Youngstown Sheet & Tube Company v. Bowers – Oral Argument, Part 2: United States Plywood Corporation v. City of Algoma – November 13, 1958 (44)

Media for Youngstown Sheet & Tube Company v. Bowers

Audio Transcription for Oral Argument, Part 1: Youngstown Sheet & Tube Company v. Bowers – November 12, 1958 (9) in Youngstown Sheet & Tube Company v. Bowers
Audio Transcription for Oral Argument, Part 2: Youngstown Sheet & Tube Company v. Bowers – November 12, 1958 (9) in Youngstown Sheet & Tube Company v. Bowers
Audio Transcription for Oral Argument, Part 1: United States Plywood Corporation v. City of Algoma – November 12, 1958 (44) in Youngstown Sheet & Tube Company v. Bowers

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Earl Warren:

Number 44, United States Plywood Corporation, Petitioner, versus City of Algoma.

Mr. Minahan, had you completed your thought of the argument?

Roger C. Minahan:

No, I — I have not.

Earl Warren:

You may proceed.

Roger C. Minahan:

Mr. Chief Justice, may it please the Court.

The parties below and the courts below agree that the goods here acquired the status of imports and that until they lose their character as such, they are not subject to the state tax here involved.

We think this means that on the facts which I recited yesterday that Brown and the Hooven case disposed of the matter and that the judgment below must be reversed.

The rule is fundamentally the general rule indicated in Brown versus Maryland that imports do not lose their character as such until they are acted upon by the importer in some manner to mix them up with the general property of this country.

That is the general rule and the Chief Justice in that case said that it required that the distinctions be marked as the cases arise.

But the Chief Justice pointed out in that case that there was a clear situation that plainly meant that the goods were not subject to state tax and it was the kind of tax situation that was presented in that case, and that is that the goods, if they remain the property of the importer and stored in his warehouse in the original package or form in which they were brought in to this country are clearly exempt.

This is the clear or the plain case of immunity that requires no further examination and is one of the most outstanding examples of the general rule.

We think that this clearly applies in this particular case.

The goods here were brought into the — into this country.

There was no action on the part of the importer.

They were stored in his storage yard and in his warehouse.

They were not in anyway mixed up with the general mass of property in this country.

This general rule and the more specific one applicable to the facts in this particular case was reiterated in Low versus Austin and was emphatically confirmed by Chief Justice Stone in the Hooven case.

In the Hooven case, this, I think, was made quite clear by Chief Justice Stone when he said that no opinion of this Court has ever said or intimated that imports held by the importer in the original package and before they were subjected to the manufacture for which they are imported are reliable to state taxation.

(Inaudible)

Roger C. Minahan:

Yes, Your Honor (Inaudible)

Charles E. Whittaker:

(Inaudible)

Roger C. Minahan:

Until some affirmative action, Your Honor, is taken by the importer to change the form or substance of what he has imported.

And in the Hooven case, Chief Justice Stone called attention to the decision in Low versus Austin which I think further illustrates this particular point, and he quoted from the language in Low versus Austin by Chief Justice Taney in which it was said that goods imported while they remain in the hands of the importer in the form and shape in which they were brought into this country continued to be immune from the state tax.

Now, in the Hooven case, the suggestion was made by — or was more than a suggestion the lower court in Ohio held the goods all subject to tax because they were stored in the warehouse awaiting use, and this was the theory of the Supreme Court of Ohio.

And this theory was expressly rejected by the Court in the Hooven case.

When the State of Wisconsin Supreme Court was confronted with the fact that the awaiting use theory had been completely rejected, they talked about having subjected the goods to manufacturer by a reason of their having been assembled and stored in the warehouse available for use.

And the Court there says this is tantamount to subjecting the goods to manufacturer and if that they were put to use as much as if they had been dried, heated, reshaped, chemically changed or otherwise changed in form or composition.

Now, that’s what the Supreme Court of Wisconsin, the exact language of what they said in their opinion.

But this particular approach was completely rejected by this Court in the Hooven case and the language, I think, couldn’t have been more clear than Chief Justice Stone put it when he said, and these were his words, and incidentally this — this was the opening paragraph of the section which the Supreme Court finds dictum there, the Chief Justice said, “It cannot be said that the fibers were subjected to manufacture when they were placed in petitioner’s warehouse in their original packaging.”

Then they go on and they adopt the theory that the current operational needs concept was approved by the dictum in that case.

Audio Transcription for Oral Argument, Part 2: Youngstown Sheet & Tube Company v. Bowers – November 12, 1958 (9) in Youngstown Sheet & Tube Company v. Bowers
Audio Transcription for Oral Argument, Part 1: United States Plywood Corporation v. City of Algoma – November 12, 1958 (44) in Youngstown Sheet & Tube Company v. Bowers

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Roger C. Minahan:

This is a dangerous concept in my judgment because I think it would emasculate all of the 130 years of what we have understood that provision of the Constitution to mean, and we don’t have to speculate on that.

While this, of course, is not in the record in this case, it is perfectly clear that if this concept were adopted with the Courts, it would mean the elimination of any exemption to goods stored in the warehouse even though no change had taken place or it is not surprising to find that in the year following that here involved, the Assessor in Wisconsin taxed all of the goods of this particular petition in a subsequent tax year on the current operational needs theory in spite of the fact that the orders of this petitioner were down in volume, and there were no — nowhere near the future orders involved.

And the stock of imported goods had very materially and substantially increased so that it had a lower order file and a far higher supply of the goods in the warehouse.

I would like to reserve the balance of my time for rebuttal.

Earl Warren:

You may.

Mr. Larkin.

Edwin Larkin:

Mr. Chief Justice, may it please the Court.

I should like to address myself first to the remarks of Mr. Minahan yesterday on the first subject that he took up which has to do with the lumber imported and piled in the yard in Algoma.

And Algoma is about 150 miles north of Milwaukee.

And there is where U.S. Plywood has the plant.

It has a yard in which this lumber from Canada was unloaded, piled in the yard.

Now, that lumber came in green, full of water.

Before that lumber could be used in a final finished product, it was necessary the first step that was necessary was to remove the moisture from the lumber.

That is done in one of two ways.

The lumber can be kiln dried or — in a shed or building or it can be air dried.

Air-drying is much less expensive than kiln-drying.

Air-drying is what this lumber was being subjected to when it was piled out in the yard.

Yes, it was piled in a manner so as to prevent decay.

But it was piled, and this is a finding of the Court after a full trial, it was piled in that yard with the dominant purpose, the dominant purpose of air-drying that lumber.

The trial court held and the Wisconsin Supreme Court affirmed that at the time that lumber was being air-dried, it was being subjected to manufacture in its first stage.

Potter Stewart:

Mr. Larkin —

Edwin Larkin:

Yes, sir.

Potter Stewart:

Lumber could be air-dried or kiln-dried —

Edwin Larkin:

Yes.

Potter Stewart:

— isn’t a fact that it always is kiln-dried?

Edwin Larkin:

Yes, sir, as a second step.

Potter Stewart:

Yes, and all lumber at least to this type are all —

Edwin Larkin:

Yes, sir.

Potter Stewart:

— kiln-dried.

Edwin Larkin:

Yes, sir, as I understand it.

Audio Transcription for Oral Argument, Part 2: Youngstown Sheet & Tube Company v. Bowers – November 12, 1958 (9) in Youngstown Sheet & Tube Company v. Bowers
Audio Transcription for Oral Argument, Part 1: United States Plywood Corporation v. City of Algoma – November 12, 1958 (44) in Youngstown Sheet & Tube Company v. Bowers

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Edwin Larkin:

That is respondent’s position so far as the imported lumber.

Now — and that is the easier one, as to the lumber and —

Felix Frankfurter:

How long — how long is the process of air-drying?

Edwin Larkin:

Your Honor, that is not in the record.

Felix Frankfurter:

Is it in the record as to what it is on which the tax fell?

How do you —

Edwin Larkin:

Yes, sir.

Felix Frankfurter:

When do you tax?

Edwin Larkin:

Well, now —

Felix Frankfurter:

Six months or what?

Edwin Larkin:

No, sir, we tax —

Felix Frankfurter:

What I want to know is there — how do we know whether the tax falls on the lumber as imported?

Before it aerated or after?

Is that clear?

Edwin Larkin:

Yes, Your Honor, it’s clear.

May 1st is our taxation date.

Felix Frankfurter:

Now, suppose lumber that came in — you don’t know — you can’t tell how long it takes.

Edwin Larkin:

No, Your Honor.

Felix Frankfurter:

How about others that’s found (Inaudible) on May 1st?

Edwin Larkin:

Well, now —

Felix Frankfurter:

Air-dried or not, will it be taxed?

Edwin Larkin:

Your Honor, the trial court did not handle the question in that way.

The trial court simply said that most of the lumber came in green and that the Assessor could have assessed all of that, he did not do it.

There is only half of that lumber actually that was assessed.

And it was not assessed primarily on the theory that the dominant purpose of it was air-drying.

Felix Frankfurter:

I don’t quite follow that.

Is the —

Edwin Larkin:

The —

Felix Frankfurter:

— is the record — is the record clear that the taxing authorities purposefully abstained from taxing green lumber?

Edwin Larkin:

No, Your Honor.

Audio Transcription for Oral Argument, Part 2: Youngstown Sheet & Tube Company v. Bowers – November 12, 1958 (9) in Youngstown Sheet & Tube Company v. Bowers
Audio Transcription for Oral Argument, Part 1: United States Plywood Corporation v. City of Algoma – November 12, 1958 (44) in Youngstown Sheet & Tube Company v. Bowers

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Edwin Larkin:

The — the opinion of the trial court and the opinion of the Wisconsin Supreme Court was that one half of the imported lumber and veneer was necessary to current operational needs and was therefore taxable.

Now, the trial court — in addition to that —

Felix Frankfurter:

Well, that’s the criteria in which the tax is imposed.

Edwin Larkin:

Yes, sir.

This, that I’m talking about, that Mr. Minahan brought up yesterday, is something that was put in in addition to the trial court in which the trial court said the Assessor could have assessed the entire lumber, the entire imported lumber be assessed on the hand.

He could have assessed all of it.

Felix Frankfurter:

Well, does the record indicate why it didn’t assess all of it?

Edwin Larkin:

No, Your Honor, it doesn’t.

Felix Frankfurter:

But very often, the tax doesn’t fall on the total amount of property taxes?

Edwin Larkin:

Well, I think that is the opinion of the trial court in this matter but the — the question is not — did not go before to Wisconsin.

Felix Frankfurter:

How do we know about the general taxing incident?

Algoma isn’t — it tax only half of every — every kind of property.

Edwin Larkin:

It isn’t, Your Honor.

I mean that’s just my statement.

Felix Frankfurter:

(Inaudible)is very light on that question (Inaudible) green or not a green lumber.

Edwin Larkin:

That is correct, Your Honor, this was just added by the trial courts.

Potter Stewart:

It was also, Mr. Larkin, the basis on which the dissenting judges — partially dissenting judges, it wasn’t the basis of which they concurred in taxing lumber (Inaudible)

Edwin Larkin:

Yes, sir.

Now, I’d like to move to the matter of the current operational needs theory on which the imported lumber and imported veneer, one half of them were held to be taxable.

Felix Frankfurter:

May I trouble you one more —

Edwin Larkin:

Yes, sir.

Felix Frankfurter:

(Inaudible)

Edwin Larkin:

Yes, sir.

Felix Frankfurter:

Air-drying is just the operation you mentioned.

Edwin Larkin:

Yes, sir.

Felix Frankfurter:

Isn’t it?

Edwin Larkin:

Yes, sir.

Felix Frankfurter:

Nothing more than that?

Edwin Larkin:

That is correct, sir.

William O. Douglas:

Does it require special stacking?

Audio Transcription for Oral Argument, Part 2: Youngstown Sheet & Tube Company v. Bowers – November 12, 1958 (9) in Youngstown Sheet & Tube Company v. Bowers
Audio Transcription for Oral Argument, Part 1: United States Plywood Corporation v. City of Algoma – November 12, 1958 (44) in Youngstown Sheet & Tube Company v. Bowers

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Edwin Larkin:

Oh, you put — you put a little thin piece of one by one or one by two in between each board, each piece of lumber, yes.

Charles E. Whittaker:

Well, that’s — and that’s (Inaudible)

Edwin Larkin:

Yes, sir.

Charles E. Whittaker:

(Inaudible)

Edwin Larkin:

Yes, Your Honor, it is.

Earl Warren:

But as I understood counsel yesterday, if this aerated process was indulged in, it was cheaper to — in the — cheaper at the end to dried kiln because it wouldn’t take —

Edwin Larkin:

Yes, sir.

Earl Warren:

— so long, is that correct?

Edwin Larkin:

Yes, sir, and that was the finding of the trial court.

Earl Warren:

Yes.

Edwin Larkin:

That was in the opinion, yes, sir.

Now, moving to the matter of the current operational needs and that is involved with the original package theory and the matter of imports having been put to the use for which they were imported.

The position of the respondent is that the imported goods were irrevocably, and I’m now talking about the part that was taxed one half, the imported goods were irrevocably committed to a manufacturing process and a manufactured product at Algoma.

Now, the facts —

Felix Frankfurter:

Isn’t that for wood importation (Inaudible) to be committed to a manufacturing process?

Edwin Larkin:

That is the — that is the ultimate use, Your Honor.

And that, of course, is what was criticized in the Hooven case is the mere fact that they’re there does not mean that they have been put to use.

Now, the theory of the respondent is that they have been irrevocably committed to use and the facts, I think, bare out and the facts are these.

U.S. Plywood has, at Algoma, a plant and personal property worth about $5,000,000.

It has land, it has buildings, it has machinery real, it has machinery personal, it has furniture, fixtures, repairs and processing material.

In that processing material is the imported veneer and the imported lumber about which we’re talking.

Now, that is an industrial unit.

U.S. Plywood is engaged in business for a profit.

It’s a competitive business.

All of those items which I mentioned are part of an industrial unit.

If anyone of those items is absent, the industrial unit does not function.

If there is no machinery, it does not function.

In other words, the machinery that’s there, like anything else that’s there, is committed to an industrial unit.

Felix Frankfurter:

Hence, if there’s no work, you — it wouldn’t function either.

Edwin Larkin:

That was what I was going to — I thank Your Honor.

Audio Transcription for Oral Argument, Part 2: Youngstown Sheet & Tube Company v. Bowers – November 12, 1958 (9) in Youngstown Sheet & Tube Company v. Bowers
Audio Transcription for Oral Argument, Part 1: United States Plywood Corporation v. City of Algoma – November 12, 1958 (44) in Youngstown Sheet & Tube Company v. Bowers

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Edwin Larkin:

That was going to be my next remark.

So that the wood is as irrevocably committed to that industrial unit at Algoma as is the machinery or the buildings or anything else and that is the basis on which the respondent takes the position that something has been added to the Hooven case in the case at bar.

Charles E. Whittaker:

(Inaudible)

Edwin Larkin:

And the veneer.

Charles E. Whittaker:

As well?

Edwin Larkin:

Yes, sir.

That both the lumber and the veneer have been committed to that industrial unit and have been irrevocably committed to a final manufactured product.

Felix Frankfurter:

But something is in here.

Edwin Larkin:

I beg your pardon.

Felix Frankfurter:

Something is in here that has been added.

And that doesn’t come from Wisconsin, that’s the nature.

Edwin Larkin:

Well, Your Honor, it is our position that this industrial unit could not function unless everyone of these parts were present.

And for that reason, that the imported lumber and the imported veneer have been irrevocably committed to an industrial product and that is what is added to the Hooven case.

I take it you’re not asking us to overrule —

Edwin Larkin:

No, sir.

(Inaudible)

Edwin Larkin:

That is correct, Your Honor.

(Inaudible) the other side has declined to say — to show us what (Inaudible)

Edwin Larkin:

That, sir, is right.

Now, there was — I don’t know that it’s too important.

The matter of intermingling was brought up here yesterday.

On page 16 of the record, the — the trial court’s opinion is there.

The trial court said that there was not such commingling of the foreign and domestic veneers or lumber, their foreign with the domestic as to cause loss of identity.

But the Court did brought to the attention, if this is important, that a portion of a new shipment, a few more veneer would be placed on a partially depleted pile of that veneer and could be the first taken for use.

In this case, I — I don’t see the importance of it but I am calling the attention of the Court to it because the question was raised yesterday.

Now, as to this matter of how the Court arrived at one half of the imported lumber and veneer as being necessary for current operational uses.

This was not done by — in a — in a hit or miss fashion.

This case was — there was a full trial.

We tried it most of one week and part of another week.

The Assessor, special assessor was called under Wisconsin practice for adverse examination and examined by Mr. Minahan for a day and a half at the beginning of the trial.

Audio Transcription for Oral Argument, Part 2: Youngstown Sheet & Tube Company v. Bowers – November 12, 1958 (9) in Youngstown Sheet & Tube Company v. Bowers
Audio Transcription for Oral Argument, Part 1: United States Plywood Corporation v. City of Algoma – November 12, 1958 (44) in Youngstown Sheet & Tube Company v. Bowers

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Edwin Larkin:

I called him as my witness, the Assessor, and Mr. Minahan had another opportunity to cross-examine him.

Now, the Assessor determined that in his mind that it was necessary one half of the imports for current operational needs.

The trial court also found, and this is not a — that a reasonable supply be kept on hand, this is not a reasonable supply, there’s amount necessary for current operational use.

Page 13 of the record, and by the way the whole — the whole opinion of the trial court is in one sentence on page 13, I’m not going to read it.

But in that sentence, the trial court speaks of the imports required to be on hand to meet the immediate or current needs of a manufacturer.

Turn to page 15, still the opinion of the trial court.

The trial court had just finished within illustrative case in commenting said the minimum requirement of current needs.

That’s what the trial court had in mind.

It wasn’t a matter of just a reasonable supply.

Going down a little farther on that page, the trial court said “the immediate needs,” but the trial court was — had in mind was what was the minimum amount necessary.

And at page 43, the opinion of the Wisconsin Supreme Court, I say page 43 of the record.

The Wisconsin Supreme Court uses, in the middle of that page, a certain minimum stockpile of raw materials.

That’s what our Wisconsin Supreme Court understood the trial court was fixing.So if there’s any question about whether a minimum amount necessary for current operational needs was the theory of the trial court that was it.

Now, as to the trial court’s decision, trial court decided this case on the basis on which I have given.

Again, back on page 13 of the record, it’s all in two — in two lines.

Speaking of this — these current operational needs and the raw materials, imported raw materials, trial court said “have so finally come to rest in his plan there to a practical certainty to lose out their identity in a manufactured product”.

That is the trial court’s holding.

Go to page 15.

This was not only on the basis of what the Assessor said.

We introduced, and there was a great deal of — of testimony, and there were exhibits on an entirely different theory, the manufacturing cycle which the trial court speaks of on page 15, that was — how long it would take a product to go through that operation.

And on the basis of those facts, the trial court said, “The manufacturing cycle test”, and that was the respondents, “amply supports the conclusion of the Assessor that one half of the foreign imports on hand May 1st were required to be on hand to the meet plaintiff’s immediate needs.”

How does the operation (Inaudible)

Edwin Larkin:

We think that — that something has been added to this case, Your Honor, and that the — in the Hooven case, there was no finding by the — I don’t know about the trial court, but the Ohio Supreme Court on minimum inventory necessary for current operational needs.

In other words, this Court did not consider that questionnaire.

(Inaudible)

Edwin Larkin:

You mean in — in the present case, Your Honor?

(Inaudible)

Edwin Larkin:

I recognized that, Your Honor.

The difference in this case and the Hooven case are that in this case, a certain minimum stockpile inventory was necessary for current operational needs.

It was determined to be necessary.

Audio Transcription for Oral Argument, Part 2: Youngstown Sheet & Tube Company v. Bowers – November 12, 1958 (9) in Youngstown Sheet & Tube Company v. Bowers
Audio Transcription for Oral Argument, Part 1: United States Plywood Corporation v. City of Algoma – November 12, 1958 (44) in Youngstown Sheet & Tube Company v. Bowers

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Edwin Larkin:

It was found by the Court to be necessary after a trial and — from which no bill of exceptions was prepared.

And as I understand, if this Court should find that the current operational needs theory is a correct one, then there is no contest about whether the trial court found the right amount or not, one half.

Charles E. Whittaker:

(Inaudible)

Edwin Larkin:

Yes, sir.

I think there would have been a different result but the — the matter was not even considered according to the opinion in the Hooven case.

As I remember the words, “Hence we have no occasion to consider it.”

So it wasn’t considered.

Now, it’s before the Court.

And we’re asking that the Court consider it.

Maybe that be —

Felix Frankfurter:

Does that — does that — the theory apply or is an inevitable (Inaudible) almost an inevitable (Inaudible) manufacturer import the raw commodity and (Inaudible) the importation, the few — the quick — quick immediate assumptions that the raw materials introduce that those raw materials were committed for the immediate use would not be subject to the Import Clause (Inaudible) from the limitations upon state of Import Clause.

Edwin Larkin:

I think, Your Honor, that all, except what is necessary for immediate use, would be free.

In other words, only that part that it is necessary for the immediate current operational needs is taxable and the rest over and above that I should consider not to be taxable.

Felix Frankfurter:

That which is — that which is used immediately would be taxable?

Edwin Larkin:

That which is necessary for current operational use until more it can be obtained.

Felix Frankfurter:

So that the small manufacturer who doesn’t have a large reserve of raw materials is at a disadvantage, he’d be taxed, whereas the big manufacturer who can have a reserve would not be taxed.

So that’s not committed for immediate use.

Edwin Larkin:

That is entirely possible, Your Honor.

That is a discrimination.

And as I remember the — the Court said that — that there is some discrimination inherent in this situation.

Felix Frankfurter:

(Inaudible)

Edwin Larkin:

But there is some —

Felix Frankfurter:

Assuming that discrimination is a complication (Inaudible) of life, what I ask to you is whether you’re asking us to draw a line that inevitably would hit the small seller who can’t have a good reserve, a good inventory of his raw materials but the big seller who can pile it up, he would be taxed.

Edwin Larkin:

If you put it on that basis, Your Honor, yes.

Felix Frankfurter:

(Inaudible) that’s your basis of immediate operational needs.

Edwin Larkin:

Then I say yes, Your Honor.

Maybe the small business administration now will take care of that.

Felix Frankfurter:

But this talks about the Import Clause.

Edwin Larkin:

Yes, sir.

Felix Frankfurter:

(Inaudible) that clause.

Audio Transcription for Oral Argument, Part 2: Youngstown Sheet & Tube Company v. Bowers – November 12, 1958 (9) in Youngstown Sheet & Tube Company v. Bowers
Audio Transcription for Oral Argument, Part 1: United States Plywood Corporation v. City of Algoma – November 12, 1958 (44) in Youngstown Sheet & Tube Company v. Bowers

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Charles E. Whittaker:

(Inaudible)

Edwin Larkin:

Yes, sir.

Charles E. Whittaker:

(Inaudible)

Edwin Larkin:

Yes, Your Honor.

Charles E. Whittaker:

(Inaudible)

Edwin Larkin:

On this basis, Your Honor, the — the basis of the trial court set it was that take the length of time it would be necessary to get new material, new imported material, the additional imported material that what is on hand necessary for manufacturing needs until further material can be obtained that that has been — has come to rest has been dedicated to a product, a manufactured product and has been taking out of the stream of commerce.

William J. Brennan, Jr.:

(Inaudible)

Edwin Larkin:

Oh, no, Your Honor, I do not.

William J. Brennan, Jr.:

You mean only that (Inaudible) committed the manufacturing product (Inaudible) it would be necessary to keep that process running until (Inaudible)

Edwin Larkin:

That is correct, sir.

William J. Brennan, Jr.:

(Inaudible)

Edwin Larkin:

Yes, sir.

Felix Frankfurter:

(Inaudible) was committed is the stuff that’s imported is being manufactured, that’s committed.

Edwin Larkin:

That — what is — no, it’s not quite, Your Honor, that what is committed is what is necessary for a current inventory until more can be obtained by ordering.

(Inaudible)

Edwin Larkin:

That is correct.

(Inaudible)

Edwin Larkin:

Yes, Your Honor.

Felix Frankfurter:

I suppose orders fall off and it didn’t go the manufacturers, then it isn’t committed.

Edwin Larkin:

But, Your Honor, it’s taken as of the first day of May.

And we take that once a year in Wisconsin.

If orders fall off, you’re correct, Your Honor.

That’s correct.

Now —

Charles E. Whittaker:

(Inaudible)

Edwin Larkin:

Yes, sir.

Charles E. Whittaker:

(Inaudible)

Edwin Larkin:

I think you’re right, Your Honor.

I think you could because that would — part of what you’re talking — part of that amount you were talking about is not necessary for current operational needs.

It’s not committed to a present product.

Audio Transcription for Oral Argument, Part 2: Youngstown Sheet & Tube Company v. Bowers – November 12, 1958 (9) in Youngstown Sheet & Tube Company v. Bowers
Audio Transcription for Oral Argument, Part 1: United States Plywood Corporation v. City of Algoma – November 12, 1958 (44) in Youngstown Sheet & Tube Company v. Bowers

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Charles E. Whittaker:

(Inaudible)

Edwin Larkin:

Well, under the — under the Hooven case, Your Honor, it’s — it’s an import.

And I’m — I’m trying to stay out of trouble here and — and not get over into that.

I mean enough now [Laughter].

And I — I’d like to stay away from that.

Charles E. Whittaker:

(Inaudible)

Edwin Larkin:

Well, I hope you don’t have too, Your Honor.

That — it’s a matter — it’s within the Hooven case.

It could come in the case — the Ohio case that was here yesterday that I can see how it might come up.

I’m — I’m trying to keep our case out of it.

Charles E. Whittaker:

(Inaudible) How is that different?

Edwin Larkin:

Well, I don’t see that it’s different, Your Honor, but it seems to me that we have this case away from that and — and I’d like to keep it away from that.[Laughter]

William J. Brennan, Jr.:

Well, there is no fact finding (Inaudible)

Edwin Larkin:

No, Your Honor.

William J. Brennan, Jr.:

(Inaudible)

Edwin Larkin:

It was not in ours.

Felix Frankfurter:

(Voice Overlap) what was said would be relevant.

Edwin Larkin:

Well, that is —

Felix Frankfurter:

That’s not for you to say.

Edwin Larkin:

No.

I should like to work in to this matter.

I think there has — that there’s confusion that has resulted from the original package theory in this matter of —

(Inaudible)

Edwin Larkin:

All right, Your Honor.

I was just going to comment that it arose in Brown against Maryland, and — and I — I find Hooven & Allison against — confusing.

I find five statements in that case where the Court talks about the property stand of the original package rule and then or until put to the use for which it was imported.

Oh, now, that — whether those are mutually exclusive is not clear and yet, on — on page 666 of that — of Hooven & Allison and Mr. Minahan referred to that this morning.

Chief Justice Taney’s remarks in the license cases and — and in the Hooven case, this Court says “As we now affirm,” and then it quotes it, “in the goods imported while they remain in the hands of the importer in the form and shape in which they were brought into the country can, in no just sense, he regarded as part of that mass of property in the state usually tax for the support of state government,” which apparently throws out entirely the matter of use and says — or it meant — there’s the conflict and says, “If they’re in the original package, that’s it, they’re not taxable.”

I — I think there’s some confusion there that could well be — be straightened out.

Felix Frankfurter:

May I just — the Chief Justice Taney was in (Inaudible) be good position to know what Brown against Maryland meant.

Audio Transcription for Oral Argument, Part 2: Youngstown Sheet & Tube Company v. Bowers – November 12, 1958 (9) in Youngstown Sheet & Tube Company v. Bowers
Audio Transcription for Oral Argument, Part 1: United States Plywood Corporation v. City of Algoma – November 12, 1958 (44) in Youngstown Sheet & Tube Company v. Bowers

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Felix Frankfurter:

(Inaudible) the case from Maryland had changed his mind.

That became really to think about it otherwise (Inaudible)

Edwin Larkin:

I realized that, Your Honor, and I appreciate it.

Hugo L. Black:

(Inaudible)

Edwin Larkin:

[Laughs] Well, I —

Felix Frankfurter:

Has there been any — are you — are you suggesting that there’s been a conflict in decision in this Court in allowing state to tax imported goods in terms other than the one you just quoted from the license tax cases?

Edwin Larkin:

No, sir, but I — I’m unable to — to — I think there’s a difference right in the Hooven case as to what this or as to what the Court means.

Felix Frankfurter:

But we don’t judge cases by picking word here and there.

It’s different in style in men’s writing, some people are valuable and some people are like — with a guilty conscience to say that.

Some people of city but the question is what had been the decision?

Now, will you point to any conflict in decision in Brown against Maryland that contradicts the interpretation of the Chief Justice Taney’s (Inaudible)

Edwin Larkin:

Well, evidently, I can — I can give you an offhand but I can say that in view of the reply brief served upon me by Mr. Minahan.

And on the first page, he states the rule of Brown against Maryland and Hooven & Allison against Evatt.

And there’s the matter of use.

It apparently confused him too because he could —

Felix Frankfurter:

May have been that they have been deciding cases at least not in this Court.

Edwin Larkin:

No, he hasn’t, Your Honor.

Maybe his matter of — that something has been added could be clarified a little by going to Low against Austin which involved wine imported for sale essentially similar to the Hooven case except that it involved a product for sale, except rather than a product for use.

The wine was on the shelf in the original containers.

The Court held it not to be taxable but supposed that one more fact were added there, supposed the wine merchant’s wife came in and said, “Now, we haven’t any wine at home, John, and we need some.”

That is the red light.

Earl Warren:

Finish your thought.

Finish your thought, Mr. —

Edwin Larkin:

“We need some and will you bring some home?”

And John points to the jogged down on the end and he said, “That’s just like we have and that’s what we want.

I’ll bring it home.”

Now, I say that in that respect, that jogged down on the end adding this fact to the Low — to Low against Austin, that jogged down on the end have been committed.

It satisfied all the original package rule but it had been committed.

Something had been added.

And in this case, we feel that something had been added.

Audio Transcription for Oral Argument, Part 2: Youngstown Sheet & Tube Company v. Bowers – November 12, 1958 (9) in Youngstown Sheet & Tube Company v. Bowers
Audio Transcription for Oral Argument, Part 1: United States Plywood Corporation v. City of Algoma – November 12, 1958 (44) in Youngstown Sheet & Tube Company v. Bowers

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Earl Warren:

Mr. Minahan.

Roger C. Minahan:

I have nothing further, Your Honor.

Thank you very much.