United Gas Pipe Line Company v. Ideal Cement Company/Dissent Harlan

Mr. Justice HARLAN, dissenting.

In my opinion none of the considerations underlying the doctrine of federal judicial abstention (see Harrison v. N.A.A.C.P., 360 U.S. 167, 176-177, 79 S.Ct. 1025, 3 L.Ed.2d 1152) call for its application here. There is no reasonable likelihood that a prior state construction of this License Code would either change the complexion of the constitutional issue or avoid the necessity of its eventual adjudication by this Court.

Even were this local enactment to be construed by the state courts to require a license of the appellant as a pre-condition of engaging in the distribution of natural gas within the City of Mobile, that of itself would not ordain the answer to the constitutional question. See Southern Natural Gas Corp. v. Alabama, 301 U.S. 148, 57 S.Ct. 696; East Ohio Gas Co. v. Tax Comm., 283 U.S. 465, 51 S.Ct. 499, 75 L.Ed. 1171; see also Illinois Natural Gas Co. v. Central Illinois Pub. Serv. Co., 314 U.S. 498, 506, 62 S.Ct. 384, 86 L.Ed. 371. Cf. Northwestern States Portland Cement Co. v. Minnesota, 358 U.S. 450, 79 S.Ct. 357, 3 L.Ed.2d 421. Nor can I see how such a state adjudication would serve to illumine the nature of United's activities in Mobile.

As I view matters, nothing useful is to be accomplished by remitting the parties to the state courts, and I would adjudicate the constitutional issue now.