Huron Portland Cement Company v. City of Detroit – Oral Argument – February 29, 1960 (Part 2)

Media for Huron Portland Cement Company v. City of Detroit

Audio Transcription for Oral Argument – February 29, 1960 (Part 1) in Huron Portland Cement Company v. City of Detroit

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Alfred E. Lindbloom:

— claiming that the license in and of itself was (Inaudible) although it is — it is some evidence of — of preemption.

Congress, in respect to steamships and in respect to vessels on navigable waters, it passed very elaborate regulations as this Court said in Kelly versus Washington —

Felix Frankfurter:

(Inaudible)

Alfred E. Lindbloom:

— you said provisions with respect —

Felix Frankfurter:

(Inaudible)

Alfred E. Lindbloom:

— the steam vessels are extremely detailed.

And they are.

They provide for the inspection of the hull, the lifeboats, the equipment on the vessels not only the boilers, but all the other equipment and specify the number of crew and so many seamen, so many pilots and so many mates and so on.

They’re extremely detailed and it is my claim that by those acts, Congress has preempted the field that is that the control, the inspection and approval of steamships.

Therefore, the city —

From what point of view?

Alfred E. Lindbloom:

I beg your pardon?

From what point of view?

Alfred E. Lindbloom:

I — well, I mean I would probably have to say safety.

Safety.

Alfred E. Lindbloom:

But I don’t think that the point of view makes any difference if they preempted — if they preempted the entire field of — of inspecting and approving vessels whether — whether — I don’t think it makes any difference what point of view you referred to as this Court said in Napier versus Atlantic Coast Guards, they say hoarding because the standard set by — by the Commission, that’s the ICC, must prevail.

Requirements of the State are precluded however commendable or however different their purpose.

So, it’s my contention that Congress has preempted the field and therefore, the city cannot come along and say, “Here, you got — your — your equipment is subject to inspection and approval by us,” when it’s already been inspected and approved by the Coast Guard.

And as to the penalty provisions, I claim that inasmuch as the penalty provisions can only be — can only be complied with by changing your equipment, therefore, they are specifying the kind of equipment that we may — we must use.

In other words, we can only use that equipment which complies with the Detroit ordinance.

And keep — bearing in mind that Congress has already preempted the field of the control of — of vessels and their equipment.

Felix Frankfurter:

Where — where is the license of the Coast Guard?

Is that printed in the record?

Alfred E. Lindbloom:

Yes.

That’s that photo stamp that’s attached to opposite page — you have it in your hand.

Felix Frankfurter:

That’s (Inaudible) is it?

Alfred E. Lindbloom:

Oh, the Coast Guard?

I’m sorry.

The Coast Guard starts on page 38.

Felix Frankfurter:

38.

Alfred E. Lindbloom:

And it — for the next four pages — or next three pages.

Felix Frankfurter:

How do they say — do they merely certify that your equipment is safe or do they specifically certify that you may use this vessel, which?

Alfred E. Lindbloom:

They say — they don’t say it’s safe.

Felix Frankfurter:

Where is it?

Alfred E. Lindbloom:

Down in the bottom of page 39, they say the said vessel is permitted to be navigated for one year on the Great Lakes.

Felix Frankfurter:

In other words, they — they — whatever this is worth, it’s an authorization for the vessel and not a certification of its safety.

Alfred E. Lindbloom:

That’s right.

And it is my contention that the inspection provisions, in respect to vessels, are as broad as the boiler inspection for the railroads.

And this Court in Napier versus Atlantic Coast Guard — Atlantic Coast Line there, two States came along and wanted some additional equipment put on, put on the — the locomotives.

This automatic door and a cabin curtain, not changing the equipment, they’re putting on something addition, something which the Interstate Commerce Commission had not ordered.

And this Court said that the Congress by the Boiler Inspection Act had preempted the field.

I claim that same reasoning is true here.

And therefore, those two state statutes were invalid.

Your preemption — your preemption argument goes to the extent of saying that every time that the Coast Guard licenses a vessel to operate in navigable waters, that means the State is removed from any kind of local police control.

Alfred E. Lindbloom:

No.

No, it doesn’t.

No, no, Your Honor.

The point I’m trying to make — again, making myself clear yet.

If — if you can comply with the local police regulations with the vessel as licensed, obviously, they’d have to comply with it.

William O. Douglas:

For example, what you — what you point — I suppose, your real point of emphasis is on page 41 of the record where the Coast Guard officer specifies the type of boilers that you have for use and the type of fuel that you have for use.

Alfred E. Lindbloom:

Yes, yes.

They know that.

They have approved that.

Felix Frankfurter:

But you’re different as to — which is different from requirement of speed for safety, because although this local law may cut down your speed, you still can use it.

Alfred E. Lindbloom:

We can still use our equipment.

Felix Frankfurter:

And you don’t say you may use the vessel that can only — that you may use this vessel at any speed.

They say you may use this vessel.

Alfred E. Lindbloom:

That’s right.(Voice Overlap) —

Earl Warren:

How about — how about the — the diesel — big diesel trucks?

Certainly, the — the local communities and the States can have something to say about the smoke they emit and what’s the difference between that and — and the situation that Justice Frankfurter has just spoken to you about?

Alfred E. Lindbloom:

Well, I think there’s this distinction as a — as a point — I mean, I think, there’s this distinction.

This Court has — has granted the States much greater leeway in the control of the speed and the safety on highways and you — you frankly, just about made an exception as to — to highways and Railway Express versus New York.

Earl Warren:

No, but I — I don’t think that’s — that isn’t the point that I’m trying to make.

This — this big diesel trucks, if they don’t have something on the — on their exhaust, emit this — this smoke as they go along in the highway to — to the — the detriment of traffic and to create smog conditions and other — other things of that kind.

And — and probably they can’t operate without doing that, unless they put some attachment on their — on their truck.

But if they do put in — an attachment on there, they can diffuse that smoke, so that it doesn’t create those hazardous conditions.

Now, what is the difference between — if — if I’m correct in that, what is the difference between compelling him to put something — some equipment on their automobile to control that — that smoke on the one hand then on the other hand, requiring you to do somewhat similar thing with your boilers —

Alfred E. Lindbloom:

No —

Earl Warren:

— to accomplish the same purpose.

Alfred E. Lindbloom:

Well, it’s more than just putting something on.

It’s putting in an entirely different boiler.

Earl Warren:

Well, it’s a question — maybe a question of degree, but we’re going here to power — to the question of whether the Federal Government has preempted this field and whether the State has any power at all.

Alfred E. Lindbloom:

I think — I think there’s another answer to Your Honor’s question that has slipped me for a moment.

I think this Court has found under the — under the Motor Carrier Act that Congress has not preempted the field as to, you know, size, roads and — and control of the highway.

I think they’ve expressly left that to the State.

I think that’s your distinction.

Earl Warren:

But there is nothing in — nothing in this Act as you have said — you have told us that specifically shows that they’ve covered this situation either.

And there’s nothing in their inspection practices or in their regulations that show that they — they have any concern with this.

And why doesn’t that bear on the question of preemption in the same way as — as that you have described?

Alfred E. Lindbloom:

Well, no.

No, because as to the motor vehicle, I think Congress expressly said we are not, we are not taking this — the — we’re not taking the control — control of the highways away from the local authorities, the control of — of the use of the highways.

Charles E. Whittaker:

I think this is good, isn’t it, that the Congress decided about it, but authorized the Commissioner on transport regulations and the Commission has never passed any such (Voice Overlap) —

Alfred E. Lindbloom:

That’s probably it.

I’ve —

Charles E. Whittaker:

We have just the matter (Inaudible)

Alfred E. Lindbloom:

And that is different from here.I mean, here, I grant you — I grant you the — the federal inspection law, do not use the word, “smoke.”

Could I ask you this question, sir, was there any evidence in the record that in order to equip the vessel, so as to comply with the smoke ordinance, that by so equipping the vessel that the — that kind of equipment will run afoul with some federal regulation as to the kind of equipment the vessel —

Alfred E. Lindbloom:

No.

— must have?

Alfred E. Lindbloom:

No.

Nothing of that kind.

Alfred E. Lindbloom:

No, no.

Charles E. Whittaker:

Did I understand you, if I may ask again.

In answer to Mr. Justice Douglas’ question, that page 21 specifies the type of boiler and fuel that you must use?

Alfred E. Lindbloom:

No, that we may — I think here — I think he said, “may.”

Charles E. Whittaker:

And the words with “may?”

Alfred E. Lindbloom:

Oh, yes.

I don’t think there is any requirement, but then, we have to — but they — well, I mean, yes and no.

What I mean is to comply with these particular license, we have to use this — this vessel because that’s the one that’s approved.

I mean this boiler, because that’s the one that’s approved.

William O. Douglas:

If you wanted to put an all — an oil burner and you get to that — get a new certificate.

Alfred E. Lindbloom:

That’s right.

I mean this particular certificate that we — we have to use.

Charles E. Whittaker:

In that sense, that is non-applicable?

Alfred E. Lindbloom:

Yes.

In that sense, yes, but I — there is no doubt, we could get another certificate to be put on an oil burner.

I’m not (Inaudible) to mislead you.

Now —

Charles E. Whittaker:

As your point — and my point is that as I understand it, that you would have this certificate to get license for a period of a year.

And your argument then follows that you don’t have to get another so long as — as this one’s good.

Alfred E. Lindbloom:

That’s — that’s as far as the license argument go.

I’d say yes.

I mean, I’m arguing two things.

One, the — in that — the license per se and also the preemption that the license is the final step in the — in the inspection and the approval of all the equipment and therefore, Congress has preempted the entire field of vessels and their equipment.

Do I make myself clear?

Felix Frankfurter:

They’re not two steps, if I may say so.

It’s because the license — your argument is, is because the license came out the federal statute and the license has particularity as to what you’re authorized to do, that therefore, there is preemption.

It isn’t that you have a license and preemption.

Alfred E. Lindbloom:

Well, I would beg —

Felix Frankfurter:

Preemption derives from the license, unless the statute itself, preempts.

Alfred E. Lindbloom:

Well, I think the — I think the statute itself preempts by the completeness of its control of the vessels and their equipment.

Felix Frankfurter:

Are you sure — are you sure that the Coast Guard wouldn’t, in the license, say subject to the regulations, if there were regulations and whatever health measures, the city — the — the port of arrival may impose, couldn’t they do that?

Alfred E. Lindbloom:

There’s nothing in the statute that authorizes them —

Felix Frankfurter:

There’s nothing that denies it, but couldn’t they do that?

Alfred E. Lindbloom:

Well, I mean —

Felix Frankfurter:

Anyhow, we haven’t got that case here.

Alfred E. Lindbloom:

No, I think — I think that —

Felix Frankfurter:

We’d have a very different case, I think.

Alfred E. Lindbloom:

Yes.

I think, you only have the right to clear what — what statute authorizes them to —

Felix Frankfurter:

Yes, but if statute doesn’t — what other pieces of writing didn’t [Laughs] — all includes this.

Alfred E. Lindbloom:

Now, as I say in the — getting back to this Napier case and refers to the Atlantic Coast Lines, there, the boiler — the Boiler Act, it was held — preempted the appeal.

Now, to get to this license for just one minute —

Charles E. Whittaker:

May I ask you right on that point, isn’t that the Boiler Instruction Act, more specific to the question involved in the Napier case, that is that law which distract in pertinent instruction by the Coast Guard as applied to inland vessels?

Alfred E. Lindbloom:

I’m not quite sure.

I mean, it doesn’t apply — it is limited to inland vessels.

Charles E. Whittaker:

No.

But was not the Boiler Inspection Act involves, I understand, the Navy?

Alfred E. Lindbloom:

Yes, Your Honor.

Charles E. Whittaker:

As to what must be contained on that engine?

Alfred E. Lindbloom:

Yes.

Charles E. Whittaker:

And the State sought to require something efficient?

Alfred E. Lindbloom:

I don’t believe so.

I think that case — ICC, the right to specify what should be on the —

Charles E. Whittaker:

And they haven’t done so.

Alfred E. Lindbloom:

And they haven’t done so.

Charles E. Whittaker:

And not that they have not — not —

Alfred E. Lindbloom:

Not done so.

Charles E. Whittaker:

Not done so.

Alfred E. Lindbloom:

That’s the way I understand it.

Alfred E. Lindbloom:

Now, getting to this license business for just a minute, as I said earlier, in this — in this Service Storage and Transfer case, there — there the storage company was charged with just carrying 3% of its freight in intrastate and they were fined $3500, and this Court held that to have sustained, that fine would be tantamount to a partial cancelation of the license.

It seems to me that language is very applicable here and in the Castle versus Hayes Freight Line case, there — there, the freight line had been overloading in violation of the state law and there was no doubt that the State had the right to pass such a law and they barred — the State barred the — the carrier from use of the highway.

And this Court said, “You couldn’t do that because they have a federal license certificate and they have the right to use the highway even though they have violated the state law.”

And in both of those cases, the carrier could comply with the state law with the equipment of which he has had.

One case, it wouldn’t have to carry freight from Virginia to Virginia and the other one, it didn’t have to overload.

But here, we have — here we have a different thing and it seems to me that a little bit of language from Hill versus Florida is — is rather applicable to our situation here.

There you — there, this Court said that “But here, the agent has been enjoined and if the Florida law is valid, he could be found guilty of a contempt of doing that which the act of Congress permits him to do.

Here, we could be found guilty of violating the — violating the smoke ordinance when Congress has permitted us to do so.

Felix Frankfurter:

The — in Hill against Florida, the act of Congress couldn’t say that someone who’s been convicted of a crime can’t be a union official, did it?

Alfred E. Lindbloom:

No.

Or you what — this Court held that that was the — the —

Felix Frankfurter:

This far —

Alfred E. Lindbloom:

— freight and they implied, yes.

But here, we have — here, we have a direct statement that this vessel maybe used.

Then, of course, my second argument —

Felix Frankfurter:

Will on that act —

Charles E. Whittaker:

Would the State — would the City of Detroit have the right by ordinance to exclude this licensed vessel from carrying deceased persons in the city limits?

Alfred E. Lindbloom:

Well, I would assume so, yes.

Charles E. Whittaker:

Well then, that would be requiring you change of structure as you answered in answer to my argument about going slower —

Alfred E. Lindbloom:

That’s right.

Charles E. Whittaker:

Now then, what’s the difference between that power and the power to stop the spread of gases and smokes that might cause disease?

Alfred E. Lindbloom:

Well, the — the whole difference is — I mean, I’m claiming that Congress and by the — by the vessel inspection acts themselves and also by the license, have preempted the field to the extent of excluding the city.

That’s my argument.

Felix Frankfurter:

But you given earlier the practical difference.

You can slow a vessel and it can still go.

Alfred E. Lindbloom:

Yes.

Felix Frankfurter:

But this vessel, as equipped, can’t go —

Alfred E. Lindbloom:

That’s right.

Felix Frankfurter:

— if you obey the ordinance.

Alfred E. Lindbloom:

That’s right.

Alfred E. Lindbloom:

And my second argument is that the Commerce Clause in and of itself, preempts the fields where uniformity is necessary.

I claim, I’m talking about uniformity of equipment.

The city and I differ as to what should be uniformed.

They talk about uniformity of smoke control.

I — I grant you that that doesn’t require a uniform treatment.

But it seems to me that the equipment on the vessels must be uniformed and I point to Morgan versus Virginia and Southern Pacific versus Arizona, Kelly versus Washington and Friedman versus New York.

And it seems to me that those cases all hold that where — where your equipment is necessary, in the constitutional sense, that is useful, for the purpose for which it is intended that requires uniformity and therefore, the city is precluded from passing an ordinance which would make us use something different — or — or precludes the city from passing an ordinance governing that — the equipment.

Earl Warren:

Mr. Hathaway, you may proceed.

John F. Hathaway:

Mr. Chief Justice, if the Court please.

The City of Detroit adopted the smoke ordinance in question about 13 years ago and approximately a little of four years ago, issued the violation that is in question in here and pursuant to the provisions of the ordinance in question here.

The violation that we issued was a violation that stated that the appellant, in this case, issued smoke in violation in Section 2. 2A, which limits the emission of smoke in — to a certain density.

The provision is governed pursuant to a Ringelmann Chart which provides that you cannot issue — smoke cannot be emitted to any greater density than would be showing at a No. 2 Ringelmann chart.

This is a standard form of rate of measuring smoke for the purposes of a Smoke Abatement Code and it’s probably in effect in all 48 States and probably on every industrial community in the country.

Now, after we issued the violation, the plaintiff went into the Circuit Court.

Plaintiff or appellant here, went into the Circuit Court of the County of Wayne and asked for an injunction to restrain us from enforcing the ordinances as to him, claiming that he was engaged in interstate commerce.

That is ship had been approved by Coast Guard pursuant to the federal regulations and that he could be prosecuted, but only for the negligent operation of that equipment, combustion equipment, which is — the smoke the issue is from.

Now Circuit Court of the County of Wayne determined only one question.

They determined that the ordinance was a reasonable regulation and that the city had the right to issue that violation, in question, and prohibit the emission of dense smoke.

And this was affirmed by the Supreme Court of the State of Michigan.

Now, the appellant is before this Court arguing that question of preemption.

I think that the general — when you consider the general rules of preemption, this Court has determined that when there’s an actual conflict shown or there is a repugnancy, or if Congress has manifested the clear intent to regulate the field that you’re talking about, then the cities or states do have the right to adopt the regulation.

Now, first of all, when you consider the regulation in question and the federal regulation, I don’t think Congress concerned themselves in any way with the emission of smoke and that would be — I mean, there’s no provision within that regulation.

The original regulation, in answer to a question here, was adopted in 1871.

In this regulation, from checking the various sections of that code, only goes to the question of the equipment of that ship.

They make a thorough inspection of that ship from the hull to the combustion equipment, to the lifeboats and every other boat, only for the purpose to determine that that boat can leave the dock and travel in safety.

And for no other purpose, this was the intent of Congress.

Felix Frankfurter:

How do you know that?

John F. Hathaway:

Well —

Felix Frankfurter:

Did they tell you?

Did they tell me?

John F. Hathaway:

I would say —

Felix Frankfurter:

I’m not saying you’re not right.

But I just wondered how you know what they intended (Voice Overlap) —

John F. Hathaway:

Well —

Felix Frankfurter:

— when they don’t intend it.

John F. Hathaway:

I do — by — by reading those reports, the United States Code Annotated, they point out the information that was put from the congressional reports in there.

Where they —

Felix Frankfurter:

Do they say — do they say —

John F. Hathaway:

— state that just because to limit the disaster at sea.

Felix Frankfurter:

Well that — that —

John F. Hathaway:

And they point out, when they amended them this year, that this was the purpose and the purpose of further amendments of code has been to limit disaster at sea and (Voice Overlap) —

Felix Frankfurter:

But this Court has held several times that although an Act of Congress does not cover the subject matter of the statement legislation, Congress meant that to be free of anything, but federal legislation and in the (Inaudible) the reason they found it, it doesn’t mean to regulate the boats.

You’ve said that again and again.

You don’t have to have — that you can’t — that the State isn’t free to regulate as to subject matters not included within, the legislation of Congress has that.

This Court has said that again and again.

If the Congress intended, could anyone fairly say from reading the legislation or the legislative history that (Inaudible) not to prohibit (Inaudible) of becoming union officials and yet this Court held that is to be implied.

I didn’t mean to —

John F. Hathaway:

No attempt —

Felix Frankfurter:

(Inaudible) all I can say is that these are the only set of questions for both or you suggest the Court —

John F. Hathaway:

No.

Felix Frankfurter:

Does that merely infer (Inaudible) but on this — also the local (Inaudible) an actual grant of (Inaudible) solution.

Earl Warren:

Mr. Hathaway, to deal with a legislative history of (Inaudible) in your — in your brief.

John F. Hathaway:

Now, not as to the (Inaudible) question, merely, but the legislators to ever deal that was — it was an act of Congress passed in 1955.

Which an appropriation statute for that purpose (Inaudible) funds (Inaudible) various communities (Inaudible) —

(Inaudible)

John F. Hathaway:

Second District would not be able to comply with our ordinance.

Felix Frankfurter:

60 did you say?

John F. Hathaway:

(Inaudible)

Felix Frankfurter:

60%

John F. Hathaway:

Well, no.

John F. Hathaway:

I’m —

Felix Frankfurter:

Well I’m sorry (Voice Overlap) —

John F. Hathaway:

It’s a rough guess.

Felix Frankfurter:

The size of a figure.

John F. Hathaway:

Yes, I think.

Would not be able to comply.

John F. Hathaway:

Under all conditions.

Well, I don’t understand that.

John F. Hathaway:

Well, the steamship in question, here, could proceed through the Detroit River and comply with our ordinance.

However, the hand-fired Scotch marine boiler that (Inaudible) and when they’re in the (Inaudible) question here, they had been pumping this black smoke out for approximately nine minutes.

Now what — what’s the smell?

John F. Hathaway:

That — to maintain their continued pressure to run a self-unloader — the self-unloader is — let me see, well, it’s a conveyor type system that is put upon the ship to dip the equipment, whatever it is — like this, on this particular ship, get cement out of the car — out of the cargo hauls and put it up unto the shore at — at some point.

This is —

Well, what’s — what is the other kind of equipment in contrast to the Scotch boiler that would have to be —

John F. Hathaway:

Well —

— installed here to meet —

John F. Hathaway:

It does not have to change the boiler.

Yes.

John F. Hathaway:

It continue to use the boiler in question here, but he wouldn’t have to install like an under — underfeed stoker.

All right.

Now, are there —

John F. Hathaway:

(Voice Overlap) —

— are there — are there other ships that have the underfeed stoker that have been licensed by the Federal Government to operate?

John F. Hathaway:

Oh, yes.

I mean —

There are?

John F. Hathaway:

I think, in the record would show that there was some steam liner and testified that he’d installed it on approximately 28 ships in the past three or four years at the time of the testimony.

And those have been federally licensed ships?

John F. Hathaway:

Oh, yes.

Oh, there’s no question I think that Mr. Lindbloom would agree that he could change his equipment anytime he wants.

John F. Hathaway:

I mean — and they would be approved by the Coast Guard.

And, of course, it’s — it involves some —

John F. Hathaway:

I mean to —

— expense, naturally.

John F. Hathaway:

Yes, that’s true.

Hugo L. Black:

What would it be?

John F. Hathaway:

Well, they testified that at the trial and I think it was — uncontroverted that approximately somewhere between $75,000 and $100,000.

Felix Frankfurter:

Mr. —

Earl Warren:

How big are these ships?

John F. Hathaway:

Well the ship’s — I’m not so sure though, the exact length of the ship (Voice Overlap) —

Earl Warren:

Three to 100 feet.

John F. Hathaway:

Three to 100 feet, the ships go on the Great Lakes to anywhere from 250 feet to 600 feet.

Charles E. Whittaker:

(Inaudible)

John F. Hathaway:

Not —

Charles E. Whittaker:

(Inaudible)

John F. Hathaway:

No, that is not true.

I said this is where he would be sure to violate the ordinance when you — the operating the self-unloader.

The violation, of course, when the — when they talk about the Scotch marine boilers such as he has here, it’s the (Inaudible) aboard the ship which throw the coal in with shovels and this is what — where you get your incomplete combustion is when, which they call green coal hits the top of the — or the hot coals that the heat that is generated there carries it up the flue or up the stack, carries small particles which — which I indicate, are black smoke.

The underfeed stoker brings in the coal in from the bottom and before it reaches the top of it, more complete combustion.

Felix Frankfurter:

Mr. Hathaway, could the Coast Guard decline to issue a certificate for a ship or the vessel equipped that this one was with the Scotch.

It is Scotch because they’re (Inaudible)

John F. Hathaway:

Well, I think they were — I think they were invented in Scotland, it wouldn’t —

Felix Frankfurter:

But could they — could they decline to issue a certificate, a license for a vessel thus equipped —

John F. Hathaway:

(Voice Overlap) —

Felix Frankfurter:

— Coast Guard?

John F. Hathaway:

The Coast Guard.

No, I think they can answer your question two ways that the legal district officer for the Coast Guard states, no.

They have no control over the question of emission and smoke.

I mean, it is not whether — I mean that’s —

Earl Warren:

Who says that —

John F. Hathaway:

(Voice Overlap) his opinion.

Earl Warren:

(Voice Overlap) effort.

John F. Hathaway:

Well, it — that’s the legal district officer — legal Coast Guard district officer.

Earl Warren:

Yes.

John F. Hathaway:

And he claims that they have no method of regulating the emission of smoke.

Felix Frankfurter:

Where?

Where is that?

John F. Hathaway:

That is located in the appendix?

Where does that that appear?

John F. Hathaway:

It’s in the — it’s on page 5 (b) of the appellees’ appendix.

Felix Frankfurter:

Oh, yes, just a second.

Could I ask you a question of whether — you say 60% or roughly — roughly 60% of these ships are not equipped to comply with the — with the Detroit ordinance, that —

John F. Hathaway:

Well, no.

When I’d say 60%, I don’t — not all — I’m talking about the whole fleet, marine fleet.

Yes.

John F. Hathaway:

Both Canadian and American —

Yes.

John F. Hathaway:

— that operates on the Great Lakes.

Now, many of these ships are canalers that do not come into our area.

What percentage of those ships that come into our area, I have no way of telling.

And in the records, it’s passengers — I mean it’s approximately 20,000 passengers a year, through the Detroit River.

Well, what are you trying to get at is it is — is it a — you — you have trouble with the enforcement of this ordinance?

Do you enforce it are you —

John F. Hathaway:

Yes.

(Voice Overlap) about it or what?

John F. Hathaway:

Well — I mean, a smoke ordinance is not there.

We don’t just issue tickets.

I mean, primarily, what you do is issue notices of violation first.

I mean, because there are many problems and being a local regulation with our own people, I mean, you’re forcing people to spend a million dollars in the City of Detroit to change some of their equipment.

And, I think in this County of Los Angeles, the oil industry has spent probably $40 million changing certain equipment.

Well, what governs your — what — what governs you in issuing —

John F. Hathaway:

Well —

— this notice of the violation?

John F. Hathaway:

Well, that could be — certainly, this notices of violation, we then try to arrange conferences between the people that own the various equipment —

And —

John F. Hathaway:

— and just ask them, if they would be able to do anything.

Well, and we start out from that point and they start changing their equipment or doing whatever is necessary to try to bring the smoke down to where it could comply with our ordinance.

And then —

And in the most instances, do you work it out?

John F. Hathaway:

In most cases, yes.

Now, as to the regulation of vessels, it’s very difficult for the City of Detroit to enforce this ordinance for the simple reason.

When a vessel is on the Detroit River, you can never tell without a range finder or unless it’s in a specific location whether or not the — the ship is on the American side or the Canadian side.

Now, we do not have any jurisdiction on the Canadian side of the river and it would be up to the Canadian Government to enforce their regulations as to air pollution on that side.

There’s only a certain specific location in the Detroit River although a ship might proceed the whole length of the river, emitting this smoke.

If they are emitting smoke at this one specific location, when we know for sure that they are on the Detroit side of the river, and we know this because the water in the Canadian side at this point is so shallow that they could not proceed through there.

We then give them a ticket.

And we don’t always prosecute on those tickets.

If they would come into our bureau and put themselves to that bureau before, to discuss the matter to see what could be done if directed — this — this matter by continuing violations.

Because we know that they do have a problem and we do give them time and that we like the railroads in changing over from steam to diesel and I’m speaking specifically of the railroads that do the switching within the City of Detroit, we give them a period of approximately eight years we agreed that they would take eight years to change their equipment.

Because I mean, you just can’t win it.

Have railroad pull 40 to 50 switch engines out of business and leave them with nothing to operate with, so, I mean that’s it’s — it’s — make — have to make adaptation of the ordinance.

Charles E. Whittaker:

I’m caused to wonder how consistent you have been in — in applying this ordinance to the shipowners, if 60% of them still are not able, under certain conditions, to apply — to comply.

John F. Hathaway:

Well, this example, Pittsburgh Steamship Company has approximately 20 ships and about 10 of them comply — when I talk — when you talk about comply — I mean, by — by that we mean, able to comply with our emission standards and our code.

They say they — they will change the other ships.

The rest of the fleet will change.

I mean, we’re having this problem.

Many will change, if the others would change, but nobody wants to spend their money unless the other ships in the same classification will spend the money.

Charles E. Whittaker:

So, you’re arguing that starts somewhere.

John F. Hathaway:

Well — well, yes.

It’s kind of a two-headed —

How many States do you know have these smoke ordinances at this time?

John F. Hathaway:

Well, I’m going to talk about first — I think almost every State has — some of the cities within almost every State in the union have this smoke ordinance.

Well, I’m (Inaudible)

John F. Hathaway:

Now, let’s talk about navigation.

Navigation.

John F. Hathaway:

Well, I know that the City of New York has, the City of New Orleans, the County and City of Los Angeles, and then they have in San Francisco, they have what they call a Bay Area ordinance.

It’s an application of probably six counties which was adopted pursuant to a state regulation out there.

Now, these, l know, for sure because we worked with these people and the City of New Orleans, I know, from the opinion of the Attorney General of the State of Michigan where he contacted the district legal officer of the United States Coast Guard where he stated about the — the problems in the City of New Orleans in enforcing their ordinances to ships.

Are they — they collected, in your brief, the references to the other ordinance?

John F. Hathaway:

No, because I didn’t — probably it wasn’t exactly —

William O. Douglas:

What did you say —

John F. Hathaway:

— contained within the record.

Pardon?

William O. Douglas:

Why did you say to the appellant’s argument that refers on page 42 of his brief in the New York (Inaudible) four of these — these ship — the question that is applied to the Court and then two weeks later, adopted New York, might rather follow what New York did.

John F. Hathaway:

Yes, this helped.

William O. Douglas:

Is that true?

John F. Hathaway:

This is true.

You — any equipment can smoke.

You can take the finest oil burning equipment and if you don’t operate it right, in other words you have to have a mixture of oxygen and the fluid that you’re burning of just the proper mixture.

I mean, the United States Navy could take their whole fleet from — I think, from San Diego to the harbors of Japan and never allow any smoke to be seen on the horizon.

I mean, this is not an impossible situation.

But, if you come in and something goes wrong with the equipment, then they’re liable to smoke or if it’s operated carelessly, it would smoke.

Now, in the — he points out about the Queen Mary.

William O. Douglas:

Yes.

John F. Hathaway:

As this one.

Now, in that case, what happened there, they point out that it — at least the Supreme Court of New York did that this steamship was not immune from prosecution.

They could be prosecuted, but the lower court did not allow this — the Queen Mary to — to interject a defense that at the time that the smoke was emitted, some equipment had been broken down or a situation existed where they could do nothing but smoke.

I mean, that seems to be reasonable.

William O. Douglas:

All — all the ship in — of ours here in Detroit installs in the underfeed stoker, then goes to New York, would it be subject to prosecution in New York?

John F. Hathaway:

No, it could comply.

John F. Hathaway:

There is not any regulation that I know of that is more stringent than the No.2 Ringelmann requirement, as — as set forth in our ordinance.

A little — I’ve heard testimonies that there was but, I don’t know of any ordinance.

Earl Warren:

In other words, Mr. —

John F. Hathaway:

(Voice Overlap) —

Earl Warren:

Oh, pardon me.

William O. Douglas:

There is some suggestion in this — in this record that — that you can — you can spend his 10 or 20 or whatever thousand dollars if — to comply with — with Detroit to enter into another harbor, he might — he might be in trouble there.

John F. Hathaway:

Well —

William O. Douglas:

And I think the reference was to the underfeed stoker, but I’m not sure.

John F. Hathaway:

Yes.

But my explanation for that is, let’s assume for the sake of argument that an — a city adopted a more stringent regulation that could not be complied with, we’ll say, with an underfeed stoker.

If it could not be complied with an underfeed stoker, I don’t think it can be applied within the boiler either.

I don’t think.

This I’m not too sure.

However, if that ordinance that was reasonable, as to that community, for the necessary — and necessary for the health of those citizens, I think that that type of regulation should be more stringent.

Maybe you would have to change this equipment again.

In the City of Los Angeles, they have developed an ordinance which goes beyond almost anything.

They still provide for this No. 2 Ringelmann.

It’s the same type of density.

But what they have done, they have provided for what they call an alert system where they — as that smog in that area continues to get thicker, they will then notify certain people and they will the announcements on radios and other types of publications to request that people will quit driving.

After they go through so many alert systems and when they reach the final system, they provide for a notice to the governor and then the governor — this is what it says, but in effect, it amounts to like martial law.

Or they’re going to trucks off the street and the automobiles and people will be refused permission to drive until that smog has either raised (Inaudible) that he’s presented here — the steamships could go into the harbors at Los Angeles and while they were carrying people to the hospital, he would be able to say, “We’re awfully sorry about — we’re going to have to continue the smoke.”

No, I don’t think that the Commerce Clause was intended to be anything more than that there would be for the general welfare of all the people of the country.

In other words, the Commerce Clause, I think, should be interpreted that it benefits all of us and that it would — and there should be no barriers put up to stop the free flow of commerce.

But I don’t think it should be turned around and say, “Well, while it’s benefiting certain people, the others must all suffer a detriment to their health.”

I don’t think that the Commerce Clause has provided that we can protect the concrete on — on our streets.

We can’t protect their lungs in this type of contamination and air pollution.

Earl Warren:

Well, Mr. Hathaway, last — in our last term, we had a highway case where we struck down a law of the State of — of Illinois under the Commerce Clause and in that case, the State of Illinois required certain equipment on trucks that flaps on them for rainy weather, for bad weather.

Now, the — the contention was — contention was made on the part of those who were attacking the ordinance that if they complied with this Illinois law as soon as they got over into — into Arkansas, that that equipment would be illegal and that because of that, it was — it would be a burden on commerce.

Now, do you have anything of that kind in this — in this case?

If these people complied with the Detroit City ordinance, would that very compliance with your Detroit ordinance make this illegal in any part of the United States, so far as you know it?

John F. Hathaway:

Oh, no.

Earl Warren:

Well then that —

John F. Hathaway:

No, I mean, our ordinance —

Earl Warren:

I don’t — I don’t argue with that.

John F. Hathaway:

No.

Earl Warren:

I just —

John F. Hathaway:

Our ordinance sets up a particular standard of emissions and which, under certain conditions, they can emit more smoke or less smoke at a given time depending on what you are doing at that time.

Almost every — they couldn’t — if he lessens his — the output of the smoke, he could not then be in violation of another community, because, I mean, that would be their purpose, too.

The only purpose of any regulation is to limit the emission of smoke.

And I mean, if you — if I — if the City of Detroit is instrumental in making the instrument then our state commerce emit less smoke, it could not necessarily be in violation of another community.

Felix Frankfurter:

He may — he may lessen that efficiently for Detroit.

But you indicated a minute ago that Los Angeles has the steepest standards made the equipment which would lessen it sufficiently with Detroit, not be so — not be potentially sufficient to lessen that for Los Angeles.

John F. Hathaway:

That isn’t exactly what I said.

But let’s assume that that laws — no —

Felix Frankfurter:

Directing on people.

John F. Hathaway:

Oh, I said that —

Felix Frankfurter:

I thought you said that (Voice Overlap) —

John F. Hathaway:

The — the emissions —

Felix Frankfurter:

(Voice Overlap) —

John F. Hathaway:

The emission standards in both cities are the same.

However, I said that the County of Los Angeles has done more things —

Felix Frankfurter:

Has done more —

John F. Hathaway:

— more things in their ordinance to where they will control not the emission standard, but to the elimination of any type of instrumental that would emit smoke, under certain smog conditions.

Felix Frankfurter:

Well, anyhow, I’m — I’m sorry to have misunderstood you.

John F. Hathaway:

But assume —

Felix Frankfurter:

But could they — could they put in an instrument or an equipment that would satisfy the Detroit and yet, may not be adequate to satisfy some other cities?

John F. Hathaway:

Well —

Felix Frankfurter:

I’m just asking I’m (Voice Overlap) —

John F. Hathaway:

But I think —

Felix Frankfurter:

(Voice overlap) about that.

John F. Hathaway:

I think that situation could eventually exist.

But I don’t think that we — we should declare this ordinance unconstitutional, because of a hypothetical situation which does — which the record —

Felix Frankfurter:

(Voice Overlap) —

John F. Hathaway:

— doesn’t show, now.

Felix Frankfurter:

It may bear — it may bear on — it may bear on whether Congress left the various navigations cities — navigable cities to which come navigation — to which come navigation free to make their individual regulation.

It bears on that question, not on the Commerce Clause as such, but on the fact that Congress didn’t leave it to the potentiality of the Commerce Clause.

There’s a potential basis for adjudication, but that has passed specific legislation and authorized the granting of a specific license which is the immediate part.

I don’t think the Commerce Clause is —

John F. Hathaway:

No —

Felix Frankfurter:

— in my point of view, was argued.

John F. Hathaway:

No, but I think in — let’s — in considering the statute in question, the federal regulation — I mean the license and then none of it — that — but the license is just the reflection that the statute has been — complied with.

Felix Frankfurter:

I know, but its unqualified license that you can go ahead and navigate this vessel.

And this vessel is the vessel as equipped.

It didn’t say you satisfy the federal standard.

We hereby license you to employ a useful navigation that is special.

Earl Warren:

Mr. Hathaway, may I ask you this question, does — does your ordinance attempt to — to tell the petitioner here how they shall satisfy the ordinance, how they shall — shall remedy their ship in order to keep the density down or do you just say that they shall keep the density of smoke down below a certain level?

John F. Hathaway:

Yes, we just provide a standard for emission.

Earl Warren:

Yes.

John F. Hathaway:

I mean, we don’t tell them what type of equipment.

Earl Warren:

Yes.

John F. Hathaway:

And I — I don’t think we’d want to tell them what type of equipment to use.

Earl Warren:

Sure.

John F. Hathaway:

We’ll make that, their own discretion.

As a matter of fact, they could continue to use the equipment they have and first — then they could — and naturally, they would probably suffer the consequences of the —

Felix Frankfurter:

I don’t understand that.

John F. Hathaway:

(Voice Overlap) well, I mean — there’s nothing — there’s nothing —

Felix Frankfurter:

(Voice Overlap) I do — if I do understand, then you tell I must leave appellant’s argument that this vessel could not be employed in navigation without violating the penal — without coming within the penal sanctions of Detroit, is that right?

John F. Hathaway:

(Voice Overlap) —

Felix Frankfurter:

Is that right or wrong?

John F. Hathaway:

Well, I am too sure I understood you.

John F. Hathaway:

Let me explain it, Your Honor, if I may.

Felix Frankfurter:

Please do.

John F. Hathaway:

Our ordinane, what I was saying, doesn’t make any specific requirements as to the designs of equipment.

But if he does violate the emission standards, then we would — he would suffer the penalties, yes.

Felix Frankfurter:

But he must violate the emission standard, if he uses the vessel in coming into Detroit, is that right with the person to question?

John F. Hathaway:

Well, I think, I’d agree — I would have to say, yes, he probably would.

Felix Frankfurter:

Well, I — I don’t know I’m asking —

John F. Hathaway:

Well I’m — I’ve never seen it like myself except that there were witnesses that testified —

Felix Frankfurter:

Well it —

John F. Hathaway:

— that at this time that they would violate the smoke —

Felix Frankfurter:

It’s very important at least for me whether you agree or disagree on that, because if you can carry out the license that he — that the certificate gives him, and complies with the ordinance, there’s no problem.

John F. Hathaway:

Well, that —

Felix Frankfurter:

But if he can, as a physical fact, use the vessel which was certificated for use, then just as you don’t require him to — what to do in order to comply with the ordinance, so this certificate didn’t say whether he could use this vessel with or without compliance, it says you can use this vessel as indicated.

So that one argument is as good as the other.

And since you got a clash between local law and federal law, you got a problem there.

William O. Douglas:

I don’t see it as you — but treated the Napier case in your brief, did I overlook it?

John F. Hathaway:

That would be — the — the case cited by the — by the appellant appear (Inaudible) any coast line case?

William O. Douglas:

Yes.

I just want on how you — how you —

John F. Hathaway:

In — in that case —

William O. Douglas:

— distinguish?

That was the Georgia case that required automatic fire doors on locomotives, remember?

John F. Hathaway:

Yes.

William O. Douglas:

And then Wisconsin case required cab curtains on railroad?

John F. Hathaway:

Now, in that case —

William O. Douglas:

Then there was no order in the Interstate Commerce Commission requiring —

John F. Hathaway:

Prior — prior to the license, this case coming into this Court, there’d been decisions wherein they had said that the Federal Government had not preempted that entire field.

Then with the amendment to this Boiler Act, they said the Federal Government had now preempted the entire field that there had been a manifest intent by the Federal Government to — to take over the entire field.

Now, if that state law was the same type of legislation as the Federal Government has, they didn’t specifically point out cab curtains in the federal — regulations, but they were both what amounted to was a regulation of — of railroads, specifically aimed at interstate commerce.

Our regulation was purely a local regulation and was not aimed at interstate commerce.

John F. Hathaway:

Our regulations had to —

William O. Douglas:

Well, may I put you this question, supposed that the Coast Guard issued a certificate conditionally, on the equipment of this vessel with — with a boiler that did not give out smoke or smoke-free, would that be valid regulation of the Coast Guard?

John F. Hathaway:

Well, actually — I don’t — I don’t think that they could.

I mean, the law provides what they shall do and I think the rules and regulations must have some basis in the law that has been adopted.

What significance do you attribute to this federal statute as quoted in the opinion of the Supreme Court of Michigan, in relation with the 1955 appropriation of $5 million investigation of the smoke control, et cetera — et cetera?

John F. Hathaway:

No —

Do you rely on that at all?

John F. Hathaway:

Yes, I do, to this extent that the — I assume when I — I think we must assume that Congress knows what their — about and that they — when they took — when they made this — when they passed this Act, they passed for the purpose of appropriating money to give aid to the various communities and it pointed out that there we was not interstate question involved.

This — I’m talking about in their report.

In the Act, it points out that the primary responsibility of air pollution rests with the local government and it would — I wouldn’t assume that Congress being aware of the air pollution situation and Congress being aware of the — the Federal Government had no air pollution law or standards of purity and then this an argument where you can argue both ways, I would assume that they did — they did not want it.

Those instruments engaged in interstate — interstate commerce to be immune from prosecution.

Charles E. Whittaker:

Are — are you arguing thus that the fact that Congress appropriated this money for State use in eliminating air pollution, is to be waived in construing the effect of the Coast Guards’ license here as not covering the question of air pollution, as leaving that matter free to the city, is that what you argue?

John F. Hathaway:

Yes.

I think, as far as the Congress of the United States is concerned, they stated that air pollution problems were the primary responsibility of local government.

Charles E. Whittaker:

But do they relate it in any way to a — a shipping —

John F. Hathaway:

No.

Charles E. Whittaker:

— by sea or —

John F. Hathaway:

I agree — I agree with that that they don’t.

But I would assume that Congress being — in adopting one law, would have to be aware that there is — had another regulation also adopted.

And I would assume that — at least, I think, it should be argued that in adopting the second regulation or the later regulation, their appropriation for air pollution, that they knew that the existence of the first regulation with steamships and then, if they wanted to eliminate steamships from complying with any local regulations as to air pollution, they might well have stated so.

Charles E. Whittaker:

Do — just was a matter of practice, I’d like to know, does Cleveland and Toledo right there your neighbors, do they have the same ordinances you have?

John F. Hathaway:

I’m not — at — at Cleveland.

Charles E. Whittaker:

To Cleveland —

John F. Hathaway:

One difference, I mean it provides the same thing and except that it provides for a certain length, longer time for the emission pursuant to another Ringelmann classification.

Charles E. Whittaker:

Well, isn’t Detroit’s position that they all suffer — all ships on the Great Lakes licensed twice, must meet the toughest ordinance that any city on the Lakes may have?

John F. Hathaway:

Oh, I haven’t thought of it.

I would — I would say that they would be bound by the most — as long as they’re going into the port — into the territorial waters of that city, I think that they would be bound by that regulation, if the regulation is reasonable of itself.

It would be very difficult for a community to prove that the emission as provided in most of the municipal ordinances — I mean to lessen that.

In other words, they provide for an — the emission of smoke in a density equal to a No. 2 Ringelmann, which is No. 2 Ringelmann is a chart put up the Bureau of Mines which provides for what sets up a visual observations of smoke that for — for purposes of smoke density.

I — I’m not too sure that you could get testimony to prove that if you were going to lessen the emissions or require that the emissions, he can be less than the standard that you would be able to have people testify to that fact that it would — that it could be complied with and therefore, it would make be unreasonable as a local regulation, that even considering interstate commerce.

Charles E. Whittaker:

Is there —

John F. Hathaway:

In other words —

Charles E. Whittaker:

— is there power in any commission now for the Coast Guard or anybody else to prescribe smoke standards —

John F. Hathaway:

No.

Charles E. Whittaker:

— that you know of?

John F. Hathaway:

None.

Hugo L. Black:

If Congress had authorized use of this particular kind of a vessel, would your position be different?

John F. Hathaway:

No.

Hugo L. Black:

You would still —

John F. Hathaway:

You mean —

Hugo L. Black:

— you would still say that the city could — ordinance would provide it.

If they have expressly provided an act of Congress and thus was moving in interstate commerce move that this kind of boiler, what would you about your (Voice Overlap) —

John F. Hathaway:

What — I can’t I hear the last part, Your Honor.

Hugo L. Black:

What is that?

John F. Hathaway:

With — where the —

Hugo L. Black:

Assuming that Congress had passed a statute which expressly authorized the use of this type of boiler on ships moving in interstate commerce, would you say your ordinance must then — valid as against his?

John F. Hathaway:

Yes, I would say so.

I mean, in effect, they’ve done the same thing.

I mean, they’ve said that you have to put in a boiler that’s of such and such a construction, such and such a steel, such and such a strength.

Hugo L. Black:

What do you say — what you’re saying in is that the United States cannot regulate borders so far as controlling the emission of smoke is concerned move into various city ordinance.

John F. Hathaway:

No, I think that Congress didn’t pass an air pollution law.

Hugo L. Black:

A what?

John F. Hathaway:

Passed an air pollution law — I mean the smoke laws.

And I think that they can officially —

Hugo L. Black:

Of course, it didn’t do that, but concluded to permit ships — let’s assume that it included that it would permit ships to move in interstate commerce with boilers precisely like this with full knowledge of fact.

It violated some city ordinance.

Would you say that your city ordinance would withstand or that it can rest on enactment would stand.

I’m trying to find out if you’re basing it on a constitutional ground or the power of the Federal Government of our —

John F. Hathaway:

No, I’m basing —

Hugo L. Black:

— (Voice Overlap) if Congress hasn’t done it.

John F. Hathaway:

I’m — well, my — my argument is that Congress has not done it.

I mean that the — the intent of Congress on the deregulations that are now in existence, do not cover the same field that we’re in on as far as the City of Detroit ordinance is concerned.

I mean, we’re getting — we’re showing that they’re showing the preemption by inference.

Hugo L. Black:

I thought its part of your argument.

It seemed directed though it wasn’t saying that Congress couldn’t do that even if it wants.

John F. Hathaway:

Oh — I — yes, I think Congress could do that.

Hugo L. Black:

You think it could regulate and say that this particular type of boiler could move into the waters of interstate commerce into Detroit?

John F. Hathaway:

Yes, I think that they —

Hugo L. Black:

(Inaudible) act would be —

John F. Hathaway:

Under the —

Hugo L. Black:

— supreme over the city ordinance.

John F. Hathaway:

I think that they manifested a clear intent in that purpose.

I — I think that they could, because I think the Commerce Clause gives them the complete and absolute power to do what they want in interstate commerce.

Hugo L. Black:

Then your argument is based wholly on the fact that you say Congress —

John F. Hathaway:

Has not.

Hugo L. Black:

— has not authorized it?

John F. Hathaway:

That’s correct sir.

Felix Frankfurter:

Could Congress say — could Congress say “We think this is a subject matter that calls for uniformed legislation and we don’t want the States to consult their individual notions of what is required as part of the 1955 Appropriation Act.”

Would that make a difference with — with — would your answer be different about the (Voice Overlap) —

John F. Hathaway:

Put that — put that in the corporation —

Felix Frankfurter:

Could they — could they say “We want the States to keep hands-off,” to answer to Justice Clark that they could affirmatively authorize?

They could — you said they (Inaudible) to the national anti —

John F. Hathaway:

Yes.

Felix Frankfurter:

— pollution statute, could they say “We — we want a national non-antipollution situation,” could they do that?

John F. Hathaway:

Oh, I don’t think that they could do it in affecting — affecting local matters but I think, they could pass —

Felix Frankfurter:

Well, they would have to affect local matters.

You can’t help affecting local matters because that’s the real problem.

There’s — there’s both the local and important or local interest and also national interest.

Earl Warren:

But may I ask you this question to bring it down to practical terms.

Your — your State or your city ordinance provides that a certain level of density, now, we’ll call that two.

Earl Warren:

I think you mentioned two something —

John F. Hathaway:

That’s correct.

Earl Warren:

— I don’t know what it will — will say that’s two.

Now, supposed the Government said that this State is or this ship is authorized to — to travel on the Great Lakes for one year provided it — the smoke it emits does not exceed four which would be twice the — the amount of — of smoke that your city ordinance requires.

If it specifically directed its attention to that subject in that manner, do you have any doubt with what the Federal Government could — could do that and preempt the situation?

John F. Hathaway:

No, I think in the —

Earl Warren:

Yes.

John F. Hathaway:

— terms of the Commerce Clause, they could.

If in —

Earl Warren:

But your contention is that it has not done that.

John F. Hathaway:

That’s correct.

And I think that when you consider the — the question of our — the — the local police powers, and I mean — I think that this Court is determined that you should weigh the national interest versus the local interest, I think the health and welfare of the citizens of the City of Detroit and all the rest of the communities that have similar ordinance far outweighs the question of whether or not, steamships would use devices which could comply with the various ordinances in the country.

I don’t think that it’s as difficult to — to eliminate smoke as it — as maybe some people would think.

I think that — as an example, I pointed out that one thing.

I think that the whole United States Navy could be moved across an ocean without smoke and then — and all that uses oil — oil burning type of equipment which is installed in many ships, similar kind that operate in the Detroit River and the Great Lakes area.

Hugo L. Black:

There’s another constitutional rule that’s been followed sometimes I have not always agreed with it (Inaudible) followed the courts to the extent that the Commerce Clause in and of itself require uniformity in certain matters in order to achieve a uniform operation, whatever this business is, that’s going on.

What do you say about that phase of the case?

John F. Hathaway:

Well, that — that is an argument that’s put forth by the plaintiff.

You know, the — in the argument of uniformity would always be good.

I mean, it would — if the Congress of the United States would adopt the regulation covering all these problems, I suppose you could argue that that would be good and they would not have an argument.

But until they do, I don’t think that the cities under their reserved powers should be precluded from adopting health regulations for the citizens in their own communities.

And I don’t think that it’s a very difficult situation to always weigh the national interest versus the local in considering those problems but I don’t think that the Commerce Clause in this situation, by its very force, precludes us from adopting air pollution ordinance.

Hugo L. Black:

You say that the Court would not be justified in finding that uniformity is so essential in this field to ordering that this must stricken down on the Commerce Clause alone?

John F. Hathaway:

Yes, that’s correct.

Charles E. Whittaker:

Do you make any differentiation out there as to whether this is a foreign ship, a Canadian ship or an American ship or do you treat them all alike?

How do you do that?

John F. Hathaway:

Well, we treat them all alike except — we have — we have a problem there.

You’re talking about prosecution.

We just have a very difficult problem in getting service or process.

I mean, the ships are not located necessarily in the State of Michigan.

John F. Hathaway:

And when it comes through the Detroit River, they have a question, imagine, just issuing a ticket if they do — do not have any resident agents in the State of Michigan.

And if they do not operate in the State of Michigan, except to proceed through your territorial waters, that’s one thing and it’s kept by a question of constitutional enforcement in the ordinance to a minimum.

Charles E. Whittaker:

Well, does Canada have a like regulation over (Inaudible) as yours —

John F. Hathaway:

No.

Charles E. Whittaker:

— ordinance?

Well, then, how — how are you to protect yourself when smoke from a Canadian — on the Canadian side, to just a detriment of Detroit and ask if the ship were over on the Detroit side, which is a narrow river?

John F. Hathaway:

The problem has been this.

10 years ago, the City of Detroit and the State of Michigan asked the International Joint Commission to make the study to see if there would a federal regulation and the Canadian regulations.

Charles E. Whittaker:

Maybe what I asked you involved so — it is just a curiosity.

John F. Hathaway:

There was just one more point that I wish to bring to this Court’s attention.

The plaintiff argues that we are demanding inspection and licensing.

I would like to point out that we have never demanded an annual inspection.

We have never demanded that they obtain a license.

There’s no provision exactly for licenses, what they call a certificate of compliance.

Being a local regulation, when the matter was adopted, when the ordinance was adopted, we wanted anybody to put in new furnaces, new equipment to obtain permits in the City of Detroit, the building department.

And subsequent to that, they would make an inspection as to their proper installation and also to the smoke characteristics.

At least the Smoke Abatement Bureau would do this.

Now, it’s our contention that we also adopted a severability clause within our own ordinance.

And the purpose of that natural indefinite severability clause is so that if there are any provisions within the ordinance which would be unconstitutional or be in contravention of the — of the Constitution of the United States or the State of Michigan, that this section could be eliminated and not considered.

Now, the inspection and licensing of steamship has never been contemplated by the City of Detroit.

13 years, we’ve never demanded it or in any other instrument of —

Hugo L. Black:

What about seizure of the ship?

John F. Hathaway:

Pardon?

Hugo L. Black:

What about seizure of the ship?

John F. Hathaway:

Now, that section also was adopted which provides that — we don’t say that — seizure of ships.

All it says is that equipment, if in — used in the City of Detroit, violates our ordinance three times, we then can seal the equipment.

Is this the section you’re referring to?

Hugo L. Black:

Yes.

Well in —

John F. Hathaway:

Now —

Hugo L. Black:

We’re in the same results.

John F. Hathaway:

Now, we have never done that.

That section also provides that if we can’t obtain service on the owner of our process, that we will post a notice on the premises at the place of violation which would require us to post a notice somewhere in the middle of the Detroit River.

I mean this in — this section of the ordinance was clearly intended as a local regulation from there.

We’ve never applied it to any instrument in — engaged in interstate commerce.

And if the Court is to be concerned with that section, we argue that our ordinance is severable.

These sections have no application and no necessity except in aids in enforcing the purpose of the ordinance which is the control of what comes out of the stack and not a regulation of the combustion and equipment, except that I suppose in — by inference.

Earl Warren:

That’s all, Mr. Andrews.

Very well.