Sullivan v. United States

PETITIONER:Sullivan
RESPONDENT:United States
LOCATION:Circuit Court of Somerset County

DOCKET NO.: 610
DECIDED BY: Warren Court (1969)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 395 US 169 (1969)
ARGUED: Apr 02, 1969
DECIDED: May 26, 1969

Facts of the case

Question

Audio Transcription for Oral Argument – April 02, 1969 in Sullivan v. United States

Earl Warren:

Number 610, John L. Sullivan, Tax Commissioner of the State of Connecticut et al., Appellants versus the United States.

Mr. Ahern?

F. Michael Ahern:

Mr. Chief Justice, and may it please the Court.

This appeal has been taken by State of Connecticut from a decision of the Court of Appeals for the Second Circuit, affirming a lower court ruling.

That ruling held that the application of sales and use taxes to the purchase and use of property by non-resident servicemen in Connecticut to be in contravention of Section 514 of the Soldiers’ and Sailors’ Civil Relief Act.

This case was instituted by an able lieutenant named Schuman, and the United States of America in the District Court for the District of Connecticut, claiming immunity from the application of the tax to a boat, a pleasure boat purchased by Lieutenant Schuman in Connecticut, on the basis that Section 514 of the Soldiers’ and Sailors’ Relief Act granted that immunity from sales taxes.

The District Court dismissed the claim of Schuman for lack of jurisdiction from which no appeal has been taken.

It granted summary judgment to the United States which judgment was affirmed by the Court of Appeals on July 10, 1968.

Notice of intent to appeal was filed July 30th, the case was docketed on October 7th and this Court noted probable jurisdiction on January 13, 1969.

The jurisdiction of this Court rests on 28 U.S.C. 1254 subsection (2).

I should like to state at this time that the State of Texas has filed an amicus brief in which 30 other states have joined.

The State of New York and the State of California had each filed independent amicus briefs.

Illinois has joined California in its brief.

We commend these briefs to the Court, and thank the States for their interests and efforts on our behalf, and at the same time, I should like to commend to the Court the second part of the brief of the appellee in this case, the United States of America, starting at page 37 through 43, which does not subscribe to the arguments which are represented in the first part of the brief.

The issues in this case are whether the lower court heard in determining that Section 514 of the Soldiers’ and Sailors’ Civil Relief Act prohibits the application of sales and use taxes to the private purchase transactions of servicemen stationed in the States throughout the country under military orders.

And further, whether Section 514 as interpreted by the Court of Appeals is an unconstitutional infringement on the reserved powers of the States to tax, under Article X of the United States Constitution.

The facts in this case of brief, the parties to the action stipulated that the everyday purchases of tangible personal property by servicemen, are made at PXs on military installations and are therefore not subject to taxation.

So they are not a part of this case.

This case is involved with purchases of larger items by servicemen such as pleasure boats, cars, television sets and so forth which they can not get at PXs.

In the lower court, the District Court, the United States Government presented several affidavits which allegedly set forth facts illustrative of the situations in which the State of Connecticut was assessing sales or use taxes against servicemen in Connecticut.

I should like to address myself to one of those affidavits at this time.

It’s the affidavit of Commander William Foster which is printed in the record appendix at page 21 (a) through 27 (a).

Commander Foster was a Texas domiciliary stationed in Connecticut who purchased a car from a Connecticut retail dealer and paid the tax thereon.

Commander Foster in his affidavit claims to have paid a use tax on the transaction.

That statement is in error.

At page 6 and at page 23 of the Government brief — Government’s brief, it refers to the Commander Foster affidavit, and on each instance it states that Commander Foster paid a use tax to the State of Connecticut.

These statements are in error.

The purchase by Commander Foster was from a Connecticut retail dealer.

The sale took place within the State and he paid his sales tax to the dealer.

I direct the Court’s attention to page 27 (a) of the record appendix on which it reproduced the invoice covering the transaction.

F. Michael Ahern:

And on the invoice, it very plainly states sales taxes were paid to the dealer.

And significantly, at page 41 of the Government’s brief, and this is in the second part which doesn’t agree with the first part, a reference is made to this affidavit.

And the reference is that Commander Foster paid a sales tax to the State of Connecticut.

In this connection also, my friends from the Attorney General’s office in the State of Texas tell me that I’ve committed a grievous error in my brief at page 6, wherein I refer to Commander Foster’s affidavit and state that after paying sales tax to the State of Connecticut, Commander Foster was required to pay a use tax to the State of Texas before registering the vehicle.

The Attorney General’s office in Texas advises me that since 1961, Texas has had a reciprocity provision in its statutes granting credit for any sales or use taxes paid to another jurisdiction on a motor vehicle which is brought into Connecticut or into Texas for use therein.

I would ask this Court to take judicial notice of the laws of the State of Texas in that regard.

One final reference to the Foster affidavit, in the lower court, when the motion for summary judgment was heard, the Government presented three affidavits to the court for its consideration.

One of these was the affidavit of Commander Foster.

At that time, I filed a motion to strike the affidavit from the record on the basis that Commander Foster had arrived at the misapprehension that he had paid a use tax, rather than a sales tax to the retail dealer.

The District Court noted my objection, but did not rule on that objection.

Under the circumstances, I renew that objection at this time, and claim that the court erred and not ruling on the motion.

And I would ask that this Court disregard the Foster affidavit and its deliberations.

I would like to emphasize to this Court that this is a case of first impression before the Court.

In the last 25 years, since the 1944 Amendment to the Soldiers’ and Sailors’ Civil Relief Act, no claim has been advanced that Section 514 encompassed sales and use taxes.

It wasn’t until April of 1967 when this case was filed in the District Court for the District of Connecticut that the claim was made that Section 514 encompassed sales and use taxes.

So that this is the first opportunity any court has had to consider the issue.

It is the position of the State of Connecticut that Section 514 was designed and intended by Congress to grant immunity to servicemen from property taxes, income taxes and certain annual motor vehicle taxes in any state but its home state — his home state.

The statute accomplishes this by removing the jurisdictional grounds for the imposition of those taxes.

That is residence, domicile, and situs of the property.

The legislative history of Section 514 and the 1944 Amendment and the 1962 Amendment thereto supports this position.

In the legislative history of this Section and the clarifying amendments, and that’s what they were characterized at the time they were proposed to Congress as clarifying Amendments, not a broadening of the tax immunity already granted by Congress.

The committee hearings and the reports of committees contain not one single reference to sales and use taxes.

However, those committee hearings and the reports are replete with references to income and property taxes.

We submit to the Court that the silence of the committee hearings and the silence of Congress as to sales and use taxes is indicative of the intention Congress in this regard.

It might be pointed out too to the Court that in 1940, the Buck Act was passed which specifically granted the States the rights to collect sales and use taxes on transactions taking place on federal enclaves.

So that Congress was well aware of the sales and use tax phase of taxation at the time it passed Section 514 and its Amendments.

It is interesting to know that the District of Columbia which is governed by a sub-committee of Congress, I understand, has had a sales and use tax on its books since 1949, at a period of about 20 years and just two years less than the State of Connecticut has had its tax.

The Government in the lower court and in its argument and in this Court is strangely silent as to the position taken by the taxing officials of the District of Columbia in this regard.

Now, certainly if any taxing officials in the United States should be aware of the intention of Congress and the mood of Congress, it would be the taxing officials of the District of Columbia.

I think from the silence in this regard, we can infer that the District of Columbia does not grant tax immunity on sales and use taxes on the purchases of servicemen in this area.

F. Michael Ahern:

We submit that the lower court erred when it equated a sales tax to a property tax in its decision.

The only reason for equating it to a property tax was that the ultimate burden of the tax ultimately fell on the consumer.

We submit that this is true of almost any tax that the ultimate burden will fall on the consumer.

That is hardly a reason for equating two distinct types of taxes.

The Court of Appeals compounded this error by following the same reasoning.

We submit to this Court that a sales tax is not a property tax, and conversely a property tax is not a sales tax.

A property tax difference from a sales tax and that it is a recurrent annual demand based on capital value of property.

Whereas a sales tax is based on the purchase price or the — it’s based on the cost of acquisition or the purchase price of property.

And it is only taxed one time at the date of acquisition of that property.

A property tax is an ad valorem tax.

And in 51 American jurisprudence at page 53, which is not in my brief, Section 26 it states it very succinctly and I’d like to read or quote for the Court.

“An ad valorem tax is a tax on a fixed proportion of the value of property with respect to which the tax is assessed and requires the intervention of assessors or appraisers to estimate the value of such property before the amount due from each taxpayer may be determined.”

To that definition must be added that the statutes provide a means of appeal from the assessed valuation placed on property by an assessor to a board of tax review and ultimately to the courts.

So that an owner of property being assessed by a tax assessor has recourse to a board of tax review and the courts.

The appellee concedes the difference between a property tax and a sales tax in his brief at page 20.

But he argues that such difference should not be of real consequence in this case.

We strongly disagree.

At page 14 of its brief also, it claims that Congress intended that the tax exemption should be applied to any tax which is measured by the value of property, and in the sales tax area, the value is the purchase price.

With this we must also strongly disagree.

The value in taxation or the word value in taxation is peculiarly applicable to personal property taxation.

It does not have the same meaning as purchase price in sales taxation.

As stated earlier, an ad valorem taxation of property, a value is placed on property by an assessor who is usually a public official before the tax is levied.

And the owner of the property has the right of appeal to the board of tax review or to the courts for relief from the amount of the assessment.

In the sales and use tax area, the tax is based on the purchased price of property.

The purchase price is set at the whim of the retailer, and if the purchaser wants the property, he pays the purchase price without recourse to anyone.

If I may give a concrete example of the two taxes, I would suggest that we let represent or let represent two neighbors in a given community and label them A and B. Each owns the same model and year automobile.

For local property tax purposes the tax assessor places A’s automobile on the tax list at the value of $2,000.00.

He places B’s car on the list at $4,000.00.

In this case, B has recourse to the board of tax review and the courts to have his valuation of $4,000.00 reduced to equalize his pays with A.

In the same manner, when A and B acquired these vehicles, A very well might have had connections in the automotive field which allowed him to buy the automobile at the wholesale price of $3,000.00.

F. Michael Ahern:

The sales tax would apply to the purchase price of $3,000.00.

In the same manner, B who didn’t have the same connections might have to pay the full retail price of $5,000.00.

In this case, the sales tax would be applied to the $5,000.00 figure and neither B nor A could complain about the price.

The tax is on the actual purchase price of property.

We should submit that the Court should give short shift to the arguments of the Government in this regard.

The Government in its brief, places great emphasis on the two leading cases under Section 514 of the Soldiers’ and Sailors’ Civil Relief Act, which were decided by this Court.

They are Dameron versus Brodhead, California versus Buzard.

Both of which are cited in all of the briefs submitted to this Court.

We submit however, than rather than support the Government’s position.

These cases support the State’s position.

For example, in Dameron versus Brodhead which involved an ad valorem property tax on the property of a serviceman serving in Colorado, he was a Louisiana resident at that time.

This Court in striking down the ad valorem property tax stated “In fact though the evils of potential” — and I quote, excuse me, from page 326 of the decision.

“In fact, though the evils of multiple taxation, may have given rise to this provision, Congress appears to have chosen the broader technique of the statute carefully freeing servicemen from both income and property taxes imposed by any State by virtue of their presence there as a result of military orders.

It saved the sole right of taxation to the state of original residence whether or not that State exercise the right.”

Again, in California versus Buzard, in which the issue was the arrest, prosecution and conviction of Captain Buzard for driving an unregistered motor vehicle on the highways of California, this Court at page 387 opened its decision with the following paragraph and I quote again.

“Section 514 of the Soldiers’ and Sailors’ Civil Relief Act of 1940, 56.777 as amended, provides a nonresident serviceman present in the State in compliance with military orders with a broad immunity from that State’s personal property and income taxation.”

The 2% license fee which was involved in the Buzard case was a substitute for an ad valorem property tax which California had found difficult to administer.

So then, both the Dameron case, which involved an ad valorem property tax, and in the Buzard case which involved a 2% license fee as substitute for an ad valorem tax, this Court emphasized that it was dealing with an immunity granted by Congress from income and property taxes.

Again at page 393 of the Buzard decision, this Court states and I quote, “The very purpose of 514 — Section 514 in broadly frame a nonresident serviceman from the obligation to pay property and income taxes, was to relieve him of the burden of supporting the Governments of the States where he was present solely in compliance with military orders.

The statute operates whether or not the home state imposes or assesses such taxes against him.”

Again, the reference is to property taxes and income taxes.

The court, pardon me, the appellee in his brief places great emphasis on this reference to the Buzard case, the latter statement concerning income and property taxes.

He quotes it at pages 12, 19 and 26 of the first part of its brief.

However, he very conveniently or it very conveniently leaves out the reference to income and property taxation so that the out-of-context phrase that is quoted by the Government at the top of page 12 is, and I quote “the very purpose of Section 514 ***, was to relieve *** to servicemen of the burden of supporting the Governments of the States where he was present solely in compliance with military orders.”

The three asterisks denote the deletion of the reference to income and property taxes.

At pages 19 and 26, the same out-of-context quote is made.

However, it is extremely interesting to note that at page 39 of the brief, which is the second part, which does not subscribe to the arguments in the first part, a further reference is made to the case of California versus Buzard.

And in this case, the quotation is given in full, so that the proper context of the quotation is given referring to income and property taxes.

In any event, we submit that the two cases leave no doubt that the opinion of this Court the immunity granted by Congress was for property and income taxes, and not sales and use taxes.

At page 37 of its brief, in note 27, the appellee advances a novel argument that servicemen who are on furlough are no longer absent from their home state by virtue of military orders.

F. Michael Ahern:

In effect, this means that a Texas serviceman stationed in Connecticut who was given a three-day pass, as soon as he is given the three-day pass his status immediately changes so that he becomes subject to sales and use taxes in Connecticut and in any other State that he might visit on his furlough under the decision of our lower court in this case.

At the end of his furlough, the mantle of tax immunity immediately falls on his shoulders, and he again becomes immune from sales and use taxes until he obtains his next furlough from his commanding officer.

This, we submit is adding confusion to an already confusing situation.

The effect of the lower court decision as we view it is to foster a discriminatory situation which we claim is itself unconstitutional.

For example, California at page 2 of its amicus brief states that there are 345,000 servicemen stationed at the various bases in California.

Of that number, 45,000 of the servicemen are California residents, 300,000 are nonresidents.

Yet, in the purchase of tangible personal property, anywhere in California, the 45,000 resident servicemen are required to pay sales and use taxes, while the 300,000 nonresident servicemen purchasing the same items for their personal use are not obliged to pay sales and use taxes under the rationale of the above decision.

We submit that this is built-in discrimination.

Byron R. White:

But none of them pay if they are purchasing at military exchanges?

F. Michael Ahern:

That’s correct Justice White.

Byron R. White:

Wherever the exchange is?

F. Michael Ahern:

As long as the exchange is on a military base, military enclave with PXs and the military stores. If they choose to buy an item at a corner grocery store or corner drugstore, they pay the tax.

Byron R. White:

Why — what’s the source of the exemption for the Post Exchange?

Is that a statute?

Is that a Constitution?

F. Michael Ahern:

No, I believe it’s a decision of this Court that the Post Exchanges are agencies of the federal government for the purposes of waging war and its supporting armies.

Byron R. White:

There’s nobody practice it in the statute too?

F. Michael Ahern:

I don’t believe it is Justice White.

I believe it’s by court decision, which satisfies me, I might add.

The appellee in this case attempts to minimize the difficulties which might arise if the lower court decision is not reversed.

We submit that the fact that 34 other states have joined Connecticut in support of its position in this case is overwhelming evidence of the seriousness of this situation.

Certainly, the tax administrators and the attorneys general of these 34 states are competent to determine the effects of the decision on tax revenues and tax administration in the various states.

The main thrust of appellee’s argument is to the effect that the addition of just four words after the words “personal property” in Section 514 that is “for the use thereof”, clearly shows an intention on the part of Congress to exempt servicemen or grant immunity to servicemen from both the whole scheme of sales and use taxation.

We submit that this is not a proper application of the, pardon me, this is not a proper subscription to Congress in view of the fact that it’s been silent as to this intent.

To accommodate the appellee, all Congress had to do was to say that a serviceman was immune from all taxation in any state but his home state, except taxation as to real property and the operation of a business.

But this Congress did not choose to do.

And we submit that if any changes to be made in this sensitive area that this Court let Congress make the decision.

Connecticut and its officials are not unmindful of the sacrifices and services being rendered by our servicemen both home and abroad.

And if the burden of taxation is so great that it warrants relief, then we submit they should receive it.

However, we feel that Congress should give them affirmative relief in the form of a pay increase or exemption from federal income taxes.

F. Michael Ahern:

Not by seeking to have this Court, by judicial fiat and using inferences and implications, expand the provisions of Section 514 to encompass sales and use taxes when this was not the congressional intent.

Thank you.

Earl Warren:

Mr. Weinstein.

Harris Weinstein:

Mr. Chief Justice, and may it please the Court.

United States instituted this action as a plaintiff in furtherance of the interest of the servicemen and the interest of the United States in having whatever rights are accorded by the Soldiers’ and Sailors’ Civil Relief Act implemented for members of the Armed Forces.

Since Mister — Lieutenant Schuman was dismissed, and the grounds for his dismissal were essentially the grounds this Court announced last week in the decisions of Schneider against Harris and Gas Service Company against Coburn for lack of jurisdictional amount and class action.

United States is the remaining party of the on the plaintiff side of the case.My purpose —

Potter Stewart:

— and you’re asking on both sides of the case, aren’t you?

Harris Weinstein:

I was about to say Mr. Justice Stewart, my purpose here is to advance the arguments and support the argument set forth in part 1 of our brief, the argument in behalf of the servicemen.

As part 2 of the brief indicates the Solicitor General and the Assistant Attorney General in charge of the tax division cannot subscribe to those arguments in review of the decision below should not be sustained.

William J. Brennan, Jr.:

Well, let’s see, you mean know as a personal view to the Solicitor General and the Assistant Attorney General of this case?

Harris Weinstein:

I think Mr. Justice Brennan that the — well I should — the way to put it is that we are here for all practical purposes as the representative as in effect as the guardian out of light of the servicemen.

This is how the suit was brought.

These are the arguments put forth in part 1 and these are the arguments I proposed to advance here.

William J. Brennan, Jr.:

Yes, but what I’m trying to get at is, does the Government support the servicemen or not?

Harris Weinstein:

I think this is a situation where the Government has whereas perhaps more than one hat to the extent that the Government’s function is to formulate a litigating position on behalf of the Department of Justice, which represents the United States as such.

That of course is formulated by the Solicitor General taking of course the counsel, the Assistant Attorney General.

And — but I do not think that this is viewed as a case where the primary function is to advance a position of the United States as such.

And as for that reason —

William J. Brennan, Jr.:

Well — but you’ve just said Mr. Weinstein, the inference I draw from that is that the Solicitor General and the Assistant Attorney General’s position is the official position of the United States Government?

And if you just in behalf of the servicemen, it’s just that you have responsibilities under the statute to enforce rights of servicemen.

But that the official position on the legal issue is that expressed by the Solicitor General, is that right?

Harris Weinstein:

Yes, I think that it’s the — clearly the function of the Solicitor General to formulate what you’re describing as the official position in this Court.

William J. Brennan, Jr.:

So that’s where you want to stand then?

Harris Weinstein:

Yes, I would.

William J. Brennan, Jr.:

That is.

Harris Weinstein:

I think that’s right.

Abe Fortas:

Mr. Weinstein, are there only tow points of view in the Department of Justice?

I mean, aren’t there some lawyers there that have a third or a fourth point of view?

Harris Weinstein:

I think the two views are the judgment below should be affirmed, which I should like to advance here.

Harris Weinstein:

And the other view is that the judgment below should be reversed.

Abe Fortas:

In oral argument, is anybody going for the Government going to present the view that it should be reversed?

Harris Weinstein:

No.

I think that reliance is placed on Mr. Ahern to advance that position.

And I think that part 2 of our brief indicates that is not intended as a complete development to those views, but rather summary of them in principal reliance is placed on the briefs of the appellants and of the amici curiae on their side of the case.

Byron R. White:

Well, is there a case or controversy now in the United States in the State of Connecticut?

Harris Weinstein:

I think there is Justice White, because —

Byron R. White:

Hold on.

You just said the official position of the United States was that there wasn’t.

Harris Weinstein:

If you check the purest case Justice White, and if I were not here to advance the argument on behalf of the servicemen.

Let’s assume for the moment the situation where the Government simply confesses error in the prosecution.

I don’t think that that’s ever been considered to deprive a court of jurisdiction to decide the issue.

I don’t think that that’s ever been thought to remove the basis for this Court decision.

And it seems to me that in where we sue on behalf of servicemen in that representative capacity is a very real controversy.

The controversy is between the services and the —

Byron R. White:

It may be that if United States have had this position in the first place that it’s now its official position, the suit would never been brought?

Harris Weinstein:

I think that would go far as a speculation.

I don’t know yet.

I can’t answer to that.

Abe Fortas:

If you were — we’re not to assume are we that the, on the one side are the Solicitor General and the Assistant Attorney General.

That is to say that they share the views of the State of Connecticut.

And on the other side is the Attorney General, we’re not to make that assumption, are we?

Harris Weinstein:

No.

I don’t know.

The brief does not suggest —

Abe Fortas:

But who is on the other side?

Harris Weinstein:

I am here hoping that I’ll be able to argue the other side on behalf of the servicemen.

Earl Warren:

By what authority?

Harris Weinstein:

Of the Solicitor General.

Byron R. White:

Is this the first time you view it then?

Harris Weinstein:

You mean what is my personal opinion on the matter?

Byron R. White:

You have personal view now that that can support the servicemen or in support of the Solicitor General’s position?

Harris Weinstein:

Well, I think to the extent that my personal view is a pertinent and I’m not sure that they are, I —

Abe Fortas:

Mr. Weinstein.

Harris Weinstein:

I — I support your arguments, I’d like to advance.

Abe Fortas:

Mr. Weinstein I want a case that you say that I’m eager, and I’m sure we all are very eager to hear your arguments.

And your arguments were always very able, very cogent.

The perplexing problem for me is that we’re here confronted with the case in which is rather unconventional since we usually have adversary parties where the United States participates.

There is a specific view of the United States what the United States is advocating.

Harris Weinstein:

It’s unconventional Justice Fortas, but I don’t think unprecedented.

Although, I would concede the precedence are not common.

The one that has occurred to me is the closest example of this procedure might be a tax case called Kornhauser, which is recorded in 276 of the United States reports.

And I believe that —

Abe Fortas:

276?

Harris Weinstein:

Volume 276.

As I say, it’s not unprecedented but hardly common.

And I believe that if the Court examines the briefs there, the Court will find a comparable kind of situation.

The distinction and the —

Abe Fortas:

Was that a conflict within the Department of Justice, because this apparently is a conflict within the Department of Justice.

No, it’s not like a situation where hardly or wholly of a result to statute?

The ICC for example, takes one position and the Department of Justice takes another.

Harris Weinstein:

I don’t think that there is a conflict among — in the Department of Justice in the sense that the officials charged with the responsibility of formulating a position of the presidential appointees over an agreement, and their views are stated in part 2 of the brief.

In the Kornhauser case, I said the situation was similar in this way.

The disagreement was between the Department of Justice and what I think was then called the Bureau of Internal Revenue and the Department of the Treasury.

And there was brief filed in two parts.

As I recall it, it was an appeal from the Court of Claims involving the question of deductibility for income tax purposes and some legal fees.

And the Court of Claims, as I recall it, it allowed the deduction.

The — I’m sorry, had disallowed the deduction.

The treasury thought that was the correct view.

There was part — first a part of the briefs supporting that position urging affirmance.

Harris Weinstein:

And the case was argued, as I recall on that, I beg your pardon, it was submitted.

It was not argued, but it was a separate part of that nature in the second —

Abe Fortas:

And here we have no statement of the position of the Department of Defense, do we?

Harris Weinstein:

No.

But I think that you have a position of the United States in its capacity as representative of the servicemen.

Earl Warren:

Who is their representative here?

It just seems to me that this is an anomaly that we shouldn’t give furtherance to have a deputy of the Solicitor General come here and seek to override the opinion of the Solicitor General as to what the public interest is, and ask us to follow the deputy as against the head of his office.

Now that I can’t understand.

Harris Weinstein:

Mr. Chief Justice, I don’t think that the Solicitor General assigned me to appear here with that purpose in mind.

As I understand my assignment, it precedes from the Solicitor General’s view that this case should receive a — an adversarial presentation.

And that the Court should have before an adversarial development of the arguments on both sides, and as for that purpose that the Solicitor General has assigned me to come here and to present the arguments on behalf of the servicemen.

And it is not that it is a matter of a deputy attempting to override him.

It’s a matter of having been assigned to appear as an attorney presenting this side of the case.

Byron R. White:

If the United States had decided not to come here at all, I suppose the Court might have been interested in having this argument anyway.

Is that your idea of —

Harris Weinstein:

I should think so.

I should think it’s comparable as I said before to perhaps a step behind, but comparable to a situation of a confession of error.

When you ask me, Mr. Justice White, is there a case of controversy?

If a confession of error is filed, which has not been filed formally in this case, that does not remove the case from the Court’s jurisdiction.

It still on occasions, there are precedence for either the Court appointing an amicus or the Solicitor General presenting the side of the case with which he disagrees.

Byron R. White:

Well but, the fact is —

Harris Weinstein:

And —

Byron R. White:

— the fact is that either the United States officially agreed with Connecticut.

There happens to be judgment of the court below, is that it?

Harris Weinstein:

That is correct, Justice White.

Thurgood Marshall:

Mr. Weinstein, it is if your submission that it is neither necessary nor appropriate to push the statute beyond so as to make it applicable to the ordinary retail sales tax and the concomitant use tax now imposed by most of the states end of quote on the last page of your brief?

Harris Weinstein:

That is the view of that is expressed in that part of the brief.

Thurgood Marshall:

And is that —

Harris Weinstein:

And it’s our view that I wish to support here.

Thurgood Marshall:

Is that in complete agreement with the Court of Appeals for the Second Circuit with —

Harris Weinstein:

No —

Thurgood Marshall:

— the end of the petitioner?

Harris Weinstein:

— that is in complete disagreement with the Court of Appeals and in agreement with the appellants with the position taken by the State of Connecticut.

Thurgood Marshall:

Its’ entirely opposite to the Court of Appeals?

Harris Weinstein:

The Court of Appeals in this case ruled in favor or the servicemen.

The District Court ruled in favor of the servicemen.

Thurgood Marshall:

That’s right.

Harris Weinstein:

The position taken in the part 2 of our brief —

Thurgood Marshall:

Right.

Harris Weinstein:

— is that the Court of Appeals and District Court were wrong and should be reversed.

Thurgood Marshall:

Right.

Harris Weinstein:

That is not the position that I have been assigned to argue here.

I have been assigned to present in an adversarial fashion, if I may, the other side of the case which is developing forthwith.

Thurgood Marshall:

What I noticed at the end of the brief, you don’t suggest whether they should be affirmed or reversed or anything.

Is that right?

Harris Weinstein:

That’s correct.

But I think that the conclusion —

Thurgood Marshall:

What do you want us to do?

Harris Weinstein:

I would like to be free to argue if I may that the decision below should be affirmed and present what we conceive of as the arguments on that side of the case.

Thurgood Marshall:

And you wanted over —

Earl Warren:

You say we.

Who — who is we?

Harris Weinstein:

My — myself and the other gentlemen who were assigned to work on this part of the case, Mr. Chief Justice.

Earl Warren:

They may —

Harris Weinstein:

The Solicitor General’s —

Earl Warren:

— all of them in the office who worked on it or against the Solicitor General?

Harris Weinstein:

I — I don’t — I would like to think Mr. Chief Justice that that is not pertinent that the — pertinent thing is that in view of the Solicitor General, this issue should be developed before the call of court in argument in an adversarial way.

Earl Warren:

Well, are we entitled to approach the case in this way?

That the Solicitor General of the United States and the State of Connecticut both are of the opinion that — and are urging this Court upon this Court that the statute is constitutional.

But that his deputy argues that it is not, and we decide it one way or the other?

Harris Weinstein:

If I may?

Earl Warren:

No, no is that —

Harris Weinstein:

That is not, no that is not —

Earl Warren:

Why is that not fair?

Harris Weinstein:

Because the constitutionality question is the other way around, Mr. Chief Justice.

And the basic issue is as it is been argued below and as I would conceive it as not one of constitutional law, but of interpretation of a specific part of the Soldiers’ and Sailors’ Civil Relief Act.

The —

Earl Warren:

Well, if the supremacy clause would be involve would it if the Act, if the Soldiers’ and Sailors’ Civil Relief Act applies to it?

Harris Weinstein:

Yes of course, but my difference with you wasn’t to the extent the Connecticut and the Solicitor General agree that the decision should be reversed.

The difficulty I had with your formulation is your statement of who wants the statute to be held constitutional.

The position of Connecticut is that the statute is unconstitutional.

The position of the Solicitor General has not —

Earl Warren:

You say the position of the State of Connecticut is the statue is —

Harris Weinstein:

Is that Section 514 —

Earl Warren:

— unconstitutional?

Harris Weinstein:

— is an unconstitutional abridgement of the reserved powers of the State to tax.

Earl Warren:

Well speaking of the Soldiers’ and Sailors’ Civil Relief Act, isn’t it?

Harris Weinstein:

That’s correct.

Earl Warren:

Oh, I thought you’re talking about the Tax Act.

Harris Weinstein:

No, no.

And there is no question here of a constitutionality of the State Tax Act.

The question is whether that Act may be enforced against soldiers and sailors in view of Section 514 of the Civil Relief Act.

And the Solicitor General does not take, as I understand it, the position on the constitutionality of Soldiers’ and Sailors’ Civil Relief Act.

His — the argument in part 2 of the Government’s brief goes to the proper interpretation of the Civil Relief Act.

And it is there that I think that the Solicitor General expresses in disagreement with the decision of the Court of Appeals.

William J. Brennan, Jr.:

Well, as I recall it’s not so long ago, we had a case here of a tax against an army officer, as I remember it.

Had something to do with whether he was taxable on allowances and something who was stationed overseas.

And he decided not to defend.

We granted the Government’s petition.

He decided not to defend and we assigned, as I recall it, Stanley League to present the argument on that side of the case.

William J. Brennan, Jr.:

And I gather what you’re saying was narrowly that while the Government’s position, and since you just related it, decide expressed by the Solicitor General.

You’re in much the same position on behalf of the serviceman as Mr. League was in behalf of the serviceman in that case, is that it?

Harris Weinstein:

Yes, Mr. Justice Brennan.

William J. Brennan, Jr.:

Although, we didn’t appoint you, but —

Harris Weinstein:

Yes, well I also call the Court’s attention to the Telye case which was I think decided at the same term.

Where the department — this was also a tax case where the Department of Justice disagree with the Commission of Internal Revenue, and Mr. Leven from the Solicitor General office sought to present both office.

My hope here is to present only the one side.

The one side that is not been presented by Mr. Ahern.

Earl Warren:

Well aren’t we entitled to know what the Government represents as the public interest in this case?

And if so, I again say who are we to take that closing from?

From the Solicitor General or from his deputy who appears hearing the nature of a friend of the Court?

Harris Weinstein:

I think Mr. Chief Justice that the position of the United States before this Court must be taken to be that formulated by the Solicitor General.

Earl Warren:

That’s part 2 of your brief?

Harris Weinstein:

I would think so, yes sir.

Earl Warren:

But you argue against?

Why don’t you go ahead and present your argument?

I think let’s start.

Abe Fortas:

Yes.

I think put forward your concern.

Abe Fortas:

I thank you Mr. Justice.

Earl Warren:

But I think we’re entitled to know.

I don’t think the Government can eat its cake and keep it too.

I think we’re entitled to know what does a Solicitor General’s office represent as the public interest in this case.

And if we take the view of the Solicitor General of the United States as we’ve been bearably do as to what the public interest is, by what right does his deputy come here and say the opposite?

Now, if you appear as a friend of the Court, I’d be perfectly willing to grant you permission to do that as an individual.

But I don’t see how you can come here and speak for the Government as a Deputy Solicitor General when the Solicitor General himself has the opposite view in expressing it to this Court.

Harris Weinstein:

I did not think that I had suggested that I would be speaking for the Government in presenting these views.

As I indicated before, I was assigned to come here not because the Solicitor General thinks that what I’m going to say is right, but because of his view that this case should have adversaries on each side of them.

Earl Warren:

But you signed the brief as speaking for the Government.

Your name is on these briefs speaking for the United States.

Harris Weinstein:

I — perhaps Mr. Chief Justice with hindsight, we should’ve had identified the names differently.

I think the belief was that in the introduction of part 2 of our brief there was no means — it was on page 37, the statement was “the foregoing arguments has been prepared by officers of the Department of Justice who support it”, meaning the officers of the Department of Justice who felt that they could formulate those arguments and support them without any reservation.

May I ask you a question?

Harris Weinstein:

Yes, Mr. Justice Harlan.

Does the servicemen satisfied with the issues with the Solicitor General but they had gone and hired a private lawyer?

Harris Weinstein:

Without Lieutenant Schuman as a party, I question that.

We prefer to handle this —

What you’re doing is representing these people as a guardian in light of whether you choose to call it in putting forth the best argues that you can muster in support of their position.

And all of these could do it?

Harris Weinstein:

Yes, sir.

Abe Fortas:

Now Mr. Weinstein, I’m sure you’re going to make every argument that can be made on the side that you are representing.

I want to make clear from my point of view what the basic embarrassment is that I think that this procedure presents.

And that is that the servicemen might very well feel that this case has not been presented to this Court on a truly adversary basis.

I hasten to say that I know that it will be in fact.

But in form, it is not being presented to this Court in my judgment on an adversary basis.

And legal procedures, I’m sure you’ll agree form has some importance.

Now, it’s being their — the soldiers point of view is being presented here by an extremely able lawyer and advocate, but as a matter of form, it is being presented by a man who is subordinate to an official who has taken the opposite point of view.

And I think that’s, from my point of view, that’s the real embarrassment and having stated that I want to show you that I’m very eager to hear what you have to say.

Harris Weinstein:

Well, I understand your concern Justice Fortas.

I — perhaps it ought to be made clear that as I understand it, my assignment is to present that side.

And in terms of one being subordinate, I do not think that or do not concede that I would have any difficulty, except if I fail to present the servicemen side as well as I could.

Hugo L. Black:

Mr. Weinstein, who made the assignment?

Harris Weinstein:

Who assigned me?

Hugo L. Black:

Yes.

Harris Weinstein:

The Solicitor General, Mr. Justice Black.

Hugo L. Black:

And you — and he joined the assigned the briefs?

Harris Weinstein:

Yes, sir.

Hugo L. Black:

And he knew you were going to take his side?

Harris Weinstein:

He knew that I was going to take the servicemen side.

He was fully aware of it.

Hugo L. Black:

— assign the brief.

Now what — on what authority, statutory authority do you do that?

Is that quoted in your brief?

Statutory authority from your argument.

Harris Weinstein:

The authority which is in statute and in regulations is the authority I suppose of the Solicitor General to assign attorneys in the employee of the Government to appear in this Court —

Hugo L. Black:

There’s no statute which makes the —

Harris Weinstein:

— on cases in which the Government —

Hugo L. Black:

— there’s no statute which makes the Solicitor General of the Department of Justice, the attorney for the servicemen?

Or charges him with the responsibility of presenting their views?

Harris Weinstein:

I can’t answer that question directly Justice Black.

I don’t know if —

Hugo L. Black:

That’s not in the Soldiers’ and Sailors’ Relief Act?

Harris Weinstein:

I can’t answer at this point whether there’s a specific statutory possession.

Byron R. White:

Well, how did this suit get started?

Harris Weinstein:

By the United States.

Byron R. White:

Well, there’s authority for that, isn’t there?

Harris Weinstein:

Yes.

Now, I —

Byron R. White:

In the Soldiers’ and Sailors’ Relief Act?

Harris Weinstein:

I think the best discussion of our authority is in the Fourth Circuit decision in United States v. Arlington County, which is in 326 F.2d, and I think that the discussion of the United States standing in the suit of this nature is set forth there.

Hugo L. Black:

What position does it take?

Harris Weinstein:

In that particular case?

Hugo L. Black:

Yes.

Harris Weinstein:

That particular case involved the application of Virginia ad valorem taxation.

And the position of the United States there was that that taxation should not be imposed and could not be imposed under Section 514.

Byron R. White:

What did the Court say about your authority?

Harris Weinstein:

That we have proper standing as representatives of the servicemen to appear and —

Byron R. White:

Did they base it on the statute or just —

Harris Weinstein:

My recollection is that —

Byron R. White:

Did they just draw it from general principles?

Harris Weinstein:

My recollection is the latter Justice White, but I might be wrong.

Earl Warren:

Well, there is no serviceman in this case.

Harris Weinstein:

Not as a party Mr. Chief Justice.

He was dismissed for inability to have the jurisdictional amount in a class action.

I see that my time has expired, almost expired and I have yet to reach any discussion of the merits.

And if the Court pleases, I should like to proceed on the merits.

I’d like to hear your argument.

Harris Weinstein:

To continue with them.

And if I may, I — if the Court would hear me beyond my half hour because I can’t believe that in the next five minutes —

Earl Warren:

You may take an extra five minutes.

Harris Weinstein:

I would do my best in that limited time Mr. Chief Justice.

I think that the — I’d like to turn first if I may to the discussion of Commander Foster’s case by Mr. Ahern, because I think that what happened to Commander Foster may best illustrate why Section 514 was adopted and why the courts below were correct.

Commander Foster bought a car in Connecticut.

He lived — he was a domiciliary of Texas.

He wanted to register his car in Texas.

He wrote to Texas and he was told that to register there, he had to pay a Texas sales tax.

The dealer in Connecticut told him he nevertheless had to pay a Connecticut tax to get his car.

His affidavit states that he called the Department of Motor Vehicles in Connecticut, and was told that there was no credit.

He had to pay what, he says, was — he was told to the — a Connecticut use tax.

To get his car and to register it in his home state in Texas, he paid the Texas tax and both Connecticut tax.

And it isn’t until this Court in Mr. Ahern’s argument here that he has been told that he didn’t have to pay both taxes.

Now, we suggest that Section 514 was intended to avoid this kind of situation.

That it was intended to create a situation where the only jurisdiction which could tax servicemen in this position would be his home state.

514 was added to the Soldiers’ and Sailors’ Civil Relief Act in 1942.

It was — the language that we are interested in here was added in 1944.

I would suggest the basic problem is whether the language or the policy or the basis for this — of the statute in any way allow a distinction to be drawn between ad valorem taxation, annual ad valorem taxation, which everybody agrees is forbidden by the statute and sales and use tax.

The starting place, I would suggest, should be the language of the statute.

It refers in its terms to what is called “taxation in respect of personal property”.

Now this is what seemed to be the broadest possible language.

It is not ad valorem taxation.

Harris Weinstein:

It is not seemingly restricted to anyone’s specific type of taxation, but taxation in respect to personal property.

This would seem to catch any tax that has to do with personal property that depends or is triggered by the existence of personal property.

And any such tax under Section 514 is supposed to be forbidden except when imposed or exacted by the servicemen state of residence or domicile.

In the way that the — this mechanism works is to create what might be called a fictional location of the servicemen’s personal property.

The personal property is deemed not to be in any state where he appears and is not a resident or a domiciliary, and any state where he’s taken solely by his military orders.

I don’t think that anyone has suggested exactly how this phrase can be read in a way that would set — describe only ad valorem taxes, but would not describe sales or use taxes.

I think this is particularly clear with use taxes.

Use taxes require the physical presence of property within a taxing jurisdiction.

It can be imposed only when property is used in the jurisdiction.

And that occurs — that can not occur in the case of a nonresident serviceman because of Section 514.

His property can never be deemed to be in a jurisdiction other than his home state for purposes of local taxation.

This is also true I think, of sales taxes and if Connecticut statute, which I think is typical, it doesn’t just as they say tax the privilege of a sale.

It — the tax comes into being only when there is a sale of personal property.

Personal and furthermore, it only happens when the possession of this personal property is taken in Connecticut.

Under Section 514 that possession is got to be considered as taking place in the serviceman’s home state.

Hugo L. Black:

Is that Section printed in the brief?

Harris Weinstein:

Yes, Mr. Justice Black.

In our brief at pages 2 to 4 and also in Connecticut’s brief, I think in the appendix.

I’m not — and the particular language —

Hugo L. Black:

What — what date was that brief filed?

Harris Weinstein:

The brief?

Hugo L. Black:

That you’re reading from?

I don’t seem to have it.

Harris Weinstein:

Within the last three weeks, I believe.

Potter Stewart:

March 20th in your brief.

Harris Weinstein:

Yes, sir.

And the —

Hugo L. Black:

That’s my trouble, I don’t have it.

Harris Weinstein:

But the language of the statute is this, Mr. Justice Black.

A person — a personal property, meaning personal property of the nonresident serviceman shall not be deemed to be located or present in or to have a situs for taxation in such state and so forth.

Harris Weinstein:

The situs for taxation of a serviceman’s personal property is deemed to be his home state and not the state where he goes on military orders, so that the language and the mechanism of the statute don’t seem to allow any distinction between these types of taxes.

I would suggest the same thing is true of the policies of this statute.

This purpose of the statute as expressed by Congress and by this Court was to avoid any real threat, any possibility of double taxation by multiple jurisdictions.

And it was to achieve this not by some manner of trying to find out which state you grant to credit for the other state, which is the kind of thing that has happened in Commander Foster’s case and is never then really resolved.

Rather, the purpose of the statute was to leave the sole function of the tax, the sole ability to tax to the home state, to the serviceman’s residence or domicile.

In the case of the sales tax both Connecticut and might be the sales tax, what risk could double tax be?

Harris Weinstein:

I think Justice Harlan the risk of double taxation comes out of a complimentary function of the sales and use taxations.

As the two courts below said, they’re not really separate taxes, they’re merged into one.

The use taxes in so much as a matter of raising revenue by itself, but it’s a complement in a means of enforcing the sales tax.

And I would suggest that this is double taxation when a sale — serviceman buys a car in one state and is charged a sales tax and he goes to the other — another state where he is then charged a use tax, which use tax would not have been imposed if he had originally bought the car in the second state and paid a sales tax.

Would there be use tax imposed in this transaction in the commerce to the interstate by the man or?

Harris Weinstein:

In one of two situations.

If as Commander Foster tried to do, the serviceman seeks to register his car in his home state, generally the home state will seek to impose a tax.

The other thing which comes to the potential of double taxation which is also within the purposes of this statute is that ultimately, we would — I’d assume the serviceman is going home.

And when he goes home he brings back his property with him whatever he’s acquired.

And at that time, he is going to be subjected to a use tax on this property.

And this is the point in time when double taxation is almost certain.

I suggest really in terms of potential for double taxation, this ought to be compared to the structure of the ad valorem taxation.

Ad valorem taxation isn’t going to be doubly imposed anymore frequently than the use tax or in sales tax structures.

It would really depend on the accident of a man being switched from jurisdiction to jurisdiction within one year being in one state on its ad valorem tax day, and then in another state later in the year or earlier on its ad valorem tax day.

William J. Brennan, Jr.:

Mr. Weinstein, do I understand that the basic thrust of your argument is that since Congress has said that possession shall be treated as in the case of the serviceman’s personal property his possession in his home state that there is not that possession, which is the incident upon which the sales tax in Connecticut terms?

Harris Weinstein:

That’s right.

William J. Brennan, Jr.:

This Court to tell — that’s the basic thrust of your argument.

Harris Weinstein:

That’s right.

Sales tax —

William J. Brennan, Jr.:

But double taxation and all the rest of it is really quite irrelevant.

If you’re right about that, if Congress has said, “No, you have to treat his personal property as if it were in Texas, his domiciliary state.”

Whatever Texas may do is Texas business as to sales taxes.

But in any event, Connecticut can’t impose a sales tax because there’s no possession of the car in Connecticut.

Harris Weinstein:

That is our position.

Harris Weinstein:

I think that the other side argues that the phrase, the initial phrase of the statute for the purposes of taxation in respect to personal property means only ad valorem taxation in respect personal property.

It doesn’t catch any other tax.

And I see that my —

Abe Fortas:

Well, what’s the part of the statute on which you rely, go back to page 2 of your brief, because as I read that it says, “Such person shall not be deemed to have lost a residence or domicile in his state solely by reason of being absent there from the compliance of military orders, or to have acquired a residence or domicile in the other state.”

Now, is somewhere in that part of the statute, do you find this Court for your position?

Harris Weinstein:

In speaking of personal property, Justice Fortas, I think there are two potential bases for imposing a tax, and they’re dealt within two separate sentences here.

One is a tax that proceeds on residence or domicile on taxes personal property.

Abe Fortas:

Now, that’s not applicable here, would you agree?

Harris Weinstein:

No.

Abe Fortas:

Now, what’s the other one?

Harris Weinstein:

No, and that is the first sentence Justice Fortas.

Abe Fortas:

Yes.

Harris Weinstein:

Now, the sentence that begins on the top of page 3 in the middle of the first line which again begins for the purposes of taxation in respect of, it doesn’t say person now, but personal property, income or gross income.

First, it defines the —

Abe Fortas:

Of any such person.

Harris Weinstein:

Of any such person.

Now —

Abe Fortas:

Which indicates property, personal property owned by the person, doesn’t it?

Harris Weinstein:

Yes, and that would be I think a reference to the “any person” in the first sentence perhaps modified, and I suppose modified by the language — person being absent there from, from his home state in compliance with military or naval orders in the first sentence.

And then as you go one in this sentence, first it describes a source of income and says military pay shall not be deemed to be from within the home state.

And then for present purposes, the language is personal property shall not be deemed to be located or present in or to have a situs for taxation in such state territory possession or political division or district.

Abe Fortas:

Well, just reading that plainly in a common place manner, it does seem to support the state’s position rather than yours, doesn’t it?

In other words, you have — your position has to depend upon doing a little magic with the words, doesn’t it in taking what you deem to be the sense of the provision rather than its specific language?

Harris Weinstein:

I think that that — whether that is so depends on how the sales and use tax statutes work.

Now, use tax statutes are applied only when property is within and used within the —

Abe Fortas:

No, but the use tax in this sense, as I understand it is a sales — it’s a part of the sales tax in the sense that it is a complimentary to the sales tax for the purpose of trying to plug what would otherwise be an obvious hole under the sales tax.

Harris Weinstein:

Yes, but the sales tax —

Abe Fortas:

Isn’t that the kind of use tax we’re talking about here?

Harris Weinstein:

Yes, but the sales tax also depends on physical presence of the property in the taxing jurisdiction.

Under the Connecticut statute and while the language is different in other states, the effect is the same.

Harris Weinstein:

The tax is imposed only when there is a sale and when physical possession is taken in the taxing jurisdiction.

What is the legal instance of this tax?

Harris Weinstein:

This is the same kind of tax that was before the Court last term in the Massachusetts Bank case and it’s a vendee tax.

The legal incidence is on the buyer.

The seller is given an action in debt to collect — and is directed to pass the tax on to the buyer.

And it’s clearly a vendee tax.

Potter Stewart:

But the seller is directly liable to the state to return this —

Harris Weinstein:

The seller is liable to the state.

The buyer is liable to the seller.

And it’s the same structure as this Court labeled a vendee tax last term.

Potter Stewart:

The tax purports at least to be imposed upon the transaction, isn’t it rather than on the property?

It’s upon the transaction —

Harris Weinstein:

Well —

Potter Stewart:

— the sale measured by the value of the property sold.

Harris Weinstein:

It’s imposed on the sale of tangible personal property.

So that it purports to be on the sale, but it’s not just the sale alone.

There must be tangible personal property.

And the word sale and selling are defined in the statute, in the Connecticut statute in words that are quoted in pages 28 and 29 of the brief here.

And it says mean and include any transfer of title, exchange or barter and so forth.

Now, transfer of title under the general rule of the Uniform Commercial Code which applies in Connecticut and I think almost all states by now is the title is transferred when the seller’s responsibility is asked to delivery or complete it, so that this definition of sale incorporates a concept of a transfer of physical possession so that you can’t view the sale tax as simply being on some abstract privilege of selling.

Abe Fortas:

Well no, not necessarily.

That is to say you couldn’t have a transaction in Connecticut, I’ve had some in which there’s no transfer of physical possession what the sales tax is collecting.

Harris Weinstein:

Well, if there is no transfer of possession, if the property is supposed to stay a word as this brings in to play a different part of the Uniform Commercial Code which would transfer title at that earlier time.

But I think where we’re talking here about movable chattels, boats, cars, appliances, things of that sort, there are things that contemplate transfer.

Abe Fortas:

But which we’re mostly talking about here I suppose is food and drink.

Harris Weinstein:

Food and drink under the stipulation, I think would — the stipulation says that everyday purchases are made in the post-exchange or commissary.

And those under the Buck Act which is I think Section 107 of Title 4 are explicitly exempt from sales and use tax.

Abe Fortas:

I understand that, but how about is it stipulated here — I noticed it stipulated at, at least I think I remember it’s stipulated that no attempt would be made that there is no opposition to the collection of the sales tax with respect to groceries bought in a grocery store in New London for example by a soldier.

What about that?

Harris Weinstein:

I didn’t understand that to be in the stipulation.

Harris Weinstein:

I just understood that that —

Abe Fortas:

Well, is it the Government’s position that when a soldier goes into a store in New London to buy a pack of cigarettes that he’s exempt from the sales tax?

Harris Weinstein:

Well, if I can avoid the cigarette tax which is different state —

Abe Fortas:

No, I’m talking about the sales tax on —

Harris Weinstein:

I’ll take the sales tax on it.

Abe Fortas:

— on a pack of cigarettes.

Harris Weinstein:

Such say a tube of toothpaste which —

Abe Fortas:

Alright.

Harris Weinstein:

I think the position on this side of the case would be that the exemption applies simply because there is no way of parsing neither Section 514 or the Connecticut tax to apply to only to say big ticket items and not to small purchase.

Abe Fortas:

That’s what I thought and in short that your position is that the sales tax ought not to be collected on the purchase of toothpaste by a soldier from the store?

Harris Weinstein:

Yes, I think the impact.

I’m saying that that’s the thrust of the legislative judgment in this statute.

The function of the stipulation I think is to show that that kind of impact is not likely to exist because purchases of this kind are not made in stores that are generally subject to that type of — to the state tax but are made in official installations where the tax doesn’t apply.

Potter Stewart:

I think I remember in the — in your opposing counsel’s brief that Connecticut imposes a sales tax on the rental of motel rooms, is that correct?

Harris Weinstein:

Yes, I think whether that would fall under Section 514.

Potter Stewart:

It hardly would fall under the language would it?

Harris Weinstein:

I’d like to start by saying I don’t think that’s in this case.

At least it has —

Potter Stewart:

But it does I think — I think counsel for the state makes that point to emphasize his position that the tax is imposed upon the transaction and that rather than being a tax on property.

Harris Weinstein:

Well, I think I’ve struggle with the problem of how do you characterize the right to occupy a motel or hotel room for a night.

And under Section 514 the problem comes down to whether you can characterize this right as an intangible personal property.

If it is, it would be exempt.

I suspect it isn’t.

It seems to more in the nature of a real property interest which would not be caught.

But whether that comes under Section 514 is a rather different problem than these admittedly tangible items which have physical location that do move around, where a hotel room doesn’t and certainly seem to be the type of objects that Section 514 was intended to deal with.

Now, there are other points that I think are adequately covered in part 1 of the brief which is the discussion of the Buck Act, the supposed administrative problems and the constitutional attack which I think this Court put to rest in the case of Dameron against Brodhead some years ago.

William J. Brennan, Jr.:

Before you establish this, I shall ask you one more question about the matter we’ve been discussing at the outset of your argument?

I’ve looked at this Arlington case, apparently this is the rationale of the Government standing to bring this suit.

I’m quoting from it, “Here we find that the interest of the national government in the proper implementation of its policies and programs involving the national defense is such as divest in it the non-statutory right to maintain this action.”

Under these circumstances, the incapacity of the individual plaintiff to maintain his action is immaterial since he may find shelter under the Government’s umbrella.

William J. Brennan, Jr.:

Now my question is, I gather the policies and programs of the United States when this action was brought were on the side of the servicemen, and that would be the justification.

And the defense in issue of the right of the Government to maintain the suit had been raised.

But now here we come to — when you come to this Court, apparently the Government’s policies and programs have changed.

Does that have a bearing on whether or not we have a case of controversy before us?

Harris Weinstein:

I would think that the existence of the controversy — again I would like to go back to the confession situation, because in the confession situation the Government is clearly saying now, we don’t think now that in a criminal case this man could’ve been prosecuted or should’ve been prosecuted in this way.

William J. Brennan, Jr.:

No but it seems to me Mr. Weinstein by the time it gets here, if there’s a change in policies and programs, why isn’t this moot?

Why don’t we just vacate it and direct all down the line to hold action be dismissed as moot?

The Government now no longer insists that it’s enforcing its policies and programs in the state.

Harris Weinstein:

The very least there is here is a controversy between the servicemen and the state, which —

William J. Brennan, Jr.:

I know, but they can’t be in the federal court.

The individuals were dismissed here are just as they were dismissed in this Arlington County action.

And we have the same situation here that we have on Arlington County namely the only party before us as plaintiff is the United States.

And its standing to be here depends on whether or not it’s seeking by being here to enforce its policies and programs, and now it’s not.

Harris Weinstein:

The difficulty I have is in distinguishing between this case as I said and I guess I’m not adding anything new to what I’ve said in any instance of confession of error.

I think that the — what you’re saying would lead to the route that if there is a confession of error that would moot the controversy, certainly if the confession went to the propriety of the charge say that was brought as opposed to some —

William J. Brennan, Jr.:

No, I’m not seeking to.

I don’t think this is — as I see it now, I don’t think it’s any issue of confession of error at all.

It’s a simple question of the right of the United States to maintain an action, which is not brought as it comes to us to enforce its policies and programs in the interest of national defense.

It may have started out that way, but that’s not as it’s presented to us.

Byron R. White:

And the servicemen have no right to be in the trial court.

William J. Brennan, Jr.:

Be here in total.

Byron R. White:

Or to be here at all.

You agree with that, don’t you?

Harris Weinstein:

If this were the District Court or Court of Appeals after last Wednesday, I’d have to agree with that because I think it was last Wednesday that decided the case.

And I don’t think it was a prediction of that outcome that —

William J. Brennan, Jr.:

You don’t know why they dismissed that navy commander in the Arlington case, did you?

Harris Weinstein:

Well he was just — you mean why did he not appeal?

William J. Brennan, Jr.:

No, he was dismissed out of the action.

The only — when this got before the Court of Appeals as I read that opinion, and they said only the United States can be here if the United States can be here.

Harris Weinstein:

He was this — are you taking about the Arlington County case?

William J. Brennan, Jr.:

Yes.

Harris Weinstein:

I’m sorry I was confused.

William J. Brennan, Jr.:

No, the Arlington County case, I’m sorry.

Harris Weinstein:

I’m not certain about it, but I assume its reason similar to this case where one man would not ordinarily have $10,000.00 jurisdiction alone.

William J. Brennan, Jr.:

Yes, $121.00 you see.

Harris Weinstein:

Yes, but if I can just try once more on this analogy.

Suppose a criminal charge is brought and the claim of the defendant is that this charge is barred by the Constitution and this is the matter in which the case is litigated.

And in this Court there is a confession of error to it a statement that it is then the position of the United States that this charge is indeed unconstitutional.

Now, I —

Byron R. White:

But there’s no question in that case that you’re about extend the statute to give you the authority to do what you’re doing in this statute as a matter between the state and the servicemen and the criminal case between the United States and the defendant.

Harris Weinstein:

I would think —

Byron R. White:

And just because the United States says that this — that they’re confession of error doesn’t necessarily mean that the Court has to accept, or that there isn’t any case of controversy in this situation.

Harris Weinstein:

Perhaps this would — it seems to me that the United States which clearly has a function as a guardian for certain purposes of servicemen, in that capacity would have a capacity that is different and distinct from its position as its general position as sovereign.

Byron R. White:

Is that your separate rationale from the Arlington County?

Harris Weinstein:

Yes, but I think it is part of that because the servicemen’s interest —

William J. Brennan, Jr.:

Well, may I put it this way Mr. Weinstein, I suppose the position of the United States when this suit brought in the District Court was that which is now presented to us by the Solicitor General and that were to appear.

Under Arlington County, could not the District Court have had to dismiss the action?

Harris Weinstein:

I think that you — it’s hard to know what would have done.

For example, it would be entirely possible for the Department of Justice to appear on behalf of the other side of the case.

Now perhaps then it would have been brought in a state court rather than the federal court.

Now, I think — I would suggest the District Court and Court of Appeals jurisdiction has to be viewed in terms of what the situation was at that time.

This Court is — would have jurisdiction certainly of this case and it came up through the state system, and if you were to argue that the case or controversy has disappeared as between the United States, I think in terms of this Court’s jurisdiction, it still has to be considered in terms of the existence a capacity on the United States to appear as the representative, as the guardian of the servicemen.

William J. Brennan, Jr.:

Which is only to say that the issue is the standing of the United States to maintain this suit in the federal court?

Harris Weinstein:

But that an issue which would depend on something that developed after the decision in the District Court and Court of Appeals.

Earl Warren:

Mr. Weinstein, I don’t think we’d have any problem in this case if what you’re arguing to is, was the position or is the position of the United States Government that this is an adversary suit between the United States and the State of Connecticut and we come into this Court?

And we don’t have an adversary proceeding at all.

We have no argument at all on the part of the United States in this Court as to what it believes the public interest is or the rights of these veterans.

We have a contrary view that is the opposite of what the Government says officially.

And we close this case without any argument at all from the Government as to why it agrees with the State of Connecticut in this particular matter.

Isn’t that a strange situation?

Harris Weinstein:

Well as I — it is — as I said it is uncommon.

As I said earlier, I do not think it is unprecedented.

And it occurs to me now that there is a case that I might have cited that would be somewhat better for this purpose than the Kornhauser case, and perhaps I should’ve cited it first.

And I think this is Burnet against Northern Trust Company.

Again a tax case, I believe from the 1930’s and I — it may be in 283 United States reports, I’m not certain.

But this is a situation where the brief had one half prepared — one part prepared by the revenue, by the Treasury Department and the other half by the Department of Justice.

And the Treasury appeared to present its case, although the controversy is as much there between the Government and the taxpayer.

Earl Warren:

But here is a different situation.

That’s two agencies of the Government.

But here all we have here as I see it is that the Government, the official position of the Government is that the statute of the state is constitutional.

And this is an internal fight in the department and the Solicitor General having taken the official position for the Government does not appear, and those in his employ come here and argue the opposite way from the way he comes out, and will after that any argument at all on the part of the United States.

Harris Weinstein:

I suppose the case would be — had been closer to the Northern Trust if this case had been brought in the name of the Secretary of Defense as the Northern Trust case was brought against the Collector of Internal Revenue.

Earl Warren:

That might be different, but we’ve had that with the ICC.

We’ve had the Solicitor General on one side and the ICC on the other.

We’ve had it with the Selective Service recently.

We’ve had it with a number of them.

But we haven’t had it because of an internal difference of opinion in the Department of Justice where the deputies of the Solicitor General prevail over the Attorney General and although — or over the Solicitor General, and now although he states his opinion in general terms, the deputy comes in here and argues against that position.

Harris Weinstein:

I did not in — I hope I didn’t characterize my function in that way.

I tried to put it in terms of the being assigned to come here for an adversarial presentation.

Earl Warren:

Well, did you argued to us the official position of the Government?

Harris Weinstein:

No, I cannot say I did.

Earl Warren:

No, well then you hardly have given us a balance view with this situation.

Well, I no intent to barge in, I just — it bewilders me and bothers me as to whether we have had an adversary proceeding here.

Harris Weinstein:

Well, I think I’ll cite what I can offer on this Mr. Chief Justice.

Earl Warren:

Yes, well I think we have on this, very well.

Mr. Ahern did you have anything further?

F. Michael Ahern:

I have nothing further to add Mr. Chief Justice.

Earl Warren:

Very well.