440 DOUGLAS, J., dissenting. curtain, it has not done so; and that it has made no 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 or 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 DOUGLAS, J., dissenting. 362 U.S. 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, upheld the requirement of a state inspection certificate where a federal certificate might have been, but was not, issued. Cf. California v. Thompson, 313 U. S. 109, 112. 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 Pennsylvania v. Wheeling & Belmont Bridge Co., 13 How. 518, 566, "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 + Smith v. Maryland, 18 How. 71, is not to the contrary. There a vessel enrolled under the laws of the United States was allowed to be forfeited by Maryland for dredging for oysters in violation of Maryland law. But the enrollment of vessels serves only a limited purpose. Smith v. Maryland, supra, was explained in Stewart & Co. v. Rivara, 274 U. S. 614. The Court said, "The purpose of the enrollment of vessels is to give to them the privileges of American vessels as well as the protection of our flag." Id., at 618. Enrollment without more did not give the enrolled vessel a license to disregard the variety of pilotage, health and other such local laws which the opinion of the Court in the famous case of Cooley v. Board of Port Wardens, 12 How. 299 (written by Mr. Justice Curtis who also wrote for the Court in Smith v. Maryland), had left to the States to be obeyed by all vessels. The local regulations approved in the Cooley case never qualified the license to ply as a vessel nor penalized its movement on navigable waters. The federal license in the instant case, however, specifically describes the only equipment and fuel which these vessels are allowed to use, and Detroit is permitted to make their use criminal. 440 DOUGLAS, J., dissenting. State of requirements for equipment which the Federal Government has approved was emphasized in Kelly v. 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. Per Curiam. 362 U.S. PHILLIPS v. NEW YORK. CERTIORARI TO THE COURT OF APPEALS OF NEW YORK. No. 497. Argued April 18, 1960.-Decided April 25, 1960. Certiorari dismissed as improvidently granted. Reported below: 6 N. Y. 2d 788, 159 N. E. 2d 677. Henry W. Schober argued the cause for petitioner. With him on the brief were Anthony T. Antinozzi and Frank A. Fritz, Jr. Joseph I. Heneghan argued the cause for respondent. With him on the brief was Manuel W. Levine. PER CURIAM. After hearing oral argument and fully examining the record which was only partially set forth in the petition for certiorari, we conclude that the totality of circumstances as the record makes them manifest did not warrant bringing the case here. Accordingly, the writ is dismissed as improvidently granted. CERMINARO v. URBAN REDEVELOPMENT AUTHORITY OF PITTSBURGH ET AL. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA. No. 654, Misc. Decided April 25, 1960. Appeal dismissed. Reported below: F. Supp. Louis C. Glasso for appellant. Theodore L. Hazlett, Jr. and David Stahl for appellees. PER CURIAM. The appeal is dismissed. CLEVELAND ELECTRIC ILLUMINATING CO. v. CITY OF EUCLID, OHIO, ET AL. APPEAL FROM THE SUPREME COURT OF OHIO. No. 740. Decided April 25, 1960. Appeal dismissed for want of a substantial federal question. John Lansdale for appellant. Paul H. Torbet and John F. Ray, Jr. for appellees. PER CURIAM. The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question. |