Huron Portland Cement Company v. City of Detroit

PETITIONER:Huron Portland Cement Company
RESPONDENT:City of Detroit
LOCATION:Approximately half-way between Santa Marta, Colombia and Miami. Florida (by water)

DOCKET NO.: 86
DECIDED BY: Warren Court (1958-1962)
LOWER COURT:

CITATION: 362 US 440 (1960)
ARGUED: Feb 29, 1960
DECIDED: Apr 25, 1960

Facts of the case

Question

  • Oral Argument – February 29, 1960 (Part 2)
  • Audio Transcription for Oral Argument – February 29, 1960 (Part 2) in 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

    Alfred E. Lindbloom:

    May it please the Court.

    This is an appeal (inaudible) Court of Michigan.

    The Supreme Court of Michigan affirmed the decree of the trial court which held that the Detroit’s smoke ordinance which in effect provided for the inspection and — and approval of boilers on — on appellant’s vessels engaged in interstate commerce and which had been approved, inspected and proved and licensed by the Federal Government to navigate was applicable to — to those vessels.

    And also that the penalty provision of the smoke ordinance which could not be complied with, with the boilers which had been approved, inspected and licensed by the Federal Government.

    The appellant claims that the Federal Government by its boiler or by its inspection laws had preempted the field and that therefore the city ordinance could not validly be applied to the vessels.

    It also claimed that the equipment on vessels engaged in interstate commerce required uniform treatment.

    And that the ordinance which also provided for inspection and approval of the same equipment and require a — required necessary treatment and that — and it was an undue burden upon interstate commerce.

    The facts are that this appellant has a mill in Alpena, Michigan and has a fleet of six vessels which — with which it transports cement from its mill in Alpena to various ports on the Great Lakes.

    Five of these vessels are steam vessels and they’re equipped with hand-fired Scotch marine boilers.

    And —

    Felix Frankfurter:

    It’s necessary to understand your case, to understand what — what a marine Scotch boiler is because it’s sold and you’d better explain that these — one ignoramus to understand.

    Alfred E. Lindbloom:

    I don’t think it is, Your Honor.

    If it is, it’s merely a boiler in which you put in the fuel and the fuel heats tubes that runs over the fuel.

    Charles E. Whittaker:

    Well, this hand — hand-fired Scotch marine has more smoke, that is emphasized.

    Alfred E. Lindbloom:

    That’s right.

    The — the hand-fired Scotch marine boiler is the grand dad of the boilers used on the vessels and it — it as, Your Honor — as Your Honor said it does admit more smoke.

    But these vessels are inspected annually at the time and bi-annually now by the United States Coast Guard.

    There, the vessels are inspected and the (inaudible) is inspected.

    And after this —

    Felix Frankfurter:

    But it’s just — do they — do the statutes or regulations specifically call for inspection of boilers?

    Alfred E. Lindbloom:

    Yes.

    Yes, Your Honor.

    Felix Frankfurter:

    Specifically.

    Alfred E. Lindbloom:

    Yes.

    Charles E. Whittaker:

    Well, is that the — the only authority for safety on stevedoring purposes or is it also for air pollution.

    Alfred E. Lindbloom:

    Well, sir, I can’t point to anything in the statute that says air pollution.

    No.

    But the statute says that if the broiler is for any reason unsafe, it should not be approved.

    The approval says it shall be — it shall be approved only of it’s safe and in whole in part or if it’s because of defective design or defective workmanship, defect of material or for any other reason is unsafe, then the boiler should be and must be (Inaudible) that purpose.

    Felix Frankfurter:

    And I take that you will argue that unsafe is not restricted to safety for purposes of functioning as a boiler.

    Alfred E. Lindbloom:

    That is part of my argument.

    But my argument is more than that because I — after the Federal Government has inspected these boilers, found them safe for whatever purpose the statute requires, it issues a certificate, which certificate also contains a license.

    And that — that license is, the said vessel is permitted to be navigated for one year on the Great Lakes.

    Now, that is the license which is included in the certificate of inspection.

    Then there’s also another certificate which the Treasury Department issues and that at the bottom of it.

    That is — that and the photostat of that is contained in the transcript for the record following page 42.

    There at the bottom of that, there’s a license.

    “License is hereby granted for the said vessel to be employed in carrying on the coasting and foreign trade for one year from the date hereof but no longer.”

    It is our — It is my primary contention that by those two licenses, the Federal Government has specifically said that this vessel bearing in mind that the first license describes the vessel, describes the boiler and it has inspected the boilers, says that this vessel maybe used to navigate the Great Lakes for one year.

    Charles E. Whittaker:

    May I ask you, Mr. Lindbloom, if Michigan might say at one of these vessels as it passed through the Detroit River should not exceed five knots per hour.

    Would that be in light of these licenses, these federal licenses beyond the state power?

    Alfred E. Lindbloom:

    I would doubt if it were.

    But there you see, there, the — the vessel could be controlled by that speed.

    The point I’m getting to here is that this smoke ordinance cannot be complied with, with the equipment that has been approved and licensed.If — if in Your Honor’s question, these vessels could not go unless — it could not go at a speed of — of as little as five knots an hour then I would say that — that the Detroit could — but under the question, they could comply with the — with the ordinance, and here, they can’t.

    How old is this federal statute?

    Alfred E. Lindbloom:

    Oh, I think it goes back for many, many years probably the 1870 and through there.

    I’m picking — figure out the year but it is old.

    Long before the State of Morgans?

    Alfred E. Lindbloom:

    Oh, yes.

    Yes.

    Hugo L. Black:

    I didn’t — I didn’t quite understand the last statements you made when you said —

    Felix Frankfurter:

    He doesn’t argue.

    Hugo L. Black:

    And did I understand you to say that they cannot comply with the ordinance?

    Alfred E. Lindbloom:

    They cannot.

    Hugo L. Black:

    It — it’s impossible to comply with the ordinance.

    Alfred E. Lindbloom:

    Is — yes.

    That’s a finding of the — of the — that was admitted in the trial and it’s — it’s a finding in the — of this.

    Felix Frankfurter:

    You mean with this, “and use this boiler.”

    Alfred E. Lindbloom:

    Use this boiler.

    Hugo L. Black:

    Well, I —

    Alfred E. Lindbloom:

    Yes.

    Hugo L. Black:

    I thought you — but now I understand that you’re qualifying it that way.

    Alfred E. Lindbloom:

    Oh I — that’s right.

    It can’t —

    Hugo L. Black:

    Well, I’m not assuming that it’s impossible to —

    Alfred E. Lindbloom:

    Oh no.

    No, no.

    Charles E. Whittaker:

    Well —

    Alfred E. Lindbloom:

    We — we could put in — we could put in other — we could put in another boiler or we could put in an underfeed stoker at a cost of $70,000 or $80,000 and — or we could put in oil — oil burning equipment at a $100,000 withheld which — with which we could probably comply with the present Detroit’s —

    Hugo L. Black:

    It’s a question of cost.

    Alfred E. Lindbloom:

    It’s a question of cost to begin with.

    But I think there’s more than that because I think there is this question of preemption.

    Hugo L. Black:

    Well, I’m simply —

    Alfred E. Lindbloom:

    Yes.

    Hugo L. Black:

    — do you think because that it’s affected by preemption.

    As in effect, preemption.

    Alfred E. Lindbloom:

    Yes.

    The — the — it seems to me that Congress by — by passing or by issuing these licenses has expressly said that this particular vessel may be used.

    And because — now to go for a minute —

    Hugo L. Black:

    Is there anything in the record which shows it specifically and expressly that the Government agreed that vessels which would emit this kind of smoke could be utilized despite the city ordinance?

    Alfred E. Lindbloom:

    Well, if you mean by that, I’m not quite sure I understand.

    If you mean by that that the Federal Government expressly say that ignoring or taking —

    Hugo L. Black:

    Yes.

    Alfred E. Lindbloom:

    — a consideration of the Detroit ordinance?

    Hugo L. Black:

    Yes.

    Alfred E. Lindbloom:

    No.

    I mean — I mean, there’s nothing — there’s nothing in the record.

    Hugo L. Black:

    Does it have — does it — does a federal Government regulation have any provisions as to smoke control at all?

    Alfred E. Lindbloom:

    Not expressly, none.

    None expect what I argued a moment ago that — where they said that the boiler is unsafe for any reason.

    Hugo L. Black:

    Yes, that’s the closest you come to any federal regulation.

    Alfred E. Lindbloom:

    Yes, Your Honor.

    Earl Warren:

    Is there anything in the — in the inspection service of the Coast Guard to — to indicate that — that the Government has any standards or — or is interested in how much smoke these boilers emit?

    Alfred E. Lindbloom:

    I think to answer that candidly, I have to say there isn’t anything.

    And this — the Detroit smoke ordinance, first — first, requires an inspection of any equipment that’s used within the city and — and it — then it also provides that if a boiler emits smoke three times of the prohibited time within any 12 months period, the equipment shall be sealed and the seal shall — shall stand unless the sea Commissioner finds that there’s an improvement in the equipment.

    Hugo L. Black:

    Have they tried to do that here?

    Alfred E. Lindbloom:

    No, not yet.

    Hugo L. Black:

    We don’t — we don’t have an actual effort to do that under the ordinance.

    We don’t yet because as I tried to explain in my reply brief, the — there was a difference of opinion of the Attorney General in Michigan and as soon as — soon as the city started to — to enforce the — the penalty provision, we got the injunction and — but we allege in our bill of complaint that the city has threatened to enforce the ordinance against us.

    Earl Warren:

    Is that the only sanction with the ordinance?

    Alfred E. Lindbloom:

    Well, it can —

    Earl Warren:

    To prevent the — to prevent the — the — to tie the ship up?

    Is that the only sanction in the ordinance?

    Alfred E. Lindbloom:

    No, no.

    We could —

    Earl Warren:

    What are the other sanctions?

    Alfred E. Lindbloom:

    That it — its criminal, $100 fine and for — not only the company but also the — the officers on the boats one — and a $100 fine, 30 days in jail or both and each day’s violation is a new — is a new penalty.

    Earl Warren:

    You attack the whole ordinance, the entire ordinance before they have applied any sanction to the company.

    Alfred E. Lindbloom:

    Except the criminal.

    They started the criminal proceedings.

    Earl Warren:

    Yes.

    Alfred E. Lindbloom:

    And that, they started the criminal proceedings, they issued a warrant or a ticket as they call them, against the company and against the officers of the vessel.

    Earl Warren:

    Yes.

    Alfred E. Lindbloom:

    And at that point, we filed the bill.

    Earl Warren:

    Yes.

    Alfred E. Lindbloom:

    And we allege in there that they’re going to enforce the ordinance against us, and the city says in effect, they’re going to force all, it’s legally applicable.

    So I think there’s a fair inference that they will enforce the — enforce the whole thing which it requires the inspection and also a sealing if you violate the ordinance criminally three times within the 12 months period.

    Earl Warren:

    Do you — has it been violated twice before and so found criminally?

    Alfred E. Lindbloom:

    No this was the — this (Voice Overlap) first —

    Earl Warren:

    Yes.

    Earl Warren:

    Well then, in this — in this action, they couldn’t impose the final sanction of — of tying that to your ship, could they?

    Alfred E. Lindbloom:

    They couldn’t but I mean I don’t think there’s any doubt that you would violate it more than three times within a year because as I say, the — the smoke of the prohibited kind cannot be prevented with this — with these boilers.

    Our problem is that we — we dock at Detroit.

    It shows one of these vessels docked 26 times, we’ll say the other one 22 times in a year.

    And they’re there for about 16 hours to two — to a full day each time.

    And every four hours, they have to rebuild the fire.

    At that time there’s smoke of the prohibited kind is apt to — to come forth.

    And on — in fact, on the day in question, they were charged, each ship, with violating the smoke ordinance for — from between nine and 10 minutes.

    And —

    Potter Stewart:

    Is that when — is that when their growing tubes as it’s called or —

    Alfred E. Lindbloom:

    Building a new fire, Your Honor.

    Potter Stewart:

    Is this a fire tube or water tube kind of boiler?

    Alfred E. Lindbloom:

    That I am not sure, I think it’s what you call a fire tube.

    But I’m not wholly positive.

    Charles E. Whittaker:

    May I ask you, sir?

    Do we have here any question of territorial jurisdictions?

    In other words is Lake Erie within the city limits of Detroit?

    Alfred E. Lindbloom:

    Well, the Detroit River, yes, which is a connecting river.

    Charles E. Whittaker:

    And that’s where you offend the claim, is that it?

    Alfred E. Lindbloom:

    Yes we’re tied — we — we — these particular offenses that we’re charged with occurred when we were tied up at a dock in the Detroit River.

    And the Detroit — the City of Detroit jurisdiction extends to the middle of the river.

    But all boats using — engaged in the Great Lakes, going from one lake to the other must — must use the Detroit River.

    And there’s apparently about 250 vessels on the Great Lakes are in the same predicament.

    That is they’re equipped with hand-fired Scotch marine boilers.

    And as I — I don’t think that the trial court and the Michigan Supreme Court merely held that there — there was no preemption.

    Both of them paid no attention to the argument concerning the licensing.

    It seems to me that under Gibbons versus Ogden where a license is granted, no one else can say that this license can be used only on certain conditions.

    Felix Frankfurter:

    May I ask you this question.

    Do the — do the examinations both by the Coast Guard and by the Bureau of Customs, they make separate examinations?

    Alfred E. Lindbloom:

    I’m not too sure that the Bureau — that the Custom makes much of an — the Custom issues that only if the Coast Guard has already inspected.

    Felix Frankfurter:

    Now, does the Coast Guard inspect locally then it inspect — it inspects —

    Alfred E. Lindbloom:

    Yes.

    Felix Frankfurter:

    — either in Detroit or wherever your boat —

    Alfred E. Lindbloom:

    I think they do or — or we go somewhere where they ask us to.

    Felix Frankfurter:

    But It’s a — it’s a physical inspection —

    Alfred E. Lindbloom:

    Oh, yes.

    Felix Frankfurter:

    — and not a — and not passing on — on a written application?

    Alfred E. Lindbloom:

    No, Your Honor, they — it’s a physical examination.

    As matter of fact they sometime tear down the boilers.

    Periodically, you got to tear down the boilers, you go to operate them when they’re standing there watching you.

    Felix Frankfurter:

    Is there a Coast Guard division of whatever it’s called, is there a– Coast Guard stationed in Detroit or in the Detroit River?

    Alfred E. Lindbloom:

    I — yes.

    I think this —

    Felix Frankfurter:

    Did the local people examine this?

    Alfred E. Lindbloom:

    They’re — they’re local employees of the — yes, on the — on page 41 of the transcript or I mean the record.There, the Commander, Mr. Hansen, Commander of the United States Coast Guard is — is stationed at Detroit, Michigan.

    And I think in there, it shows that the boiler, the mountings have been removed at certain times and different themes like that.

    Now, it’s a — it’s a good faith and a very careful examination.

    Felix Frankfurter:

    Well, I’m sure to — I assume it’s in good faith.

    Alfred E. Lindbloom:

    Yes.

    Felix Frankfurter:

    What I want to know is —

    Alfred E. Lindbloom:

    No, I mean it’s more than a — than writ.

    Felix Frankfurter:

    Because somebody who lives in Detroit, knows about Detroit ordinances, doesn’t he?

    Alfred E. Lindbloom:

    I would assume so.

    Earl Warren:

    Does the Customs Service certificate have anything to do with safety?

    Alfred E. Lindbloom:

    I don’t think so.

    I mean I think —

    Earl Warren:

    Then how is it pertinent here?

    Alfred E. Lindbloom:

    Well, it’s pertinent in this respect that it is a license.

    That’s —

    Earl Warren:

    A license to do what?

    Alfred E. Lindbloom:

    A license — license is hereby granted for the said vessel, it’s naming — it names a vessel up above to be employed in carrying on the coasting and foreign trade for one year from the date hereon but no longer.

    Earl Warren:

    Yes.

    But isn’t that only so far as the — the Customs laws are concerned?

    Isn’t that all it’s concerned with?

    Alfred E. Lindbloom:

    No.

    I think not, Your Honor, because under a statute, that license does not issue until the Coast Guard has completed their license and approved the vessel.

    Earl Warren:

    But if the Coast Guard didn’t — didn’t certify it, it couldn’t?

    It couldn’t travel at all?

    Alfred E. Lindbloom:

    That’s right.

    Nor would the (Voice Overlap) —

    Earl Warren:

    So with the second.

    So there’d be no necessity of the Customs Service bothering about Customs on the ship if it couldn’t — if it couldn’t under the Coast Guard certificate use the coastline, isn’t that right?

    Alfred E. Lindbloom:

    That’s right.

    I mean —

    Earl Warren:

    And —

    Alfred E. Lindbloom:

    — they’re both, it’s — it’s just two licenses.

    Earl Warren:

    Yes.

    But the second one means nothing in this case does it?

    Alfred E. Lindbloom:

    Well —

    Earl Warren:

    Because it doesn’t deal — it doesn’t deal with anything but Customs.

    Alfred E. Lindbloom:

    No.

    I think it does more than that.

    Earl Warren:

    What does it deal with?

    What —

    Alfred E. Lindbloom:

    It deal — it deals with safety in this respect that — but it delegates the safety function to the United States Coast Guard.

    Earl Warren:

    Well, does the Customs Service have anything to do with safety?

    Alfred E. Lindbloom:

    No.

    Earl Warren:

    Then why do you say it depends upon the safety?

    Alfred E. Lindbloom:

    Well —

    Earl Warren:

    (Voice Overlap) that the — that the Coast Guard certifies to?

    Alfred E. Lindbloom:

    No, because under the statutes, you cannot — the Coast — the — the Custom cannot issue that certificate until after the vessel has been approved —

    Earl Warren:

    Yes.

    Alfred E. Lindbloom:

    — by the Coast Guard. (Voice Overlap) —

    That’s the only connection.

    Earl Warren:

    I suppose that Customs Service is — is interested in the operation of the vessel from the standpoint of — of the Customs.

    Alfred E. Lindbloom:

    I would assume that is right.

    Earl Warren:

    And — and I would assume nothing else unless there’s something in the Act to — to indicate something else.

    Alfred E. Lindbloom:

    Well —

    Earl Warren:

    But if — if it cannot — if it doesn’t have the certificate of the Coast Guard and can’t operate at all, then of course there’s no — there’s no reason why the — the Customs Service should — should grant a certificate and isn’t that the only reason that they require first a certificate of the Coast Guard?

    Alfred E. Lindbloom:

    Well, that I — I mean that maybe so, Your Honor.

    I mean all I know is the statute says —

    Earl Warren:

    Well —

    Alfred E. Lindbloom:

    “And it shall not issue unless and until the Coast Guard issues a certificate.”

    Earl Warren:

    But my point is this, if you are going to the question of preemption.

    Alfred E. Lindbloom:

    The other one is —

    Earl Warren:

    And use — and using the second — the second certificate as an argument that the Government has preempted it.

    I suppose that the purpose of the certificate would have — have something to — to do with determining whether there was preemption so far as the emission of the smoke is concerned.

    Alfred E. Lindbloom:

    I would — I would assume that but I think it seems to me it goes — might go a little bit further.

    If the Federal Government gives a license that — leaving out — leaving out the — the preemption that the Federal Government gives a license to use this vessel on navigable water can the city come along and say, “Well, you can use it only on our terms.”

    Earl Warren:

    Well, let’s suppose this, that instead of this being a vessel, it was — it’s one of these big diesel trucks that goes along a — an interstate highway and is authorized by the Interstate Commerce Commission to — to go through the cities and it goes through the cities emitting just as much of that black smoke as it wants to emit without — without any power in the cities to — to restrain it?

    Alfred E. Lindbloom:

    That I don’t know.

    As practical matter, it does [Laughs] but I mean they couldn’t —

    Earl Warren:

    Isn’t the fact of the matter, the cities do, don’t they?

    Alfred E. Lindbloom:

    I don’t know.

    I mean I — I would think that would be a little different, Your Honor for the — for one reason if no other and that is that this Court has granted much greater control in respect to highways than you have to — to sea water.

    It seems to me that — that our case is much closer to your — to your Service Storage and Transfer versus Virginia which was just decided a short time ago.

    Or that company had a — a certificate from the ICC and there, Virginia found that it picked up goods and delivered goods in — in Virginia through a point in West Virginia and — and was found that that was a fraud and it was violating the Intrastate Carrier Act and fined it for $3500.

    This Court said to — to allow that fine to stand would be the same thing as a partial, a cancellation of the federal placements of the certificate.

    Earl Warren:

    Well, suppose the issue we have here in that case was not the one we did have but suppose that the trains, they’re running their trains 75 miles an hour through a — through a thickly populated district, do you think the city would be prevented from — from regulating the speed of that to conform to the safety of the public?

    Alfred E. Lindbloom:

    No.

    Alfred E. Lindbloom:

    But like (Voice Overlap) —

    Earl Warren:

    I said —

    Alfred E. Lindbloom:

    I think, I think —

    Earl Warren:

    Did have, more like what we’ve got here?

    Alfred E. Lindbloom:

    No, no because — because as I said, our vessels can with the equipment as approved in the license cannot at all times comply with the ordinance.

    If — you see, what I meant was, in my original bill, I asked that this — that the city be enjoined except where the smoke was caused by our negligence or the improper use of the equipment.

    I’m — I’m claiming it only where this — only where this — offense of smoke cannot be prohibited, cannot be prevented with — or with the equipment which we do have.

    Felix Frankfurter:

    In short of the — short of it — short of your case is, isn’t it?

    You’ve got a license to use a vessel with a particular equipment, if you have to supply — if you have to obey the ordinance of Detroit, you couldn’t use your vessel with the equipment.

    You say you got a license from Uncle Sam to use that equipment and that license is controlling.

    And therefore, the question is whether impliedly, there is power in the State and this is what it gets down to, to make regulation which, in and of itself is enough — is a — a regulation that the State may make for itself in welfare.

    That’s the problem, isn’t it?

    Alfred E. Lindbloom:

    Yes.

    It’s — it’s — the problem is whether or not — whether or the State — the city’s regulation may — may limit the federal license.

    I mean and — and I’m also using the federal license as — as indicating preemption of the field.

    Felix Frankfurter:

    Also, we first have to determine if the federal license really license you to do.

    Alfred E. Lindbloom:

    That’s right.

    Felix Frankfurter:

    Whether it says you may use this vessel.

    Alfred E. Lindbloom:

    Yes.

    Felix Frankfurter:

    We, the United States having superior power to say, “Go ahead and use this vessel no matter what anybody says about it because we’re the boss.”

    Alfred E. Lindbloom:

    That’s right.

    Felix Frankfurter:

    And the other suggestion is that their implications to that — that license.

    May I ask you — I do have a curiosity of what the Chief Justice said about the second license, the Customs.

    I take it — am — am I right in inferring if it is the Coast Guard, even though the calling pass must of the Coast Guard when they issued your license.

    The Bureau of Customs doesn’t automatically have to give you its license, is that right?

    Alfred E. Lindbloom:

    That’s probably.

    I think that’s right.

    Felix Frankfurter:

    Now, what help is the Customs charged with?

    In the first place, you can’t use your vessel if you’re not a — with this Coast Guard’s traffic, isn’t it?

    Under the Coast Guard’s traffic law.

    Alfred E. Lindbloom:

    Yes.

    Felix Frankfurter:

    Therefore, it’s only — it’s confined to American citizens.

    I suppose the coast — Customs are concerned with that —

    Alfred E. Lindbloom:

    That’s correct.

    Felix Frankfurter:

    Are they not?

    Alfred E. Lindbloom:

    Yes.

    Felix Frankfurter:

    It has to ascertain that.

    Do they get any revenue?

    Do — do you pay by tonnage or whatnot for getting this license?

    Alfred E. Lindbloom:

    I would think not, Your Honor, because we just hold for ourselves.

    Earl Warren:

    We’ll recess now, Mr. —