Phillips Petroleum Company v. Wisconsin/Concurrence Frankfurter

Mr. Justice FRANKFURTER, concurring.

While I join the opinion of the Court, one consideration leading to the Court's conclusion is for me so decisive that I deem it appropriate to give it emphasis.

Section 1(b) is not to be construed on its face. It comes to us with an authoritative gloss. We must construe it as though Congress had, in words, added to the present text of § 1(b) some such language as the following:

'However, since sales for resale, or so-called 'wholesale     sales,' in interstate commerce are not local in character and      are constitutionally not subject to State regulation (see      Missouri v. Kansas (Natural) Gas Co., 265 U.S. 298 (44 S.Ct. 544), and Public Utilities Commission v. Attleboro Steam &     Electric Co., 273 U.S. 83 (47 S.Ct. 294)) the basic purpose     of the legislation is to occupy this field in which the      States may not act.'

The section must be read with such an interpolation because the committees of Congress which were responsible for the legislation said specifically that the Natural Gas Act was designed to cover the situations which the two cited cases held to be outside the competence of State regulation. H.R.Rep.No. 709, 75th Cong., 1st Sess. 1-2; S.Rep.No. 1162, 75th Cong., 1st Sess. 1 2.

To be sure, the Kansas Gas case excluded the business of piping gas by a supply company in one State to distributing companies in another; and the Attleboro case involved the transmission of electric current by a producing company which took it from one State to the boundary of another State and there sold it to a distributing company for resale in the other State. In this case, the sale by Phillips was made in Texas to interstate pipeline transmission companies which transported the gas for resale to distributing companies and consumers in other States. But this fact-that Phillips itself did not pipe the gas to the State boundary or directly into another State-does not in the slightest alter the constitutional applicability of the Attleboro doctrine to the situation before us. The fact that the continuous transmission is not by facilities of Phillips but by the facilities of Phillips connecting with pipelines transmitting gas into other States does not change the interstate character of the transaction. For that reason, the decision in Attleboro, 273 U.S., at page 86, 47 S.Ct. at page 295, relying on Peoples Natural Gas Co. v. Public Service Commission of Pennsylvania, 270 U.S. 550, 46 S.Ct. 371, 70 L.Ed. 726, barred State regulation.

It may well be that if the problem in the Attleboro case came before the Court today, the constitutional doctrine there laid down would not be found compelling. This is immaterial. Congress did not leave it to the determination of this Court whether an Attleboro situation is subject to State regulation. It wrote the doctrine of the Attleboro case into the Natural Gas Act and said in effect that an Attleboro situation was to be taken over by federal regulation and was not to be left to the fluctuation of adjudications under the Commerce Clause.

Mr. Justice DOUGLAS, dissenting.