State law was invalid as being repugnant to Federal laws by which Congress had occupied this field to the exclusion of the States. The Federal law claimed to have superseded the State law authorized the confiscation by the Department of Agriculture of processed or renovated butter which did not come up to Federal standards, but there was no provision in the Federal act, as in the State statute, authorizing the seizure of packing stock butter prior to processing. The Federal law, however, authorized the Department of Agriculture to enforce minutely detailed sanitary regulations applicable to the process of manufacturing the renovated butter.

The Court, through Justice Reed, held that the Alabama law was repugnant to the Federal act and hence that the peition to restrain its enforcement should be granted. The Court stated the often-repeated formula (p. 155), that:

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* in those fields of commerce where national uniformity is not essential, either the State or Federal Government may act * * * Where this power to legislate exists, it often happens that there is only a partial exercise of that power by the Federal Government. In such cases the State may legislate freely upon those phases of commerce which are left unregulated by the Nation. But where the United States exercises its power of legislation so as to conflict with a regulation of the State, either specifically or by implication, the State legislation becomes inoperative and the Federal legislation exclusive in its application."

The Court emphasized the fact that in virtue of the sanitary standards imposed by the Federal law, the manufacture of the butter was placed by Congress under the close supervision of Federal authorities, and that hence "confiscation of material in production nullifies Federal discretion over ingredients. Congress hardly intended the intrusion of another authority during the very preparation of a commodity subject to the surveillance and the comprehensive specifications of the Department of Agriculture. Since there was Federal regulation of the materials and composition of the manufactured article, there could not be similar State regulation of the same subject."

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There were four dissents. Chief Justice Stone (p. 170) based his dissent in part on the doctrine that where the State regulation in question is a health or safety measure Congress should not be deemed to have intended to supersede it unless such intention was explicitly stated or manifestly to be implied. He also pointed out that since a substantial part of this renovated butter was consumed within the State, the practical effect of the decision was to exclude both the Federal Government and the State of Alabama from regulating the quality of packing stock butter from which that portion was made. He denied (p. 172) that either the statute or its legislative history showed "that Congress could have had any object in denying the State's power to seize the offensive ingredient," but on the contrary, "the Alabama statute, both by its terms and in its practical administration, aids and supplements the Federal regulation and policy." He concluded (p. 176):

"Due regard for the maintenance of our dual system of government demands that the courts do not diminish State power by extravagant inferences regarding what Congress might have intended if it had considered the matter, or by reference to their own conceptions of a policy which Congress has not expressed and is not plainly to be inferred from the legislation which it has enacted."

In a separate dissent, Justice Frankfurter dropped a hint which, in the present connection, is thoroughly apposite (p. 178) :

"To require the various agencies of the Government who are the effective authors of legislation like that now before us to express clearly and explicitly their purpose in dislodging constitutional powers of States-if such is their purpose— makes for care in draftsmanship and for responsibility in legislation. To hold, as do the majority, that paralysis of State power is somehow to be found in the vague implications of the Federal renovated butter enactments, is to encourage slipshodness in draftsmanship and irresponsibility in legislation."

In the public utilities field also, the Court has shown a reluctance to strike down State laws as repugnant to Federal enactments under the commerce clause. Thus in Smith v. Illinois Bell Telephone Co. ((1930) 282 U. S. 133), a telephone company which did both intrastate and interstate business, brought an action to enjoin the enforcement of an order of a State public-utilities commission which set rates claimed by the company to be confiscatory. The company contended that, as Congress had granted jurisdiction to the Interstate Commerce Commission over the depreciation rates of telephone companies doing an interstate business, this subject was now completely withdrawn from the powers of the State, and it was argued that two rates of depreciation could not be charged on the same

property. The Interstate Commerce Commission, however, had not yet issued regulations fixing such rates. The company argued that, nevertheless, the mere delegation of this power to the Commission excluded the States from the field, even prior to the exercise of the power. The Court said (p. 160):

"We are unable to assent to this view. * * * We are of the opinion that * * * until action has been taken which could be deemed validly to affect the amount to be charged to depreciation in connection with the intrastate business so as to affect intrastate rates, the prerogative of he State to prescribe such rates * * * (is) not to be gainsaid."

To the same effect is Northwestern Bell Telephone Co. v. Nebraska State Railway Commission ((1936) 297 U. S. 471). The Court said with respect to the same contention which had been raised in the Smith case (p. 480):

"A direction that the Commission, as soon as practicable prescribe depreciation rates, is hardly to be read as authority to permit the telephone companies to fix the rates for themselves in defiance of State power."

No case has been found holding that a delegation of authority by Congress to prescribe regulations with respect to a particular subject matter excludes the States from regulating the same subject prior to the actual promulgation of the Federal regulations. The attitude of the Court in such cases seems to be that Congress must be deemed to have intended the State regulations to remain in force until superseded by the Federal regulations.

Townsend v. Yeomans ((1937) 301 U. S. 441) was a suit by a tobacco warehouseman to restrain the enforcement of a Georgia statute regulating the charges to be made by tobacco warehousemen in the State for marketing services rendered to tobacco growers. The maximum charges fixed by the State statute were considerably lower than the charges which had prevailed prior to its enactment. The warehouseman argued that since practically all the tobacco grown in Georgia was shipped in interstate commerce, the statute was an attempt to govern transactions in interstate commerce and hence invalid, and, moreover, that the Georgia statute was in conflict with the Federal Tobacco Inspection Act of 1935 (49 Stat. 731). The court, however, pointed out that this act did not attempt to regulate the charges to be made by tobacco warehousemen, but sought only to aid tobacco growers by establishing and promoting the use of standards of classifications and by maintaining an official inspection service. By this act the Secretary of Agriculture was authorized to make investigations and to establish standards for tobacco by which its type, grade, size, condition, or other characteristics might be determined. The Secretary was also authorized to designate approved tobacco auction markets, and given authority to cooperate with other branches of the Government, or with State agencies, both to employ and license competent persons as samplers and weighers in order that their services would be available upon the request of the owner, and to carry out the general purposes of the act.

The court first noted that the committee reports in both Houses indicated that Congress was fully conversant with tobacco-marketing practices and with the legislation in force in a number of States fixing maximum charges for tobacco warehousing services, and stated (p. 454):

"We deem it to be highly significant that, in the light of existing practices and statutory regulations, the Congress carefully restricted its own requirements and did not attempt to interfere with the operation of State laws as to the amounts which warehousemen might charge."

The warehousemen also contended that even if Congress had not occupied the field by express enactment, nevertheless the State regulations must fail as being repugnant to the power of Congress to regulate with respect to this aspect of the subject matter, even though Congress may not have exercised the power. The Court (p. 455) replied with the formula expressed in Cloverleaf v. Harrison, supra (315 U. S. 148, 155):

"The contention ignores the principle that this ground of invalidity is to be found only with respect to such matters as demand a general system or uniformity of regulation; that in other matters, admitting of diversity of treatment according to the requirements of local conditions, the States may act wihin their representative jurisdictions until Congress sees fit to act. "In the instant case, the Georgia statute deals with a local need, exercising the State's protective power with respect to its own industry."

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Hence, the Court concluded, the State regulation must be sustained. Allen-Bradley Loral v. Board ((1942) 315 U. S. 740), is the most recent decision on the question of extent to which a general regulation under the commerce power may be said to occupy the field to the exclusion of the States. That case involved the validity of an application of the Wisconsin Employment Peace Act,

which branded as unfair, among others such labor practices as mass picketing, intimidation of employees who desire to work, and picketing the homes of such employees. A union ordered to cease such practices under this statute contended that it was void as being in conflict with the National Labor Relations Act. The Court, however, held that there was no such repugnance. The Court conceded that the company which had invoked the State statute might be under the Federal act, but held this consideration to be immaterial inasmuch as the Federal law and the State regulations dealt with different areas of the general subject of labor relations. Congress, it was said, did not intend to exclude the States from regulating those aspects of the field for which no express regulation was provided by the Federal law (p. 749), "an intention of Congress to exclude States from exerting their police power must be clearly manifested," and "we will not lightly infer," a different intention.

II. TRANSPORTATION

The case involving State and Federal regulations in the transportation field likewise demonstrate the concern of the court wherever possible to uphold State regulations when it is claimed that a conflict exists.

In Missouri Pacific Ry. Co. v. Larabee Flour Mills ((1909) 211 U. S. 612), a flour mill brought mandamus to compel the railroad to continue to furnish freight cars at a spur track adjoining the mill. The railroad, as the result of a dispute which it had had with the mill, had refused to furnish any further cars upon this track. Movements of flour in interstate commerce were normally initiated upon this track adjoining the mill. The Supreme Court affirmed the decree of the Kansas court which had ordered the writ of mandamus. It stated first that the plaintiff's right to this relief was a common-law right which arose out of the railroad's refusal, as a common carrier, to carry the plaintiff's goods. The defendant argued, however, that Congress by its enactment of the Interstate Commerce Act had evidenced its intention of excluding the states from granting such relief. But the Court said (p. 623):

"The fact that Congress has entrusted power to that Commission does not, in the absence of action by it, change the rule which existed prior to the creation of the Commission * * * It is not contended that the Commission has taken any action in respect to the particular matters involved * * * Until then the authority of the State in merely incidental matters remains undisturbed." The Court, in other words, followed the line of the telephone company cases discussed above.

A local statute of general application providing for a moderate attorney's fee in suits involving small sums will not be declared repugnant to a Federal enactment fixing liability for goods lost while transported in interstate commerce. Thus in Missouri, Kansas & Texas Ry. Co. v. Harris ((1914) 234 U. S. 412), plaintiff sued and recovered for the loss of his property while it was being transported in commerce by the defendant railroad. Plaintiff also recovered an attorney's fee of $10 pursuant to a Texas statute. The question was whether the allowance of this fee was repugnant to the commerce clause and the Interstate Commerce Act. The defendant contended that the field was now covered by the Interstate Commerce Act, and especially by the amendment of that act known as the Carmack Amendment, which fixed the liability of interstate carriers for loss of goods in transit by allowing issuers of bills of lading to recover from the carrier responsible for the loss the amount of damages recoverable from such issuers by the shippers of the goods. The Court pointed out (p. 416) that the State statute had "a broad sweep which only incidentally includes claims arising out of interstate commerce," and "it follows that it cannot be held to constitute a direct burden upon such commerce * *

All ambiguities in a Federal regulation, apparently, are to be construed against the existence of an intention to supplant state laws. This principle was applied with respect to an order of the Interstate Commerce Commission in Ill. Cent. R. R. Co. v. Public Utilities Commission ((1918) 245 U. S. 493). There the Commission had made an order raising the rates of certain railroads. The railroads interpreted the order as applying to certain intrastate rates as well as to their interstate rates and accordingly put the new rates in effect on both types of operations. This met with opposition from certain State authorities, who construed the order as applying only to the rates charged on the interstate routes. The order was in fact ambiguous and susceptible of either construction. The railroads brought suit to enjoin the State authorities from interfering with the maintenance of the higher intrastate rates. The in

junction was denied by the lower court and this decree was affirmed by the Supreme Court. The Court said (p. 519):

"In construing Federal statutes enacted under the power conferred by the commerce clause of the Constitution, the rule is that it should never be held that Congress intends to supersede or suspend the exercise of the reserve powers of a State, even where that may be done, unless, and except so far as, its purpose to do so is clearly manifested This being true, of an act of Congress, it is obvious that an order of a subordinate agency, such as the Commission, should not be given precedence over a State rate statute otherwise valid, unless, and except so far as, it conforms to a high degree of certainty."

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Kelly v. Washington ((1937) 302 U. S. 1), similarly shows that the Court's unreadiness to imply a congressional intention to displace State legislation in the field of interstate transportation by water. In that case a State statute provided for the inspection of "hulls and machinery" of motorboats. The operator of a fleet of motor tugs sought a writ of prohibition to restrain the enforcement of the State statute on the ground that it had been supplanted by Federal regulation in the same field. Federal regulation of steam vessels made provision for hull and machinery inspection, but no Federal provision had been enacted for hull and machinery inspection in the case of boats driven by combustion engines of the type operated by petitioner. The Court emphasized, and it may be, exaggerated, the broad sweep of the Federal regulations with respect to steam vessels, as contrasted with the Federal regulations covering motor-driven boats.

In fact, the latter regulations were also quite sweeping and comprehensive. In the first Federal regulation of motor-driven craft, the Motorboat Act of 1910, provision was made, among other things, for the carrying of lights, whistles, fog horns and bells, life preservers, fire-extinguishing equipment, the observance of piloting rules, inspections where cargoes of combustible materials were carried, etc. Moreover, by a later Federal statute, enacted in 1936, the provisions for hull and machinery inspection of steam vessels were extended to apply in the case of motor-propelled vessels weighing over 300 tons. Petitioner's motor-driven tugs were not that large. Having thus discovered a loophole in the Federal scheme of regulation, the court came to the conclusion that Congress did not intend to supersede State regulation in this area, and stated that State statutes are not superseded by Federal regulations of commerce except (p. 10) where the repugnance or conflict is so "direct and positive that the two acts cannot be reconciled or consistently stand together."

The Court had pointed out, moreover, that the existing State laws in the field of motorboat regulation constituted an extremely complete and comprehensive code, and that it was improbable that some of these regulatory provisions which the State was not presently seeking to enforce were not in conflict with the Federal laws on the subject. But the Court said the question of whether such other provisions were repugnant to Federal law was not directly before it, and (p. 15) "whether the State in a particular matter goes too far must be left to 'be determined when the precise question arises."

Cases involving the effect upon State laws of the Motor Carrier Act of 1935 reveal the same judicial attitude. Welsh Co. v. New Hampshire ((1939) 306 U. S. 79), was an appeal from an order of the Public Service Commission of New Hampshire suspending the registration certificates of a motor carrier for violation of the State law. Ninety-nine percent of this carrier's operations were in interstate commerce. The State statute of which violation was claimed forbade the owner of any motor vehicle used on the highways of the State in the transportation of property for hire to permit any driver to drive continuously more than 12 hours, and provided that State registration certificates, without which no carrier might lawfully operate over the highways of the State, might be revoked for violations. Section 204 (a) of the Motor Carrier Act authorized the Interstate Commerce Commission to "establish reasonable requirements with respect to maximum hours of service of employees The Interstate Commerce Commission prescribed regulations as to maximum hours of service, but their effective date was postponed until January 31, 1939, or after the violations in question had occurred. The violations for which the State commission suspended appellant's registration certificates occurred after the effective date of the Federal act and before the Federal Interstate Commerce Commission made its order. The court held that the action of the State commission was proper since the State maximum hours of service regulation was not superseded by the mere enactment of the Motor Carrier Act making provision for subsequent promulgation of regulations by the Interstate Commerce Commission covering the same field.

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Maurer v. Hamilton ((1940) 409 U. S. 598) is the most recent case involving regulations in the transportation field. This was an action brought by a motor carrier to enjoin the enforcement by State authorities of a Pennsylvania law prohibiting the operation on the highways of the State of any vehicle carrying any other vehicle "above the cab of the carrier or over the head of the operator of such carrier vehicle." The statute, of course, was aimed at the common practice of transporting new automobiles in this manner. The Motor Carrier Act, section 204 (a), directed the Interstate Commerce Commission to prescribe "reasonable requirements with respect to * * * safety of operation and equipment," and section 225 authorized the Commission "to investigate and report on the need for Federal regulation of the sizes and weight of motor vehicles." Prior to the bringing of this suit, the Commission, acting pursuant to section 204 (a) had promulgated regulations with respect to "safety of operations and equipment," and while this suit was pending before the State supreme court, had issued its report of an investigation of the practice of the car-over-cab" method of transportation. It concluded that such a practice was not unsafe, and while the safety regulations already prescribed applied to vehicles engaged in such transportation, nevertheless such regulations did not forbid the “car over cab" practice of hauling as such.

The Court, through Chief Justice Stone, then proceeds through many pages to justify its conclusion that the Interstate Commerce Commission was in error in considering "car-over-cab" operation regulations as dealing with "safety of operations and equipment" rather than "sizes and weight." As a result, the Court concluded that Congress had not occupied the field and that State regulations on the subject would remain in effect until further action by Congress. Since section 225 merely authorized the Commission to investigate and report on the need for Federal regulation of sizes and weights, the Court concluded that the Commission was without authority to regulate in that particular field.

It might be suggested in passing that the same result might have been more plausibly obtained by following the technique employed in Smith v. Illinois Bell Telephone Co. ((1930) 282 U. S. 133, 160); Northwestern Bell Telephone Co. v. Nebraska State Railway Commission ((1936) 297 U. S. 471, 480); Illinois Cent. R. R. Co. v. Public Utilities Commission, ((1918) 245 U. S. 493), 510; and Welsh Co. v. New Hampshire ((1939) 306 U. S. 79), all supra, i. e., the Court could have conceded that the State regulation was of "safety of operations and equipment" within the meaning of section 204 (a), but have taken the position that since the Interstate Commerce Commission had issued no regulation applying to the specific practice of "car-overcab" hauling as such, the field was still left open to the States. The soundness of the conclusion reached or the reasoning employed is not, however, material in the present connection; the importance of the decision lies in its showing the Court's attitude of concern, amounting almost to anxiety, to preserve the State's power of prescribing safety standards for vehicles operating on its highways. The Court, indeed, may consider the policy consideration favoring the conclusion reached, as stronger than in other situations where other types of transportation are involved. That the field of motor carrier regulation is one strongly demanding the preservation of the State regulation where the Federal regulation does not explicitly supersede State laws is indicated by the statement of Chief Justice Hughes in S. C. Highway Dept. v. Barnwell Bros. ((1938) 303 U. S. 177, 187):

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"Few subjects of State regulation are so peculiarly of local concern as is the use of State highways. * Unlike the railroad, local highways are built, owned, and maintained by the State or its municipal subdivisions. The