Wisconsin v. Tennessee

PETITIONER:Wisconsin
RESPONDENT:Tennessee
LOCATION:Pittsburgh Party Headquarters

DOCKET NO.: 13 ORIG
DECIDED BY: Warren Court (1955-1956)
LOWER COURT:

CITATION: 350 US 955 (1956)
ARGUED: Jan 23, 1956
DECIDED: Jan 30, 1956

Facts of the case

Question

Audio Transcription for Oral Argument – January 23, 1956 in Wisconsin v. Tennessee

Earl Warren:

Number 13 Original, State of Wisconsin versus the State of Tennessee.

Attorney General Thomson.

Vernon W. Thomson:

May it please the Court.

This is a motion by the State of Wisconsin for leave to file a complaint in an original action against the State of Tennessee.

The motion proposed complaint and brief were served upon the proper officials in the State of Tennessee.

The Governor and the Attorney General of that State on the 14th, of October 1955.

No answer or other pleading has been served by the State of Tennessee except a brief, which was served and filed and which we construe in the nature of a demurrer to our proposed complaint.

We believe the jurisdiction is conferred on this Court by Article 3 Section 2, Clause 2 because it is an action in which one of the sovereign states is a party.

In this action, both parties are sovereign states and we believe that Section 1251 (a) of Title 28 of the United States Code gives exclusive jurisdiction of this proposed action to this honorable body.

The principal question involved in this proposed action is, does a Tennessee statute which allows residence of a marketing area in Tennessee to sell milk and milk products below a prevailing price without restriction, but subjects the residence of a — of the State of Wisconsin to a thread of prosecution if they make sales below said prevailing price constitute a direct and undue burden upon interstate commerce?

It is our position that it does.

We believe that it is discriminatory against interstate commerce and hence violative of the Commerce Clause, Article 1, Section 8, Clause 3, and also violative of the Equal Protection Clause of the Constitution, Article 14, Section 1.

The controversy arose as a result of the passage in the State of Tennessee of Public Law 74 of 1955.

In this Act, it provides in substance that any person who shall sell milk or milk products in any marketing area for a less than the wholesale or retail price at the place of sale, when such milk has been prepared or processed for resale and transported into the marketing area from any point outside of the marketing area has committed a proscribed act.

A shortened quotation from paragraph A of Public Act 74 describes the unlawful act as follows” To sell within any marketing area at wholesale or retail for less than the prevailing wholesale or retail price at the place of sale any of the following named products, market milk.

And then they enumerate all various kinds of fluid milk, butter milk and cream that have been prepared or processed for resale and have been transported in the said marketing area from any point outside of said marketing area”.

Anyone violating the provisions of Public Law 74 will be subjected to penalties up to $300 or by imprisonment not to exceed three months or by both, such imprisonment and fine.

It is the position of the State of Wisconsin that this law, the mere passage of this law creates a barrier to the free flow of milk from the State of Wisconsin into the State of Tennessee.

And additional prescription in this Act permits an injunctional proceeding by the Commissioner of Agriculture.

So, with the passage of this Act, the milk producers in Wisconsin are faced with injunction and prosecution if they transport milk into the State of Tennessee and attempt to sell it competitively in that State.

This —

Felix Frankfurter:

Are there any relief for such a milk producer of Wisconsin?

Vernon W. Thomson:

Apparently, there is no relief except to comply with the law or engage in the expensive litigation in that particular jurisdiction.

Felix Frankfurter:

Is it filed into the Commerce Clause, it would (Inaudible) that in light of this not to be in the penalty.

Vernon W. Thomson:

Mr. Justice, that is why we are in this Court.

This is a matter of great importance, this free interstate commerce in milk to the State of Wisconsin and to the thousands of milk producers in the State of Wisconsin.

The second greatest industry in Wisconsin is the dairy industry.

We produce tremendous quantities of milk in the State of Wisconsin.

Prior to the passage of this law, substantial quantities of milk produced have been sold in the State of Tennessee.

In the State of Wisconsin, there are 107,000 farm families engaged in the production of milk, and in 1954, the State of Wisconsin produced 16.5 billion pounds of milk.

Vernon W. Thomson:

In addition to that, we exported from the State of Wisconsin more than 1 billion pounds of milk.

This industry is vital to the State of Wisconsin.

The export of this milk, we have a tremendous reservoir of milk available to the people of America if we are not prevented by a maze of discriminatory statutes and regulations and barriers from moving it freely in interstate commerce.

Those 107,000 farm families in Wisconsin have more than 2,600,000 producing dairy cattle and more than 4 million cattle on their farms.

The value of this milk exceeds $500 million.

And the total volume of butter fat in addition to that milk shipped in interstate commerce out of the State of Wisconsin in 1954 exceeded 28.5 million pounds.

So, this industry is vital to the State of Wisconsin and the free flow of this milk is essential to prevent the depression of dairy prices in our state if this milk is not permitted to move freely.

And now we’re faced —

William J. Brennan, Jr.:

This milk — this milk were being processed or shipped?

Vernon W. Thomson:

It is required to be processed under the public health laws and —

William J. Brennan, Jr.:

Raw milk to the farm would not come under the Act.

Vernon W. Thomson:

Raw milk would not come under this Act, and to properly move it, it has to be pasteurized.

William J. Brennan, Jr.:

Yes, and it could be the processes that permits it.

Vernon W. Thomson:

The law exempts the producer but imposes restraints which are unreasonable upon him because the individual producer doesn’t have adequate volume or adequate finance to move milk in a volume necessary for economical transportation.

William J. Brennan, Jr.:

And then — then it will be the processors who’d affect (Inaudible)

Vernon W. Thomson:

Well, our processors in Wisconsin are principally large cooperative farm organizations who gather the milk, process it and transport it or sell it outside of the state as well as within our jurisdiction.

William J. Brennan, Jr.:

That they could raise the problem in the Tennessee courts.

Vernon W. Thomson:

Individual litigants could go down there.

William J. Brennan, Jr.:

Individual processors.

Vernon W. Thomson:

Individual processors could go down there.

William J. Brennan, Jr.:

Even the — in the sense of the farm cooperative.

Vernon W. Thomson:

That is correct.

But we are appearing here as we believe we are entitled to under the doctrine parens patriae to represent the 107,000 farm producers who have neither the adequate finance —

William J. Brennan, Jr.:

Well, I — I don’t understand that because of what you said, the processors were the ones affected.

Vernon W. Thomson:

Well, it directly affects the farmer if the processor can’t —

William J. Brennan, Jr.:

Directly or indirectly?

Vernon W. Thomson:

It is through —

William J. Brennan, Jr.:

Of course, didn’t affect the price of milk.

I understand that.

Vernon W. Thomson:

And it affects the producer if his processor can’t move his milk.

William J. Brennan, Jr.:

Yes, indirectly.

Well —

Vernon W. Thomson:

We feel it’s quite a direct affect because if the processor can’t move it, the price —

William J. Brennan, Jr.:

Yes, but my — I inquired directly to is the problem of the process raises the question of Tennessee and it has relation to Massachusetts versus Missouri.

Are you familiar with that case?

Vernon W. Thomson:

Illinois versus Missouri?

William J. Brennan, Jr.:

No, Massachusetts against Missouri.

That — that’s where Massachusetts came into this Court.

They wanted to — to litigate with Missouri in regard to taxation because Missouri felt it was violating the constitution with taxation.

Does that go up to the Missouri court, then from there up here?

Suppose that we were interested in taxation.

Vernon W. Thomson:

Well, we are relying —

William J. Brennan, Jr.:

Cook — Cook against Oklahoma, are you relying on that?

Vernon W. Thomson:

We’re relying on Pennsylvania versus West Virginia.

William J. Brennan, Jr.:

Well, there — there you have a proprietary matter.

Vernon W. Thomson:

The Court permitted the filing of the complaint under the doctrine of parens patriae as we understand it in that case.

William J. Brennan, Jr.:

They — they alleged that they were the owners of buildings, did they not?

Vernon W. Thomson:

They alleged they were owner of buildings and schools —

Hugo L. Black:

Then use natural gas.

Vernon W. Thomson:

And of course, we alleged that this has a direct impact on the tax revenues of the State of Wisconsin that our milk is not permitted to flow freely in interstate commerce.

William J. Brennan, Jr.:

But both — both Georgia and — and Georgia and also Pennsylvania alleged that they were actual sufferers from the precise Act over the tax.

Vernon W. Thomson:

We also alleged that we suffer through the tax revenues and the depressed —

William J. Brennan, Jr.:

But that’s — that’s (Voice Overlap) —

Vernon W. Thomson:

— conditions.

William J. Brennan, Jr.:

— way from this — from a direct.

Is there any case that where the state has not passed it?

Vernon W. Thomson:

Well, in the case of Georgia versus the Pennsylvania Railroads, the Court said there that the proprietary allegation was more or less of a makeweight — a makeweight argument and that they would permit the State to come into this Court under the doctrine of parens patriae.

Of course, you have probably had smoke right over into Tennessee or the poison gas.

Vernon W. Thomson:

Georgia versus Tennessee Copper Company, we feel that this is a very direct burden on interstate commerce.

Harold Burton:

Mr. Attorney General, in applying your claim of parens patriae, you emphasized the number of uses in Wisconsin, or the numbers people are affected.

Harold Burton:

Would your right be the same if it was a small number instead of a 100,000?

The legal issue would be the same would it not?

Vernon W. Thomson:

We think the legal issue that we represent the people of the State of Wisconsin even though they may be few that directly suffer, but in this case, many are suffering.

Harold Burton:

But if it’s few, could you or the State come in and — and bring a suit against another state?

Vernon W. Thomson:

I think we have that right under that doctrine.

Felix Frankfurter:

Is cheese making of which (Inaudible)

Is that — is that a part of the dairy industry?

Is that a separate industry?

Vernon W. Thomson:

It’s a very essential part of the dairy industry.

It’s a manufacturing phase of the industry.

Felix Frankfurter:

But we have said the second (Inaudible) to include cheese and butter?

Vernon W. Thomson:

Yes, cheese and butter, and fluid milk.

Felix Frankfurter:

All the — all these butter is coming from.

Vernon W. Thomson:

In fact, it is a very essential part of the dairy industry.

Wisconsin makes more cheese than all of the other states in the union together.

Felix Frankfurter:

Does this law affect cheese?

Vernon W. Thomson:

They have a — Tennessee has a separate licensing law which affects manufactured products.

This is —

Felix Frankfurter:

Is this is part of the statute?

Vernon W. Thomson:

This is directed principally to the fluid milk.

Sherman Minton:

What do you understand do be the doctrine of parens patriae?

How far does this go?

What’s the scope of it?

Vernon W. Thomson:

Well, we construe it to mean the right of the State to appear for the substantial interest of the people of the State.

Sherman Minton:

Any interest?

Vernon W. Thomson:

Well, any substantial interest that affects the rights or the economy of the state, the rights of the individual people or the economy of the state.

Sherman Minton:

Private litigants will just go out of business.

Vernon W. Thomson:

Well, Mr. Justice, the Tennessee brief alludes to our pending action which was initiated by a foreign corporation which is a processor of milk and which is now in trouble in the State of Tennessee, but it was a —

Sherman Minton:

Well, of course, you’d have the right to assist that individual or a party if you wanted to, but you — it has the right to come here and have this Court try out the policy of Tennessee with reference to your individual dairy people in Wisconsin.

Vernon W. Thomson:

Mr. Justice, that is the position of Wisconsin that we shouldn’t be dependent on the benevolence of some private individual or foreign corporation to protect the interest of the people of Wisconsin where a statute directly burdens interstate commerce.

Tom C. Clark:

(Inaudible)

Vernon W. Thomson:

Well, Mr. Justice Clark, I have no familiarity with the case except that it was made a part of the brief of the State of Tennessee and I am confident that it involves other issues in which that processor may be interested other than the issue of interstate commerce in which we are principally interested here and the discriminatory features of the Tennessee Act.

Earl Warren:

Mr. Attorney General, there are great many trade barriers that reflect in the same way against states, would you think that the any trade barrier could be the subject of an original suit here as between the states?

Vernon W. Thomson:

Possibly not any trade barrier, I can conceive of some that would not.

But we think that this is a barrier, a real barrier and a direct barrier against the free flow of milk between our State and the State of Tennessee.

We have pleaded these ultimate facts and none of them have been denied by the State of Tennessee.

And we believe that these facts bring into our operation the rules of law laid down by this Court in the decision in Pennsylvania versus West Virginia.

One significant part of that case was the fact that Pennsylvania started suit only eight days after the passage of the law in West Virginia, and this Court entertained that suit against the — we cited to show that this action was brought timely because this Court has entertained these actions when they were brought before any injury has been done and the Court said that the injured State did not need to wait until injury had been done but when the statute was clearly beyond the power of the State that this Court would step in and provide a remedy.

And we also think that that doctrine is set forth in the case of Georgia versus the Pennsylvania Railroad which as we understand that case, accepted jurisdiction on the theory of parens patriae and not on the theory that the State of Georgia had a particularly or real proprietary interest.

William J. Brennan, Jr.:

What — what about Oklahoma against Cook?

Vernon W. Thomson:

I’m not familiar with that, Mr. Justice.

Possibly, that was a case that was for the benefit of private individuals and not for the sovereign state.

William J. Brennan, Jr.:

Well, that — that was the case that was brought likely a liability with people in (Inaudible)

This Court said that it was better to let those matters be settled, the suits were — private litigants were involved but not near incidental an interest of the State.

That is not sufficient, the general interest of the state (Inaudible)

Vernon W. Thomson:

What we feel in this —

William J. Brennan, Jr.:

And particularly when you can get the same relief and it says that you can get the relief in the courts of Tennessee.

Vernon W. Thomson:

But the citizen cannot get the relief without being burdened with expensive cost of litigation in a court, in a foreign jurisdiction, and the law — the mere passage of this Act has effectively prevented it, the movement of milk in interstate commerce between Wisconsin and State of Tennessee.

Felix Frankfurter:

If the statute is so obviously unconstitutional, why do we expend so verdantly?

All you have to do is to file a bill, a motion to dismiss, motion denied, injunction, why is that so burdensome?

Vernon W. Thomson:

Burden —

Felix Frankfurter:

Except — except the general burden with any litigations obviously.

Vernon W. Thomson:

Well, we think it’s an undue burden.

We don’t think there’s —

Felix Frankfurter:

I know but —

Vernon W. Thomson:

— ambiguity in the statute at all.

It will take a long time to get the action to the Supreme Court of the United States.

If it comes up through the process of starting in the District Court, coming up to the Supreme Court, we think it is direct and real, and present and it should be — relief should granted.

Felix Frankfurter:

We take cases from District Courts on very short notice.

Vernon W. Thomson:

True.

Felix Frankfurter:

The Court and constitutional questions.

I merely meant that monetarily the statute on its face is obvious — is it obviously unconstitutional, isn’t very — is the cause of litigation, all the — all that the Court would have to do is to read the statute (Inaudible)

And if it isn’t that kind of a case, if it’s a different kind of a (Inaudible) down the Commerce Clause, it depends on detailed facts, it has to be ascertained that the (Inaudible) case from Indiana.

If you require it, it should’ve been — it’s better there’s no place to have them.

Vernon W. Thomson:

Mr. Justice, we — we of course feel that milk is a legitimate article to move in interstate commerce.

We feel that the doctrine of Baldwin versus Seelig established that fact.

We also think that the doctrine must — is repeated in the Dean Milk Company case versus the City of Madison, wherein Madison had an ordinance that required pasteurization of that milk within a radius of 25 miles of the City of Madison, and this Court held that it was discriminatory against interstate commerce and that it — even though it discriminated against some of the people residing in the jurisdiction, that it was an undue burden on interstate commerce, and therefore, it was struck down.

A similar rule was ruling in the case of Hood versus Du Mond which we think supports our position of — that this burden in this particular case is a direct burden on interstate commerce and it is outside of the power of the state to regulate and thus discriminate against the people of the State of Wisconsin.

They have further burden placed on interstate commerce in this Act, which requires that the milk must be sold in Tennessee at not less than cost.

And then, they described cost as the cost to the producer in the State of Tennessee.

It is our contention, and if we have the opportunity to present this matter to this Court that we can more efficiently produce that milk and that it — that their cost factor is a direct burden on interstate commerce.

So, we have this —

(Inaudible)

Vernon W. Thomson:

Well, Mr. Justice, we can’t, the State of Wisconsin can’t sue Tennessee in any court but this Court.

Felix Frankfurter:

Cannot?

Vernon W. Thomson:

As I —

Felix Frankfurter:

Why not?

Vernon W. Thomson:

As I understand the Constitution and the Code requires that this Court have exclusive jurisdiction of actions between sovereign states.

Felix Frankfurter:

That isn’t (Inaudible)

What I had in mind was the same (Inaudible)

Vernon W. Thomson:

The Dean Milk Company operates in Wisconsin.

It is not a producer of milk.

It is a processor and distributor of milk.

It’s —

(Inaudible)

Vernon W. Thomson:

It’s a foreign corporation.

It’s been the subject of prosecution for the State of Wisconsin.

We think the issues are so different in that case.

We think that we — there are so many provisions against the State appearing in that case that we appealed to this Court to take original jurisdiction of — of this situation and we think this is the only place that we have a forum.

(Inaudible)

Vernon W. Thomson:

I think it — that was a direct and undue burden on interstate commerce that they probably could.

Against another state.

Vernon W. Thomson:

That’s why we are here in this action.

It is our position that these sanctions enacted by the State of Tennessee and the threats of prosecution, the threats of injunctional action have created a real barrier which hamper and impede, and will eventually destroy the Commerce in milk between the State of Wisconsin and the State of Tennessee.

And we have appealed to this Court as the only Court that has jurisdiction of this action and the hope that we may be permitted to file our complaint under the doctrine of parens patriae and be heard in this Court.

Earl Warren:

Mr. (Inaudible)

Mr. Attorney General:

May it please the Court.

We don’t think that jurisdiction of this Court to entertain suits between states rest upon the effect that an individual suit might have on the pocket book of some citizen of one of the states.

It’s our position first of all that the State of Wisconsin under the allegations of this complaint has not stated a cause which properly invokes the original jurisdiction of this Court.

Secondly, that the state of facts in Wisconsin’s proposed complaint justified this Court in exercising its discretion in the matter in refusing to take jurisdiction.

And thirdly, that the statute is not unconstitutional.

Now, getting to a number of questions that have been raised from the bench with regard to the rights of a private or individual producer in the State of Wisconsin to institute such an action, it’s our position that there is nothing in the world to prevent a producer in the State of Wisconsin if the facts are such that bring him within the terms of the Act from coming into the State of Tennessee and sue in there either in the state courts or in the District Court of the United States, or if an action is brought against them in the state court, he can resist on the grounds of the invalidity of this statute.

As a matter of fact, a suit to test the statute wherein it is alleged that the Act is unconstitutional under the Commerce Clause is now pending in the United States District Court in Nashville.

The pleadings and the orders in that case as set out in the brief that there is a private litigant who is in Court who’s fighting just as hard as he can to get the same kind of relief that Wisconsin is trying to get by the exercise of original jurisdiction in this Court.

And the matter is now pending, waiting for it to be set before a three-judge court.

Now, this matter is of primary importance for this reason.

It’s well known (Inaudible) only those who are affected by the statute can question its constitutionality.

Now, as an example of what I’m talking about with particular reference to the situation that we have before us, suppose the state passes an Act taxing the sale of automobile tires and suppose I as a merchant go in and allege that I am a merchant that I don’t like the statute and I want it stricken down.

Well, I think I would have to go on and allege that I was engaged in the sale of automobile tires before acted — get the Court to pass on the validity of the statute.

Now, we say that that’s exactly the position that the State of Wisconsin is in here.

Wisconsin said we have a dairy industry.

We’ve got so many cows and we produce so much milk.

But the only allegation in this proposed complaint that comes anywhere near a showing that Wisconsin people and Wisconsin producers will be in any way affected by this Act is the allegation that huge quantities of milk produced in Wisconsin have been sold in Tennessee.

Now the statute forbids certain marketing practices if done with intent to injure or destroy competition.

It forbids the sale of milk that had been transported into a marketing area at less than the prevailing wholesale or retail prices place of sale.

Marketing areas are defined as being counties that have within their borders municipalities which have ordinance is regulating the grading of milk.

There is no allegation in this proposed complaint to any Wisconsin producer.

Transports milk into any marketing area in the State of Tennessee.

There is no allegation in this proposed complaint that any Wisconsin producer has sold milk transported in such a marketing area so as to violate the terms of this Act.

Furthermore, there is no allegation that any Wisconsin producer has any desire to do anything that could possibly be construed as a violation of this Act.

Mr. Attorney General:

Now, the point I’m making is this.

And it was set up by this Court in the case of United Public Workers against Mitchell.

Unless there is a real controversy, neither this Court nor any other Court has jurisdiction to entertain a lawsuit.

Now, in that case, the complainants went even further than Wisconsin has gone here because they alleged that they wanted to engage in certain political activity.

They wanted to be poll workers and they wanted to go out and solicit for various candidates and all those things were forbidden by the Hatch Act and they said for that reason, it’s unconstitutional.

But this Court held that they should have been repelled in the lower court and the suit was finally entertained as to only one complainant who had actually done something that violated the Act.

Now that brings us down to this proposition, before any suit, in any court should be entertained to test the validity of this Act, the complainant in the suit should be required to show that he has an interest in the matter.

He has an interest that is adversely affected by the Act.

That is a matter that can be threshed out in the District Court.

That is a matter that can be threshed out in the state court between some individual producer in the State of Tennessee or some competitor.

All those matters can be determined.

A searching inquiry can be gone into, to find out whether or not the Act affects him and whether or not he’s entitled to maintain it.

Felix Frankfurter:

Mr. Attorney General, there is an allegation as there are 12 of the proposed complaints with the (Inaudible) Wisconsin have been and sold in Tennessee and as such there is (Inaudible) hamper and impede to destroy it, is that it?

Mr. Attorney General:

Yes, Your Honor.

Felix Frankfurter:

And you think that is sufficiently particular?

Mr. Attorney General:

I think it is not sufficiently particular.

I think the entire complaint, proposed complaint fails because of that.

I think furthermore —

Felix Frankfurter:

You mean, there’s — how could you have in the state of the 28 of the millions (Inaudible) 59 million pounds of milk shipped, (Inaudible) in Tennessee where they said that.

They haven’t said it?

Mr. Attorney General:

They haven’t said in testimony.

Now, substantial — it might be anything from — I don’t know what, a thousand pounds or 500 pounds or 10,000.

Mr. Attorney General:

Yes Your Honor.

(Inaudible)

Mr. Attorney General:

There’d been no offer to do so as I understand it.

I realized that it might come in the future.

Felix Frankfurter:

You’re speaking against the complaint.

We’re not speaking against some complaint of (Inaudible)

Mr. Attorney General:

That’s right.

What about Pennsylvania against West Virginia?

Mr. Attorney General:

Pennsylvania against West Virginia was an entirely different proposition for this reason.

The statute there under attack unequivocally placed a limitation upon the exportation of natural gas from the State of West Virginia.

The allegations in the complaint showed very clearly that this would have an adverse effect on — not only people of Pennsylvania but the State of Pennsylvania itself because there was an immediate threat by the mere passage of the Act to cut off the flow of natural gas.

Felix Frankfurter:

Pennsylvania itself was a consumer.

Mr. Attorney General:

Yes Your Honor.

Felix Frankfurter:

The state itself was a consumer.

Mr. Attorney General:

Yes sir.

And its people were consumers.

Here, you’ve got nothing of that character.

Now, the statute went on —

(Voice Overlap) (Inaudible) proprietary in some other angle, isn’t it?

Then you would have to face Georgia against the Pennsylvania Railroad, isn’t it?

Mr. Attorney General:

Well, I think it’s in the same situation as the Pennsylvania case with regard to the matter where now a discretion because there you had situation where the damage not only was being threatened but was being done according to the allegations in the complaint.

Yes.

That is — I was thinking about the other face of it.

Mr. Attorney General:

Yes sir.

But now you — pardon me sir.

(Inaudible)

Mr. Attorney General:

Yes sir.

(Inaudible)

Mr. Attorney General:

Well, I — I merely mentioned that incidentally to show that the State of Pennsylvania without any doubt was going to suffer both in a propriety capacity and there’s parens patriae.

Felix Frankfurter:

Well, we would have a very different case if Wisconsin as was true of North Dakota (Inaudible) for themselves, engaged in the milk business, (Inaudible) if you own warehouses and (Inaudible) activities as a proprietor.

Mr. Attorney General:

I think — I think you —

Felix Frankfurter:

You’d have a very different case (Inaudible)

Mr. Attorney General:

I think you’d have a different case if Wisconsin went on to allege not only that they occupied a propriety capacity but also that the State of Tennessee had done something that affected them or was threatening to do something —

Felix Frankfurter:

I was — I’m assuming (Inaudible)

Mr. Attorney General:

Yes

Felix Frankfurter:

(Inaudible) that it’s possible

Mr. Attorney General:

That’s right.

Now, there’s no showing of that here.

Mr. Attorney General:

This statute went on the books.

I believe it was the 28th day of February 1955.

This compliant was filed some time in October.

There’s no allegation in it that any milk has been kept out of in the State of Tennessee.

There’s no allegation in it that any producer has suffered a penny loss or he suffered at all.

Felix Frankfurter:

Well, there — there are (Inaudible) that were more important state (Inaudible)

Mr. Attorney General:

But they haven’t alleged that it’s been enforced in a way that hurts them.

Earl Warren:

Mr. (Inaudible) is — is it your contention that they have not made the proper allegations here or that they cannot make the proper allegations to get into this Court?

Mr. Attorney General:

It’s our contention first that they have not made the proper allegations.

They have not stated a cause of action.

It’s our contention in the second place that they can’t make proper allegation because of the very nature of the suit.

Earl Warren:

Assume for the sake of argument that the economy of Wisconsin has been seriously injured by this — by this law.

Is there any court other than this Court open to the State of Wisconsin to remedy that wrong if it’s —

Mr. Attorney General:

Not —

Earl Warren:

— if it is wrong?

Mr. Attorney General:

Not that I know of.

No, sir.

Felix Frankfurter:

Why do you say that, I don’t understand?

Mr. Attorney General:

I think the —

Felix Frankfurter:

Is that what happened in Missouri against Massachusetts?

Mr. Attorney General:

I’m not familiar with it Your Honor.

No, sir.

Felix Frankfurter:

I don’t understand (Inaudible) familiar with the case which it says that the original jurisdiction is an exercise of discretion by this Court and not a compulsion.

Mr. Attorney General:

Well, that’s my decisions in not having read it, Your Honor.

I — I understand that it is a matter of discretion and that’s what part of my argument is directed at because the very basis of the lawsuit can only be determined between somebody who’s engaged in the sale of milk and milk products.

It’s further our contention that the statute is not invalid on its face.

As pointed out —

Earl Warren:

Before you get to that.

Do you — do admit Mr. (Inaudible) that it is — it is a matter of discretion as to whether we should take this case or do you claim that we have no jurisdiction (Inaudible) under the circumstances?

Mr. Attorney General:

Well, I — I think first that you have no jurisdiction under the allegations.

Mr. Attorney General:

Secondly —

Earl Warren:

(Voice Overlap) would just have discretion, (Inaudible)

Mr. Attorney General:

I think if you do have jurisdiction, it’s still a discretionary matter.

As pointed out to —

Earl Warren:

Yes.

Mr. Attorney General:

— Mr. Justice —

Earl Warren:

I thought your answer to Mr. Justice Frankfurter was that that’s exactly what you claimed that it was a discretionary matter with this Court whether we would take it or not.

Mr. Attorney General:

Only if the Court has jurisdiction.

I failed to make myself clear about that.

Earl Warren:

I — I didn’t get that.

Mr. Attorney General:

We say first you have none and secondly it should not be exercised if the Court has it.

It’s further the insistence of the State of Tennessee that this statute is not invalid.

The primary complaint about it in the proposed pleading is that it is a direct and undue burden on interstate commerce.

The terms of the statute primarily provide that it shall be unlawful to sell that below prevailing wholesale or retail price at the place of sale, milk that has been produced for resale and transported into a marketing area.

This applies not only to milk that is transported across state lines but also intrastate.

Therefore, we insist that there is no discrimination against interstate commerce.

Earl Warren:

Does it apply for local — local producers and distributors also?

Mr. Attorney General:

Not with respect to that particular provision of the statute.

Earl Warren:

Well, how do you — how do you avoid that discrimination?

Isn’t that a discrimination that permits local producers and processors to — to sell at any price but to charge interstate producers to require them to charge a higher price to take it out of the realm of competition?

Mr. Attorney General:

It might be if they were permitted to charge in the price.

But while that particular provision of the Act does not affect them, there is another provision of the Act that applies to everybody whether the milk has been transported in or not, which prohibits its sale less than — at less than cost to the seller.

Earl Warren:

Whose cost?

Mr. Attorney General:

The seller’s cost.

Earl Warren:

Fixed by whom?

Mr. Attorney General:

There is no party that — official organization or anything that fix the cost.

They — they just provide cost to the seller.

Earl Warren:

Well, I — I understood the Attorney General of Wisconsin to say that the cost — the minimum cost was to be fixed by the cost of doing business by the local producers and distributors.

I don’t know whether I heard him correct that you are not in that — but that’s what I — I understood him to say.

Mr. Attorney General:

I think that’s his contention about the matter but —

Earl Warren:

That is not the fact?

Mr. Attorney General:

That’s not as we see it, no, sir.

The Act provides this.

That no milk where there imported into a marketing area or not shall be sold at less than cost to the seller.

That provision goes on to state that proof of cost to other sellers in the marketing area shall constitute prima facie evidence of cost to the seller against him, any action might be taken.

Now, it might be said that cost to the seller is fixed.

We say that that is merely a rule of evidence established by the Act in order to permit the proper state official or an injured competitor to go into Court and establish some standard of price.

Of course, it isn’t conclusive on anybody and it can be rebutted.

Earl Warren:

But every — every distributor that — that came in from the outside would have to establish some action that what his cost would be or he would be subject to imprisonment under this statute.

Mr. Attorney General:

That’s conceivable, yes Your Honor.

Earl Warren:

Well, it’s a claim in effect though, isn’t it?

Mr. Attorney General:

Yes.

So, local producers who don’t transport across county lines are not left unaffected by the Act.

Now the — the prevailing price provisions don’t affect them.

Earl Warren:

Does not?

Mr. Attorney General:

No, sir.

But the below cause provisions do affect them.

So, nobody’s left unregulated within marketing areas.

Earl Warren:

A local — a local distributor himself or anything he wants as long as it isn’t below cost.

Mr. Attorney General:

Yes, sir.

Earl Warren:

That is his cost.

Mr. Attorney General:

Yes.

Earl Warren:

His own personal cost.

Mr. Attorney General:

Yes, sir.

Earl Warren:

But anyone coming from the outside cannot sell for less than the general cost in the industry in that (Inaudible)

Mr. Attorney General:

That’s right, the prevailing price.

Earl Warren:

The prevailing price.

Mr. Attorney General:

Yes Your Honor.

Earl Warren:

You don’t see any discrimination there?

Mr. Attorney General:

Not against interstate commerce, because it applies equally to intrastate commerce.

Mr. Attorney General:

Any milk that’s imported into an area, whether it comes from the State of Wisconsin or whether it comes from, say DeKalb County, Tennessee, Shelby County, Tennessee is subject to the same restriction.

For that reason we say that there is no basis for Wisconsin’s allegation that their people are denied the equal protection of the law because it does apply equally to all groups to do such acts as to bring themselves with any term.

Hugo L. Black:

Did Wisconsin file a suit for the Tennessee Court?

Would they be (Inaudible)

Mr. Attorney General:

I’m not prepared to answer that question, if it please Your Honor.

Hugo L. Black:

That had considerable — vary on this Court’s opinion in Missouri against Massachusetts.

Mr. Attorney General:

I think if Wisconsin —

Hugo L. Black:

In that case, the Attorney General said that the state could file a proceeding in the state court.

Mr. Attorney General:

I think if they can make the proper allegations as to harm, they can do it.

I regret that — that I’m not prepared to give Your Honor a definite answer to that question yes or no but I’m not.

Certainly, any citizen of Wisconsin who is affected and who can make proper allegations of harm has perfect right to try to come into a Tennessee court and have this Act tested.

There’s no reason on Earth why he can’t do that.

Hugo L. Black:

I was asking about the state.

Mr. Attorney General:

Yes I understand Your Honor’s question.

Hugo L. Black:

Is there any rule against the state filing a suit in the state court?

Mr. Attorney General:

No, sir.

Felix Frankfurter:

(Inaudible)

Mr. Attorney General:

No sir, none that I’m aware of.

Felix Frankfurter:

(Inaudible)

Mr. Attorney General:

Yes, it would.

Earl Warren:

I understood you to say in answer to my question that there was no forum other than this Court open to the State of Wisconsin in these circumstances.

Mr. Attorney General:

I did make that response to your question.

I’m not definite about the state court.

I — I feel reasonably sure that Wisconsin on proper allegations could get into the state court.

Felix Frankfurter:

Well, you were evidently under the (Inaudible) you make the assumption made by the Attorney General of Wisconsin that all you have to do is to read Article III and (Inaudible) to see whether it would have jurisdiction (Inaudible)

Mr. Attorney General:

No, sir.

I think the federal statute put exclusive jurisdiction particularly insofar as federal courts go and this Court between — in suits between states and maybe that I’m confused about that.

Felix Frankfurter:

(Inaudible)

But it isn’t so that (Inaudible)

Mr. Attorney General:

No.

Mr. Attorney General:

All right sir.

Felix Frankfurter:

Well, it isn’t merely what you (Inaudible) Massachusetts against Missouri (Inaudible) the case which has come to this Court from California, or a suit was brought in the District Court.

The argument was — it must be brought (Inaudible)

Mr. Attorney General:

If it please Your Honor, we think the cases of Baldwin against Seelig and hood against Du Mond do not support the position of the State of Wisconsin in this case.

There, there was an unequivocal barrier to the flow of milk in interstate commerce which does not exist here.

On the question of whether this statute is valid or invalid under the Commerce Clause of the constitution, we rely upon the cases of Eisenberg — Milk Control Board against Eisenberg Farm Products wherein this Court approved the action of a Milk Control Board of a state in setting prices of milk that was — prices that was to be paid to producers of milk in the state even though milk was to flow in interstate commerce.

The same result was reached in the case of City Service Gas Company against Peerless Oil & Gas Company wherein there this Court upheld the action of the State of Oklahoma in fixing prices for gas that was to be taken from a certain field even though that gas was to be transported in interstate commerce.

Those cases went even further than the statute in the case at bar because there, there was a definite price fixing arrangement where the State of Oklahoma on one hand and the State of New York on the other hand said, “This shall be paid for Oil & Gas and this shall be paid for milk in no less.”

There’s a statement in City Service against Peerless Oil that we think is directly applicable to the situation at bar.

This Court said that it’s not every incidental effect on the interstate commerce that will strike down a state statute that the states have a right to enact certain police regulations even though they might have some incidental impact on interstate commerce.

The requirements are that interstate commerce not be discriminated against we think that test has been made here that there is no undue burden on it.

We think that so far as the pleadings here go, there is no showing of undue burden.

There’s nothing on the face of — of the statute itself to indicate that an undue burden will be placed on it.

And furthermore, we think that if the safeguards and obvious state interest over which the national interest if there be any and the prevention of all regulation does not prohibit.

It’s therefore our insistence that Wisconsin has no right to maintain a suit that even if the Court has jurisdiction, its discretion should be exercised against the filing of this complaint and that lastly, the statute is not invalid.

Tom C. Clark:

You said the Court (Inaudible) sure whether Wisconsin could sue in a Tennessee court.

Mr. Attorney General:

Yes, sir.

That’s what I —

Tom C. Clark:

You’re not — you’re not quite —

Mr. Attorney General:

— said.

That’s right.

Tom C. Clark:

You — and — at that time, you were speaking about a suit by Wisconsin against some private company or were you thinking of a suit by Wisconsin against Tennessee.

Mr. Attorney General:

I was thinking about the suit by Wisconsin against Tennessee because I thought that before the question was directed.

Tom C. Clark:

Whether Wisconsin sue in the Tennessee courts a — the officials who were — or the producers under the Tennessee law.

Mr. Attorney General:

The — the officials under the Tennessee law?

Tom C. Clark:

This is a suit here.

This — this bill seeks (Inaudible) to here, as you know a suit by Wisconsin versus Tennessee.

Mr. Attorney General:

Yes, that’s right.

Tom C. Clark:

What kind of a suit could Wisconsin bring if any in Tennessee?

Mr. Attorney General:

Well, I think there’s no doubt that she could institute — well, I started to say a suit against some private individual in the State of Tennessee.

Mr. Attorney General:

I can’t conceive to state any facts under this statute that would give her suit against a private individual.

Tom C. Clark:

That — that’s what I was wondering here.

Mr. Attorney General:

I — I was thinking about the State of Tennessee as being a party defendant in response to his Honor’s question.

Tom C. Clark:

Or one of its official.

Mr. Attorney General:

Or one of its official.

Yes, Your Honor.

Do — do the officials of Tennessee expect to enforce this law?

Mr. Attorney General:

The officials of Tennessee do not expect to enforce this law through their own official action.

And if I may explain that briefly in this respect, the statute gives to the commissioner of agriculture of the State of Tennessee or any aggrieved party the right to institute an injunction suit against this — under this statute.

It’s his policy —

(Inaudible) against the violator —

Mr. Attorney General:

Against the violator.

Yes, sir.

It’s the policy of the commissioner of agriculture himself not to institute the suit but leave it to the individuals who might be aggrieved.

Felix Frankfurter:

Let’s (Inaudible) these are non-agricultural members of this Court (Inaudible)

Does that mean that a farmer or dairy man in Tennessee complaining against undue or unfair competition, Wisconsin (Inaudible) could bring a suit against that in Wisconsin in a court as though your commissioner of agriculture (Inaudible)

Mr. Attorney General:

That’s correct.

Yes Your Honor.

Earl Warren:

How about — how about your prosecuting attorneys on the criminal — under the criminal sanction?

Mr. Attorney General:

That’s something that’s up to them individually.

Earl Warren:

As to whom in a state?

Mr. Attorney General:

The prosecuting attorneys.

Earl Warren:

They have an obligation (Inaudible)

Mr. Attorney General:

Yes, sir.

Earl Warren:

I assume they would, would they?

Mr. Attorney General:

I think so, yes.

Felix Frankfurter:

Is there — there are — there is penal sanction?

Mr. Attorney General:

Yes.

Yes, Your Honor.

Felix Frankfurter:

And what if anybody (Inaudible) the violation of the statutes shall be guilty of misdemeanor (Inaudible)

Mr. Attorney General:

It’s a misdemeanor.

The punishment is set out in the Act —

Felix Frankfurter:

How is this — how does a Tennessee man go against a Wisconsin importer into a Tennessee court?

Mr. Attorney General:

You have to catch him in Tennessee.

It’s a misdemeanor advance, if it please Your Honor.

Felix Frankfurter:

Does it go against any of the local distributor for Wisconsin dairy (Inaudible)

Mr. Attorney General:

Yes sir, if he violates the Act.

Felix Frankfurter:

In other words, suppose (Inaudible) suppose a lot of milk needed in Wisconsin (Inaudible) the distributor in Tennessee whatever the equivalent in the statute (Inaudible).

Mr. Attorney General:

Yes, sir.

Felix Frankfurter:

The statute is (Inaudible)

Mr. Attorney General:

It would hit the man in Tennessee if he violated the statute.

Felix Frankfurter:

Well, is that the normal course of business of milk coming in Wisconsin (Inaudible)

Mr. Attorney General:

I think so.

Yes, sir.

Felix Frankfurter:

(Inaudible)

Mr. Attorney General:

That’s my understanding of it.

The allegations of the bill are not specifically as to that so yes.

Well, Mr. Attorney General, do I understand that the test is that Tennessee courts, state or federal, would it be necessary for the Wisconsin shipper the (Inaudible) to violate the Tennessee law and be prosecuted (Inaudible), is that it?

Mr. Attorney General:

No, sir.

I think that he can come in under either the federal or the state declaratory judgement statute and if he can show a real threatened injury he then —

(Inaudible) is not a threat to prosecute him.

Mr. Attorney General:

Well, I can conceive of a threat if he —

I — I can say that there would be a threat.

But I understand that — that that’s entirely within the power of the commissioner of agriculture (Inaudible)

Mr. Attorney General:

It was in his discretion and power as to whether he’ll institute these injunction suits and he has said that he would not.

In the discretion of the prosecuting attorney as to whether he will institute any (Inaudible)

Mr. Attorney General:

Yes, Your Honor.

How — how does it going to be tested in a Tennessee court?

Have a violation of the law then depend on the ground that it’s unconstitutional?

Mr. Attorney General:

That’s one way.

Mr. Attorney General:

I think it can be done under the declaratory judgment statute if a real dispute arises between somebody who sells milk that’s been transported from Wisconsin and perhaps a competitor in Tennessee who is worrying that he is being harmed by the act of —

(Inaudible) doesn’t do anything about, does he?

Mr. Attorney General:

The competitor could institute an injunction suit against the man who is violating the Act.

That man in Wisconsin?

Mr. Attorney General:

Well, he might be or he might be in Tennessee.

It would —

Felix Frankfurter:

Well, you don’t have to be very hypothetical about this, this Court have had a number of (Inaudible) of this nature dealing with milk coming up in various states complaining against the same kind of barriers by state laws against interstate commerce and they went to either federal or state courts in those states and then came here under a challenge that the state statute would violate the Commerce Clause.

Mr. Attorney General:

Yes, sir.

Felix Frankfurter:

Isn’t that a (Inaudible) if this is invalid and all these suits should’ve been brought by the state.

Mr. Attorney General:

That’s right.

I understand those cases though.

Those were all violations that took place and the jurisdiction of the court should be in the trial.

Mr. Attorney General:

I think that’s true.

So that if — for instance, the violation in Wisconsin (Inaudible)

Mr. Attorney General:

I think in those cases, the milk people who were complaining were actually suffering —

Actually suffering and actually (Inaudible)

Mr. Attorney General:

Either there, there is a law by its own terms prevented them from selling or building a plan or whatever it was they wanted to do.

Felix Frankfurter:

(Inaudible) would it be true to say they are barred from entering Tennessee although the Commerce Clause permits them to enter Tennessee.

You don’t need any more of the dairy (Inaudible) if you got that kind of a case.

I think it goes to your court and (Inaudible) bearing a judgment.

The federal court could enter a declaration.

That’s what happened in those cases.

(Inaudible) respectively that New York and Pennsylvania passed statutes dealing with the milk that is beyond the power of the state (Inaudible)

Mr. Attorney General:

Yes sir.

Felix Frankfurter:

And they would show you that they would be heard hypothetically but immediately.

Mr. Attorney General:

Yes.

But — but the fact that your private litigants can sue isn’t an answer to this central problem it seems to me.

Whether or not the state may also true — whether or not the state has — I know you maintain the state has the — it doesn’t have substantial interest here compared to (Inaudible) but — I mean this was (Voice Overlap) —

Mr. Attorney General:

The State of Wisconsin.

Yes, sir.

But certainly in the — in the water rights cases, the interstate water rights cases, those issues could be focused in private litigations, being the downstream owners of riparian rights, upstream owners.

The fact that they can sue doesn’t mean that the states involved may not also.

Mr. Attorney General:

It doesn’t necessarily mean that, no sir.

But we say that the issue here are such that it will be suited to the framework of the — of a controversy in this Court.

And that even if this Court has jurisdiction, as a discretionary proposition, anybody who is suffers because of this Act should be relegated to the more orthodox procedure where those matters can be determined.

I — I could follow that if I could understand as to how they would get that settled without risking the violation of the law, the statute.

Mr. Attorney General:

Under the declaratory judgment statute it might not be necessary to go far enough to risk a violation of the law.

However, in United Public Workers against Mitchell this Court held that the only people who had a right maintain that suit were the ones who had violated the law and not those who expressed a desire to violate it.

(Voice Overlap) —

Earl Warren:

Was the statement — was the statement made by the Director of Agriculture that he did not propose to enforce this law by state action?

Was that made for the purpose of preventing someone from filing a complaint claiming that he threatened to enforce this law?

Mr. Attorney General:

No, sir.

Earl Warren:

What was the purpose of it?

Mr. Attorney General:

It’s merely a statement of his policy, if it please the Court.

Earl Warren:

For what purpose?

Mr. Attorney General:

He just doesn’t think that the Department of Agriculture has any business in getting involved in matters of this kind.

Earl Warren:

Even though the legislature has — has said that he should then that it’s a penal offense for people to violate that law?

Mr. Attorney General:

The legislature didn’t say that he should.

It said that he might.

He was given power but no duty was imposed on him to do it if he didn’t see fit to.

I don’t quite understand just what you think would be necessary to authorize filing a suit in Tennessee.

Of course if the Court has a discretionary duty (Inaudible) right that it had with him to decline.

That discretion might be exercised under some circumstances not under others.

It might — therefore, it might be that the right to sue somewhere else.

Suppose we’d first take a dairy man from Wisconsin.

Suppose he went down and then said now, I’ve been shipping business in milk (Inaudible) I want to continue it because I want to start — ship milk into the market and sell them under the Interstate Commerce Clause (Inaudible)

But I’m afraid shipping in because — (Inaudible) your prosecuting officers are charged with (Inaudible) then you might prosecute me every time I ship something in.

And he filed a suit and said no more than that in your state court.

Could he — would your court take jurisdiction of any kind of suit, test that law on his allegations that the law violates the Commerce Clause.

Mr. Attorney General:

I don’t —

Is that enough?

Mr. Attorney General:

I don’t think that would be enough.

No, sir.

Well, it’s not enough to say that he wants to do business there.

That the law is outstanding and that the duty is on the prosecuting attorney to prosecute him so that he couldn’t do that.

Well, how could he do it?

Mr. Attorney General:

I think it would be necessary for him at least to go on and allege that what he proposed to do was some act that this state — that this statute made a violation.

Well, of course he said that.

Would that authorize him to challenge it in your court?

Mr. Attorney General:

I think so, yes.

Suppose, instead of a — it being the (Inaudible) the state came down, said there are many, many people out there who wants to do business.

We’ve come down and we are authorized on our state law to file a suit for them.

And they allege that they had all these people who wants to come in Tennessee and the — that (Inaudible) prosecuting attorney does (Inaudible) of prosecution and that the — their sales would violate your law.

And if your law violates the Commerce Clause would you still say you aren’t certain whether the state could file that suit?

Mr. Attorney General:

Yes sir I am.

Would the Court give us permission to brief the question of whether or not the State of Wisconsin could maintain such a suit in a state court in Tennessee against the State of Tennessee?

Earl Warren:

I think the Court would like to have that information if it doesn’t take you so long.

If it takes a couple of days, we can do that.

I would suggest —

Mr. Attorney General:

Thank you sir.

— if you look at several suits that — cases that haven’t been referred to either brief at all, I don’t know how you missed them.

One of them is Missouri against Massachusetts and the other is the (Inaudible) United States against the Belt Railroad of California.

If there were (Inaudible)efforts have been made to file claims here by states and it’s been indicated for (Inaudible) suits could be filed either in the state court or in the Federal District Court if the state courts were (Inaudible)

Mr. Attorney General:

There were —

— cause of action.

Will you permit me to (Inaudible)

Mr. Attorney General:

Yes, Your Honor.

Felix Frankfurter:

(Inaudible) the preparation of your brief.

You indicated or (Inaudible).

There are two questions here.

Felix Frankfurter:

One, the question of the exclusiveness of this Court as the forum where it’s supervise the state, that’s one question having to do with the distribution of jurisdiction of Article III.

But there’s another question, very different, wholly different on whether or rather when Wisconsin may sue either in Tennessee or in a District Court or here mainly, whether there’s a right litigation which you’ve started out or arguing about, according to the rules of this Court, you must have a really large action, existing litigation by a claimant who is hurt, who is not just generally wanting to get a declaration from the statute to be unconstitutional.

And they’re very different questions because the lack of (Inaudible) existing likelihood, concrete litigation, has nothing to do with the question whether this Court is exclusive (Inaudible) or not.

Mr. Attorney General:

Very well, sir.

Felix Frankfurter:

I find this Court as much as (Inaudible) as it does and (Inaudible)

Mr. Attorney General:

Yes, sir.

Earl Warren:

Mr. (Inaudible), if you can have your memorandum in by tomorrow night then the — Mr. Attorney General, if you could have yours in by Thursday.

Mr. Attorney General:

Very well.

Touch also on the —

Earl Warren:

They need not be printed.

Need not be printed.

Earl Warren:

Need not be printed.

The possibility of the — one of the shippers in this (Inaudible) without violation (Inaudible)

Mr. Attorney General:

Very well sir.

Thank you, sir.

Earl Warren:

Mr. Attorney General, did you — you had a very few moments left if you wish to use them.

Vernon W. Thomson:

May it please the Court.

Counsel for Tennessee apparently isn’t aware of the fact if the Director of Agriculture of the State of Tennessee has placed him a mail and sent to the processors of milk, shipping milk into the State of Tennessee a copy of Public Law 74 which we are here discussing without comment what the processor felt the clear implication of that notice was that the State of Tennessee did intend to enforce the law against people who attempted to deliver milk into the State of Tennessee.

It was our position in our plea for right to file a complaint here that speed is one of the reasons — expeditious relief is one of the reasons for granting a litigant the right to come in parens patriae and represent their people.

And particularly in view of the large number of people in the state and the impact on the economy of the state the delay would affect the Dean Milk Company did begin litigating with the State of Tennessee in April of 1955.

And that case is still in the District Court of the State of Tennessee and there’s no reason for us to believe but what if the Dean Milk Company can find markets elsewhere that they will withdraw from their attempt to go into the State of Tennessee and abandon their lawsuit in the State of Tennessee.

The processor in this particular type of industry stands between the producer and the ultimate consumer and his interest may not coincide with the interest of the producer in getting his milk into the hands of consumers.

And therefore, we feel that it is vital that the matter be considered in this Court and not make us depend.

Not make all of the producers in the State of Wisconsin depend on the interest of some producer to take action in the State of Tennessee to litigate that question.

Felix Frankfurter:

Do you happen to know why that (Inaudible) filed in April?

Vernon W. Thomson:

It’s filed in April of 1955.

1955.

Do you happen to know whether the burden of the document in that Court is — is especially heavy or whether for one reason or other, the parties didn’t bring it down or it couldn’t be brought out?

Vernon W. Thomson:

I have no information Mr. Justice but I am well aware —

Felix Frankfurter:

(Voice Overlap)

Vernon W. Thomson:

Excuse me.

Felix Frankfurter:

It is — still to enjoin a statute on constitutional (Inaudible)

Vernon W. Thomson:

That’s correct, yes.

A three-judge court.

Vernon W. Thomson:

Yes.

A three-judge court has now been ordered I understand to here —

(Inaudible)

Vernon W. Thomson:

I’m just advised —

(Inaudible)

Vernon W. Thomson:

Well, that’s — mine is hearsay also but I —

(Inaudible)

Vernon W. Thomson:

The State of Tennessee has threatened enforcement.

We feel that it is discriminatory both by requiring us to sell at the prevailing market price and there’s no definition of what it is and also requiring us to sell at not below cost which is a cost determined by the producers in the State of Tennessee which may be entirely different from the efficient production cost that can be obtain in the State of Wisconsin.

And we feel and we will brief this but we had relied on Title 28 Section 1251 which says, paragraph A, “The Supreme Court shall have original and exclusive jurisdiction of all controversies between two or more states.”

Felix Frankfurter:

Mr. Attorney General, am I under a misapprehension in assuming the Dean — milk cooperative in Wisconsin is a rather large organization with considerable methods?

Vernon W. Thomson:

They vary in size Mr. Justice.

Some of them are small some of them are very —

Felix Frankfurter:

(Inaudible) considerable larger —

Vernon W. Thomson:

There are some very sizable cooperatives.