Polar Ice Cream & Creamery Company v. Andrews – Oral Argument – November 20, 1963 (Part 2)

Media for Polar Ice Cream & Creamery Company v. Andrews

Audio Transcription for Oral Argument – November 20, 1963 (Part 1) in Polar Ice Cream & Creamery Company v. Andrews

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Earl Warren:

Mr. Savary, you may —

Johnson S. Savary:

Mr. Chief Justice —

Earl Warren:

— continue.

Johnson S. Savary:

— may it please the Court.

Before the lunch recess, I had finished summarizing my argument as to point one that Polar claimed was the reason that this order or the regulation on the statute of the Florida Milk Commission violate the Commerce Clause.

Now, the second point that they urged in their mini complaint was that because Florida Milk Commission had them pay the Florida producers 61 cents per gallon for milk that after they did that it economically, they were unable to go out and compete for milk.

And very briefly, I state that because they readily admit in their record, in the testimony and this is the record back at the trial as they are able to go out and buy milk at any time for 30 cents a gallon or 35 cents of gallon, 36 cents a gallon, that economically they have not been heard at all by virtue of the requirement that they pay the Florida producers, a Class I producer price.

Now, in summary as to the Commission position as to whether or not it violates the Commerce Clause, we steadfastly and affirmatively state, may it please the Court, that we are dealing only with a local problem, that we’re not in any way attempting to regulate commerce, that we’re not in any way attempting to go into Alabama or Mississippi or Arkansas or Wisconsin, any other state and this circle back buys his milk.

We are not going in that state of regulating it.

We are merely dealing with a local problem in Pensacola that is similar to the problem we have in each of our other four milk marketing areas.

Now, —

Hugo L. Black:

Do you impose any kind of burden on a local distributor who does buy milk from other States because it’s not imposed on other distributors of the State?

Johnson S. Savary:

No sir, we do not sir.

Mr. Justice —

Hugo L. Black:

No kind of penalty and no kind of burden?

Johnson S. Savary:

No sir Mr. Justice Black, the — any distributor who buys milk from other State is treated the same as they distributed buys all these milk from interstate.

There’s no penalty, there’s no burden, there’s no any other tax other than a tax that’s always been discussed here today which is the — the taxes supposedly working of the Milk Commission.

Byron R. White:

(Inaudible)

Johnson S. Savary:

Until only on — only after it has used.

Byron R. White:

(Inaudible)

Johnson S. Savary:

Yes sir, the — the —

Byron R. White:

(Inaudible)

Johnson S. Savary:

Yes sir Class I milk.

Byron R. White:

(Inaudible)

Johnson S. Savary:

Yes sir —

Byron R. White:

(Inaudible)

Johnson S. Savary:

Yes sir, if they’re still supplying Class I sales.

Byron R. White:

(Inaudible)

Johnson S. Savary:

That’s correct Your Honor.

Byron R. White:

(Inaudible)

Hugo L. Black:

Why do you say that does not impose a burden?

Johnson S. Savary:

May it — Mr. — Mr. Justice Black, we feel that it is not a — a burden on interstate commerce in any respects because we’re dealing with only a local problem first under our police power and that is to ensure a wholesome supply of fresh milk to the consumers in the State of Florida and to promote the dairy industry in the State of Florida which is — which were charged with under our law, which has been upheld by this Court — the (Inaudible) law which has been upheld by this Court many times before.

We don’t —

Hugo L. Black:

Which — which case — which case do you refer as upholding that power?

Johnson S. Savary:

As I understand the — the original case of Nebbia versus New York upheld the right of a State to impose a Milk Control law, to promote the dairy industry within the State of New York and the Florida laws model quite substantially after the New York law.

Also it is quite similar to the Pennsylvania law and the Virginia law.

Now, Mr. Justice Goldberg asked me right before lunch about this base plan and wanting to know if were there any decisions on it.

There is a decision in the State of Florida which has been cited our brief which is the Borden Company versus Odham, the previous milk — Chairman of the Milk Commission and that’s cited in 121 So.2d 625.

And that case upheld the right of the Florida Milk Commission to — as a — as a measure of putting the producers and distributor together, upheld the right to assign bases of a producer and a plant.

And that would throughout the State of Florida and the four areas with the exception of the Pensacola area at that time, Pensacola was not under the Florida Milk Commission so there was no burying of that case on Pensacola.

But again the Florida Milk Commission, the right in the other four areas to pass such a base order that we have passed and we have an application in those four areas and it’s the same base order that we have now passed for the Pensacola area.

Byron R. White:

(Inaudible)

Johnson S. Savary:

The — insofar as it would be limited to the producers that have earned a base in a particular distributing plant —

Byron R. White:

(Inaudible)

Johnson S. Savary:

Dealing — Mr. Justice White, with the hypothetical question, I feel that our base order would too vastly do that, but we do not have that situation in Pensacola area.

Byron R. White:

(Inaudible)

Johnson S. Savary:

We have strictly deficit area out there.

Hugo L. Black:

What is the difference in your law as you say defines and a statute might be drawn by Legislature could effect what dealers buy and selling milk produced in Florida, hereby prohibited buying milk from outside the State to supply customers, while they are buying, while they are distributors and licensed to sell at all, and that they should be penalized.

Is there any difference?

Is that the effect of your statute?

Johnson S. Savary:

I don’t so argue that is Mr. Justice Black.

My argument is it —

Byron R. White:

You argue that it’s not?

Johnson S. Savary:

My — perhaps, I haven’t understood your question but — but our argument —

Hugo L. Black:

— (Voice Overlap) — you just said that, in order to conserve the dairy industry, I’m not saying it’s — absolutely would mean one way or the other position.

In order to conserve the production of milk in the dairies farm of Florida, the Florida people about the health and safety of the people, hereby declared to be the policy that people shall only sell, distribute milk in the State of Florida, Florida milk, would have a license and none shall be granted a license unless they agree in advance that they will first buy all their milk from this Florida, before they buy it from any other States and it should be a crime for them to buy milk from any other States under — in that situation.

Is that the — is that the effect of your sentence?

Johnson S. Savary:

No, sir.

Hugo L. Black:

Why?

Johnson S. Savary:

The effect of our statue is that we will license a distributor.

Johnson S. Savary:

For instance, a new distributor could come into Pensacola today and be licensed as a milk distributor, if the otherwise meets the — the requirements of our law.

He is not got any previous producers tied to him in effect until there is a base building period in his plant.

He is free to buy his milk where he wishes to buy.

Hugo L. Black:

When he gets the license under this, you say he’s not.

He’s got to buy from them at 61 cents I understood you to say, until all their milk’s exhausted and during that time, he can’t buy any from outside of the State to supply his need.

Johnson S. Savary:

Yes sir, except that going back prior to the time the Milk Commission went back into jurisdiction, these are the same producers heed by contract with buying and paying the same price for prior the time we went into control, and we merely picked up where that left off and assign these producers a base in that plant which they had already previously earned.

Hugo L. Black:

What effect does that have on the interstate commerce question involved?

Johnson S. Savary:

In — in the Pensacola area, I don’t think it has any effect on it Mr. Justice Black, because you have a deficit area and secondly, because you have a — a guarantee of milk from Florida producers to a Florida plant to be sold locally in the State of Florida.

You’re dealing only with a local problem under the police power.

I don’t think that that Milk Commission may — could tell Polar they had to sell Florida milk in Alabama or had to sell Florida milk in Mississippi or any other State.

William O. Douglas:

If you look —

Johnson S. Savary:

I think —

William O. Douglas:

— at the record at page 186 a minute and —

Johnson S. Savary:

Yes, sir.

William O. Douglas:

Have you construct me out?

Near the — near the middle of the page, the court said — the District Court in this case, “The defendant does not attempt to regulate the price that plaintiff pays his out-of-state producer nor do the regulations restrict plaintiff from purchasing out-of-state milk in any amount or for any price.”

Is that right?

Johnson S. Savary:

Let me read that, the defendant does not attempt to — the fist page of it is that, we do not tell Polar what it must was pay for any out-of-state milk it buys.

He is free of contract for any way it wants to.

William O. Douglas:

Not if not — not for using this Class I category though, is he?

Johnson S. Savary:

It maybe used for any use Polar wishes to make of it Mr. Justice Douglas, but on our base plant, he must first use a Florida milk in Florida sales.

William O. Douglas:

Well, that’s a qualification then from what the court says here.

Johnson S. Savary:

Yes — now —

William O. Douglas:

Nor do the regulations restrict plaintiff from purchasing out-of-state milk in any amount or for any price, but that isn’t consistent of what you said other, is it?

Johnson S. Savary:

I — I was going to — that we, in any way limit except that he must first use the Florida milk in Class — in Florida Class I sale.

He is free at any time to buy any other milk he wishes at any other price.

He can manufacture with it.

He can sell it to military.

He can sell it back in Alabama, to Mississippi, any place he wishes to sell.

Byron R. White:

(Inaudible)

Johnson S. Savary:

There — Mr. Justice White, there is no evidence in the record than an Alabama producer had been attempting to compete.

Byron R. White:

(Inaudible)

Johnson S. Savary:

That — there is —

Byron R. White:

(Inaudible)

Johnson S. Savary:

That is correct and if the Alabama milk is sold by an Alabama distributor in Florida, the Alabama distributor must pay that Alabama producer 56 and half cents per gallon.

Byron R. White:

(Inaudible) that — that’s sale in Alabama distributor (Inaudible)

Johnson S. Savary:

For retail sale.

Byron R. White:

(Inaudible)

Johnson S. Savary:

No sir, except that he must comply with the Fair Trade Practice Order —

Byron R. White:

Yes.

Johnson S. Savary:

— which is — is a part from this producer price.

Byron R. White:

So the — the Alabama (Inaudible)

Johnson S. Savary:

At the same price, Polar must sell it for.

Byron R. White:

(Inaudible)

Johnson S. Savary:

Yes sir.

Byron R. White:

(Inaudible)

Johnson S. Savary:

No only selling in that the Alabama distributors not have any economic advantage on the retail selling in whatsoever.

In fact, he got an additional cost of transporting it into Florida sir.

Byron R. White:

(Inaudible)

Johnson S. Savary:

Some of —

Byron R. White:

(Inaudible)

Johnson S. Savary:

Well, some of the 56 and half cents now — so that the Court will not be misled.

The — the price now is 59 cents and not 61 out there.

So —

Byron R. White:

(Inaudible)

Johnson S. Savary:

That’s correct Your Honor, he does not.

William O. Douglas:

Then why isn’t this governed by the Baldwin and Seelig case insofar as Class I is concerned?

Johnson S. Savary:

The Baldwin-Seelig case as I understood it had to do with the State of New York.

William O. Douglas:

And the State of Vermont.

Johnson S. Savary:

And the State of Vermont, and the State of New York told these dealers that they could not sell milk in the State of New York unless they paid as much that they would have to pay if they bought New York milk.

William O. Douglas:

Well, that’s just a — a variation of this theme of this case.

You can’t sell it as long as out-state milk in Class I as long as there’s a local supply.

Johnson S. Savary:

Yes sir, but I don’t — I don’t think that they’re as the same Mr. Justice Douglas because in the Baldwin and Seelig case, Seelig brought all of his milk out of Vermont.

He bought from a separate corporation that he owned in Vermont, the Seelig Creamery, and he bought it from locally produced — local producers in the State of Vermont.

He transported a hunk of 90 % in cans and he sold after he transported it in the State of New York 90% in the containers and in 10% he processed all of his milk, he sold in New York came from Vermont.

Every drop and the State of New York said, “We will not give you a license and be illegal for you to sell this milk in New York unless you pay Vermont the same thing you have to pay for New York milk.”

And as I understood —

Hugo L. Black:

I don’t quite get your difference.

The sentence to which Justice Douglas declared to your case in 186 had not, do the regulation, restrict plaintiff from purchasing out-of-state milk in any amount or for any price.

I understand you say that is to rest but it does keep him from selling.

Johnson S. Savary:

No, sir.

They — they may sell it.

Hugo L. Black:

As Class I milk in Florida unless they have already exhausted the Florida market.

Johnson S. Savary:

Yes, sir.

But they are free to buy and make any use of it and manufacture it.

Hugo L. Black:

Free to buy and make use of it except for them to use in which they want to make.

Class I — Class I.

Johnson S. Savary:

Well, it — it can still — in the Pensacola area, there is a position where that there are still Class I sales available running out-of-state milk.

Hugo L. Black:

That may — that maybe true but so far as these people are concerned as I understand it, what you have is a circulation.

Well, why do you — when a man gets a license and he’s a dealer, he can’t buy Class I milk outside to the State and sell it, purchases in Florida unless he first shows that he’s exhausted all the supply of Class I milk to be purchased inside Florida.

Johnson S. Savary:

Only from the producers that have earned a base —

Hugo L. Black:

Oh, whoever it is?

Johnson S. Savary:

Yes, sir.

Hugo L. Black:

It does place or whatever amount it is but it is the right amount.

But it does place a burden on people who wants to sell milk in there because their customers, if they — if they get their milk, they can sell it except in the classification which brings them price below that which they can sell, isn’t that right?

Johnson S. Savary:

If it in fact, and if this Court finds that such a regulatory scheme places the burden on interstate commerce, it is such an insignificant burden as compared with the — the police power that the State have to regulate his own industries within its own State.

William J. Brennan, Jr.:

(Inaudible), I believe Polar had power (Inaudible) to sell it for, is that right?

Johnson S. Savary:

Yes sir.

William J. Brennan, Jr.:

But to that extent, (Inaudible) that aspect of commerce filed an Alabama distributor (Inaudible).

Johnson S. Savary:

Yes, going beyond the record and speculating a moment.

Johnson S. Savary:

I know — I can’t conceive of any instance where an Alabama distributor would buy the milk at 56 and half cents and get it into his plant and cool it and transport it into Pensacola and be able to sell it that even below 59 cent.

William J. Brennan, Jr.:

(Inaudible)

Johnson S. Savary:

Yes.

William J. Brennan, Jr.:

(Inaudible)

Johnson S. Savary:

Yes sir.

William J. Brennan, Jr.:

(Inaudible)

Johnson S. Savary:

Yes sir.

William J. Brennan, Jr.:

(Inaudible)

Johnson S. Savary:

Yes, now —

(Inaudible)

Johnson S. Savary:

It may Your Honor.

That’s the Pensacola industry who issued the (Inaudible)

Johnson S. Savary:

Mr. — Mr. Polar may go into Alabama and buy every gallon of milk it could find at 30 cents a gallon and resell it to Fort Benning, Georgia.

And I only say so in that is we feel we are entitled to a regulatory tax which Mr. Horne discussed this morning.

(Inaudible)

Johnson S. Savary:

If he can reach an agreement with the Florida producers, yes sir.

The — the Milk Commission is not stepping back in this military milk area that the — the Commission feels that the Florida producers have the right to say whether or not they wanted milk sold below cost and that they have that contract right to do so.

But Mr. Polar may buy Alabama milk at 30 cents and sell it to Fort Benning.

Now, may I please re-brief it to two cases which I may have —

Hugo L. Black:

May I have just one question on that in there?

Johnson S. Savary:

Yes, sir.

Hugo L. Black:

As I understand what you’re are saying is that the State has not, by regulation or otherwise, put any burden that would keep the military Government from buying on a competitive basis, is that what I am —

Johnson S. Savary:

Yes, sir.

Hugo L. Black:

But that a man maybe unable to buy from a producer, in course demand the producer voluntarily desires not to sell it.

Johnson S. Savary:

Yes, sir, that is correct.

Hugo L. Black:

We’re getting back to that basis as to what the State doing, what the individual did.

Johnson S. Savary:

Yes, sir.

Now there are two cases which I have found on this base system of allocation.

Now, in the case in this Court had before the Lehigh Valley Coop versus United States which came out of Pennsylvania.

In that case, this Court was asked to decide whether or not the — the milk administrator had the right under the Agriculture Adjustment Act of 1937 to pay as you order, the compensatory payment order which it attempt — which it passed and attempted to enforce and that order was struck down because the administrator did not have that authority.

Johnson S. Savary:

Now under that case, the Section 8 (c) (f) (g) of the Act, states that no marketing agreement or order applicable to milk and its products in any marketing area shall prohibit or in any manner, limit in the case or products of milk, the marketing in that area of any milk or product of any other production area — area in the United States.

Now, in that case as I understood the Court’s decision, it suggested that even though the “compensatory-payment” plant in that case was struck down, that nonetheless an administrator under the provisions of this Act could still pass an order which stated that the “compensatory-payment” could be based not as the base in case, but be based upon the difference between what he pays for the milk and a Class I price in effect in the pool of that particular time.

Now, in the case of case of Bailey Farm Dairy versus Anderson and this case is not in our brief and I like to give the Court citation to this case.

157 F.2d 87, the name of the Bailey Farm Dairy versus Anderson, and certiorari was denied by this Court and —

(Inaudible)

Johnson S. Savary:

Excuse me, 157 F.2d 87 —

(Inaudible)

Johnson S. Savary:

Came from — out of St. Louis area and certiorari was denied by this Court in 329 US 788.

Arthur J. Goldberg:

Is that (Inaudible)

Johnson S. Savary:

Yes sir and then I say —

Arthur J. Goldberg:

(Inaudible)

Johnson S. Savary:

Mr. Justice Goldberg, I see a distinction but I think that a — as a similarity between the areas of an undue burden on interstate commerce and an undue burden on importation of milk from another area on a Federal Milk Marketing area, I think that — that substantially the — the test would be the same if it’s a burden in one essence, it was certain to be as the statute says, indirectly or directly prohibit the importation from one area into another and I mention this case for that one reason that in this Bailey case —

Arthur J. Goldberg:

(Inaudible)

Johnson S. Savary:

Yes sir, we concede that Congress has the right to regulate commerce but we think that until Congress acts on a particular area that displayed on its police power, has a right to regulate a local condition and if it indirectly affects commerce along as Congress had not acted in that area, then we’re safe.

And I — I submit to this Court the same test for measuring a burden on interstate commerce could be same test on measuring whether or not on a Federal Milk Marketing area, there was a burden on bringing milk in from one area into another area.

Arthur J. Goldberg:

(Inaudible)

Johnson S. Savary:

Yes, sir, I do.

Arthur J. Goldberg:

(Inaudible)

Johnson S. Savary:

Yes sir.

Arthur J. Goldberg:

(Inaudible)

Johnson S. Savary:

The — the milk case —

Arthur J. Goldberg:

(Inaudible)

Johnson S. Savary:

Yes sir.

Arthur J. Goldberg:

(Inaudible)

Johnson S. Savary:

I don’t believe that we in our philosophy limited to the protection only of the dairy industry.

We with that, say that in order to ensure to our citizens a wholesome supply of fresh fluid milk that the police power in the station be exercised to regulate the milk industry.

Because of the peculiarities with the milk industry which is not present in — in any other industry that I know of as it is present with the milk industry.

And secondly in with that, we’re interested in not protecting but promoting the economic industry of milk in the State of Florida.

In the Bailey case and very briefly, the Milk Order stated that a milk handler must allocate to his milk producers, I believe its 85% or 90% of all of the milk produced by those producers into Class I sales before he can bring in out-of-state milk into that area and give it a Class I sales price.

That the only difference between that base order and the base order we have is 10% and that is the only difference.

Johnson S. Savary:

There is one other case and this is all —

Byron R. White:

(Inaudible)

Johnson S. Savary:

Yes, sir.

Byron R. White:

(Inaudible)

Johnson S. Savary:

That is correct Mr. Justice White.

The other case is found as a Virginia case construing the Virginia Milk Act which also is not in our brief is Southside Cooperative Milk Producers Association versus State, 92 S.E.2d 351.

The Supreme Court of Virginia stated that under the Virginia Act which is almost the same as the Florida Act that the Milk Control Board had the right to assign bases in a plant and allocate milk down to his base producers.

In summary, I would like to say that position of Florida Milk Commission that in the exercise of police power granted in the statute that we do not feel the we are burdening interstate commerce but if we do is only incidental and it’s promiscuous in the exercise of our police power to govern and control merely a local problem.

Byron R. White:

(Inaudible)

Johnson S. Savary:

We — we have frozen a base Mr. Justice White and said that our producers cannot —

Byron R. White:

(Voice Overlap)

Johnson S. Savary:

— increase.

The —

Byron R. White:

(Inaudible) could your Florida producers have 150,000 gallons of milk (Inaudible)?

Johnson S. Savary:

Only if the 150,000 gallons is within the base that has been frozen and we froze the base until the Florida producers, they cannot produce an excess of that amount and get a Class I price for it.

Byron R. White:

(Inaudible) but Polar, Polar meet (Inaudible).

Johnson S. Savary:

Well, — every month that Polar sales go up and down, he knows that he can count on a 100,000 or 150,000 gallons of milk from Florida producers.

He knows that’s coming in.

And that is one to the elements and we feel that is a — a fair deal for Polar as it is a fair deal for the producers.

He’s guaranteed that much milk.

You don’t have to look for it, it’s there.

(Inaudible)

Johnson S. Savary:

Yes, sir.

(Inaudible)

Johnson S. Savary:

It was taken over by the four-year period.

About a four-year period?

Johnson S. Savary:

Yes sir.

Now, Polar’s (Inaudible)

Johnson S. Savary:

Right now if they go above it this month, he is free to contract for the amount that is —

Outside of it?

Johnson S. Savary:

Outside.

Yes, sir.

William J. Brennan, Jr.:

(Inaudible)

Johnson S. Savary:

That’s surplus milk insofar as pricing is concerned.

William J. Brennan, Jr.:

(Inaudible)

Johnson S. Savary:

You mean the freeze of the base?

William J. Brennan, Jr.:

(Inaudible)

Johnson S. Savary:

We’re speculating again as to whether it will or will not be.

We don’t foresee that see they would be changed.

William J. Brennan, Jr.:

(Inaudible)

Johnson S. Savary:

Yes, sir.

William J. Brennan, Jr.:

(Inaudible)

Johnson S. Savary:

Conceive, yes sir.

William J. Brennan, Jr.:

(Inaudible)

Johnson S. Savary:

Yes.

William J. Brennan, Jr.:

(Inaudible)

Johnson S. Savary:

Yes sir.

Thank you.

Earl Warren:

Very well.

Joe J. Harrell:

Let me direct myself just to that —

Earl Warren:

Mr. Harrell.

Joe J. Harrell:

— particular situation a moment that the base of course is certainly percentage situation of Class I sales.

It’s not only gallon into basis and the percentage totals up to 100% of Class I, that’s exactly the point sir.

In other words, it — it’s a hot — it’s a percentage not a gallonage so that so long supposed that — supposed that his Class I sales would have doubled, nevertheless, that percentage would shift upward so that if Mr. (Inaudible) who was the first producer named in the record had 8.67% for his base —

William J. Brennan, Jr.:

(Inaudible)

Joe J. Harrell:

That’s right.

Then instead of him being at that same level, he would have doubled the amount but the percentage would remain the same and there’s the base in the thing.

William J. Brennan, Jr.:

(Inaudible)

Joe J. Harrell:

No question about it.

Their law says it and — and if it’s absolutely the truth.

William J. Brennan, Jr.:

But (Inaudible), the producer and (Inaudible) ties for his purpose are only those producers who you are buying that went under —

Joe J. Harrell:

That — that is correct, yes sir.

William J. Brennan, Jr.:

So that — so that’s the only time that you will not have, let’s say 100% of your requirement because that particular could not (Inaudible)

Joe J. Harrell:

That is — that is correct.

And I don’t want to get off on something that’s not pertinent but this is very pertinent and that is that this base could be transferred so that conceivably you see to a bigger dairy.

William J. Brennan, Jr.:

You mean other producers?

Joe J. Harrell:

If the Milk put — if the Milk Commission approved it, they could transfer that to another bigger dairy and he would have to take ever increasing quantities of milk.

And I want to correct something that I said here this morning by any plaintiffs and I want to apologize.

I said the case with just cause, was the Odham case.

The Odham case which is reported in 121 So.2d 625, considered the same problem but it was the case which made the Milk Commission go to the Legislature and have the just cause redefined so that the case that considers that squarely and says that he cannot terminate that relationship without just cause is Florida Dairy versus Florida Milk Commission reported at a 149 So.2d, 867.

And I cite that at page 23 of our main brief, so I did want to clear that up but they — they touch on the both — on the same problem but this later case was after the Legislature had amended this to see that they could not terminate the relationship without just cause.

And the point that rose in that was the distributor came in and said he was losing money and he wanted to terminate the relationship.

And the Court said, “No, there’s been no abuse of discretion because sufficient just cause has not been shown even though you are losing money by having to take this milk from them, you cannot terminate the relationship so that there is another part of the same scheme that forces a milk distributor into a permanent marriage which he cannot terminate except upon the Milk Commission giving him the permission so to do and he —

Arthur J. Goldberg:

(Inaudible)

Joe J. Harrell:

I feel sure that he could.

The testimony says that he could.

Arthur J. Goldberg:

(Inaudible)

Joe J. Harrell:

Well, Mr. Justice Goldberg, the record guild the figures of the milk which he himself purchased from Black Dairy’s from these other places he supplies and for the month of November 1961 and they give the gallonage so that he shows exactly how his business was run.

Arthur J. Goldberg:

(Inaudible)

Joe J. Harrell:

That’s 70% is correct, that you — that is correct —

Arthur J. Goldberg:

(Inaudible)

Joe J. Harrell:

I’m only speaking from the record he said that it was not.

Byron R. White:

(Inaudible)

Joe J. Harrell:

Yes, sir.

Byron R. White:

(Inaudible)

Joe J. Harrell:

Yes sir, I would like to straighten you out and there again, instead of conjecture — if we will go to the record, I think that might be heavy.

The Administrator of the Milk Commission, Mr. Fisher, testified at pages 147 and 148 of the record, that if he uses Florida milk for the military, it would be Class I and he would pay 61 cents a gallon.

And the next question was, “You know that’s true?”

And Mr. Fisher says, “Yes, I know it and you do too.”

Mr. Fisher was the Administrator of the Florida Milk Commission.

Joe J. Harrell:

He was the headman in-charge and that is as clear as the record can be.

So that leaves us with this.

Your question Mr. Justice White, all throughout this argument, has been to determine whether or not there is any requirement if a gallon of Florida milk goes into the military to pay 61 cents for it.

That has been as I understand the problem.

And I tell you that the record says exactly that’s what is required to be.

Now, there’s nothing —

Byron R. White:

(Inaudible)

Joe J. Harrell:

Not a thing and there’s nothing in this record about they can make some sort of negotiated contract.

Byron R. White:

(Inaudible)

Joe J. Harrell:

Well, here — here is the reason.

I want to clear that up for you.

Byron R. White:

(Inaudible)

Joe J. Harrell:

Alright, let me — let me tell you how this came about.

There was a proposed military order which they talked about but the producers voted not to be bound by that so that that automatically took that out of the case and left in the 61 cents price.

Byron R. White:

(Inaudible)

Joe J. Harrell:

Insofar as the Pensacola area is concerned, there is not.

So that the only order and the only requirement for military milk used in the Pensacola area is 61 cents a gallon.

Potter Stewart:

But — am I right in my understanding that with respect to milk which is to be sold to the military, the military installation, there is no requirement that the — that the — that Polar first exhaust the Class I supply in the four-county area, is that right?

Joe J. Harrell:

That is not absolutely correct.

They say this.

The testimony says that insofar as the military milk is concerned, you don’t have to use Florida milk.

Potter Stewart:

That’s right.

Joe J. Harrell:

If you use Florida milk, you pay 61 cents per gallon.

Potter Stewart:

Right.

Joe J. Harrell:

That’s right.

Potter Stewart:

But there’s no requirement that you use any Florida milk?

Joe J. Harrell:

No, there is not.

That’s right — for — for the military.

Byron R. White:

(Inaudible)

Potter Stewart:

That’s the order —

Byron R. White:

(Inaudible)

Joe J. Harrell:

No sir it’s not.

I don’t find it in the record.

Byron R. White:

(Inaudible)

Joe J. Harrell:

Exactly.

Byron R. White:

(Inaudible)

Joe J. Harrell:

That’s right.

Byron R. White:

(Inaudible)

Potter Stewart:

You don’t have to exhaust the — the four-county supply.

Joe J. Harrell:

I’m frank to say that the record is devoid of that particular subject because if the Milk Commission took the position that because the producers voted down the Military Milk Order in effect that the only thing logically to draw from that was that military milk was of no concern in this case, that is the position make taken today.

But yet, the other side of the coin is if you use a gallon of Florida milk for our good Florida boys based at the Pensacola Naval Air Station, you must pay 61 cents a gallon for it.

Potter Stewart:

If you us the four-county law?

Joe J. Harrell:

If you use — that —

Potter Stewart:

— but there’s no requirement of any kind to do so?

Joe J. Harrell:

As I say, the record is devoid of (Voice Overlap) —

Potter Stewart:

But you conceived that’s correct, don’t you?

We will understand the case.

Joe J. Harrell:

Yes sir, I’m — I’m trying to help you and I say that that’s their position and so far as any order of the military — order that Polar used Florida milk for the military, there is none, to answer you directly.

Potter Stewart:

Right (Inaudible).

Thank you.

(Inaudible)

Joe J. Harrell:

Yes sir, yes sir.

There’s only one other thing.

There’ve been several references that Polar is paying the same price to producers that after the Milk Commission came in that he paid the four.

That is incorrect in our site for — so that the Court will understand that page.

The record at page 135 which clearly said that and that is this, 61 cents was paid only for an agreed amount of milk and all over that amount of milk which was furnished by these producers we’re paying for at $4 a hundred weight or 35.5 cents per gallon.

So that’s a big difference as opposed to the contention, otherwise and the record bears that out and I would like to call the Court’s attention.

Another thing is this, the Court might have some puzzle as to how could — how did this problem arise now when opposing counsel said the Milk Commission had previously been in the Pensacola area and then was out of the area.

The answer to that is this.

This is the first time since the establishment of the Milk Commission that there’s ever been a base system of allocation which takes that Pensacola area.

Joe J. Harrell:

This was the first time.

And when they were in the Milk Commission — when the Milk Commission was in before, there was never a based allocation system and of course that’s the whole bias of the thing.

And I think this Court safely understands it and I appreciate your time.