Huron Portland Cement Company v. City of Detroit Michigan/Dissent Douglas

Mr. Justice DOUGLAS, with whom Mr. Justice FRANKFURTER concurs, dissenting.

The Court treats this controversy as if it were merely an inspection case with the City of Detroit supplementing a federal inspection system as the State of Washington did in Kelly v. State of Washington, 302 U.S. 1, 58 S.Ct. 87, 82 L.Ed. 3. There a state inspection system touched matters 'which the federal laws and regulations' left 'untouched.' Id., 302 U.S. at page 13, 58 S.Ct. at page 93. This is Not that type of case. Nor is this the rare case where state law adopts the standards and requirements of federal law and is allowed to exact a permit in addition to the one demanded by federal law. People of State of California v. Zook, 336 U.S. 725, 735, 69 S.Ct. 841, 93 L.Ed. 1005. Here we have a criminal prosecution against a shipowner and officers of two of its vessels for using the very equipment on these vessels which the Federal Government says may be used. At stake are a possible fine of $100 on the owner and both a fine and a 30-day jail sentence on the officers.

Appellant has a federal certificate for each of its vessels S.S. John W. Boardman, S.S.S.T. Crapo, and others. The one issued on March 21, 1956, by the United States Coast Guard for S.S.S.T. Crapo is typical. The certificate states 'The said vessel is permitted to be navigated for one year on the Great Lakes.' The certificate specifies the boilers which are and may be used-'Main Boilers Number 3, Year built 1927, Mfr. Manitowoc Boiler Wks.' It also specifies the fuel which is used and is to be used in those boilers-'Fuel coal.'

Appellant, operating the vessel in waters at the Detroit dock, is about to be fined criminally for using the precise equipment covered by the federal certificate because, it is said, the use of that equipment will violate a smoke ordinance of the City of Detroit.

The federal statutes give the Coast Guard the power to inspect 'the boilers' of freight vessels every two years, and provide that when the Coast Guard approves the vessel and her equipment throughout, a certificate to that effect shall be made.

The requirements of the Detroit smoke ordinance are squarely in conflict with the federal statute. Section 2.2A of the ordinance prohibits the emission of the kind of smoke which cannot be at all times prevented by vessels equipped with hand-fired Scotch marine boilers such as appellant's vessels use. Section 2.16 of the ordinance makes it unlawful to use any furnace or other combustion equipment or device in the city without a certificate of operation which issues only after inspection. Section 2.17 provides for an annual inspection of every furnace or other combustion equipment used within the city. Section 2.20 provides that if an owner has been previously notified of three or more violations of the ordinance within any consecutive 12-month period he shall be notified to show cause before the Commissioner why the equipment should not be sealed. At the hearing, if the Commissioner finds that adequate corrective means have not been employed to remedy the situation, the equipment shall be sealed. Section 3.2 provides for a fine of not more than $100 or imprisonment for not more than 30 days or both upon conviction of any violation of any provision of the ordinance, and each day a violation is permitted to exist constitutes a separate offense.

Thus it is plain that the ordinance requires not only the inspection and approval of equipment which has been inspected and approved by the Coast Guard but also the sealing of equipment, even though it has been approved by the Coast Guard. Under the Detroit ordinance a certificate of operation would not issue for a hand-fired Scotch marine boiler, even though it had been approved by the Coast Guard. In other words, this equipment approved and licensed by the Federal Government for use on navigable waters can pass muster under local law.

If local law required federally licensed vessels to observe local speed laws, obey local traffic regulations, or dock at certain times or under prescribed conditions, we would have local laws not at war with the federal license, but complementary to it. In Kelly v. State of Washington, supra, 302 U.S. at pages 14-15, 58 S.Ct. at page 94, 82 L.Ed. 3, the Court marked precisely that distinction. While it allowed state inspection of hull and machinery of tugs over and above that required by federal statutes, it noted that state rules which changed the federal standards 'for the structure and equipment of vessels' would meet a different fate:

'The state law is a comprehensive code. While it excepts     vessels which are subject to inspection under the laws of the      United States, it has provisions which may be deemed to fall      within the class of regulations which Congress alone can      provide. For example, Congress may establish standards and     designs for the structure and equipment of vessels, and may      prescribe rules for their operation, which could not properly      be left to the diverse action of the states. The state of     Washington might prescribe standards, designs, equipment and      rules of one sort, Oregon another, California another, and so      on. But it does not follow that in all respects the state act     must fail.'

This case, like Napier v. Atlantic Coast Line R. Co., 272 U.S. 605, 47 S.Ct. 207, 71 L.Ed. 432, involves the collision between a local law and a federal law which gives a federal agency the power to specify or approve the equipment to be used by a federal licensee. In that case one State required automatic fire doors on locomotives of interstate trains and another State required cab curtains during the winter months. The Interstate Commerce Commission, though it had the power to do so under the Boiler Inspection Act, had never required a particular kind of fire door or cab curtain. The Court, speaking through Mr. Justice Brandeis, said, 272 U.S. at pages 612-613, 47 S.Ct. at page 210:

'The federal and the state statutes are directed to the same     subject-the equipment of locomotives. They operate upon the     same object. It is suggested that the power delegated to the     Commission has been exerted only in respect to minor changes      or additions. But this, if true, is not of legal     significance. It is also urged that, even if the Commission     has power to prescribe an automatic firebox door and a cab curtain, it has not done so, and that it has made no other      requirement inconsistent with the state legislation. This,     also, if true, is without legal significance. The fact that     the Commission has not seen fit to exercise its authority to      the full extent conferred, has no bearing upon the      construction of the act delegating the power. We hold that     state legislation is precluded, because the Boiler Inspection      Act, as we construe it, was intended to occupy the field.'

Here the Coast Guard would be entitled to insist on different equipment. But it has not done so. The boats of appellant, therefore, have credentials good for any port; and I would not allow this local smoke ordinance to work in derogation of them. The fact that the Federal Government in certifying equipment applies standards of safety for seagoing vessels, while Detroit applies standards of air pollution seems immaterial. Federal pre-emption occurs when the boilers and fuel to be used in the vessels are specified in the certificate. No state authority can, in my view, change those specifications. Yet that is in effect what is allowed here.

As we have seen, the Detroit ordinance contains provisions making it unlawful to operate appellant's equipment without a certificate from the city and providing for the sealing of the equipment in case of three of more violations within any 12-month period. The Court says that those sanctions are not presently in issue, that it reserves decision as to their validity, and that it concerns itself only with 'the enforcement of the criminal provisions' of the ordinance. Yet by what authority can a local government fine people or send them to jail for using in interstate commerce the precise equipment which the federal regulatory agency has certified and approved' The burden of these criminal sanctions on the owners and officers, particularly as it involves the risk of imprisonment, may indeed be far more serious than a mere sealing of the equipment. Yet whether fine or imprisonment is considered, the effect on the federal certificate will be crippling. However the issue in the present case is stated it comes down to making criminal in the port of Detroit the use of a certificate issued under paramount federal law. Mintz v. Baldwin, 289 U.S. 346, 53 S.Ct. 611, 77 L.Ed. 1245, upheld the requirement of a state inspection certificate where a federal certificate might have been, but was not, issued. Cf. People of State of California v. Thompson, 313 U.S. 109, 112, 61 S.Ct. 930, 931, 85 L.Ed. 1219. Never before, I believe, have we recognized the right of local law to make the use of an unquestionably legal federal license a criminal offense.

What we do today is in disregard of the doctrine long accepted and succinctly stated in the 1851 Term in State of Pennsylvania v. Wheeling & Belmont Bridge Co., 13 How. 518, 566, 14 L.Ed. 249, 'No State law can hinder or obstruct the free use of a license granted under an act of Congress.' The confusion and burden arising from the imposition by one State of requirements for equipment which the Federal Government has approved was emphasized in Kelly v. State of Washington, supra, in the passage already quoted. The requirements of Detroit may be too lax for another port. Cf. People v. Cunard White Star, Ltd., 280 N.Y. 413, 21 N.E.2d 489. The variety of requirements for equipment which the States may provide in order to meet their air pollution needs underlines the importance of letting the Coast Guard license serve as authority for the vessel to use, in all our ports, the equipment which it certifies.