Leslie Miller, Inc., v. Arkansas – Oral Argument – December 05, 1956

Media for Leslie Miller, Inc., v. Arkansas

Audio Transcription for Oral Argument – December 06, 1956 in Leslie Miller, Inc., v. Arkansas

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Earl Warren:

Number 51, Leslie Miller Incorporated, Appellant, versus the State of Arkansas.

Mr. Gentry.

Leffel Gentry:

May it please, Your Honors.

Leslie Miller is a corporation engaged in the general contracting business.

As such a corporation it entered the — it submitted a bid for the construction of certain facilities in the State of Arkansas in connection with an airport facility and it entered in the performance of that contract after having been awarded the bid.

In this action appearing here, is the result of prosecution of Leslie Miller by the State of Arkansas for having violated the provisions of Act 124 of 1939 as amended by Act 217 of 1945, in that, as a general contractor, he had done these things without having been licensed by the State Licensing Board for General Contractors.

The action was tried in the lower court upon a stipulation of facts; and under that stipulation of facts in addition to those facts in the district county, it both appeared that bids were received for the construction of the facilities from licensed contractors within the State of Arkansas, but that such bids were in excess of the bid of the appellant.

And it further appeared from the stipulation that other contractors would have submitted bids in connection with the construction of the facilities had it not been for the requirements that they first be licensed.

The appellant was convicted in the lower court, notwithstanding, his assertion.

Its assertion that the application of the Contractors Licensing Board Act, the Arkansas Contractors Licensing Board Act to wit was unconstitutional inasmuch as it amounted to an interference with the federal function that congressional acts and regulations pursuant thereto accomplished the purposes intended by the State Act.

Upon appeal to the Supreme Court of Arkansas and again, the urging of that question, the Supreme Court of Arkansas affirmed the decision of the lower court from whence an appeal was brought to this Court and the Court — the case is here on appeal by way, of course, the jurisdictional statement having been filed and the Court having indicated the hearing.

If Your Honors please, it’s the position of the appellant in this case and first, I should say that the Government has filed a brief amicus curiae in the case and we are providing a ton as I understand under the directions we’ve been given and I shall confine myself to a general discussion of the principle involved here rather than to cover specifically the many instances in which we feel that there is an interference with the governmental function.

That feature of the case will be handled by counsel for the Government.There is a fundamental question involved here, of course.

The question which necessarily arises at such a time when a State in the purported exercise of its sovereign police power enacts a measure such as the Act here on the consideration, the Contractors Licensing Board Act, which the Court will find as an appendix in the back of the jurisdictional statement.

This Act, supposedly by its title, has for its purpose the regulation of the practicing of general contracting within the State of Arkansas and general contracting within the State of Arkansas is then, thereafter, it defined so as to include, we can see the appellant in the instance of bidding upon the work for the Government and exercising the right to perform the contract after having been awarded the contract.

In other words, there’s no dispute between the parties as to the applicability of the Act in the sense that the corporation here is a general contractor under the definitions of that.

The issue here though arises, as to whether the State of Arkansas by this Act can require the appellant under the guise of police power to get a license in order to be able to contract with the Federal Government for the construction of the facilities.

It is our position, in this case, that the Government of the Nation and the Government of the State are, of course, each alike, absolute and independent in its — in their respective spheres, but when conflict arises, that the enactment of the National Government, of course, has supremacy.

In this instance, the question arises first as to a conflict and the question arises as to the conflict in two aspects.

It is our position that there is no conflict between the congressional enactments and the right of Congress to regulate as to its ports, docks and arsenals under the Constitution’s provision and under the regulations that have been enacted pursuant to the congressional enactment, that there is no conflict between the exercise of that power which Congress has undertaken, and the exercise of the State of its sovereign power to protect its citizens in this instance.

We say that for this reason.

The only object and purpose which the Act under consideration could possibly have is the protection of the welfare, safety and peace of the people of the State of Arkansas.

It could not have for its object and purpose the protection of the Federal Government.

Then having solely for its purpose, the protection of the welfare, peace and safety of its citizens, if as a matter of fact, Congress in the exercise of it’s expressly delegated exclusive power to regulate its ports, docks, arsenals which would include this airport construction, if it has acted, if Congress has acted, so as to regulate it and if in the course of its acting, it has, by its enactments, already done the thing which would be accomplished by the state Act that if it has so regulated that the State’s — that the citizens of the State’s welfare, health and safety is amply protected, then we say that we have no issue really to decide other than the question of whether there is any conflict there.

And we say in this instance that there is no such conflict.

A study of the Act showed that it could have but one purpose and that is, the protection of the citizens of the State of Arkansas from — in their dealings with contractors from those contractors who were not qualified or who were not ethical, who were unscrupulous and so, would take advantage of the people.

Now, that right can be protected and continue to be protected by the State of Arkansas through the application of this Act to all of the contractors who deal with the people in the State of Arkansas.

There can be no purpose saved or served in applying the Act to the Government under the guise that the Government needs to be protected by the State of Arkansas in its dealings with contractors from those contractors who would deal with it unethically or unscrupulously.

So in the outset of this argument, if Your Honors please, I take the position seriously that there is no conflict between the sovereign power of Arkansas in the exercise of its police power under the Act under consideration with the exercise of the exclusive power of Congress to regulate as to these ports, docks, arsenals, airports, other matters that come within that terminology.

William J. Brennan, Jr.:

Would you take the same position if this was a plumbing contractor?

Leffel Gentry:

Sir?

William J. Brennan, Jr.:

Would you take the same position if this was a plumbing contractor?

Leffel Gentry:

Yes, sir.

In the sense that the — I should distinguish, I’d say.

If this is a plumbing contractor and he is dealing with the Government and the Government by its rules and regulations is able to protect itself from the plumbing contractor in its relationship with it and that is the only object and the purpose of the Act, then I say it could be — possibly no reason for the issue to get to the point to where we have that question of the intergovernmental immunities.

Now, I go one step further.

They usually the license plumbing contractors to protect the health of the people.

Leffel Gentry:

You license plumbing contractors to protect the health of the people, but license mean the plumber’s contractor to work on a particular job for the Government would not interfere with the health of the people so long as the only job that they did without a license was the job they performed for the Government, because the Government by its statutes has protected that citizen from the hazard which may come by reason of the qualifications that it has set forth that this contractor had — must have.

In other words, we take the position, if Your Honors, please, that we are not dealing here with a situation similar to the situation involved in the Penn Milk case versus the Board of Milk Control Commission where you have a proposition to the decide between the inherent power of the State to protect the welfare of its citizens and against the power of the Government or the right of the Government to exercise a particular function exclusively.

We do not have that situation.

Here, we have a situation which the contractor can perform the function under the regulations, under the congressional statutes for the Government without any fear as to the rights of the people or Arkansas being adversely affected.

Earl Warren:

Can we — can we say, Mr. Gentry, as a matter of law that this licensing law does not protect among other people the workmen who are on these jobs, under the contract, employment contract.

Leffel Gentry:

I think it has no — absolutely no purpose whatsoever in that connection.

Earl Warren:

Well, I thought in some of these licensing laws like that, they have them in part because contractors didn’t pay their — their health and — and work responsible in some instances so far as payment was concerned in the treatment of their employees and — and other considerations of that kind.

Leffel Gentry:

If, Your Honor, please, I can only answer that with reference again to the — the specific statute, and I can’t find, nowhere in this statute, any such intent and, of course, we do not have the advantage of having statements as to the intent like you have in congressional enactments by the committee reports in those matters that are statements there made.

We have to take the Act itself and read it all together and gain the intent from that.

But as far as I can see this Act and I may be prejudiced in the cause of my client, but as far as I can see it, I can see nothing except that it was intended to protect people in their dealings with contractors and it has no relation whatever to the employees.

Earl Warren:

My point is that employees do deal with the contractor.

Leffel Gentry:

Oh, you mean — I — I see you mean by that as far as they’re contracting with them —

Earl Warren:

Right.

Leffel Gentry:

— for the work for a certain wage or something of that sort?

Earl Warren:

Yes.

Yes, that’s what I had in mind.

Leffel Gentry:

Well, I think that answers part of that because I think it speaks in terminology of the qualifications of the contractors to perform the jobs that they’re seeking to perform rather than dealing with the qualifications that they may have as far as dealing with their employees.

Now, if Your Honors, please, we take the position secondly, that if this Act has for its purpose, if this act has for its purpose the protection of the health, welfare and safety in the instance and which a contractor is dealing with the Federal Government, that if so, that then that protection that is sought to be afforded which we say is not there, not intended, but that that protection is afforded by the federal statutes and regulations.

And we do say this Your Honor that the imposition of this Act upon the appellant in this case will deprive the Government of its right to select its agent — agents and determine the competency of those with whom it’d be.

What was a character of this air force installation?

Was it something that requires special qualifications by a contractor or could anybody do the job?

Leffel Gentry:

Well, it was a tremendous airport project in which there is a air base that is one of the larger air bases that the — where the big bombers are and they have the personnel there that is refrain.

They’re on the base.

Leffel Gentry:

So it’s a tremendous undertaking as far as the extent and size of the facilities.

Now then, I would like to call your attention to this one thing in connection with the Chief Justice’s question.

In this Act, it purports to define a general contractor as those making contracts for the construction of certain described things involving an amount in excess of $20,000.

Now then, I take the position that if anything is intended to be protected by that Act other than to protect the citizens of the State who deal with the contractor and not the Government when it deals with it, that if they were intended to protect the safety and health and so forth of the employee over here or his welfare as the Chief Justice has mentioned, then his safety, health and welfare is just as well involved in a contract involving $19,000 as it is and one involving $20,000.

So, I use that as an illustration to say that this Act in my humble opinion could have no object and purpose except the protection of the local citizens from unscrupulous contractors and its absobility or its inabsolubility, I should say, to the Government, because of the reasons we here assert would not let the protection which was intended to be both, are purported by that.

Is there any —

Earl Warren:

Does federal safety regulations apply to a job of this kind?

Leffel Gentry:

Sir?

Earl Warren:

Does federal safety regulations apply to a job of this kind?

Leffel Gentry:

Yes, sir.

They do.

William J. Brennan, Jr.:

Is there any history of any mischief at which this statute was seen in Arkansas?

Has there been any —

Leffel Gentry:

Well, we have — we have a — a glimpse at — at a — another purpose in the emergency clause contained in the Act because it says on page — pardon me if I may — on page — yes, on page 30 of the jurisdictional statement, at the top of the page, Section 22, “is hereby determined and declared to be a fact that the practice of general contracting in the State of Arkansas is in need of regulations and it viewed the unethical practices of contractors within the State of being unduly penalized and are suffering irreparable injuries and this Act being necessary for the preservation of the public peace, health and safety and emergency hereby declared to exist and this Act shall take effect of the (Inaudible).

We glean there —

William J. Brennan, Jr.:

Well, that sounds — that sounds like unethical practices of the contractors other than Arkansas (Inaudible)

Leffel Gentry:

Well, unethical practices among the contractors themselves is what it sounds if they are dealing with rather than dealing with and therefore, they want to regulator the contractors so as to permit — prohibit these unethical practices among themselves so that the public’s welfare can be protected.

William J. Brennan, Jr.:

No — no intimation to what those unethical practices were?

Leffel Gentry:

No, sir.

None, whatever.

(Inaudible) against them.

Leffel Gentry:

Sir?

(Inaudible)

Leffel Gentry:

Yes, sir.

William J. Brennan, Jr.:

Well —

Leffel Gentry:

Now —

William J. Brennan, Jr.:

Do you think that actually this was aimed at holding all of business they could for Arkansas contractors, to keep out of the state contractors away?

Leffel Gentry:

It could have been.

I do not assert that as a fact because I do not know whether you would require me to go out of the record, if I didn’t know it.

And I do not.

Leffel Gentry:

But I say that in determining the object and purposes of this Act and determining whether or not the Government is going to be hampered to the extent as indicated by the stipulation in this case that here in this instance, licensed contractors within the State it’d be they were not the lowest responsible bidder, also indicated by the stipulation in this case that there was admittedly other contractors that would have bid except that they were deterred because of the prohibitions of this Act.

They didn’t want to.

The — the Act provides for certain — certain application of a license, certain times within which the license can be acted upon certain meetings of the Board at certain intervals.

It’s our position in this case that if — that if there is a serious conflict with the right of the sovereign State to exercise these functions under its police power, then we recognize that this Court might likely say as it did in the Penn Milk Dairy case that the Act would not likely struck — be struck down simply because of the economic words that might be upon the Government as a consequence of the applicability of the Act.

But where the burden’s upon the Government in the situation are much greater than simply economic burdens whereas will be shown by counsel for Government in his argument in detail, I think that it so happens the Government, that tomorrow — tomorrow, if they have to depend only upon licensed contractors within the State of Arkansas to do their job, they may not have them available when they want them available and when they need a job to be done.

Now, one more statement and I shall conclude.

Earl Warren:

Is there any provision in the Act for a temporary permit or anything of that kind?

Leffel Gentry:

No, sir.

There is not.

I recognize the difficulty that Your Honors have, that any court has in passing upon the question where you have a right of a State reserved to it because it was a reserved right as against a proposition in which someone else is asserting.

The Federal Government is asserting a particular right delegated to it and the two rights conflict.

It certainly is a situation in which any court would be serious in its decision so as not to involve either of those rights or to circumscribe any of those rights and finally, they’d — if they would have to circumscribe one right, of course, you would have the proposition of the factual question as to which one would be hurt worst, as to which points of the dilemma you took.

But certainly, in a situation like this, you do not have a situation in which the dilemma is of that consequence.

We simply have a situation in which a contractor dealing with the Government under rules and regulations and under congressional enactments in the building of an airport does not get a license, but admittedly all of the things that would be done to protect the health, welfare and safety are provided by their statutes and regulations.

And then you have, when you look at that situation as opposed to that, you have a state statute which by its very — by its very reading and its entirety does not clearly show — to not clearly show that there was ever any intention to say we want to protect the — the Federal Government from unscrupulous contractors.

Hugo L. Black:

Well, your state court settled that, hasn’t it?

Leffel Gentry:

Where they said to this — to this extent, they said that was applicable and their decision is binding upon that proposition and they have said that it was the intent of the Act to protect the Government from unscrupulous contractors.

This Court though —

Hugo L. Black:

To protect the Government from unscrupulous contractor?

Leffel Gentry:

Yes.

Well, I mean for that when they said it was applicable when they didn’t mean to say it.

It was applicable and thereby accomplished any protection of the local citizens because without having done so, they would have had that defense.

But I’m saying when they go so far as to say it is applicable, then this Court had the right to examine into the preposition of whether or not its applicability to this contractor so interfered with governmental function or if it does interfere with governmental function whether (Inaudible) interfere with the governmental functions on the one hand is of greater consequence than the depriving the State of its right to exercise its so-called power, its so-called sovereign power.

And if they can be harmonized, it would seem that it would be the duty of the Court to do so.

Hugo L. Black:

Why would you have to — have to pass (Inaudible) thing, wouldn’t it?

Leffel Gentry:

Well, I’m talking about the consequences of whether or not you say on the hand that the sovereign power of the State to exercise its police power in the — in the protection of its public health, welfare and safety will be destroyed if we don’t apply and uphold the validity of this Act.

Now, if you had to do that, in this instance to do that, you would have a serious question.

But you don’t — you don’t have to do that.

You don’t have to say and you — there is no — nothing in this record that would indicate that the protection of the public health, welfare and safety would not be amply protected even though this statute is not applied to this particular contract dealing with the Government.

Hugo L. Black:

I would suppose maybe the chief question would be whether the Government which probably has the constitutional power to decide who it wants to hire had done so, here.

Leffel Gentry:

Well, yes.

And I’d say on the other side, then you have this situation that if it — it’s the impact upon the Government.

It’s sufficient that it does not simply incidentally — incidentally maybe impair the functions of the Government such as making a greater economic cost or economic burden on them, but if it actually puts them in the position with the Government where it’s in danger of not being able to get the job done, then, of course, the — the express power of the Government to — to regulate must — must take precedence over this other power.

Thank you, Your Honor.

Earl Warren:

Do you have any issue here other than the burden that this places upon the Government itself?

Leffel Gentry:

No, sir.

Earl Warren:

That this was that you were going in this airport for private individual, you would — you would be obliged to do this switching.

Leffel Gentry:

Absolutely, yes, sir.

Earl Warren:

Yes.

Leffel Gentry:

But I’d say that so long as I’m only doing it for the Government, then I’m not required to get this contract.

I do not contend that the Act is not applicable to me and to my client and it’s dealing with other — both, rather the Government.

William O. Douglas:

What’s the — was the — was this contract of instruction on a government-owned property?

Leffel Gentry:

Yes, sir.

That is in the stipulation, if I failed to state that.

William O. Douglas:

What — what (Inaudible) that — what rights have been retained by Arkansas?

Leffel Gentry:

What rights?

All, rights.

In other words, the Government has not accepted territorial jurisdiction.

A territorial jurisdiction is in the State of Arkansas?

Leffel Gentry:

That’s right, sir.

(Inaudible)

Leffel Gentry:

Thank you.

Earl Warren:

Mr. Davis.

John F . Davis:

Mr. Chief Justice, if the Court please.

This case involves a contract to construct a fueling system for bombers at the Little Rock Air Force Base in Little Rock, Arkansas, a property owned by the United States, but where exclusive jurisdiction has not been taken.

The United — the Corps of Engineers —

William J. Brennan, Jr.:

What kind of —

John F . Davis:

— on behalf of the air force —

William J. Brennan, Jr.:

What kind of jurisdiction was taken, none at all?

John F . Davis:

They’d put the bailment the way anybody owns property.

(Inaudible) anybody else?

William J. Brennan, Jr.:

Or you wouldn’t think —

John F . Davis:

But maybe not quite the same as anybody else but anyway —

Well, it’s just — it’s just the need for the Government.

William J. Brennan, Jr.:

Would think, Mr. Davis, that whether or not or rather if the Government had taken exclusive jurisdiction, this case would be stronger than the one you’re presenting?

John F . Davis:

I don’t think it depends upon that, Mr. Justice Brennan.

The contract in question was for a refueling system.

It amounted to about $1,000,000 — $1,090,000.

Bids were invited from about 126 firms.

Actually, only 16 bidders submitted bids and I think this is some indication as to the type of work that was involved.

It was a very particular kind of work when — install this kind of system to handle high test gasoline.

Sixteen bids were received and of these, only seven were licensed bidders in — under the Arkansas statute.

There were nine unlicensed bidders.

In other words, if the United States had been limited by this statute so that it could take only licensed bidders, it would have had the numbers cut down very materially to note your submitted bid.

Any indication, how many of the seven were out of state contractors?

John F . Davis:

Yes.

Of the seven — oh, I think only two.

I don’t know whether I get this or not.

I’ll check it over tonight.

But as I remembered, there were only two Arkansas firms and there were five that were out of state.

That, I’ll have to check, though, I’m not quite sure.

Now, the United States is concerned with this case, not because its contractors are required to pay a licensing fee to the State of Arkansas, nor even because they might be subject to incidental regulation by the administrative agency in Arkansas.

The reason that we are concerned is because we believe that the United States has a right and a duty to select contractors of its own choice and according to its own standards.

And when the State of Arkansas attempts to apply its licensing law to a contract between the United States and a contractor, it is not only telling the contractor that you may not perform upon this work unless you get a license, it is in effect saying to the United States that it may not fill this work with anybody except someone who meets Arkansas standards.

And we believe that under the Constitution, Arkansas may not do this.

Stanley Reed:

Even with respect to educational qualifications?

John F . Davis:

Even with respect to educational qualification.

Even with respect to health problems?

John F . Davis:

Yes.

I do not base this on whether —

(Inaudible)

John F . Davis:

— or not this is a —

(Inaudible)

John F . Davis:

— police — within the police power of the State.

The Arkansas the Contractors Licensing Law, whatever its purpose falls within the general police power of the State to protect the citizens of the State in one way or another and I believe they have as much power with respect to this kind of thing as — as they would have under any other police power.

I don’t — I do not distinguish between them.

Are you going to distinguish Penn Dairies?

John F . Davis:

Yes, I’m going to mention Penn Dairies.

And Pacific Coast?

John F . Davis:

That’s right.

Hugo L. Black:

And what about Pacific Coast Dairies?

John F . Davis:

I don’t know the Pacific case, the — the Pacific Coast Dairies case.

Hugo L. Black:

Are you going to mention Hill against Florida?

John F . Davis:

Pardon?

Hugo L. Black:

Hill against Florida.

John F . Davis:

Hill against Florida?

Hugo L. Black:

Yes.

John F . Davis:

I will.

I hadn’t intended to, but we —

Hugo L. Black:

I thought (Inaudible)

John F . Davis:

[Laughs]

Hugo L. Black:

(Inaudible)

Felix Frankfurter:

But why not?

In that case, we have held that they should even post the condition (Inaudible) appellant.

John F . Davis:

I was going to —

Felix Frankfurter:

You’re going to carry that here.

John F . Davis:

I was going to refer to in re (Inaudible)

Felix Frankfurter:

If a State can make it a condition (Inaudible) because he is the appellant —

John F . Davis:

Right.

Felix Frankfurter:

(Inaudible)

John F . Davis:

It certainly isn’t.

Actually, this Court has adopted two general approaches to these governmental immunity cases.

Chief Justice Marshall in McCulloch against Maryland analyzed, posed the issue as one of sovereignty, a clash between two independent and indeed, he treated them as antagonistic sovereigns and then he would decide the — the question on the basis of the Supremacy Clause in the Constitution.

Justice Holmes, on the other hand, and I refer particularly to Johnson against Maryland, 254 U.S.51 approached the issue as one of adjusting the interest of two related sovereigns whose functions overlapped and that the solution being to permit each to perform insofar as possible his functions without undue interference with the other.

When these two approaches appear irreconcilable that troubles come.

As for example in the recent case in this Court in New York against United States, where the question was the power of the United States to tax the State of New York on the sale of mineral waters.

But in this particular case, I think that either Chief Justice Michael or Mr. Justice Holmes would have come up the same answer.

On the McCulloch against Maryland approach, there can be no question that the duty to provide for the National Defense is one of the enumerated powers of the Federal Government and there can be no question that the building of airfields and the equipping of airfields which was involved in this case is part of that constitutional power.

Under Article 6 of the Constitution then, it is not possible for the State to interfere with the federal exercise of this particular power.

On the other hand, the power to license, which the State of Arkansas insists upon, must certainly involve the power to deny a license; and the power to deny a license certainly interferes with the power to build an airfield.

And therefore, by the syllogism which Justice — Chief Justice Marshal would follow, this statute would be unconstitutional.But if we approach the problem as a problem of adjusting, accommodating the state powers and the federal powers so as to permit each one to be fulfilled with greatest possible extent, here, we have a state power, a state statute which is designed to protect the people, building things in Arkansas, from being treated by unreliable contractors.

This isn’t the building code.

This isn’t the health or safety measure.

It is a law to promote fair business and as I said a minute ago, I think this is a legitimate exercise of — of police power and obviously, the — the federal aim to build and equip this airfield is not basically antagonistic to this state power.

The United States has no desire to employ unreliable contractors.

Hugo L. Black:

But does it provide some for kind of an investigation?

John F . Davis:

Does the United States?

Hugo L. Black:

Yes, for these contractors?

John F . Davis:

Oh, yes.

Yes, indeed.

Hugo L. Black:

(Inaudible)

John F . Davis:

Well, there are two ways.

The — the —

Hugo L. Black:

In other words, if a — if an irresponsible man makes a bid — lowest does the Government have to take him (Voice Overlap) —

John F . Davis:

No, it does not have —

Hugo L. Black:

— if he’s irresponsible?

John F . Davis:

It does not have to take him.

Specifically, one — it does not have to take the lowest bid.

It has to take — the standards are set forth.

In this case, the bids are — are made under the Armed Forces Procurement Act.

John F . Davis:

The — and if the bids are –are let by public advertising, that is by — by advertising by auction, so to speak, then the United States does not need to take the lowest case, but it takes the lowest responsible bidder and is encouraged to determine not only whether the man is — is capable, but also certain other factors as to his past experience and whether it’s big business or small business, many factors are involved in — in it and the United States makes a determination on that basis.

Hugo L. Black:

May I ask you.

This is to — we said that Hill against Florida that this man under that law could be convicted of a misdemeanor and subjected to fine and imprisonment, but doing something which the Federal Government has — has stipulated he could do (Inaudible)

Does that fit this case?

John F . Davis:

I — I think —

Hugo L. Black:

Doing that which an Act of Congress permits him to do.

Does an Act of Congress permit this man to do this work if he is a low bidder?

John F . Davis:

The — the Act of Congress — there isn’t any Act of Congress which deals specifically with, of course, with this.

There is rather an authority that the armed forces —

Hugo L. Black:

Does he come within the — does he come within the classes, within the category of people who are permitted to make bids and do works for the Government as provided in the Acts of Congress?

John F . Davis:

Yes, it does.

Hugo L. Black:

So, why is not true then that this is to be measured by whether the State can forbid him to do that and convict him of a misdemeanor, but doing that, which is an Act of Congress permits him to do?

John F . Davis:

Well, that — that is basically the question when you — whether the State — whether the state law is intended and we have here a finding, of course, by the — by the Supreme Court of Arkansas that it is intended to — to apply to this case.

But that is a problem for this Court to decide, to reconcile what appear to be —

Hugo L. Black:

What do you have to reconcile?

Suppose the Federal Government makes the case, where I hope you can.

Suppose the Federal Government decided it wanted to employ doctors who had come here from abroad in the federal — veteran hospitals, maybe who’s a refugee and the State wouldn’t give him a license, could the Federal Government employ him or would it be forbidden to do so?

John F . Davis:

It has been held that they can employ them.

That is that — that is — even the State of Arkansas, the — the Supreme Court in — of Arkansas in this particular case recognizes the right of doing — of the Veterans Administration to employ unlicensed surgeons.

There — there can be no — no question about that kind of — about that kind of — of problem.

Hugo L. Black:

Well, that’s public health.

That’s — does it matter as they didn’t conflict with an Act of Congress?

The Government of the States have their full power in there.

John F . Davis:

That is right.

Hugo L. Black:

Why —

John F . Davis:

They have the —

Hugo L. Black:

Why do we have — why do we have to argue over whether this comes within one category of business or another?

John F . Davis:

Well, I don’t think —

Hugo L. Black:

So that the Government —

John F . Davis:

— they would if we didn’t have such cases as Penn Dairies and some others that we have to reconcile with the position that we have here and — but the — the line of cases in this Court has gone — has gone further and further along the — the line of where the state power doesn’t impinge, doesn’t prevent this — the — the Federal Government from carrying out its functions permitting insofar as possible the — the state power to continue.

John F . Davis:

The — the approach which you suggest is the — is the approach which is followed in many other cases which I describe as the McCulloch against Maryland approach and which is — sees as black and white this question of the sovereignty and this is within the powers of the United States.

The – the United States has determined that this is what should be done and the State can do nothing to interfere with it.

Hugo L. Black:

Well, the other — other can be considered, I assume, in determining whether there — there’s a conflict to be found.

John F . Davis:

That’s right.

Hugo L. Black:

Or whether the Act the Federal Congress did not intend to do as much as you’re suggesting.

That what that says that it’s found that the Federal Congress has decided that and it wants to hire somebody to do a particular kind of work.

On the constitutional level, what else is there to negate?

John F . Davis:

Then — then the — the Article 6 of the Constitution takes over and the laws — the Constitution and laws are supreme —

Hugo L. Black:

That’s what they did.

John F . Davis:

— under — under the Constitution.

And that — that is — that is the way we must determine if we find that there’s a conflict.

What this Court has done in some cases is define that the two laws can be reconciled and really, that is the — that is the question before this Court whether they can be reconciled so that both can — both can be — can be enforced.

And we feel that that cannot be done in this case that actually the — the state law is irreconcilable with the — with the federal powers in — in this situation.

Felix Frankfurter:

Have you — have you vindicated Mr. Davis, it’s not an element here once didn’t have in here (Inaudible) namely, here, you have impingement directly upon the operations of Federal Government and not merely the accommodation between two statutes which may affect other (Inaudible)

John F . Davis:

That — that —

Felix Frankfurter:

— what is direct from the United States is it directly found that this case you also have to have much difficulty in reconciling Penn Dairies — Penn Dairies and all those other cases (Inaudible) showdown.

John F . Davis:

That — that is right.

Earl Warren:

We’ll recess now.