Railroad Transfer Service Inc. v. City of Chicago

PETITIONER:Railroad Transfer Service Inc.
RESPONDENT:City of Chicago
LOCATION:Leon County Jailhouse

DOCKET NO.: 209
DECIDED BY: Warren Court (1965-1967)
LOWER COURT: United States Court of Appeals for the Seventh Circuit

CITATION: 386 US 351 (1967)
ARGUED: Feb 13, 1967
DECIDED: Mar 27, 1967

Facts of the case

Question

Audio Transcription for Oral Argument – February 13, 1967 in Railroad Transfer Service Inc. v. City of Chicago

Earl Warren:

Number 209, Railroad Transfer Service, Incorporated, Petitioner, versus the City of Chicago.

Mr. Mathews.

Amos M. Mathews:

Mr. Chief Justice, may it please the Court.

Petitioner brought this action in United States District Court for a declaratory judgment that a Chicago ordinance is invalid on its face, a reason of conflict with the Interstate Commerce Act and the Commerce Clause of the constitution.

The city and the other respondents who are officials of the city filed a motion to dismiss for failure to state a cause of action.

The District Court dismissed in response to that motion and the Court of Appeals affirmed.

This Court granted certiorari.

Some of the issues in this case were presented to this Court are issues similar to those in this case, were presented to this Court in 1958 in Chicago against Atchison, Topeka, and Santa Fe Railway Company, 357 U.S.77.

In order to understand the issues in this instant case, it is necessary to refer very briefly to some of the facts in that earlier litigation.

Petitioner is engaged under a contract with the Chicago Railroads in transferring passengers between railroad stations in Chicago.

It frequently happens that a passenger engaged on a through journey through Chicago must transfer from his incoming to his outgoing railroad station.

The petitioner furnishes that service in specially designed buses.

The petitioner receives ultimate remuneration from the railroads that passenger pays nothing to petitioner.

Prior to 1955, this interstation transfer service had been performed for many years by the Parmelee Transportation Company.

During the time that Parmelee performed the service, the service was regulated by the City of Chicago along with taxicab service and other similar services by what is known as Chapter 28 of the Municipal Code of Chicago.

On June — in June of 1955, the railroads notified Parmelee that as of October 1 of that year, they would discontinue using Parmelee service and would use petitioner instead.

About a month later in July of 1955, the City Council of Chicago passed an amendment to Chapter 28 that I’ve already mentioned, that imposed two very serious obstacles or barricades to petitioner and the railroads in their expectation of launching the new service.

In the first place the amendment gave what amounted due a perpetual franchise to Parmelee to perform the service.

Secondly, it provided that a newcomer to the field, such as petitioner, must prove to the satisfaction of the public vehicle license commissioner of the City of Chicago that public convenience and necessity required the new service.

This Court in the Atchison case that I’ve mentioned held the amendment to Chapter 28 invalid because in conflict with the Interstate Commerce Act.

I’d like to mention briefly here that the evidence shows in that earlier case and it is set out both in the opinion of this Court and in the opinion of the Court of Appeals which this Court affirmed, that this action of the Chicago City Council in amending Chapter 28 as I’ve said, was a well-planned, well-conceived scheme to keep — to perpetuate Parmelee in the service and to keep — and to put petitioner out of business.

After the decision of this case in the Atchison — after the decision in the Atchison case by this Court in 1958, that restored the status quo regulatory wise that had prevailed as to this interstation transfer service before the 1955 Amendment.

In other words, in order to leave regulation or have regulation of the same type that had covered Parmelee for many years, all the City of Council had to do was simply do nothing.

But shortly after — a few months after the mandate came down in the former Atchison case, the Chicago City Council started on a course of amendment of Chapter 28 again to the great detriment of petitioner and the Chicago Railroad.

The Council amended Chapter — Section 28-6 of Chapter 28 by requiring that annually a person desiring a license to operate as a public passenger vehicle must file an application with the — well, they already had to file an application but it amended those application proceedings to provide that a person filing an application must prove to the satisfaction of the Public Vehicle License Commissioner that the applicant was qualified to pursue the occupation of a cabman or a coachman.

Now that phrase qualified to pursue the application of a cabman or a coachman included petitioner within its scope because petitioner was defined as a coachman in the ordinance.

It also included taxicabs for the most part but taxicabs operators already had to prove that they — the public convenience and necessity before conducting any operation since they were an intrastate operation, presumably that was valid, at least it’s never been challenged as to the taxicabs.

In other words, this Amendment in 1959 to Section 28-6 the — almost the entire force of it fell up on the petitioner.

This phrase qualified to pursue the occupation of a coachman was not in any sense, could not — cannot in any sense, we submit, be considered a regulation within the legitimate police power.

It gave a discretion to the Public Vehicle License Commissioner to — in his discretion, deny the application for a certificate to perform this service.

Amos M. Mathews:

And so we say that — and we cited the only case we can find on the point, the decision of the Supreme Court of Tennessee that the phrase “qualified to pursue the occupation” is a — in substance a part of the proof that has to be made in proving public convenience and necessity.

So the Chicago City Council got back on the old — in 1959, got back on the old 1955 track.

The Council amended another section, Section 28-31 of Chapter 28 required taxicab operators to furnish annually to the Public Vehicle License Commissioner a detailed financial statement showing profit and loss and all of the detailed information that and of a — an intrastate operator subject to the jurisdiction of the City Council would need to submit for the purpose of rate regulation.

But the Council by a very clear and direct amendment to that provision required or made that provision applicable to petitioner.

In other words, it’s something that the petitioner whose sole responsibility as to the railroads to — it’s furnishing the same kind of financial data to the Commissioner as taxicab operators.

Now —

Earl Warren:

Do respondents agree that that — if that was done, are you in agreement on that?

Amos M. Mathews:

No.

No sir.

Well, the — I’m not sure about that.

I’m coming to something now that I think might answer your question.

Earl Warren:

Oh, very well, go ahead.

Amos M. Mathews:

In part anyway.

And I’ll cover that exclusively after I reached this point.

Earl Warren:

Very well.

Amos M. Mathews:

Respondents now in their brief on the merits, in this Court, concede that these two provisions, these two amendments that I’ve detailed cannot be applied to petitioner.

Now they did not make that concession in their brief opposing certiorari.

In our petition for certiorari, we made the same argument in respect to these two amendments that we now make in our petition — in our brief on the merits and that I have outlined briefly in argument here.

So — but for the first time in their brief on the merits, respondents say that these two provisions cannot be enforced against petitioner.

Now either that concession means that the amendments are not applicable in terms to petitioner or it means that they cannot lawfully be applied to petitioner.

Now we submit that the two amendments are just as clearly and precisely applicable to petitioner in their wording as an arrow hitting a bull’s eye.

Therefore we say that this concession must mean that respondents are admitting that these two amendments are invalid on their face as applied to petitioner.

Now answering your question, Mr. Chief Justice, the — we have spelled this out in detail in our brief but I think I can summarize it quite —

Earl Warren:

Well, I —

Amos M. Mathews:

— expeditiously.

Earl Warren:

You don’t have to summarize for me, I just — I know that there was some phase of the facts that were interpreted differently by both sides.

Amos M. Mathews:

That is correct.

But I —

Earl Warren:

But I wonder if this was the one?

Amos M. Mathews:

This was the one, yes.

Earl Warren:

This is the one.

Amos M. Mathews:

The section regarding financial statements by taxicab operators was made in terms to apply to taxicab operators.

Among the definitions in Chapter 28, are these.

A person is defined as an individual, a firm, or a corporation, so that before the Amendment I’m referring to the taxicab Amendment — the taxicab financial statement provision applied to taxicab operators who either were individuals or partnerships, or corporations.

It applied that plainly.

Now the City Council in bringing Parmelee — bringing petitioner within the scope of that Amendment, used the word and made it applicable to every corporation that is a public passenger vehicle.

Now, petitioner is a corporation, petitioner is a public passenger vehicle.

So the language could not be any clearer, we submit.

Now —

Earl Warren:

May I ask this?

Was that Amendment before or after the case was argued in the Court of Appeals?

Amos M. Mathews:

It was — the case went to the Court of Appeals.

The first — the case has been to the Court of Appeals twice.

Earl Warren:

Yes, I mean the last time.

Amos M. Mathews:

It was amend — it was before the last argument in —

Earl Warren:

Was it raised?

Was the question raised in the court below?

Amos M. Mathews:

Yes sir.

Earl Warren:

Did they deal with it?

Amos M. Mathews:

Yes sir.

Earl Warren:

Okay, go ahead.

Amos M. Mathews:

The Court of Appeals said that the requirement to furnish financial data or words to that effect is within the ul — the legitimate police power of the city.

The Court of Appeals and the District Court too for that matter held the ordinance was valid on its face and they held that the city had taken no action of which petitioner could complain.

We submit that this concession amounts to an admission that in these two respects, the ordinance is invalid on its face.

Therefore, we submit there is a conflict between these concessions and the holding of the Court of Appeals.

And therefore, we further submit that in view of that, the judgment of the Court of Appeals should be vacated or reversed in order that a judgment maybe entered in the District Court in accordance with the concession now made in respondent’s brief on the merits.

Abe Fortas:

Are you saying to us that if respondents have made a concession on these two points that that disposes of your grievance?

Amos M. Mathews:

Not entirely, there are two other points that — in which they have not made concessions, or does that answer your question?

Abe Fortas:

I thought so, and — but are you still pressing those?

Amos M. Mathews:

Those other two points?

Abe Fortas:

Yes.

Amos M. Mathews:

Yes sir.

I was about to go to those.

There are two other points.

The ordinance was — the ordinance requires in effect and there is some dispute about this that a petitioner — any operator of a public vehicle be required to employ as chauffeurs only residents of the City of Chicago.

Now there is some dispute about that as to whether that is before the Court.

But the fact is that it was in the pleadings, it was the Court — the both the District Court and the Court of Appeals held it with before the Court and both of them decided it.

And the Court of Appeals expressly decided that it is a valid — within the police power of the City of Chicago to compel the petitioner to employ as chauffeurs only residents of the City of Chicago.

Earl Warren:

Did the city argue to that effect below?

Amos M. Mathews:

Yes sir.

Well at least — yes sir, that’s my understanding.

The other provision is this and it came in by an amendment.

The ordinance was amended after the first Atchison case to require that every public passenger vehicle operator must maintain — if a corporation, must maintain its principal place of business in Chicago.

Now petitioner has engaged in Interstate Commerce.

And we submit that it is an invalid requirement under the Commerce Clause and under the Interstate Commerce Act as far as petitioner is concerned to say that a corporation engaged in interstate commerce in Chicago must maintain its principal place of business there.

Potter Stewart:

This petitioner’s principal place of business is in Chicago?

Amos M. Mathews:

Yes sir.

This petitioner’s (Inaudible) it’s only place of business is in Chicago.

But it is our position on that, Your Honor, that at some time in the future, we may want to move our principal place of business somewhere else without ceasing to do business in Chicago.

Potter Stewart:

I’m wondering if they — if with respect to this issue, there is — really is any right case with controversy now.

Amos M. Mathews:

Well, I’m — I — with all due respect, Your Honor, we believe there is in this way.

We have encountered at times and we encountered it in this case in fact, it’s raised in respondent’s brief, in respect to Section 28-6.

In respect to 28-6 that was amended to include that qualification provision, despite the fact that that amendment was in Section 28-6, they say that since we didn’t attack Section 28-6 in earlier litigation that Section 26 — its 28-6 is valid on the principle of res judicata or at least the way I understand that argument.

Now when the time comes, if it comes, when we want to move our principal place of business, we don’t want to be met with an argument that the question res judicata because we didn’t raise it in this action.

As a matter of fact, I’d be perfectly frank if this Court should want to say that it isn’t — it wasn’t — isn’t timely raised, it can’t be raised now with adversary purpose just as well, because we wouldn’t be met with the defense of res judicata.

The —

Earl Warren:

And you don’t — then in most circumstances, you wouldn’t consider it an important issue in the case where you said it wasn’t raised?

Amos M. Mathews:

That is correct, if — well — it — well —

Potter Stewart:

You want us to make clear that you raised the point?

Amos M. Mathews:

We’d want it, I — yes, yes, sir.

Amos M. Mathews:

We would want you to make — the Court to make clear that we raised it but we wouldn’t object if the Court said that if it wasn’t ripe for consideration, yet.

Earl Warren:

I see, yes.

Amos M. Mathews:

Because in that way, that would avoid the defense of res judicata.

Earl Warren:

Yes.

Amos M. Mathews:

A great deal of the argument of the respondents is to the effect that the city has done nothing to hurt us.

But frankly, we submit and we believe that the city is trying to play the same cat and mouse game with us in this case that they tried to play in the former Atchison case.

In the Atchison case is the opinion of the — the opinion of this Court reveals.

The city said the — disclaimed any intention to use the phrase “public convenience and necessity” as an economic barrier to our operation.

They said that only compromises the reasonable incidence of the police power.

And this Court disposed of that by saying it’s perfectly clear whatever language you apply to it that the city is still claiming some power to exclude or hamper petitioner’s operations.

Now there’s a rather curious inconsistency.

Well, I’ll leave out the adjective and say it’s an inconsistency in the opinion of the Court of Appeals in this.

That in a footnote in the opinion of the Court of Appeals, the Court says that respondents now admit that they have no power to stop petitioner’s operations.

But right on the same page and not in the footnote, is this statement — well anyway, the Court of Appeals says, finds that the ordinance confers the power on the Public and Vehicle — Public Vehicle License Commissioner to deny an application.

In other words, after holding in the body of its opinion that the ordinance gives the city that power and thus as we say shows that the ordinance is invalid on its face, the Court in a footnote says that the city admits that it has no power to stop petitioner’s operations.

The — we think that in view of that omission — admission by —

Byron R. White:

What if your client insisted on his drivers not having licenses, driver’s licenses or chauffeurs’ licenses?

Amos M. Mathews:

Oh, we admit that it has to have some kind of a chauffeur’s license.

Byron R. White:

Well, so that there are some grounds on which local authorities could suspend your operations or revoke your certificate or deny an app — a new application.

There are some circumstances in which the local authorities would have power, isn’t that true?

Amos M. Mathews:

Under some circumstances, under the police power.

Byron R. White:

Well I — in some circumstances and they would have the —

Amos M. Mathews:

Yes, but they — we say that they can base the — they can’t say — they can say to us, “Your chauffeurs must have licenses as chauffeurs, driver or a chauffeur’s license”.

But we say that they can’t make the criterion for that residence in Chicago, that you must be a — the licensee must be a resident in Chicago.

Byron R. White:

Well, but I was just — I don’t see that why the Court of Appeals necessarily inconsistent.

It simply said that the ordinance does give the power to the local authorities to suspend or revoke permits or to deny an application.

That doesn’t mean it’s invalid on the state because there are some circumstances and if that (Voice Overlap) —

Amos M. Mathews:

There are circumstances within the police power but we think that the phrase used that he must prove he’s qualified to pursue the occupation of transferring passengers between stations, gives the city the right to —

Byron R. White:

I know but —

Amos M. Mathews:

— exercise an economic power.

Byron R. White:

One example of proving your qualifications to prove that you’ve got drivers who are licensed for example to drive vehicles.

Amos M. Mathews:

Oh well, but there are —

Byron R. White:

Now, isn’t that true?

Amos M. Mathews:

This is an addition to all of those others.

Byron R. White:

I know.

Amos M. Mathews:

And it is not a sum — it is not a summarization of them.

If you examine the structure of the —

Byron R. White:

Well, you don’t even know what — but, you don’t know and I guess this is your point, what qualifications the city is going to insist though?

Amos M. Mathews:

That is right.

Byron R. White:

You have no — except that you have them because you’re licensed.

Amos M. Mathews:

That is right.

Byron R. White:

What’s wrong — what’s the — then why, why shouldn’t the Court wait and see the circumstances in which — or the qualifications on which the city is going to insist and the circumstances in which you might be denied the right to —

Amos M. Mathews:

Because the city — because — two answers to that, because of our past experience with the city of deliberately trying to put us out of business and we think this is another attempt along the same line.

Byron R. White:

Yes, but they’re licensed, I mean, if you — license is every year.

Amos M. Mathews:

No, we’ve had licenses in the first year which we obtained under the rest.

And since then, we’ve been depositing the license fee without obtaining licenses in the Office of the Clerk of —

Byron R. White:

Yes.

Amos M. Mathews:

— the District Court.

Byron R. White:

But they haven’t refused the license fees?

Amos M. Mathews:

No, they have not.

Byron R. White:

And —

Amos M. Mathews:

But someday, we think they will under critical times.

Byron R. White:

Well, why is that —

Amos M. Mathews:

Now the point is we don’t —

Byron R. White:

Why is that — why isn’t that a good time then to test out the validity of this ordinance since there are some circumstances on which you admit they could deny you —

Amos M. Mathews:

Those circumstances are spelled out in the ordinance and we don’t attack them.

But to superimpose this discretionary qualified to pursue the occupation.

The only two cases we can find on that that used that language say unreserved a bit that that gives a discretion beyond ordinary police power qualifications.

I would like to reserve if I can just a few minutes I have left for —

Earl Warren:

You may, Mr. Mathews.

Earl Warren:

Mr. Simon.

Raymond F. Simon:

Mr. Chief Justice, may it please the Court.

At the very outset, the city would like to make it clear that it fully understands the opinion of this Court in Atchison.

The City of Chicago does not urge upon this Court any change or modification whatsoever in the opinion enunciated in Atchison versus Chicago, 357 U.S. 77.

In that case, this Court held at pages 88 and 89, the city retains considerable authority to regulate how Transfer vehicles shall be operated.

It could hardly be denied for example, that such vehicles must obey traffic signals, speed limits, and other general safety regulations.

Similarly, the city may require registration of these vehicles and exact reasonable fees for their use of the city streets.

All we hold here and all we construe the Court of Appeals as holding is that the city has no power to decide whether Transfer can operate a motor vehicle service between terminals for the railroads because this service is an integral part of Interstate Railroad Transportation authorized and subject to regulation under the Interstate Commerce Act.

It is not the city which is attempting to avoid this Court’s opinion in Atchison, but rather it is Railroad Transfer which has been dissatisfied with the outcome of the litigation in Atchison which struck down only Section 28-31.1 relating to public convenience and necessity and sustained the entire remainder of the chapter, it’s Transfer which has begun this litigation anew in its attempt to accomplish what it failed to accomplish when the first litigation took place.

Byron R. White:

Now could you help me out — well, there’s no suggestion that there is — that there’s anything wrong when they’re litigating the validity of this ordinance, is there?

Earl Warren:

No, Mr. Justice.

Byron R. White:

Well, would you — are you (Inaudible) and you are sustaining or saying that neither — that the District Court didn’t have any jurisdiction —

Raymond F. Simon:

No.

Byron R. White:

— to entertain this suit?

Raymond F. Simon:

The point, Mr. Justice White that I’m attempting to make is that throughout its briefs, Transfer argues that the City of Chicago is endeavoring to subvert the opinion of this Court in Atchison.

In the brief, Transfer argues that it was a hostile City Council, bent and subverting this Court’s opinion which in a diehard effort to impair constitutional rights amended Chapter 28 and inserted the provision relating to as — Transfer argues —

Byron R. White:

Well I’m not sure —

Raymond F. Simon:

— convenience and necessity again.

Byron R. White:

I’m not sure what helps to decide the case, to find out who was trying to subvert what —

Raymond F. Simon:

Well, forget —

Byron R. White:

— to be — real — isn’t it really the issue is the validity of this ordinance under the constitution or no?

Raymond F. Simon:

Yes, it is, Mr. Justice White and perhaps what would the city —

Byron R. White:

Well, was —

Raymond F. Simon:

— perhaps the city was just —

Byron R. White:

But the Court of Appeals decide that that there was no jurisdiction to decide the case?

Raymond F. Simon:

The Court of Appeals really held that there was no controversy.

Byron R. White:

It says, but if —

Raymond F. Simon:

But the question which you presented to Mr. Mathews was really the basis of the Court of Appeals’ opinion.

They said there is no controversy.

Byron R. White:

Yes, but they said —

Raymond F. Simon:

The City of Chicago has issued all of the licenses which Transfer his applied for.

What Transfer was required to present was simply a one page application, a one page financial statement, a list of its equipment, its corporate charters, certificate to do business in Illinois, its insurance policy, and its fees, and nothing more.

And the City of Chicago issued all of the licenses which Transfer applied for and the Court of Appeals could find no controversy.

Byron R. White:

But it says the District Court found jurisdiction to entertain Transfer’s second amended complaint.

We agree — do they say we — you do have jurisdiction.

Raymond F. Simon:

Yes sir.

Byron R. White:

And then they said there was no controversy?

Raymond F. Simon:

Your Honor was that relates to as in the initial complaint, the city asserted that the amount in controversy was not sufficient to give jurisdiction that the amount of fees that had accumulated was not equal to the jurisdictional amount.

And then Transfer amended and said that they seek jurisdiction based upon the Interstate Commerce Clause —

Byron R. White:

Yes.

Raymond F. Simon:

— the Commerce Act.

And it was on that basis that the courts said they do have jurisdiction.

But the sequence of events which led from the District Court through the Court of Appeals and to this Court illuminate with harsh clarity the insincerity of the arguments which Transfer advances in the present litigation in the District Court.

Both the complaint and the opinion of the Court indicated that Transfer was concerned about the payment of fees.

The District Court said and I quote from the record at page 133, “If I am to find the principal source of plaintiff’s claim of grievance, it is that plaintiff has required to pay an annual license or tax to the City of Chicago for the privilege of operating its terminal vehicles whereas public utilities and other companies carrying out a similar business are not subject to the same requirement”.

The District Court found the classification was reasonable and dismissed the complaint.

Then in the Court of Appeals, Transfer tried a new attack.

And the Court of Appeals had complained that our ordinance was invalid because it did not provide for some administrative hearing before there might be consideration given to revocation of licenses.

And it argued that certain safety regulations were invalid because they required that a vehicle should be of a uniform color for example.

And they argued again that the requirement — that the principal place of business of coachmen be in the city and that their chauffeurs be residents of the city.

All these arguments were advanced as to the invalidity of the Municipal Code of Chicago.

Abe Fortas:

Mr. Simon I am having one difficulty in finding out just what the issues are.

Raymond F. Simon:

Mr. Justice —

Abe Fortas:

I’d like to ask you specifically in the 28-6.

Does the city now say that with respect to the petitioner here, the Commissioner does not have jurisdiction to make the planning that the applicant is qualified or is not qualified to engage in this business.

What is your position?

As I understand it, 28 — under 28-6 petitioner takes position that they did file an application under duress and it was granted.

But that requiring them to seek a determination from the Commissioner that they are not qualified to carry on this business is in conflict with the Commerce Clause with this Court’s decision in Atchison.

Then I understood counsel — Mr. Mathews to suggest that perhaps you had conceded, he said he has conceded that 28-6 phrase that I read from 28-6 it is a dead letter.

Raymond F. Simon:

Yes.

Abe Fortas:

But what is the city’s position?

Raymond F. Simon:

Mr. Justice Fortas, the city’s position is that the record does not show whether Section 28-6 was applied to Transfer.

The reason I’m sure that the record doesn’t show whether or not it was applied was that this argument was not the issue —

Abe Fortas:

I know —

Raymond F. Simon:

— down the District Court.

Abe Fortas:

— but I’m asking you now.

I thought — that’s the issue that they’re trying to present to us anyway —

Raymond F. Simon:

And in regard to —

Abe Fortas:

And under what — maybe it is or is not properly before us.

Raymond F. Simon:

Mr. Justice, in regard to your specific question, the city in its brief was attempting to contradict transfer, not concede that qualified to pursue the occupation of a coachman was not applicable.

The city was attempting to deny that the interpretation of that phrase is correct.

The city takes the position that Section 28-6 must be read as a unity.

And the first sentence —

Abe Fortas:

Alright, I beg your pardon Mr. Simon, I don’t want to press you unduly.

But it is stated to us that this phrase that I read to you —

Raymond F. Simon:

Yes.

Abe Fortas:

— was incorporated in these — in this ordinance —

Raymond F. Simon:

That’s right.

Abe Fortas:

— after our decision in Atchison.

And the petitioner here says that it should not be required to seek a determination from the Commissioner in the City of Chicago as to whether it is or it is not qualified.

And I think — I’m sure I’d be very grateful to you if you just tell me plainly whether the city fixed the position that this phrase that I read is or is not applicable here.

And whether the petitioner does or does not have to submit an application, whether the Commissioner does or does not have a jurisdiction under the city’s view to make the determination as to qualification of the petitioner.

Raymond F. Simon:

Well, Mr. Justice, I — really and truly, I’m not trying not to evade your question.

But the record does not show whether or not it was applied.

If it were to be applied, it must be applied in accordance with the entire Section so that if this Section 28-6 is read in its entirely, the word qualified means that the Commissioner finds that the applicant is a law abiding citizen with financial ability to carry on safe and comfortable service, maintain and replaces equipment and pay his judgments.

This is the list of qualifications.

And in this context, yes, the provision applies.

It can only be read together what counsel for Transfer is attempting to present to the Court as an interpretation which separates the first sentence of Section 28-6 from the second sentence.

Potter Stewart:

That’s the way the 28-6 seems to read —

Raymond F. Simon:

Well —

Potter Stewart:

It requires that the applicant specifically do all these things you’ve mentioned and then it said, and that the applicant is qualified to the city occupation of the cabman or coachman which seems to superimpose as your Brother, opposing counsel said, an additional requirement.

Raymond F. Simon:

No, the first sentence would be meaningless —

Potter Stewart:

The word and —

Raymond F. Simon:

— Mr. Justice.

Potter Stewart:

— would seems to be adding something additional.

Raymond F. Simon:

Well, what the section says is that the Public Vehicle Commissioner shall determine if the documents that must be filed are properly executed and determine if the applicant is qualified.

And the lists of qualifications are those that are set out in the first sentence.

He must determine whether his character and reputation is that of a law abiding citizen.

He must determine that he has the financial ability to render safe and comfortable service.

He must determine that he is able to maintain and replace the equipment for such service and pay judgments that arise in the conduct of his business.

These are the lists of qualifications.

If he meets these qualifications, he does not get a contract to work for the railroads.

He gets his licenses.

And this is one of the essential fallacies of Transfer’s argument is that there is a basic distinction between the city’s attempt to regulate whether a particular terminal vehicle service can operate which is clearly unconstitutional

Abe Fortas:

Precisely what part of 28-6 was added after our decision in Atchison?

Was it just this phrase about the Commissioner finding that the applicant is qualified?

Raymond F. Simon:

If —

Abe Fortas:

Is that the only thing that was added to 28-6?

Raymond F. Simon:

No, the word that was added was to pursue the occupation of a cabman or coachman whereas in the past, it read, if he’s qualified as a cabman, I believe.

Abe Fortas:

Well —

Raymond F. Simon:

Now —

Abe Fortas:

— that doesn’t seem squarely pure interpretation (Voice Overlap) —

Raymond F. Simon:

Well, the reason for the insertion is a very simple explanation and it’s so unsophisticated that it’s hard to present the City of Chicago —

Abe Fortas:

(Inaudible)

Raymond F. Simon:

The City of Chicago has these categories of licensees, cabman which includes taxicab operators and every vehicle operators and sightseeing buses and terminal vehicles.

Now what the city did at the time it was amending this law was to separate cabman from all others because we have well over 5000 taxicabs in Chicago and that’s the bulk of our regulation.

Then we took the word coachman and defined it to include busman, delivery vehicles, and terminal vehicles.

We no longer have a definition for the word busman.

That was completely dropped out of the ordinance.

It’s not covered by coachman.

Raymond F. Simon:

The word coachman was inserted here simply to make it clear that this is the universal inclusive of public passenger vehicles.

It includes cabman.

It includes coachman.

It’s another way of saying it includes taxicabs, delivery vehicles, sightseeing buses, and terminal vehicles.

And that is all that this section was amended to change.

It’s a very bland amendment.

But what counsel has attempted to do is to make equivalent to public convenience and necessity, the use of the simple words pursue the occupation of a coachman.

Now the city contends —

Hugo L. Black:

Well that would be true, would it not, if what you are seeking to accomplish by this —

Raymond F. Simon:

No

Hugo L. Black:

— just to —

Raymond F. Simon:

No.

Hugo L. Black:

— to decide that these people cannot operate this terminal facility.

Raymond F. Simon:

Perhaps it would clarify it somewhat, Mr. Justice Black to say that there are two aspects of the occupation which we may focus on.

One is the aspect of operating the vehicles on the streets of the City of Chicago.

That’s pursuing the occupation of a coachman.

Another aspect is contracting with the railroads to do their business for them.

Now the city maintains that this Court said, “We could not — we could regulate how they maintain their vehicles”.

Hugo L. Black:

Do you say you could regulate with consequences that would have the same effect as licensing them to do this interstate business?

Raymond F. Simon:

Absolutely not.

That’s precisely what this Court told us we could not do.

And we contend we’re not —

Hugo L. Black:

But I understood from you, I maybe wrong, I understood from you to say that he is required to do these certain things.

If he doesn’t do it, he can’t get a license.

Now what’s the consequence if he is not getting a license —

Raymond F. Simon:

If he doesn’t obtain a license, we’ll file —

Hugo L. Black:

— in the city?

Raymond F. Simon:

If he does not obtain a license, we’ll file a lawsuit to compel him, to take out a license and pay us the fees because we have a right to know that their vehicles are safe.

This Court has held that that right is permitted to cities and unless they come in and submit their vehicles for testing and take out a license after they show their qualifications to the city, we won’t know whether the vehicles are safe —

Hugo L. Black:

Would you require the railroad —

Raymond F. Simon:

— and this is an obligation which we owe to the people of Chicago.

Hugo L. Black:

Would you require this with the railroad?

Raymond F. Simon:

The railroads don’t operate on the streets of the city.

Mr. Justice, I’m sure —

Hugo L. Black:

But they operate through the city, do they not?

Raymond F. Simon:

They —

Hugo L. Black:

(Inaudible)

Raymond F. Simon:

— do operate through our city.

There’s no question that they do but you see railroad terminal is a unique kind of interstate operator.

Its sole business is limited to one or two square miles within the center of the City of Chicago.

It never leaves our city.

It operates its business completely upon the city streets.

And this Court has always held that there’s a balancing between the inconvenience to the interstate carrier and the benefit to occur to the public.

And we maintain when their whole business is derived from transporting passengers on the city streets.

We have a right to impose reasonable safety regulations and collect fees for that.

And we believe that’s consistent with this Court’s opinion in Atchison.

Hugo L. Black:

Do I understand you to make the statement here about the City of Chicago that there’s nothing in this ordinance which it thinks or believe to give it the right to attach consequences which would prevent this company from operating on the streets of Chicago?

Raymond F. Simon:

Yes, Mr. Justice, that’s true.

We do not believe that we can prevent Transfer from operating.

What we do believe we have a right to do, if they refused to take out licenses, if they just take the position that they’re an interstate carrier, we’ll have absolutely no regulation from Chicago, we’ll file a lawsuit and we’ll ask the Court to order them to meet the qualifications of our ordinance, to submit their vehicles for testing and to show that they are law abiding citizens with financial ability to maintain safe and comfortable service and to maintain and replace their equipment.

That’s the city’s position, Mr. Justice.

Earl Warren:

How about your requirement that they maintain a principal place of business in Chicago and that all their employees must live in Chicago?

Raymond F. Simon:

Mr. Chief Justice, we contend that this is not an issue in this litigation because the allegation and the complaint of Transfer states that they’re a Delaware corporation with their principal place of business in the City of Chicago.

And we maintain that it is because their business involves transporting passengers from one railway station in Chicago to another railway station in Chicago that accounts for their residents and their principal place of business being in the city and that in a requirement of our ordinance.

Earl Warren:

How about the requirement that all employees must live in the City of Chicago?

Is that a safety measure?

Raymond F. Simon:

Yes, Your Honor, we believe it is in the sense that it was litigated in the Bulks (ph) case in the Illinois Supreme Court and in the sense that the Court of Appeals refers to it in this litigation in which they articulate the expression of accessible responsibility.

And by that expression they mean that if the residents reside within the city, they’re within the reach of those investigative and police officials who have as their business supervising the conduct of taxicab and railway transfer vehicles in the city.

Their residents will be within the reach of those officials who have business with them.

Hugo L. Black:

Do you consider this a license which you require to be the equivalent of a charge to an out-of-state vehicle for actually using the roads, the actual value of the use of the roads?

Raymond F. Simon:

No, Your Honor, we do not.

We consider this charge to be equal to the cost to the city to offset the administration of the licensing provision.

In other words, the amount of money which is paid to the city is equal to what it costs the city to have clerks to process the paper and to have men to test their vehicles.

Hugo L. Black:

Why did you put it in the form of a license rather than a charge?

Raymond F. Simon:

Well it was cast in that regard historically, Your Honor.

And I don’t think it would be material if it were on either manner.

It was —

Earl Warren:

What is the license?

Raymond F. Simon:

The license fee?

Earl Warren:

Yes.

Raymond F. Simon:

The charge?

I believe its $40 for a seven-passenger vehicle.

That’s $40 for a seven-passenger vehicle.

Byron R. White:

Would you say there though, there’s no criminal penalty to any kinds of — or even (Inaudible) penalty to refuse for operating without a license?

Raymond F. Simon:

No, I didn’t say that, Your Honor but the city — the Section relates to all of the public vehicles in the City of Chicago, cabman and coachman —

Byron R. White:

Because really the conflict, the city wanted to (Inaudible) having these there are ordinances to enforce the licenses?

Raymond F. Simon:

It could file a lawsuit and attempt to charge a penalty, that’s correct.

Byron R. White:

Criminally?

Raymond F. Simon:

Yes, that’s correct.

Criminal in the sense of fine, there’s no imprisonment for operating without a license.

It’s a fine, I believe, of a maximum of $200.

Abe Fortas:

How about the requirements of filing a balance sheet in the property loss statement, does the city require that of taxicab companies?

Raymond F. Simon:

No.

Abe Fortas:

Which it filed balance sheet —

Raymond F. Simon:

No.

Abe Fortas:

— for property loss statement.

Raymond F. Simon:

No, Mr. Justice, no.

That section that you’re alluding to I believe is Section 28-30.1, am I correct?

Is that what you’re —

Abe Fortas:

Well, I’m looking at the questions in petitioners’ brief on page 3 and the specific questions that they present to us on number two.

Raymond F. Simon:

Yes.

But what —

Abe Fortas:

Whether Chicago may by the ordinance compel the petitioner to file a statement of expenses and earnings in its balance sheet.

Raymond F. Simon:

Yes, we take the position that that Section does not relate to Transfer.

That Section is 28-30.1.

It has not been applied to Transfer.

There’s no showing in the record that it applies to Transfer.

And it’s inserted in our ordinance in the Section that relates to the fixing of fees for taxicabs.

It’s the Section that relates to rates.

Abe Fortas:

I see.

Raymond F. Simon:

And the word —

Abe Fortas:

How about (b), to afford the city officials access to its business and financial books and records?

Raymond F. Simon:

These are the provisions of the Section —

Abe Fortas:

(Inaudible) your answer —

Raymond F. Simon:

— which we contend does not apply.

Abe Fortas:

Your answer is the same.

The city agrees that it does not apply?

Raymond F. Simon:

Correct.

Abe Fortas:

Now —

Raymond F. Simon:

And when we —

Abe Fortas:

— on the next page, employ only residents, that is an issue before us, isn’t it?

Raymond F. Simon:

Yes, we believe that there’s (Voice Overlap) —

Abe Fortas:

Employ only residents of Chicago as drivers.

And the next one (d), to maintain the principal place of business in (Inaudible) you take the position that that is —

Raymond F. Simon:

That is (Voice Overlap) —

Abe Fortas:

— a question that’s not properly here —

Raymond F. Simon:

Yes.

Abe Fortas:

— for decision.

Raymond F. Simon:

Yes, Mr. Justice, that’s correct.

Hugo L. Black:

What you have in effect as I understand you, there’s a license to be charged, the operation of these interstate vehicles and for a violation of the law requirement of license, parties can either be fined or they can be sued?

Raymond F. Simon:

That’s correct, Mr. Justice but its important —

Hugo L. Black:

Do you have any other interstate vehicles that are required to be licensed?

Raymond F. Simon:

No, Mr. Justice, there are no other vehicles in the entire City of Chicago like Railroad Transfer’s vehicles.

Railroad Transfer is a unique —

Hugo L. Black:

You don’t think —

Raymond F. Simon:

— or at least unusual.

Hugo L. Black:

You don’t think you could license a railroad train, do you?

Raymond F. Simon:

No, no Mr. Justice, I don’t.

I don’t think the city would contend that but the railroad trains —

Hugo L. Black:

In the context here —

Raymond F. Simon:

— do not operate on the city streets.

Hugo L. Black:

In the context here, what’s the difference between licenses — this interstate vehicle as licensing a train —

Raymond F. Simon:

That this —

Hugo L. Black:

— or parts of it?

Raymond F. Simon:

That this interstate vehicle makes its sole living from the use of the streets of the City of Chicago.

Hugo L. Black:

Now the railroad makes a part of that living from the use of the streets, is it not?

Raymond F. Simon:

No, Mr. Justice, they own their own railroad right away.

They do no travel upon the city streets and make their entire business from transporting passengers and baggage over the city streets.

Hugo L. Black:

What about buses, interstate buses?

Raymond F. Simon:

The buses are not within the range of the city’s ordinance.

Hugo L. Black:

Why not?

Raymond F. Simon:

Because —

Hugo L. Black:

You could do it the same as you could do this one, couldn’t you?

Raymond F. Simon:

No, because our State Commission has preempted the regulation of —

Hugo L. Black:

Your state hasn’t, but why couldn’t it do that to the interstate buses if it can do it to this interstate bus?

Raymond F. Simon:

Because the city’s authority to regulate does not extend beyond its corporate limits.

And this interstate carrier operates solely within the municipality of the City of Chicago.

Its entire business is conducted —

Hugo L. Black:

Operate its interstate business within the City of Chicago?

Raymond F. Simon:

That’s correct, Mr. Justice.

Byron R. White:

Do you know whether or not you have a terminal railroad in the City of Chicago that operates fully interstate?

Raymond F. Simon:

No, we do not have, unless you would look upon our mass transportation system as that kind of a railroad and even that extends into the entire county area.

We do not have an interstate railroad.

Byron R. White:

Do you think the Commission does that you have the — does the — Commission doesn’t hold regulation (Inaudible)?

Raymond F. Simon:

Our State Commission?

I don’t know the answer, Mr. Justice.

The City of Chicago does not.

Earl Warren:

Is there anything in the record to indicate to what extent the city intends to enforce this ordinance against the petitioner?

Raymond F. Simon:

Mr. Justice, the record shows that the City of Chicago issued all of the licenses which —

Earl Warren:

No.

Raymond F. Simon:

— Transfer applied for —

Earl Warren:

That isn’t the answer.

I said, is there anything in the record to indicate to what extent the city expected — intended to enforce the provisions of this ordinance for at least those provisions that are complained at in the complaint.

Raymond F. Simon:

Are you addressing the question to Section 28-6?

Earl Warren:

The one that’s in question here.

Raymond F. Simon:

The record is absolutely silent on whether that section has been applied.

And the reason of silent is that it was not the issue in the trial court wherever the — where evidence was taken.

Our position is that if it does apply, it must be applied in the sense of the qualifications being those set out in the first sentence relating to safety requirement.

Earl Warren:

I — at some place, I got the impression that the city had stated that it intended to enforce all the provisions that are complained against here —

Raymond F. Simon:

I know — I know now —

Earl Warren:

— against — against the —

Raymond F. Simon:

I know now Mr. Justice what you’re referring to.

Earl Warren:

Yes.

Raymond F. Simon:

That was a letter written by the Public Vehicle License —

Earl Warren:

Right.

Raymond F. Simon:

— Commissioner when Transfer did not apply for licenses.

And it was a letter which was not a work of art written by attorneys.

It was a letter which in essence said, pay up or stop doing business in the City of Chicago.

The City of Chicago does take the position that we will not and that we cannot stop Transfer from operating because as Mr. Justice Black points out they are an interstate carrier.

And you told us in the Atchison decision that we could not decide whether they can operate.

Raymond F. Simon:

All we’re trying to do is to decide how they operate their vehicles.

In our ordinance we contend relates to safety requirements.

Earl Warren:

Is that letter in the record?

Raymond F. Simon:

Yes, it is.

It is in the record and the letter does say, “Apply for your licenses and pay the fees or cease-and-desist doing business.

We —

Byron R. White:

(Inaudible) don’t say that now do you, and you’d still litigate (Inaudible) that a license is required for Transfer to operate —

Raymond F. Simon:

We say a license is required but we deny that the way in which we’ll enforce —

Byron R. White:

Yes, but whatever the qualifications are that you will insist on to get a license, you are insisting that the Transfer had.

Raymond F. Simon:

That they — yes.

Byron R. White:

That they must have the qualification to present —

Raymond F. Simon:

That is correct.

Byron R. White:

They must be licensed and here the qualifications for licenses.

Raymond F. Simon:

That is correct, Mr. Justice.

Byron R. White:

And those qualifications, are those in 28-6 (Voice Overlap)?

Raymond F. Simon:

In the first sentence.

Byron R. White:

Are there any other?

Raymond F. Simon:

Those are the qualifications.

Byron R. White:

Are there — there are no others?

Raymond F. Simon:

No.

No, no.

The payment —

Byron R. White:

And if the — and if they —

Raymond F. Simon:

The payment of fees and so on but no other qualifications, that’s correct.

The qualifications are set out —

Byron R. White:

Why can’t they use —

Raymond F. Simon:

— in those three phrases.

Byron R. White:

It seems to me like you do — you concede or in a sense concede that you could not apply criminal penalties to Transfer for operating without a license because that’s very close to saying you can stop the operation.

Raymond F. Simon:

Well, what we’re saying is that the City of Chicago would not stop them.

We would ask the Court to order them to comply with our ordinance.

Raymond F. Simon:

I think Mr. Justice that the gist of our ordinance is that we want them to submit their vehicles so we can have a safety test.

We want them to carry insurance so that the public will be protected.

We want them to be law abiding citizens so that the management will be responsible.

That’s in essence what that Section relates to.

Byron R. White:

Well what about financial ability?

It’s to conduct the business of the cabin, now that’s the — (Voice Overlap) —

Raymond F. Simon:

(Inaudible)

Byron R. White:

— close to —

Raymond F. Simon:

Yes.

Byron R. White:

— the considerations that —

Raymond F. Simon:

Yes.

Byron R. White:

— the Commission would enter into —

Raymond F. Simon:

I think the financial ability would be satisfied by the showing that they carry insurance.

Byron R. White:

We just don’t know.

Are you —

Raymond F. Simon:

That’s correct because it wasn’t litigated.

That’s correct.

William O. Douglas:

You don’t mention 202 (c) in your brief?

Raymond F. Simon:

No because we don’t —

William O. Douglas:

I think —

Raymond F. Simon:

— debate the question that this is a link in interstate commerce.

William O. Douglas:

Do you deny that it is?

Raymond F. Simon:

No, we do not deny that it is.

No, we don’t.

William O. Douglas:

Well, the way you just treat this in the same as if it were a rail carrier or —

Raymond F. Simon:

Well they are — I think —

William O. Douglas:

— truck carrier —

Raymond F. Simon:

They’re really unique —

William O. Douglas:

(Inaudible) as they come.

Raymond F. Simon:

They’re in a unique situation, Mr. Justice Douglas because they’re not regulated by the Interstate Commerce Commission in the same way that other interstate transportation companies are.

Raymond F. Simon:

They don’t test their vehicles.

They don’t subject them to the requirements.

But they are deemed a link in interstate commerce and they are clothed with that protection of interstate business.

Thank you.

Earl Warren:

Mr. Mathews.

Amos M. Mathews:

I want to refer very briefly to the concession that I mentioned in my argument and I want to read them or the part of them.

On page 16 of respondent’s brief on the merits, “The city specifically denied that Transfer must prove annually that it is qualified”.

Hugo L. Black:

Denies what?

Amos M. Mathews:

The City specifically denied that Transfer must prove annually that it is qualified.

Well, now what we say, as I said before the — in as much as the Court of Appeals held that valid, that to affirm the judgment of the Court of Appeals would be to affirm a legal situation that the city now concedes — cannot be applied to petitioner.

Then in respect to the financial statement Section 28-31, I quote, “Section 28-31 was designed to apply only to taxicab operators for use in determining rates.

It does not apply to petitioner”.

The trouble of it is, the Court has held that it applies to petitioner.

The Courts upheld this requirement of filing financial statements, I mean the Court of Appeals.

So you have a direct conflict here between the opinion of the Court of Appeals and these concessions.

That is why we say on these two points, there must be a vacation or a reversal to line up the judges so that the District Court may enter a judgment in accordance with these concessions which we submit are correct statement of the law, that they can’t make us prove annually that we are qualified and they can’t make us furnish these financial statements.

Now, one thing I overlooked doing in my opening argument was to call attention to the fact which probably is unnecessary that the Chicago Terminal Railroads with the permission of the Court have filed a brief as a friend of the Court urging reversal of this cause and advising the Court that they have precisely the same interest in this case as petitioner had because petitioner is in effect the alter ego of the railroads under 202 (c) that Mr. Justice Douglas mentioned and in the holding of this Court in the Atchison case.

In the Atchison case, the railroads may perform the service by themselves or by their authorized agent.

Thank you.

Earl Warren:

Mr. Simon, may I ask you if in a word you can tell us whether the concessions you made in your brief have just been referred to calls for vacation or reversal of the case?

Raymond F. Simon:

Mr. Justice, we do not make that concession.

It’s unfortunate that the use of the italics confuses the intention of the city.

Earl Warren:

Where is — where is (Voice Overlap) —

Raymond F. Simon:

On page 16 in the —

Earl Warren:

In your brief?

Raymond F. Simon:

In our brief.

It says, “The city”, and it’s in italics, “The city specifically denies that Transfer must “prove annually that it is qualified”.

We mean — we deny their interpretation that they prove that they’re qualified to contract with the railroads to perform their interstation business.

We do maintain they must annually prove they’re qualified by showing that they’re law abiding, that they have sufficient financial ability to carry on safe and comfortable service.

In other words, the qualifications that are in the first sentence of Section 28-6 do apply the assertion that we are interested in determining whether or not an interstate business is qualified to work for the railroads, we categorically denied.

Raymond F. Simon:

What we’re saying in the section that as Transfer interprets that language, we denied that they ever annually or ever must prove they’re qualified.

As the language is clearly set out in Section 28-6 which relates to financial ability not Section 30.1 which Mr. Mathews alludes to, as the Section is set out in 28-6, we do assert that it’s applicable to Transfer and we use the italics to call attention to the fact it was their interpretation.

Reading the Section completely disassociated with the first sentence that we denied.

Earl Warren:

How about the other concession?

Raymond F. Simon:

What other concession?

Earl Warren:

What — wasn’t there another concession to —

Raymond F. Simon:

No.

No, that is not another concession because —

Earl Warren:

Right.

Raymond F. Simon:

— Section 28-6 uses the word financial responsibility.

That Section is applicable to Transfer.

Section 30.1 which requires the furnishing of financial data relates to cab companies and is intended to apply to fixing of rates and does not apply to Transfer.

So we’re not making a concession that 28-6 does not apply when we say that they do not have to furnish the detailed financial records that are covered by 30.1.

Earl Warren:

How much they established had been?

How much they established their financial responsibility?

Raymond F. Simon:

What they did in the present instance was to furnish a one page financial statement showing their balance, the value of their equipment, and the outstanding liabilities.

And nothing more was required of them.

Byron R. White:

And you just —

Raymond F. Simon:

And that’s —

Byron R. White:

You just told me a minute ago they weren’t even required to do that.

All they have — for financial ability, you said all they have to do is prove their insurance —

Raymond F. Simon:

In my opinion —

Byron R. White:

(Inaudible)

Raymond F. Simon:

In my opinion their licenses would be issued if they had insurance.

The requirement of showing financial ability was satisfied by showing of a simple six-line financial statement.

I don’t think the city would insist upon any specific dollar balance.

I think we ask for the statement simply to see what it says, to see if they have hundreds of tort judgments outstanding against them for running over passengers and pedestrians in the city.

Then we called to the attention of the railroads the kind of contracting party they’re operating with.

Then we might file a lawsuit and attempt to enjoin them from operating.

That’s what we mean by the Section.

Hugo L. Black:

What you are doing in the way of regulating them as for their financial ability I assume you would read that the Interstate Commerce Commission can do it if Congress authorizes them.

Raymond F. Simon:

Yes, and if —

Hugo L. Black:

And if the city (Voice Overlap) —

Raymond F. Simon:

And if they were preempt —

Hugo L. Black:

— that the Interstate Commerce, that Congress has power to — impose every regulation you’ve imposed?

Raymond F. Simon:

But Mr. Justice —

Hugo L. Black:

Would it have?

Raymond F. Simon:

I’m sorry, I didn’t get —

Hugo L. Black:

Would Congress have a power and authority to impose every regulation you’ve imposed on this interstate carrier?

Raymond F. Simon:

I believe they would, yes.

I believe they would but I don’t believe that the city cannot exercise regulatory powers if they relate to safety in the same areas as the interstate commerce —

Hugo L. Black:

Why do you want to do it under the name of a license claim, put them in jail if they do not do it?

Raymond F. Simon:

Well the Section as I point out Mr. Justice relates to the entire ambit of public passenger vehicle operators.

Cabman and coachman include every public passenger vehicle.

Transfer has 20 vehicles and as included in that section.

It was not designed primarily for them.

It applies to them, and we think the application is reasonable and should be sustained but the use of the license is because we have over 5000 taxicabs, several hundred delivery vehicles, a dozen or more sightseeing vehicles —

Hugo L. Black:

Do you mean you have —

Raymond F. Simon:

— all of which —

Hugo L. Black:

— 5000 engaged in interstate commerce?

Raymond F. Simon:

No, no.

No, Your Honor.

The section relates to —

Hugo L. Black:

Well this of course has to be put in a special spot because it’s operated by interstate commerce for and a part of interstate commerce.

Raymond F. Simon:

This Section that we’re debating Mr. Justice relates only to safety requirements.

And this Court has said, we could impose safety requirements upon Transfer.

And this Court told us in the same sentence that Transfer was an interstate carrier.

In the opening Section which I quoted in this argument where it said, “All we hold is that the city cannot determine whether or not Transfer operates —

Hugo L. Black:

Cannot what?

Raymond F. Simon:

This Court said, “All we hold in Atchison and all we construed the Court of Appeals is holding is that the city cannot determine whether Transfer may operate for the city retains —

Hugo L. Black:

Why couldn’t it —

Raymond F. Simon:

— considerable authority —

Hugo L. Black:

Why —

Raymond F. Simon:

— to regulate how they operate”.

Hugo L. Black:

Why can’t it determine whether they’re not being operated?

Even if — you all — that you say you want to do here.

Why you couldn’t that put them out?

Suppose this was an individual and you put him in jail for not getting a license —

Raymond F. Simon:

Well —

Hugo L. Black:

— could you do that?

Raymond F. Simon:

Mr. Justice, the —

Hugo L. Black:

Could you do that?

Raymond F. Simon:

We take the position that we cannot stop him from operating.

Hugo L. Black:

Well, but you —

Raymond F. Simon:

We would have —

Hugo L. Black:

— you could put him in jail couldn’t you —

Raymond F. Simon:

We’ve —

Hugo L. Black:

— for violating this law?

Raymond F. Simon:

We filed a lawsuit if —

Hugo L. Black:

Well, you could put him in jail too, couldn’t you?

Raymond F. Simon:

If the Court ordered that he was willfully refusing to submit his vehicles for a safety test, and if he refused to do that, yes.

Hugo L. Black:

If he violated —

Raymond F. Simon:

I believe the Court could order it.

Hugo L. Black:

If he violated this very ordinance, he is an individual, couldn’t you put him in jail?

Raymond F. Simon:

Well we could fine him up to $200 under the law.

Hugo L. Black:

Now, you could —

Raymond F. Simon:

And if he refuse to pay that fine —

Hugo L. Black:

You could — (Voice Overlap) an ordinance passed to do other, would it?

Raymond F. Simon:

Oh surely, Your Honor, we have no authority in the City of Chicago to punish by imprisonment.

The only authority we have for a violation of city ordinances is to punish by fine.

Raymond F. Simon:

We have no authority to imprison.

Earl Warren:

Suppose they don’t pay the fine.

Raymond F. Simon:

Then they can be imprisoned up to six months for nonpayment.

Earl Warren:

Thank you.