complete because it is the only standard applicable to these avocados.

Just a moment about the evidence in this peculiar after trial statement that they were not admitted, repeatedly Your Honors will see that these depositions were admitted.

They were offered and admitted.

And then as Mr. Fourt says, he wanted to — have them read, I never objected to having them read but the judges didn’t want to sit and hear them read.

And the — he said, “We object Your Honor and we respectfully ask permission and request that they’d be read in order that we may make objections to the testimony.

We have a written memorandum prepared outlining objections to each proposed item.

We have objections to many of the answers as being hearsay.”

Then Judge Goodman said, “We will mark the depositions in the evidence and we will reserve ruling on the objections that had been filed when we have had a chance to examine them.”

And Mr. Fourt protested like this, “Thank you very much.”

Then at a later time, at the end of the case, when the Court told us what they wanted in the way of a transcript, Judge Albert said, “You don’t have to reproduce what’s in this record that was before this Court for all these depositions were here before” and it was not my argument that they couldn’t make objections.

They made all of the objections they wanted to.

As far as I was concerned, there was no ruling on the objections, no place.

There is no ruling on the objections and the elementary rule is that if an objection is made and not ruled upon, then it is nothing, the record stands and it’s admitted.

This is repeated several times that these depositions and the exhibits are admitted subject to objections.

This after trial statement is not a ruling on objections.

A typical objection is that the depositions were taken pursuant to depositions — to stipulation were not admissible because the witnesses — it wasn’t shown that they resided more than a hundred miles away from Sacramento.

The depositions were taken in Miami.

Is there any ruling on that objection?

Is there any ruling that any particular thing is hearsay?

Your Honors will look in vain, any place in this record for rulings.

That is why we had no occasion in our brief in this case to say anything about it and it has been pointed out here the Court considered them.

The — and the — one statement is that they considered them arguendo. One statement is — it considered them offers of proof.

I made no offers of proof.

I offered them in evidence.

They were received in evidence and as was pointed out here, even in this post trial statement, it is said they were considered by the Court.

Isaac E. Ferguson:

And then the opinion of the Court, it says, they were assumed to be admissible, all assumed to be admissible and considered arguendo whatever the word arguendo may mean then.

Now, it is admitted over and over again here in the briefs of the other side that the West Indian varieties which have importance as particularly one of them, the — all of them has had sizeable production and could have a great deal more.

And it would come at a time when it would have a very favorable market in California in September and October when California avocados have practically disappeared from the market.

That they never attain 8% oil content, that’s admitted here.

Then they argued the merchantability and when His Honor put the question what is — what would be the case if they were delivered by airplane, actually, the argument is suspicious.

The practicability, it depends on speed of transportation and refrigeration, both of which have advanced greatly from year to year.

And it’s a merchant’s question to answer whether they can be successfully marketed in California not a judicial question and many other things is a grossly distorted statement here about Dr. Harding’s testimony about oil content and that some of them have attained 20% during the shipping season and he argued nothing — he stated nothing of the sort.

There are various other things but I see a red light here and I thank Your Honors again.

Earl Warren:

Very well.